Cornell University Law Library The Moak Collection PURCHASED FOR The School of Law of Cornell University And Presented February 14, 1893 in riEnoRy OF JUDGE DOUGLASS BOARDMAN FIRST DEAN OF THE SCHOOL By his Wife and Daughter A. M. BOARDMAN and ELLEN D. WILLIAMS CORNELL UNIVERSITY LIBRARY 139 832 The original of this book is in the Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://archive.org/details/cu31924061139832 CALIFORNIA DIGEST. Volume III. DIGEST OF CALIFORNIA REPORTS, COMPRISING THE REPORTED DECISIONS OF THE SUPREME COURT OF THE STATE OF CALIFORNIA, FROM VOL- UME THIRTY-FQURN^p VOLUME , FORTY-Sixfl MCEUSIVE, WITH A TABLE OP CASES CITED, CRITICISED, COMMENTED ON, AND APPROVED OR OVERRULED. ROBERT DESTY, ATTORNEY AT LAW. DESIGNED AS A SUPPLEMENT TO PARKER'S CALIFORNIA DIGEST. SAN FRANCISCO : A. L. BANCROFT & CO., 721 Market Street. SUMNER WHITNEY & CO., 613 Clay Street. 1875. Entered according to Act of Congress, in the year one thousand eight hundred and seventy- four, by A. L. BANCROFT & CO. and SUMNER "WHITNEY & CO. In the office of the Librarian of Congress, at Washington. PREFACE In the preparation of this work, the classification and arrangement adopted in Mr. Parker's Digest have been followed as nearly as possible ; and while each point of law as expressed in the syllabus appears, but once in the work, it is believed that the numerous cross references will enable the practitioner to find all the authorities bearing directly ,or collaterally on the same point. A copious Index was not deemed necessary, as each subject which is in any way referred to will be found in its alphabetical order, in the body of the work. A Table of Cases Cited is appended, wherein the points discussed are noted, and the value of the cases as authority upon such points expressed in the appropri- ate terms, approved, affirmed, denied, overruled, etc. ROBERT DEST5T. San Francisco, November 12th, 1874. DIGEST OF CA-LIFOKNIA KEPOBTS, From; January Term, 1868, to October Term, 1873. "Vol. 34 to Vol. 46, inclusive. ABANDONMENT. 1. What Constitutes. To constitute an abandonment the premises must be left vacant ■without the intention of reclaiming the pos- session, and open for the occupation of any one who may choose to enter. Smith v. dish- ing, 41 Cal. 97. 2. To constitute an abandonment, there must be a concurrence of the act of leaving the premises vacant, so that they may be ap- propriated by the next comer, and the inten- tion of not returning. Judson v. Malloy, 40 Cal. 299. 3. A question of intent. If the person in possession of land leaves it, -with the inten- tion of returning, he does not abandon it. An abandonment takes place only when one 1 in pos- session leaves with the intention of not again resuming possession. Abandonment is, there- fore, a question of intention. Moon v. Rollins,. 36 Cal. 333. 4. Lapse of time. Mere lapse of time does not constitute an abandonment, but it may- be given in evidence for the purpose of ascer- taining the intention of the parties. Id. 5. Failure to occupy. If one in possess- ion of land leaves it with the intention of re- turning, his mere failure to occupy the land for a period of five years does not necessarily constitute anahandonment. Untilabandoned he may recover against a trespasser, unless his action has become barred by a five years' ad- verse possession. Id. 6. Inference of. The intention to aban- don is not necessarily inferable from the fact that the premises have been left vacant, unim- proved, and without attention for more than 1 five years before the commencement of the ac- tion, but such fact must be taken into consid- eration in deciding the question of abandon- ment. Judson v. Malloy, 40 Cal. 299. 7. Indication of. In ejeptment it is not error to instruct the jury that after the entry of defendant no neglect or omission of plain- tiff in taking or exercising possession of the land, can be considered as an indication of abandonment. Sweeney v. Reilly, 42 Cal. 402. 8. Element of. An estoppel in pais does not constitute an element in abandonment, nor is it one of the circumstances from which an abandonment may be found. Marquart v. Brad- ford, 43 Cal. 526. 9. Abortive attempt to sell. An at- tempted sale of land which fails, because of a defect in the deed, is not an abandonment of the land. There cannot be an abandonment to a particular person, or for a consideration. McLeran v. Benton, 43 Cal. 467. 10. Title, how divested. A party hold- ing the legal title to land as the vendee of a mortgagor cannot divest himself of the title by abandonment, nor by any mere parol disclaim- er. Davenport v Turpin, 43 Cal. 591. 11. Loss of presumptive title. — A title presumptively held by a person who entered under a deed into the actual possession of land within the boundaries of the former Pueblo of San Francisco, and to which the City held the title as the successor to the Pueblo, at the time of the entry of the grantor in the deed, may be lost by abandonment. Judson v. Malloy, 40 Cal. 299. 12. Town lots. The fact that one who purchases town lots at auction, which were in the possession of his grantor, does not inclose, ABATEMENT.— ACTION. cultivate, or improve them, or put them to any actual use, does not show an abandonment of them. *• Smith v. Cushing, 41 Cal. 97. See Evidence, 60, 62, 117, 125, 126 ; Instruc- tions, 20 ; Landand Land Titles, 129 ; Lien, 6; Mines and Mining, 8-1 1 ; Pleading, 178. ABATEMENT. V See Pleading, 158, 165, 251. ABDUCTION. See Criminal Law and Practice, 77. ABORTION. See Criminal Law and Practice, 180. ACCESSORY. See Criminal Law and Practice, 96. ACCIDENT. 1. Unavoidable. The ignition of com- bustible substance lying along the track of » railroad, by sparks dropped by a passing en- gine, is not an unavoidable accident. Flynn v. S. F. & S. J. R. R. Co., 40 Cal. 14. ACCOUNTING. See Partnership, 17, 25; Probate Law and Practice, 61, 87. ACCOUNTS. See Equity, 49, 51 ; Evidence, 127 ; Limita- tions, 40, 41 ; Reference, 3. ACCRETIONS. See Lands and Land Titles, 267. ACKNOWLEDGMENT. 1. By Attorney in fact. The acknowl- edgment of a deed which recites, that " person- ally appeared before me, a Notary Public of said county, , by his attorney in fact -, known to me to be the person," etc. is sufficient as the acknowledgment of the attorney in fact. Talburt v. Stewart, 39 Cal. 602. 2. By wife, where husband non-resi- dent. Where, the certificate of acknowledg- ment to a deed of separate property by a mar- ried woman, made under the act of February 14th, 1855, (Stats. 1855, p. 12) was datedFebru- ary 26th, 1859, and set forth that she acknowl- edged on February 22d, 1859, and that her husband "does not now reside, and for one year next preceding February 22d, 1859, has not resided within the State of California " : held, that an objection to the certificate, on the ground of not stating that the husband was not a resident on the day of acknowledgment, was hypercritical and untenable. Salmon v . Wilson, 41 Cal. 595. 3. Of mortgage by wife. If the wife ac- knowledges a mortgage on her separate prop- erty, to secure a debt owed by her husband, and is induced to do so by a promise of her hus- band's attorney that he will see the debt paid, neither this promise, nor the failure to perform it, will invalidate the acknowledgment. Conn. L. Ins. Co. v. McCormick, 45 Cal. 580: 4. Official capacity. A deputy clerk has authority to take l the acknowledgment of a declaration of homestead. Emmal v. Webb, 36 Cal. 197? 5. Certificate of. If the certificate of ac- •knowledgment of a deed of a married woman for her separate property, does not state that she was examined by the Notary without the hearing of her husband, and that she was made acquainted with the contents of the instrument, it is radically defective, and does not convey any title. McLeran v. Benton, 43 Cal. 467. See JDeed, 4 ; Findings, 25 ; Limitations, 26, 29, 3°; 34- ACQUIESCENCE. See Legislature, 2. ACQUITTAL. See Criminal Law and Practice, 135. I. II. in. IV. ACTION. In general. Dismissal of. By and against particular parties. For various causes. ACTION. I. IN GENERAL. 1. Pendency of. An action is pending after default and until final judgment is entered. Abadie v. Lobero, 36 Oal 390. 2. Prematurely brought. An action cannot be maintained to recover a, debt be- fore it falls due. Kinsey v. Wallace, 36 Cal. 463. See Foreclosure, 12. ' ' 3. Pending appeal. The action cannot be maintained while an appeal to the Supreme Court is pending from an order of the District Court of the United States confirming the survey of the excepted ranchos. City of San Jose v. Uridias, 37 Gal. 339. n. DISMISSAL OE. 4. As to party designated. When a party not named a defendant, who was served with the summons as a party designated by a fictitious name, appears in Court, and moves to set aside the service of the summons, and dismiss the action as against him, and it ap- pears that there was no averment, in the 1 complaint, that the plaintiff was ignorant of the true name of the person intended to be made a defendant, and that the true name might have been easily ascertained by proper inquiry, and no offer was made by plaintiff's attorney in response to the motion, to insert the true name in the complaint, the motion was properly granted by the Court to dismiss the action as against the moving party. Ros- encrantz v. Rogers, 40 Cal. 489. 5. For failure to prosecute. Where a complaint was filed and summons issued more , than eight years before service, a motion by defendant to set aside the summons and strike the complaint from the ' files was properly granted. Carpentier v. Miuturn, 39 Cal. 450. 6. If a summons is not served until three years after the complaint is filed and it is issued, and there is no reasonable excuse for the delay, the service will be set aside, on motion, and' the suit dismissed. Eldridge v. Kay, 45 Cal. 49: 7. Allowing an action to rest without service of summons for two years and eight months after the summons is issued, is such a want of diligence as to justify the Court in dismissing the action. Grigsby v. Napa Co., 36 Cal. 585. 8. Rule of Court. If a rule of Court provides, that when a cause has been at issue for two years upon a question of either law or fact, and. the plaintiff has not brought it on for a hearing, that the defendant shall be entitled to an order of dismissal without no- tice, the continuance of the time for the argu- ment of a demurrer by consent takes away for two years thereafter the right of the defendant ^.o move for a dismissal. Poole v. Caulfield, 4 S Cal. 107. 9. Stranger cannot move to dismiss. In an ejectment case for a large tract of land, and in which many fictitious defendants were named, held, that a person, not named nor served as a party, and who had neither ap- peared, answered, nor demurred, nor asked to be made a party, was a stranger to the pro- ceedings, and could not, though an owner of land embraced within the tract sued for, main- tain a motion to dismiss the action as to such land. Soule v. Billings, 42 Cal. 285. 10. Order after a continuance. An order of dismissal made during the term, after it is understood by the attorneys of both parties that the cause has been continued for the term, js irregular, and must be set aside on a proper showing. Bensley v. Ellis, 39 Cal. 309. 11 By the Court. If notice is given of a motion to dismiss an action for want of prosecution, before summons is served, and the plaintiff then serves the summons, and at the end of ten days takes a default, but judgment is not entered up, the entry of the default does not preclude the Court from dismissing the action. The dismissal takes effect by relation back to the time of service of the motion. Grigsby v. Napa Co., 36 Cal. 585. 12. Failure to obey subpoena. If the defendant in an action gives the plaintiff notice that he will take his deposition, and procures and serves a subpoena for him to appear and give his deposition, and the plaintiff, without good reason, fails to obey the sub- poena, the Court may, on motion of the de- fendant, dismiss the action. Keisker v. Ayre ,' 46 Cal. 82. 13. Effect of order of Dismissal. An order of the District Court dismissing a cause of which it has no jurisdiction, and which is pending in the County Court on appeal from the Justice's Court, leaves it still pending in the County Court. Eldridge v. Stockton, 39 Cal. 693. 14. If the District Court acquired jurisdic- tion, its order dismissing the cause is final and conclusive in the proceeding. Id. 15. Motion to set aside order of dis- missal. When a plaintiff, after bringing his action, but having no summons served, absents himself for many months from his place of res- idence, leaving no attorney to represent him, he has no cause to complain that some of the defendants have voluntarily appeared and filed their answers and the case had been set down on the calendar for trial, and, when called, dismissed for the want of prosecution, unless he shows that he was acting under some mistake of law, or been lulled into a false security by something which the defendants appearing haU said or done. Pickett v. Hastings, 39 Cal. 105. 16. Dismissal without trial. An action merely commenced and then dismissed without ACTION. trial, determines nothing and concludes no one. Davenport v. Turpin, 43 Oal. 597. See Appeal 32, 215, 216, 328 ; Malicious Prose- cution, 4; Nonsuit, 9. m. BY AND AGAINST PARTICULAR PERSONS. 17. By Creditor. H A transfers prop- erty to B, and B as a consideration agrees to pay a debt or debts of A, the creditor or credi- tors of A who hold such demand or demands, have a cause of action against B without an assignment of the contract. Such contract need not be under seal. Morgan v. Overman S. M. Co., 37 Cal. 534. 18. By creditor after proving debt. Under the provisions of section twenty-one of the United States Bankrupt Act of 1867, a creditor who has proved his debt is deemed to have waived his right of action against the bankrupt, and cannot maintain such action. Wilson v. Capuro, 41 Cal. 545. 19. By partners. No action at law can be maintained, nor can an attachment be sued out, by one partner against another, for any matter touching the partnership affairs. Wheeler v. Farmer, 38 Cal. 203. 20. By the State. When a suit is insti- tuted in the name of the Stafe, by the permis- sion of the Attorney-General, upon the relation of the real party in interest, and the State has no direct interest in the event of the suit, the Attorney-General, as such, has no power to control the conduct of the suit, or to withdraw his consent to the use of the name of the peo- ple, to the prejudice of the relator. People v. S. P. H. & R. R. A., 38 Cal. 564. 21. By tenant in common. One tenant in common of real property, in the actual pos- session thereof, may maintain an action, under the two hundred and fifty-fourth section of the Practice Act, to determine the validity of an adverse claim of title thereto by a co-tenant. Boss v. Heintzen, 36 Cal. 313. 22. Against administrator. No action can be maintained against an administrator, as such, that is founded on malfeasance or misfeasance, or for a tort. Eustace v. Jahns, 38 Cal. 3. 23. No action can be maintained to charge the estate of a deceased person upon a money demand, unless the claim has been previously presented to the administrator for his allow- ance. Id. 24. Against owner of ferocious animal. The owner of a ferocious dog, knowing the vicious propensities of the animal, keeps it at his own risk, an 1 is responsible for any injury inflicted by it upon a person who is free from fault. Laverone v. Mangianti, 41 Cal. 138. 25. The owner of a dangerous or ferocious dog is liible for such damages only as result from his negligence in keeping it. Crockett, J. Laverone v. Mangianti, 41 Cal. 138. 26. When action not maintainable against bridge owner for bite of vicious dog belonging! to toll-keeper. Baker v. Kinsey, 38 Cal. 631. 27. Against Sacramento. An action cannot be maintained against the City of Sac- ramento until after satisfaction has been de- manded of its Board of Trustees. Yolo County v. City of Sacramento, 36 Cal. 193. 28. Against State Prison convict. A creditor whose debtor is imprisoned in the State Prison for a term less than his natural life, may sue and subject the property of such debtor to the satisfaction of his debt, during the term of his imprisonment. Estate of Nerac, 35 Cal. 392. See Assignment, 10, 12 ; Corporations, 53, 54, 75; 98, 99 > Husband and Wife, 24-27; Land- lord and Tenant, 34-36; Partnership, 15, 16, 26, 34; Sheriff, 10; State, 2 ; Supervisors, 19 ; Trust and Trustee, 13, 14. IV. POR VARIOUS CAUSES. 29. Breach of trust. In case the execu- tion of a valid conveyance cannot be decreed, the beneficiaries of the trust are entitled to re- cover its value from those by whose wrongful acts it was lost. Price v. Reeves, 38 Cal. 457. 30. Deceit. An action for deceit is a per- sonal action founded on fraud, and not on any covenant in the deed, running with the land. Lawrence v. Montgomery, 37 Cal. 183. 31. Invasion of water rights. If a party claiming water is constructing his dam and canal, but has not yet-diverted the water, an action for damages and to recover posses- sion of the dam site and dam, and of the canal sHe and canal, will afford an adequate remedy for a trespass upon an ouster from the posses- sion of such dam and canal. N. C. & S. C. Co. v. Kidd, 37 Cal. 282. 32. Until a claimant is himself in a posi- tion to use the water, the right to the water does not exist in such a sense as to enable him to maintain an action against another, either to recover the water or damages for its diver- sion. Id. 33. For partition. The whole scope and tenor of the provisions of the Act relating,to partition of lands show that the intention was to make the one judgment of partition final and conclusive on all persons interested in the property, or any part of it, of whom the Court could acquire jurisdiction. Such actions, both in respect to the modes of procedure prescribed and the remedies provided, partake more fully of the rules and principles of equity than those of law. Gates v. Salmon, 35 Cal. 576. 34. For relief in equity. Where a party to an equitable action has a plain and speedy remedy by motion in the action, he cannot ACTION. -ACT OF GOD. maintain a separate suit in equity to obtain the desired relief. Ketchum v. Crippen, 37 Oal. 223. 35. In ease of a mutual mistake as to the subject matter of a contract, the remedy for the aggrieved party is 1 an entire rescission of the contract. Barfield v. Price. 40 Cal. 535. 36. Use and occupation. An action for 'use and occupation does not lie where the oc- cupation was tortious and not under a con- tract, or at least permissive. Hathaway v. Eyan, 35 Cal. 188. 37. For< use and occupation upon an un- dertaking on appeal. Murdock v. Brooks, 38 Cal. 596.' 38. Contract to find purchaser. A con- tract between P and PI, by which P agrees that if H will find a purchaser for P's land at a certain price, P will sell to the purchaser at such price, and that H may have for his services all that the purchaser will pay over such price, is a mere contract of employment ; and if H finds the purchaser, and P refuses to sell, H may recover from P for his services what the purchaser was willing to pay over the price. Heyn v. Phelps, 37 Cal. 529. 39. On foreign judgment. An action on a judgment of a Court of competent juris- diction in the State of New York may be maintained in this State, notwithstanding an appeal from such judgment has been taken and is still pending in the Court of Appeals in that State. Taylor v. Shew, 39 Cal. 536._ 40. On injunction bond. If several parties are severally in possession of and culti- vating in separate parcels a tract of land, and are sued jointly in ejectment to recover pos- session of the whole tract, and an injunction is obtained restraining them jointly from taking off the crops, these parties cannot main- tain a joint action for damages on the injunc- tion bond, provided their damages are not joint. They can maintain a joint action for such damages only as are joint, such as attor- ney's fees. Fowler v. Frisbie, 37 Cal. 34. 41. An order made by the Court, dissolving an injunction, without assigning the grounds on which the 'dissolution was granted, is, prima facie, an adjudication that the plaintiff was not entitled to the injunction, and suffi- cient to enable him to maintain an action on the injunction bond. Id. 42. On new promise. When the creditor sues after the Statute of Limitations has run upon the original contract, or after a discharge in insolvency, his cause of action is not the original contract, but it is tne new promise. Ghabot v. Tucker, 39 Cal. 434. 43. When a creditor sues after the statute has run upon the original contract, his cause of. action is not founded on the original con- tract, but upon the new' promise ; the original contract, or the moral obligation arising there- upon, being a sufficient consideration for the new promise. McCormick v. Brown, 36 Cal 180. 44. To abate nuisance. A party cannot have an action to abate a public nuisance. The remedy is by indictment, or if this is too tardy, equity may interpose, upon the in- formation of the Attorney General. Tolo Co. v. City of Sacramento, 36 ChI. 193. ' 45. A. private person has no cause of action by reason of an obstruction to a public road, unless he has suffered some special damage. In order to maintain an action for such damage, it must be such as might legitimately flow from the nuisance. L. T. Co. v. S. & W. B. E. Co., 41 Cal. 562. 46. Unless he shows some special damage to him, in addition to that received by the public. Aram v. Shallenberger, 41 Cal. 449. 47. To enjoin sale under judgment. A subsequent mortgagee, who has been made a party to an action foreclosing a prior mort- gage, cannot maintain a separate action to enjoin a sale under the judgment, and to' be subrogated to the rights of the plaintiff, on the ground of a tender of the amount due on the judgment ; his remedy is by motion in the action foreclosing the mortgage. Ketchum v. Crippen, 37 Cal. 223. 48. To quiet title to mining claim. Lev- aroni v. Miller, 34 Cal. 231 ; Pralus v. Pacific G. & S. M. Co., 35 Cal. 30'; Eoss v. Heintzen, 36 Cal. 313. 49. To quiet title to water. A party who is not in the possession of water cannot maintain an action under Section 254 of the Practice Act, to determine an adverse claim to it. N. C. & S. C. Co. v. Kidd, 37 Cal. 282. See Contract, 42, 43, 62-65, 81, 82, 96-100, 115; Corporations, 53 ; Deed, 34 ; Forcible En- try and Detainer, 7-10 ; Insolvency, 18 ; In- surance, 13 ; Land and Land Titles, 76, 88 ; Lien, 5, 8 ; Mortgage, 43-50 ; Nuisance, 7-16 ; Partition, 10 ; Quieting Title, 21 ; Specific Performance, 29-38 ; Streets and Street Assess- ment, 102 ; Taxation, 112-115 ; Trade Mark, 6; Vendor and Vendee, I ; Warranty, 6. ACT OF GOD. 1. What regarded as. Those acts are to be regarded, in a legal sense, as the acts of God which do not happen through human agency, such as storms, lightnings, and tempests. If it appears that an injury to the demised premises has been sustained in an j way through the intervention of man, it is not the act of God. Polack v. Pioche, 35 Cal. 416. 2. Damages by the elements. The ele- ments are the means through which God acts, and " damages by the elements " are damages by the act of God. Id. ACTS OP CONGRESS.— ALIMONY. ACTS OF CONGRESS. See Cities and Towns; Civil Rights Bill; Homestead, 30 ; Land and Land Titles ; Tax- ation, 25, 49 ; Actual Possession ; Ejectment ; Forcible Entry and Detainer ; Land and Land Titles, 250-303. ADJOURNMENT. ! Courts, 12, 13, 15. ADMINISTRATOR. See Action, 22 ; Amendments, 2 ; Parties, 4 ; Pleading, 19; Probate Law and Practice. * ADMIRALTY. 1. Jurisdiction. A cause of action, to be " cognizable in admiralty, whether arising out of contract, claim, service or obligation, or liability of any kind, must relate to the busi- ness of commerce and navigation. People v. Steamer America, 34 Cal. 676. 2. Mode of raising issues. The only mode of raising issue on the jurisdiction of a State Court, on the ground that the cause of action pending therein belongs to maritime jurisdiction, is by presenting in the pleadings the essential facts showing such cause to relate - to the business of commerce and navigation. Id. 3. Where State is plaintiff. Whether a State Court would not hold its jurisdiction of an action brought in the name of the people and in aid of the public revenues of the State, even though the cause of action related to the business of commerce and navigation, sug- gested, but not decided. Id. 4. State legislation. The statute of this State, so far as it attempts to authorize pro- ceedings in rem for causes of action cognizable in the admiralty, is unconstitutional. Craw- ford v. Bark Caroline Reed, 42 Cal. 469. 5. Jurisdiction as to maritime con- tract. Where materials and supplies are fur- nished a domestic vessel at her home port, under a contract with the master of the vessel, the United States Courts have exclusive original jurisdiction of proceedings in rem to enforce a lien against the vessel for the same. Id. ADMISSIONS. See Criminal Law and Practice, 157; Evi- dence, 89, 98,99, no, 119 ; Findings, 21 ; Nego- tiable Instruments, 4; Trial, 17; New Trial, 121 ; Pleading, 148-152. ADULTERY. See Criminal Law and Practice, 181 ; Di- vorce, 14 ; Evidence, 6, 7. ADVERSE POSSESSION. See Ejectment, 54-59 ; Land and Land Titles, 287-309; Lien, 8 ; Limitations, 16, 24, 50-61 ; Mines and Mining, 1. AGREEMENTS. See Attorney and Client, '19, 20 ; Equity, 40 ; Limitations, 4, 5 ; Negotiable Instruments, 64, 65 ; Partition, 3, 47 ; Partnership, 1 ; Pleading, 46. AID TO RAILROADS. i County. ALCALDE GRANTS. i Land and Land Titles, 215-229. ALCALDES' RECORDS. See Evidence, 34, 35. ALTERED CHECK. See Negotiable Instruments, 20—25, 39- ALIMONY. 1. In divorce. The provision for alimony, made in the statute concerning divorces, was not intended to be a prohibition to the grant- ing of alimony in other cases. Galland v. Gal- land, 38 Cal: 265. 2. Power of Court to grant. The power to decree alimony falls within the general powers of a Court of Equity, and exists inde- pendent of statutory authority. And in the exercise of this original and inherent power, a Court of Equity will, in » proper case, decree alimony to the wife, in an action which has no reference to a divorce or separation. Id See Divorce, 4-7 ; Eqiiity, 52. AMENDMENTS.— ANIMALS.— APPEAL. AMENDMENTS. 1. Court may correct errors after term. The Court haH power to correct clerical errors and misprisions, even after the expiration of the term. Estate of Schroeder, 46 Cal, 305. 2. Amendment to judgment. If a per- sonal judgment is rendered against an adminis- trator, and it appears by the record that the judgment should have been made payable in due course of administration, the Court may direct the judgment to be amended so as to make it correct, even after the adjournment of the term. Id. See Appeal, 101, no, 120, 135, 189, 359,360, 364 ; Appearance, 8 ; Amendment, 32 ; De- cree, 2 ; Election, 12 ; Eminent Domain, 30 ; Findings, 10, 17; 18 ; New Trial, 4, 86-90 ; Pleading, 230-244 ; Statutory Construction, 45, 50 ; Summons, 10. ANIMALS. See Damages, 9, 10 ; Negligence, 4, 26, 27 ; Answer ;' Pleading, 123-217. I. n. m. IV. v. VI. VII. vm. rx. x. XI. XII. xrn. APPEAL. Eight of. Who may. When appeal lies. orders not appealable. Time within which to appeal. 1. From judgment. 2. From orders. Notice op appeal. Undertaking on appeal. Statement. Record. Briefs and points. Transcript. Dismissal on appeal. Review on appeal. XIV. 1. From judgment. 2. From orders. 3. Orders in discretion. 4. Objections token not considered. 5. When appeal stands on judgment roll. Principles of determination. 1. Presumptions generally. 2. Presumptions that findings sup- port judgment. 3. Findings presumed in support of judgment. 4. Facts presumed to warrant judg- ment. 5. Error without prejudice immate- rial, and harmless errors. 6. Conflict of evidence. XV. Reversal of judgment. 1. Generally. 2. On defective findings. 3. New trial, when. - XVI. Modification of judgment. XVII. Rehearing. XVLn. Judgment on appeal. XIX Law of a case. XX. Remittitur. XXI. Costs on appeal. XXLT. Appeal from probate court. XXIII. Appeal in county courts. I. RIGHT OF APPEAL. 1. Limitation of. Parties have no right to appeal from judgments which do not affect their rights. Hibernia Savings and Loan So- ciety v. Ordway, 38 Cal. 679. 2. Order for writ. One who is not a party to the record cannot appeal from an or- der granting a writ of assistance. Such per- son must move to vacate the order granting the writ, and in that way place himself on the record, and then, if the motion is denied, ap- peal from the order denying his motion ; or if the writ is executed, move to be restored to the possession, and if the motion is denied, take iis appeal. People v. Grant, 45 Cal. 97. 3. Decree in partition. If there is error in an interlocutory decree in partition, it must be corrected by motion for new trial or by an appeal. Tormey v. Allen, 45 Cal. 119. 4. Intervenor. The right of an interven- er to take an appeal is immediate jUpon the sustaining of an objection, by demurrer, to his right to intervene. Stich v. Dickinson, 38 Cal. 608. 5. Judgment too broad. That the jud- ment is broader than the facts alleged and found will justify, is no ground for a new trial. The remedy is by an appeal from the judgment on the judgment roll. Shepard. v. McNeil, 38 Cal. 72. 6. Presumption in favor of. Doubtful claims affecting the right of appeal should be liberally construed in favor of the right. San Francisco v. Certain Real Estate, 42 Cal 513- 7. Second appeal. Where an appeal from an order denying a new trial was not per- fected, and afterwards, but within sixty days from the order, a second appeal was taken and perfected : held, that the failure to perfect the first did not defeat the second appeal. Born- heimer v. Baldwin, 42 Cal. 27. 8. When an attempted appeal is ineffec- tual from failure to serve the notice at the proper time, a new appeal may be taken. Co- lumbet v. Pacheco, 46 Cal. 650. 9. Supplementary proceedings. If a party, in proceeding supplementary to execu- tion, is dissatisfied with an order made by the Court or referee, his only remedy is by appeal. McCullough v. Clark, 41 Cal. 298. APPEAL. 10. To vacate order. The rule that one affected by an order regularly entered, which is the subject of an appeal, must assail it by an an appeal, and not by an application to set it aside, dote not apply to ex parte order ob- ained by an intruder who was not a party to the action. City of San Jose v. Fulton, At Cal. 316. 11. Rules for construing statutes. If a statute is capable of being so construed as to maintain the right of appeal without violating the well established rules for construing stat- utes, it will be'so construed. Appeal of S. 0. Houghton, 42 Cal. 35. See Post, 392 ; Criminal Law and Practice, 375> 377 > Probate Law and Practice, 104, 105. II. WHO MAY APPEAL. 12. Party aggrieved. The Code allows any party who feels aggrieved to appeal with- out joining any one else, whether the judg- ment against him be joint or several. Senter 0. Bemal, 38 Cal. 637. 13. Executor. The executor of an estate cannot maintain an appeal from a, final order of distribution, upon the ground that the property was improperly divided among the legatees. Bates v. Ryberg, 40 Cal. 463. 14. Heirs and devisees. The heirs and devisees or legatees of an estate are made par- ties to the proceedings for a distribution, and any one of them feeling aggrieved may ap- peal from the final order. Id. 15. Bankrupt. The bankruptcy of a party against whom a. judgment has been rendered, though adjudicated before the taking of the appeal, will not prevent the prosecution of an appeal in his name. The appeal may be pros- ecuted in the name of the bankrupt, or in the name of his assignee. O'Neil v. Dougherty, 46 Cal. 575. See Post, 57, 58. IH. WHEN APPEAL LIES. 16. Certiorari. The jurisdiction of the Su- preme Court on appeal from a judgment of the District Court, rendered in a certiorari case, does not depend upon the amount in contro- versy. Winter v. Fitzpatrick, 35 Cal. 269. 17. Appeals to this Court may be taken in eases of certiorari. Morley v. Elkins, 37 Cal. 454- See Certiorari, 8, 13, 32, 33. 18. Judgment in general. Whether an appeal will lie from a judgment which deter- mines only the questions of an equitable nature in the ease, and leaves all the issues of law wholly undisposed of ? Query f Mar- tin v. Zellerbach, 38 Cal. 300. 19. Judgment at chambers. An appeal may be taken from a judgment rendered by a I District Judge at Chambers, in an action of mandamus, certiorari, or quo warranto, or in a special proceeding to try the validity of a cor- poration election. Brewster v. Hartley, 37 Cal. 15. 20. Judgment upon award. A judgment entered in accordance with an award is a judg- ment upon a proceeding commenced in a Dis- trict Court, within the meaning of the Prac- tice Act, and is, therefore, appealable. Pair- child v. Doien, 42 Cal. 125. See Bankruptcy, 5, 6 ; Eminent Domain, 31 ; Judgment, 38-41. , 21 Order for judgment on report of Ref- eree. The confirmation of the report of a referee, and an order that judgment be entered for the plaintiff, without annunciation of judg- ment upon the facts found, and a determina- tion of the particular relief to which the plaintiff is entitled, is not the rendition of the judgment from which an appeal may betaken. Harris v. S. F. S. P. Co. 41 Cal. 393. 22. Order refusing to vacate order. An appeal lies from an order refusing to vacate an order granting a writ of assistance. City of San Jose v.. Pulton, 45 Cal. 316. 23. Order granting or refusing new trial. A new trial may be granted by the District Court of issues determined therein, which have been framed in a Probate Court, and an appeal from an order granting or re- fusing the same lies to the Supreme Court. Probate Courts are bound by the final deter- mination of such issues in the District Court. Will of Bowen, 34 Cal. 682. 24'. , Order made after final judgment. An appeal may be taken from an order made by a Court or referee on proceeding supple- mentary to execution. McCullough v. Clark, 41 Cal. 298. 25. Order for discharging imprisoned debtor. Such order is none the less a ' 'special order entered after final judgment," because it was made by the Judge of another Court, who is authorized by law to take jurisdiction of such proceedings. In such case the acts of the Judge in that behalf are only ancillary to the jurisdiction of the Court which rendered the judgment, and the order entered by him is as much an order in the original action as if it had been make by the Court or Judge which tried the cause. Wells v. Anthony, 35 Cal. 696. 26. Order retaxing costs. An order on a motion to retax costs, if made after the en- try of judgment, is a special order made after final judgment, from which an appeal lies.- Dooly v. Norton, 41 Cal. 439. 27. Order striking out statement. An appeal may be taken from an order made after judgment striking a statement on motion for a new trial from the files. Calderwood v. Peyser, 42 Cal. m. 28. Special proceedings.— Legality of assessment. The proceeding under the Acts APPEAL. of 1868 alnd 1870 presents a case involving the legality of an assessment, and under the Con- stitution, and section three hundred and fifty- nine of the Practice Act, an appeal lies from the judgment of the County Court. Per Sprague, J. Appeal of Houghton, 42 Cal. 35. 29. Construction of words " final and conclusive." The words " final and conclu- sive," in the Act of 1870, apply to the County Court only, and do not prohibit an appeal to the Supreme Court. Id. See Default, 12. IV. ORDERS NOT APPEALABLE. 30. Adjudging a contempt. The ques- tion whether an appeal lies from an order made after final judgment adjudging a judgment debtor guilty of a contempt for not applying his property on the execution, not decided. Briggs v. McCullough, 36 Cal. 542. 31. An order of Court adjudging a party guilty of contempt is not appealable. Per Rhodes, C. J., and Crockett, J. Aram v. Shal- lenberger, 42 Cal. 277. 32. On demurrer. Neither an order over- ruling a demurrer, nor an order refusing, to set aside an order vacating a former order dismiss- ing a cause as to certain defendants, is appeal- able. Gates v. "Walker, 35 Cal. 289. 33. An order sustaining a demurrer to an answer containing an equitable defense, is not appealable. Daniels v. Lansdale, 38 Cal. 567. 34. Erom an order sustaining a demurrer to a portion or the whole of ah answer, or dis- missing it in whole or in part, no appeal can be taken to this Court ; the only method of re- view of such proceedings here is through an appeal "from the final judgment thereafter en- tered in the action itself. Hibberd v. Smith, 39 Cal. 145. 35. Findings. The findings and conclu- sions of law do not constitute an order which is the subject of an appeal. Thompson v. Lynch, 43 Cal. 482. 36. Refusing to grant order. An appeal does not lie from, the refusal of a Court to grant an application for an order to show cause why an injunction should not issue. Such re- fusal is not an order refusing to grant an in- junction. Grant v. Johnston, 45 Cal. 243. 37. Refusing to try cause. An order made by the Court, in a cause, refusing to try the same, is not a judgment from which an appeal will lie. People v. De La Guerra, 43 Cal. 225. 38. Denying a continuance. An appeal does not lie from an order denying a contin- uance. Haraszthy v. Horton, 46 Cal. 545. 39. Setting aside proceedings. An ap- peal does not lie from an order of the Probate Court setting aside its own proceedings had before a final order, upon application of the surviving wife to have the homestead set aside to her. Estate of Johnson u. Tyson, 45 Cal. 257- 40. Striking out pleadings. Orders strik- ing out immaterial portions of pleadings and orders sustaining demurrers, are not appeala- ble. Sutter v. San Erancisco, 36 Cal. 112. 41. Vacating order of reference. An order made by the District Court vacating a former order of reference, and the subsequent proceedings had under it, is not appealable. Hastings v. Cunningham, 35 Cal. 549. See Criminal Law and Practice, 385, 390. V. TIME WITHIN WHICH TO APPEAL. 1. From judgment. 42. From judgment. An appeal from a judgment must be taken within one year from the time the same was rendered. Waggenheim v. Hook, 35 Cal. 216 ; Bornheimer v. Baldwin, 42 Cal. 27. 43. If the appeal from a judgment be not taken within a year, it will be dismissed. Bornheimer v. Baldwin, 38 Cal. 671. 44. Where a judgment for defendant, ren- dered (though not entered) on December 17th, 1869, was afterwards, on December 29th, 1869, vacated on motion of plaintiff, and a judgment rendered (though not entered) for plaintiff, and defendant's motion to set aside the last judgment was denied on July 9th, 1870, and judgment for plaintiff entered on July 12th, 1870, and defendant appealed from the judg- ment on March 27th, 1871 : held, that the ap- peal, not having been taken within a year from the rendition of the judgment, was too late, and that, on motion,. it should be dismissed. McCourtney v. Eortune, 42 Cal. 387. 45. The one year within which an appeal from a judgment may be taken must be com- puted from the time the judgment is an- nounced by the Court and entered in its min- utes, and not from the date of its entry in the Judgment Book by the Clerk. Wetherbee v. Dunn, 36 Cal. 249, 46. Judgment on demurrer. The time for an appeal from a final judgment on a de- murrer commences to run from the rendition of the judgment, and not from the time of sus- taining the demurrer to the complaint. Web- ster 17. Cook, 38 Cal. 423. 47. Judgment modified. The modifica- tion of a judgment made as the result of a mo- tion for a new trial, is in effect the rendition of a new judgment, and a party desiring to have it reviewed may appeal at any time with- in one year after its modification. Mann' v. Haley, 45 Cal. 63. 48. Time not prolonged. , Thependency of an appeal from an order denying a new trial in the same case will not operate to prolong 10 APPEAL. the .time for an appeal from the judgment. Bomheimer i>. Baldwin, 42 Cal. 27. 2. From orders. 49. Order on new trial. An appeal from an order denying a new trial should be taken within sixty 'days from the time the order is made. Waggenheim v. Hook, 35 Cal. 216. 50. An appeal from an order denying or granting a new trial, must be taken within sixty days from the time the order was made. Thompson v. Connolly, 43 Cal. 636. 51. Order discharging debtor from im- prisonment. An order for the discharge from imprisonment of a judgment debtor, made un- der the provisions of the "Act for the relief of persons imprisoned on civil process," (Stats. 1850, p. 40) is a " special order made after final judgment," within the meaning of the three hundred and thirty-sixth section of the Prac- tice Act, and an appeal therefrom cannot be taken after sixty days from the entry of the order. AYells, Fargo & Co. v. Anthony, 35 Cal. 696. 52. Order refusing to vacate award. An appeal from an order of the Court refusing to vacate the award of arbitrators must be taken within sixty days from the time the or- der is made. Fairehild v. Doten, 38 Cal. 286. 53. Order striking out notice of mo- tion. An order striking a notice of motion for new trial from the files ceases to be the subject of review after sixty days, and a party cannot move to vacate it and then appeal from the or- der denying his motion. Thompson v. Lynch, 43 Cal. 482. 54. From County Court in case appeal- ed from Justice's Court. Where an action for unlawful detainer was originally com- menced in April, 1863, before a Justice of the Peace, and afterwards appealed to the County Court, and while pending there the Acts of December 23d, 1863, and April 4th, i864,(Stats. 1863-4, pp. 1, 339) for the transfer and chang- ing of the original jurisdiction in such cases, took effect : held, that the jurisdiction of the County Court did not cease to be appellate, or become original ; and that therefore an appeal from a judgment therein must be taken with- inninety days. Calderwood r. Peyser, 42 Cal. no. VI. NOTICE OF APPEAL. 55. Construction. A notice of appeal from a judgment and from all orders made in the cause, is only an appeal from the judgment. It does not sufficiently describe any order. Gates v. Walker, 35 Cal. 289. 56. From Probate Court. An appeal from any order, decree or judgment of a Probate Court, or from some specifio part thereof, may be taken and perfected by filing with the Clerk of said Court a notice stating such appeal, and by executing an undertaking, or giving surety on Such appeal in the manner and to the ex- tent as upon an appeal to the Supreme Court from a District Court. The notice need not be served. Will of Bowen, 34 Cal. 682. 57. In partition. Appeals may be taken from it by the parties aggrieved without notice to anybody except those who were parties to the particular issue which they seek to have reviewed. Senter v. Bernal, 38 Cal. 637. 58. The code allows any party who feels aggrieved to appeal without joining any one else, whether the judgment against him be joint or several ; but he is required to notify" all other parties who are interested in opposing the relief which he seeks by his appeal, if they have formally appeared in the action, and if he does not he will be not only entitled to no relief against those not notified, but also against those notified, if the relief he seeks is of such a character that it cannot be granted as to the latter without being granted as to the former also. Id. 59. Adverse party. By the words " ad- verse party," used in Sections 335 and 337 of the Code, in relation to appeals, is meant every party whose interest in the subject-matter of the appeal is adverse to a reversal or modifica- tion of the judgment or order from which the appeal has been taken, irrespective of the ques- tion whether he appear upon the record in the attitude of plaintiff, or defendant, or interven- or. Id. 60. In an action for partition, if there be eleven plaintiffs and fifty-seven defendants, and five of the defendants join in an appeal from the whole of the final judgment, and give the plaintiffs notice, but not their co-defend- ants, the appeal will be dismissed. Senter v. Bernal, 38 Cal. 637. 61. If the object of the appeal be to reverse or modify the final judgment in partition, all the parties to the judgment must be made par- ties to the appeal, either as appellants or res- pondents, or the appeal will prove ineffectual. Senter v. Bernal, 38 Cal. 637. 62. By whom given. A notice of appeal given by the attorney of record is sufficient. Damrell v. B. S. San Joaquin Co., 40 Cal. 154. 63. Filing notice. ' The filing of the no- tice of appeal must precede or be contemporan- eous with the service on the adverse party to render an appeal effectual. Lynch v. Dunn, 34 Cal. 518. 64. Service of notice. The service of the notice of appeal must be made upon the at- torney of the adverse party, when such party has an attorney. Abrahms v. Stokes, 39 Cal. 65. The statute provides no time within which the notice of appeal must be served, except that it must be served before the under- taking on appeal is filed. Sweeney v. Eeilly, 42 Cal. 402. APPEAL. 11 66. Statute requirements. The Supreme Court has no authority to relieve a party from the consequences of a failure to comply with the statute in relation to the service and filing of notices and undertakings on appeal. The statute of 1 86 1 applies only to insufficiencies in point-of mere form of such notices and under- takings. Aram v. Shallenberger, 42 Cal. 275. 67. Filing and service. The filing of the notice of appeal, filing of the undertaking, and service of the notice, must be effected on the same day. The notice may be served per- sonally, or in the other modes provided in. the Code. Columbet v. Paoheco, 46 Cal. 650. 68. Proof of service. The proof of ser- vice of a notice of appeal, if not shown by an official certificate, or the admission of the party served or his attorney, must be proven by the affidavit of some competent person, who may be any third person as well as the appellant or the attorney. Moore v. Beese, 35 Cal. 184. 69. Affidavit defective. Where such af- fidavit only disclosed that the affiant, who was a third person, mailed a copy of the notice at Santa Cruz, directed to the respondent's at- torney at San Francisco, but did not state that the attorney for whom he acted resided at Santa Cruz : held, that the affidavit is defect- ive. Id. 70. Supplying proof pending appeal. Where a dismissal of an appeal is moved in this Court, on the ground that there is no proof of service of the notice of appeal, or that the proof of such service is defective, this Court will, on appellant's return, grant him leave to supply the omitted proof, upon a showing that the service has been, in fact, properly made. Upon leave being granted, appellant may file in the Court below the proper proof, and an- nex a certified copy thereof to the record in this Court. Id. See Ante, 8 ; Post, 74 ; Attachment, 9. "VTL UNDERTAKING ON APPEAL. 71. Piling. An undertaking on appeal , must be filed within five days after the notice of appeal is filed. Aram v. Shallenberger, 42 Cal. 277. 72. Want of undertaking on appeal. If there be an appeal from the judgment on which an undertaking was given, and also an appeal from an order refusing a new trial, upon which no undertaking on appeal is given, the latter will be dismissed, unless the appel- lant offers to file an undertaking in conformity with the statute. Bornheimer v. Baldwin, 38 Cal. 671. 73. Stay of execution. When a full bond is given on appeal from an order denying a motion for a new trial, as provided in Section 349 of the Practice Art, execution, is as effect- ually stayed upon the judgment pending such appeal as it would have been pending a direct appeal from the judgment, with a like bond or undertaking. Pulton v. Hanna, 40 Cal. 278. . 74. Notice. The service of a notice of appeal operates a notice of the filing of the un- dertaking. Columbet v. Pacheco, 46 Cal. 650. See. Estoppel, 4. "VHI. STATEMENT. 75. Error must affirmatively appear. The party alleging error, on appeal, must make it affirmatively appear. Todd v. Win- ants, 36 Cal. 129. 76. Must be specified. Errors not speci- fied in the statement will not be considered on appeal. Crosett v. Whelan, 44 Cal. 200. 77. Insufficient specification. A gen- eral specification in a, statement, such as that the Court erred "in entering judgment for the plaintiff," is not sufficient to enable the Court to review errors alleged outside the judgment roll. Wilson v. Wilson, 45 Cal. 399. 78. Objection to amount of verdict. On appeal from an order denying a new trial, a' point that, the verdict is for too small a sum cannot be considered in the Supreme Court, if it be not particularly specified as a ground of objection in the statement. .Livermore r. Stine, 43 Cal. 274. 79. Questions of law. When questions of law alone are sought to be reviewed on appeal, and a statement of facts be necessary to their explanation, a statement- on appeal, rather than a motion for new trial and' state- ment thereon, is the appropriate mode of pro- cedure. Treadwell v. Davis, 34 Cal. 601. 80. When errors of law occurring at the trial are relied upon as errors on appeal, the particular errors must be pointed out by coun- sel ; otherwise they will be disregarded, unless they plainly appear from the transcript on appeal. Sanchez v. McMahon, 36 Cal. 218. 81. Nonsuit. The question presented on a motion for a nonsuit is a question of law, and in a statement' on a motion for a new trial, after nonsuit, the decision of the Court should be specified as an error of law. The specifica- tion need not embody the evidence. Donahue v. Gallavan, 43 Cal. 573. 82. Specification construed. A specifi- cation in a statement that "the Court erred in rendering judgment for defendant, because the testimony shows that every step required by law to create a lien on defendant's land for the grading of Fremont street was correctly taken," is, if it amounts to anything, not a specification of an error of law, but of the insufficiency of the evidence to sustain the decision. City of Stockton v. Creanor, 45 Cal., 247. 83. A specification in a statement that the evidence does not show that the land in con- troversy was inclosed, or that the plaintiff 12 APPEAL. resided on it, is not sufficient to present the question, whether the evidence showed such possession in the plaintiff as would justify a verdict in his favor, in an action to recover possession of land. Goodrich v. Van Landig- ham, 46 Cal. 601. 84. Evidence in statement. In setting out the evidence in a statement, a brief synopsis of its substance is proper. Ross v. Roadhouse, 36 Cal. 580. 85. Proof of agency. It will not be presumed that evidence to establish an agency was given, but the statement must show that fact. Grigsby v. Clear Lake Water Co., 40 Cal. 396. 86. Papers referred to. If the state- ment on appeal, from an order refusing a party leave to amend his pleading, sufficiently refer to and identifies the affidavits and other papers used on the hearing of the motion, and which appear in the transcript of the record, it is sufficient, and they need not be set out at length in the statement. Kirstein v. Madden, 38 Cal. 158. 87 . Unless the undertaking on attachment be referred to in, or be made a part of, the statement on appeal, it will not be regarded as a portion of the record by the appellate Court. "Wheeler v. Farmer, 38 Cal. 203. 88. Motions to strike out. Motions to strike out immaterial portions of pleadings are not parts of the judgment roll. They are no part of a record on appeal, unless made so by a statement. Sutter v. San Francisco, 36 Cal. 112. 89. Orders to strike out. An order striking out portions of a pleading is no part of the judgment roll, and cannot be reviewed on appeal from the judgment, unless it be supported by a statement on appeal. Nev. & Sac. Canal Co. v. Kidd, 43 Cal. 180. 90. The ruling of the Court in striking out a portion of a complaint or answer does not form a part of the judgment roll, and cannot be reviewed on appeal, unless made a part of the record by a statement or bill of exceptions. Feely v. Shirley, 43 Cal. 369. 91. Notices of motions. Notices of mo- tion to strike out portions of pleadings, or to dismiss action and orders upon such motions^ and judgment rolls in other suits ^ltroduced as evidence, do not constitute a part of the judgment roll in a case, and hence are not a part of the record on appeal, unless embodied in a statement or bill of exceptions. Morris v. Angle, 42 Cal. 236. 92. Particulars of insufficiency of evi- dence. "Where the statement on motion for new trial fails to state the particulars in which the evidence is claimed to be insufficient to sustain the verdict, the point will be disre- garded on appeal. Reamer v. Nesmith, 34 Cal. 624. 93. Non-appealable orders. Non-ap- pealable orders can be reviewed only by means of a'statement on appeal from the final judg- ment. Gates v. Walker, 35 Cal. 289. 1 94. Orders striking out. On an appeal from an order striking out a notice of motion for a new trial, a statement in support of the appeal must be presented. Wilson v. Dougher- ty, 45 Cal. 34. 95. Entry of order. Alleged error in entering an order cannot be inquired into on appeal, unless there is a statement annexed to the order. Poole v. Caulfield, 45 Cal. 107. 96. Orders not on affidavits. The ap- pellant, on an appeal from an order which is not made upon affidavits alone, must bring up the facts in a statement, which must specify the grounds upon which he intends to rely on the appeal. Cross i\ Zane, 45 Cal. 89. \ 97 . On appeal from judgment. A state- ment on motion for a new trial cannot be con- sidered on appeal from the judgment, without some agreement of the parties that it shall be so used. Thompson v. Connolly, 43 Cal. 636. ,98. A statement made in view of a motion for a new trial may be considered on an appeal from the judgment, if the parties stipulate "that the statement may be used as settled statement on motion for new trial, and on appeal to the- Supreme Court." Cardinell v. O'Dowd, 43 Cal. 586. 99. Stipulation for time to file state- ment. Where a party to an action has an attorney of record, a stipulation signed by the party in person, granting time to file state- ment, will be disregarded by the Court. The attorney has the exclusive management and control of the case, and his temporary ab- sence from the county does not affect the rule. ■ Mott v. Foster, 45 Cal. 72. 100. Service , of. Wh en the statement on appeal is certified by the Judge to be correct,' . due service on the opposite party will be pre- sumed in the absence of anything in the record showing to the contrary. Young v. Rosenbaum, 39 Cal. 646. 101. Impeaching settled statement. A motion to correct a statement or exceptions, is an original proceeding in the Supreme Court, and must be instituted by a petition in writing, which petition should be presented ( with the record, and the application made before the case is submitted. Wormouth u» Gardner, 35 Cal. 227. 102. Election contests. It is the policy of the law, that actions to contest elections ' should be summary, and to that end it is proper, in case of an appeal, that the whole case should be taken to this Court for final deoision, if possible. Webster v. Byrnes, 34 Cal. 273. 103. Settlement of statement. A statement, whether on 7 appeal or on motion for a new trial, cannot be settled by a certificate of the Judge, written in the printed transcript, ,. APPEAL. 13 on appeal to the Supreme Court. Wilson v. Dougherty, 45 Cal. 34. 104. Engrossment of. It is not the duty of the. Clerk, of the District Court to engross the statement, either, on new trial or appeal ; nor is it his duty when a copy of a statement is required, to insert any document ■which is merely referred to and directed to be inserted. People v. Bartlett, 40 Cal. 142. 105. Certificate to show statement ■was settled. Where a statement on appeal has been properly filed, the Clerk's certificate must show that the statement was settled. Thompson v. Thornton, 43 Cal. 24. 106. From order on new trial. Wheth- er a statement on an appeal from an order garnting or refusing. » new trial would in any case be necessary or proper ? Query f Id. 107. Defective certificate. A certificate is defective which does not state whether a statement on appeal was filed, or does not show the amount or character of the judg- ment. Recitals in the undertaking will not be accepted as a substitute for statements which are required to be contained in the certificate. Bennett v. Bennett, 42 Cal. 629. See Ante, 27 ; Post, 196, 197, 242. IX. RECORD. 108. Jurisdiction must be shown. It is incumbent on a party appealing to this Court, to show, affirmatively, by the record, that the amount in controversy is sufficient to authorize an appeal. When this is not shown, the appeal will be dismissed. Hoyt v. Stearns, 39 Cal. 92. 109. Need not show service of summons. -The fact alone that the judg- ment roll does not show that summons was served on the defendants, does not sustain a finding of the Court that there was no service 1 of summons. The fact that the judgment roll does not show that summons was served, does nottend to sustain such finding. Mahoney v. Middleton, 41 Cal. 41. 110. Amendments. The facts that the Clerk's minutes show that leave was given to file an amended complaint, and that amend- ments only to the complaint were filed, do not furnish ground for wholly disregarding the amendments in the Supreme Court. Reynolds v. Hosmer, 45 Cal. 616. 111. Defendants whose names are unknown. Where parties whose names are unknown are sued by fictitious names, the record should show these facts. Ford v. Doyle, 37 Cal. 346. 112. To show exceptions. Where the record fails to show that exceptions were taken to the rulings of the Court during the trial, and to the charge given to the jury, objections to the same will not be considered. Russell v. Dennison, 45 Cal. 337. 113. Stipulation when no part of record. Where a transcript on appeal con- tained neither bill of exceptions nor statement, and the only points r'aised depended upon a stipulation embodied in it, to the effect that for the purpose of a trial in the Court below and an appeal, certain isolated facts (not, kowever, constituting the case to be de- termined) were agreed on : held, that ■ such stipulation was not an exception, nor a state- ment on appeal, nor a part of the judgment roll, and that therefore neither it nor the points depending upon it could be considered by the appellate Court. People v. Hawes, 41 Cal. 632. 114. On appeal for exclusion of tes- timony. The exclusion of testimony in the Court below cannot be Held error on an appeal when the record fails to give such a statement of the excluded testimony as will enable the appellant Court to see whether it was admis- sible, or that appellant was injured by its exclusion. Bornheimer v. Baldwin, 42 Cal. 27. 115. On appeal from an order. An appeal from an order determining a motion for a new trial, brings up only so much of the record as concludes with the decision of the motion itself, and cannot be made to embrace any subsequent order. Coombs V. Hibberd, 45 Cal. 174. 116. An appeal from an order cannot be supported by a bill of exceptions. The record on such appeal, if the order is not erroneous on its face, must contain a statement annexed to the order, or if the order is made on affidavits, the affidavits must* be annexed to the order. People v. Doe, 45 Cal. 43. 117 . If an appeal be taken from an order on a motion founded upon affidavits and other documents, they should ,be each endorsed by the Judge as having been used at the hearing of the motion. Borkheimt). North British and Mercantile Insurance Company, 38 Cal. 623. 118. Records conclusive. The records filed in the Supreme Court are not merely prima facie, but are conclusive in their char- acter.- People v. Woods, 43 Cal. 176. 119. Appeal must be determined on the record. An appeal from an order dissolving an injunction must be disposed of on the record as it comes up from below, and the Supreme Court cannot interpolate into it matters occurring in the Supreme Court, such as an order granting a rehearing. Rogers v. Tenent, 45 Cal. 184. 120. Amendment in Supreme Court The Supreme Court will not amend a state- ment by adding thereto facts which occurred in the Court below during the trial. The record in the Supreme Court must remain as settled by the Court below. Satterlee v. Bliss 36 Cal. 489. 14 APPEAL. 121. Objections to record -when waived. Where, on appeal from an order subsequent to final judgment, objections to the consideration of certain affidavits contain- ed in the record were not taken as required by Rule XIH of this Court, such objections will be deemed waived ; but the rule is otherwise in respect to the subject matter of a statement on appeal contained in such record, where no statement embodying the same, duly settled, certified, or agreed to, as required by law, ex- isted in the Court below. Rogers v. Parish, 35 Cal. 127. See Ante, 88, Post, 91 ; 169, 381 ; Criminal Law and Practice, 391-406 ; Phonographic Reporter, 2. X. BRIEFS AND POINTS. 122. Appellant's points. The appellant's points should accord with or be substantially the same as the specifications in the statement ; or should result legitimately from such of these as present the same question. Hawkins u. Abbott, 40 Cal. 639. 123. Reliance upon authority after- wards overruled. Where a single defense was interposed to an action,, and such defense was supported by a decision of the Supreme Court,, which, however, was afterwards re- versed : held, that judgment should not be rendered on the record, but the cause remanded for further proceedings. Thomasson v. Wood, 45 Cal. 416. 124. Printing copy of document in brief. If the attorney for one of the parties appends to his brief what he calls a certified copy of a document which is not in the record, the party which he represents cannot complain if the Court treat it as properly before it. Mott v. Reyes, 45 Cal. 379. XI. TRANSCRIPT. 125. Arrangement of. The proceedings at the trial should be chronologically arranged in the transcript on appeal. Thompson v. Lynch, 43 Cal. 482. 126. Duty of attorney. It is the duty of the attorney taking an appeal to see that the copies of the transcript intended for the members of the Court literally conform to the transcript filed in the office of the Clerk. Rousset v. Boyle, 45 Cal. 64. 127. Requisites of. An appeal was taken from a judgment of nonsuit and an order deny- ing a motion for a new trial. The transcript on appeal consisted of the statement on motion for a new trial, and a stipulation that said mo- tion was denied, that the appeal was duly taken and perfected, and "that the foregoing transcript is correct" : held, that in the ab- sence of the pleadings or a statement of the issues, this Court cannot ascertain whether the Court below erred in granting the nonsuit, and the judgment will be affirmed. Toddtt. Winants, 36 Cal. 129. 128. It is not necessary in all cases to bring up the pleadings in full. A summary will, in most cases, answer every purpose on ^ appeal, if it be agreed to by the attorneys of the parties. Id. 129. Finding. The finding of the Court, - that the parties have or had an interest in the premises, cannot be sustained in the absence of any evidence in the transcript tending to prove that fact. Himmelman v. Spanagel, 39 Cal. 389- ■ 130. Question of limitation. If the transcript does not show when the suit was commenced, a. question upon the Statute of Limitations cannot arise before this Court. Hoffman v. Fett, 39 Cal. 109. 131. Unnecessary matter in. The in- nn sertion, in a transcript, of conveyances and ' ■ records at full length, instead of briefly stating their substance and effect, and the copying verbatim of the testimony of witnesses by ques- tions and answers, instead of stating so much of the substance of the evidence as relates to the errors assigned, imposes unnecessary labor on the Court, and cannot be too strongly con- demned. Conroy v. Duane, 45 Cal. 597. See Post, 395. 132. Objections. The objection that it does not appear in the transcript when the statement on motion for a new trial was filed in the Court below, must be made in the Supreme Court before a submission of the case on the merits, or it will be deemed waived. Ross v. Roadhouse, 36 Cal. 580. 133. Independent appeals in same action. Where one of the parties in an ac- tion appeals, and another party in the same action takes another and independent appeal, neither party in the appellate Court can refer to the transcript in the other appeal for the facts without a stipulation to that effect. Each appeal must be heard on its own record. Gates v. Walker, 35 Cal. 289. 134. Ex parte affidavits. A party can- not incorporate in his transcript ex parte affi- davits, impeaching the statement, and after the' final submission of the case, bring the question before the Supreme Court for the first time in his brief. Wormouth v. Gardner, 35 - Cal. 227. 135. Correction of. It is the duty of counsel to have clerical and typographical errors in the transcript corrected, and they must see to it that the corrections are made in all the copies filed with the Clerk. Vassault v. Edwards, 43 Cal. 458. 136. Duty of Clerk. It is the duty of the Clerk to furnish or certify true copies of papers on file in his office, such as the state- ments on appeal and on new trial, and the ex- hibits on file in his office ; but he is not required to certify a document made up by incorporat- APPEAL. 15 ing one or more of such papers within another. People v. Bartlett, 40 Oal. 142. 137. Remedy to compel Clerk to make certificate. The proper remedy to compel the Clerk to certify to the correctness of a transcript, is by motion in the Court where the record in the cause remains, and not by mandamus. Id, 138. Stipulation. A stipulation, signed by the j attorneys of the parties, "that the foregoing transcript is correct, ' ' does no more than take the place of the Clerk's certificate that the papers to which it is annexed are true copies. Todd v. Winants, 36 Cal. 129. 139. In such case, the respondent's objec- tions to the sufficiency of the transcript are not waiyedj by his failing to take exception thereto, according to Rule XIII of this Court. Id. See Costs, 9 ; New Trial, 100. XII. DISMISSAL OP. 140. Time and mode of moving to dismiss. The respondent's attorney, who had not been seryed with a copy of the transcript on appeal, as required by the rules of this Court, filed his written motion in this Court, in due time under said rules, to dismiss the appeal for want of a sufficient notice of appeal, in this, and upon the ground, -which was true in fact, that the service of the notice had pre- ceded the filing of the same. Thereafter, and in the absence of respondent's attorney, and while said motion was pending undisposed of, appellant's attorney obtained an order sub- mitting said cause on briefs to be filed : held, that under these circumstances, Rule XIII of this Court, which requires "that in such case the objection must be presented to the Court before the argument on the merits," does not, as coming too late, prevent respondent from insisting on his said motion, in his brief filed under said order of submission, and that the appeal must be dismissed. Lynch v. Dunn, 34 Cal. 518. 141. For want of appearance. Where there is no appearance on the part of the ap- pellant, and no points and authorities filed on tis behalf, the appeal will be dismissed. Peo- ple v. Baker, 39 Cal. 686. 142. Motion to dismiss. If one of the grounds on which a motion to dismiss an ap- peal is made,. be that the appeal was not taken at the proper time, it is not waived by the failure to state it in the motion to dismiss, for it goes to the jurisdiction of the Court. But it is the better practice to take it at that time. Fairchild v. Doten, 38 Cal. 286. 143. When appeal will be dismissed. If an order is made denying a new trial, and afterwards an order is made vacating this order, and a new order is made also denying a new trial, an appeal taken from the second order denying a new trial will be dismissed. Waggenheim v. Hook, 35 Cal. 216. 144. Death of one of the respondents. Where it appears that one of several respon- pondents died before notice of appeal was filed, a motion to dismiss the appeal as to him must be granted. Shartzer v. Love, 40 Cal. 93. 145. Motion to dismiss as to party de- ceased. Regularly the appellant is, under the rule, entitled to five days notice of motion to dismiss an appeal and to service of copies of moving affidavits ; but where, in the absence of such notice and service, the motion is sub- mitted on the merits, and the objection is taken for the first time in brief of counsel, the objection will be deemed waived. Moreover, in such a case any judgment that might be rendered on appeal, so far as it related to the party deceased or his legal representative, would be a nullity, whether the death were brought to the notice of the Court judicially or not. Judson v. Love, 35 Cal. 463. 146. Where, in an action by J against L and others, L died after verdict rendered for defendants, and thereafter J moved for a new trial, without suggestion made of the death of L, or a substitution of his successors in inter- est, and appeale.d from the judgment rendered on the verdict and an order denying a new trial : held, that all said proceedings, except the rendition of judgment upon said verdict, were void, and that the appeal as to L should be dismissed. Judson v. Love, 35 Cal. 463. 147. Fees of clerk of Supreme Court. On application to dismiss an appeal on certifi- cate of the Clerk of the District Court, the fees to be paid are the same as on filing a trans- cript — twenty-five dollars ; and the Clerk ean- not-be required to file the certificate, or enter any order in the case, till the fees are paid. Bolander v. Gentry, 36 Cal. 127. 148. On appeal from judgment. The dismissal of an appeal from a judgment is not a bar to an appeal from a subsequent order re' fusing a motion for a new trial. Fulton v. Cox, 40 Cal. 101. 149. Appeal from order denying new- trial after dismissal of appeal from judg- ment. The fact that a direct appeal from the judgment has been dismissed, does not place the appellant in a different or more unfavora- ble position, in respect to his appeal from an order denying a motion for a. new trial, than he would have occupied had no direct appeal from the "judgment ever been taken. Fulton v. Hanna, 40 Cal. 278. 150. Judgment for costs on, dismis- sal. When a County Court dismisses an at- tempted appeal from a Justice's Court, because of the failure of appellant to prosecute the ap- peal, or for want of jurisdiction of the subject matter, it may render » judgment for costs against the appellant. Blair v. Cummings,, 39 Cal. 667. 151. Clerk's certificate on motion to 16 APPEAL. dismiss. It is contemplated by Rule IV of the Supreme CoirA that the matters therein mentioned should he stated in the certificate of the Clerk, and not that they should be pre- sented by means of documents on file in the Qourt below. Bennett v. Bennett, 42 Cal. 629. 152. Form of certificate. A correct form of Clerk's certificate for dismissal of appeal given and commented upon. Gross v. Cassin, 43 Cal. 27. * 153. Detective certificate. A Clerk's certificate, filed in support of a motion to dis- miss an appeal under Rule IV of the Supreme Court, is defective, if it fail to state the fact, or the date of the service of the notice of ap- peal, or the character of the evidence of ser- vice. Thompson v. Thornton, 43 Cal. 24. 154. A Clerk's certificate which fails to state the amount or character of the judgment, the order or judgment appealed from, the date or fact of service of the notice of appeal, and that the undertaking on appeal is in due form, is insufficient to support a motion to dismiss the appeal under Rule IV of the Supreme Court. Lewis v. Longmaid, 43 Cal. 54. 155. Judgment unopposed not neces- sarily a consent judgment. A motion to dismiss an appeal on the ground that the judgment appealed from was entered by con- sent, cannot be sustained where the record, though it shows that no opposition was made, fails to show that appellant or his attorney was present in Court at its entry. San Francisco v. Certain Real Estate, 42 Cal. 513. 156. Motion to restore appeal. Upon a motion made under Rule IH of the Supreme Court to restore an appeal which has been dis- missed for failure to file the transcript within the time prescribed by Rule II, it mustbe shown by affidavit that, in the opinion of counsel at least, there are substantial errors in the record, which ought to be corrected by the Court. Dorland v. McGlynn, 45 Cal. 18. See Costs, 3 ; Mandamus, 20. XHI. REVIEW ON APPEAL. I. From judgment. 157. Certiorari. The only question the Supreme Court looks into La to ascertain whether the inferior tribunal, board, or officer, had jurisdiction, and if not, whether there is any appeal, or other plain, speedy, and ade- quate remedy. Winter v. Fitzpatrick, 35 Cal. 269. 158. As to review of testimony. Will the appellate Court, on an appeal from the judgment, with a statement of the evidence annexed to the judgment roll, review the tes- timony, for the purpose of determining whether any evidence was introduced in . the court be- low to siistain the allegations of the complaint on which issue is taken? Query? Brown v. Brown, 41 Cal. 88. 159. Insufficiency of evidence. The question of the insufficiency of the evidence to Bustain the decision or finding, cannot be pre- sented by means of a statement on appeal', nor can it be considered on an appeal from the judgment. City of Stockton v. Creanor, 45 Cal. 247. 160. The insufficiency of the evidence will not be considered on an appeal from the judg- ment alone. Rycraft v. Rycraft, 42 Cal. 444. 161. The question whether the evidence is sufficient to sustain the verdict, or finding,' or decision, can be presented only on a motion for a new trial. Yates v. Smith, 40 Cal. 662. 162. An appellant will not be permitted to allege that the evidence did not .justify the judgment, except on an appeal from an order denying a motion for a new trial.' (Treadwell v. Davis, 34 Cal. 601), overruled on this point. Reed v. Bernal, 40 Cal. 628. 163. Practice the same in law and equity. The mode of reviewing the action of the Court upon an issue of fact is the same, whether the case is at law or in equity. Har- ris v. S. F. S; R. Co. 41 Cal. 393. 164. In order to review, a, question of fact there must be a motion for a new trial. Id. See Post, 342. 165. Ruling on admission of evidence. If a party unsuccessfully objects to the admis- sion of all evidence under pleadings which show no cause of action, or for defense, the ruling of the Court below may be reviewed on an appeal from an order refusing a new trial, notwithstanding an appeal from the judgment may have been dismissed. Waugenheim v. Graham, 39 Cal. 169. 166. Excessive .damages. The appel- late Court will not review the judgment, as to whether the damages are excessive, unless a motion is made in the Court below for a new trial, and an appeal is taken from an order de- nying the same. Clarke v. Fitch, 41 Cal. 472. 167. Appealable order cannot be re- viewed on appeal from judgment. Upon , an appeal from' final judgment, an order, which is itself made by statute the subject of a distinct appeal, cannot be reviewed. Mc- Courtney v. Fortune, 42 Cal. 387. 168. Appeal from second judgment does not carry order vacating former judgment. Where a judgment was rendered" « $ for defendant, and afterwards, on motion of plaintiff, such judgment was ordered to he var cated and set aside, and judgment rendered for plaintiff : held, that alleged error in the order could not be reviewed on an appeal from the, judgment for plaintiff — such order being a special order, made after final judgment, and itself appealable. McGourtney v. Fortune, 43 Cal. 387. APPEAL. 17 169 . Record on former appeal, how far considered. The reoord on a former appeal in the same aotion may be looked into for the purpose of ascertaining what facts were then before the Court, so as to see to the correct ap- plication df the rule that such decision is the law of the case ; but except for such purpose the former record, unless it is stipulated by the parties, cannot be considered. McKinlay v. Tuttle, 42 Cal. 570. 170. Alleged erroneous instructions. If special issues are submitted to a jury and they fail to find a verdict, upon one of them, the appellate Court will not review alleged er- roneous instructions on this issue. Lorenzana 0. Camarillo, 45 Cal. 125. 171. Order denying continuance. An order denying a continuance cannot be review- ed through an appeal from the judgment, un- less there is a bill of exceptions. Haraszthy v. Horton, 46 Car. 545. 172. Order or motion to re-tax costs. If order for such is made before the entry of judgment, it may be reviewed by an appeal from the judgment, with a statement annexed to the record. Dooleyu. Norton, 41 Cal. 439. See Criminal Law and Practice, 407-416 ; Mandamus, 40-42 ; Partition, 23-29. 2. From orders. 173. From all orders and rulings. An appeal from " all the orders and rulings occur- ring on the trial, and excepted to ' ' by the party appealing, is not an appeal from an or- der granting or refusing a new trial. Day v. Callow, 39 Cal. 593. 174. From order granting new trial. Questions as to the sufficiency of the pleadings cannot be raised on an appeal from an order granting a new trial. Mason v. Austin, 46 Cal. 38S- 175. Testimony confined to issti es. In reviewing a case, the appellate Court will not consider the testimony as going beyond or out- side the issues made in the pleadings. Brown •u.Brown, 41 Cal. 88. 176. Evidence contrary to admissions. All evidence contrary to the admissions of the pleadings should be disregarded, the admissions being binding on the parties making them. Sail v. Polack, 42 Cal. 218. 177. Facts stated in findings. On ap- peal, the facts as stated in the findings must be accepted as facts in the case, where the state- ment on motion for new trial does not specify wherein the evidence is insufficient to support them. Cowing v. Rogers, 34 Cal. 648. 178. Refusal of instructions. On ap- peal from an order denying a new trial, this Court will not review the action of the Court below in refusing an instruction asked by the 2 appellant to be given to the jury, although at the time duly excepted to, where the appel- lant failed to include it in his specification of errors on his motion for a new trial. Richard- son v. Kier, 37 Cal. 263. 179. Findings of fact. The appellate Court will not review any finding of fact by the Court below, unless the statement on motion for a new trial specifies the particulars in which the evidence is alleged to be insuf- ficient to justify the findings. Spanagel v. Del- linger, 38 Cal. 278. 180. Objections to evidence. "Where the objections to the admission of a deed in ev- , idence are not stated, or the party has failed to specify as one of the grounds of his motion for a new trial the ruling of the Court in ad- mitting the deed in evidence, there is nothing presented on which the action of the Court in that respect can be reviewed. Carroll v . City of Benicia, 40 Cal. 386. 181. From order denying a new trial. On an appeal from an order denying a new trial, made before the Code took effect, there must be a statement filed and settled, or an identification of the affidavits used. Hancock v. Thom, 46 Cal. 643. 182. Specification of error. When a - motion for a new trial is made on a statement, no point will be considered' by the Court, and no alleged error will be noticed, unless it is specified 'under one of the grounds of the motion. Hawkins v. Abbott, 40 Cal. 639. 183. When a motion is made for a new trial on the ground that the evidence is insuf- ficient to justify the verdict, a specification of such insufficiency of the evidence is good if it direct the attention of the adverse party to the particular point on which it is claimed the ev- idence is insufficient. McCullough v. Clark, 41 Cal. 298. 184. Reviewing evidence. The appel- late Court will not review the evidence to de- termine whether the finding of the Court upon a particular issue of fact is justified by the ev- idence, unless there is a. specification in the statement that the evidence was insufficient to justify the finding on this issue. Hixon v. Brodie,'45 Cal. 275. ' 185. A specification in a statement on a motion for a new trial in a case tried by the Court where findings of fact have been filed, that a particular finding, naming it, was not justified by the evidence, is sufficient to enable the Court to review the evidence so far as it relates to each finding thus pointed out. Strang v. Ryan, 46 Cal. 33. 186. Exhibits referred to. A copy of the statement on motion for a new trial which is made a part of the statement on appeal from, the order granting a new trial, and in which certain exhibits are referred to and directed to be incorporated therein but are not inserted, does not tend to show that such exhibits were IS APPEAL. not considered on the hearing of the motion for anew trial. People v. Bartlett, 40 Cal. 142. 187. Defective statement. When the statement on motion for a new trial shows on its face that documents which were introduced in evidence are omitted in the statement, or in' other words, where it is a skeleton statement, the Court will not undertake to examine the questions which the appeal was intended to present. Bush v. Taylor, 45 Cal. 112. 188. The Court will not review an order denying a motion for a new trial if the state- ment is neither agreed to nor certified. Wilson v. Dougherty, 45 Cal. 34. 189. Motion to amend statement. If the statement filed on motion for a new trial contains no specification of errors, and a new trial is denied, and the moving party then moves to be allowed to amend the statement by adding such specification, and the motion is denied, the action of the Court in denying such motion cannot be reviewed by a bill of ex- ceptions inserted in the transcript on appeal from the order denying a new trial. Merrill v. Tenyck, 45 Cal. 74. 190. • A statement on appeal is intended solely for the purpose of presenting errors of law for review, and an alleged error of the Court in finding a fact, cannot be reviewed on such statement. Gates v. Salmon, 46 Cal, 362. 191. Review of erroneous finding. A finding in an action of partition that a party holds a particular title to the land, or the title or some portion of the title to a specified part of it, if erroneous, is an error of fact which cannot be reviewed by a statement on appeal. Gates v. Salmon, 46 Cal. 362. 192. Defective findings. If the Court, in partition, find that a party holds a particu- lar title, and in that respect has erred, the find- ing is not defective, and cannot be attacked as a defective finding by a bill of exceptions un- der section one hundred and eighty of the Practice Act. Id. v 193. Proceedings before referee. If ■errors occur in determining these principles, the party which seeks to have them corrected by the appellate Court must do so by some pro- ceeding addressed directly to that end ; they cannot be reviewed in this Court on an appli- cation for a new trial, on the ground that the referee adopted and applied those principles in the adjustment of the accounts. Smith v. Walker, 38 Cal. 385. 194. Statement of account by Court Commissioner. Where the principles upon which an account is to be stated had been de- termined by the Court before the Commissioner was ordered to make the statement, the action of the Court cannot be reviewed in the absence of the evidence upon which the principles were determined. Pulton v. Cox, 40 Cal. 101. 195. Order denying judgment on the pleadings. An order made by the Court be- low, denying a motion for judgment on the pleadings, will not be reviewed by the bu- preme Court, unless presented by a statement or bill of exceptions. McAbee v. Randall, 41 Cal. 136. 196. Order made after judgment. An order made after judgment, unless founded, upon affidavits, can be reviewed only by state- ment on appeal, and in no case by bill of ex- ceptions. Caulfield v. Doe, 45 Cal. 221. 197. Change made by the Code cf Civil Procedure. The Code of Civil Pro- cedure, enacted in 1872, changes the foregoing rule only as to proceedings subsequent to the taking effect of the Code. Id. See New Trial, 45, 49. 3. Orders in discretion. 198. Order on new trial. Where the grounds of motion for and the order granting or denying a new trial consist alone of alleged errors of law occurring at the trial, this Court will, on appeal from said order, review the pro- ceedings of the Court below, so alleged to have been erroneous, as in other cases where ques- tions 'of law, and not matters of discretion, are involved. Cochran v. O'Keefe, 34 Cal, 554. 199. The Supreme Court will not disturb the ruling of the Court below in granting Or refusing a new trial, on the ground of suffi- ciency or insufficiency of the evidence, except in case of a clear abuse of its discretion. Simp- son v. M. L. Ins. Co., 44 Cal. 139. 200. Overruling demurrers. If demur- rers are suffered to rest for three years, and the Court then overrules them for jvant of prose- cution, the Supreme Court will not interfere with this exercise of discretion in the Court below. Anderson v. Fisk, 36 Cal. 625. 201. Orders entered by consent. Al- though the Supreme Court will not review judgments and orders entered by consent, yet, if it appear by a fair construction of a stipula- tion consenting to an order denying a new trial, that the stipulation was only intended to facil- itate an appeal, and not as an abandonment of the right to contest the correctness of the or- der, this Court will review the order. Meeh- am v. McKay, 37 Cal. 154. 202. Order reopening case. The ac- tion of the Court below, in granting or refusing an application to reopen a case for the purpose of introducing further proof, is largely a mat- ter of discretion, and will not be reviewed by the appellate Court, except under peculiar cir- cumstances, showing an abuse of the discretion. Preston v. Sonora Lodge, 39 Cal. 116. 203. Order dismissing motion. An or- der denying and dismissing a motion for anew trial for want of due diligence in bringing the same to a hearing, as required by the Practice Act, (Sec. 196) rests in the sound discretion of the Court. Boggs v. Clark, 37 Cal. 236. ' APPEAL. 19 204. Order on injunction. , When the Court Below has seen proper to continue an in- junction in force until the hearing of the case, its determination, in so far as it rests upon the effect of the denial of the equities of the com- plaint merely, is entitled to just consideration here, and this Court ought not to disturb it, except, perhaps, under peculiar circumstances, or unless an abuse of discretion be made to appear. G-odey -v. Godey, 39 Cal. 157. 205. The dissolution or continuance of an injunction in a case where the answer denies all the allegations of the complaint, is largely a matter of judicial discretion, and unless it appears from the records in the case that the discretion has been abused, the action of ihe Court will be sustained. Rogers v. Tennant, 45 Cal. 184. 206. Abuse of judicial discretion on recalling -witness. When the defendant has called and examined a witness and rested, and the plaintiff has introduced rebutting testimo- ny,, it is an abuse of the discretion of the Court to refuse to allow the defendant to re-examine the witness, if his counsel state that the fact that the witness would testify to certain mate- rial matters has come to their knowledge since the close of defendant's ease, and if the recall- . ing of the witness will work no surprise on plaintiff. Barry v. Bennett, 45 Cal. 80. See Supervisors, 1 1 . 4. Objections, when'not considered. 207. To instructions. Appellant cannot avail himself of error in*the Court below in instructing the jury or in modifying instruc- tions asked, unless he excepts in the court be- low. Lightner u. Menzell, 35 Cal. 452. 208. To legality of contracts. Where, in such case, K objected to the legality of such * contract, because in contravention of the pre- emption laws of the United States, for the first time in this Court : held, that it was unavail- able, because not presented in the Court below. King v. Meyer, 35 Cal. 646. 209. To variance between pleading and finding. If there is a technical variance between the evidence and finding of facts and the pleading, and no objection is made on that ground in the Court below, but the objection is taken for the first time in the appellate Court, the judgment will not be reversed by reason of such variance. Dikeman v. Norrie, 36 Cal. 94. 210. To defective findings. If there be a material fact, in respect to which the findings are silent, the party aggrieved may except to them by pointing out the particular defect or omission complained of, and if then the Court refuses to correct them, the remedy is by ap- peal. Hathaway v. Ryan, 35 Cal. 188. 211. To defective demand. Although a demand is only inferable from other allegations in the complaint, it should be held to be suffi- cient if the case was submitted and tried upon other issues in the Court below, and the defect in the complaint be noticed for the first time in the appellate Court. Campbell v. Jones, 38 Cal. 507. 212. To credibility of witness. The question of the credibility of a witness is for the Court below, and not for the appellate Court to determine. Walsworthu Johnson, 41 Cal. 61. 213. An attorney must stand by his definition of his pleadings. If the defend- ant calls his answer a counter-claim, and goes to trial in the Court below on that theory, he will not be permitted for the first time, in the Supreme Court, to call it a cross-complaint, to obtain a review of an order denying'his mo- tion for judgment on the pleadings. McAbee v. Randall, 41 Cal. 136. 214. Objection of " equitable defense not first disposed of." An objection by a defendant, that his equitable defense was not first disposed of cannot be made for the first time in the appellate Court. Tormey v. Pierce* 42 Cal. 335. 215. Diligence in prosecuting suit. On an appeal from an order which involves the question of the dismissal of an. action for want of diligence in prosecuting it, the question of diligence must first be presented to the Court below on notice given, or it will not be con- sidered by the appellate Court. Poole v. Caul- field, 45 Cal. 107. ( See Post, 328. 216. To want of findings. Where a party wishes to put on record, for purposes of review, the decision of the Court on a matter of fact, the only mode is to request that written findings be filed, and on a failure or refusal to do so, to except for want of findings. Such decision by the Court on a matter of fact can- not be established by affidavit on motion for new trial. Sanchez v. McMahon, 35 Cal. 218. 217 . Where judgment was rendered upon general or' special findings, and defendant moved for a new trial upon statement contain- ing the evidence, no special exception to pre- sumed findings, or motion in the Court below, is necessary. Steinback v. Krone, 36 Cal. 303. 218. Who can complain of judgment. A party to a judgment who has not appealed will not be heard to allege errors in the Court below. Poppe v. Athearn, 42 Cal. 607. 219. Order bringing in new party to action. The validity of an order, valid on its face, bringing in a new party to an action, will not be inquired into on appeal, unless an objection and exception to the order were taken when the same was made. Gates v. Salmon, 46 Cal. 362. « t See New Trial, 55, 61, 63-73. 5. When appeal stands on judgment roll. 220. From judgment and order. An 20 APPEAL. appeal from a judgment and subsequent order of the Court denying appellant's motion to modify the same, is only aii appeal from the judgment. Gregory v. Nelson, 41 Cal. 278. 221. On appeal from the judgment, as well as from an order denying a new trial, the appeal from the judgment must be decided on the judgment roll alone. Rush v. Casey, 39 Cal. 339. 222. From judgment. On "an appeal from a judgment, without a statement or bill of exceptions, the Court will review the judg- ment roll only. McAbee v. Randall, 41 Cal. 136. 223. Judgment not authorized by; pleadings. The objection that the judgment" iB not authorized by . the pleadings may be taken on an appeal upon the judgment roll alone. The fact that a motion for a new trial was made, which did not state' this as one of its grounds, does not operate as a waiver of the objection. Putnam v. Lamphier, 36 Cal. 151. 224. On agreed statement. On an ap- peal from a judgment on an agreed statement of facts, which forms a, part of the judgment roll, the question may be raised whether the judgment is authorized by the agreed facts. Reed v. Bernal, 40 Cal. 628. 225. Statement when not necessary. No statement of the grounds of appeal is necessary, when the appeal is taken upon grounds which appear upon the judgment roll. Jones v. City of Petaluma, 36 Cal. 230. 226. Stipulation as to facts. If the attorney stipulate as to what are the facts in the case, and that the stipulation shall form a part of the judgment roll, the facts therein admitted stand in place of a finding of facts by the Court, and constitute a part of the judgment roll, and no specification of the errors relied on on appeal need be made in the transcript, nor is a statement necessary. Brewster v. Hartley, 37 Cal. 15. 227. Facts not denied. When a judg- ment is rendered on facts alleged in the com- plaint, and not denied in the answer, the question, whether the judgment ordered the payment of too large a sum of money, arises on the judgment roll without bringing up the evidence. Patterson v. Sharp, 41 Cal. 133. 228. What will be considered. On an appeal from a, judgment, where there is no bill of exceptions or statement, the Supreme Court will not consider the action of the Court below upon a motion to strike out part of a pleading, or any other matter not appearing in the judg- ment roll. Douglas v. Dakin, 46 Cal. 49. 229. Consideration of technical ques- tions. If the Supreme Court is satisfied with the conclusions of the Court below upon a matter, it will not go into the consideration of technical questions not distinctly made in the Court below, and which do not involve a sub- stantial right. Bauer v. Pierson, 46 Cal. 293- XIV. PRINCIPLES OF DETERMINA- , TION. 1. Presumptions generally. 230. Proceedings before the Code., Proceedings had and determined prior to the taking effect of the Code will, on appeal, he decided in accordance with the former Practice Act. Hancock v. Thom, 46 Cal. 643. 231. In favor of decision of Court below. In the absence of a contrary shoVing it will be presumed, on appeal, that the Court below proceeded regularly, and that its de- cisions were correct. Where the record on appeal did not contain the whole judgment roll, and the absent portions were not pre- sented in a bill of exceptions or statement on appeal, no questions arising on matters con- tained in such absent portions can be made on appeal. Hastings v. Cunningham, 35 Cal. 549. 232. Of injury by error. Error imports injury to the party against whom it is com- mitted, unless it affirmatively appear by the record that no injury did or could occur to him thereby. Rice v. Heath, 39 Cal. 609. 233. Injury will be presumed from error, where the record fails to show that no error was done. Sweeney v. Reilly, 42. Cal. 402". 234. Of regularity of proceedings of District Court. It is not to be presumed that a District Court would proceed to hear and determine a motion for new trial on the ground that the evidence was insufficient to justify the findings, without a settled state- ment as required by law. Morris v. Angle, 42 Cal. 237. 235. That summons was served. When the judgment roll'which is offered in evidence is silent as to the issuing and service of pro- cess, it will be presumed that process was issued and served on the defendants, and the judgment is not void. Mahoney v. Middle- ton, 41 Cal. 41. 236. In favor of ruling on demurrer. If there is nothing appearing in the order over- ruling a demurrer to show on what ground it was overruled, the presumption is that it was overruled on the merits. If overruled for want of prosecution, that fact should be made to appear. Anderson t>. Eisk, 36 Cal. 625. 237. On appeal, all presumptions are in favor of the judgment ; and if a demurrer to a complaint, founded upon the Statute of Limitations, has been sustained, and the tran- script fails to show when the action was com- menced, it will be presumed that it was not commenced until after the statute had, ran. Miles v. Thome', 38 Cal. 335. APPEAL. 21 238. In favor of findings and decision. The legal presumption is in favor of the cor- rectness of the findings and decision of the Court below, and when attacked, on motion for a new trial, will, be sustained on appeal, unless it be affirmatively shown that they are erroneous. "When this is attempted by way of showing that certain specified facts, other than those expressly found by the , Court, were pro- ven by the evidence, it must likewise appear that such facts would require a different find- ing or decision from the one rendered, or the specification will be held insufficient. Moyes v. Griffith, 35 Cal. 556. 239. In favor of instructions. If the instructions of the Court below, to the jury, are not brought before , the Supreme Court, they will be presumed to have been properly and rightly given. Garrison v. McGloekley, 38 Cal. 78. 240. Order of Court presumed to be correct. Every presumption consistent with the record is to be indulged in favor of the cor- rectness of an order of Court, and if there is no statement showing the contrary, it will be pre- sumed that an order striking out a notice of motion for a new trial was made by consent. x ■ Wilson v. Dougherty, 45 Cal. 34. 241. Ruling on reception of testi- mony. If competent testimony is objected to because offered out of its order, and also for other reasons, and is ruled out by the Court, but the Court does not state for what reason, the presumption will be that the Court did not reject it because offered out of its order, but be- cause incompetent, and the judgment will be reversed. Lick v. Diaz, 37 Cal. 437. 242. Objection to/ statement. If a. statement is not filed in time, and the objec- tion is reserved in filing amendments thereto, and the Court grants a new trial, it will be presumed that the Court overruled the objec- tion, although the objection nowhere appears in the records except in the amendments. Cottle v. Leitch,' 43 Cal. 320. 243. Description of land in judgment presumed definite. Where a judgment di- vided land as between the parties by a line >as laid down upon a certain map annexed to the judgment, and it was objected that the line was too vague and uncertain, and that the map furnished no data for its correct location : "held, that all intendments were in favor of the judgment, and, in the absence of an affirmative showing to the contrary, it would be assumed that the line could be located with entire pre- cision. Thompson it. Connolly, 42 Cal. 315. 244. Presumption as to character of a deed. When the record on appeal does not contain a deed offered in evidence, the appel- late Court will assume, if necessary, in sup- port of the judgment of the Court below, that it was in fee with full covenants of warranty. Walbridge v. Ellsworth, 44 Cal. 353. See Criminal Law and Practice, 417-430. 2. Presumption that finding supports judg- ment. 245. In unlawful entry. If an appeal stands upon the findings, and they fail to snow whether the alleged unlawful entry was made in good or bad faith, and' the judgment be for the plaintiff, it will be presumed thai; the entry was in bad faith, and the judgment be accordingly affirmed. Shelby v. Houston, 38 .Cal. 410. 246. Findings -when silent. If the find- ings of fact are silent on certain issues, the pre- sumption is that the findings on those issues were such as to support the judgment. Smith v. Penny, 44 Cal. 161.; Figg v. Mayo, 39 Cal. 262. 247 . ■ If the Court, in its findings, do not expressly find on an issue made, it will be pre- sumed that the finding on such, issue was in favor of the party who prevailed in the action. Lovell v. Erost, 44 Cal. 471. 248. Presumed findings. A material fact, put in issue by the pleadings, will be pre- sumed to have been found by the Court in such a way as to support the judgment. Hixon r. Brodie, 45 Cal. 275. ' 249. All facts within the issues, not ex- pressly found and not inconsistent with the other findings, are presumed to have been found in accordance with the judgment; Ser- variti i'. Lusk, 43 Cal. 238. 250. Where there are findings of fact, the presumption is that the Court has found all the facts in issue in favor of the party in whose favor the judgment is rendered, unless the con- trary appears from the findings themselves. Smith v. Cushing, 41 Cal. 97. See Criminal Law and Practice, 417, 418, 428, 429 ; New Trial, 94, 98, 99. 3. Findings presumed in support of judg- ment. 251. Defective findings. If the findings of fact are defective on any material point, and are not excepted to, it will, be presumed that the Court found on those points against the losing party. Carpentier v. Small, 35 Cal. 346. 252. Absence of findings. Where the trial was by the Court without a jury, and judgment passed for the defendants without any findings of fact being made, the legal pre- sumption is that the Court below found all the issues for the defendants. Clark v. Willett, 35 Cal. 534. 253. As to tendered issues. Where a judgment for plaintiffs is rendered upon gen- eral or special findings for them, without, how- ever, containing any reference to or express findings upon issues tendered by the answer in bar of the action, it will be presumed that all the tendered issues were found against the defendants. Steinback v. Krone, 36 Cal. 303. 22 APPEAL. 254. Where there are no i findings of fact the presumption is that the Court found all the facts necessary to support the judgment. Lick u. Diaz, 37 Cal. 437. 255. If no findings are filed, on the trial of a case by the Court without a jury, in sup- port of the judgment, it will be assumed that the facts necessary to authorize the judgment were found in behalf of the party in whose favor it was rendered. King v. Wellman, 38 Cal. 595. 256. Implied findings. In the absence of express findings by the Court below on an essential point, this Court will presume the implied findings to have been such as are necessary to sustain the judgment. City of Oakland v. Whipple, 39 Cal. 112. 257. If the facts found are silent upon some material issue, the law implies that the Court found upon that issue in such a way as to support the judgment. ' Kusel v. Sharkey, ,46 Cal. 3." 258. Facts found may be presumed from the judgment. If, in an action to en- join a defendant from washing away a ditch, the answer admits the plaintiff 's ownership of the ditch and right of way, but denies that the defendant is about to wash it away, it will be presumed that the Court found, as a fact, that the defendant was about to wash the ditch away, if, in its judgment, it allows him to wash it away upon the condition of previously building an aqueduct to convey the water in place of the ditch. Gregorys. Nelson, 41 Cal. 278. 259. Facts which support judgment deemed found. Though actual findings ap- pear in the record which are insufficient of themselves to support the judgment, yet other findings will be implied in favor of the party who recovers judgment, embracing every fact in issue not expressly found in favor of the party against whom judgment was rendered, or irreconcilable with the express finding. Tubbs v. Ghirardelli, 45 Cal. 231. 260. In favor of judgment in eject- ment. If the Court, in ejectment, finds that the defendant was not in actual occupation of the demanded premises when suit was com- menced, and still renders judgment for the plaintiff, it will be presumed, in support of the judgment, that the Court found that the de- fendant had such possession as would support ejectment. Tubbs v. Ghirardelli, 45 Cal. 231. Approved, Crane v. Ghirardelli. Id., 236. 261. Findings inconsistent with judg- ment. To procure a reversal of judgment based upon findings by a Court, on an appeal on the judgment roll alone, the express findings must be absolutely inconsistent with the judg- ment, conceding all the other facts within the issues to have been found in accordance with it. Thompson v. O'Neil, 41 Cal. 683. 4. Facts presumed to support judgment. 262. Statutory construction. Under the statute to regulate appeals, (Stats. 1861, p. 589) which provides that a judgment shall not be reversed " for want of a finding, or for a defective finding of the facts, unless excep- tions be made, " etc. , every material fact not found by the Court will be presumed to be con- sistent with the judgment. Emmal v. Webb, 36 Cal. 197. 263. Finding of a fact by inference. To justify this Court in inferring a material fact, not expressed in the findings, from others which are expressly found, it must appear that the fact to be inferred follows inevitably from the facts found — that upon every conceivable theory of the case the non-existence of the fact to be inferred is inconsistent with the existence of the facts found. Id. 264. Measure of relief. When the judg- ment gives all the relief demanded in the com- plaint, the presumption is that the Court below has entered such a judgment as was required by the facts in issue proved, and the appellate Court will not disturb the judgment, unless it affirmatively appears that the plaintiff is en- titled to other relief than that given. N. C. & S. C. Co. v. Kidd, 37 Cal. 282. 265. Missing facts. If the appeal is allowed to stand upon the findings, the judg- ment will not be reversed, because all the facts requisite to sustain it have not been found ; on the contrary, the missing facts will be pre- sumed to be consistent with the judgment. Shelby v. Houston, 38 Cal. 410. * 266. Findings of referee. In the absence of explicit findings upon material points, it will be presumed that the referee found the facts necessary to support the judgment. Parker v. Page, 38 Cal. 522. 267. As to date of approval of survey. In an action involving rights undej: a Mexi- can grant, and also under the Statute of Lim- itations, if the findings' be wholly silent as to the date of the final approval of the official survey, or of the entry upon the premises in controversy, it will be presumed that the sur- vey was approved and the entry made at such times as would support the judgment. Mgg t>. Mayo, 39 Cal. 262. 268. Presumption in favor of innocent purchases* In a suit to compel the convey- ance of land, where it was alleged that the land was deeded to P through fraud on the part of her affianced husband, prior to mar- riage, the findings being silent on the subject, with no exception to them as defective, and P claiming to be a purchaser for value in good faith, without notice of plaintiff's equities, it will be presumed that all the facts necessary to support the judgment in favor of P were found. Hall v. Polack, 42 Cal. 219. 269. Facts presumed to support judg- ment, When judgment was rendered, and APPEAL. 23 the record does not show the contrary, the pre- sumption is that the facts warranted the judg- ment. Brown v. Johnson, 45 Cal. 7*6. 270. Facts within the issues not expressly found and necessary to support the judgment are presumed to have been in accordance with ' the judgment. Thompson v. O'Keil, 41 Cal. 683. 271. Rebuttal of presumed facts. In order to rebut the implied findings in support of judgment, it must be made to appear either in the findings themselves, or on a motion for a new trial, or by a statement on appeal, that no other facts than those expressly found were proved at the trial. Id. 272. As to title. Under the provisions of the Statute of 1861, (Stats. 1861, p. 589) and section one hundred and eighty of the Practice Act, as amended in 1866, it will be presumed in an action of ejectment by the Court without a jury, that the Court found the title to the demanded premises in the plaintiff, and that he was entitled to the pos- session thereof ; and second, in the absence of a contrary showing, it will be further presumed that the evidence sustained such implied find- ings. Morrill v. Chapman, 35 Cal. 85. 5. Eirors without prejudice — immaterial and harmless errors. 273. Overruling demurrer. Where the Court erroneously overruled plaintiff's demur- rer to certain new matter contained in the answer, under which, however, the defendant, at the trial, introduced no proof : held, that the plaintiff's case was not prejudiced by such erroneous' decision, and that it furnishes no ground for a reversal on appeal, of a judg- ment rendered for the defendant. Campbell u. B. R. & A. W. & M. Co., 35 Cal. 679. 274. Admission of testimony. A judg- ment will not be reversed on account of the ad- mission of erroneous testimony, if it can be seen from the record that the appealing party suffered no injury by its admission. Moon v. Rollins, 36 Cal. 333. 275. If the Court erroneously rules that certain evidence is admissible, the opposite party is not prejudiced thereby, unless the ruling is followed by the introduction of the objectionable testimony. Treat v. Reilly, 35 Cal. 129. 276. Failure to pass on demurrer. % A party to whose pleading a demurrer is inter- posed is not injured by the failure of the Court to pass, on the demurrer. McCarthy v. Yale, 39 Cal. 585. 277. Erroneous instruction. When an instruction to the jury, although erroneous, was not productive of any injury to either party, the judgment, by reason thereof, will not be disturbed. Hisler v. Carr, 34 Cal. 641. 278. If the Court charges the jury erro- neously upon a proposition of law which does not arise in the case, either upon the pleadings or the evidence, and which could not affect the result, the error is immaterial, and will not cause a reversal of the judgment. Satter- lee v. Bliss, 36 Cal. 489. 279. Refusal to strike out testimony. A party is not injured by a refusal to strike out exceptionable testimony, if the same party af 1 terwards introduces the same testimony, or if counsel afterwards concede the facts stated in such testimony. Treat v. Reilly, 35 Cal. 129. 280. Admission of irrelevant testi- mony. If in a trial before the Court, without a jury, irrelevant testimony is received, with the understanding that it is not to be consid- ered by the Court unless other testimony is afterwards introduced making it relevant, and such testimony is not afterwards introduced, the presumption will be that the Court discard- ed the evidence in rendering judgment, and the error is without consequence. Jones v. Morse, 36 Cal. 205. 281. Clerical or typographical errors. When it is made to appear that an assignment of error is based upon a clerical or typograph- ical mistake, it will not be regarded by the Court. Himmelmann v. Reay, 38 Cal. 163. 282. Rulings of Court. A judgment will not be reversed on account of rulings of the Court below which are not correct, if those rulings have worked no injury to the losing party, and could not have changed the result. Mott v. Reyes, 45 Cal. 379. 283. Omission to file findings. During the trial, by the Court without a jury, of an action to set aside a sale of lands to the defend- ants, on the grounds of fraud and a gross in; adequacy of the purchase price, the defendants were misled by an announcement from the bench concerning the sufficiency of the defend- ants' evidence on the latter point, whereby they were induced to omit the further intro- duction of evidence they had at command, which was pertinent to establish more fully the adequacy of the purchase price, the Court by its decision set aside the sale, but filed no findings of fact or opinion, and no exceptions were taken^ for want of findings : held, that this furnished no ground for reversal on appeal, because the decision does not affirmatively ap- pear to have been founded, in whole or in part, on said alleged inadequacy. Sanchez v. Mc- Mahon, 35 Cal. 218. 284. Error in favor of appellant. A judgment will not be reversed for an error which was in favor of the appellant. N. C. & S. C. Co. v. Kidd, 37 Cal. 282. 285. Rejection of testimony. If the Court erroneously rejects evidence which is not necessary in the case, so that the party offering it sustains no injury by the rejection, the error will not be considered on appeal. Delger v. Johnson, 44 Cal. 182. 286. Enjoining a judgment. A party 24 APPEAL. who recovered a judgment, and assigned it be- fore the commencment of an action to ' enjoin the collection of the same, brought against him and his assignee, cannot be heard in the Su- preme Court, upon alleged errors in the trial, ■which resulted in granting the injunction. Having no interest in the judgment, he is not injured by the injunction. Hobbs v. Duff, 43 Cal. 485. 287. Defective instruction helped out by another instruction. Where an instruc- tion given at the request of one party was open to criticism as omitting an important element, but the point in which it was defic- ient was distinctly enunciated in an instruc- tion given at the request of the other party : held, that the jury had not been misled. Livermore v. Stine, 43 Cal. 274. . 288. Admission of testimony. A judg- ment will not be reversed for error in admit- ting testimony, if the appellant is not preju- diced thereby. Hastings v. Jackson, 46 Cal. 234- 289. A judgment will not be reversed for ' the admission of irrelevant testimony, if the findings show that the testimony was not taken into consideration in rendering judg- ment. Bee v. S. P. & H. B. R B. Co., 46 Cal. 249. 290. The Supreme Court will not reverse a judgment because the District Court admitted testimony of the attorney as to communications made to him by his client, if the only objection made at the trial was that it is irrelevant and immaterial. Satterleeu. Bliss, 36, Cal, 487. See Criminal Law and Practice, 426, 427 ; Instructions, 4-6 ; Partition, 29. 6. Conflict of evidence. 291. Findings and evidence. An ap- pellate Court will not set aside the finding of the Court below on account of insufficiency of the evidence to support it, when the evidence is substantially conflicting. Treat v. Beilly, 35 Cal. 129. 292. Where, on appeal, it appears there "was a substantial conflict in the evidence on the material issues embraced in the findings of fact made by the Court below, such findings will not be disturbed. King v. Meyer, 35 Cal. 646; Prost v. Harford, 40 Cal 165; Carroll v. City of Benicia, 40 Cal. 386 ; Phelps v. McGloan, 42 Cal. 298 ; Woods v. Whitney, 42 Cal. 358. 293. Uncertain calls of deed. Where the calls of a deed are so uncertain that the initial point of a boundary line to be estab- lished at the trial can never be fixed with ab- solute precision, it is for the jury to determine the location of the line from the evidence ; and when conflicting, this Court will not disturb their verdict on appeal. Hastings v. Stark, 36 Cal. 122. 294. Boundary lines. When, on a motion made in the Court in which a partition was 1 made, to fix the true boundary line between two of the parties, the evidence is conflicting, the determination of the Court below will not be disturbed on appeal. Mills v. Lusk, 45 Cal. 273- 295. Findings contrary to the weight of evidence. If the finding of the Court is contrary to the weight of evidence, yet if there is some evidence that sustains the find- ing, the judgment will not be disturbed by the appellate Court. Licki). Madden, 36 Cal. 208. 296. Appeal from order denying new trial. On appeal from an order denying a new trial, this Court will not in any case disturb the judgment because not supported by the evidence, where there was a substantial con- flict in the evidence. Morgan v. HigginSj 37 Cal. 59. 297. Co n d us i veness °f verdict. When a question of fact, about which there was a direct and substantial conflict of evidence, has been submitted to a jury, under proper instruc- tions of the Court, the verdict determines it, and this Court has uniformly declined to in- terfere with the verdict. Garrison v. McGrloek- ley, 38 Cal. 78. 298. The Supreme Court will not reverse an order of the Court below in granting a hew trial upon the ground of the insufficiency of the evidence to justify the verdict, if there was a conflict in the testimony. Higuerra v. Bernal, 46 Cal. 580. 299. Finding. When the evidence is con- flicting, the appellate Court will not disturb the finding, on the .ground that it was not justified by the evidence. Doyle v. Sturla, 38 Cal. 456 ; Woods v. Whitney, 42 Cal. 360. ' 300. Preponderating evidence. If the evidence clearly preponderates against the verdict or finding, it is the duty of the Court below to set it aside, but the appellate Court will not disturb the verdict or finding when the evidence is conflicting. Hawkins v. Ab- bott, 40 Cal. 639. 301. Evidence to support judgment. ' The judgment will not be reversed by the appellate Court on the ground that there was no evidence to sustain it, if there was some evidence tending to support the conclusion arrived at by the Court below. Brown r. Brown, 41 Cal. 88. 302. Where there is a substantial conflict in the evidence, the judgment will not be re- versed on the ground that the evidence does not warrant it. Walsworth v. Johnson, 41 Cal. 61 ; Child v. Hugg, 41 Cal. 519 ; LeRoy v. Cunningham, 44 Cal. 599. 303. Verdict and judgment. A verdict and judgment will not be disturbed, as being against' evidence, where there is a conflict in the evidence. Livermore v, Stine, 43 Cal. 274 ; People v. Klumpke, 41 Cal. 263. APPEAL. 25 304. Verdict against -weight of evi- dence. The appellate Court will not disturb the verdict of a jury on the ground that it ■was not justified by the evidence, when there was -a substantial conflict in the testimony, even though it is greatly against the weight of evidence. "Wilson v. Fitch, 41 Cal. 363. 305. Though the Supreme Court may con- sider a judgment of a District Court -against the weight of evidence, it will not disturb it on that ground, if there is a substantial con- flict of evidence. Brewster v. Sime, 42 Cal. 139- 306. Findings not disturbed. It is the uniform practice not to disturb findings on appeal as contrary to evidence, where there is a substantial conflict of evidence. Phelps v. McGloan, 42 Cal. 298. 307. Judgment not warranted. When there is a substantial conflict in the evidence, the appellate Court will not disturb the judg- ment of the Court below, on the ground that it is not warranted by the testimony. LeRoy VI Cunningham, 44 Cal. 599. 308. Where there is a substantial conflict in the evidence, the judgment will not be dis- turbed on appeal. Gale v. T. -C. Water Co., 44 Cal. 43. 309. Materia] facts presumed. Where there is a substantial conflict in. the testimony, all material facts, upon which evidence was introduced will be presumed in favor of the judgment. Blethen v. Blake, 44 Cal. 117. 310. When judgment -will not be re- versed for error. When the Probate Court has fixed the basis upon which an adminis- trator's account is to be settled, an error in directing the creditors of the estate to restate it, if the administrator does not restate it himself, will not justify a reversal of the judg- ment, as the administrator sustains no injury by it. Estate of Miner, 46 Cal. 565. 311. Findings of fact. Unless the evi- dence be insufficient to support the findings of a Court, the judgment will not be disturbed on a question of fact. Requena v. City of Los Angeles, 45 Cal. 55. 312. Application of rule. The applica- tion of the rule that findings of fact will not be disturbed on appeal when there is a mani- fest conflict in the evidence, depends in no measure upon the question whether any of the witnesses are interested in the event of the suit. The credit to be given to their testimony, however attacked, must be determined in the Court below. Putnam u. Lamphier, 36 Cal. 151. 313. Implied findings. Where there is substantial conflict in the evidence, a, finding in support of the judgment will be implied. Huston v. T. & C.-C. T.R. Co., 45 Cal. 550. See Forcible Entry and Detainer, 81 ; New Trial, 126, 129. XV. REVERSAL OF JUDGMENT. 1 . Generally. 314. For error. No distinction exists between judgments by default and others, as to the class of errors for which they will be reversed by this Court on appeal. The rule, in every ease, is that the judgment will not be reversed, for such defects in the complaint as fall short of an entire want of something which is material to the plaintiff's right to recover. Hallock v. Jaudin, 34 Cal. 167. 315. Judgment by default where com- plaint shows no cause of action. If the complaint exhibits no cause of action, a judg- ment by default will be reversed on appeal. Choynski v. Cohen, 39 Cal. 501. 316. Defective pleading. This Court will not reverse a judgment for alleged de- fects in the complaint, where it can be gathered therefrom as a whole that the plaintiff had a cause of action upon which he was entitled to the judgment rendered, however defectively his cause of action may have been stated. Hallock v. Jaudin, 34 Cal. 167. 317. The Court will not reverses judg- ment on the ground that the complaint does not state the facts quite so fully as it ought. If no demurrer has been interposed, there must appear to be an entire want of material facts to justify the disturbing of the judgment. Hibernia S. & L. S. v. Ordway, 38 Cal. 679. 318. Demurrer sustained. If the second count in a complaint .is in part a copy of the first, but the additional allegations it contains do not present any new or additional ground of relief, the second count is redundant, and the judgment will not be reversed because a demurrer to such second count was sustained, for no injury was sustained thereby. N. S. & S. C. Co. v. Kidd, 37 Cal. 282. 319. Interference with judgment ren- dered by District Court. When there is no prayer in the complaint for possession, and the District Court directs a judgment for damages alone to be entered for plaintiff, upon a verdict in his favor for damages, in an action for an alleged trespass and ouster with force and arms, and forcible detention of possession, the ap- pellate Court will not reverse the judgment on an appeal upon the judgment roll. N. C. & S. C. Co. v. Kidd, 37 Cal. 282. 320. Defective pleading. Although the allegations of a pleading are defective, yet, if there is not an entire want of allegations con- stituting a cause of action, and no demurrer is filed or objection made in the Court below, the judgment will not be disturbed. Lee v Figs', 37 OU. 328, 321. Order on demurrer. The judg- ment is an adjudication on the demurrer, and it is only the judgment, and not the order sustaining the demurrer, from which an appeal may be taken ; but on an appeal from the 26 APPEAL. judgment the order may be reversed in proper cases. Agard v. Valencia, 39 Cal. 292. 322. Proper judgment on demurrer, no reversal to allow amendment. When a demurrer to a complaint is properly sustained, with leave to amend, and the plaintiff declines to do so, the judgment will not be reversed on appeal in order to allow an amendment. There must be error to justify a reversal of a judgment. Sutter v. San Francisco, 36 Cal. 112. 323. Appeal from order granting a new trial. A motion for a new trial, on the ground of the insufficiency of the evidence to justify the verdict, is addressed to the sound legal discretion of the Court in which the trial waB had ; and unless it appear that there has been a manifest abuse of that discretion, this Court will not reverse the order of the Court below. Phelps v. Union C. M. Co., 39 Cal. 407. 324. Affirmance and reversal in part. In an action for the restitution of two separate tracts of land, where the judgment of the Court below was for plaintiff for both tracts and for damages, and the order of this Court affirms the judgment as to one tract and reverses it as to the other, if the record furnish no data for the apportionment of the damages, the entire judgment will be reversed unless all damages be remitted. Hodapp v. Sharp, 40 Cal. 69. 325. Reversing order granting new- trial. If the Court below grants a new trial on the ground that the evidence is insufficient to justify the verdict, the appellate Court will not reverse the order, except in case of an evi- dent abuse of discretion. Lorenzanau. Cam- arillo, 41 Cal. 467. 326. Reception of irrelevant testimony. An order will not be reversed by the appellate Court on account of the reception of irrelevant testimony, if its reception does the appellant no harm. S. B. Land Association v. Christy, 41 Cal. 501. 327. Exclusion of testimony. Where, on a trial, certain evidence which was essen- tial to sustain a party's defense was erroneous- ly excluded : held, that such error . McCue, 46 Cal. 656. 345. Newly discovered evidence. When the alleged newly discovered evidence is merely cumulative, and every material fact disclosed by the affidavits is contradicted by counter affidavits, and the appellate Court cannot clearly say that the Court below erred in refusing it, a new trial will not be ordered. Doyle v. Sturla, 38 Cal. 456. 346. Erroneous instructions. If the Court instructs the jury upon an abstract prop- osition not before them, and there is anything in the instruction calculated to mislead, a new trial will be granted. Slaughter v. Fowler, 44 Cal. 195. 347. Contradictory instructions. When instructions to the jury upon a material point in issue are contradictory and inconsistent, it is impossible to know by which instruction the jury was influenced, and a new trial will be granted. McCreery p. Everding, 44 Cal. 246. 348. Review of implied findings. Where in such case the defendants moved for a new trial, which was denied, upon a state- ment containing the evidence, on the ground that said presumed findings were contrary to the evidence, this Court will, on appeal from, the order denying the motion, review said evidence, as though the Court below had ex- pressly found on all of said issues against the defendants, and if the evidence, without a substantial conflict, is against such presumed findings, or such of them as are essential to sustain the judgment, this Court will reverse the judgment and grant a new triaj. Stein- back v. Krone, 36 Cal. 303. 349. Defective findings. D. B. sued C. B. for the recovery of money alleged to be due as part of the purchase price of land held in common ; C. B. denied the debt, alleged a copartnership, and indebtedness by D. B. to him ; he demanded judgment for a dissolution of the copartnership, an accounting, and a sale of the land. The Court decreed a sale of the land and the payment of a sum of money to D. B., the remainder of the proceeds to be equally divided between the parties. The record failed to show findings as to the exist- ence of the copartnership, or as to the tenancy in common. On appeal from the judgment upon the judgjnent roll alone : Meld, that the judgment must be reversed and the cause re- manded for a restatement of account between the parties, or for a new trial, as the Court below may direct. Bobinson u. Bobinson, 42 Cal. 270. 350. Erroneous finding on immaterial point. A new trial will not be granted be- cause the Court made an erroneous finding on an immaterial point. Lovell v. Frost, 44 Cal. 471- 351. Verdict excessive. If the verdict is excessive, the Supreme Court will award a new trial, unless after the remittitur goes down, the party in whose favor it was ren- dered files with the clerk a written consent that the judgment be modified. Atherton 1;. Fowler, 46 Cal. 323. 352. Judgment not authorized. Where, to an action by P and B against Putnam and "others for the recovery of four mules s their harness, a wagon, and a saddle, or their value, Putnam, in answer, claimed title and right of possession of three of the mules, without 28 APPEAL. designating which ones, and judgment passed for Putnam for the four mules, or their value, which were valued together only in a gross sum: held, first, that the judgment was not author- ized by the pleadings ; and second, that as the judgment cannot be modified for want of data, it must be reversed, and a new trial granted. , Putnam v. Lamphier, 36 CaL 151. 353. Erroneous judgment. Where there are no findings, and the case is brought to the Supreme Court upon, the evidence, and the judgment is erroneous, ihe Supreme Court will not direct the Court below what judgment to enter, but will reverse the judgment, and remand the case for a new trial., Poorman v. Mills & Co., 43 Cal. 323. 354. Correction of complaint. In an action for the collection of delinquent taxes, where there is a clerical error in the complains in stating the value of the property upon which the tax is assessed, and the judgment for that reason appears to be erroneous, the case will be sent back, with leave to the plain- tiff to amend his complaint. City of Oakland v. Whipple, 44 Cal. 303. 355. Effect of reversal. A reversal on appeal from an order, denying a, motion for a new trial, and remanding the cause for re-trial, as effectually vacates the judgment as a rever- sal of the judgment upon a direct appeal there- from. Fulton v. Hanna, 40 Cal. 278. 356.. Order of Supreme Court as to new trial. Where the Supreme Court re- verses an order of an inferior Court denying a motion for a new trial, and remands the cause for further proceedings in accordance with .the opinion given in the case, which opinion does not indicate that the proceedings should be different from the proceedings that would have followed the granting of the motion for a new trial in the first place, the order of the Supreme Court places the case, in point of the mere procedure to be followed, in the same situ- ation as though the Court below had directed a new trial. Irwin v. Towne, 43 Cal. 23. 357. New trial as to one not ap- pealing. If there are several defendants, and an order granting a new trial is erroneous as to one, the error as to him cannot be corrected on the appeal of the others, in which he does not join. McCreery v. Everding, 44 Cal. 284. 358. Motion to vacate writ of ha- bere facias. If the appellate Court grants a new trial, on an appeal from a. judgment in ejectment in favor of the plaintiff, an applica- tion to vacate a writ of habere facias, issued during the pendency of the appeal, should be made to the Court below, ana not to the ap- pellate Court. Thompson v. Thornton, 41 Cal. 626. , XVI. MODIFICATION OF JUDGMENT. 359. Correction of error apparent on record. Where a judgment is based upon a Court Commissioner's report, which finds all the facts, but discloses upon its face a palpable error in stating an account, such .judgment will be corrected on appeal. Foucault v. Pinet, 43 Cal. 136. 360. Correction of mistake in judg- ment. When the judgment entered by the Clerk does not conform to that pronounced by the Court, it will be corrected on motion, even after an appeal and affirmance of the judg- ment, and the issuing and service of an execu- tion in the cause. Kousset v. Boyle, 45 Cal. 64. 361. Modification of judgment. A modification of' judgment cannot be made in this Court, until a rehearing has been granted. Rhea v. Surryhne, 39 Cal. 581. 362. In modifying or affirming money judgments on appeal, it is wholly unnecessary, for this Court to make any reference to the right to interest, when that subject is regulat- ed by statute. The right to interest follows, as a matter of course, when the facts on which it depends are established. Dougherty v. Miller, 38 Cal. 548. 363. Modification of judgment. When a judgment is erroneous and the Supreme Court has the facts before it so that it can be modified and justice done between the parties without granting a new trial, it will be modi- fied accordingly. Atherton r. Fowler, 46 Cal. 320. See Ante, 352 ; Specific Contract Act. 3. XVII. REHEARING.- 364. Correcting minutes of Supreme Court. If an order is made by the Supreme Court granting a rehearing, and by mistake the Clerk enters an order denying a rehearing, and the term elapses and the remittitur issues before the mistake is discovered, the Court will recall the remittitur, correct the minutes of the Clerk, and restore the case to the cal- endar. Vance v. Pena, 36 Cal. 328. 365. False OTder of Supreme Court. A false order entered by the Clerk of the Su- preme Court by mistake, stands upon the same principle as an order procured by fraud. Id. 366. Correcting mistake of Clerk. The proceedings of the Supreme Court are not enrolled, and the minutes of the Chief Justice may be used to correct a mistake of the Clerk. Id. 367. Petition for. The filing of a peti- tion for rehearing is not a matter of right, but a privilege given by the Court, and gov- erned and limited entirely by its rules. Han- son v. McCue, 43 Cal. 178. 368. Loss of petition before it reaches the Clerk. If a petition for rehearing is placed in the office of an express company, ' addressed to the Clerk, in time to have I reached him within the time allowed by the APPEAL. ,29 rules to file one, and that is the customary and most reliable means of transmission, and the petition fails to reach the Clerk, without fault of counsel, the petition is, in contempla- tion of law, in the hands of the Clerk within the time limited by the rule, and if lost, may be supplied as other documents lost from the files of the Court may be supplied. Hanson v, McCue, 43 Cal. 178. See Ante, 119. XVIH. JUDGMENT. 369. Effect of. Where there is an in- tervention in ejectment, and the intervenor and defendants each take 'separate appeals from a judgment against them, and from an order denying-a new trial, a judgment of the Supreme Court, reversing the order of the Court below denying the intervenor a new trial, and directing the Court below to render judgment that the intervenor is the owner of an undivided one-fourth of the demanded premises, and to award him possession thereof, is a definitive determination of the rights of the parties, and authorizes the Court below to render judgment in favor of the intervenor, 1 against both the plaintiff and defendants, for the land thus awarded to him, notwithstand- ing the judgment and or*der denying a new trial had been previously affirmed on the ap- peal of the defendants. Donner v. Palmer, 45 Cal. 180. 371. Judgment of reversal — Effect of. The effect of the order " judgment reversed and cause remanded," is ojily to set aside the judgment that a new trial may be held, un- less it is apparent from the opinion of the Court that the adjudication was intended to be a final disposition of the cause. Ryan v. Tomlinson, 39 Cal. 639. See Ante, 355. 372. Damages for frivolous appeal. Where an appeal is clearly without merit, damages will be imposed by the appellate Court. Gannon v. Dougherty, 41 Cal. 661. 373. Frivolous appeal. In an action on a promissory note the plaintiffs proved all the issues, and had judgment, from which the de- fendant appealed. There being no error in the record, judgment affirmed, with damages. Perkins v. Patrick, 45 Cal. 393. 374. On separate appeals in same case. Where there is an intervention in the ejectment, and the defendant and intervenor each take separate appeals from a judgment in favor of the plaintiff, and from an order de- nying a new trial, the affirmance of the judg- ment and order on the appeal of the defend- ant does not operate to oust the authority of the Supreme Court, to afterwards reverse it on the appeal taken by the intervenor from the order denying his motion for a new trial. Donner v. Palmer, 45 Cal. 180. See Ejectment, 154. XIX. LAW OF A CASE. 375. Law of a case. The legal proposi- tions decided on a first appeal, whether cor- rectly decided or not, become the law of the case in all its subsequent stages, and will not be reviewed on a second appeal. Pa^e v. Fowler, 37 Cal, 100. 376. The rule that a previous decision be- comes the law of the case, applies only to the decisions of the Court of last resort. Law- rence v. Ballou, 37 Cal. 518. 377. If, in the trial of a case at nisi prius an erroneous ruling is made, it is not binding upon the Court if the question again arises. Id. 378. If, upon a second appeal, the same state of facts, substantially, is presented, as upon the former appeal, the former decision settles the law of the case, and is conclusive. Polack v, McGrath, 38 Cal. 666. 379. It is very evident that on second ap- peal we cannot reverse our ruling on any question which was decided on the first appeal. The first decision, whether, right or wrong, becomes the law of the case. Per Crockett, J. Polack v. McGrath, 38 Cal. 666. 380. Former decision. The law of a, case as settled by the Court on a former ap- peal will not be reopened or disregarded in a subsequent appeal of the same case. Yates v. Smith, 40 Cal. 662. 381. Record on former appeal. The record on a former appeal in the same action may be looked into for the purpose- of ascer- taining what facts were then before the Court, so as to see to the correct application of the rule that such decision is the law of the case ; but except for such purpose the former record, unless it is stipulated by the parties, cannot be considered. McKinlay v. Tuttle, 42 Cal. 571- 382. Decision on former appeal. The principles and rules announced by the Su- preme Court on a former appeal will be recog- nized on a subsequent appeal as the law of the case, if the same questions are again presented on the same state of facts. Id. 383. Law of a case. A decision by, the Supreme Court upon the points of a case be- comes the law of the ease in all subsequent proceedings upon the same state of facts. Poorman v. Mills & Co., 43 Cal. 323. 334. Points decided by the Supreme Court on an appeal become the law of the case in all subsequent proceedings. Hobbs v- Duff, 43 Cal. 187. 385. When a new trial is granted by the Supreme Court, the views which the Court ex- presses in its opinion become the law of the case in all its stages. Lick v. Diaz, 44 Cal. 479. 386. A decision rendered on an appeal, when a case is sent back for further proceed- ings, becomes the law of the case in all its stages. Gates v. Salmon, 46 Cal. 362. 30 APPEAL. 387. The decision of the Supreme Court, made in a case when it is sent back for further proceedings, becomes the law of the case in all its subsequent stages, if the evidence is sub- stantially the same as that upon which the de- cision was based. Russell v. Harris, 44 Cal. 489. S»e Instructions, 1. XX. REMITTITUR. 388. Recalling remittitur. If a petition for rehearing is deposited in an express office (the usual mode of conveyance) addressed to the Clerk, in time to have reached him before the period for rehearing expires, and is delayed, or lost without fault of the attorney, so that it does not reach the Clerk's office in time, and a remittitur issues, the remittitur will be re- called and the attorney will be allowed to file the petition. Bernal v. Wade, 46 Cal. 640. 389. When a remittitur is improperly is- sued, the Court still retains jurisdiction of the case, and the remittitur will be recalled. Han- son v. McCue, 43 Cal. 178. 390. Effect of remittitur upon District Court. Where an order of the Supreme Court reverses an order of the District Court, by which a judgment in a County Court modify- ing a judgment in a ^Justice's Cojirt has been modified, and remands the cause with direc- tions to vacate the judgment of the County Court, the District Court has power under the remittitur from the Supreme Court to do noth- ing further than to vacate the order of the County Court ; it cannot render judgment for the defendant unless so expressly ordered by the Supreme Court. Will v. Sinkwitz, 41 Cal. 588. 391. Clerical error in judgment. Where, in such a case, the District Court renders judg- ment in accordance with the order of the Su- preme Court, but the Clerk of the District Court uses an improper form in entering the judgment, by which the Court is represented as dismissing the cause, the mistake of the Clerk does not change the judgment ; it is a clerical blunder. Id. 392. Effect of judgment. In the case stated, the result of the judgment of the Su- preme Court was to leave the cause in the County Court in the condition in which it stood when the papers were filed therein on appeal from the Justice's Court. Id. 393. Erroneous judgment. Where an order of a superior Court is filed in a County Court, vacating a previous order of the latter Court which modified a judgment in a Jus- tice's Court, and the County Court directs its previous order to be vacated in accordance . with the decision of the superior Court, it is error for the County Court to grant a motion for judgment on the pleadings and the Justice's record in the case, the motion having been made prior to its order vacating the previous judgment. Id. 394. New trial. In such a case, the an- nulling of the judgment of the County Court makes a new trial of the cause indispensable. Id. See Criminal Law and Practice, 377 ; Evi- dence, 25. XXI. COSTS ON APPEAL. 395. Unnecessary matter in. transcript. When an appellant inserts unnecessary and ir- relevant matter in a transcript, he cannot, if he suceeeds on the appeal, compel the respond- ent to pay for it. McDougal v. Downey, 45 Cal. 165. See Ante, 131. XXH. APPEAL FROM PROBATE COURT. ( 396. Evidence not reviewable. The evidence taken in a proceeding in the Probate Court will not be reviewed by the Supreme Court on appeal, unless embodied in a state- ment. Estate of Arnaz, 45 Cal. 259. XXIII. APPEALS IN COUNTY COURT. 397. Appeals from Justice's Court. In an appeal from a Justice's Court a failure to produce in the County Court a duly certified copy of the docket of the Justice of the Peace, is a failure to prosecute the appeal, within the meaning of Section 367 of the Code. People v. Elkins, 40 Cal. 642. 398. Statement on appeal in criminal case. In a criminal case, wherever the alleged error appears upon the face of the complaint, or in the record of the Justice, or upon the face of the proceedings before the justice, a statement is unnecessary on an appeal to the County Court. Morley v. Elkins, 37 Cal. 454. 399. Dismissal. The County Court has jurisdiction to dismiss an appeal. Lewis v. Barclay, 35 CaL 213. 400. An appeal to the County Court may be dismissed for the causes mentioned in the statutes, "after notice. " The Court may err as to the kind, or length, of the notice, but if the appellant have notice in fact, the order of dismissal is not void. People v. Elkins, 40 Cal. 642. See Ante, 152. 401. Voluntary appearance of parties. Plaintiff sued defendant in Justice's Court to recover eighty-five dollars and forty-one cents for a street assessment in San Francisco, and recovered a personal judgment for the amount claimed. Defendant appealed to the County Court, wherein plaintiff filed a written com- plaint in the usual form employed in such APPEARANCE.— APPOINTMENT TO OFFICE. 31 cases, except the prayer, which was for a per- sonal judgment only. To this complaint the defendant answered by a general traverse. The cause was then transferred to the District Court, wherein on the trial — at which defendant ap- peared without objection of any kind — plaintiff had judgment, by which it was adjudged that plaintiff hare a lien on the lot of defendant to se- cure the amount found to be due, and ordering a sale of the lot in satisfaction of the debt ; but there was no personal judgment. In the record brought up by defendant on an appeal from the judgment alone, there is an amended complaint entitled in the District Court which contains a prayer for judgment as rendered, but the tran- script contains no evidence that this amended complaint was ever filed in that Court, or any Court, or that any answer thereto was ever filed, or that a default was entered for want of an an- swer. In this Court no motion was made to strike out this amended complaint or to correct the record. Held, first, that the defendant is estopped from denying that said amended complaint was filed in the District Court — that the presumption is it was filed, but through some inadvertence of the Clerk it was not so indorsed, or that the indorsement has been accidently omitted from the transcript ; and second, that, as the relief demanded in the amended complaint and awarded by the judg- ment was equitable in character, and as' the ' defendant voluntarily appeared and went to trial in the District Court, without objection either to its jurisdiction or to said amended complaint, the Court acquired lawful jurisdic- tion to render said judgment. Mahlstadt v. Blanc, 34 Cal. 577. See Ante, 54 ; Constitutional Law, 53, 54.- In Criminal Cases. See Criminal Law and Practice. APPEARANCE. 1. By attorney. The appearance of a de- fendant by an attorney gives the Court juris- diction over such defendant. Mahoney v. Middleton, 41 Cal. 41. 2. Where counsel appears expressly for cer- tain defendants in an action, his signature to papers in the case after that time as the attor- ney for the defendants, will be construed as limited to those defendants for whom he ex- pressly appeared. Spanagel v. Delinger, 42 Cal. 148. 3. Of attorney out of State. Where a defendant was served out of the State, and an attorney then with him signed and transmit- ted a document to the effect that as defendant's attorney he acknowledged service, and author- ized a, judgment to be taken as prayed for : held, sufficient to show a voluntary appearance and to justify the entry of an immediate judg- ment. Foote v. Richmond, 42 Cal. 439. 4. In Probate Court. The voluntary ap- pearance in the Probate Court of an executor, in proceedings relating to the estate, is a waiver of the issuance and service of a citation on him. Estate of Johnson v. Tyson, -45 Cal. 257. 5. A defendant has a right to appear for the special purpose of moving to dismiss a defect- ive summons, and a general appearance after- wards and an answer do not waive the right, or cure the error. Lyman v. Milton, 44 Cal, 630. 6. Making motion before an appear- ance. A motion to set aside the service of a summons may be made without entering an appearance in the action. Eldridge v. Kay, 45 Cal. 49. 7. Presumption of appearance. The Court will not presume the appearance of a de- fendant not regularly served with summons, because a continuance was ordered after a de- fault had been taken. Norblett v. Farwell, 38 Cal., 155. 8. Admission of service by new par- ties. Where plaintiff amended his complaint by adding ' two new parties defendant, and these new parties afterwards filed a document in which they acknowledged " service of a copy of the complaint and summons herein, ' ' with- out mentioning the amended complaint, and consented to the entry of judgment as prayed for : held, that such\ appearance was sufficient, and authorized such a judgment. Foote v. Richmond, 42 Cal. 439. 9. For infant defendants by general guardian. Where, in a suit against infants, there was no personal service* upon them, but their general guardian appeared and defended for them : held, that such appearance gave the Court jurisdiction of their persons. Smith v. McDonald, 42 Cal. 484. 10. Presumption arising therefrom. If counsel appears tp a motion, the presumption is that he appeared to oppose, and not to con- sent to the order sought by the motion. Bork- heim v. N. B. & M. Ins. Co., 38 Cal. 623. See Appeal, 401 ; Attorney and Client, 1 1 ; Boads and Highways, 8. APPLICATION OF PAYMENTS. See Payment, 3-5. APPOINTMENT TO OFFICE. See Office and Officer. 32 APPROPRIATION.— ASSESSMENT. APPROPRIATION. 1. Specific appropriation. A specific appropriation is an act by which a named sum of money has been set apart in the treasury, and devoted to the payment of a particular de- mand. Stratton v. Green, 45 Cal. 149. 2. Authority of controller to draw warrants. The authority and duty of the Controller of State to draw a warrant upon the Treasurer, is limited to cases in which he is authorized to draw such warrant by some law which provides a specific appropriation for the payment of the warrant so drawn. Stratton v. Green, 45 Cal. 149. '3. Fund. The fund upon which a warrant must be drawn must be one the amount of which is designated by law, and therefore capable of definitive exhaustion. Strattcm v. Green, 45 Cal. 149. See Constitutional Law, 63, 64 ; Costs, 14 ; Funds, 2-4 ; Mandamus, 46. ARBITRATION. 1. Award. An award, to be valid, 1 must be certain and decisive as to the matters sub- mitted, and thus avoid all further litigation. 1 Jacob v. Ketcham, 37 Cal. 197. 2. An award by arbitrators selected to set- tle accounts between parties, that one of the" parties is entitled to a credit of a certain sum on his account with the other, is not final and decisive as to the matters submitted, and is not, therefore, valid. Id. 3. Award in evidence. An award of arbitrators is not admissible in evidence, unless it is final and conclusive upon the matters sub- mitted. Id. 4. Character of proceedings in cases of award. Proceedings upon award are spec- ial in character, and they must be in sub- stantial compliance with the statute, or the judgment upon the award will not be valid. Fairehild v. Doten, 42 Cal. 125. 5. Jurisdiction of Court. The statute provides only for entering the submission to awards, as a rule of Court. If it clearly ap- pear that the parties meant merely that the award and not the submission should, be made a rule of Court, or that judgment should be entered upon the award, the Court has no juris- diction. Id. 6. Entry of submission by clerk necessary. Under section three hundred and eighty-two of the Practice Act the Clerk of the Court must be authorized by the stipulation of the parties to an arbitration to enter in his register of actions a note of the submission, and he must make the entry therein ; otherwise there is no jurisdiction in the Court over the subject matter or the parties. Pieratt v. Ken- nedy, 43 Cal. 393. 7. Title to. possession of mining ground not a subject for arbitration. The subject matter of an action for the recovery, of a mining ground on public land is regarded in this State as "a question of title to real property in fee," and therefore cannot, under section three hundred and eighty of the Prac- tice Act, be submitted to arbitration ; and if so submitted an award and judgment thereon will, on motion, be vacated and set aside. Spencer v. Winselman, 42 Cal. 479. See Appeal, 20, 52 ; Eminent Domain, 43 ; Evidence, 120. , ARGUMENT OF COUNSEL. See Criminal Law and Practice, 274-282 ; Trial, 71. ARREST AND BAIL. 1. The provision of section seventy-two of the Practice Act has reference to mesne and not to final process. Stewart v. Levy, 36 Cal. 159- See Debtor, 4. ARREST FOR CRIME. See Malicious Prosecution, 1 ; Sureties, 6. ARREST OF JUDGMENT. See Criminal Law and Practice, 360-367. ARSON. See Criminal Law and Practice, 21, 97, 98, 182, 183. ASSAULT. See Criminal Law and Practice, 16-19, 99> 100, 146, 315-318, 367 ; Damages, 1 ; Employer and Employee, 7; Habeas Corpus, 11. ASSAULT AND BATTERY. See Criminal Law and Practice, 77 ; Evi- dence, 93. ASSESSMENT. See Eminent Domain, 25-28, 37-40 ; Lands and Land Titles, 118 ; Mines and Mining, 22, ASSESSORS.— ATTACHMENT. 33 23 ; Streets and Street Assessments ; Taxation, 57-79- ASSESSORS. See Taxation, 56, 66, 78. ASSIGNMENT. 1. Of debt not in existence. An assign- ment of a debt not in existence is not valid at law. Such assignment creates an equity only. Hassie v. G-: I. W. U. Cong., 35 Cal. 378. 2: Franchise. A franchise to construct a turnpike road and collect tolls thereon is a personal trust reposed in the grantee, and is not assignable either at forced sale or by volun- tary conveyance, except with the consent of the granting power. People v. Duncan, 41 Cal. 507. 3. Of indebtedness. The assignment of an indebtedness transfers, likewise, the security by which its payment is protected. Hurt v. Wilson, 38 Cal. 263. 4. Of part of a demand. An assign- ment of part only of an entire demand is void at law, unless done with the consent of the debtor; but such an assignment is valid in equity, without the consent of the debtor. Grain?;. Aldrich, 38 Cal. 514. 5. A recovery upon an assignment of part of a demand could not be had at law, under the practice at common law, without averring and proving, that it was made with the con- sent of the defendant ; but such an averment was immaterial in equity, and hence, under the Code of this State, the complaint is not demurrable, for lack of facts, if it fails to contain such averment. Id. 6. Of a policy of insurance. The assent of the insurer is required, in order to transfer a policy of insurance to the assignee of the insured property, whether it is so stipulated in the policy or not. Bergson v. Builders' Insur- ance Company, 38 Cal. 541. 7. But when there is no transfer of the property, an assignment of the policy will be upheld, as between the parties, as an equitable assignment of a contingent right to the money ; and when the loss happens it becomes a vested right, unless it is a condition of the insurance that the policy shall not be assigned without the assent of the insurer. Id. 8. The assignment of a policy of insur- ance is not governed by the rules applicable to negotiable paper, but the assignee takes the policy subject to all the rights, equities and liabilities existing between the insurer and the insured. Id. 9. Of promissory note' overdue. The assignee of a promissory note, overdue, takes 3 it subject to all the equities subsisting between the maker and payee, but free from all equities subsisting between the maker and any inter- mediate holder. Hayward & Co. v. Stearns, 39 Cal. 58. 10. Of undertaking and judgment on claim. An assignment which purports to transfer to the assignee all the right, title and interest of the assignor in the undertaking, " and in the amount thereby secured," is broad enough to enable the assignee to recover for use and occupation, pending the appeal, and costs. Murdock v. Brooks, 38 Cal. 596. 11. Of vendor's lien. The indebtedness for the purchase price of real estate is the subject of an execution or attachment, levy, and sale, or of a private transfer; but the equitable interest that attaches to the property conveyed by virtue of the indebtedness in the hands of the vendor, is extinguished by a transfer of the indebtedness. Boss v. Heint- zen, 36 Cal. 313. 12. Right of assignee of debt to sue. If the owner of a money demand assign the same to another person by an assignment ab- solute on its face, the assignee may maintain an action for the recovery of the whole amount due, and the defendant cannot aver or prove that the assignment was only as collateral security for the payment of a debt. "Wetmore v. San Francisco, 44 Cal. 294. See Bankruptcy, 7, 9, 10 ; Debt, 2 ; Estop- pel, 5, 31, 32 ; Evidence, 36 ; Franchise, 10 ; Insolvency, 13, 14, 18 ; Land, 6, 30 ; Landlord and Tenant, 30 ; Lien, 1 ; Money, 1 ; Mort- gage, 2 ; Negotiable Instruments, 19, 40, 58, 59 ; Parties, 1 1 ; Principal and Agent, 10, 11 ; Pleading, 11, 112; Trust and Trustee, 2, 22, 23 ;. Vendor and Vendee, 2. ATTACHMENT. I. In what cases may and may not ISSUE. II. Issuance of writ. ni. Service and filing. IV. Undertaking on. V. Lien of. VI. Ineffectual process. VH. Release of. I. IN WHAT CASES MAY AND MAY NOT ISSUE. 1. Money in savings bank. A savings bank cannot avoid its liability to pay over the money of a depositor, on a garnishment at the suit of the depositor's creditor, on the ground that its by-laws, assented to by the depositor, make his pass-book, in which his account is kept, transferable to order. Witte v. Vince- not, 43 Cal. 325. 34 ATTACHMENT. 2. Partnership. No attachment can be sued out by one partner against another, for any matter touching the partnership affairs. Wheeler v. Farmer, 38 Cal. 203. 3. Certain notes, from third person, but for a larger amount, were held by the gar- nishee, as collateral, to secure a debt due to him by the partnership, at the time of the levy of an attachment by a creditor of one of the partners. After the garnishment, the gar- nishee accepted an assignment by the partner- ship of the notes held by him as security, in trust for himself and other persons who were creditors of the firm prior to the attachment. The garnishee collected the notes and applied the proceeds to the payment of the creditors in whose favor the trust was created, and in so doing exhausted the whole amount of funds collected on the notes. Held, that the creditor of the individual partner obtained no lien by his attachment. Kobinson v. Tevis, 38 Cal. 611. 4. Securities. The policy of the law is, that a creditor holding a security by way of "mortgage, lien, or pledge, upon real or per- sonal property," shall not resort to the sum- mary process of attachment until he has ex- hausted his security. But such lien or pledge must be of a fixed, determinate character, capable of being enforced with certainty, and depending on no conditions. Porter v. Brooks, 35 Cal. 199. 5. An attachment will be dissolved, if the debt for which it was procured was secured by a mortgage. Kinsey v. Wallace, 36 Cal. 463. 6. Corporation stock. One who receives the stock of an association, as collateral, to secure him for a liability incurred by signing ' a promissory note, and who is compelled to pay the note thus signed, cannot sue out an attachment in an action brought to recover the money thus paid. Beaudry v. Vache, 45 Cal. 3. 7. In such case, the party receiving the stock has some interest in the certificates, and the value of his lien, or its sufficiency to cover the amount of the claim it was intended to se- cure, or the question -whether the certificates were indorsed, are matters not to be inquired into on a motion to dissolve the attachment. Id. 8. Equitable demands. An equitable demand cannot be garnisheed — garnishment reaches only legal debts, which the defendant in the attachment pould enforce in his own name. Hassie v. G. I. W. U. Cong, 35 Cal. 378. 9. Where A contracted with B, in writing, to construct a building for him, and B agreed to pay a certain sum therefor, payable in in- stallments, as the work progressed, and C then contracted with A to do a part of the work for a sum fixed, to be paid in install- ments as his work progressed, and A assigned to C a part of the, money to fall due on B's contract equal to the sum to be paid C : held, that no such legal demand existed in favor of C against B as was liable to garnishment by C's creditors. Id. 10. Unless the defendant in the attachment could have maintained, under the practice at common law, an action of debt or indebitatus assumpsit against the garnishee at the time the process of garnishment was served upon him, the garnishee process does not make the garnishee liable to the plaintiff in the attach- ment. Id. 11. Vendor's lien. A vendor's lien for the unpaid purchase price of a tract of land, where the land had been conveyed by the ven- dee to a third party before action brought against the former by the vendor to recover said purchase price, is not of such) fixed and determinate character as to bar the plaintiff in such action the right to a writ of attachment against the property of the defendant therein. Porter v. Brooks, 35 Cal. 199. 12. It is not a lien securing the debt, with- in the meaning of the terms used in the one hundred and twentieth section of the Practice Act. Sawyer, C. J. Id. Ross v. Heintzen, 36 Cal. 313. See Probate Law and Practice, 100. H. ISSUANCE OP WHIT. 13. Affidavit. The affidavit for an attach- ment need not state the facts out of which the indebtedness of the defendant to the plaintiff arose. Weaver v. Hayward, 41 Cal. 117. 14. It is not necessary for the affidavit to state the probative facts requisite to establish the ultimate facts required by the statute to be shown as the basis of the writ. Wheeler v. Farmer, 38 Cal. 203. 15. Preparation of papers. There is no objection to the preparation of all the papers requisite to the writ of attachment, before, or at the same time the complaint is prepared, so that the undertaking and affidavit be not filed in advance of the complaint, and the writ be not issued before the summons and the copy of complaint. Wheeler v. Parmer, 38 Cal. 203. 16. Indorsement. It is the duty of the Sheriff, when returning an attachment of real property, to indorse thereon what acts he per- formed in serving the writ, and it will be pre- sumed that he states all that he did towards making the service. Sharp v. Baird, 43 Cal. 577- 17. Duty of Clerk. While the Clerk of the District Court is bound to issue writs of attachment in the order in which they are de- manded, yet if _ the party who makes the first demand is not in attendance to receive his writ when completed, the Clerk is not bound in the meantime to delay the issuing of other writs against the same party. Lick v. Madden, 36 Cal. 208. ' J ATTACHMENT. 35 18. When the Clerk has prepared for delivery the -writ first demanded, he is bound to isBue the writ of the next comer ; and if in such case the first comer is not there to receive his writ, and for that reason the next comer first delivers his writ to the Sheriff, and by that means acquires a priority, and the first comer loses his debt, the Clerk is not liable. Id. 19. If the Clerk first issues the writ of attachment secondly demanded, but if, not- withstanding, he has the writ first demanded prepared and ready for delivery as soon as it is called for, he is not liable for the damages sus- tained by the first party because the second obtains the first levy. Id. HI. SERVICE AND FILING. 20. Necessary. To complete the service of an attachment of real property, under sec- tion one hundred and twenty-five of the Prac- tice Act, both the service of the attachment on the occupant, or posting on the premises, and the filing of it with the County Recorder, are essential. Main v. Tappener, 43 Cal. 206. 21. Service to precede filing. The ser- vice or posting of the attachment must pre- cede the filing of it. Main v. Tappener, 43 Cal. 206. 22. Attachment of real property. It is the duty of the Sheriff, in serving an attach- ment of real property, to, deliver a copy of the attachment to the occupant, if there be one, or if there be no occupant, then to post a copy of the attachment in a conspicuous place on the premises. Sharp v. Baird, 43 Cal. 577. 23. A service of an attachment on real estate, made by posting a " notice" instead of a copy of the attachment on the most public part of the property attached, is not valid, and creates no lien on the property. Id. 24. On Corporations. To render the process of attachment effectual against a cor- poration, as garnishee, the writ and notice must be served on the President, or other head of the same, or the Secretary, Cashier, or other managing agent thereof. Kennedy v. H. S. &L. S., 38 Cal. 151. 25. In the case of a banking corporation, service of process on the Teller, whose only duty is receive and pay out all moneys which come into and go out of the bank, is not suffi- cient to bind the corporation. Id. 26. Defective attachment. Where a writ of attachment of real property was filed with the County Recorder, and was served a few hours afterwards : held, that the doctrine of relation would not apply to make the at- tachment date from the filing. Main v. Tap- pener, 43 Cal. 206. 27. Excessive levy. Where there was great uncertainty at the time of the levy as to the value of the property attached, and it is subsequently ascertained that its value was greatly in excess of the demand sued for, it does v not follow that the levy was therefore ex- cessive. Sexey v. Adkison, 40 Cal. 408. - 28. In an action against a Sheriff for the recovery of personal property alleged to have been improperly attached, or for its value, where the complaint contains no alle- gation that the levy was excessive, the plain- tiff cannot avail himself of the fact that the evidence showed that the levy was excessive, so as to entitle him to a recovery as to the ex- cess. Id. IV. UNDERTAKINGS ON. 29. Void for want of consideration. An undertaking exacted by a Sheriff before re- leasing property which he has ascertained to be exempt from execution, is void for want of consideration. Servanti v. Lusk, 43 Cal. 238. 30. Illegally exacted by Sheriff. When a Sheriff has attached personal property, a portion of which is exempt from execution, and refuses to release any of the property un- til an undertaking is, given him, the under- taking is void for having been illegally ex- acted by the Sheriff under color of his office. Id. 31. On attachment. An undertaking on attachment is an original, independent con- tract on the part of the sureties, and must be construed in connection with the statute which authorizes it. Erankel v. Stern, 44 Cal. 168. 32. If, in an undertaking on an attach- ment, a word is omitted by mistake, and by looking at the whole undertaking and the statute it is apparent what word was intended to have been inserted, the omitted word may be supplied, and the contract read as if it had been expressed, without first reforming it by supplying the omitted word. Id. See Appeal, 87. V. LIEN OF. 33. "When merged. When a, judgment is rendered and becomes a, lien upon the real property attached, the lien of the attachment is merged in that of the judgment, and has no effect, except to confer a priority in the lien of the judgment, and does not revive upon the expiration of the two years' lien of the judgment. Bagley v. Ward., 37 Cal. 121. 34. Judgment and execution, -without levy, do not convert attachment lien into "lien under final process." In case of a gar- nishment in an attachment suit, the mere re- covery of judgment and issuance of execution will not, without a receipt by the Sheriff of the property,, or an actual levy of the execu- tion, create any additional lien upon the fund garnished, nor convert the attachment lien into a "lien under final process," within the 36 ATTACHMENT.— ATTORNEY AND CLIENT. meaning of Section 20 of the Bankrupt Law. Howe v'. Union Ins. Co., 42 Cal. 528. 35. Lien dissolved by bankruptcy of debtor. Where Howe commenced an attach- ment suit against McOann, and garnisheed money of McCann's in the Union Insurance Company, and afterwards recovered judgment and issued execution to the Sheriff, who, how- ever, did not receive the money or actually levy the execution, and before any further steps, and within four months of the issuance of the attachment, proceedings in bankruptcy were commenced against McCann, and an assignee of his estate appointed : held, that the proceed- ings in bankruptcy dissolved the lien under the garnishment, and that neither the judg- ment nor execution, without an actual levy or receipt by the Sheriff of the money, would create any other lien. Howe v. Union Insur- ance Co., 42 Cal. 528. 36. Satisfaction of lien.— Surplus. "When the lien of an attachment is satisfied, the prop- erty not disposed of in satisfaction of the lien, as well as the surplus moneys that may.remain after the Sheriff's sale and satisfaction of the debt, remain subject to the rights of the judg- ment debtor or his assignee. Sexey v. Adki- son, 40 Cal. 408. See Common Carrier, 14 ; Execution, 39-40 ; Lien, I. ' v VI. INEFFECTUAL PROCESS. 37. Attaching land already sold. The levy of an attachment upon real estate, after the defendant in the attachment has sold it, is ineffectual as against the grantee in the deed, even if the deed had not been recorded, and the attaching creditor had no notice of the sale. Plant v. Smythe, 45 Cal. 161. 38. Defective attachment. An attach- ment of real property, if served by first filing with the Recorder, will not overreach a con- veyance made by the owner to a purchaser in good faith, and for a valuable consideration, intermediate the filing of the attachment and the service of a copy on the occupant, although the service be made with all reasonable dis- patch. Main v. Tappener, 43 Cal. 206. 39. Collusive attachment. Where a member of a firm in failing circumstances made a firm note to his sister for a personal debt of his own to her, but which was barred by the Statute of Limitations, and procured her to sue the firm upon it, and attach the firm property, and he advanced the costs of suit, and had the property bid off in her name, and it was plain, from the circumstances, that the proceedings were collusive, and that the firm, as a firm, owed her nothing : held, that no title passed by such attachment and sale as against subsequent attaching creditors of the firm. Briody v. Conro, 42 Cal. 135. VH. RELEASE OF. 40. Payment to secure release. A mere deposit with the Clerk of the Court, by a de- fendant in an attachment suit, of the amount of the judgment rendered against him in the suit, is not such a payment of the judgment as to entitle him to a release of the property attach- ed in the suit. Sagely v. Livermore, 45 Cal. 6t 3 . See Judicial Sale, 24 ; Sheriff, 3-4 ; Trust and Trustee, 7. ATTORNEY AND CLD3NT. I. Admission to practice. n. Authority of. m. Conduct of action. IV. Liability for negligence. V. Relation between attorney and client. I. ADMISSION TO PRACTICE. 1. License. An applicant to the Supreme Court, for license to practice as an attorney, may be examined as to his professional qualifi- cations, even if he has been admitted to prac- tice in the Supreme Court of the United States, in the Courts of a sister State, or of the Dis- trict of Columbia. Ex Parte Snelling, 44 Cal. 553- 2. Personal appearance. An applieant cannot be admitted to practice in the Supreme Court without personally appearing in Court. Ex Parte Snelling, 44 Cal. 553. II. AUTHORITY OF ATTORNEYS. 3. Authority to act. Attorneys are offi- cers of the Court, and answerable to it for the , proper performance of their professional duties. They appear and participate in its proceedings only by the license of the Court. Clark v. Willett, 35 Cal. 534. 4. An attorney's license is prima facie evi- dence of his authprity to appear for any person whom he professes to represent. Clark v. Wil- lett, 35 Cal. 534 ; People v. Mariposa Comp., 39 Cal. 683. 5. He may be compelled by the Court to show his authority to appear, either at the in- stance of the party for whom he appears or of the opposite party. People v. Mariposa Comp., 39 Cal. 683. , 6. If the supposed client denies his author- ity, the Court may require him to produce the evidence of his retainer, under the supervisory power which it has over its own process and the acts of its officers. This the Court may do either upon the direct application of the per- ATTORNEY AND CLIENT. 37 son or party represented, or upon motion of the attorney of the opposite party to dismiss, founded upon the affidavit of the person or party concerning whom the motion is made. Clark v. Willett, 35 Cal. 534. 7. "When the opposite party questions the authority of an attorney he must state facts tending to show, or the grounds and reasons which induced Mm to believe, that the attor- ney had no authority to appear. People v. Mariposa Comp. , 39 Cal. 683. 8. The affidavit of an attorney which states that he is informed and believes that the attor- ney who represents the opposite party is not authorized to appear, is insufficient to show the want of authority in the attorney. Id. 9. Authority of attorney of a party deceased. Where a party litigant dies after verdict, the authority of his attorney to act for him is thereby determined, and he can neither give nor receive notice of motion for new trial or of appeal. Judson v. Love, 35 Cal. 463. 10. If the attorney be the executor of the will of the party deceased, though it were ad- mitted that he became executor before the pro- bate of the will, yet he will not become a, party to the suit until he is made so in due form. Id. HI. CONDUCT OF ACTION. 11. Proceedings, by -whom conducted. When there are several defendants, and each appears by his own attorney, the ' proceedings on behalf of defendants must be conducted by their respective attorneys, and the attorney for one defendant cannot give notice of motion, or accept service of notice, or stipulate for another. Hobbs v. Duff, 43 Cal. 487. 12. Appearance for one of several de- fendants. When there are several defendants and one of them appears by an attorney who conducts the cause for him, and the attorney gives notice of motion for a new trial,' in which he signs himself ' ' attorney for the de- fendants," the motion for a new trial must be limited to the defendant for "whom the attor- ney appeared. Hobbs ti. Duff, 43 Cal. 487. 13. Authority to accept service of notice. When service of a notice of motion for a new trial is accepted by one attorney for another, who was his associate on the trial, each, however, appearing for different defend- ants, it will be presumed that he had authority to accept the service, if the point is first raised in the Supreme Court. McCreery v. Everding, 44 Cal. 284. 14. Right of counsel to read law to jury. As a general rule, the practice of al- lowing counsel in either a civil or criminal action to read law to the jury, is objectionable and ought not to be tolerated. There are cases, however, in which it is permissible for counsel, by way of illustration, to read to the jury re- ported cases or extracts from text books, sub- ject to the sound discretion of the Court, whose duty it is to check, promptly, any effort on the part of counsel to induce the jury to disregard the instructions, or to take the law of the case from the books rather than from the Court. People v. Anderson, 44 Cal. 65. IV. LIABILITY FOE NEGLIGENCE. 15. What is negligence in an attorney. An attorney is liable for the want of such skill, prudence, and diligence as lawyers of ordinary skill and capacity commonly possess and exer- cise. Gambert-u. Hart, 44 Cal. 542. 16. It is a want of ordinary care and skill in an attorney to submit a motion for a new trial before the statement in support of it is certified. Gambert v. Hart, 44 Cal. 542. 17. Negligence a question of law. In actions against attorneys for negligence or want of skill in the management of suits, when the facts are ascertained, the question of negligence or want of skill is a question of law for the Court. Gambert v. Hart, 44 Cal. 542. 18. For mistake. If the attorney for a party makes a mistake or a blunder, by sub- mitting a motion for a new trial before the statement is certified, by reason of which the appellate Court is prevented from looking into and reviewing the action of the Court below on the trial, and the attorney is sued for such mis- take or blunder, the Court cannot assume, in the case against the attorney, as matter of law, that the Supreme Court would have decided the case against the attorney's client if it had been fairly before _ it, and that, therefore, the client has sustained no damage. Gambert v. Hart, 44 Cal. 542. See Evidence, 1 50. V. RELATION BETWEEN ATTORNEY AND CLIENT. 19. Agreement between client and at- torney. An agreement made by an attorney with a client to render his professional services "in. the Courts of this State," in actions to test the validity of the client's title to certain real estate, in consideration of a conveyance by the client to the attorney of a portion of the land, does not bind the attorney to render his services in an action brought to test the valid- ity of the same title in the Circuit Court of the United States for this State. Mahoney v. Bergin, 41 Cal. 423. 20. If such agreement was fair and free from fraud, and the land conveyed by the cli- ent a reasonable fee for the services agreed to be rendered, the attorney will not be compelled to reconvey the land, upon the payment of a reasonable fee for his services rendered, because, by reason of the suit in the Circuit Court, the 38 ATTORNEY IN FACT.— BANKRUPTCY. client compromised with the opposing parties, and paid a large sum of money to acquire op- posing claims ; and the attorney was not com- pelled to render the full amount of services expected. Id. 21. Trust relative to attorney and client. If an attorney at law is consulted as to the legal effect of a power of attorney given to the one who seeks his advice, and is directed as a conveyancer, to prepare a deed of land to be executed by the one who gave the power to the attorney in fact, and the attorney at law performs the duty devolving on him by the employment, and in so doing derives no in- formation from his employer relative to the land, and the parties refuse to execute the deed, these facts do not make the lawyer the trustee of his employer if he afterwards buy the land. Porter v. Peekham, 44 Cal. 204. 22. Employment of attorney. If one, as the agent of another, employs an attorney for such other, it does not establish the relation of attorney and client between the agent and attorney. Porter v. Peekham, 44 Cal. 204. 23. If a party who has an undivided inter- est in a tract of land employs an attorney to act for him in relation to his interest in a par- tition suit, and at the same time as the agent of another party who also has an undivided interest, employs the attorney to act for such other party in relation to his interest, the re- lation of attorney and client does not exist between the employer and attorney as to the interest of the party for whom the employer acted as agent. Id. See Appeal 62, 64, 86, 99, 126, 206; Appear- ance,,!, 2, 3; Contract, 39,40, 44; Criminal Law and Practice, 142, 244, 274-282, 392 ; District Court Reporter 2 ; Equity 18 ; Probate Law and Practice 70-74, 102, 103; Stipulations ; Supervisors, 1 1 ; Trust and Trustee, 6, 8. ATTORNEY IN FACT. See Acknowledgment, 13 ; Negotiable In- struments, 7-9 ; Powers, 3,5; Summons, 1 5 . BAIL. See Criminal Law and Practice, 50-60 ; Ha- beas Corpus, 3. BAIL BOND. See Pleading, 47. BAILMENT. 1. Title to personal property. The de- livery of personal property to another,, by the owner, to be taken care of, and returned at a stated time, upon the terms that the latter is to be compensated out of its increase, is a mere bailment, for the benefit of both parties, and does not divest the title of the true owner. Robinson v. Haas, 40 Cal. 474. 2. Sale of mining stocks by bailee. A and G each owned shares of stock in a min- ing company, all the shares being of equal value ; A delivered a number of snares to G-, to be held as collateral security for money ad- vanced by G-, to pay assessments upon the stock of A, and to be sold by G whenever he could obtain not less than five hundred dollars per share ; G transferred certain of A's shares for less than the price named, in fulfillment by G of a contract for a sale of his own stock, and on settlement with A, G transferred an equal number of his own shares to A, exchanging re- ceipts with him in full of all demands. Sub- sequently, A sued G for the amount of money received for the shares sold, alleging that the , settlement had been procured by false repre- sentations on the part of G, and G defended by showing that he transferred the shares in ful- fillment of a contract for the sale of his own stock, and that he at all "times had and held for A's use an equal number of shares of equal value, and that he had so replaced them ; held, that G did not become responsible for the pro- ceeds of the sale of the shares. The technical breach of trust presents a case damnum absque injuria. Atkins v. Gamble, 42 Cal. 86. 3. Right of bailor to demand pro- ceeds of wrongful sale. If the bailee of personal property sell it, in violation of his authority, the owner may ordinarily ratify the transaction and demand the proceeds of the sale. Atkins v. Gamble, 42 Cal. 87. 4. Evidence. The purchaser of property from a bailee stands in privity with the latter, and the letters of the bailee written to his bailor, or other admissions of his while in possession, going to show how he held the property, are proper evidence against the bailee, or his trans- feree. Robinson v. Haas, 40 Cal. 474. See Criminal Law and Practice, 26 ; Mines and Mining, 20 ; Partnership, 4. BANKRUPTCY. 1. Power to enact bankrupt laws not exclusive in Congress. The power confer- red upon Congress by the eighth section of the- first Article of the Constitution of the United States, "to establish uniform laws upon the subject of bankruptcies throughout the United States," is not exclusive, and therefore, except when Congress has actually exercised its power BANKRUPTCY.— BILL OF PARTICULARS. 39 upon the same subject, the several States may pass insolvent or bankrupt laws. Martin v. Berry, 37 Cal. 208. 2. Effect of passage of bankrupt law upon State insolyent laws. When Con- gress enacts a bankrupt law it is supreme ; and from the time it takes effect until it ceases to he in force,' all State laws on the same sub- . ) ject and in conflict therewith are suspended, and the States placed under a disability to ex- ercise power of the like nature. Id. 3. Conflict of statutes. The statute of this State for the relief of insolvent debtors and protection of creditors, (Stats. 1852. p. 69) is in conflict with the Federal bankrupt law, passed March 2d, 1867, and has been suspended in its operations from the time said bankrupt law went into effect. Id. 4. When Federal bankrupt law went into effect. The Federal bankrupt law passed March 2d, 1867, did not go into effect, so as to suspend the operation of the insolvent law of this State, until June 1st, 1867. Id. 5. Adjudication of bankruptcy. — Effect on pending appeal. The filing in the appellate. Court of an adjudication of the bankruptcy of the defendant, rendered by the Register of the United States District Court after the appeal is taken, will not have the effect to stay the proceedings on the appeal. Mer- ritt v. G-lidden, 39 Cal. 559. 6. United States bankrupt act. — Final judgment. A judgment of the Court below, from which an appeal is pending, is a final judgment, in contemplation of Section 21 of the United States bankrupt act. Id. 7. Right of assignee in bankruptcy to bankrupt's property. If A, when in in- solvent circumstances, conveys his personal property to B for the purpose of defrauding his creditors, and B has knowledge of these facts, and A is afterwards, on the petition of his creditors, declared a bankrupt under the laws of the United States, the sale of the goods by A to B is void, and the title to the same vests in the assignee in bankruptcy, .when appointed, and he may recover, possession of the same. Bolanderu. Gentry, 36 Cal. 105. 8. Control of bankrupt's assets. It is the intent of that act that the federal tribu- nals shall have the exclusive control of the as- sets of the bankrupt, and shall distribute the proceeds among hig creditors. Wilson v. Cap- uro, 41 Cal. 545. 9. Franchise does not pass to assign- ee. A franchise to construct a turnpike road and collect tolls thereon, being a personal trust, not assignable without the consent of the granting power, does not pass, by virtue of an assignment under the United States bankrupt law, to the assignee in bankruptcy. People v. Duncan, 41 Cal. 507. 10. Transactions constituting valid transfer of franchise. Where the owner of a turnpike road franchise became a bankrupt, and the assignee in bankruptcy sold the fran- chise to a third person, and the bankrupt ac- quiesced in the transfer, relinquished all his title, and delivered possession of the road and its appurtenances to the purchaser, and after- wards the Board of Supervisors — the grantors of the franchise — assented to the transfer and authorized the purchaser to collect the tolls ; held, that, though the franchise, being a per- sonal trust, did not pass by virtue of the as- signment in bankruptcy, the whole transac- tion constituted a valid transfer of it by the owner, with the consent of the granting power. Id. 11. Discharge under bankrupt act. Under the bankrupt act of the United States , a discharge cannot be obtained from a debt created while acting in a fiduciary character. Treadwell v. Holloway, 46 Cal. 547. 12. Creating debt in a fiduciary char- acter. One who receives goods consigned to him on commission to be sold, and the pro- ceeds, less commissions, to be transmitted to the consignor, if he sells the goods and fails to transmit the money, creates a debt in a fidu- ciary capacity. Id. See Appeal, 15 ; Attachrdent,35 ; Insolvency. BAR. See Pleading, 166-184. BEACH. See Description of Land, 2 BENCH 'WARRANT. See Criminal Law and Practice, 124, 125. BILL OF EXCEPTIONS. See Criminal Law and Practice, 323-340; Dis- trict Court Reporter, 2; Exceptions, 14-17; Mandamus, 17. BILL OF EXCHANGE. See Equity, 48 ; Negotiable Instruments. , BILL OF PARTICULARS. 1. Pleading. A count in a complaint for a sum of money alleged to be due by theWe- 40 BILL OP REVIEW.— CAPITAL STOCK. fendant, for the use and occupation of the plaintiff's land, does not present a claim upon which a, hill of particulars can be required. Moore v. Bates, 46 Cal. 29. See Common Carrier, 14 ; Evidence 34, 59, 127- BILL OP REVIEW. See Equity, 43-45. BOARD OF EXAMINERS. See Costs, 13 ; State Printer, 1. BOARD OP EQUALIZATION. See Constitutional Law, 79-82 ; Taxation, 83-100. BOARD OF FIRE UNDERWRITERS. See Office and Officer, 7-9. BONDS. See Covenants, 5 ; Interest, 3 ; Manda- mus, 18. BOUNDARIES. 1. Between Merced and Stanislaus Counties. The act of February 13, 1868, to define the boundary line between Merced and Stanislaus Counties was operative to establish the boundary as indicated at once upon its passage, and was not dependent upon the sur- veys. People v. Henderson, 40 Cal. 29. 2. Land granted by patent. To ascer- tain the boundaries of land granted in a pat- ent, the several portions of the patent must be read vand construed together. More v. Mas- sini, 37 Cal. 432. 3. Of confirmed Mexican grant. When the decree of the Court confirming a Mexican grant fixes its exterior boundaries by bound- ing them on some monument, the presump- tion is that the lines of the survey of the Sur- veyor General do not extend beyond the exte- rior limits fixed by the decree. Id. 4. Navigable stream. When a tract of land is bounded upon a navigable stream, the distance upon the stream will be ascertained — in the absence of other controlling facts — by measuring in a straight line from the opposite boundaries. People v. Henderson, 40 Cal. 29. 5. Marsh. There is nothing in the nature of a marsh to render it impossible for it to constitute a well defined boundary of a tract of land. Brumagim v. Bradshaw, 39 Cal. 34. 6. Seashore. Land bounded by the sea shore extends only to the high tide line. More v. Massini, 37 Cal. 432. See Appeal, 293, 294 ; Description of Land ; Equity, 17, 20; Evidence, 149; Mines and Mining, I. BREACH OP PROMISE. See Instructions, 21 ; Pleading, 203. BRIEFS AND POINTS. See Appeal, 122-124. BUILDDSG CONTRACT. See Contracts, 22, 86 ; Mechanic's Lien, 12, 30. BURDEN OF PROOF. See Evidence, 4-20. BURGLARY. See Criminal Law and Practice, 22, 78, 101-103. CALENDAR. See Place of Trial, 1 ; Rules of Court, 2 ; Stipulation, 5 ; Trial, 5. CATTLE. 1. Cattle running at large. The rule of the common law of England, that every man is bound to keep his beasts within his own close, never was the law in California. Logan v. G-edney, 38 Cal. 579. See Contract, 87, 88. CAPITAL STOCK. See Corporations, 57-64. CAVEAT EMPTOR— CERTIORARI. 41 CAVEAT EMPTOR. See Sale and Delivery, 6, 7. CENTRAL PACIFIC RAILROAD. See Railroad, 1, 3 ; Taxation, 30. CERTIFICATE OF DEPOSIT. See Negotiable Instruments, 26. I. n. m. CERTIORARI. When it libs. When it will not lie. Proceedings and practice. I. WHEN IT LIES. 1. In criminal cases. When the de- fendant appeals in a criminal ease, the County Court has no jurisdiction to inquire into er- rors committed, to the prejudice of the people who have not appealed, and if it does so, certiorari lies to correct the error. Morley .11. Elkins, 37 Cal. 454. 2. What reviewable. The writ of cer- tiorari is a writ of review, and can only issue for the purpose of reviewing final determina- tions and adjudications of inferior tribunals, boards, or officers exercising judicial functions, when there is no appeal, nor any plain, speedy or adequate remedy. People v. County Judge, 40 Cal. 479. 3. The writ of certiorari lies only in those cases "in which, in the exercise of judicial functions, an excess of jurisdiction has oc- curred, and in which there is no appeal, nor in the judgment of the Court any plain, speedy, and adequate remedy. Bennett v. Wallace, 43 'Cal. 25. 4. The only cases in which the writ of certiorari will lie are those in which an infe- rior tribunal, board, or officer exercising ju- dicial functions, has exceeded the jurisdiction of such tribunal, board, or officer, and there is no appeal, nor, in the judgment of the Court, any plain, speedy and adequate remedy. C. P. R. R. Co. v. Placer Co., 43 Cal. 365. 5. The writ of certiorari can only issue to an inferior officer or tribunal exercising judic- ial functions, and the proceedings or act to be reviewed must be judicial in its character. People v. Bush, 40 Cal. 344. 6. Construction of statute. The words in Seotion,456 of tho Practice Art " has exceed- ed the jurisdiction of such tribunal, board," etc. , present substantially the same idea as the words " has regularly pursued the authority of such tribunal, board," etc., in Section 462 of that act. C. P. R. R. Co. v. Placer Co., 43 Cal. 365. 7. Proceedings of Supervisors. The pro- ceedings of a Board of Supervisors, in laying out a highway, involved the exercise of judic- ial functions in the sense of rendering such proceedings the subject of review through the instrumentality of a writ of certiorari. Keys v. Marin Co., 42 Cal. 252. II. WHEN IT WILL NOT LIE. 8. Errors not reviewable. If the County * Court erroneously refuses to hear an appeal in a criminal case because no statement was made, it is error within the jurisdiction of the Coun- ty Court, for which no relief can be had by certiorari. Morley v. Elkins, 37 Cal. 4^4. 9. The writ of certiorari will not lie to an inferior Court, to annul an order which is merely erroneous but not void, in a matter of which such Court has acquired jurisdiction. People v. Elkins, 40 Cal. 642. 10. Ministerial act. The appointment of a member of the Board of Supervisors by a County Judge is a ministerial and not a judic- ial act, and is not subject to review by certio- rari. People v. Bush, 40 Cal. 344. 11. From order granting a new trial. However erroneous the order of a County Court granting a new trial may be, it cannot be brought up for review by a writ of certiorari; Yenawine v. Richter, 43 Cal. 312. 12. To Board of Supervisors. Certio- rari will not lie to set aside the proceedings of a Board of Supervisors, in allowing an illegal claim against the county. Andrews v. Pratt, 44 Cal. 309. 13. Remedy exclusive. In a case where an appeal from the judgment might have been taken, but the time for taking it was suffered to elapse, the case does not thereby become one in which "there is no appeal" within the meaning of the Practice Act, Sec. 456. Bennett v. Wallace, 43 Cal. 35. 14. Certiorari does not lie to review an er- roneous judgment which the Court' below had jurisdiction to render. Monreal v. Bush, 46 Cal. 79. IH. PROCEEDINGS AND PRACTICE. 15. Power of Court to issue. Under Art. VI, Sec. 4, of the Constitution as amend- ed in 1862, the writ of certiorari can be right- fully issued from the office of the Clerk of the Supreme Court only upon an order of the Court, made upon application for that purpose. Smith v. City of Oakland, 40 Cal. 481. 16. Authority of District Courts. The District Courts and the Judges of those Courts 42 CERTIORARI.— CHATTEL MORTGAGE. have authority to issue the writ of certiorari. The amendments to the Constitution do not affect the question. Keys v. Marin County, 42 Cal. 252. 17. Relief. "Where the only question be- fore the District Court upon a writ of certiora- ri is the validity of a judgment of the County Court in point of jurisdiction in form and amount, and the judgment is void for want of jurisdiction, that Court has no authority to modify or reduce it in amount or otherwise. Will v. Sinkwitz, 39 Cal. 570. 18. Where the judgment of the County Court is void for want of jurisdiction, it is the duty of the District Court, on a writ of certio- rari, to set it aside. Id. 19. Affidavit in support of application. An affidavit made in support of an application to the Supreme Court for a writ of certiorari to the County Court, must set forth the reason, if any, why the application was not made to the District Court, or to the Judge thereof. Edwards v. Ryan, 45 Cal. 243. 20. Parties. The petitioner for\a writ of certiorari has no right to use, nor a necessity for using, the name of the people in suing out the writ in order to obtain redress for private A wrongs. People v. County Judge, 40 Cal. 479. 21. When a party to an action procures a writ of /Certiorari to bring up the record and proceedings before a higher tribunal, he should give notice thereof to the adverse party in the action. Pollock v. Cummings, 38 Cal. 683. 22. Statement of evidence. The statute prescribing the mode of procedure in a writ of certiorari does not require the inferior tribunal to prepare a statement of the evidence to be annexed to the return. C. P. R. R. Co. v. Placer Co., 34 Cal. 352. 23. Remedy barred by the lapse of a year. Unless circumstances of an extraordi- nary character be shown to have intervened, the remedy through a writ of certiorari should be held to be barred by the lapse of one year. Keys v. Marin County, 42 Cal. 253. 24. The Practice Act, as to the writ of certiorari, was intended to supply a remedy where none existed in the first instance, and not to supplement one lost through the laches of the party himself. Bennett v. Wallace, 43 Cal. 25. 25. The Board of Supervisors of Marin County made an order opening a highway, and, under the belief that the proceedings were final, considerable sums of the public moneys were expended in improving the road : held, that parties injured by the road, who failed to complain for more than a year after the order was made, should be remitted to their ordinary remedies. Keys v- Marin Co., 42 Cal. 253. 26. Judicial discretion. The granting or refusal of a writ of certiorari for the pur- pose of reviewing the action of a Board of Supervisors, is within the sound discretion of the Court, having due regard to public con- venience. Keys v. Marin Co., 42 Cal. 253. 27. Only jurisdictional matters in ques- tion. Where a Board of Supervisors has jur- isdiction of a proceeding, and acts upon it, any error it may commit in its conclusions as to facts not affecting its jurisdiction, cannot be reviewed on certiorari. Barber v. San Fran- cisco, 42 Cal. 631. 28. Error as to reasons and evidence not to be reviewed. Erroneous views en- tertained, or incorrect reasons assigned, or evidence erroneously admitted in deciding the controversy, do not make a case of want of jurisdiction, and are not to be considered upon certiorari. C. P. R. R. Co. v. Placer Co., 43 Cal. 365. 29. Object of writ of certiorari. A writ of certiorari brings up for review only the question whether the inferior officer, Court, or tribunal has acted in excess of jurisdiction, and cannot be used as a writ of error, for the correction of mistakes, either in law or fact, committed within the jurisdiction. C. P. R. R. Co. v. Placer County, 46 Cal. 667. 30. Section thirty-six hundred and eighty of the Political Code, requiring the Board of Equalization, on an application to equalize an assessment, to have the evidence taken down, and to declare the legal principles it has been governed by, does not change this rule. Id. 31. Costs. An error committed by the County Court in the taxation of costs cannot be corrected or reviewed on certiorari. Petty v. Co. Court of San Joaquin, 45 Cal. 245. 32. Appeal in certiorari cases. Appeals to this Court may be taken in cases of certio- rari. Morley v. Elkins, 37 Cal. 454. From a judgment rendered by a District Judge at chambers. Brewster v. Hartley, 37 Cal. 15. 33. An appeal does not depend on amount in controversy. Winter v. Eitzpatrick, 35 Cal. 269. See Appeal, 16, 157. CHALLENGES. See Criminal Law and Practice, 66-68, 222- 240; Trial, 9, 10. CHATTEL MORTGAGE. 1. Instrument construed to be chat- tel mortgage. If a note and mortgage are sold and delivered by the owner, by an instru- ment in writing which conveys the legal title, and contains a defeasance in the usual form of a ohattel mortgage, and a further provision that the instrument is made for the purpose of securing a sum of money, and for no other pur- CHATTEL MORTGAGE. -CITIES AND TOWNS. 43 pose, and that if the assignee collects the mon- ey he is to account to the assignor for the ex- cess, and a still further provision that the as- signee may insure the buildings on the prem- ises covered by the mortgage assigned, and that the premium shall be a lien on the note mort- gaged — the instrument will be treated as a chattel mortgage, and not as a pledge, and upon default of the mortgagor the title at law will vest in the assignee. Wright v. Ross, 36 Cal. 414. 2. When good. Where, on the trial of an action for the replevin of goods from a de- fendant who in answer admitted the taking, but justified under legal process against a third party , held and served by him as Sheriff, it was proved by plaintiff that he held an unsatisfied chattel mortgage of the goods, duly executed by said third party, for their purchase price, of which defendant had notice : held, that upon this state of facts, and in the absence of any evidence tending to justify the taking of the goods by defendant, plaintiff was entitled to judgment for their recovery. Stringer v. Davis, 35 Cal. 25. 3. Title under. A chattel mortgage vests the legal title to the property mortgaged in the mortgagee, subject to be revested in the mort- gagor upon the performance of the condition ; and in case of breach of the condition, the title becomes absolute at law in the mortgagee. The title passes whether possession of the chat- tel mortgage be delivered or not. Heyland v. Badger, 35 Cal. 404. 4. In case of a chattel mortgage, the title of the mortgagee becomes absolute at law on the default of the mortgagor, and on the fore- closure of the mortgage, the mortgagee is at liberty to become the purchaser. Wright v. Ross, 36 Cal. 414. 5. Bill in equity to redeem chattels. In case of a chattel mortgage, the remedy of the mortgagor is by bill in equity to redeem; and his equity of redemption cannot be cut off by the mortgagee, except by a public sale of the property on due notice. Heyland v. Bad- ger, 35 Cal. 404. See Conversion, 1 ; Pledge, 7. CHECKS. See Negotiable Instruments, 20-25,43-45, 54. CIRCUMSTANTIAL EVIDENCE. See Criminal Law and Practice, 151, 293, 302 ; Evidence, 75. CITIES AND TOWNS. 1. On public domain. When a portion of the public domain had been laid out as a town, into streets, blocks and lots, settled upon , occupied and appropriated, prior to the Act of July 1st, 1864, persons who, in good faith, were in the actual possession and occupation of any one or two lots, or other municipal subdivisions , with substantial improvements thereon, then actually existing, or subsequently represented by a proper map, plat, etc., filed, certified and verified by parties assuming to act for the in- habitants of the town, with the View of secur- ing the benefits and privileges contemplated by said Act, acquired legal rights, and a vest- - ed. interest in such lots or municipal subdivis- ions which, under the law, they had the priv- ilege of ripening into a perfect title, and of which they could not legally be divested, ex- cept by neglect or failure on their part to avail themselves of the privileges secured by the law, or a voluntary relinquishment thereof. Jones v. City of Petaluma, 38 Cal. 397. 2. Construction of the Act of Con- gress of July 1st, 1864. In attempting to avail themselves of the Act of July 1st, 1864, the trustees of the town of Petaluma had no power to change the plan of the town in such manner as to convert into .a street, alley or public square, land which, under the previous existing plan, was a municipal division, in- tended for private use, and actually occupied for that purpose. Alemany v. Petaluma, 38 Cal. 553. 3. In the passage of these laws, Congress had in view the individual interests of bona fide settlers upon small parcels of public lands, as well as the common interests of a communi- ty of persons, so contiguously settled as to jus- tify the establishment of a city or town, and did not intend the Act for the especial benefit of municipal organizations or corporations. Jones v. City of Petaluma, 38 Cal. 397. 4. Effect on cities and towns. The effect of said Act as to towns and cities which had been established, and those hereafter to be established, on public lands, was to secure to them the privileges which the former had usurped and the latter would need. Jones v. City of Petaluma, 36 Cal. 230. 5. Effect on streets, alleys, and squares. The effect of the Act in said cities and towns was to dedicate to public use so much of the public land as had been therein appropriated to streets, squares, and alleys, and to confer a license for a like appropriation in the future. Id. 6. Policy of Congressional legislation. In legislating in respect to towns which had already grown up on the public domain, and others thereafter to be established, Congress had in view two objects, to wit : first, to pro- tect the equitable rights of those in the bona fide occupation of lots in towns already estab- 44 CITIES AND TOWNS.— CITIZENSHIP. lished, and to enable persons to acquire small parcels at a nominal price in towns thereafter to be located : second, to enable the inhabit- ants of the existing or proposed town to estab- lish proper streets, blocks and squares adapted to the particular locality. Alemany v. Petalu- ma, 38 Cal. 553. 7. Construction of Act of Congress to quiet the title to land in the Town of Petaluma, etc. The town of Petaluma, •which, prior to the passage of said Act of Con- gress, was located on the public lands, had, by its proper municipal authorities, dedicated por- tions of the lands within its corporate limits to public use as streets, alleys, and squares ; to which portions J and C had subsequently, and before March 1st, 1867, acquired an adverse possession, and thereafter claimed to be bona fide holders thereof ; held, that under said Act the town acquired the right to the use of such streets, alleys, and squares, and that to the lands so occupied, while this right thereto so re- mained, J and C could not acquire a bona fide occupancy within the meaning of the Act of Congress of March 1st, 1867, entitled " An Act to quiet title to land in the Towns of Santa Clara and Petaluma, in the State of Califor- nia," and that the last named Act refers only to land embraced in lots, and not to land in use for streets, alleys, and squares. Jones v. Peta- luma, 36 Cal. 230. 8. Grant of public land to city in trust for occupants. The City of Benicia was laid out on the public lands of the United States, with streets, parks, and alleys, and the plat recorded. The city was incorporated by the Legislature. A part of the lands within the recorded plat, with the streets, alleys, and parks thereon, is inclosed, and used for agri- culture. Congress, by an Act of July 23d, 1866, granted the land within the corporate limits to the city, in trust, that so much of it as is in the bona fide occupation of persons shall be conveyed to such persons. Held, that parties who were bona fide occupants of the same are entitled to conveyances including streets, alleys, and public squares within the plat not opened or used as streets, etc. , as well as lots and blocks. Fischer ;;. City of Benicia, 36 Cal. 562. 9. Prior conveyance. In an action to recover the possession of lands, under the Act of Congress of July 23d, 1866, to quiet the ti- tles to the. lands within the City of Benicia, 'where it appears that the plaintiff's grantor had executed to the persons under whom de- fendants claimed a prior quit-claim deed for the same property, and for all the subsequently ac- quired title of the party of the first part under her deed, the plaintiff cannot recover, not- withstanding the fact that such grantor was in the bona fide occupancy of the premises at the time of the passage of the Act. Carroll v. City of Benicia, 40 Cal. 386. See Abandonment, 12 ; Evidence, 62 ; Lands and Land Titles, 240-249, 261 ; Limitations, 18 ; Municipal Corporations ; Trustees, 19. Trust and CITIZENSHIP. 1. Status of, not conferred by recent amendments to Federal Constitution. No white person born within the limits of the United States and subject to their jurisdic- tion, or born without those limits and sub- sequently naturalized under their laws, owes his status of citizenship to the recent amend- ments to the Federal Constitution. VanValk- enburg v. Brown, 43 Cal. 43. 2. Purpose of the fourteenth amend- ment. The purpose of the fourteenth amend- ment to the Constitution of the United States was to confer the status of citizenship upon a numerous class of persons domiciled within the limits of the United States who could not be brought within the operation of the natural- ization laws because native born, and whose birth, though native, had at the same time left them ■ without the status of citizenship. Such persons were not white persons, but in the main were of African blood, who had been held in slavery in this country, or having themselves never been held in slavery, were the native-born descendants of slaves. IS. 3. Privileges and immunities. Under the fourteenth amendment to the Federal Constitution, the privileges and immunities of citizens of the United States are guaranteed and protected in every State beyond the opera- tion of State laws. VanValkenburg v. Brown, 43 Cal. 43. 4. Political rights. The possession of all political rights is not essential to citizenship. People v. DeLaGuerra, 40 Cal. 311. 5. Elective franchise not an immunity. The elective franchise is not one of the im- munities or privileges intended in the first section of the fourteenth amendment to the Federal Constitution. VanValkenburg v. Brown, 43 Cal. 43. 6. Power of State to determine who may vote not curtailed. The mere power of the State to determine the class of in- habitants who may vote within her limits, is not curtailed in the fourteenth amendment. Id. 7. Females not made voters by the fifteenth amendment. The fifteenth amend- ment took away the authority of the State to discriminate against citizens of the United States on account of either race, color, or previous condition of servitude; but the power of exclusion upon all other grounds, including that of sex, remains intact. Id. See Constitutional Law, 8, 9 ; Lands and Land Titles, 21 ; Treaty, 1 ; Witness, 3. CIVIL DEATH.— CLAIM AND DELIVERY. 45 CIVIL DEATH. See Itebtor, 2. CIVIL LAW. See Donation, 1 . CIVIL RIGHTS BILL. l: Validity of. The provisions of the Aot of Congress, commonly known as the " Civil RightB Bill," (14 U. S. Stats, at Large, p. 27) which provide that " all persons born in the United States and not subject to any foreign power, excluding Indians not taxed, are hereby declared to be citizens of the United States, and such citizens of every race and color * * * shall have the same right in every State and Territory of the United States * * * to full and equal benefit of all laws ' and proceedings for the security of person and property as is enjoyed by white citizens, * * * any law, statute, ordinance, regu- lation, or custom to the contrary notwith- standing," were not repugnant to the Con- stitution of the United States as it read prior to the adoption of the fourteenth amendment thereto, and are valid. People v. "Washington, 36 Cal. 658. ' 2. Efiect of, in the State of California. The effect of the enactment of the " Civil Rights Bill ' ' was to put all persons, irrespec- tive of race or color, born within the United States and not subject to any foreign power, excluding, Indians not taxed, upon an equality before the laws of this State in respect to their personal liberty. Id. 3. Effect on act concerning crimes and punishments. The* fourteenth section of the statute of this State ' ' concerning crimes and punishments," which provides that "no In- dian, or person having one half or more of Indian blood, or Mongolian, or Chinese, shall be permitted to give evidence in favor or against any white person," (Stats. 1863, p. 69) so far as it discriminates against persons, on the score of race or color, born within the United States and not subject to any foreign power, excluding Indians not taxed, has, by the force and effect of the ' ' Civil Rights Bill, ' ' become null and void. Id. Reviewed and overruled in People v. Brady, 40 Cal. 198. 4. W, who was a mulatto, born within the United States and not subject to any foreign power, was indicted for the crime of robbing Ah Wang, a Chinaman. The indictment was found exclusively upon the testimony of Chi- nese witnesses. No other testimony against W was procurable by the District Attorney for the purposes of a trial under said indict- ment. The Court below, on W'a motion, set aside the indictment and discharged him with- out day. On appeal from said orders, taken by the People, this Court affirmed the judg- ment of the Court below. Id. CLAIM AND DELIVERY. 1. For hay cut on land in adverse possession. If P is in the possession of pub- lic land, and while thus in possession, 1? and others, being qualified pre-emptors, enter into actual possession in good faith to pre-empt the same, and are proceeding according to the forms of the law to perfect their pre-emption, their possession is adverse under color of title, and P cannot maintain a personal action for nay cut by them on the land, even if P claims under a rejected Mexican grant, and is pro- ceeding to perfect a pre-emption under a special Act of Congress. Whether 1? and others acquire actual possession is a question of fact. Page v. Fowler, 37 Cal. 100. 2. Of crops grown and harvested by a tresspasser. While the owner may re- cover for use and occupation, he can in no case be held to be the owner of the crops grown and actually harvested on the land by the defend- ant while in possession. Page v. Fowler, 39 Cal. 412. 3. It is not material in such case whether the persons thus entering upon the prior pos- session are qualified pre-emptors, provided they enter in good faith, believing themselves en- titled to pre-empt, and entered for that pur- pose. Page v. Fowler, 37 Cal. 100. 4. Replevin for crops. The true owner cannot maintain replevin for crops raised on his land by others who are holding the posses- sion of the land adversely to him. Penny- becker v. McDougal, 46 Cal. 661. 5. Pleading— complaint. A complaint, in such actions, is fatally defective, when it appears that' the defendant came rightfully to the possession of the property, and there is no allegation of demand, and refusal to deliver the same. Campbell v. Jones, 38 Cal. 507. 6. In an action for the delivery of personal property, under the Code, the plaintiff may or may not, at his election, seek its immediate delivery. Wellmanu. English, 38 Cal. 583. 7. The plaintiff in replevin cannot, in his complaint, for the purpose of enabling him to sue in replevin, aver that the defendant is in possession of the property, and then on the trial recover judgment against him on the ground that he was not in possession. Haw- kins v. Roberts, 45 Cal. 38. 8. Answer — defenses. If, during the pendency of an action to recover the possession of personal property, and before the trial thereof, the defendant has been required to 46 CLAIM AND DELIVERY.— CODE CONSTRUCTION. deliver and has delivered the property to an- other person entitled to its possession, as against both plaintiff and defendant, that fact may he set up in the answer, or in a supple- mental answer, for the purpose of defeating a recovery of the possession or of the value of the property. Bolander v. Gentry, 36 Cal. 105. 9. In an action to recover the possession of personal property, brought against a Sheriff who seized it by virtue of an attachment, it is a good defense for the Sheriff to show that the defendant in the attachment, when insolvent, sold the property to the plaintiff to defraud his creditors with the knowledge of plaintiff, and that said defendant has since been declared a bankrupt, and the Sheriff has, on demand of the assignee in bankruptcy, delivered him the goods. Id. 10. Defendant cannot introduce new matter in replevin. The subject matter of litigation in replevin is the property men- tioned in the complaint, and the defendant cannot, in his answer, allege that the plaintiff has taken from him other property than that mentioned in the complaint, and ask or obtain judgment for its return. Lovensohn v. Ward, 45 Cal. 8. 11. Evidence of value of property. In replevin, evidence may be admitted of the highest market value of the property between the time of conversion and trial. Tully v. Harloe, 35 Cal. 302. 12. For the purpose of determining the value of the property at the place of detention — and where, also, delivery, should have been made — evidence is admissible of its value at the place of market, the cost of transporta- tion thither, and the usual expenses of sale. Hisler-u. Carr, 34 Cal. 641. 13. Verdict in replevin. If the plaintiff in replevin takes possession of the property when the suit is commenced, and the jury, on the trial, find for the defendant, and assess the value of the property at a time subsequent to the taking, they cannot add to this value in- terest from the time of the taking up to the time the value was assessed. Atherton v. Fowler, 46 Cal. 323. 14. Measure of damages. In actions for the recovery of personal property of a fluctuat- ing value, where exemplary damages are not allowed, the correct measure of damages is the highest market value within a reasonable time after the property was taken, with interest from the time such value was estimated. Page v. Fowler, 39 Cal. 412. 15. In actions of replevin, where delivery cannot be had, and only detention of property is complained of, the measure of damages, in respect of the value of property detained, is its value at the place of detention when the action was commenced. In such base the ac- tion bears a near resemblance to trover, in which the value of the property at the place of conversion is taken as the criterion. Hisler r. Carr, 34 Cal. 641. 16. Erroneous judgment. Where the action was replevin in the detinet, and the Court found that the value of the property was six hundred dollars, that the plaintiff was its owner and entitled to its possession, and that the defendant detained it from him, and then gave judgment in favor of the plaintiff for the property, or for the sum of one hun- dred and seventy-six dollars and twenty cents, at the option of the defendant : held, to be error ; first, because it gave the defendant the option to retain the property by paying a named sum ; and, second, because the sum to be paid was less than the value," as found. Cummings v. Stewart, 42 Cal. 230. 17. Judgment in actions for. In such actions, the omission to specify the property of which restitution is to be made, is errone- ous. Campbell v. Jones, 38 Cal. 507. 18. The judgment should be, if in favor of the plaintiff, for the possession, or the value thereof, in case a delivery cannot be had, and damages for the detention. A judgment for a, return of property is only appropriate when in favor of defendant. Id. 19. In replevin, where the judgment/for the plaintiff describes the property to be re- stored as ' ' buckwheat, valued at three hun- dred and sixty-five dollars and seventy-five cents," the [description is insufficient to sus- tain the judgment, unless the judgment refer for a fuller description to the complaint, and there is a more definite description in the com- plaint. Welch v. Smith, 45 Cal. 230. See Appeal, 330; Chattel Mortgage, 2; Growing Crops, 5 ; Partnership, 14. CLERK OF SUPREME COURT. See Fees and Salaries, 5. CLOUD ON TITLE. See Equity, 41 ; Injunction, 13 ; Pleading, 76, 77 ; Quieting Title, 17-19, 23. CODE CONSTRUCTION. See Appeal, 197, 230 ; Certiorari, 30 ; Con- stitutional Law, 7 ; Criminal Law and Prac- tice, 205, 275, 321, 378 ; Fees and Salaries, 12 ; Mandamus, 36 ; Practice Act, 2 ; Statutory Construction, 16, 47 ; Taxation, 16, 20, 21 ; Witnesses, 5. 00 EKCION.— COMMON CARRIERS. 47 COERCION. See Mortgage, 10 ; Quieting" Title, 25.- COLLEGE OF CALIFORNIA. See Corporations, 8, 9. COMMERCE. See Constitutional Law, 5. COMMISSIONER OF TIDE LANDS. See Statutory Construction, 16. COMMISSIONS. See District Attorney, 3, 4 ; Probate Law and Practice, 77-82. COMMITMENT FOR CRIME. See Criminal Law and Practice, 44-60, 431; Habeas Corpus, 6. COMMON CARRIERS. 1. Duty of passenger carriers. Passen- ger carriers, by their contracts, bind them- selves to carry safely those whom they take into their coaches or cars as far as human fore- sight will go ; that is, for the utmost care and diligence of very, cautious persons. Wheaton v. North Beach & M. K. K. Co., 36 Cal. 590. 2. In an action for a breach of such con- tract, the Court refused an instruction asked by the defendant, which was as follows : ' ' The rule that passenger carriers are to be held to the exercise of the strictest diligence, is not to be understood by the jury as requiring of such carriers those particular precautions as it is ap- parent after the accident might have pre- vented the injury ;" held, that the instruction was properly refused. Id. 3. Lien for freight. The lien of a com- mon carrier for freight or transportation of property, is lost by the voluntary surrender of the possession. Wingard v. Banning, 39 Cal. 543- 4. Liability for injury to person. If a navigation or railroad company, engaged in transporting freight and passengers for hire, as common carriers, rents a room to a person for selling liquors and cigars, at a stipulated rent, and are to carry and board him as a part of the contract, he is not an employ*;, nor is he a mem- ber of the establishment, and the company is not released from liability for injuries he may sustain from the negligence of other employes of the company, but must stand by the rule applicable to passengers. Teomans v. Contra Costa S. N. Co., 44 Cal. 72. 5. For injury to express agent. If an express company hires its freight transported on the steamer or railroad of a company en- gaged in transporting freight and passengers for hire, as common carriers, and hire an agent to take charge of such freight, whose passage is paid for in the contract, such agent occupies the position of an ordinary passenger, as to the liability of the common carrier, for inju- ries he may sustain, caused by the negligence of its employes. Yeoman? v. Contra Costa S. N. Co. 44 Cal., 72. 6. For damage to cargo of vessel. Where the cargo of a vessel is damaged in consequence of an accident which results from the falling of the tide, unless it appears that the vessel could not have been so moored as to prevent it being left aground, the owner of the vessel is liable for the damage. Bohannan v. Ham- mond, 42 Cal. 227. 7. Liability as insurer. A common car- rier is not only responsible for negligence but is an insurer against any loss not occasioned by act of God, the public enemies, or the fault of the party suffering the loss. Bohannan v. Hammond, 42 Cal. 227. 8. Liability for breach of duty. A common carrier is liable to punitive damages, for a, gross, willful and tortious breach of the duty enjoined upon him by law, as a common carrier for hire. Mendelsohn v. The Anaheim Lighter Co., 40 Cal. 657. 9. Burden of ;Proof. When loss occurs, the burden of proof is upon the carrier to show that it resulted from one or the other of these excepted cases. Bohannan v. Hammond. 42 Cal. 227. 10. Proof of negligence. As between a passenger and a common carrier of passengers, the proof of the occurrence of an accident by which the passenger sustains injury without his fault, is prima facie proof of negligence on the part of the carrier. Yeomans v. Contra Costa S. N. Co., 44 Cal. 72. 11. Liability in respect to stoppage in transitu. Upon demand by the vendor of goods upon credit, when the right of stoppage in transitu exists, and while it continues, the carrier becomes liable for conversion if he de- clines to deliver the goods to the vendor, or de- livers them to the vendee. Jones v. Earl,. 37 Cal. 630. 12. Notice to carrier of vendor's in- tention to retake goods. An express de- 48 COMMON LAW.— CONSTITUTIONAL LAW. mand for the goods is not required in order to charge the carrier. If he is clearly informed that it is the desire of the vendor to retake the goods, the notice is sufficient. Id. 13. Notice to agent. Notice to an agent of the carrier, who is in the possession of the goods in the regular course of his agency, is notice to the carrier. Id. 14. Notice by letter. A letter by the vendor, delivered to the agent of the carrier in possession of the goods, to the' effect that the vendee had been attached, and that he desired to save the goods, giving a bill of particulars, and directing him to deliver the goods to no one but his agent, is a sufficient demand for the return of the goods to charge the carrier for a conversion. Id. See Insurance, 6 ; Lien, 7 ; Stoppage in Transitu, 1 ; Vessels. COMMON LAW. See Assignment, 5 ; Attachment, 10 ; Cat- tle ; Criminal Law and Practice, 20, 22, 38 ; Donation, I ; Forfeiture, I ; Gruardian and Ward, 1 ; Homestead, 9 ; Judicial Sale, 2 ; Quieting Title, 5 ; Statutory Construction, 27 ; Trade Mark, 1, 4, 8 ; Trespass, 1. COMMON PROPERTY. See Divorce, 9 ; Husband and Wife. COMMON SCHOOLS. See Constitutional Law, 63-64 ; Funds, 9 ; Taxation, 101. ' COMPLAINT. See Pleadings, 19-90. COMPOUND INTEREST. See Interest, 6, 10. CONCLUSIONS OP LAW. See Findings, 11-22; Pleadings, 141-144. CONDEMNATION OP LAND. See Eminent Domain. CONFESSIONS. See Criminal Law and Practice, 158-162; Evidence, 98, 99. CONSDDERATION. See Contract, 13-17; Negotiable Instru- ments, 6 ; Pleadings, 66, CONSOLIDATION ACT. See San Francisco, 9-12. CONSPIRACY. See Criminal Law and Practice, 3 ; Plead- ing, 25. CONSTABLE. See Office and Officers, 16. CONSTITUTIONAL LAW. I. Federal, Constitution. 1. General construction. 2. Reserved powers of States. 3. Limitation of powers of States. n. CONSTITUTION OP CALIFORNIA. i . Political powers. 2. Personal rights. 3. Uniform operation of laws. 4. Laws impairing obligation of con- tracts. 5. Legislative department. 6. Judicial department. 7. Common Schools. 8. Office and Officer. 9. Uniformity of Taxation. I. FEDERAL CONSTITUTION. 2. General construction. 1. Construction of words as used. It is the general rule in the interpretation of constitutions and statutes that worls shall be taken in the ordinary and popular sense, unless the context shows that the words are used in a technical or in some arbitrary 'sense. People v. Eddy, 43 Cal. 331. 2. The settled construction of a constitu- tional provision, made before its adoption into the Constitution of this State, should be held as the just interpretation* thereof. People v. Webb, 38 Cal. 467. CONSTITUTIONAL LAW. 49. 2. Reserved powers of State. 3. Power to exclude paupers, etc., from its limits. A State lias the. power, by- proper police and sanitary regulations, to ex- clude from its limits paupers; vagabonds - , and criminals, or sick, diseased, infirm, and dis- abled persons, who are liable to become » pub- lic charge, or to admit them only on such terms as will prevent the State from being burdened with their support. The State v. S. S. Constitution, 42 Cal. 578. 4. To exclude able-bodied persons not paupers or criminals. The power to exclude from the limits of a State, or to admit within its limits upon terms, persons in the full pos- session of their faculties, sound in body, and neither paupers, vagabonds, or criminals, and in all respects" competent to earn a livelihood, V is a regulation of commerce, of such a nature * that it can be most advantageously exercised " by Congress, and a State, even in the absence of legislation by Congress upon the subject, cannot exercise it. Id. ; 5. To regulate commerce. If a regula- 1 tion of any kind of commerce is local in its ' character, demanding varying rules, so as to \ adapt it to particular localities, it is within the f province of the State Legislature to adopt such J local rules and regulations, in the absence of ». legislation by Congress on the subject. Id. 6. The exercise of such a power is a po- lice or sanitary regulation for preserving the health and morals of the people. Id. 3. ■ Limitation of povjers of State. 7. Statute not ex post facto. The section of the Penal Code which provides that one who has been convicted of the offense of petit larceny, who shall again commit the of- fense of petit larceny, is to be deemed guilty of felony, is not ex post facto within the mean- ing of the Federal Constitution, even when, applied to one who committed the first offense prior to the taking effect of the Code. Ex Parte Gutierrez, 45 Cal. 430. 8. Thirteenth amendment. The first section of the thirteenth amendment, which is a mere limitation upon the powers of the State, was directed to the States in their sover- eign capacity as law-makers, and was not in- tended to afford relief to individuals unlaw- fully deprived of their liberty. Its purpose is satisfied when such restraint is rendered ille- gal. People v. Brady, 40 Cal. 198. 9. The second section of the thirteenth amendment authorizes Congress to pass only such laws as would be appropriate to enforce a limitation on the legislative power of the State. Id. 10. It confers upon Congress no power to establish a police system for the internal gov- ernment of the State, or by its laws to annul 4 the laws of a State, or to control their opera- tions in any way whatever. Id. 11. Rules of evidence in State Courts. Congress has no constitutional authority to leg- islate concerning the rules of evidence admin- istered in the Courts of the State, nor to affix conditions or limitations upon whiph those rules are to be applied and enforced. Daffy v. Hobson, 40 Cal. 240. 12. Competency of -witness in State Courts. The State Legislature has the power to declare who shall be competent to testify, and to regulate the production of evidence in the Courts of the State. People v. Brady, 40 Cal. 198. ' 13. Chinese testimony. The fourteenth amendment to the Constitvition of the United States does not conflict with the power of the Legislature in the exercise of its discretion to exclude Chinamen from the right to testify in the State Courts. The case of 'the People v. George Washington* (36 Cal. 658) reviewed and overruled. People v. Brady, 40 Cal. 198. See Civil Bights Bill. 14. Fourteenth amendment. The fourteenth amendment to the Federal Consti- tution was not intended to authorize the. Fed- eral Government to supervise the State in the exercise of its undoubted powers. Id. See Bankruptcy, 1 ; Citizenship, 1* Evi- dence, 3 ; Railroads, 2 ; State, 3, 4. II. CONSTITUTION OF CALIFORNIA 1. Political powers. 15. Reserved powers of State. To the extent of the powers not granted to the General Government or denied to the States, the power of the State is supreme. People v. Brady, 40 Cal. 198. 16. The State Government is complete in itself, so far as matters of internal government are concerned, and contains in its own Consti- tution every necessary safeguard against im- proper use of its powers, and every protection for individual rights which the people thought necessary. Id. 17. The General Government has no au- thority to interfere with the means a State may- adopt to enforce a law which it had a right to pass. Id. 2. Personal rights. 18. Bail. The Constitution of this State, in declaring bail to be a matter of right, con- templates only those cases in which the party has not been already convicted. Ex parte Voll, 41 Cal. 29. 19. Jeopardy. If a party charged with an offense has been once acquitted by ^the verdict of a jury, he cannot be held to answer 50 CONSTITUTIONAL LAW. again for the same offense, no matter by what, mistakes or errors on the part of the Court, jury or prosecution the acquittal was obtained. People v. "Webb, 38 Cal. 467. 20. If a party is once placed upon his trial before a competent Court and jury, upon a valid indictment, the "jeopardy" attaches, to which he cannot again be subjected, unless the jury be discharged from rendering a ver- dict by a legal necessity, or by his consent ; or, in case a verdict is rendered, it be set aside at his instance. Id. 21. Property taken for public use. The last clause of Section 1 8, Article I, of the Constitution, which provides that "no prop- erty shall be taken for public use, without just compensation," has no application to assessments for street work, in the City and County of San Francisco, under the Consolida- tion Act as amended in 1862 and 1863. Cham- bers v. Satterlee, 40 Cal. 497. 22. "Public use" a matter of legisla- tive determination. The "public use," mentioned in the Constitution, (Art. I, Sec. 8) upon which the power of eminent domain is to be exerted, is left in large measure to legislative determination ; and the legislative resolve, by which a tax is imposed or private property taken, is such a legislative determina- tion that the public use is to be promoted by the tax or the taking directed. S. & V. R. R. Co. v. Stockton, 41 Cal. 147. 23. Expenses of public improvements. It is competent for the Legislature to provide for the expenses of public improvement, either by general taxation upon the property of all the inhabitants of the county or town in which they are made, or upon property adjacent thereto, and especially benefitted thereby ; and in these respects the constitutionality of the Consolidation Act must be considered defi- nitely established. Chambers v. Satterlee, 40 Cal. 497. 3. Uniform operation of laws. 24. Construction of section. The eleventh section of Article I of the Constitu- tion, which provides that "all laws of a general nature shall have a uniform opera- tion," means that every law shall have a uniform operation upon all the citizens or persons or things of any class upon which it purports to take effect, and that it shall not grant to any citizen or class of citizens privi- leges which, upon the same terms, shall not equally belong to all citizens. Brooks v . Hyde, 37 Cal. 366. 25. By the provision of the Constitution of the State, that "every law of a general nature shall have a uniform operation," is meant, that the Legislature shall not grant to any citizen or class of citizens, privileges or im- munities which, upon the same terms, shall not equally belong to all citizens. Ex parte Smith & Keating, 38 Cal. 702. 26. Limitation of action. The Act in relation to the limitation of actions, for the recovery of real property in the City and County of San Francisco, (Stat. 1863-4, 149) is not unconstitutional. Id. 27. Legislative duty and power. Wherever wrong is found, the Legislature is allowed and required to provide an ade- quate remedy, and they may confine the oper- ation of the remedy to the locality where the wrong exists, and its application to the per- sons by whom the wrong or evil is wrought ; and in that, and every other instance, they are to look to the nature of the case and the adequacy of the remedy. Id. 28. Special acts. The Constitution of this State does not require laws to have a uniform operation, unless they are of a general nature ; and whether a law is of a general or special nature depends, in a measure, upon the \ legislative purpose discernible in its enact- ment. People v. C. P. R. R. Co., 43 Cal. 398. 29. The Constitution does not prohibit a special act, because the subject with which it deals might have been the subject of a general ■ law. People v. C. P. R. R. Co., 43 Cal. 401^ 4. Laws impairing obligation of contracts. [ 30. Judicial sales. If, at the time a judgment is rendered, judicial sales are abso- lute, and before a sale under it takes place, a law is passed allowing time for redemption, such law does not impair the judgment, in the sense of the Constitution prohibiting the passage of laws impairing the obligation of contracts. Moore v. Martin, 38 Cal. 428. - 31. Payment of claims. It is not com- petent for the Legislature to declare such a claim invalid, nor could it authorize a com- mission to do so. The creditor could not be compelled to accept another and an essentially different mode of payment from that provided by his contract ; that is to say, by the laws existing at the time he became a creditor of the county. Rose v. Bstudillo, 39 Cal. 270. 32. County funds. There is no constitu- tional objection to a law which provides a county fund, out of which the holders of county indebtedness can obtain fifty per cent, of the nominal value of their demand's, when- ever they may choose to accept of that sum. People v. Morse, 43 Cal. 534. 33. County Indebtedness. The Legis- lature cannot require the creditors of a county to surrender their evidences of indebtedness, and accept new ones different in terms from the old, but it may refuse to provide funds to pay any portion of the old indebtedness, unless the creditors will accept new evidences in place of the old, and for a less sum. People E. Morse and certain Real Estate, 43 Gal. 534. 5. Legislative department. 34. Adjournment. An adjournment of CONSTITUTIONAL LAW. 51 either house of the Legislature from day to day, is not such an adjournment as would prevent the Governor from returning a bill with his objections, within the ten days pre- scribed by the Constitution. Harpending v. Haight, 39 Cal. 189. 35. Time, computation of. In comput- ing the tea days within which a bill may be returned by the Governor to the House in which it originated, as provided by Section 1 7, Article IV, of the Constitution, the day on which the bill is presented to the Governor must be excluded from the computation. Iron Mountain Company v. Haight, 39 Cal. 540. 36. Return of bill. When a bill is re- turned with his objections, by the Governor, to the House in which it originated after it has adjourned for the day on the last of the ten days within which he can make the return, and because of failure to find the House in session, is re-delivered to and retained by the Governor, it does not constitute a return within the meaning of Section 17, Article IV, of the Constitution. Harpending v. Haight, 39 Cal. 189. 37. The bill should be placed beyond the Executive control, by delivery to the Presi- dent, Secretary, or other proper officer of the House. Id. , 38. Corporation debts. Power of Legis- lature to regulate the liability of stockholders for corporation debts, and to prescribe the rule by which each stockholder's proportion of such debt shall be ascertained. Larrabee v. Bald- win, 35 Cal. 155. See Corporation, 73, 74. 39. Ex post facto law. A law changing the forms of procedure, by which persons ac- cused of crime are to be tried for offenses com- mitted before the law was passed, is not an ex post facto law. People v. Mortimer, 46 Cal. 114. 40. Regulation of natural rights. Laws intended to regulate the enjoyment of the natural rights of persons do not impair, but foster and promote those rights, and to provide such laws is the essential object and purpose of ^government. ,Ex parte Smith, 38 Cal. 702. 41. Supreme power of State Legisla- ture. The legislative-department of our State government is not restricted in its sphere of action by a fixed chart of delegated powers. It represents the independent sovereignty of the people of the State, and is supreme and unlimited in all legitimate subject matters of legislation, and is controlled only by such restrictions as are imposed by the organic law of the State. Beals v. Amador County, 35 Cal." 624. 42. Rules of evidence. The Legislature has power to provide that a recital in a judg- ment, that the summons has been served on all the defendants, and that they have made de- ault, shall be proof of such facts, and it is not within the province of the Courts to declare such law void. Freeman v. Kobinson, 44 Cal. 623. 43. Ratification by the Legislature. The ratification by the Legislature of an ordi- nance of a city is equivalent to its re-enact- ment by the Legislature. Dupond v. Barstow, 45 Cal. 446. 44. Grant of franchise. A legislative grant, authorizing the grantee to build and erect a wharf, and conveying the right " to the use and occupancy of the adjoining land," with a proviso that " it shall be used for none other than wharf purposes" for a specified time, confers such an interest in the land as entitles the grantee to recover the possession of a party who intrudes upon and deprives him of the possession. Prisbie v. McClernin, 38 Cal. 568. See Citizenship, 6 ; Contract, 35, 36 ; Corpora- tions, 10; Criminal Law and Practice, 67; Eminent Domain, 8, 12 ; Insolvency, 1 1 ; In- terest, 4 ; Judgment, 9 ; Mechanics' Liens, 1 7, 23 ; Municipal Corporations ; Office and Offi- cers ; Probate Law and Practice, 89 ; San Fran- cisco, 10, 18 ; Service of Process ; Taxation, 1-14; Witness, 2; Yosemite, 1. 6. Judicial department. 45. Power to declare statute uncon- stitutional. The power of the judiciary to declare a statute unconstitutional should never be exerted, except where the conflict between it and the Constitution is palpable, and inca- pable of reconciliation. S. & V. R. P. Co. v. City of Stockton, 41 Cal. 147. 46. Municipal' Courts. The Municipal Criminal Court of the City and County of San Francisco is an inferior Court within the inr tent of Section 1 , Article VT, of the Constitu- tion, as amended in; 1862. Ex parte John Strat- man, 39 Cal. 517. 47. The effect of the amendment of 1862 was to limit the power conferred on the Legis- v lature by Article VI of the Constitution to the establishment of municipal and inferior Courts within the limits of an incorporated city. Id. 48. Municipal Court of San Francisco. The Municipal Criminal Court of San Fran- cisco, established by Act of the Legislature March 31st, 1870, is a constitutional Court. (Ex parte John Stratman, 39 Cal. 517, affirmed on this point.) People v. Nyland, 44 Cal. 129. 49. Street grades, modification of. The proceedings under the Acts of 1868 and 1870, modifying grades of streets in San Fran- cisco, is a. special one, and not a case at law in- volving the legality of an assessment, in the sense of Article VI, Section 4, of the Con- stitution. If it were a case at law, it would not be competent for the Legislature to confer jurisdiction of it upon the County Court, be- cause the Constitution, in express terms, con- fers upon the District Court original jurisdic- 52 CONSTITUTIONAL LAW. tiou in that class of eases ; and such jurisdic- tion is exclusive, unless there be something in the instrument evincing a contrary intent. Appeal of S. 0. Houghton, 42 Cal. 35. 50. Title to real property. To consti- tute a case whioh involves the possession of real property, within the meaning of the sixth section of Article VI of the Constitution, it is not enough that the possession is a fact in con- troversy, or incidentally in question, or that the fact of possession is in issue ; but the right of possession must be involved in the action. Pollock v. Gummings, 38 Cal. 683. 51. It is the intention of the Constitution to give exclusive jurisdiction to the District Courts in those cases only in which the right to the possession is involved. Id. See Land and Land Titles, 134-137. 52. Issues in Probate proceedings. Since the adoption of the constitutional amendments of 1862, District Courts have no jurisdiction to try issues framed in Probate Courts. Section 6 of Article VI, as amended, deprived District Courts of said jurisdiction, as conferred by said section before amendment, and denned in Section 20 of the Probate Act. Section 8 of the same Article, as amended, vested this jurisdiction exclusively in Probate Courts. Since said constitutional amendments the provisions of Section 20 of the Probate Act — conferring Probate jurisdiction on Dis- trict Courts — have become repugnant to the Constitution, and void. Matter of Will of Bowens, 34 Cal. 682. 53. Appellate jurisdiction of County- Courts. The provision in Section 8, Arti- cle VI, of the Constitution, giving to the County Courts appellate jurisdiction in cases arising in such inferior Courts as may be estab- lished in pursuance of Section 1 of the same Article, ia not a guaranty of individual rights, but either confers the absolute right of appeal from the Municipal Criminal Court to the County Court, or confers upon the latter the capacity to exercise the jurisdiction, when the Legislature shall provide' the mode and means of doing so. People v. Nyland, 41 Cal. 129. 54. The question whether the Constitution confers upon the County Court appellate juris- diction in cases transferred from the County Court to the Municipal Court for trial is re- served. Id. 55. Original jurisdiction of County Courts. The provisions of the Statute con- ferring jurisdiction upon County Courts in ac- tions to recover the possession of premises held over by tenants against the consent of the land- lord are constitutional. Stoppelkamp v. Man- geot, 42 Cal. 316. 56. Whether the provisions of the sixth section of the forcible entry and detainer Act of 1863, as to changing terms of lease by notice from the landlord in the mode therein pre- scribed, are constitutional ? Query f Id. 57. Probate Court. The Constitution does not confer on the Probate Court jurisdic- tion of all matters relating to the estate of de- ceased persons, but of such matters ouly as the statute directs it to exercise jurisdiction over. Bush v. Lindsey, 44 Cal. 121. See Courts ; Jurisdiction. 58. Charging juries. Section 17 of Article VI of the Constitution does not pro- hibit the Judge from stating the evidence in his charge, and the right to state the evi- dence includes the right to state that there is no evidence as to particular facts. People v. Dick, 34 Cal. 663. 59. But where, on the trial of D for the murder of S, the Court charged the jury, among other things, " the first question for your decision is this : was S * * * * murdered ? In determining that question the Court thinks you can have no hesitation whatever." Held, first, that this, when taken in connection with the rest of the charge, was in effect an intimation to the jury that the evidence sufficiently established that S had been murdered, and that the only ques- tion for serious consideration of the jury was whether the defendant was the guilty party ; and, second, that this is within the prohibition of Section 17 of Article VI of the Con- stitution. Id. 60. The policy of the prohibition con- tained in the Constitution against charging juries in matters of fact is discussed and ques- tioned. People v. Taylor, 36 Cal. 255. See Criminal Law and Practice, 283—288. 61. Organization of Courts. The pro- vision of the nineteenth section of the amend- ment of Article VI of the Constitution, to the effect that the organization of the several Courts shall not be changed until the time appointed in the amendments, necessarily means that their jurisdiction shall continue until that time. Grillis v. Barnett, 38 Cal. 393. 62. The several Courts of the State con- tinued with their jurisdiction unimpaired, notwithstanding the adoption of the amend- ment, until the organization of the new Courts by which they were to be super- seded. Id. 7. Common schools. 63. School funds. Whenever the Leg- islature of this State raises a fund, by taxa- tion or otherwise, for the support of common schools, any contemporaneous or subsequent legislation having for its object the diversion of such fund to any other purpose, is in contraven- tion of the second section of Article IX of the State Constitution, and is void. Crosby v. Lyon, 37 Cal. 242. 64. The clause of Section 2, Article IX, of the Constitution, which provides " * * * and such other means as the Legislature \ CONSTITUTIONAL LAW 53 may provide shall be inviolably appropriated to the support of schools throughout the State," includes as such "means" any fund arising from annual taxation for school pur- poses levied under general laws passed for that purpose. Id. 8. Office and officer. 65. Election to office. "When the Con- stitution declares an office to be elective, it cannot be filled in any other mode. Christy v. Board Supervisors Sacramento County, 39 •Oat. 3. 66. Term of office. But when the office has been filled by an election, the Legislature may extend the term of the incumbent : pro- vided the whole term, when extended, does not exceed the time limited by the Constitu- tion, ffl. See Office and Officer. 9. Uniformity of taxation. . 67. Public property. The provisions of the Constitution and Revenue Laws upon the subject of taxing property are to be un- derstood, as referring to private property and persons only, and not as including public property and the State or any subordinate part of the State Government, such as coun- ties, towns and municipal corporations. Peo- ple v. Doe G., 36 Cal. 220. 68. Wharf and dockage charges are ■to be considered as taxes, and as such must be uniform. The Legislature has no power to tax a part and exempt a part of commerce from such charges. People v. S. P. & A. R. R. Co., 35 Cal. 606. 69. Exemption. The Revenue Laws of the State are unconstitutional, so far as they exempt private property from taxation ; and all parts thereof relating to such exemption must be disregarded. People v. Gerke, 35 Oal. 677. 70. School fund inviolable. So much •of Section 18 of " An Act to authorize the County of Placer to subscribe to the capi- tal stock of the Central Pacific Railroad Oompany of California, and to provide for the payment of the same," etc., (Stats. 1863, p 145) as provides that " the taxes that may be paid by said (railroad) company to said .(Placer) county, from time to time," shall be paid into "the Railroad Pund " created by said act, is unconstitutional and void, so far as it relates to the school tax of said county. Crosby v. Lyon, 37 Cal. 242. 71. A statute having the effect to exempt the taxable property of a railroad company in any county from the payment of a school tax lawfully levied upon the taxable property" within such county^ is in contravention of Section 13 of Article XI of the Constitu- tion, which provides that ' ' taxation shall be equal and uniform throughout the State," and in so far is void. Id. 72. Assessment for street work. An assessment for street work in the City and County of San Prancisco, under the Consoli- dation Act, is not "taxation," within the meaning of the thirteenth section of Article XI of the Constitution. Chambers v. Sat- terlee, 40 Cal. 497. 73. Legislative powers. The principle upon which taxation is to be imposed by the. , State Government is pointed out by the Con- stitution ; but the extent to which it may be carried is left unlimited, except by legislative discretion. S. & V. R. R. Co. v. Stockton, 41 Cal. 147. 74. Remission of tax. A clause, in an Act imposing a tax, which allows the Board of Supervisors to remit the tax upon such property as they may deem just, does, not ren- der the whole act unconstitutional. People v. Whyler, 41 Cal. 351. 75. Meaning of the word "property" in the Constitution. The "word " property " is used in Section 13 of Article XI of the Constitution in its ordinary and popular sense, and includes not only visible "and tangible property, but also choses in action such as sol- vent debts secured by mortgage. In no sec- tion of the Constitution is the word " property' ' employed as comprehending only visible and tangible property, and excluding choses in ac- tion. People o.' Eddy, 43 CaL 331. - 76. Assessor, limitation of functions. By the provisions of Section 13 of Article XI of the Constitution, the authority of Asses- sors is limited to the districts within and for 'which they were elected. They have no power to assess property situated beyond the limits of their respective districts. People v. Placer- ville & S. V. R. R. Co., 34 Cal. 656. 77. Railroad Assessment Act (Stats. 1863-4, page 357) unconstitutional. So much of the Act regulating the assessment and taxation of railroads (Stats. 1863-4, p. 357) as provides for the assessment of railroad and other property by Assessors other than by those in whose respective districts the property assess- ed is situated, is held to be unconstitutional and void. People v. Placerville, 34 Cal. 656. 78. Fees of Tax Collector. The Legis- lature may, without violating the Constitu- tion, provide by law that a Collector of Taxes shall pay a part of the fees and compensation allowed by law into the County Treasury, for the benefit of the General Pund. Ream v. Sis- kiyou Co., 36 Cal. 620. 79. Power to create State Board of Equalization. It is within the constitutional power of the Legislature to create a State Board, for the equalization of the assessed value of property between the different counties of this State. Savings and Loan Society v. Aus- tin, 46 Cal. 415. 1 54 CONSTRUCTIVE POSSESSION.— CONTRACTS. 80. That part of the Act creating a State Board of Equalization which provides that the Controller of State shall be One of its members, and the other two shall be appointed by the Governor, is not in conflict with the Constitu- tion. Id. 81. That part of the Act creating a State Board of Equalization which gives to said Board the power to fix the rate of taxation for State purposes, is not unconstitutional. Id. 82. State Board of Equalization un- constitutional. The Act creating a State Board of Equalization is unconstititutional, because the members of the Board are not elect- ed by the people, and the Board is given the power of performing in part the functions of Assessors, and because the power conferred on the Board of fixing the rate of State taxation is a delegation of legislative powers. Wallace, C. J., Niles, X, concurring. Id. See Certiorari, 1 5 ; Exceptions, 7 ; Ferries and Toll Bridges, 3 ; Funds, 9 ; Judgment, 9, 10: Legal Tender, 1 ; Legislature ; Mandamus, 4 Pardon; Statutory Construction, 15, 31-38 Treaty, 4. CONSTRUCTIVE POSSESSION. See Ejectment, 52 ; Land and Land Titles, 61-62, 268-284. CONTEMPT OF COURT. 1. Power to punish. The power of a Court to punish for an alleged contempt of its authority, though undoubted, is in its nature arbitrary, and its exercise is not to be upheld, except under the circumstances, and in the manner prescribed by law. Batchelder v. Moore, 42 Cal. 412. 2. Jurisdiction in cases of contempt. It is essential to the validity of proceedings in contempt, subjecting a party to fine and im- prisonment, that they show* a case in point of jurisdiction within the provisions of the law by which such proceedings are authorized, for mere presumptions and intendments are not to be indulged in their support. Id. 3. Contempt not committed in pres- ence of the Court. When the alleged con- tempt is not committed in the presence of the Court, an affidavit of the facts constituting the contempt must be presented, in order to set the power of the Court in motion. If the affidavit be defective in stating the facts, it is equivalent to the utter absence of an affidavit. Id. 4. Contempt under the Act of 1862. Under the Act of 1862, for the punishment of contempts and trespasses, it is essential that the person accused be one who has been eject- ed or dispossessed, as provided in the Act. Id. 5. Statute in relation to. The statute of this State in relation to contempt is a limita- tion upon the power formerly exercised by Courts to punish for contempt. Galland v. Galland, 44 Cal. 475. 6. Contempt of Court of Equity. A husband who lives separate from his wife, and has been adjudged by a Court of Equity to pay her a certain sum monthly for her support and that of her infant child, is not guilty of con- tempt for not paying the sum, if he is unable to pay it, and has not voluntarily created the disability for the purpose of avoiding the pay- ment. Id. 7. A husband attached for contempt alleg- ed to be committed by not paying a monthly sum for his wife's support, which he has been adjudged to pay by a Court of Equity, may purge himself from the contempt by showing. that he is unable to pay it, and that this in- ability has not been voluntarily created by his own act. Id. 8. Appeal. Order adjudging party guilty of contempt not appealable. Aram v. Shallen- berger, 42 Cal. 277. SeeBriggsv.McCullough, 36 Cal. 542. See Appeal, 30-31 ; Trial, 58. CONTINUANCE. See Action, 9 ; Appeal, 171; Criminal Law and Practice, 218-216 ; Trial. CONTRACTS. I. In general. II. Execution of. in. Consideration. IV. Validity op. 1. In general. 2. Contracts on restraint of trade. 3. Contacts against public policy. V. Entirety of. VI. Construction of. 1. In general. 2. Contracts for sale of land. 3. Miscellaneous contracts. VII. Performance of. Vm. Breach of. 1 . Bemedy. 2. Measure of damages. IX. Rescission of. I. IN GENERAL. 1. Notice of contents. A party having, notice of the contents of a written agreement has notice of its legal effect. Van Duzen v. Star Q. M. Co., 36 Cal. 571. See Principal and Agent, 1 . 2. Constructive contract. In an action growing out of an agreement made by letters CONTRACTS. OD to and, from/ the respective parties residing at a distance from each other, it is the duty of the Court to construe those letters, and determine whether they constitute a contract. Ellis v. Crawford, 39 Cat. 523. 3. Implied and express contract. The difference between the method of proving an implied and express contract is this : The latter must be proved by an ascertained agree- ment between the parties, while in case of the former, the law will imply that the party did make such an agreement as under the circum- stances disclosed he ought in fairness to have made. Smith v. Moynihan, 44 Cal. 53- 4. Joint liability. If two jointly con- tract to da work and furnish materials for an- other, and the two, as between themselves, are not partners, but each is to perform a portion of the job and receive his proportional part of the pay, and one of the two employs a laborer on his part of the job, the law will not raise an implied' contract that both are liable to the laborer. Smith v. Moynihan, 44 Cal. 53. 5. Conditional contract. An offer by a party to perform certain services for another party, provided he complies with certain con- ditions named in the offer, does not create a contract unless the conditions are complied with by the other party ; and if the party making the offer performs the services, relying, alone on the promise of the other party to com- ply with the conditions, an action will not lie on the 'proposed contract to recover for the services performed. Northam v. Gordon, 46 Cal. 582. 6. Conditional contract to buy a mine. A contract withthe owners of the stock of a min- ing corporation, as parties of the first part, re- citing that the parties of the second part are desirous of buying the stock and mine, if the tests they make prove satisfactory, and shall take possession of the mine, and make improve- ments on it, and that the stockholders shall assign the stock to trustees, and that the parties of the second part shall pay at a time - fixed a certain sum to the trustees for the stockholders and have the stock, but forfeit their improvements and redeliver possession if they fail to pay, accompanied by a resolution of the Board of Directors to convey the mine to the parties of the second 'part if the pay- ment is made, merely gives the parties of the second part the option of purchasing, and by their failure to pay they lose the privilege of buying, but do not become liable for the amount they were to pay. Gordon v. Swan, 43 Cal. 565. 7. Law of contracts — to whom appli- cable. The law of private contracts is not applicable where the State or county govern- ment is a party, in respect to 'the mode or measure of enforcement. Sharp 0. Contra Costa County, 34 Cal. 284. 8. Contract with stockholders of a corporation. A contract made by the stock- holders of a mining corporation as parties of the first part, with parties of the second part, by which the stockholders agree to assign their stock to trustees, to be by the trustees conveyed to the parties of the second part, upon the pay- ment by them of a certain sum of money to the parties of the first part, through the trus- tees, accompanied by a resolution of the Board of Directors of the corporation authorizing their President to convey the mine to the parties of the second part, upon the payment of the money, is substantially as if the con- tract had been made with the corporation in- stead of the stockholders. Gordon v. Swan, 43 Cal. 565. 9. Labor of son for father after he at- tains his majority. If a son remains, with and performs services for his father after , at- taining his majority, the law will not, ordi- narily, imply a promise xm the part of the father to make pecuniary compensation for his labor ; but if the circumstances show thatit was the expectation of both parties that he should receive compensation, the promise will be implied, and he may sue on a quantum meruit. Friermuth v. Friermuth, 46 Cal. 42. 10. The law presumes a promise to pay money borrowed. Although a con- tract between the borrower and lender of money, as to the time of its payment, , may be void under the Statute of Frauds, yet, as the borrower has the lender's money, the law pre- sumes a promise that he will repay it on de- mand. Swift v. Swift, 46 Cal. 266. 11. Contract made with reference to rules or customs. When a contract is en- tered into with reference to rules of a Board of Brokers not rules or usages of trade and commerce, such rules become in effect special terms of the contract, and must be pleaded by the party who claims that he has performed the contract in accordance with them, or that the other party has failed to comply with them. Goldsmith v. Sawyer, 46 Cal. 209. See Admiralty, 5 ; Constitutional Law, 30- 33 ; Husband and Wife, 21-23 ; Growing Crops, 4; Interest, 10, II, 13; Limitations, 5, 26-28, 45-47 ; Sureties, 5 ; Trust and Trustee, 12 ; Vessel; Warranty, 4, 6. H. EXECUTION OF. 12. When must be written. If the parties to an alleged contract agree that it shall be reduced to writing, in an instrument to be signed by them, it will not be obligatory on them without the execution of such writ- ten instrument. Fuller t\ Heed, 38 Cal. 99. See Statute of Frauds. in. CONSIDERATION. 13. Extension of time of payment. 56 CONTRACTS. and an agreement to pay the same in gold coin, form a sufficient consideration for an ex- tension of the time of payment. Kinsey v. Wallace, 36 Cal. 463. 14. An agreement without consideration, to extend the time of payment of money due on a contract, cannot be enforced. Hughes v. Davis, 40 Cal. 117. 15. Past services. K, by an instrument in ■writing, promised to pay Gr a sum of money on the sale of a certain mine, "for services rendered in the sale of said mine." Held, that the consideration consisted of past and not of future services. GaJblb v. King, 38 Cal. 143. 16. Good will of business. The good wiE of a business may be valuable and form the subject-matter, in whole or in part, of a contract of sale. Cruess v. Fessler, 39 Cal. 336. 17. A representation of the value of a business and good-will is a material represen- tation. Id. IV. VALIDITY OF. 1. In general. 18. When valid. A contract, to be ob- ligatory on either party to it, must be mutual and reciprocal. Doe v. Culverwell, 35 Cal. 291. 19. Mutual misunderstanding of par- ties. A supposed contract of sale when there is a mutual misunderstanding between the parties as to the amount of the consideration to be paid, is no contract, and a subsequent sale by the supposed seller to a third party is valid. Kovegno v. Deferari, 40 Cal. 459- 20. Contract held binding though signed by only one party. Where a con- tract by which one party was to build a dam and the other to pay therefor in certain in- stallments, was signed only by the first party ; but it appeared the other party paid his in- stallments as therein provided, and both acted upon it as binding : held, that a finding of a District Court to the effect that it was execut- ed and binding, should not be disturbed. Keedy v. Smith, 42 Cal. 245. To make an agreement valid, it is not necessary that the debtor should sign it. Smith v. Lawrence, 38 Cal. 24. 21. Intoxication at time of contract- ing. A party may show, in order to defeat a settlement made by him, that, at the time, he was incapable of contracting intelligently, by reason of intoxication, and evidence of the party's condition, as to being intoxicated sev- eral hours after the settlement, may be given, as tending to throw light on his condition when the settlement was made. Phelan v. Gardner, 43 Cal. 306. 22. Building -wharves by Harbor Com- missioners. The Board of State Harbor Com- missioners, in letting a contract for the con- struction of a wharf, must pursue strictly the provisions of the statute. The advertisement for proposals must contain an accurate descrip- tion of the work, < the materials, and all the details. Cowell v. Martin, 43 Cal. 605. 23. Unless the statute is substantially com- plied with, the Commissioners acquire no juris- diction to make a contract, and the same is void. Id. 24. Executory contract for sale of land. A proposal to sell real estate, reduced to writing, and signed by the vendor alone, in which he recites that he has sold to the vendee the land for a price named, and has received a certain sum as a deposit, as part payment, which the vendor was to refund if the title was rejected or bad, the sale to be subject to a search of and approval of title, and the vendee to have twenty days for the examination of the title, is a valid contract of sale entered into between the parties. Vassault v. Edwards, 43 Cal. 459. See Debt, 3 ; Land and Land Titles, 37. 2. Contract in restraint of trade. 25. "When valid. A contract by which one party binds himself to buy meat at a fixed price and for a time certain of another party, • in consideration of the other party refraining from selling meat during that time at the place . of business, is valid. Lightner v. Menzell, 35 Cal. 452. 26. An agreement in partial restraint of trade, restricting it within certain reasonable limits, or confining it to particular persons, is, if founded upon a good consideration, valid. Wright v. Ryder, 36 Cal. 342. 27. When void. Such a contract, if it include the entire area of a State, is unreasona- ble and void, as against public policy. Id. 28. If the purchaser of a steamboat, at the time of the purchase, covenants, with the seller that he will not run or employ, or suffer to run or be employed, the said boat for ten years upon any of the routes of travel of the waters of a State, the covenant, being in re- straint of trade and commerce, is void, as against public policy. Id. 29. A contract by which one of the parties binds himself not to engage in a particular * business or occupation "in the City and County of San Francisco, or State of California " is in restraint of trade, and therefore void, as against public policy. More v. Bonnet, 40 Cal. . 251. 30. Not severable. Such a contract is ';', an entire, contract, and cannot be severed so as to enforce that portion relating to the City and County of San Francisco, and reject that relat- ing to the State of California. Id. 31. Territory unrestricted. A contract which provides that a party shall not engage in "any branch of the yeast powder business," CONTRACTS. is in restraint of trade, and therefore void. Callahan v. Donnolly, 45 Cal. 152. 32. A contract in restraint of trade, and which is not by its terms limited as to the ter- ritory embraced in its operation, will not be supported. Id. 33. When upheld. A contract in re- straint of trade, to be upheld, must be restrict- ed as to territory, and it must appear to , the Court, in considering the nature of the busi- ness in connection with the territorial limits assigned, that the limits designated are not unreasonable in extent. Id. 1 3. Contract against public policy. 34. Agreement against public 'policy. An agreement by which a candidate for office receives from another person money to aid him in securing his election, and in consideration thereof agrees to share with' such other per- son a portion of the proceeds and emoluments of the office when elected, is immoral, against public policy, and malum in se, and is totally void. Martin v. Wade, 37 Cal. 168. 35. Public policy. M, for a considera- tion, promised to draft a bill for a franchise in favor of T, and to place it in the hands of some member of the Legislature, to be intro- duced in that body, but did not promise to work for its passage, either secretly or openly. Held, that the promise was not contra bonos mores. Miles v. Thorne, 38 Cal., 355. 36. A person may, without any violation of public policy, for hire, work for the passage of bills by the Legislature, provided he does not conceal his interest in the matter, but lets it be known and understood by the members whose judgment he undertakes to influence. Id. 37. Collusion. An agreement between a judgment creditor and one claiming an inter- est in the thing about to be sold under an exe- cution against a third person, that neither shall bid against the other, but that the claim- ant shall and may buy in the property, is void, as contrary to public policy. Packard v. Bird, 40 Cal. 378. • 38. Secret agreement of partnership in franchise to be procured, not enforca- ble. "When Powell and Maguire verbally agreed to procure a franchise in the name of Maguire, and to run a ferry, each party to be equally interested in the franchise and busi- ness, and after the procurement of the fran- chise, Maguire refused to transfer one-half to ■ Powell, or to recognize any interest in him : held, that public policy forbade the enforce- ment of such secret understanding between the parties. Powell v. Maguire, 43 Cal. 1 1 . 39. When contract -with attorney not against public policy. It is not against public policy for a party claiming title to land to enter into a contract with an attorney, ■ by which it is agreed that the attorney shall commence legal proceedings for its recovery and pay the costs, and in consideration of his services and expenditure of money have an undivided one-half of all the land recovered, and. the undivided one-half of all that may be recovered or obtained by reason of any compromise or settlement of the matter, and that the party claiming the land shall not make any settlement or compromise without the consent of the attorney. Hoffman v. Vallejo, 45 Cal. 564. 40. Such contract constitutes the attorney the equitable owner of the undivided one- half of whatever shall result from the prose- cution or compromise of the suit instituted by him to recover the land. Id. 41. Sale with reservation to repur- chase. A sale of land, with a reservation to the vendor of the right to repurchase, is not opposed to public policy. Henley v. Hotaling, 41 Cal. 22. 42. Action -will not lie. Whether a contract against public policy be executory or executed, no action can be brought, either on the contract, or to recover back the con- sideration, or to recover judgment on a promissory note made in consideration of a cancellation of such contract. Martin v. Wade, 37 Cal. 168. 43. Contracts malum prohibitum. There is a distinction between contracts which are malum in se and those which are merely malum prohibitum. In certain cases, reme- dies are afforded to one of the parties in the latter class of contracts'. Id. 44. Recovery back of money received for alleged illegal purpose. Where, in a suit to recoyer money in the hands of de- fendant, it appeared that he had been employed as an attorney, and furnished with money to purchase school land warrants, and therewith to procure title to certain lieu lands, and that at his advice some of the certificates of pur- chase were taken in the names of third persons, and assigned to plaintiff, and defendant set up in defense that (the taking of the certificates in that way being contrary to law) the money was paid to and received by him for an illegal purpose, and could not be recovered back : held, that the icontract under which the money was received was not unlawful, and that though the purchase of the certificates referred to might have been illegal, yet, it appearing that he had been fully credited with all moneys paid for them, his defense could not avail him. White v. Lyons, 42 Cal. 279. See Wagers. V. ENTIRETY OF CONTRACT. 45. When contract entire. A contract void in part and of such a nature that the good cannot be separated from the bad, and the part which is good enforced, is an entire contract, and void. Prost v. More, 40 Cal. 347. 58 CONTRACTS. 46. Void in part is void in toto. If a part of an entire contract is void under the Statute of Frauds, it is void in toto. Fuller v. Beed, 38 Oal. 99. 47. When severable. The question whether a contract is entire or separable, can only be solved by considering both the language and the subject matter of the contract. Moore v. Bonnet, 40 Cal. 251. 48. A contract will generally be held to be severable when the price is expressly ap- portioned by the contract, or the apportion- ment may be implied by law to each item to be performed. Id. See Ante, 30. 49. When contract is entire and not severable. If a contractor agrees with a rail- road company to grade a section of its road, and do all work necessary to make the road ready for the cross-ties and iron equipments, and to receive a fixed sum for the work, to be paid from time to time as the work progresses, at the prices fixed and estimates of work done, made by an engineer, the contract is entire, and the provision for payments from time to time as the work progresses does not make it severable. Cox r. W. P. B. B. Co., 44 Cal. 18. VI. CONSTBUCTION OF CONTBACT. 1. In general. 50. By intention of parties. The object of construction of a contract is to ascertain the intention of the parties in entering into it. Beedy v. Smith, 42 Cal. 245. 51. By relation of parties. In constru- ing a doubtful contract, the Court will ascer- tain the relation of the contracting parties to each other, and to the subject-matter of the contract, and if possible, so construe the instru- ment, however inartificially drawn, as to give effect to the intention of the parties, if it can be done without disregarding the language of the instrument. Thompson v. McKay, 41 Cal. 221. 52. Doubtful contract. G owned a lot twenty feet front, and made a verbal agreement with M that the latter should buy an adjoining strip five feet wide, and the two should erect a two-story brick building on the twenty-five feet, and G should own the first story and M , the second. The building was erected, and G by his tenant, entered into possession of the first story, and M, by his tenant, into posses- sion of the second. Afterwards, G executed to M a writing, in which he gave up to M ' 'all right and title" "to the second story of the store, part of five feet for an entrance for the use of a passage up stairs, and as they are now in use and occupied," etc. Held, that the in- strument was not void for uncertainty, and that it conveyed to M all the title of G, legal or equitable. Id. 53. "Practicable "does not mean "with- in the range of human means." Where, in an action on a contract to build a dam " in the year 1867, or as soon thereafter as practica- ble," the Court instructed the jury : " If you believe it was practicable, or if, it was within the range of human means to have constructed it, then defendants are liable for not doing so ; the word practicable means that which can be accomplished by human means : " held, error. Beedy v. Smith, 42 Cal. 245. 54. Meaning of stipulation. A contract to do a thing ' ' as soon as practicable, ' ' implies that circumstances may occur which will de- lay the completion of it. The word " practi- cable ' ' cannot be understood with regard to the means at the command of the contractors, for they may be entirely inadequate ; but in ascertaining what was intended, the nature of the contract, the difficulties to be overcome, and the importance to the other party of an early completion of it, are to be considered. Beedy v. Smith, 42 Cal. 245. 55. Latitude allowed in contract. A contract to' deliver about fifty-three thousand pounds of wool does not require the delivery of that exact number of pounds, but the vendor has a reasonable latitude allowed him as to the number of pounds he shall deliver. Polhemus u. Heiman, 45 Cal. 573. See Insurance. 2. Contracts for sale of lands. 56. Construction of. Where H agreed to execute and deliver to G and S a good deed, conveying all the right, title, and inter- est of H in and to one undivided half interest in a certain mill and premises — said deed to be sufficient to convey one undivided half interest in and to said property, free of incumbrance, "upon condition" that G and S should pay to H, in specified installments, the sum of nine thousand and eight hundred dollars, with certain interest, said deed to be executed as soon as said sums are paid : held, first, that the execution of the deed and the payment in full of snid sums were intended to be simultaneous acts, and the covenants for their performance are dependent covenants ; second, that in an action by H against G and S' after all said installments had fallen due, to recover said sums, H could only recover on delivery, or tender of delivery of said deed ; and, third, that the covenant of H to convey would be satisfied by a conveyance or tender thereof of the right, title, and interest which H had in the undivided half of said property at the date of said agreement. Hill v. Grigsby, 35 Cal. 656. ■r 57. Contracts to convey on payment of purchase price: In a contract for the sale of real estate, where the purchaser covenants to pay the purchase money, and the vendor covenants to convey the premises at the time CONTRACTS. 59 of payment, or upon the time of the payment of 'the money, or as soon as it is paid, the cov- enants are mutual and dependent, and neither can sue without showing a performance, or an offer to perform on his part. Performance, or an offer to perform, on the one part, is a con- dition precedent to the right to insist upon a i. performance on the other part. Hillu. Grigsby, 35 Gal. 656. 58. Covenants of, when independent. Where the purchase money is payable in in- stallments, and the conveyance is to he execut- ed on the last day of payment, or on the pay- ment of the whole price, or at any previous day, the covenants to pay the installments falling' due before the time for the execution of the conveyance are independent covenants, and suit may be brought thereon without con- veying or offering to convey. Id . 59. When dependent. The covenants to pay the installments falling due on or after the day appointed for the conveyance are de- pendent covenants ; and the vendor, in his suit to recover the same, whether he sues for those alone, or joins installments that became due before the time, must show a, conveyance or offer to convey. Id. 60. Payment by installments. If a con- tract for the sale of land provides that the pur- chase money shall be paid by installments, and that if the vendee, at any time, fails to meet his payments, he will surrender the possession of the land to the vendor, this does not entitle the vendee to elect whether he will pay the purchase money or surrender the possession of the land. Kourkei;. McLaughlin, 38 Cal. 196. 61. Obligations of parties. The obliga- tions of the parties to an agreement for the sale of land are mutual and dependent, where one is to convey, and the other at the same time to pay the purchase money ; and neither can put the other in default, except by ten- dering a performance on his part, unless the other party waives the tender, or by his con- duct renders it unnecessary. Englander v. Eogers, 41 Cal. 420. 62. Concurrent covenants. A party who agrees to convey land upon payment of the purchase money, cannot recover the pur- chase money due upon the contract until he tenders a deed, if all the installments became due before the action was brought. Bohall v. Diller, 41 Cal. 532. 63. Tender essential. In such a case the complaint must allege a tender of a convey- ance. Id. 64. Where the seller contracts that upon the payment of the purchase money he will execute and deliver to the buyer a deed for the land sold, he cannot maintain an action for the purchase money without first tendering a deed and demanding payment. Kelly v. Mack, 45 Cal. 303. 65. Tender when not essential. If, in a contract for the sale of land the purchase money is to be paid by installments, and a deed is not to be given until the whole price is to be paid, the promises of the vendee are independ- ent, and the vendor may sue upon all of them except the last, without avering a willingness to perform on his part or tendering a deed. Rourke v. McLaughlin, 38 Cal. 196. 66. Time when not of the essence. In a contract for the sale of land which con- tains a covenant that the vendees shall, as a part of the consideration^ discharge and satisfy at its maturity, a mortgage thereafter to be- come due, and which also contains a stipula- tion to the effect, that should the vendees fail < to comply with their part of the agreement, the contract shall be null and void, and the land shall revert to the vendors — time is not of the essence of the contract, and the provision in the contract that the land shall revert to the vendors in case the vendees fail to comply with its provisions, is inserted by way bf penalty, - to induce a prompt performance of the con- tract, and would not ex proprio vigore work a forfeiture for failure to perform strictly in point of time, where the vendees acted in good faith and the vendors were not damaged there- by. Steele v. Branch, 40 Cal. 3. 67. If the contract also contains a covenant that the vendees shall within a specified period, intermediate between the time of making and the time for the final performance of the same, make certain improvements on the land sold, and also a stipulation to the effect that if the vendees fail to comply with their part of the agreement, the contract shall be held null and void, and the land shall revert to the vendors ; should the vendees make default and no steps be taken by the vendors towards a rescission of the contract until after the expiration of the time for its completion, they will be held as having acquiesced in the breach of the condi- tion, and waived the forfeiture if any occurred thereby. Id. 68. Contract with conditions subse- quent. Where W sold to M a tract of land supposed to be a part of a Mexican grant, for two thousand dollars, six hundred of which was paid down, and it was agreed: First, that the remaining fourteen hundred dollars should be paid when the grant should be finally confirmed and patent issued thereon, embrac- ing these lands. Second, that if the title to the land should be rejected, or, if confirmed, not embrace the land sold, M should be ab- solved from further payments. And third, that if the title should be rejected the six hun- dred dollars paid should be refunded : held, • that a confirmation of the grant, with such boundaries as not to include the tract sold, did not entitle M to recover the six hundred dol- lars paid. Mack v. Morrison, 41 Cal. 11. 69. Contract by part owner construed. Where a party who owns but an undivided one half of a tract of land enters into a con- 60 CONTRACTS. tract by which he agrees that upon the pay- ment of the purchase money, he "will convey the -whole of the land to another party, who is induced to regard him as the owner of the entire premises, the vendor is deemed to have sold not only his own interest, in the land, but the whole of the land. Marshall v. Caldwell, 41 Oal. 611. 70. Conditions when waived. A pro- vision in a contract for the sale of land that the purchaser may make enquiry and satisfy himself with its quality, situation and title, and if hot satisfied may rescind the con- tract, is solely for the .purchaser's protection, which he may waive ; and a conveyance taken by him, without such enquiry, is valid and effective. Morenhout v. Barron, 42 Cal. 591. 71. What it includes. A contract to convey a, tract of land to be so surveyed as to include the dwelling house of the party who is to, receive the conveyance, and ' ' also the fields and fenced lands in front of and about-said house," does not by its terms include a " cor- ral ' ' on the land out of which the survey is to be made. Hearst v. Pujol, 44 Cal. 230. 72. Contract to redeed part of land conveyed. When a deed contains a clause that the grantee shall reconvey a portion of the premises to the grantor within one year, to be selected by the grantor, and the grantor then conveys to a third party his interest in the land, the right of the grantor to make the se- lection and to receive the deed is gone, and passes to the purchaser from. him. Hearst v. Pujol, 44 Cal. 230. 73. Estoppel in case of contract to convey land. Where a party contracts to convey to another a specified quantity of land within one, year, to be selected in a .squaxe form' by the person to whom the conveyance is to be made, and the person who is to make the selection fails within the year to do so, and the other then makes the selection and offers to make the conveyance, which offer is neither accepted nor rejected at the time, but the offer is afterwards accepted and a conveyance de- manded, the one who is to make the conveyance cannot object because the selection was not in a square form, or made within one. year, or for any other reason. Hearst v. Pujol, 44 Cal. 230. 74. Performance of mutual contracts. When a contract for the mutual exchange of lands does not contain a provision from which it can be inferred that one conveyance was to ■ precede the other, the law implies that the con- veyances are to be made concurrently, and the mutual covenants of the parties are dependent. Brennan v. Ford, 46 Cal. 7. See Ante, 24 ; Equity, 36 ; Land and Land Titles, 28, 37, 38 ; Lien, 2 ; Powers, 5 ; Princi- pal and Agent, 12, 13; Specific Performance, 5-27 ; Writ of Assistance, 9 ; Trial, 26, 30, 31 ; Pleading, 59, 64, 65, 90, 204. 3. Miscellaneous contracts. 75. To receive and forward freight. By a written agreement, O agreed with P to consign to P, at S, all his freight intended to be transported to N T "during this summer and fall, amounting, it is now supposed, to about one thousand tons, and will, deliver it to him from time to time in such quantities that at least twenty-five per cent, of the whole freight shall be delivered to him during each and every month from the first day of July next. " P agreed with O that he would receive at S, and transport to N T, at a price specified, all the freight that O should consign to him at S before October 31st.. Held, that O was bound by the contract to consign to P, at _S, all his freight, regardless of its quantity, in- tended to be transported to N T during the "summer i*nd fall" specified, and in such proportions as to equal twenty-five per cent, of the whole amount during each month from July to October, both inclusive, Perkins v. OphirS. M. Co., 35 Cal. 11. 76. When not changed by subsequent agreement. Where a contract in writing was duly executed between O, a corporation, . and P, for the transportation of the freight of O, and after part completion of the contract by P, the President and Secretary of O promised P to allow him different and better terms of payment for its completion than the contract terms, but without any authority from O shown therefor, by which promise, however, P was not prejudiced, or induced to vary from a strict fulfillment of the contract : held, that thereby the terms of the contract were not ' affected, and that P, in an action against O for its fulfillment, could not recover except in ac- cordance with its terms. Id. 77. To deliver lumber. Where A con- tracted with B to make for him at his mill two million feet of lumber, and commence before July 20th, 1866, and make from fifty to eighty thousand feet per month, and to deliver on or before January 1st, 1867, at least three hun- dred thousand feet ; and to commence on or before May 20th, 1867, and deliver from eighty to one hundred and fifty thousand feet per month, until one half of what is not delivered is sawed and delivered ; and to commence on or before May 20th, 1868, and saw and deliver at least eighty and not to exceed one hundred and fifty thousand feet per month, until the two million feet were delivered : held, that the true construction of the contract is, to deliver three hundred thousand feet before January 1st, 1867, at the rate of not less than fifty thousand feet per month ; and to deliver not less than eighty thousand feet per month, commencing May 20th, 1867, and continuing until one half of the two million feet undeliv- ered is delivered ; and to further deliver at least eighty thousand feet per month, commenc- ing May 20th, 1868, until all is delivered. Hale v. Trout, 35 Cal. 229. CONTRACTS. 61 78. To what covenant applies. A cove- nant not to run or employ, or suffer to be run or employed, a steamboat upon any of the routes of travel on the rivers, bays, or waters of the State of California for the period of ten years, applies not only to existing routes of travel, but to all new routes opened during the ten years. Wright v. Ryder, 36 Oal. 342. 79. Reconveyance of property. If the grantee of land agrees by parol with the grantor that he may keep the land and work it one year, and at the end of the year make his election whether he will keep it and pay the purchase money or restore it to the grantor, the grantee is in time to avoid payment of the purchase money if on the first day after the end of the year he notifies the grantor of his election, and tenders him or his agent a deed of the property. Rhine v. Ellen, 36 Cal. 362. 80. To pay for goods furnished an- other. S contracted in writing with W to run a tunnel towards a quartz ledge, and agreed that if W could not reach the ledge he would pay W the expense he incurred for pro- visions. S then told V that if he would fur- nish W with provisions he would pay for them if W did not reach the ledge : held, that S was liable to V for provisions thus furnished to W. VanDusen v. Star Quartz M. Co., 36 Cal. 571. 81. Liability on contract to find pur- chaser of land. A contract between P and H, by which P agrees that if H will find a purchaser of P's land at a certain price, P will sell to the purchaser at such price, and that H may have for his services all that the pur- chaser will pay over such price, is a mere con- tract of employment ; and if H finds the pur- chaser, and P refuses to sell,. H may recover from P for his services what the purchaser was willing to pay over the price. Heyn v. Phil- lips, 37 Cal. 529. 82. P employed B & E, who were brokers, to find a 'purchaser of certain lands, and promised if they .would find, within a month from that date, a purchaser able and willing to buy, at a certain figure, he would pay them a, certain sum. B & R found a purchaser within the month, but before they found him P had revoked their agency. In an action by B & R against P, for their commission's, held, that they could not recover. Brown v. Pforr, 38 Cal. 550. See Action, 37. 83. Interest on-money advanced on a contract. In a contract between two parties, in which it is conditioned that one shall ad- vance the necessary funds in the execution of the contract, and the other his services, skill and experience, and that each shall receive an equal portion of the profits, the party ad- vancing the money is not entitled to interest on the same in the absence of any agreement that he should receive interest. Ferrell v. Jones, 39 Cal. 655. 84. Subscription. — Several obligation. An agreement by a number of persons, which states that the undersigned " will pay the sum annexed to their names," in order to make up an aggregate sum to be paid to another party, in consideration of services to be rendered, creates a several and not a joint obligation. Moss v. Wilson, 40 Cal. 159. 85. Allowance of extension for pay- ment. In a contract for the papnent of money at different periods of time, with an extension of time, if needed, for the payment of an installment, the extension is a privilege of which, if the party entitled to it desires to . ' avail himself, he must notify the other party, on or before the day upon which the install- ment becomes due, that he needs the extension'. Bohall v. Diller, 41 Cal. 532. 86. Building contract. In a, contract for the erection of a building, where there was a clause providing that the payment should be made in installments upon the certificate of the architect that the materials and labor had been furnished in accordance with the plans and specifications : held, that the clause as to the production of the certificate was for the benefit of the owners of the building, and that they might waive it at their option and accept other pro.ofs of the required fact. Blethen v. Blake, 44 Cal. 117. See Mechanics' Lien, 30. 87. Contract fixing two compensa- tions for work done. Where a contract for keeping and feeding cattle provided two sepa- rate compensations for the labor and expense of the party keeping and feeding them, and there was nothing in the contract to show that either was to be received in lieu of the other : held, that the compensations were cumulative and the party keeping is entitled to both. Brady v. Wilcoxson, 44 Cal. 239. 88. When, in such contract the owners of the cattle reserved the right to sell the same at any time and upon their own terms, and if sold away from the place of keeping, the par- ties keeping were to pay two thirds of the ex- pense of driving and sale, and the net weight of the cattle was agreed upon at the date of the contract, and the compensation for keeping and feeding was eight cents per pound on the net increase in the weight at the time of sale, and two-thirds of the increase in the price the cat- tle should be sold for over eight cents per pound on the agreed net weight at the date of the contract : held, that the, weight and price of the cattle driven away and sold were to be estimated at the place of sale, and not at the place of keeping, and that a provision in said contract that the cattle when sold or delivered were to be weighed out of the corral of the party keeping, applied only to such of the cat- tle as might be there sold. Id. 89. Ratification by husband of con- tracts by wife. The husband ratifies and adopts the act of his wife, who borrows money to purchase' a lot of ground — taking the deed 62 CONTRACTS. in her own name— by using and occupying the ground, by selling a portion of it and apply- ing the proceeds to his own use ; and is respon- sible for the repayment of the money so borrowed. Althof v. Oonheim, 38 Oal. 230. 90. Ratification of contract. If one party sells to two others a tract of land, and a sum of money is paid down, and the negotia- tion on the part of the grantees is conducted principally by one of them, and he, when the money is paid and the deed delivered, agrees to pay the grantor a further sum out of the first money received from the sale of. the land, and a contract between the three is drawn up to that effect, but is signed only by the grantor and the grantee who makes it, and the other grantee is ignorant of it, he is not bound by it, and the fact that he received the deed and entered into possession of the land and after- wards sold it, does not amount on his part to a ratification of it. Price v. Sturgis, 44 Cal. 591. See Mechanics' Lien, 6, 7, 9, ,13 ; Mortgage, 17; Partition, 6; Partnership, 5, 7, 29; Streets and Street Assessments, 44-57, 74. VII. PERFORMANCE OF. 91. Time of performing an agree- ment. ' When the terms of an agreement do not limit the time within which it is to be performed, the law implies that it is to be performed immediately, or, at most, within a reasonable time. Brennan v. Ford, 46 Cal. 7. 92. Time may be waived. The time for the performance of a simple contract in writing may be waived, or extended, by a subsequent oral agreement. Waugenheim v. Graham, 39 Cal. 169. 93. Execution of deed in pursuance of contract to sell land. Where the owner of a Mexican grant, in California, in 1847, c'outracted to sell it for a certain price, if the" purchaser should, after inquiry, be sat- isfied with the title, and pay the price, and after more than half the price was advanced, the vendor executed and the purchaser re- ceived a deed, in the Mexican form, in which the contract was set forth as a part thereof : held, that by the execution of the deed, all the purposes of the contract were accom- plished, and that the provision that it should be attached to the deed amounted to no more than a recital, and did not have the effect of keeping it on foot as a subsisting contract. Morenhout v. Barron, 42 Cal. 591. 94. Procurement of patent. An agree- ment to procure the title of the United States to land, and then execute a deed to the other contracting party, is complied with by pro- curing a patent of the United States to the other party. Snow v. Ferrea, 45 Cal. 195. 95. Contract to deliver goods. In action upon a contract to deliver spirits in good packages, where the only issue is, whether the packages were good, an instruction to the jury that if the plaintiff had substantially complied with the contract he was entitled to a verdict, but that if the packages containing the spirits were not good, it was not such a substantial compliance with the contract as to entitle the plaintiff to recover, is not erro- neous. Voorman v. Voight, 46 Cal. 392. See Ante, 74. VIII. BREACH OF. 1. Remedy for. 96. Suit for. A and B enter into a con- tract, by which A is to manufacture for B a given amount of lumber by a given time, for which B is to pay a fixed price per thousand, payable, at the end of each month, and B, without fault on A's part, refuses to pay for lumber sawed and received, and to receive any more lumber, and declares the contract at an end : held, that A may treat the contract as wholly broken byB, and sue to recover the contract price for the lumber delivered, and upon the breach to recover the entire dam- ages resulting from the breach of the con- tract, without waiting for the time of per- formance to elapse. Hale v. Trout, 35 Cal. 229. 97. What not a breach. If one con- tracts to make merchantable lumber, for another, and the other takes away unmer- chantable lumber, contrary to the wish and orders of the maker, this is not a breach of the contract on the part of the manufacturer. Id. 98. Of a company. If lumber is fur- nished a ditch company under the agreement that it is to be paid out of the proceeds of the ditch of the company, and the proceeds have all been faithfully applied in payment, ac- cording to the agreement, the person who furnishes it is not entitled to recover the defic- iency against the members of the company. McConnell v. Denver, 35 Cal. 365. 99. Contract to form a partnership. — Remedy for breach. Where two persons made an agreement to form a partnership, but such partnership was never launched., and one of the parties proceeded to conduct the enter-, prise in his own name, at his own cost, and for his own exclusive benefit, excluding the other, and repudiating the partnership agreement: held, that an action by the latter to establish his right as a partner, and for an accounting, would not lie — his only remedy in such case being an action at law for breach of contract. Powell v. Maguire, 43 Cal. n. 100. Party first violating contract can- not complain. The purchaser of the good-will and franchise of a ferry, who agrees to pay a cer- tain price for the same, must fulfill hiscontract and pay the money, before he can be heard to complain that the seller has re-established the ferry. Johnson i>. Moss, 45 Cal. 515. CONTRACTS. 63 See Common Carrier, 2 ; Limitations, 26 ; Specific Performance, 31 ; Pleading, 48, 202. 2. Measure of damages. 101. For violation of contract. If a contract, in writing, provides that either party shall forfeit to the other five hundred dollars for a failure to comply with its terms, and that such sum shall be considered as liquidated damages, the damages are limited to five hun- dred dollars. Lightner v. Menzell, 35 Cal. 452. 102. For conveyance of land. In. an action for a breach of a valid contract for the conveyance of land, the measure of damages. would be the value of the land agreed to be .conveyed. But, for the recovery of money paid, or for services rendered upon a void con- tract for the conveyance of land, the measure of plaintiff's relief is the amount of the money paid and interest, or the value of the services rendered ;. and, in such a case, evidence of the value of the land is inadmissible. Fuller v. Reed, 38 Cal. 99. 103. For willful breach. Mere nominal damages do not belong to a case where there is a willful breach of a covenant to convey land, especially where the land has considerably ap- preciated in value since the making of the con- tract. Morgan v. Stearns, 40 Cal. 434. 104. Damages under contract distin- guished from damages for breach. Where a contract for building a dam, and guarantee- ing it to stand for five years after completion, and the payment of installments therefor as the work progressed, provided that if within the five years it washed away it was to be re- built, or the installments, or a proportional part thereof, according to the time the dam stood, should be refunded ; held, that the rule of damages laid down by the contract had ref- erence solely to the guarantee, and that dam- ages for failure to build at all must be ascer- tained by the ordinary rules. Reedy v. Smith, 42 Cal. 245. 105. Contract to furnish freight. Where a contract was made to furnish a steam- boat with five hundred tons of freight, at two dollars a ton, and the freight was not furnish- ed : held, that the measure of damages for such breach was not the difference between the freight money and what the boat actually earned during the time it would have taken to perform the contract, but the difference be- tween the net profits that would have been made under the contract and the net profits which were or might, with reasonable dili- gence, have been made during such time. lit- er v. Chapman, 43 Cal. 279. 106. For failure to deliver freight. A person who contracts to deliver freight to a steamboat, and fails to do so, is liable in dam- ages for the actual loss thereby sustained by the steamboat ; ' but he does not become a guarantor against any further loss, such as the boat may sustain by reason of fruitless efforts to. procure profitable employment. Id. 107. Burden of proof to reduce dam- ages. In an action for breach of contract to furnish freight to a steamboat, the plaintiff is entitled to recover only the actual loss suf- fered from the breach ; but to show that such loss was less than the profits that would have been made under the contract, the burden of proof is on the defendant. Id. See Damages, 24-32. IX. RESCISSION OP. 108. For fraud and inadequacy of con- sideration. In such case, after the foreclosure of the mortgage to H, and the sale 'of the property thereunder' to R, and whilst it was subject to redemption, the wife, by her quit- claim deed, conveyed all her interest in it to S for an inadequate consideration, and immedi- ately thereafter S conveyed it to C, who fur- nished the money which was paid to the wife : held, that at the date of her deed the wife had sufficient notice of the prior transactions to put her upon inquiry, and is not entitled tP rescind the contract of sale. Perkins v. Cen- ter, 35 Cal. 713. 109. Contract against public policy cannot be rescinded. There can be no re- scission of a contract agakist public policy. Such contract is void at its inception, and there is nothing to rescind. Martin v. Wade, 37 Cal. 168. 110. For misrepresentation. A misrep- resentation of the value of a business and good will knowingly made by the vendors — the purchaser being ignorant of the true value — is fraudulent, and entitles the pur- chaser to a rescission of the whole contract, when it is an entire contract, and the fraud af- fects a material part of the consideration. Creuss v. ITessler, 39 Cal. 336. 111. Offer to refund. A party to a con- tract cannot have it rescinded, without a pre- vious offer to refund the money received on ac- count of the contract. Morrison v. Lods, 39 Cal. 381. 112. False representation. A false representation by a party to a contract, will not entitle the other party to rescind or avoid the contract, unless he show, in addition, that he would be damaged by its performance. Id. See Ante, 16, 17. 113. Mutual mistake. If the plaintiff supposes he is selling a different tract of land from that conveyed, and defendants think they are purchasing the tract actually conveyed, there was a mutual mistake as to the subject matter of the contract, in which case there is in fact no contract of sale. Barfield v. Price, 40 Cal. 535. 114. Remedy. In case of a mutual mis- take as to the subject matter of a contract, the 64 CONTRIBUTORY NEGLIGENCE.— CONVEYANCES. remedy for the aggrieved party is an entire re- scission of the contract. Id. 115. Diligence required. To enable a party to maintain an action to rescind or re- form a contract, reasonable diligence must be used in pursuing the remedy. Id. 116. 'When party entitled to a rescission. A party to a contract is not entitled to a judgment rescinding the same, on the ground of fraudulent representations, unless he has been injured by reason of his reliance on such representations. Purdy v. Bullard, 41 Cal. 444. 117. Rescinding part of a contract. Where a contract is not severable, and there are good grounds for its rescission, one party is not at liberty to rescind one part of it, and leave the residue in full force. P proposed to sell to B ahotel, and to effect the sale, P deeded the property to C, who paid him part of the purchase money, and C contracted with B to give him 'a deed when he was repaid the money thus advanced. B then gave P security for the remainder of the purchase money, and assigned his contract with C to S. Held, that the whole matter constituted one entire con- tract. Purdy v. Bullard, 41 Gal. 444. 118. Must be entire. The rescission of a contract, to be effectual, must be a rescission in toto.. Bohall v. Diller, 41 Cal, 532. 119. Right to rescind. In the case stated, upon a discovery by the vendee that the plain- tiff held only the undivided half of the land, he is entitled to proceed at once to rescind the contract ; or he may proceed to have the con- tract specifically enforced to the extent of the plaintiff's interest in the land. Marshall v. Cajdwell, 41 Cal. 611. 120. Vendor and vendee. When a veindee has so failed to perform the contract, that the vendor may elect to treat the contract as rescinded : it is incumbent upon the vendor, in order to work that result, to restore to the . vendee whatever he has paid, on the contract. Bohall v. Diller, 41 Cal. 532. See Equity, 25 ; Eraud, 17 ; Mortgage, 54, 55 ; Pleading, 84. CONTRIBUTORY NEGLIGENCE. See Negligence. CONVERSION. 1. Trover for personal property mort- gaged. In case of a chattel mortgage, the mortgagee could formerly maintain trover against the mortgagor for a refusal to deliver or a conversion of the chattel, but the mort- gagor eould not maintain trover against the mortgagee for refusing to deliver or selling the mortgaged property, unless the mortgage' has been paid or a tender has been made before condition broken. Heyland v. Badger, 35 Cal. 404. 2. Trover depends on title. The ad Ion of trover depends on legal title, general or special, to support it, and the mortgagor, as against the mortgagee, has no title. Id. 3. Right of owner to recover specific property. The owner of personal property which has been wrongfully converted is ordi- narily entitled to recover his specific property, or its value, and cannot be compelled to accept other property of the same kind and equal value in lieu of that which was converted. Atkins v. Gamble, 42 Cal. 86. . 4. Shares of stock in a corporation stand upon a different footing, because they are mere evidence of interest in the business of the cor- poration ; and, if all the shares are of equal value, there can be no reason for preferring one share to another. Id. See Common Carrier, 14; Equity, 50 ; Tort, I. CONVEYANCES. I. II. Registry of. Execution of. I. REGISTRY. 1. Act concerning conveyances. The twenty-sixth section of the Act of April 30th, 1850, requires conveyances made before its pas- sage to be recorded. Graff v. Middleton, 43 Cal. 341. 2. Prior deed to be first recorded. Un- der section forty-one of the Act concerning Con- veyances, a deed made prior to the passage of the Act, whether before the passage of the Act it was acknowledged or proved or not, must be first recorded, in order to have priority over a subsequent deed from the same vendor to a . bona fide purchaser for value without notice. Anderson v. Eisk, 36 Cal. 625. 3. Notice of prior deed. When a pur- chase of land is negotiated and made through an agent, notice to the agent of a prior unre- corded deed, made by the grantor, is notice to the principal. Mahoney v. Middleton, 41 Cal. 41. 4. Priority of conveyances and of re- cording deeds. A conveyance to one who has notice of a prior unrecorded deed, given by his grantor to a third person, passes no title to the grantee, and an innocent purchaser from such grantee does not acquire any title, except through the Registry Act, in getting his deed recorded before the record of such prior deed. Id. * 5. Filing of deed for record. If after a deed is filed for recc"!d, but before it is re- corded, it is withdrawn from the Recorder's office by the grantee, and kept away from the CONVEYANCES. 65 said office some time and then returned' for rec- ord—during the, time the deed is away from the office the law making the filing of a deed for record notice to subsequent purchasers is suspended. Lawton v. Gordon, 37 Cal. 202. 6. Notice of prior deed. If a person, . . when about to purchase property, is told by the Recorder that the seller has already given a deed of the property to another person, which was filed for record, but had been taken away before being recorded, this information is suf- ficient to put him on inquiry ; and it is not necessary that such information should come from a person interested in the property in or- der to constitute notice of an adverse title to the property. Id. 7. Evidence of cancellation of Jdeed. Testimony is not admissible to show that a deed was withdrawn from the Recorder's of- fice before it was recorded, for the purpose of * being cancelled, to revest the title in the grantor. Id. 8. Possession as notice. The possession of the owner, or his tenant, is sufficient to put a person dealing with the property upon in- quiry; and the law will charge him with notice of all those facts which he might have ascertained by using .proper diligence. 0'- Rourkeu. O'Connor, 39 Cal. 442. 9. Registry Act. The Registry Act does not make an unrecorded deed void as against subsequent attaching creditors. Plant v. Smythe, 45 Cal. 161. 10. Constructive notice of unrecorded deed to wife. The fact that both husband and wife join in a deed of land, which deed is known to a creditor of the husband claiming the land under the husband by a subsequent Sheriff's sale, is not constructive notice to such creditor that the wife held a prior Unrecorded deed making the land her separate property. Vassaultu. Austin, 36 Cal. 691. 11. Such fact is not sufficient to put the purchaser at the Sheriff's sale on inquiry as to the wife's unrecorded deed. Id. 12. The record of a deed void as to any per- * ' son is not notice to such person of anything ex- cept the existence of such void deed. It is not notice of an unrecorded valid deed. Id. 13. Purchaser -with constructive notice. A purchaser from one who bought with notice of a prior unrecorded deed, given by his grant- or to a third person, has constructive notice of such prior deed, if it "is recorded before the ex- ecution of his conveyance, and he is not a pur- chaser in good faith, although the deed to his grantor may have been recorded before the record of such prior deed. In such case the prior deed will take precedence. Mahoney v. Middleton, 41 Cal. 41. 14. Good faith in purchase of land. When a mother and her children own land in common, a purchaser from the mother in good faith, who buys supposing he has acquired the 5 whole title, does not acquire the title of the children. The title of the children cannot be affected by the good faith of a purchaser from the mother. McLaren v. Benton^ 43 Cal. 468. 15. Purchaser for valuable considera- tion under Registry Act. A mortgagee, in a mortgage given to secure a pre-existing debt, is a purchaser for a valuable consideration within the meaning of that clause in the Act concerning Conveyances, which provides that every conveyance of real estate which shall not have been recorded shall be void as against any subsequent purchaser in good faith and for a valuable consideration, whose convey- ance shall have been first duly recorded. Frey v. Clifford, 44 Cal. 335. See Mortgages, 13-15. n. EXECUTION OE. 16. Name of grantor. If the true owner conveys property by any name, the convey- ance, as between the grantor and grantee, will transfer the title. Eallon v. Kehoe, 38 Cal. 44- 17. The execution of a conveyance of land by the owner, in hiB rightful name, though different from that in which he acquired it, when duly recorded, will operate as construct- ive notice of the sale and transfer of the title, and will take precedence of a subsequently re- corded deed to the same land, executed in the; name by which it was acquired. Id. 18. Name of grantee in conveyance. It is sufficient, in a conveyance, if the grantee is denominated by the customary name at the time of the execution of the instrument — no matter what might be the true name. Gar- wood v. Hastings, 38 Cal. 217. 19. "Purchase" defined. The word "purchase " includes every mode of acquiring an estate, except by inheritance. Green v. Blanchar, 40 Cal. 194. 20. Description in a conveyance. A conveyance of land is not void on its face for uncertainty in the description of the property sold, if, so far as can be seen from the descrip- tion itself, the points named as boundaries may be well known monuments, easily found. Meters v. Earquharson, 46 Cal. 191. 21. The Court must construe convey- ances. If there is evidence tending to show that title to public lands has passed out of the Government, it is a question for the Court and not for the jury, to determine whether the con- veyances were operative to divest the title of the Government and vest it in the party claim- ing it. Whitman v. Steiger, 46 Cal. 256. 22. Courts of equity regard the sub- stance only. If A, for his own benefit and without the knowledge of B, who paid no con- sideration, has a conveyance of land made to B by a. third person, a Court of equity in deal- ing with the transaction at the instance of 66 CONVICTION.— CORPORATIONS. creditors of A, or those churning under him, will treat the land as the property of A, and regard him as the real party in interest. Quivey v. Baker, 37 Cal. 465. 23. Estate conveyed by grant. The word grant is effectual to convey an estate in a corporeal hereditament. It has become a gen- eric term, applicable to the transfer of all classes of real property. S. F. & 0. R. R. Co. v. Oakland, 43 Cal. 502. 24. Conveyance after recovery in eject- ment. If a party, who owns an undivided one seventh in a tract of land, recovers a judg- ment in ejectment for such one seventh, against a tenant in common, and afterwards sells his interest in the tract, his conveyance passes to his grantee only the undivided one seventh which he owned before the commencement of the action. Mahoney v. Middleton, 41 Cal. 41. 25. Mexican law— sale by parol. Un- der the Mexican law in force in 1848, parol sales of real estate, when fully executed, were valid and binding between the parties, and passed the title to the vendee. Cook v. Prink, 44 Cal. 331. 26. The Spanish word " cedo " was the or- dinary word used in Mexican conveyances to pass title to lands. Schmitt v. Griovanari, 43 Cal. 617. • See Mexican Law ; Powers, 2. 27. Conveyance, with conditions. If the owner of land makes an absolute convey- ance of the same, and afterward makes a con- veyance to the grantee or his assign, loaded with conditions, the conditions cannot operate, for there is no estate remaining in the grantor upon which the conditions can take effect. Alemany v. Daly, 36 Cal, 90. 28. Majority of Board may exercise its authority. If an Act of the Legislature authorizes the Board exercising the corporate authority of a city to convey its lands, a major- ity of the members of such Board may make the conveyance. San Diego v. S. D. & L. A. R. R. Co., 44 Cal. 106. 29. Conveyance to wife. Where a con- veyance is made to the husband, or to the wife, after the death of her husband, under a contract of sale made by him in his lifetime, it is competent to the wife, or any one claiming under her, to show, by parol that the consid- eration was paid out of her separate estate. Ingersoll v. Truebody, 40 Cal. 603. 30. A conveyance to the husband, where the consideration is paid out of the separate estate of the wife, constitutes the husband the trustee of the wife, holding the legal title for her use. Id. , See Acknowledgment ; Appeal, 131 ; Attach- ment, 38; Contract, 79; Criminal Law and Prac- tice, 35-37 ; Deed ; Easement, 21 ; Equity, 38 ; Estate in Reversion ; Evidence, 43; Fraud, 9-13; Homestead, 19-21 ; Joint Tenancy ; Judicial Sale, 22 ; Land and Land Titles, 22-25, 3 2 ~36 I Lien, I ; Mines and Mining, 2,6, 8, 25, 26; Mort- gage, 13, 16-21, 55 ; Municipal Corporations, 10-13, 17; Party, 10; Partnership, it, 13; Statute of Frauds, 25 ; Tenants in Common, 1, 9-13 ; Trust and Trustee, 28-35 ; Vendor and Vendee, ,3 ; Water and Water Rights, 19. CONVICTION. See Action, 28 ; Criminal Law and Practice, 322 ; Debtor, 1, 2. CORONERS. 1. Judicial functions. A' Coroner hold- ing an inquest is in the performance of func- tions judicial in their character. People v. Devine, 44 Cal. 452. I. II. in. IV. V. VI. vn. VEIL IX. X. XI. XII. xin. CORPORATIONS. Formation op. Statutes construed. Evidence of existence. Right to act. 1. In general. 2. Acts ultra vires. Powers of. Title to corporate property. Liabilities of, 1 . Debts. 2. For injuries caused by negli gence. 3. For acts of its agents. Capital stock, dividends. Stockholders. 1. Sights of. 2. Liabilities. 3. Bound by acts of trustee- , Officers of. 1. In general- 2. Liabilities of. Dissolution. Railroad corporations. I. FORMATION OF. 1. Compliance 'with Corporation Act." An attempt to comply with the statute con- cerning corporations, and a substantial com- pliance with its provisions, renders a company claiming in good faith to be a corporation, a corporation de jure. O. & V. R. R. Co. v. Plumas Co., 37 Cal. 354. 2. Creating corporations. A corpora- tion not a municipal one cannot be created by CORPORATIONS. an act of the Legislature recognizing its ex- istence. Such corporations can only be created by general laws. Id. 3. Different kinds of corporations. There are three classes of corporations, to •wit : public municipal corporations, the ob- ject of which is to promote the public inter- est ; corporations technically private, but of a quasi public character, having in view some public enterprise in which the public interests are involved, such as railroad, turnpike and canal companies ; and corporations strictly private. Miners' Ditch Co. v. Zellerbach, 37 Cal. 543. See Partnership, 8. H. STATUTES CONCERNING, CON- STRUED. 4. Act of 1850, concerning Corpora- tions. The Act of 1850, concerning Corpora- tions, has no application to corporations formed under the Act of 1853, for " manufacturing, mining, mechanical, or chemical purposes, or for the purpose of engaging in any species of trade or commerce.'-' The Act of 1853 repealed the Act of 1850, so far as these classes of cor- porations are concerned. Larrabee v. Baldwin, 35 Cal. 155. 5. Correction. There is a typographical error in the Statutes of 1851, page 443, Section 31. vAs printed, said section repeals the Act of April 22d, 1850, concerning railroad corpora- tions. The enrolled Act only repeals the third Chapter of said Act of April 22d, 1850. Brews- ter v. Hartley, 37 Cal. 15. 6. Municipal corporations. A Legis- lative Act by which a city is incorporated, is a public Apt of which courts are bound to take judicial notice. People v. Potter, 35 Cal. no. » 7. Denial of incorporation. The pro- » viso to the sixth section of the general Incor- poration Act, concerning a collateral inquiry into the existence of a corporation, does not preclude a private person, in an action brought against him by a corporation, from denying the existence de jure or de facto of an alleged corporation. O. & V. P. R. Co. v. Plumas Co., 37 Cal. 354. See Post, 26. 8. The effect of the Statute of 1862, pro- viding that the due incorporation of a compa- ny claiming in good faith to be a corporation under the laws of this State shall not be ques- tioned in a private suit, is not limited to cor- porations existing at the time of its passage, but extends also to corporations since created. Pacific Bank v. De Ko, 37 Cal. 538. 9. Purview of statute. The case of Har- ris v. McGregor, 29 Cal. 124, as to whether cor- porations formed after the passage of the stat- ute are within its purview, commented on and explained. Pacific Bank v. De Ro, 37 Cal. 538. 10. Name of a corporation. The pow- er of the Legislature to change the name of a corporation by special statute, in view of the constitutional provision that "corporations may be formed under general laws, but shall not be created by special Act, except for muni- cipal purposes," considered, but not decided. Id. 11. Jurisdiction of actions for forfeit- ures against. The District Court has no ju- risdiction of an action to recover a forfeiture or penalty upon a railroad company for charg- ing a passenger an excess of fare, as prescribed in the Act " concerning street railroads in this State," (Stats. 1863, p. 296). Peed v. The Omnibus Railroad Company, 33 Cal. 212, af- , firmed. Smith v. Omnibus R. R. Co., 36 Cal. 281. 12. Payment of " ten per cent." a con- dition precedent to incorporation of rail- road company. The provision of Section 1 of the Act for the incorporation of railroad companies, (Stats. 1861, p. 607) requiring pay- ment of ten per cent, of the amount subscribed in cash, is not merely directory ; it is a con- dition precedent, without which the sub- scribers to a company have no power to in- corporate. People v. Chambers, 42 Cal. 201. \ in. EVIDENCE OF EXISTENCE. m i. Generally. 13. Certificates of incorporation. De- fects in certificates of incorporation are cured by the Act of April 1st, 1864. Larrabee v. Baldwin, 35 Cal. 155. 14. Compliance with statute. In mak- ing a certificate of incorporation and the affi- davit attached thereto, a substantial compli- ance with the statute is all that is required. A literal compliance with the statute in such cases is never required. People v. S. & V. K. K. Co., 45 Cal. 306. 15. Proof of incorporation. Proof of the company name raises no presumption that it is an incorporated company ; nor if the word " California " occurs in the name, does it raise a presumption that it was incorporated under the laws of this State. Briggs v. McCullough, 36 Cal. 542. 16. Proof that company is a corpora- tion. When the right to act as a corporation is denied, the company claiming to be such must show that it claims in good faith to be a corporation under the laws of this State, and is doing business as such corporation. O. & V. P. R. Co. v. Plumas Co., 37 Cal. 354. 17. The mere allegation in a pleading that a party is a corporation does not put its exist- ence as a corporation beyond the reach of in- quiry. Id. 18. Estoppel. The trustees of a corpora- tion who signed the certificate of incorpora- CORPORATIONS. tion, and accepted the office of trustees, are estopped from denying the validity of the act of incorporation. Parrott v. Byers, 40 Cal. 614. 19. Commencement of transactions. Question discussed as to what is the Commence- ment of the transaction of corporate business within one year from the time of filing cer- tificate. People v. S. & V. E. R. B. Co., 45 Cal. 306. See Criminal Law and Praotice, 175. 2. Plank and turnpike road companies. 20. Flank and turnpike road com- panies. Although the Act for the formation of plank and turnpike road companies denomi- nates companies which may be formed under its provisions "joint stock companies," still the powers, rights, and liabilities of these companies, as provided for in the Act, show that they are corporations. Blanchard v. Kaull, 44 Cal. 440. 21. Corporation de facto. If a plank and turnpike road company effects a prelimi- nary organization and adopts a code of by- laws, and in good faith thereafter acts as a corporation, it becomes a corporation de facto, although a final organization is not effected. S. & L. G. R. Co. v. S. &C. R. R. Co., 45 Cal. 680. 22. Trespass on property of corpora- tion de facto. If a corporation de facto is in the actual possession of a public highway, under a grant of a franchise to improve and collect tolls on the same, a mere trespasser cannot justify his entry thereon on the ground that it was only a corporation de facto, and was not de jure entitled to the franchise. Id. 24. A mere intruder upon the property of a corporation de facto cannot inquire into its right as a corporation to hold such property. Id. XV. RIGHT TO ACT." 1. In general. 24. Special franchise. The fact that a party is a corporation in the exercise of corpo- rate powers, does not tend to establish its right to a special franchise. Schierhold v. North Beach & M. E. R Co., 40 Cal. 447. 25. Strangers dealing with corpora- tion. The rights of strangers dealing with a corporation may vary according as they are considered with reference to the corporation itself, its creditors, or the stockholders of the corporation. Miner's Ditch Company v. Zel- lerbach, 37 Cal. 543. 26. Corporate franchise cannot be questioned in a private action. In an ac- tion upon a promissory note by a de facto cor- poration against an indorser, the latter, in view of the Statute of 1862, (Stats., 1862, p. no) cannot put the due incorporation of the plain- tiff, or its right to exercise corporate powers, in issue, if the plaintiff claims in good faith 'to be a corporation under the laws of this State, and to be doing business as such. Pacific Bank v. DeRo, 37 Cal. 538. See Ante, 7, 8, 9 ; Qno Warranto, 1. 2* Acts ultra vires. 27. When corporation may repudiate its contract. In a contract between a corpo- ration and strangers dealing with it, when the act in question is one which the corporation has no power to perform under any circumstances, the corporation may avail itself of the defense of ultra vires ; but when the act may be per- > formed by the corporation for some purposes hut not for others, the defense of ultra vires may or may not be available. If a stranger deal- ing with the corporation knew of its intention to perform the act for an unauthorized purpose, the defense is available, otherwise not. Mi- ners' Ditch Co. a. Zellerbach, 37 Cal. 543. 28. When acts of corporation are ultra vires. The term ultra vires, when used in reference to corporations, is employed in different senses. An act is said to be ultra vires when it is not in the power of the corpo- ration to perform it under any circumstances ; and an act is also said to be ultra vires with reference to the rights of certain parties, when the corporation cannot perform it without their consent ; and it may also be ultra vires with reference to some specific purpose, when the corporation cannot perform it for that pur- pose. Id. 29. When the act of the corporation is ultra vires in the first sense mentioned, it is void in toto, and the corporation may avail itself of the plea ; but when it is ultra vires in the sec- ond and third senses, the right of the corpora- tion to avail itself of the plea will depend upon ■ the circumstances of the case. Id. 30. Illegal sale of corporation property. Conceding it to he unlawful for a corporation to make a sale of all its property to another corporation, and receive in payment therefor the stock of the grantee to be distributed among its own stockholders, yet, if such sale is made, and the contract fully executed, the corporation itself cannot recover back the prop- ^ '1 erty sold, or set aside the contract on account of its illegality. Id. 31. Right of corporation to contest its own sale. Where a corporation sells and conveys all its property for an illegal pur- pose, thecontract being fully executed on Doth sides, and the property is afterward purohased by a stranger with knowledge of that fact, in an action against such stranger to recover the . 1 property the corporation cannot avail itself of the invalidity of the transaction to defeat the conveyance. Id. CORPORATIONS. 69 32. If the corporation contests the validity of such sale on the ground that it was made for an unlawful purpose, it devolves upon it to show that the party making the purchase knew of such unlawful purpose. Id. 33. It devolves upon the party contesting the validity of such deed to overthow the pre- sumption that it was regularly and duly exe- cuted. Id. 34. Incorporation invalid. Where Bol- inger and Chambers, the chief subscribers of the ' ' Oroville and Virginia City Railroad Company," paid in the ten per cent, of their subscriptions required by law to be paid in cash, in a check drawn by Bolinger on the Bank of California, and it appeared that Bolinger had no funds there, but that the check would have been paid if presented ; held, that such payment was not a payment in cash, as required by law, and that the incorporation, under such circumstances, was invalid, and should be so declared on quo warranto. Beo- ple v. Chambers, 42 Cal. 201. V. BOWERS OF. 35. Corporate authority a trust. The corporate authority is considered to have been conferred by the stockholders, upon the trust and confidence that it will be exerted with the view to advance the interest of the stock- holders, and not used with a purpose to injure or destroy that interest. Wright v. Oroville M. Co., 40 Cal. 20. 36. Exercise of power by corporation. Where the statute makes provision concerning the exercise of a power by a corporation, the corporation cannot by its by-laws, resolutions or contracts change the mode of the exercise of that power, or the persons by whom to be exercised. Brewster v. Hartley, 37 Cal. 15. 37. Corporation may sell its property. A corporation organized for. the purpose of owning ditches for the conveyance and sale of water, possesses the power of selling and convey- ing all its corporate property, provided the sale is made for corporate or lawful purposes, and strangers taking a conveyance have a right to assume, as against the corporation, that the sale was for a lawful purpose. Miner's Ditch Co. v. Zellerbach, 37 Cal. 543. 38. Such sale may be made to any person, natural or artificial, capable of taking, and the stockholders of one or more corporations may form themselves into a new corporation, and the property of one or both of the old cor- porations may be conveyed to the new corpora- tion. Id. 39. Power of corporations over cor- porate property. All corporations capable of taking and holding property have the jus disponendi as fully as natural, persons, except so far as they are restrained by statute. Beo- ple v. B. and T. C. of C, 38 Cal. 166. 40. Under this general power, a corporation may dispose of the whole of its property for any lawful purpose. Id. 41. Restriction as to powers of. A corporation can exercise no other powers than such as are specifically granted, or such .as are necessary for carrying into effect the powers f ranted. Vandall v. S. S. F. Dock Co., 40 Cal. 3- 42. In determining whether a given act is within the power of a corporation it is neces- sary to consider : first, whether it falls within the powers expressly enumerated in the cer- tificate ; of, second, whether it is necessary to the exercise of one of the enumerated powers. Id. 43. Where a corporation is formed "to buy, improve, lease, sell and otherwise dispose of real estate,'" etc., the term " improve " in- cludes the performance of any act, whether on or off the land, the direct and proximate ten- dency of which is to benefit the property or enhance its value. Id. 44. No infallible rule can be laid down de- fining accurately the point at which the bene- fit to be derived from a proposed work would cease to be direct and proximate, but each case must be determined on its own circumstances. Id. 45. A corporation formed for such purposes, and owning lands in the vicinity of a railroad, may properly appropriate a portion of its funds "to such railroad for the purpose of increasing the facilities and lessening the cost of trans- portation on the same, where the direct and proximate tendency of such increase of facili- ties is to enhance the value of its lands. Id. VI. TITLE TO COBBORATE FBOBERTY. 46. Title to property. The legal title to the property of a mining corporation is vest- ed in the corporation and not in the stockhold- ers as such. Wright v. Oroville M. Co., 40 Cal. 20.. 47. Alienation of property. Corporate' acts, by which corporate property is alienated, if done pursuant to the prescribed mode, and not being in themselves ultra vires, are in point of mere law binding upon the corporate title, and through that title equally binding upon the interest of the stockholders. Wright v. Oroville M. Co., 40 Cal. 20. 48. When title does not pass. The sale of property belonging to an incorporated company under a judgment recovered against the individual members of the company in an action to which the company was not a party, passes no title. Bracia 1;. Nelson, 42 Cal. 107. 49. Inadmissible evidence. The records of such a suit and of the sale in pursuance of the judgment obtained in it, are not admissible as evidence of title in the judgment purchasers 70 CORPORATIONS. as against one who claims under a judgment against the company. Id. 50. Deed of corporation. Where a deed purporting to be the deed of a corporation is signed by its trustees as trustees, and has the corporate seal affixed, it is admissible in evi- dence as a deed of the corporation, and is itself prima facie evidence of the regular and duly authorized execution of the same. Miner's Ditch Co. v. Zellerbach, 37 Cal. 543. See Taxation, 31. VII. LIABILITIES OF. 51. Debts. The debts of a corporation, incurred in the transaction of its legitimate business, are included among its "proper and legal expenses. " Sullivan v. Triunfo Mining Company, 39 Cal. 459. 52. Purchase by agent of the indebt- edness of. The purchase of the claims against a corporation by its agent, although acting without authority in making the purchase, does npt necessarily relieve the corporation of its indebtedness, but may substitute the agent in place of the original holders to the extent of the amount expended in the purchase of the claims. Id. 53. Action to recover corporate debts. A joint or several action may be brought -.against stockholders of a corporation for cor- porate debts.' Larrabee v. Baldwin, 35 Cal. 155- 54. Rights of creditors. If one corpora- tion sues another to recover possession of its real estate, and it is then agreed between the two that the plaintiff may take judgment for possession of the property, and that in con- sideration therefor the plaintiff shall pay the defendant's debts, and the judgment is taken, the transaction gives each creditor of the defendant a right of action against the plain- tiff to recover his demand, without an assign- ment of the contract to the creditor. Morgan v. Overman S. M. Co., 37 Cal. 534. 55. Debts contracted by members of plank road company. In an action to re- cover from the members of a plank or turnpike road company debts contracted before its final organization, the complaint must allege that the defendants commenced the formation of such company, and that before the final organ- ization thereof, debts were contracted which still remain unpaid, etc. Blanchard v. Kaull, 44 Cal. 440. 56. In such action no recovery can be had on promissory notes, signed by trustees of the company, as the contracts of members of the company, for the act does not make members liable for debts contracted by the agents of the company, but for debts contracted before the organization of the company. Blanchard v. Kaull, 44 Cal. 440. See Attachment, 24, 25 ; Constitutional Law, 38 ; Mechanics' Lien, 16 ; Taxation, 31 ; Sum- mons, 19 ; Pleading, 5. Vffl. CAPITAL STOCK. 57. Defined. By capital stock the statute intends the capital of the corporation on which it transacts business, whether such capital consists of money, property or other valuable commodities. Marten v. Zellerbach, 38 Cal. 300. 58. Issue of certificates. The question whether corporations can issue certificates of stock except to subscribers therefor who have paid up for their subscriptions, is not decided. Brewster v. Hartley, 37 Cal. 15. 59. Illegal issuance. Certificates of stock of a corporation issued to a creditor of the cor- poration, or to a trustee for him, as a pledge to secure his debt, are illegally issued, and can- not be voted by any person. Id. 60. Certificate of railroad stock. Rail- road corporations cannot issue certificates of stock until they are paid for in full. Id. 61. Voting corporation stock. Stock belonging to a corporation cannot be voted upon by any person, even if held in the name of a person as trustee. Brewster v. Hartley, 37 OaL. 15- 62. Transfer of, when valid. A transfer of stock of a corporation formed under the pro- visions of the Act entitled "An Act to provide for the formation of corporations for certain purposes," passed April 14th, 1853, which has not been entered on the books of the company, as provided in the statute, is never- theless valid as against all the world except subsequent purchasers in good faith, without notice. People v. Elmore, 35 Cal. 653. 63. A transfer of stock which has not been entered on the books of the company as pro- vided by the statute, is nevertheless valid as against all the world, except a subsequent purchaser in good faith without notice. Par- rott v. Byers, 40 Cal. 614. 64. Word " trustee " in stock not no- tice of secret owner's equities. ' The mere addition of the word ".trustee," after the name of a person to whom stock is transferred, is not sufficient to put persons dealing with the trustee upon inquiry as to the trus- tee's title, nor will it operate as constructive notice of the owner's equitable right. Brews- ter v. Sime, 42 Cal. 139. See Attachment, 6, 7 ; Bailment, 2 ; Con- version, 4 ; Evidence, 163 ; Guardian and Ward, 9 ; Insurance Commissioner ; Manda- mus, 26, 27, 30 ; Mines and Mining, 20-26 ; Negotiable Instruments, 15, 16, 18 ; Pledge. IX. DIVIDENDS. 65. Prohibition in statute construed. The prohibition of the thirteenth section of the CORPORATIONS. 71 Aot concerning corporations is directed against the trustees, and is designed to protect credit- ors, as such ; and, also, to protect the stock- holders against their mismanagement in dis- tributing capital stock in the form of divi- dends. Martin v. Zellerbach, 38 Cal. 300. . 66. Any arrangement which will have the effect to withdraw the capital of an incorpo- rated company, and turn it oyer to the stock- holders, except in the manner provided by law, is in violation of that provision of the statute which forbids the trustees " to divide, with- draw, or in any way pay to the stockholders, or any of them, any part of the capital stock of the company," and is void as to any cred- itor of the corporation, either prior or subse-; quent, who had. no notice of the arrangement at the time of giving the credit. Id. 67. Dividend payable in stock. In an action against a corporation and its officers, to recover or have issued to the plaintiff a certain proportion of the stock of the corporation, and to have an account taken of the profits and dividends on the stock, if a dividend of the company has been paid to the stockholders, by an increase in the capital stock, and an issu- ance of new shares to those to whom the divi- dend was due, the plaintiff cannot, in taking the account, recover, in money, the dividend thus declared, especially, if he also recovers his proportion of the stock thus divided. Harris v. S. ~E. Sugar Kef., 41 Cal. 3'93- X. STOCKHOLDERS. 1. Mights of. 68. Injunction. Whether a stockholder, whose stock is about to be sold under an as- sessment which he alleges to be illegal and void, would suffer such injury by the sale of his stock as would entitle him to relief by in- junction in a Court of equity, not decided. Sullivan v. TriunfoMin. Co., 39 Cal. 459. 69. Right of stockholder to redeem. Where the property of a corporation has been sold under execution, and no steps are taken by the corporate authorities to redeem the property within the period limited by law, a stockholder may interpose and' redeem the property for the benefit of the corporation, and hold, it liable for the money advanced for that purpose, and by so doing he becomes the equit- able assignee of the certificate of sale, and is subrogated to all the rights of the .original purchaser at the Sheriff's sale. Wright v. .Oroville M. Co., 40 Cal, 20. 70. Undivided profits. The stock of a corporation represents its undivided profits, and one who receives his share of the stock acquires by virtue of the stock his due inter- est in the undivided profits. Harris!). S. 'P. Sugar Refinery, 41 Cal. 393. ' 71. In an action against a corporation and the officers controlling the same, to compel the specific performance of a contract to issue a portion of the stock to the plaintiff, and for an account of the dividends and profits on the stock, it is erroneous to give the plaintiff his share of the stock, and also the same propor- tion of the undivided profits of the com- pany. Id. 72. "Trustee" of stock may sell or hypothecate it. The mere fact that a per- son holding the legal title of stock, and ap- parently having the right of disposition, is styled "trustee," raises no implication that he has not authority to sell or hypothecate it in the usual cottrse of business. Brewster v. Sime, 42 Cal. 139. , 2. Liabilities of. 73. For debts of corporation. An act of the Legislature making each stockholder of a corporation liable for his share of all its debts contracted while he is a stockholder, is sufficient to answer the requirements of the Constitution. Larrabee v. Baldwin, 35 Cal. 155- 74. While the Constitution requires the, debts of corporations to be secured by the per- sonal liability of the corporators, and makes each stockholder liable for his proportion of such debts, it leaves to the Legislature the power to regulate such liability, and to pre- scribe the rule by which each stockholder's proportion of such debts shall be ascer- tained. Id. 75. Right of action. The right of action against a stockholder of a mining cor- poration for his proportion of the debts and liabilities, as prescribed in the sixteenth sec- tion of the Act, accrues at the same time as against the corporation, and is not contingent on a recovery against the corporation. David- son v. Rankin, 34 Cal. 503. 76. Liability primary. The liability of the stockholders for a subsisting debt against the corporation is primary, and not condi- tional or contingent, and is unaffected by a suspension of the remedy against the corpora- tion. Young v. Rosenbaum, 39 Cal. 646. 77. As between the corporation and its stockholders, the corporate property is the fund primarily liable fqr the corporate debts. Prince v. Lynch, 38 Cal. 528. 78. As sureties. Stockholders are not the sureties of a corporation, but principal debtors. Young v. Rosenbaum, 39 Cal. 646. 79. As between themselves the corporation is the principal debtor, and the stockholders are sureties or guarantors. Prince v. Lynch, 38 Cal. 528. 80. Release of a stockholder in a cor- poration. Where a creditor of a corporation, by an instrument under seal, releases a stock- holder from all jjersonal liability for his debt , he thereby discharges the corporation and 72 CORPORATIONS. other stockholders to the same extent as the one to whom the release is executed. Prince v. Lynch, 38 Cal. 528. 81. Sufficient release to support the plea of payment made by a stockholder in an action against him for his proportion of the debts of the corporation, under the sixteenth section of the Act concerning corporations, as amended by Act of 1863. Id. 82. Uncanceled debts. There is nothing in the Constitution that renders a man who becomes a stockholder personally liable by so doing for his proportion of all the uncanceled debts of the corporation created before he be- came a stockholder. Larrabee v. Baldwin, 35 Cal. 155. 83. Liability how determined. To de- termine how much any one stockholder of such corporation is liable to pay to a corporate credi- tor, it is necessary to find the whole amount of the indebtedness of the corporation created while he was a stockholder ; and any one creditor, whose demand is large enough, may have judgment for the stockholder's proportion of all such corporate debts. Id. > 84. Proof to fix liability. In an action against the stockholders of a corporation to re- cover the proportional share of each one of the corporate debts, the proof must show that the defendant was a stockholder when such debt was contracted. Proof of a judgment against the corporation does not show when the debt was contracted. Larrabee v. Baldwin, 35 Cal. 155- * 85. Judgment against corporation. A judgment rendered against a corporation, while a party is a stockholder, upon a con- tract entered into before the relation of stock- holder existed, is not a contract within the meaning of the Act which makes such stock- holder liable for the corporate debts contracted while he was such stockholder. Id. 86. A judgment against a corporation does not extinguish, suspend or merge the liability of the stockholders. Young v. Rosenbaum, 39 Cal. 646. 87. How liabilities of stockholders may be discharged. Each stockholder of a cor- poration formed under the Act of 1853, entitl- ed "An Act to provide for the formation of corporations for certain purposes," is liable for his proportion of the corporate debts ; and any one creditor, whose debt is sufficient, may col- lect of him the entire amount of his liability on all the corporate debts, leaving him to seek contribution out of his co-stockholders. When such stockholder has paid to any one or more creditors the amount of his entire liability, his liability ceases. Larrabee v. Baldwin, 35 Cal. 155- See Ante, 56 ; Contract, 8 ; Release, 1 ; Lim- itations, 48 ; Pleading, 63. 3. Bound by act of trustee. " 88. Owner of mining stock bound by act of "trustee." Where mining stock was placed by the owner in the name of another person, as " trustee," on the books of the cor- poration, nothing more appearing, and such trustee hypothecated it to bankers, who had no notice of who the owner was, for moneys ad- vanced by them to him : held, that the owner was bound by the acts of the trustee. Brewster v. Sime, 42 Cal. 139. XI. OFFICERS OF CORPORATION. 1 . In general. 89. Directors of corporation — election of. The statute gives the stockholders of a railroad corporation the power to elect its directors. The corporation cannot take this power away from the stockholders. Brewster v. Hartley, 37 Cal. 15. 90. Power of the president and trus- tees of the College of California. It was for the president and trustees of the College of California to decide whether the public in- terest would be subserved by dissolving the corporation and devoting its property, after the payment of its debts, to the support of the State University. Peoples. P. and T. C. of 0., 38 Cal. 166. 91. Special meeting of trustees. In the absence of a different provision in the ' charter or by-laws of a corporation formed under the general laws of this State, a special meeting of the trustees must be called by giving personal notice to each member of the Board of Trustees. Harding v. Vandewater, 40 Cal. 77. 92. Powers of trustees. The Board of Trustees of a corporation may control the corporate property within the limit which the law has assigned to the exercise of corporate authority. Wright v. Oroville M. Co., 40 Cal. 20. 1 93. Notice to officers of corporation. Where the certificate book of a corporation shows that stock is held by a person as trustee, the officers of the corporation are charged with notice that he does not hold the stock in his own right. Officers of a corporation are charged with notice of a contract to which the corporation is a party. Brewster r. Hartley, 37 Cal. 15. " , See Ante, 18. 2. Liabilities of. 95. Power of Court of Equity. A Court of Equity will, at the instance of a stockholder, control a corporation and its offi- cers, and restrain them from doing acts even within the scope of the corporate authority, ; ■$$* . CORPORATIONS. 73 if such acts -would amount to a breach of the trust upon which the authority had been con- ferred. , "Wright v. Oroville M. Co., 40 Cal. 20. 96. The Court will interfere to relieve an injured stockholder from loss after such an act has been done, provided no superior equity has intervened nor the rights of innocent third parties attached. Id. 97. Equitable jurisdiction. In dealing with the relationsbetween the corporation and its officers on one hand, and the stockholders on the other, in the management of the cor- porate affairs, Courts of Equity will look be- yond the mere observance of the forms of law, and inquire if the authority has been in good faith exercised to promote the interest of the stockholders. Wright v. Oroville M. Co., 40 Cal. 20. 98. Misappropriation of funds. The general rule is, that an action against trustees of a corporation, for a misappropriation of its funds, must be brought in the name of the cor- poration. Cogswell v. Bull, 39 Cal. 320. 99. 'When stockholders may sue. "When the corporation, on a proper demand from a stockholder, refuses to institute action, the stockholders may sue in their own names. Id. 100. Pleading. In an action by a stock- holder in such cases, it is necessary to aver a demand and refusal, without which the action will not be sustained. Id. 101. In an action against the trustees of a corporation, an averment in the complaint that the Board is composed " nearly," if not " en- tirely," of the same persons who committed the wrong complained of, presents no issuable fact, and is, therefore, bad pleading. Id. 102. Demand and refusal. That a de- mand and refusal are necessary when the trust- ees who committed the wrong yet compose the whole or a majority of the Board, not decided. Id. 103. Averment of official capacity. In an action by stockholders against the trustees of a corporation, an averment in the complaint, that the defendants are " tteduly elected trust- ees of said company," is equivalent to an aver- ment that- they are the only trustees. Parrott v. Byers, 40 Cal. 614. 104. Complaint on liability of direct- ors of plank road company. To make the directors of a plank or turnpike road com- pany personally liable for debts contracted in violation of its by-laws, and after the same have been filed, the complaint must contain allegations that they were thus contracted. Blanchard v. Kaull, 44 Cal. 440. 105. Effect of denials in answer. A denial in the answer that the relation of trus- tee, and cestui que trust, exists between the parties, dispenses with the necessity of aver- ring in the complaint, or proving a prior de- mand and refusal. Parrott v. Byers, 40 Cal. 614. 106. Insufficient defense. In an action by the stockholders against the trustees of the corporation, the question before the Court re- lates to the rights of the plaintiffs, as they stood at the commencement of the action, and it is no defense for the defendants that the plaintiffs might have elected a new board of trustees. , Id. 107. Proof sufficient. "When a suit is brought by. several stockholders against the trustees of a corporation, the proof that either one of the plaintiffs is a stockholder is suf- ficient to maintain the action. Id. 108. Title. — Prior possession. The prior possession by the corporation of the ground in controversy, and the entry into the occupation by the defendants as trustees of the corpora- tion, is sufficient evidence of title to support a judgment in favor of the stockholders. Id. See Equity, 31 ; Negotiable Instruments,, 12-14. XII. DISSOLUTION. 109. How effected. In the absence of any statutory provision defining the mode, a corporation aggregate may dissolve itself by the surrender of its franchise, by proper pro- ceedings for that purpose. People 1). Pi & T. C. of C, 38 Cal. 166. 110. Property of corporation on its dissolution. On the dissolution of a corpora- tion for literary purposes, by a surrender of its franchise, owing no debts, all its personal estate, and all its real property, acquired by purchase for value, vests, by operation of law, in the State. Id. 111. Disincorporation. There is no statutory provision for the dissolution of cor- porations for literary purposes having no stockholders. Id. 112. "When dissolved. The Court can- not treat a corporation as already dissolved be- cause its conditon or business arrangements are such that it will be necessary or proper for it to institute proceedings for its dissolution. Sullivan v. Triunfo M. Co., 39 Cal. 459. 113. Sale of the property of. The ownership of property is not essential to the existence of a corporation, nor is a corpora- tion dissolved by the sale of its property. Id. See Ante, 90. XIII. RAILROAD CORPORATIONS. 114. Formation of railroad corpora- tion. The statute relating to the formation of railroad corporations is substantially com- plied with, if the only defect in the papers nec- essary to constitute a corporation is the omis- sion of the words "in good faith," in that portion of the affidavit attached to the certi- ficate relating to the payment of the ten per COKROBORATIVB EVIDENCE.— COSTS. cent. People v. S. & V. R. R. Co., 45 Cal. 306. 115. Payment of ten per cent. The treasurer of a company about to form a rail- road corporation may receive from the sub- scribers payment of the ten per cent, required by law to be paid to him, in bank' checks drawn .by the subscribers, and payable in pre- senti, provided they are drawn against a suffi- cient fund and the banks will pay the checks on presentation, and the same are drawn in . good faith and with no intention to evade the law. Id. 116. Payment of "ten percent." by check not sufficient. Under the Act of May 20th, 1861, providing for the incorpora- tion of railroad companies, (Stats. 1861, p. 607) and requiring at least one thousand dollars per mile to be subscribed, and ten per cent, thereof, in cash, to be actually and in good faith paid in before incorporation. Held, that payment of such ten per cent, could not be made in a check on a bank, drawn by a person who had not on deposit funds sufficient to meet it, even though it appeared that such check would have been paid if presented. People v. Chambers, 42 Cal. 20T. See Ante, 12, 34. 117. Pay of superintendent. If there is no special agreement fixing the amount the superintendent of a railroad company shall receive for his services as superintendent, he is entitled to recover the value of such ser- vices. Bee v. S. P. & H. B. R. R'. Co., 46 Cal. 248. 118. Duty of superintendent. If the superintendent of a railroad company, at the request of the company, before work is com- menced in the field, performs work which is not technically within the line of a superin- tendent's duty, it will be presumed that in doing the work he acted in his capacity as superintendent. Id. 119. Employee of corporation. The action of the Board of Directors of a corpora- tion, when in session, is not required, merely to direct the labor of an employee of the cor- poration. Id. 120. Undertaking against injuries. A railroad company which continues running its cars upon an open track, undertakes, at its peril, that no harm shall oome to. the stock running in the field through which the road run, for the want of a proper fence. McCoy v. Cal. P. R. R. Co., 40 Cal. 532. 121. Liability of railroad company for damage. If an Act of the Legislature au- thorizes the laying down in a public street of a railroad, a switch-turnout, and side track, the laying down of the switch turn-out and side track and the use of it is the exercise of a lawful right, from which no liability for dam- ages for consequential injury arises, unless there is some misconduct or negligence. Car- son v. C. R. R. Co., 35 Cal. 325. See Ante, S> 60, 89 ; Accident ; Damages ; Evidence, 12, 13 ; Common Carrier, 4 ; Negli- gence, 4, 5, 13; Principal . and Agent, 4-7; Railroads. CORROBORATIVE EVIDENCE. See Criminal Law and Practice, 168-172; Divorce, 14. COSTS. 1. Five per cent, damages on costs. The Act authorizing five per cent, damages to be taxed as costs against the losing party in litigated cases in San Francisco, is not uncon- stitutional. Corwin v. "Ward, 35 Cal. 195. 2. In ejectment. One who sues to re-, cover possession of an undivided part of real estate, and recovers an undivided part, but a less interest than he sued for, is entitled to full costs, even if the answer concedes his right to the interest recovered, but raises an issue on the question of the ouster from the part recovered. Lawton v. Gordon, 37 Cal. 202. 3. On dismissal of app'eal. When a County Court dismisses an attempted appeal from a Justice's Court, because of the failure of appellant to prosecute the appeal, or for , want of jurisdiction of the subject-matter, it may render a judgment for costs against the appellant. Blair v. Cummings, 39 Cal. 667. 4. Counsel fees. As a general rule, counsel fees are not recoverable as costs by a successful party in actions either at law or in equity. -Williams v. McDougall, 39 Cal. 80. 5. In equity, the ordinary costs of the action are awarded or withheld at "the discre- tion of the Court. Id. 6. Where counsel fees are allowed, it gen- erally proceeds on the ground of the contu- macy of the party, or &iat the relief granted would be ineffectual without such allow- ance . Id. 7 . The costs of litigation, including reas- onable fees to counsel, in a proceeding for the sale of property held in trust for religious or charitable purposes, are a proper charge on the trust fund, and should be allowed by the Court. Alemany v. Wensinger, 40 Cal. 288. 8. Pees of witnesses. A party to an action is entitled to tax, as costs, the fees of witnesses subpoenaed by him in good faith, although they were not sworn on the trial. Randall v. IPalkner, 41 Cal. 242. 9. Of transcript. When an appellant in- cludes in the transcript irrelevant matter, he COUNSEL FEES.— COUNTY WARRANTS. 75 cannot recover costs for procuring or printing the same. Sichel v. Carrillo, 42 Oal. 493. 10. How payable -when fine im- posed. If the judgment impose a fine with- out costs, or if a fine be collected, hut the costs imposed by the judgment be not collect- ed, in either case the costs of the officers are to be paid out of the fine collected. Petty v. County Court of San Joaquin, 45 Cal. 245. 11. Error in taxing costs. If an error is committed by the County Court in the tax- ation of costs, it must be corrected by a mo- tion. Id. 12. Publishing summons. In an action brought by the State, under the Act of 1868, for the sale of lands belonging to the State, to annul a certificate of purchase for failure to make payment, if summons is published, the cost of publishing the same must be taxed in the costs, and a judgment rendered against the defendant therefor. Lawrence v. Booth, 46 Cal. 187.. 13. If such judgment cannot be collected by execution out of the defendant's property, and if the lands are school lands, the cost of publication must be paid by the State out of the General Fund. Id. 14. In such case, the Board of Examiners must audit the claim for publishing summons at the amount taxed by the District Court, even if no specific appropriation has been made by the Legislature therefor. Id. 15. Retaxing costs and denying exe- cution. If a new trial is granted to the de- fendant on payment of the plaintiff's costs, within twenty days, and there is an error in the bill of costs, the defendant may, within the twenty days, tender the real sum due as costs, and if it is refused, move to retax the costs after the twenty days expire, and the Court may retax them, and refuse to let an execution issue. Higuerra v< Bernal, 46 Cal. 580. See Appeal, 26, 1 50, 395 ; Certiorari, 32 ; Judgment, 79; Quieting Title, 14, 15; Sure- ties, 4; New Trial, 141. COUNSEL FEES. See Costs, 4-7 ; Foreclosure, 20. COUNTER CLAIM. See Pleading, 185-196. COUNTERFEITING. See Criminal Law and Practice, 24, 82, 104, 3"- COUNTY. See Boundaries, 1 ; Contract, 7 ; District Attorney, 1 ; Evidenoe, 22„ 23-; Statutory Con-, struction, 17 ; Municipal Corporations ; Super- COUNTY AID TO RAILROADS. See Constitutional Law, 70 ; Corporations, 45 ; Eminent Domain, 6, 7 ; Mandamus, 32 ; Supervisors, 6, 7. COUNTY ASSESSOR. See Taxation. COUNTY AUDITOR. See Mandamus, 12 ; Taxation. COUNTY BONDS. See Mandamus, 2, 4 ; Legal Tenders, 3, 4. COUNTY COURTS. See Jurisdiction, 30-41. COUNTY INDEBTEDNESS. See Funds. COUNTY TREASURER. See Mandamus, 14 ; Witness, 7, 9, COUNTY "WARRANTS. See Appropriations, 23 ; Findings, 2 ; In- junction, 14; Mandamus, 14, 46. 76, COURT OP FIRST INSTANCE.— COURTS OF JUSTICE. CbURT OP FIRST INSTANCE. See Jurisdiction, 55-60. COURTS OF JUSTICE. I. In general. H. Terms op. HI. Judicial officers. I. IN GENERAL. 1. Power of Court over its own pro- ceedings. The rule that a Court has no power over its own judgments upon the expiration of the term has no application, except to final judgments — nor while the proceedings are in fieri. Hastings v. Cunningham, 35 Cal. 549. 2. Mandamus. Courts having jurisdic- tion of the writ of mandamus, may issue the same to compel the Governor to perform a min- isterial act required by law, and not included within the powers confided to his discretion by the Constitution. Harpending v. Haight, 39 Cal. 189. 3. Power to declare statute unconsti- tutional. The power of the Judiciary to de- clare a statute unconstitutional should never be exerted, except where the conflict between it and the Constitution is palpable, and incap- able of reconciliation. S. & V. R. R. Co. v. Stockton, 41 Cal. 148. 4. Duty of Court to vacate order inad- vertently made. Where a Court, through its own inadvertence, has prematurely made an order granting a motion for a new trial be- fore the final submission of the motion, it is the duty of the Court, upon its own motion, to vacate the order so made. Hall v. Polack, 42 Cal. 218. 5. Power of Courts over public offi- cers. When the State, by legislative Act, confers upon a Board of public officers jurisdic- tion to exercise their judgment and discretion upon matters within their power to perform, the Courts cannot review the question whether that discretion was properly exercised. Porter v. Haight, 45 Cal. 631. , Power of Courts of Equity : See Alimony, 2; Contempt, 6 ; Conveyances, 22 ; Corporations, 95-97 ; Equity, 46-53 ; Guardian and Ward, 3, 7 ; Specific Performance, 1-6 ; Trust and Trustee, 36 ; Water and Water Rights, 17, 18. 6. Mode of acquiring jurisdiction of the person. The form and mode of service of process by which parties defendant are . brought into a Court, whether of an inferior or superior jurisdiction, are matters of legisla- tive discretion. McCauley v. Fulton, 44 Cal. 356. 7. District Courts. The District Courts in this State, by virtue of their organization and common law powers, have full authority, except ' when limited by the Constitution or Practice Act, to pronounce such judgment as the exigency of each case shall require. Stew- art v. Levy, 36 Cal. 159. 8. County Courts. When the County ' Court has acquired jurisdiction, both of the parties and of the subject matter of the action, its orders thereaf ter.though'they may by erron- eous, are not void, unless they contravene some provision of the statute regulating appeals to the County Courts. People v. Elkins, 40 CaL 642. 9. The County Court has no authority.in proceeding on an award of damages on change . ' t of grade of street, tolnquire into the question of mere valuation, that being fixed by the ac- tion of the Commissioners, in conjunction with the Committee of the Board of Supervisors ; no fraud being alleged, the authority of the County Court is confined to errors of jurisdic- tion and irregularities appearing on the face of the proceedings. Matter of Beale Street, 39 Cal. 495. 10. Inferior Courts. Inferior Courts cannot go beyond the power conferred upon them by statute. They can assume no power by implication. Winter v. Fitzpatrick, 35 Cal. 269. See Attorney and Client, 6 ; Amendments, I, 2 ; Contempt, 1 ; Eminent Domain, 13-20 ; Trial, 57 ; Constitutional Law, 45-62 ; Man- damus, 8, 13. See Jurisdiction. H. TERMS OF COURT. 11. Jurisdiction not conferred by stip- ulation. A stipulation by the parties to an action waiving all objections to the jurisdic- tion of the Court in hearing and trying a cause, cannot confer jurisdiction on a District Court to try the cause in one county, on the day when, by operation of law, the Court is adjourned in that county, and its term com- menced in another county of the same dis- trict. Bates v. Gage, 40 Cal. 183. 12. Legal session of Court. Under the Act of-March 1st, 1864, a District Judge may adjourn a general term of his Court in one county over an intervening term in another county. The term so adjourned is a continu- ation of the regular term. People v. Ah Ying, 42 Cal. 18. 13. The Act of April 20th, 1863, concern- ing Courts of justice and judicial officers, was intended to prevent the loss of a term ; and it does not apply after the Judge has once ap- peared and commenced to hold Court. Id. 14. Judicial notice of terms. The Su- preme Court will take notice of the regular terms of the District Courts as fixed by statute, and also of the fact that they are authorized by statute, (Stats. 1863-4, p. 118) to adjourn COURTS OP JUSTICE.— COVENANTS. 77 any general term in one county within their districts to a day certain within the time pre- scribed for the commencement of the next term in the same county, provided such special term shall not interfere with any general term in such district. " Talbert v. Hopper, 42 Cal. 397. 15. Adjourned term. Where the general February Term of the Sixth District Court for Sacramento County must have commenced on February first and concluded prior to March fifteenth ; and the general March Term of the same Court for Tolo County must have com- menced on March fifteenth and concluded prior to April fifth : held, that under and by compliance with the Act of 1864, providing for adjourned terms, (Stats. 1863-4, p. 118) such Court could hold a legal session in Sacra- mento County after March fifteenth, and up to April fifth. Id. 16. Presumption in favor of legality of sessions. Where it appeared from a record on appeal from a District Court for a certain county that the trial took place on a day sub- sequent to the regular generaj term in such county : held, that as by compliance with the Statute of 1864, relative to adjourned terms (Stats. 1863-4, p. 118) such Court could be legally held at such time, it would be pre- sumed, in the absence of any showing to the contrary, that it was legally held. Id. See Evidence, 22 ; Motions, 1 ; Orders, 3 ; ' Judgment, 20-22 ; New Trial, III. HI. JUDICIAL OFFICERS. 17. County Judges. A statute author- izing a County Judge to hold Court for the County Judge of another county, is not repug- nant to the Constitution. People v. Mellon, 40 Cal. 648. 18. When the County Judge of one coun- ty, at the request of the County Judge of an- other, holds the Court of the latter, for the trial of an action, and the record does not show for what cause the request was made, thfe ex- istence of some one of the causes mentioned in the statute will be presumed. Id. 19. A request by the County Judge of one county to the County Judge of another, that he should hold the Court of the former for the trial of a cause, gives the latter color of au- thority in that behalf, and he having held the Court for that purpose, his authority cannot be inquired into collaterally. Id. 20. Where the record showM no objection by either party during the trial to the exer- cise of jurisdiction in the cause by the Judge of another county, it will be presumed that the parties consented to the request by the proper Judge of the county, that he should hold the Court. Id, 21. Police Judge. The Police Judge of San Francisco is vested by the statute with the powers of a magistrate. Levy v. Braninan, 39 Cal. 485. 22. Justices of the Peace. A Justice of the Peace has no power to Vacate or set aside a judgment rendered by him, except upon motion for a new trial. Winter v. Fitzpatrick, 35 Cal. 269. 23. Order of Justice vacating judg- ment. An order of a Justice of the Peace va- cating a judgment rendered by him, without a motion for a new trial, is in excess of his ju- risdiction, and is not a judgment from which an appeal will lie, and will be annulled on certiorari. A judgment annulling such order should not affirm the original judgment. Id. See Judicial Act, 1 ; Mandamus, 9 ; Place of Trial, 1. • COVENANTS. , 1. Compliance with. It is no satisfac- tion of a covenant for the confirmation of a Mexican title to a tract of land, that the cov- enantee may obtain the title to the same land by entry and purchase. Smith v. Lawrence, 38 Cal. 25. 2. Personal covenant in deed. A cov- enant in a deed, whether express or implied by law, that the grantor has not sold or incumber- ed the land, is a personal covenant, and does not run with the land. Lawrence v. Montgom- ery, 37 Cal. 183. 3. A covenant in a deed, that the tract con- veyed, or that the grant under which it is held, includes a specific quantity of land, is a personal covenant, and does not run with the land, and a cause of action for the breach of it does not pass to the grantee of the covenantee. Salmon v. Vallejo, 41 Cal. 481. 4. Statute of limitations. A covenant in a deed that the tract conveyed contains a specific quantity of land, is a mere chose in ac- tion, and is broken, if broken at all, as soon as made, and the mere fact that there was no proof till long after it was made, by which the breach of it could be established, might possi- bly prevent the statute of limitations from run- ning — but this point no"t decided. Id. 5. What constitutes a breach of a cov- enant. To entitle a party to recover the pen- alty of a bond given for the faithful perform- ance of a covenant, in an action instituted for that purpose, it is not alone sufficient to show a technical breach of its literal terms, but upon a reasonable interpretation of the intent and meaning of the covenant, to be ascertained from all its terms, it must likewise appear that some substantial right, guaranteed thereby, has ( been infringed, or some of its purposes de- feated. Levit'sky v. Johnson, 35 Cal. 41. 6. Covenant of -warranty for quiet en- joyment. — Eviction. Without an eviction 78 CREDIBILITY OF WITNESS.— CRIMINAL LAW AND PRACTICE. there is no breach of the covenant ; but it is necessary that the eviction Bhould be by pro- cess of law, consequent on a judgment. Mc- Gary v. Hastings, 39 Oal. 360. 7 . When broken. The covenant is broken whenever there has been an involuntary loss of possession by reason of the hostile assertion of an irresistible paramount title. Id. 8. An actual dispossession of the grantee is not required to constitute such an eviction as will amount to a breach of the covenant. Id. 9. Statute of limitations. The cause of action acmes at the time of an eviction, actual or constructive. Id. ' 10. Rule of damages. The rule of dam- ages, where there has been an actual loss of the premises, is the purchase money and interest. Where the plaintiff has purchased the par- amount title, it is the sum actually and in good faith paid for the paramount title, and the amount expended in defending his possession ; provided such damages shall in no case exceed the purchase money and interest. Id, See Contract, 56-62 ; Damages, 31 ; Deed, 60 ; Landlord and Tenant, 13, 24-28.; Limita- tions, 43, 47 ; Mortgage, 18 ; Party, 9 ; Spe- cific Performance, 15, 19, 22, 23. CREDIBILITY OF WITNESS. See Appeal, 312. CREDITOR. See Limitations, 12, 31, 32 ; Lien, 1,2. CRIMINAL LAW AND PRACTICE. Part First : Crimes and Punishments. I. Principal and accessory. n. Offenses against the person. 1 . Homicide. 2. Assault with felonious intent. Offenses against public morality. Offenses against property. Ill, IV Part Second : Criminal Procedure. I. Jurisdiction. II. Limitation of action. HI. Preliminary examination. IV. Admission to bail. V. VI. VII. vni. IX. Proceedings after commitment and before indictment. Inbictment. 1. In general. 2. Offense, how charged. 3. Sufficiency of, in various actions. Proceedings after indictment and before trial. 1 1. Bench warrant. 2. Setting aside indictment. 3. Demurrer and plea. 4. Defenses. Evidence. 1. In general. 2. Corroborative. 3. Miscellaneous. 4. In particular actions. Conduct of the trial. 1 . Forms of procedure. 2. Sights of prisoner. 3. Postponement. 4. Change of place of trial. 5. Impannelling 'jury. 6. Challenges. 7. Practice on admission of evidence. A. In general. B. Testimony of party on his own behalf. 8. Argument of counsel. 9. Charge to jury. 10. Instructions. A. Practice in giving or refusing. B. In various cases. X. Verdict'. XI-. Bill of exceptions. XLI. New trial. XHI. Arrest of judgment. XTV. Judgment. XV. Appeal. 1. Sight of. 2. When it lies. 3. Orders not appealable. 4. Secord. 5. Sevievj on. 6. Determination on. XVI. Commitment. after appeal. Part First: Crimes and Punishments. I. PRINCIPAL AND ACCESSORY. 1. Principal and accessory. A party indicted as principal cannot be convicted upon evidence tending only to show that he was an accessory before the fact. People v. Trim, 39 Cal. 75. People v- McGungill, 41 Cal. 429. 2. Accessory before the fact. The ac- cessory must be indicted, tried and punished as a principal, but the particular acts which es- tablish that he aided and abetted the crime, and thus became in law a principal, must be stated in the indictment. People v. Schwartz, 32 Cal. 160. Approved in People v. Campbell, 40 Cal. 129. CRIMINAL LAW AND PRACTICE. 79 3. Conspiracy. If there ia a conspiracy between two persons who fired to commit the ■felony, it is immaterial whether the defend- ant on trial fired the fatal, shot or the other person, as both are equally guilty. People v. Woody, 45 Cal. 289. II. OFFENSES AGAINST THE PERSON, i. Homicide. 4. Legal malice. The bare existence of hatred, ill will, and the like, does not amount to legal malipe ; but evidence of previous hatred and ill will is always allowed , in cases of homicide, as tending to prove active or illegal malice at the time the homicide was committed. People v. Taylor, 36 Cal. 255. 5. Legal malice, or the malice afore- thought of the statute, denotes a wrongful act done intentionally, and. without legal cause or excuse. Id. 6. Homicide. If a homicide is com- mitted by means of willful, deliberate and premeditated killing, it shows an abandoned and malignant heart. People v. Williams, 43 Cal. 344. 7 . " Murder ' ' defined. The term ' 'murder' ' has but one meaning in California, and that is, the unlawful killing of a human being with malice aforethought, either express or implied. People v. Haun, 44 Cal. 96. 8. Degrees of. The Act of 1856, dividing the crime of murder into two degrees, and' pre- scribing imprisonment as the punishment for murder in the second degree, did not make murder in the second degree less or other than murdfer. People v. Haun, 44 Cal. 96. 9. Murder in the first degree. The willful and felonious killing of another does not constitute murder in the first degree, but there must be also deliberation and premedita- tion. People v. Valencia, 43 Cal. 552. 10. In deliberating, there need be no appre- ciable time between the intention to kill and the act of killing. People v. Williams, 43 Cal. 344. 11.- Murder in the first degree, unless committed in perpetrating or attempting to perpetrate arson, rape, robbery or burglary, is the unlawful killing with malice, and with a deliberate, premeditated, preconceived design to take life, though such design may have been formed in the mind immediately before the mortal wound was given. People v. Long, 39 Cal. 694. 12. Murder in the second degree. Murder in the second degree is the unlawful killing with malice, but without a deliberate, premeditated or preconceived design to kill. People v. Long, 39 Cal. 694. 13. Justifiable killing. Under the pro- visions of Section 29 of the- Act concerning crimes and punishments, the killing of an- other is justifiable only when the entry into a habitation is being made in a violent, riotous, or tumultuous manner, for the purpose of offering violence to some person therein, t)r for the purpose of committing a felony by vio- lence. People v. Walsh, 43 Cal. 447. 14. Reasonable opportunity of remov- ing intruder. W, who was a clerk of a hotel, saw A in the act of entering at a window in the night-time, and fired at him, without first calling to him to desist or inquiring as to his purpose. Held, that there being no circum- stances calculated to arouse the fears of a reasonable man, or indicating a danger so urgent or pressing as to excuse the instant use of a deadly weapon, it was not error to refuse to instruct the jury to the effect that if W did not have a reasonable opportunity of removing A, then he was justified in shooting him. Id. 15. Self-defense. If a gun be pointed at one in a threatening manner, under such cir- cumstances as to induce a reasonable belief that it is loaded and will be discharged, and thereby produce death or inflict a great bodily injury on the person threatened, he will be justified in using whatever force may be neces- sary to avert the apparent danger, though it may afterward appear that the gun was not loaded. People v. Anderson, 44 Cal. 65. 2. Assaults with felonious intent. 16". Assault without a deadly -weapon. An assault made without the use of a deadly weapon, with intent to do mere bodily harm, and not to do murder, is a misdemeanor ; nothing more. People v. Murat, 45 Cal. 281. 17. Assault with deadly weapon. An assault made with intent not to do murder, but only to do a lesser bodily harm, is not constituted a felony, unless such an assault, was made with a deadly weapon, or by resort to mean's of a deadly nature. Id. 18. Assaulting the wrong person by mistake. If A, intending to murder B, shoots C, supposing C to be B, and wounds C, he is guilty of an assault with intent to mur- der C. People v. Torres, 38 Cal. 141. 19. Attempting to commit a rape. A person who stands by, when an attempt is made by others to commit a rape, but who does no act to aid, assist, or abet its commis- sion, is not guilty of an attempt to commit a rape. People v. Woodward, 45 Cal. 293. HI. OFFENSES AGAINST PUBLIC MOR- ALITY. 20. Offense at common law. At com- mon law profane swearing was not indictable, except when repeated so often and so publicly as to become an annoyance to the public, and thus a public nuisance. Ex parte Delaney, 43 Oal. 479- 80 CKIMINAL LAW AND PRACTICE. IV. OFFENSES AGAINST PROPERTY. 21. Arson. If an attempt is made to burn a house by lighting a fire, and the wood of the house is charred in a single place so as to destroy its fiber, the crime of arson is com- plete, even if the fire is then extinguished. People v. Haggerty, 46 Oal. 354. 22. Burglary. Neither under the statute nor at common law is it essential that the act should be committed at a particular hour of the night to constitute burglary ; the particu- lar time of the night is not, therefore, of the essence of the crime. People v. Burgess. 35 Oal. 1,15. 23. Forgery. The purpose of the statute against forgeries is to protect society against the fabrication, falsification, and the uttering, publishing, and passing of forged instruments, ■which, if genuine, would establish or defeat some claim, impose some duty, create some liability, or -work some prejudice to another in his rights of person or property. People v. Tomlinson, 35 Cal. 503. £4. Guilty possession of counterfeit notes. To constitute the crime of possessing forged notes with intent to pass them, the law only requires the g#ilty possession. It is not necessary that the intent to fill up unfinished notes should be proven by an attempt to do so. Possession, with knowledge of the purpose for which they were designed, is sufficient. -Peo- ple v. Ah Sam, 41 Cal. 645. 25. Larceny. It is competent for the Leg- islature to declare that the larceny of specific property designated shall be deemed grand lar- ceny, without regard to the value of the prop- erty. People v. Townsley, 39 Cal. 405. 26. Larceny by bailee. B was indicted and convicted of the larceny of two horses, the property of M. At and before the commission of the alleged offense, B, who was in the em- ploy of M for that purpose, performed general work in and about M's livery stable, from which, as charged, said horses had been stolen, and together with M performed the labor in, and had charge of, the stable and stock therein, including the stolen horses. Held, that said horses were, at said time, in the possession of M, and that B had not such custody of them as to prevent his conviction for a larceny of the horses under an indictment therefor, framed under the sixtieth section of the Crimes and Punishments Act. People v. Belden, 37 Cal. ' Si- 27. Larceny from bailee. In case of taking one's own goods from a bailee, the tak- ing will be larceny or not according to the in- tent with which the taking is accomplished. If done with intent to charge the bailee it is larceny. Id. 28. Receiver of stolen goods. In a prosecution for grand larceny, a party defend- ant who was not present, and did not partici- pate in the theft, but subsequently, with a guilty knowledge that it was stolen, received and aided in the disposition of' the stolen property, is not, under the statute in this State, an accessory after the fact, bnt is liable as a receiver of stolen goods, as defined by the statute. People v. Stakem, 40 Cal. 599. 29. It was intended by Section 63 of the Act concerning crimes and punishments, to provide for the punishment of the. receivers of stolen goods, in the cases in which it might be impossible to identify with certainty the thieves, as in cases of professional receivers of stolen goods. People v. Avila, 43 Cal. 197. 30. Possession of stolen property. If , the defendant is seen in possession of the stol- en property shortly after it was stolen, and does not explain his possession by showing that it was honestly acquired, it is a circum- stance tending to show his guilt. People v. Gill, 45 Cal. 285. 31. Embezzlement. The provisions of the seventieth section of said Act were framed to comprehend only those cases in which prop- erty is intrusted to servants, clerks, etc., by or '.' . for their masters, employers, etc.; and no cases fall within said section except where the servants, clerks, etc., have the custody or pos- session at the time of the commission of the offense. People v. Belden, 37 Cal. 51. 32. Distinction between larceny and embezzlement. The chief distinction be- tween larceny, as defined in Section 60 of the Crimes and Punishments Act, and embezzle- ment, as defined in Section 70 of the same Act, is, that in the former case the guilty party has, and in the latter case he has not, the possess- ion of the property at the time of the commis- sion of the offense. People v. Belden, 37 Cal. 51. 33. Official delinquency. A County Superintendent of public schools is an " officer or person " contemplated by Section 67 of the Act concerning Crimes and Punishments; his refusal, therefore, to pay over to the person authorized by law to demand the same, a sum of money received by him in his offioial capac- ity, amounting to less than one hundred dol- lars, is only a misdemeanor. Dissenting opin- ion of Sprague, J., People v. Doss. 39 Cal. 428. 34. Official misconduct. To constitute the offense denounced by the Statute of May 4th, 1852, "to prevent certain officers -from dealing in certain securities or evidences of debt," there must be some evidence of mala fides in the transaction. People v. Turner, 39 Cal. 370. 35. Selling land twice. To justify a conviotion of the offense defined in the one hundred and thirty-second section of the Act concerning Crimes and Punishments, it is nec- essary to charge in the indictment and prove at the trial : first — the first and second sales, barter, or disposal of the land as therein speci- :*: t jf"' fied ; and second — that said second sale, barter or disposal of the land was for a valuable con- CRIMINAL LAW AND PRACTICE. 81 sideration, and was made fraudently, that ia, with intent to defraud either the first or sec- ond purchaser. People v. Garnett, 35 Cal. 470. 36. In such case, where the second sale was made to parties at their request, and after being fully informed by the grantor of the fact and the tenor of the first sale : held, that the second sale was not fraudulent within the meaning of the statute. Id. , 37. Criminal sale of land. The giving of a mortgage Upon land by a party who has already conveyed his title to another by deed, is not disposing of the land within the mean- ing of the statute, which makes it a felony to fraudulently sell land after having once sold it. People v. Cox, 45 Cal. 342. 38. Trespass on real property not in- dictable. In consequence of the stable and permanent nature of real estate, the rule of the common law which is in force in this State is, that an injury to it is not indictable, and, therefore, to steal anything adhering to the soil is not larceny. People a. Williams, 35 Cal. 671. 39. . The soundness of the rule, upon prin- ciple and considerations of policy, is questioned, and remedial legislation suggested. Id. Fart Second : Criminal Procedure. I. JURISDICTION. 40. Manner of impeaching for misde- meanor in office. While the Constitution has provided that the Governor, Lieutenant Governor, Secretary of State, Controller, Treasurer, .Attorney General, Surveyor Gen- eral, Justices of the Supreme Court, and Dis- trict Judges, shall be impeached by the As- sembly and tried by the Senate, it has left ' all other civil officers to be tried for misde- meanor in office in such manner as the Legis- lature may provide. Matter of John J. Marks, 45 Cal. 199. 41. Jurisdiction of State tribunals. State tribunals have no power to punish crimes against the laws of the United States, as such. People v. Kelly, 38 Cal. 145. 42. State tribunals have no jurisdiction of the charge of perjury committed by swearing falsely before the Register of the United States Land Office in a proceeding touching the public land. Id. II. LIMITATION OF ACTION. 43. No limitation for the prosecution of murder. As against the crime of mur- der, whether of the first or second degree, there is no limitation of time within which a prosecution may be commenced. People v. Haun, 44 Cal. 96. CAL. DIG. SUP. 6. IH. PRELIMINARY EXAMINATION. 44. Before Justice of the Peace. Whether, when the Justice of the Peace had examined the witnesses against the accused, and proceeded, in other respects, in accordance with the statute, such proceeding would nec- essarily oust the authority of another magis- trate to proceed anew to investigate the same charge, not decided. Ex parte Walsh, 39 Cal. 70S- 45. Statutory construction. Chapter 7, of the Criminal Practice Act J in effect re- quires that the witnesses for the people shall be examined, but does not contemplate a total waiver by defendant of any examination into the charge made against him. Id. 46. Before committing magistrates. The Act of 1 85 1, to regulate proceedings be- fore committing magistrates, contains no pro- vision authorizing or permitting an oath to be administered to the person accused. He is not to be examined generally, nor cross-exam- iiied at all ; only the five questions specified are to be put to him, and his answers thereto must be committed, to writing.* People v. Gibbons, 43 Cal. 557, 47. Act not applicable. The Act of 1866, authorizing accused persons to become witnesses in their own behalf, is not applica- ble to preliminary examinations before com- mitting magistrates. Id. 48. Waiver of examination. A waiver of an examination by a party charged with felony, before a Justice of the Peace, and the commitment and admission to bail of the ac- cused by the Justice, without any examination of witnesses for the people, is not a bar to any other or further examination on the same charge by a District Judge, or other magis- trate, on a proper application. Ex parte Walsh, 39 Cal.' 705. 49. Charge and indictment distin- guished. The charge mentioned in Section 146, and the indictment in Section 206 of the Criminal Practice Act, are not the same thing. Ex parte Ryan, 44 Cal. 555. See Post, 431. IT. ADMISSION TO BAIL. 50. Right of discharge from arrest. A party who has been indicted for a bailable of- fense, and is under arrest on a bench warrant, on which an order is indorsed directing the accused to be admitted to bail in a specified sum, is entitled to a discharge from such arrest upon the execution of a written recognizance in proper form and in the prescribed sum, by two sureties who have justified as to qualifica- tions before a magistrate, as prescribed in Sec- tions 517, 518 and 519 of the Criminal Prac- tice Act. For this purpose, no indorsement 82 CRIMINAL LAW AND PRACTICE. of approval on the recognizance is necessary. People v. Pennman, 37 Cal. 271. 51. When liability of sureties at- taches. The responsibility of sureties to such recognizance attaches the moment the party is so released, and their liability is fixed by a breach of its conditions, and a forfeiture declared and entered by the proper Court. The justification forms no part of the contract of the sureties to such recognizance, and in no manner affects their liability. Id. 52. Practice on. The prevailing practice of admitting persons charged with felony to bail, without an examination of the witnesses for the people, is unauthorized by the statute. Ex parte Walsh, 39 Cal. 705. 53. In capital cases. Case stated why a prisoner charged with a capital offense was ad- mitted to bail. Ex parte McLaughlin, 41 Cal. 2,11. 54. Constitutional law as to bail. The Constitution of this State, in declaring bail to be a matter of right, contemplates only those cases in which the party has not been, already convicted. Ex parte Voll, 41 Cal. 29. 55. BaiT after conviction. . The statute which makes bail a matter of discretion after conviction for manslaughter is not unconsti- tutional. Id. 56. Bail not excessive. Where a party Tvas held to answer a charge of attempting to commit murder, and the grand jury found an indictment against him for an assault with an attempt to commit murder : held, that bail fixed*by the committing magistrate in the sum of fifteen thousand dollars, is not excessive. Ex parte Ryan, 44 Cal. 555. 57. Authority to fix bail. The Court in which a criminal indictment is pending has the authority to fix the amount of bail to be given by a prisoner, irrespective of any action theretofore taken by the committing magis- trate. Ex parte Ryan, 44 Cal. 555. 58. Duty of Court as to bail. The au- thority and discretion of a Court, having jur- isdiction of an offense should be exercised in admitting to bail, increasing or reducing bail, etc., whenever substantial justice may be thereby promoted. Ex parte Ryan, 44 Cal. 555- 59. Presumed guilt. If a party be com- mitted for an alleged offense, and an indict- ment be found against. him by a grand jury, in a proceeding as to increasing or diminishing his bail, he will be assumed to be guilty. Id. 60. Release on bail not imprisonment. Within the meaning of the Criminal Practice Act, a prisoner released on bail is not impris- oned during such release. Ex parte Jones r . Ellwood, 41 Cal. 209. See Constitutional Law, 18. V. PROCEEDINGS AFTER COMMIT- MENT AND BEFORE INDICTMENT. 61. Summons of grand jury. Under Section 12 of the Act of 1863, concerning jurors in certain counties, it is competent for the Judge of a Court, after the commence- ment of the session, to order a, grand jury to be summoned. People v. Long, 43 *-" a l- 445- 62. Grand jury must be summoned as such. An indictment found by a jury which was summoned as a trial jury and im- paneled as a grand jury is illegal. People v. Earnest, 45 Cal. 29. 63. Order of Court. Where no list of persons to serve as grand jurors during the year has been made by the Board of Super- visors, the Court may, under Section 226 of the Code of Civil Procedure, make an order directing the Sheriff to summon a grand jury forthwith. People v. Kelly, 46 Cal. 356. 64. Order when not part of judgment roll. An order of Court directing a grand jury to be summoned is not a part of the judgment roll, unless made so by a challenge, to the panel ; and, in the absence of any show- ing to the contrary, the presumption is that such order was made. Id. 65. Error in serving venire. A grand jury summoned in pursuance of a venire duly issued, is not illegal merely because the Court erroneously directed the venire to be served by the Coroner instead of the Sheriff. People v. Southwell, 46 Cal. 142. 66. Challenge to panel of grand jury. Where S, who had been indicted for a criminal offense, but was not held to answer prior to the finding of the indictment, on his arraign-, ment moved to set aside the indictment, on the ground of irregularities in selecting, sum- moning, and impaneling the grand jury : held, that the motion was in , effect a challenge to the panel. Id. 67. It is competent for the Legislature to restrict the grounds of the challenge to the panel of the grand jury. Id. 68. Grounds of challenge to panel. It was intended by Section 182 of the Practice Act to restrict the right of challenge to the panel of the grand jury to the three grounds therein enumerated. Id. 69. Insufficient cause for detaining a prisoner. The mere recommendation of a grand jury, that such party be detained to answer before another grand jury, is not of itself good cause for his detention. Ex parte Bull, 42 Cal. 197. 70. Presumption as to discretion of Court. Where the record shows that the accused was detained upon the recommenda- tion of the grand jury alone, the usual pre- sumption that the discretion of the Court was CRIMINAL LAW AND PRACTICE. 83 exeroised upon sufficient grounds cannot be indulged. Id. 71.- Discharge for failure to indict. Where a party who has been held to answer upon a criminal charge is oaot indicted by the grand jury at the term of Court next after . his commitment, he is entitled to be discharged, unless good cause be shown for his further de- tention. Id. 72. Good cause for detention of party accused. The facts constituting good cause for the detention of a party not indicted at the next term must, in a great measure, be left to the discretion of the Court, to be de- termined by the particular circumstances of each case ; and their sufficiency, or insuffi- ciency, cannot be examined by the Supreme Court through the instrumentality of a writ of habeas corpus. Id. VI. INDICTMENT. i. In general. 73. Tests of the sufficiency. In this State, Courts are required to observe and en- force the tests prescribed by Sections. 243 and 246 of the Criminal Practice Act, as to the sufficiency of criminal pleadings as paramount to the ancient rules of the common law. Peo- , pie v. Dick, 37 Cal. 277. 74. In this State the sufficiency of an in- dictment is not to be tested by the rules of the common law, but by the requirements of the Criminal Practice Act. People v. Murphy, 39 Cal. 52. 75. Two offenses. An indictment for rape, which charges the principal offense and an assault with intent to commit such offense, is not demurrable on the ground that it charges two offenses. People v. Tyler, 35 Cal. 553. 76. Two counts in indictment. If it is doubtful whether an alleged offense is larceny or a conversion of property by a bailee with intent to steal, the indictment may contain two counts, one charging a felonious taking, and the other a felonious conversion. People i». Bogart, 36 Cal. 245. 77. Separate . and distinct offenses. When an indictment charges an assault and battery only as a part of or mode of executing a forcible arrest and abduction, it is not sub- ject to the objection that it contains two separate and distinct offenses. People v. Ah Own, 39 Cal. 604. 78. Burglary and breaking and entering a ■• dwelling-house,_in the day-time, are intended by the law (Act of 1858 concerning crimes, and the Act of February 27th, 1864) to be two distinct offenses, and they cannot be made to constitute one and the same offense by means of an averment in an indictment to that effect. People v. Taggart, 43 Cal. 81. 79. Murder. An indictment against'two persons for murder may charge in one count, one as principal, and the other as accessory, and in another count the latter as principal, and the former as accessory. People v. Valen- cia, 43 Cal. 552. 80. Such indictment does not charge each defendant with two offenses, nor are the two counts repugnant. Id. 81. Waiver of defect in indictment for charging two offenses. A failure to demur to an indictment on the ground that it charges two or more offenses, operates as a waiver of such defect if it exists. People v. Burgess, 35 Cal. 115. 82. Descriptions of same offense. In a criminal case under the seventy-sixth sec- tion of the Act concerning crimes and punish- ments, the indictment in one count charged the defendant with having in his possession ' ' five hundred certain false, forgea, and coun- terfeit blank and unfinished bank bills, each made in the form and similitude of a bill for the payment of money made to be issued by * * * the chartered Bank of India, Australia and China, a foreign corporation then lawfully organized and incorporated under the laws of the United Kingdom of Great Britain and Ireland," doing business at Hongkong, with intent to procure the bills to be finished in order to utter them as genuine bills, and de- fraud the said bank. In . a second count, which was preceded by a statement that the offense charged therein was the same as that described in the first count, it charged that the bills were in the form and similitude of bills for the payment of property : held, that it was but a different description of the same offense, and that there was nothing repugnant in say- ing that the unfinished bills have the form and similitude of those which have been finished. People v. Ah Sam, 41 Cal. 645. 2. Offense, how charged. 83; Statement as to person injured. The statutes for the incorporation of the City of San Jose are entitled an Act to incorporate " The City of San Jose"; and, after describing a certain tract of land situated in Santa Clara County, "now called the City of San Jos6" further declare "that it shall henceforth be known as the City of San Jos6." But said Acts provide for a city government, to be a body politic and corporate, by the name and style of " The Mayor and Common Council of the City of San JoseV' P was indicted for the embezzlement of the moneys of the City of San Jos6, a municipal corporation in Santa Clara County, in the State of California, under and by virtue of certain statutes, etc., citing to said corporation Acts : held, first, that although the name of the owner of the money was wrongly stated in this indictment, yet the of- fense was, in other respects, described with 84 CRIMINAL LAW AND PRACTICE. such certainty as to clearly identify the apt intended ; and, second, that such erroneous allegation as to the person injured became im- material under the provisions of the two hundred and forty-third section of the Crim- inal Practice Act. People v. Potter, 35 Cal. no. 84. Description of offense. In charging an offense it is not necessary to follow strictly the language of the statute by which it is de- fined. Words conveying the same meaning may be used. People v. Potter, 35 Cal. no. 85. Though an indictment give an erro- eous appellation, or fail to give any appella- tion to the offense, if the acts constituting the offense, as denned by the statute, are suffici- ently stated, the requirements of the Criminal Code in. that respect are answered. People v. Phipps, 39 Cal. 326. 86. Statement of facts as unknown. Pacts not vital to an accusation, and constitu- ting merely matter of description, may be stat- ed in an indictment as unknown to the Grand Jury, if such is the case. People v. Bogart, 36 Cal. 245. 87. Sufficiency of. If the indictment is certain as to the person and the offense charged, and states all the acts necessary to constitute a complete offense, it contains all that is re- quired by the Criminal Practice Act. People i'. Murphy, 39 Cal. 52. 88. In those cases in which it requires the concurrence of several acts, or the doing of the act under particular circumstances, to con- stitute an offense, the indictment should state the necessary acts and circumstances. Id. 89. If the language employed in the charg- ing part of an indictment be capable of two in- terpretations without doing violence to its terms, only one of which imports a charge of larceny, the indictment is bad. People v. Williams, 35 Cal. 671. 90. An indictment should state facts which, if true, would necessarily import that the crime imputed to the defendant had been committed. Id: 91. Disjunctive and conjunctive aver- ments. Where the statute enumerates several acts disjunctively, which separately or to- gether shall constitute the offense, the indict- ment, if it charges more than one of them, which it may do, and in the same count, should do so in the conjunctive ; and the indictment will be held bad on demurrer when such acts are stated in the disjunctive. But this rule has no application where the words used disjunctively in the statute are synonymous. People v. Tomlinson, 35 Cal. 503. 92. Allegation of ownership of prop- erty. If stolen property belonged to a part- nership, the indictment should state the names of the several persons who composed the firm ; but if it belonged to a corporation, the indict- ment should state the corporate name and that it is a corporation. People v. Bogart, 36 Cal. 245. 93. Allegation of name of thief un- necessary. In an indictment for receiving stolen property, the allegation of the name of the person who stole the goods, or that his name is unknown to the Grand Jury, is un- necessary and immaterial. People v. Avila, 44 Cal. 197. v 94. Against public officer. — Descrip- tion of office. An allegation in an indict- ment presented after the passage of the Act of April 6th, 1863, " to provide for the mainte- nance and supervision of common schools," charging the defendant as " Superintendent of Common Schools," is a sufficient description, under that Act, of the office held by defend- ant. People v. Doss, 39 Cal. 428. 95. Jurisdictional facts. When the of- fense charged consists of one transaction occur- ring partly in one county and partly in another, the indictment should state the facts, so as to bring, the case within the statute. People v. Ah Own, 39 Cal. 604. 3. Sufficiency of, in various actions., 96. As accesssory before the fact. An indictment, charging a person as an accessory before the fact to the crime of murder, must allege the death of the person assaulted, and that the crime of murder was committed. Peoples. Crenshaw, 46 Cal. 65. 97. For arson. An indictment for arson, which charges that the defendant, at a time named, was in the county where it is found, and then and there feloniousiyburned a build- ing, sufficiently shows that the offense was committed at a place within the jurisdiction of the Court. People v. Wooley, 44 Cal. 494. 98. In an indictment for arson, the build- ing burned may be alleged to have been the property of one not the owner, but who was occupying it as a residence when it was burn- ed. Id. 99. Assault with deadly weapon. An indictment for an assault with a deadly wea- pon, with intent to do bodily injury to anoth- er, may, in general terms, aver the assault to have been made "with a deadly weapon." People v. Congleton, 44 Cal. 93. 100. The weapon by name does not, in such case, become a necessary ingredient of the crime, but the nature of the weapon, as being deadly or otherwise, is alone important ; and it is essential to aver it in some appropriate way to have been deadly in its character. Id. 101. Burglary. The hour of the night at which a burglary is committed need not be laid in the indictment ; and, if laid, need not be proved as laid. People v. Burgess, 35 Cal. 115. 102. In an indictment for " entering a CRIMINAL LAW AND PRACTICE. 85 room or ap'artment, -with the intention to com- mit larceny," it is right to charge the owner- ship of the room to be his who rented it from one who had the general supervision and con- trol of the whole house, and occupied the same as a lodger. People v, St. Clair, ,38 Cal. 137. 103. In an indictment for burglary, an allegation that the prisoner, in the night-time, entered feloniously, burglariously, and with force and arms, is substantially to say felonice et burglariter fregit. People v. Long, 43 Cal. 445- 104. -Counterfeiting. In an indictment for the possession of counterfeit coin, with the intention to utter the same, the knowledge of the defendant of the spurious character of the coin is sufficiently charged by the allegation that the defendants " wilfully, feloniously and knowingly did have in their possession," etc. People v. Stanton, 39 Cal. 698. 105. Embezzlement. In an indictment against P for the embezzlement of the moneys of the "City of San Jose," the municipal government of which, as appears from the legislative Acts of its incorporation, was vested in a Mayor, a Common Council consisting of six members, a City Marshal, a City Clerk, and 0. City Treasurer, it was alleged that he was, at the time the act charged was com- mitted, "the City Marshal ": . held, that it sufficiently appeared from the indictment that P was at said time an officer of the corporation. People v. Potter, 35 Cal. no. 106. An indictment for embezzlement should state the description of the property embezzled, with the same particularity as is required in an indictment for larceny. People v. Cox, 40 Cal. 275. 107. The omission, in an indictment for embezzlement, to state any description or character whatever of the stolen money is a fatal objection, whenever presented during the progress of the cause. Id. 108. Forgery. To constitute forgery, the forged instrument must be one which, if genuine, may injure another ; and it must appear from the indictment charging the of- fense that such is its legal character, either from its recital or description of the instru- ment itself ; or, if that does not show it to be so, then by the averment of matter aliunde which will show it to be of that character. People v. Tomlinson, 35 Cal. 503. 109. An indictment against T for forging and uttering an instrument in writing with intent to defraud J and C, merely recited the instrument charged to have been forged, with- out alleging any facts aliunde adding to its face — which instrument, from aught appear- ing on its face, was a nudum pactum : held, that a demurrer to the indictment, on the ground that it did not state facts sufficient to constitute a cause of action, was well taken. 'IS. 110. Larceny. An indictment charged defendant with the larceny of two hundred and fifty sheep, of the value of $1000: held, that a demurrer to the indictment for insuffi- ciency, on the ground that the value of each sheep should be separately stated, was properly overruled. People v. Eobles, 34 Cal. 591.. 111. An indictment against W charged ' that he " did unlawfully and feloniously take, steal, and carry away from the mining claim of the B. M. Co. * * * fifty-two pounds of gold-bearing quartz rock, the personal prop- erty of said B. M. Co., of the value of $400," under which W, having been convicted of grand larceny, the Court below arrested the judgment, on the ground that the indictment did not charge the commission of a felony, and was insufficient : held, that the judgment was properly arrested. People v. Williams, 35 Cal. 671. 112. Stolen property, if money, should be described in the indictment as so many pieces of current gold or silver coin, specifying the species of coin ; but if the^ species of coin be unknown to the grand jury, they may so state in lieu of such specification. People v. Bogart, 36 Cal. 245. 113. Under the Statute of March 28th, 1868, providing that feloniously stealing and taking away of any horse, mare, or gelding, etc., shall be deemed grand larceny, it is not necessary to state in the indictment' the value of the animal alleged to have been stolen. People v. Townsley, 39 Cal. 405. 114. Allegation of ownership in in- dictment for larceny. An allegation of the ownership of the stolen property is essential in an indictment for larceny, unless the offense is otherwise sufficiently described. People v. Hughes, 41 Cal.' 234. 115. Venue. In a prosecution for lar- ceny, the venue may be laid in any county into which the stolen prop'erty may be con- veyed. People v. Mellon, 40 Cal. 648. 116. When the venue has been laid in the county to "which the stolen property has been brought, it is not necessary to state in the in- dictment facts showing the commission of the larceny in "another county. Id. 117. Sufficient charge of stealing. In an indictment for larceny, for stealing a cow, it is sufficient to charge that the defendant "did steal, take and carry away," without adding the words "lead, or drive away." People v. Strong, 46 Cal. 302. 118. Murder. In an indictment for murder ," the allegation of "express malice" is unnecessary, and, if made, need not be proved in order to justify a verdict of guilty in the first degree. The proper allegation is of " malice aforethought." People v. Bonilla, 38 Cal. 699. 119. The statement, in an indictment for murder, of the means by which the killing 86 CRIMINAL LAW AND PRACTICE. was accomplished, can never become material in ascertaining the offense charged. People v. Murphy, 39 Cal. 52. 120. In an indictment for murder it was charged that the accused, " on the fourth day of September, A. D. 1870, at the county and State aforesaid, did feloniously, -willfully, maliciously, and of his malice aforethought, shoot, kill and murder one Enoch Barnes" : held, to be a sufficient charge of the death of Barnes. People v. Sanford, 43 Cal. 29. 121. Rape. Where the charging party of an indictment for rape was in the words of the statute defining that offense : held, suffi- cient. People v. Burke, 34 Oal. 661. 122. Receiving stolen property. A <;harge in an indictment, which alleges that the defendant received certain stolen property for his own gain, knowing that it was stolen property, is sufficient, without alleging that he received it both for his own gain and to prevent the owner from again possessing his property. People v. Avila, 43 Cal. 197. 123. In a separate trial of one of three de- fendants, jointly indicted for grand larceny committed in one county, the evidence proved that the defendant on trial was not present in the county at the time of the theft, and did not participate in the larceny, but subse- quently, with a guilty knowledge that it was stolen, received the stolen property in another county, and aided in disposing of the same for the joint benefit of himself and the perpe- trator of the larceny : held, that the defend- ant cannot be convicted of the larceny in the county where the crime was committed. Peo- ple v. Stakem, 40 Cal. 599. VH. PROCEEDINGS AETER INDICT- MENT AND BEFORE TRIAL. 1. Bench warrant. 124. Issuing bench warrant. The peti- tioner, who had surrendered himself into the custody of the Sheriff on a charge of murder, and had been admitted to bail by the County Judge, was thereafter indicted for murder by the grand jury of the proper county, whereupon he was again arrested and held in custody by the Sheriff, under a bench warrant therefor, issued by the County Court : held, that the Court did not exceed itsgurisdiction in issuing the bench warrant, and that the detention of the petitioner under it was lawful. Ex parte Cook, 35 Cal. 107. 125. The County Court is not fettered in the exercise of its jurisdiction over the person of the defendant, after an indictment has been found against him, by reason of any proceed- ings previously had. in the premises. If bail has been taken, and is deemed sufficient secur- ity for the defendant's appearance, the Court may permit it to stand ; if not, the Court may order him into custody either for the purpose of procuring additional bail, or for his deten- tion until trial, if deemed by the Court to be a case in which bail ought not to be taken. Id. , 2. Setting aside indictment. 126. Errors and irregularities. ' The defendant, when not previously held to answer, must avail himself of errors and irregu- larities in the proceedings resulting in the presentation of the indictment, by motion, to set aside the indictment before plea. People v. Turner, 39 Cal. 370. 127. Motion to set aside an indictment. The grounds for setting aside an indictment 1 enumerated in Section 278 of the Practice Act, are irregularities in the proceedings of the grand jury after it has been organized ; and the clause providing that the indictment shall be set aside where not found as prescribed , in the Act, will not support a motion to set ' aside an indictment, on the ground that the grand jury was not properly selected, sum- moned, or impaneled. People v. Southwell, 46 Cal. 142. 128. Irregularities in grand jury. Un- der Section 278 the motion to set aside the indictment is addressed to irregularities in the proceedings of a valid grand jury, and not to irregularities in its formation. People v. Southwell, 46 Cal. 142. See Ante, 66. 3. Demurrer and plea. 129. Demurrer. Demurrer to the form or sufficiency of the indictment, or to the ju- risdiction of the Court, must be taken prior to the joinder of issue of fact by plea. People b. Turner, 39 Cal. 370. 130. Demurrer to an indictment, on the ground that it charges two offenses, is per- mitted by Section 289 of the Criminal Prac- tice Act. People v. Taggart, 43 Cal. 81. 131. Plea of guilty to be express. The plea of a defendant confessing himself to be guilty of a crime should not be entered except with his express consent, given by him personally in direct terms in open Court. People v. McCrory, 41 Cal. 458. 132. Withdrawal of plea. A party should not be permitted to trifle with the Court by deliberately entering a plea of guilty on one day and capriciously withdrawing it the next. Id. 133. When permitted. When there is reason to believe that a plea of guilty has been entered through inadvertence and without due deliberation, or ignorantly, and mainly from the hope that the punishment to which'the accused would otherwise be exposed may thereby be mitigated, the Court should be in- CRIMINAL LAW AND PRACTICE. 87 diligent in permitting the plea to be with- drawn. Id. 134. Judicial discretion. In such cases allowing the plea of guilty to be withdrawn, the Court must necessarily exercise a sound discretion, andsuch discretion will not be in- terfered with except when abused. Id. 4- Deft 135. Acquittal for variance 'when a bar to subsequent prosecution. If a party be acquitted on the ground of an immaterial ' variance, he cannot be again prosecuted for the same offense. The error of the Court or jury, in regarding as material a variance be- tween the allegations and proof, will not ren- der the acquittal less available and conclusive as a bar to a subsequent prosecution. But if the variance be material, the acquittal will not bar a subsequent prosecution. People v. Hughes, 41 Cal. 234. 136. Discharge of jury in a criminal case. The discharge of the jury impaneled in a criminal case, without the consent of the defendant, because, after mature deliberation, they are unable to agree on a verdict, is not an acquittal of the defendant, and does not entitle him to immunity from further prosecution for the same offense. Ex parte McLaughlin, 41 Cal. 211, 137. Jeopardy as a defense. The trial of a party for a crime, under a sufficient in- - dictment, and by a jury duly impaneled, sworn, and charged with the case, nothing having been done upon his part which amounts to a voluntary waiver of his rights, is a complete defense as against any future indictment for the same offense, even if the judgment was ar- rested by the Court. Ex parte Hartman, 44 Cal. 32. See Constitutional Law, 19, 20. 138. Effect of conviction. A defendant indicted for an offense is indicted for every of- fense of a lesser grade that may be included under it, and if convicted of one of the lesser offenses, cannot, if a new trial is granted, be again tried for a higher offense than that of which he was convicted. People v. Apgar, 35 Cal. 389. 139. Defense of once having been in jeopardy. If a prisoner is put on his trial, and the jury disagree, and the term is adjourned without anything of record to show that the jury was discharged, and if the prisoner is entitled to his discharge on account of such facts, he must avail himself of such defense when he is put on his trial again, and by appeal, if judgment should be rendered against him. Ex parte Cage, 45 Cal. 248. 140. Insanity. It is only of habitual in- sanity, when proved once to have existed, that the law entertains the presumption that it con- tinues, until the contrary is shown — otherwise of spasmodic, or temporary mania. People v. Erancis, 38 Cal. 183. 141. Present insanity— duty of Court. No plea of present insanity is required. If, at any time during the proceedings in a crim- inal trial, a doubt arises as to the sanity of ■ the defk.., dant, it is the duty of the Court, of its own niol/ion, to suspend further proceedings in the case until the question of sanity has been determined. People v. Ah Ying, 42 Cal. 18. 142. Right and power of counsel. Coun- sel for the defendant cannot waive an inquiry as to the question of the sanity of the defend- ant, nor can he compel the Court to enter upon such, an inquiry, where no ground for such doubt exists. Id.- 143. Drunkenness no excuse for crime. Insanity produced by intoxication does not de- stroy responsibility for the commission of a crime, when the party who committed the crime, when sane, voluntarily made himself in- toxicated. People v. Lewis, 36 Cal. 531; Peo- ple v. Williams, 43 Cal. 344. 144. Evidence of drunkenness as ex- cuse for guilt. Drunkenness is no defense to the fact of guilt. Evidence of drunkenness can only be received and considered by the jury for the purpose of determining the. degree of guilt, and for this purpose it should be received with great caution. People v. Lewis, 36 Cal. [ ' 53«- 145. Drunkenness in connection with premeditation. Drunkenness cannot be given in evidence as an excuse for crime ; but when, in a case of homicide, the jury are to pass on the question of premeditation, for the purpose of fixing the degree of the crime, drunkenness may be taken into consideration for the purpose solely of passing on the fact of premeditation, keeping in view the fact that a drunken man may act with premeditation as well as a sober ■ one. People v. Williams, 43 Cal. 344. 146. Threats as excuse for assault. Mere threats antecedently made amount to no excuse for a deadly assault, when the party as- sailed had made no demonstration of a hostile or equivocal character- People v. Wright, 45 Cal. 260. 1 VIII. EVIDENCE.. 1. In general 147. Evidence necessary to convict. The evidence in a criminal case must satisfy the jury, to a moral certainty and beyond a reasonable doubt — that is, it must entirely sat- isfy the jury — of the guilt of the defendant, before they can convict. If the jury are not entirely satisfied, they should acquit. People v. Padillia, 42 Cal. 536. 148. A party indicted as principal, cannot be convicted upon evidence tending only to 88 CRIMINAL LAW AND PRACTICE. show that he was an accessory before the fact. People v. Trim, 39 Cal. 75. 149. No conviction should be had unless the jury is "entirely satisfied," from the evi- dence, that the defendant is guilty. People v. Phipps, 39 Cal. 326. 150. Independent facts. "Where inde- pendent facts and circumstances are relied upon to identify the accused as the person com- mitting the offense charged, each essential in- dependent fact in the chain or series of facts relied upon to create a presumption of guilt must be established to a moral certainty, or beyond a reasonable doubt. Id. v 151. Inference of guilt from circum- stantial evidence. The law does not require, in order to justify the inference of legal guilt in cases of circumstantial evidence, that the existence of the inculpatory facts must be ab- solutely incompatible ■with the innocence of the accused, and incapable of explanation upon any other reasonable hypothesis than that of guilt. The true rule is, that the facts shall not only be consistent with the guilt of the accused, but inconsistent with any other rational conclusion. People v. Murray, 41 Cal. 66. 152. Defendant entitled to benefit of doubt. If a person is killed by a bullet fired from a pistol, and two persons each at the same time fire loaded pistols at him, and one of the persons who fired is on trial for murder, and there is no evidence of a conspiracy between the two persons who fired, and the jury are in doubt as to which shot killed the deceased, the defendant is entitled to the benefit of that doubt. People v. Woody, 45 Cal. 289. 153. Presumption of character of or- dinary fairness. The presumption of a char- acter of ordinary fairness, with which the law for the purposes of trial clothes a person accus- ed of crime, is one to which he is entitled and which cannot be put in peril, unless he, by in- troducing testimony in reference thereto, elects to put it distinctly in issue. People v. Fair, 43 Cal. 137. 154. Proof of good character a fact for the jury. When the proof adduced by the prosecution tends to overthrow the presump- tion of innocence with which the law clothes the accused, and to fix upon him the perpetra- tion of the crime, the latter is permitted to support the original presumption of innocence by proof of the fact that his personal character in the trait involved in the charge has been previously good. People u. Ashe, 44 Cal. 288. 155. The good character of the prisoner, when proven, is itself a fact in the case ; it is a circumstance tending in a greater or less de- gree to establish his innocence, and it is not to be put aside by the jury, in order to ascertain if the other facts and circumstances considered by themselves do not establish his guilt beyond a reasonable doubt. Id. 156. Evidence of good character in criminal case. On a trial for larceny, if the defendant introduces testimony tending to show his good character, the jury cannot dis- regard this testimony, but must take it into consideration with the testimony tending'to establish his guilt. People u. Raina, 45 Cal. 292. 157. Admissions of District Attorney. Admissions of a District Attorney as to the acts of a prosecuting witness, made during a trial, are to be considered for all the purposes of the trial to which they are relevant in the same light as if they had been proved by testi- mony. People v. Tyler, 36 Cal. 522. 158. Confession as evidence. The con- fession of a party, made to a Sheriff arresting him for grand larceny, after being told by the officer that it was Tiseless to deny taking the property, that there was evidence to convict him, and that it would go lighter with him to confess, is not a voluntary confession, and can- not be properly given in evidence. Peoples. ' V: Johnson, 41 Cal. 452. 159. When a person charged with the commission of a crime is arrested and held in custody more than twenty-four hours without , being taken before a magistrate, voluntary con- fessions made by him to the officer are not to s ' be excluded as evidence, on the ground that he was illegally in custody after the twenty-four hours expired. People 1;. Devine, 46 Cal. 46. , 160. If such a confession be, in substance, »-SJ repeated before an examining magistrate a ' ■,"■" few days after the arrest, and reduced to the form of a written statement, the statement is inadmissible as evidence, by reason of its hav- ing been originally made under such induce- • ments as to exclude the first confession. Peo- ple v. Johnson, 41 Cal. 452. 161. Presumptions of law. The law presumes the subsequent confession to have s been made and influenced by the same hopes and fears as the first, and this presumption continues until it be affirmatively established by the prosecution that the influences under which the original confession was made had ' ceased to operate before the subsequent con- fession was made. Id. 162. Confessions, when admissible. A confession made to an officer who has the pris- oner in custody, whether it appear to have ' ' been made voluntarily or not, is admissible, if it was not induced by improper means. Peo- ple v. Long, 43 Cal. 445. 162.}. Witness, when incompetent. A witness who has a very imperfect knowledge of the language employed, in the conversation, f and did not understand the whole of the con- versation in which the supposed confession was made to him by the accused., is incompetent to testify as to such confession. People v Grela- bert, 39 Cal. 663. 163. What constitutes part of the res gestae. Declarations which were voluntarily CRIMINAL LAW AND PRACTICE. and spontaneously made, springing out of the principal transaction, and tending to explain it, and were made at a time so near to, although not precisely concurrent with it, as to preclude the idea of deliberate design, are to be regarded as contemporaneous with it, and are admissible in evidence as part of the res gestm. People v. Vernon, 35 Cal. 49. 164. Sheriff may testify to statements cf accused. The Sheriff may testify to state- ments made to him by the accused after his arrest, if such statements are made voluntar- ' ' ily , without any threats or promises of reward. People v Rodundo, 44 Cal. 538. 165. Acts and exclamations of wife. Evidence of the acts and exclamatious of , the wife of the prisoner, made and performed at the ' time of the killing, and in his presence or " " hearing, is admissible on behalf of the prose- cution. People v. Murphy, 45 Cal. 137. 166. Declarations of an accomplice. Upon the separate trial of one of the alleged confederate's in the commission of a criminal offense, after evidence has been introduced to establish the confederation or conspiracy, suf- - - ficient in the opinion of the Court to go to the jury, any act or declaration of either confed- erate, in furtherance of the object and purpose of the confederation, is competent against the other. People v. Trim, 39 Cal. 75. 167. It is not competent to use as evidence against one on trial for an alleged crime, the statements of an accomplice not given as tes- timony in the case, nor made in the presence of the defendant, nor during the pendency of the criminal enterprise and in furtherance of its objects. People v. Moore, 45 Cal. 19. 2. Corroborative evidence. 168. Evidence of an accomplice. To justify a conviction upon the testimony of an accomplice, there must be some evidence which of itself, and without the testimony of the accomplice, must tend in some degree to connect the accused with the commission of the crime. People v. Melvane, 39 Cal. 604. 169. To obtain a conviction on the testi- mony of an accomplice, there must be corrobo- rative evidence tending to criminate the ac- cused, aside from and without the aid of the testimony of the accomplice. People v. Ames, 39 Cal. 403. 170. Where the only evidence is the testi- mony of the woman upon whom the attempt to produce an abortion was made, it must be corroborated in respect to some of the mate- rial facts which constitute a necessary element of the crime. People v. Josselyn, 39 Cal. 393. 171. Any evidence, in addition to that of the witness, tending to show a criminal intent on the part of • the defendant, would be a suffi- cient corroboration of her testimony to bring , , (the case within' the statute, although it might differ from hers as to the particular, method employed to produce the abortion. Id. 172. Proof that part of the stolen property was found on the next day after the theft on the person of the accused, is such corroborat- ing evidence as may warrant a conviction upon the further testimony of an accomplice. Peo- ple v. Melvane, 39 Cal. 614. 3. Miscellaneous decisions. 173. Depositions. The deposition of ab- sent witnesses who reside out of the State, and who are not amenable to the processes of our Courts, is expressly prohibited by the provis- ions of the Criminal Practice Act. People v. Francis, 38 Cal. 183. 174. Conduct of third person. When the testimony has established the complicity of a third person, not on trial, in the perpetra- tion of the criminal act, evidence of the con- duct of that person is admissible against the accused. People 1). Murphy, 39 Cal. 52. 175. Proof of incorporation by repu- tation. Where an indictment for possessing counterfeit bills charged that the bills were in the form of the bills of an incorporated bank- ing company, doing business in Hongkong : held, that it was competent to prove by repu- tation the existence and incorporation of the company. People v. Ah Sam, 41 Cal. 645. 176. Evidence of Justice inadmissible. The evidence of the committing magistrate, as to the statement made by 1 the prisoner on his preliminary examination, is not admissible on his trial. People v. Gibbons, 43 Cal. 557. 177. Proof of "locus delicti." Where the evidence tended to show that the offense charged in the indictment was commit- ted at a certain saloon, but there was nothing in the record tending to show that the saloon was situated in the county, there was a failure to prove the locus delicti. People v. Parks, 44 Cal. 105. See Post, 185. 178. Proof of -what witness testified on former trial. In a criminal case, proof may be introduced of what witness testified to on a former trial, if the witness has left the State. People v. Devine, 46 Cal. 46. 179. To prove what a witness swore to on a former . trial, is producing the testimony anew, and is not using or referring to the for- mer verdict, and does not, therefore, conflict with Section 439 of the Criminal-Practice Act. Id. 4. Evidence in particular actions. 180. Abortion evidence of pregnancy. In a prosecution for an attempt to produce an abortion it is competent to prove by the wit- ness, on whom the offense was alleged to have been committed, not only the fact that she 90 CRIMINAL LAW AND PRACTICE. was pregnant, but all the circumstances tend- ing to show her pregnancy. People v. Jos- selyn, 39 Cal. 393. 181. Adultery. Proof of notoriety is as material as proof of the fact of adultery, in making out the offense of living in a state of open and notorious cohabition and adultery. People v. Gates, 46 Cal. 52. 182. Arson. Upon the separate trial of one of two parties on an indictment for arson, in burning a building covered by insurance, with the intent to defraud the insurer, the at- tempt of the other party to procure the payment from the insurer of the amount of the loss insured against, is competent evi- dence as acts and declarations of a co-con- spirator, in furtherance of the original pnrpose of the conspiracy to defraud the insurer. Peo- ple v. Trim, 39 Cal. 75. 183. Proof against one indicted as principal. It is not necessary to the convic- tion of a party under an indictment, charging him as principal in the offense of arson, that the evidence should establish that he burned the house himself, or applied the torch to the building with his own hand. Id. 184. Larceny. — Identity and ownership of stolen goods. Where, on the trial of K for the larceny of certain articles of clothing, M testified that she had lost the articles men- tioned in the indictment, and that the stolen goods were hers, and B testified that while tracking K- on the morning of the theft, he had found a bundle containing the articles named in the indictment : held, that the evi- dence sufficiently established the ownership and identity of the stolen property. People v. Keane, 43 Cal. 639. 185. Locus delicti. In such case, where the venue had been laid in the county to which the stolen property had been brought, it is competent to the prosecution to prove that the property was stolen in another county, before it was brought into that in .Which the venue is laid. People v. Mellon, 40 Cal. 648. See Ante, 177. 186. Attempt to escape when arrest- ed for larceny. If a person, when arrested on a charge of larceny, and after being in- formed of the cause of his arrest, escapes, or attempts to escape, it is a circumstance that the jury may Consider in determining his guilt or innocence. People v. Strong, 46 Cal. 302. 187. Murder. — Evidence of character of deceased. It is not a material question whether the deceased was, in fact, a man of dangerous character ; it is his reputation, as such, that constitutes the legitimate subject of inquiry. People v. Anderson, 39 Cal. 703 . 188. Bad character of prisoner. In a criminal case, proof of bad character of the deceased is admissible only when it tends in some way in connection with the immediate circumstances under which the killing was done, to show that the prisoner had sufficient grounds, as a reasonable man, to fear that he was himself about to receive at the hands of the deceased some great bodily harm, and that he acted under the influence of fear in killing the deceased. People v. Edwards, 41 Cal. 640. 189. Murder by a mistress. — Defend- ant's general character for chastity. Where, on the trial of a woman for the mur- der of a man with whom she had been having unlawful intercourse, defendant's counsel took the ground that her prospects had been ruined by the acts of the deceased, and intro- duced testimony tending to show, and for the purpose of showing, that fact ; and, in view of such position taken by counsel and. the testi- mony offered by him, the prosecution was al- lowed in rebuttal to prove, against defendants objection, that her general character for chas- tity was bad : held, error. People v. Pair, 43 Cal. 137. 190. General character of accused not involved. On a trial for murder, proof of the general character of the accused is not re- ceived, even on his own behalf— the inquiry in such cases being confined, when pertinent at all, to the general character as to the trait in- volved in the offense charged. People v. Fair, 43 Cal. 137. 191. When her general character for chastity may be attacked. The general character for chastity of a female charged with the murder of a man is no more necesn sarily involved in the question of her guilt or innocence than her general character in any other respect ; and on the trial of such a per- son, the prosecution will not be allowed to in- troduce testimony upon the point, unless the defendant initiate the inquiry. Id. 192. The fact that the defense made by a woman charged with the murder of a man is rendered more formidable, when considered in connection with the good character which the law presumes her to possess, does not of itself open the door for the prosecution to prove that her general character for chastity is bad. ' Id. 193. Statements of persons since de- ceased. A defendant indicted for murder cannot introduce in evidence, on his own be- half, statements of the deceased concerning the circumstances attending the difficulty in which he was wounded, made three days after he was wounded, but when he was in his right mind and did not expect to die. People v. McLaughlin, 44 Cal. 435. 194. It is not intimated that such state- ments would be admissible as evidence, even if they had been dying declarations of the de- ceased. Id. 195. Declarations in extremis. Declar- ations of the deceased concerning the circum- stances attending the receipt of his fatal) wounds were made while realizing himself to be in a dying condition, although made early CRIMINAL LAW AND PRACTICE. 91 in the morning, and his death occurred at three o'clock p. M. of the same day : held, that they were admissible in evidence against defendant, who was on trial charged with the murder of the deceased. People v. Vernon, 35 Oal. 49. 196. Written memoranda df the same. The fact that a written statement of the dec- larations made by the deceased in extremis was at the time verified by him, and introduced in evidence at the trial of the party 1 thereby ac- cused of the murder, furnishes no objection to the introduction of other and independent evi- dence of the same or similar declarations. Id. 197. Declarations of a deceased, made three or four days before he was killed, which do not have any appreciable bearing on the merits of the case, are not admissible in evi- dence on a charge of murder, on behalf of the defense, pn the trial of the person by whom he was killed. People v. Murphy, 45 Oal. 137. 198. Threats as evidence. Threats made by the defendant are admitted for the purpose of showing malice, and thereby in- creasing the probabilities that he committed the offense. People v. Scoggins, 37 Oal. 676. 199. Threats made by the deceased or in- jured party, if known to the defendant at or prior to the transaction, are admitted, for the purpose of showing that the circumstances of the offense, were such as to excite the rea* sonable fears of the defendant that his life was in danger, or that he was in danger of serious bodily injury, and thus justify his act. Id. 200. In a case of homicide, where it is doubtful which party commenced the affray, threats made by the deceased are admissible on the part of the defendant, although unknown to him at the time of the homicide, as facts tending to illustrate the question as to which which was the first assailant. Id. 201. Inadmissible evidence. Where a party on trial for murder offered to prove that the deceased had s'aidj in conversation some three' years before the killing, that he had en- emies in the county who, he was afraid, would take Iris life : held, that the evidence was properly excluded. People v. Renfrow, 41 Oal. 37. 202. Evidence of abusive language merely. When and how far admissible in murder trial, see facts. People v. Taylor, 36 Cal. 255. 203. Rape. On the trial of one indicted for rape, testimony to prove that the defendant had beaten and harshly used the prosecuting witness at various times, is inadmissible. Peo- ple v. Tyler, 36 Cal. 522. 204. If, on such trial, the defendant intro- duces testimony to impeach the character of the prosecuting witness for chastity, the pros- ecution may introduce testimony to support her general character for chastity. Id. IX. CONDUCT OF THE TEIAL. 1. Forms of procedure. 205. Procedure under the Code. Per- sons accused of crimes alleged to have been committed before the Penal Code took effect, are to be tried in accordance with the forms of procedure provided in the Code. People v. Mortimer, 46 Cal. 114. 2. Bights of prisoners. 206. Right Of prisoner to appear for trial -without irons. By the common law, a prisoner is entitled to appear for trial, upon his own plea of not guilty, free from all man- ner of shackles or bonds, unless, there is danger of his escape. People v. Harrington, 42 Cali 165. 207. To require a prisoner during the pro- gress of his trial to appear and remain with chains and shackles upon his limbs, without evident necessity as a means of securing his presence for judgment, is a violation of the common law rule and of the thirteenth section of the Criminal Practice Act. People v. Har- rington, 42 Cal. 165. 3. Postponement. , 208. Affidavit for postponement. An affidavit which states that affiant believes he can procure the attendance of witnesses re- siding out of the State, or their depositions, by the next term' of Court, is defective— being in the alternative. People v. Francis, 38 Oal. 183. 209. If, in an affidavit for postponement of trial, the defendant states, on information and belief, that he can procure the personal attendance of witnesses from a distant country, he must also set forth the reasons of his belief, and the nature of his information, or the showing will be insufficient. Id. 210. For absence of evidence. To en- title ™. party to a continuance on the ground of the absence of evidence, the affidavit must show the materiality of the facts which he expects to prove by the absent witness. People - u. Mellon, 40 Cal. 648, 211. For absence of witnesses. Where there is a sufficient showing as to the ma- teriality of absent witnesses, and no apparent lack of diligence in the effort to procure their attendance, a motion to continue a cause for the term, particularly if it be the first appli- cation, should be granted. People v. McCrory, 41 Cal. 458. 212. In a criminal case, if the defendant has 1 relied on the promise of a material witness to attend the trial the first time the case is called after the indictment is found, and for 92 CRIMINAL LAW AND PRACTICE. that reason has omitted to take his deposition, and the -witness resides beyond the jurisdiction of the Court, a continuance should be granted. People v. Brown, 46 Cal. 102. 213. Discretion of Court. If the facts shown on an application for a continuance in a criminal case cast suspicion on the good faith of the application, and induce the belief that it was intended only for delay, the Court will not abuse its discretion in refusing it. People v. Mortimer, 46 Cal. 114. 214. Insufficient grounds. If the per- son indicted for murder, at the time and just before he killed the deceased, stated that he was about to kill him, and asked others to witness the killing, the absence of a witness who saw the defendant and "the deceased hare a friendly conversation the day before, is no ground for a continuance, for the fact, if sworn to, would be no defense. People v. Williams, 43 Cal - 345- 4. Change of place of trial. 215. Motion to change place of trial. An application to change the place of trial in a criminal case is addressed to the sound dis- cretion of the Court, and is to be disposed of in furtherance of substantial justice. People v. Congleton, 44 Cal. 93. 216. In an application for a change of the place of trial in a criminal case, where the affidavits set forth merely that in the belief or opinion of the affiants the prisoner could not have a fair trial,' owing to the popular preju- dice against him, and where there was no difficulty in obtaining a jury wholly free from bias or prejudice against the prisoner, it was no abuse of the discretion of the Court to deny the motion. Id. 5. Impaneling jury. 217. Summoning trial jury. If no •trial jury has been drawn before the term, and a necessity for one arises during the term, the District Court may order a trial jury to be summoned by the Sheriff. It is immaterial whether the cause for this necessity arose be- . fore or after the commencement of the term. People v. Williams, 43 Cal. 344. 218. Impaneling jury. Twelve names must be drawn from the box by the clerk, and the defendant must be allowed to examine the whole twelve before exercising his right of peremptory challenge as to any ; and those not challenged or excused must then be sworn ; after which as many more names as will make up the deficiency must be drawn, when the same process must be repeated until the jury is completed. (Sanderson, J., and Sprague, J., dissenting.) Peoples. Scoggins, 37 Cal. 676. 219. Panel, definition of. The word " panel " includes within its definition the jurors returned upon a special venire to fill out the deficiency, after the regular " panel " has been exhausted. People v. Coyodo, 40 Cal. 586. 220. » In criminal cases, twelve jurors must be called, and the defendant may examine the whole twelve, and must then exercise-his right of peremptory challenge on those not excused for cause, and those not challenged must be sworn to try the issue. Enough jurors must then be called to fill up the number to twelve, and the same process must be repeated as to the new jurors called, until the jury is com- plete. People v. Russell, 46 Cal. 121. 6. Challenges. 221. Challenge to panel. A challenge may be made to the panel, on account of any bias of the officer summoning them, which would be good ground of challenge to a juror. People v. Coyodo, 40 Cal. 586. 222. A peremptory challenge cannot be allowed after a juror is sworn to try the issue, except for cause shown. People v. Russell, 46 Cal. 121. 223. Peremptory challenge. It is error for the Court to direct the Clerk to draw but one name at a time, and require the par- ties to examine him for cause, and interpose, if at all, a peremptory challenge before an- other name is drawn, and then direct him to be sworn to try the case. People v. Scoggins, 37 Cal. 676. 224. If a party omit to challenge a juror peremptorily until after he has been sworn, he may be permitted to do so, for good cause shown, at any time before the jury is com- pleted, but not thereafter. People v. Scog- gins, 37 Cal. 676. 225. Grounds to be stated. A challenge of a juror in a criminal case must specify the particular grounds of challenge. If for bias", it must state what kind of bias, and the par- ticular cause from which such bias is to be inferred. People v. Renfrow, 41 Cal. 37. 226. For actual bias. A challenge to a juror for actual bias must be entered on the minutes of the Court ; and an application must be made to the Court to have triers ap- pointed. People v. Renfrow, 41 Cal. 37. 227. Implied bias. A challenge for im- plied bias must specify the particular cause from which the bias is to be inferred. People v. Walsh, 43 Cal. 447. 228. An unqualified expression of an opin- ion, even though the opinion itself be of a qualified character, is a ground of challenge for implied bias. People v. Brotherton, 43 Cal. 530. 229. A challenge interposed to a trial juror on behalf of the defendant for "implied bias" merely, without specifying any of the nine distinct causes for whioh, under the three hundred and forty-seventh section of the Crim- inal Practice Act, such challenge may be in- CRIMINAL LAW AND PRACTICE. 93 terposed, is insufficient, and ■will tie disregarded. People v. Hardin, 37 Cal. 258. 230. In a criminal case a challenge to a juror for implied bias must, in addition to that fact, state some one or more of the specific grounds therefor enumerated in Section 347 of the Criminal Practice Act, and a challenge for actual bias must allege that the juror is "biased against the party challenging. A challenge which merely states that " the juror is chal- lenged for cause," "for implied bias," or " for actual bias," is no challenge. People v. Dick, 37 Cal. 277. 231. A challenge of a juror for implied bias must state some one of the causes enumer- ated in Section 347 of the Criminal Practice Act. To say a juror is challenged for implied bias is no challenge./ People v. Gungill, 41 Cal. 429. 232 . The unqualified expression of an opin- ion as to the guilt or innocence of a prisoner on trial is ground of challenge of a juror for im- plied bias. People v. Edwards, 41 Cal. 640. 233. Answer to challenge. It is no answer to such challenge to say that in the mind or thought of the party challenged the opinion was qualified, though, in its form of expression it was unqualified. The admitted fact being that he had unqualifiedly expressed his opinion upon the question of the guilt or innocence of the prisoner, he was thereby, in judgment of law, incompetent to serve as a juror. M. 234. Qualification of a juror in a crim- inal case. The point to be determined as to the qualification of a juror in a criminal case is, whether at the time of his examination he has an unqualified opinion as to the guilt or innocence of the accused, and not what-might be the state of his mind after hearing the evi- dence. People v. Johnson, 46 Cal. 78. 235. When challenge ought to be al- lowed. When after proper investigation had, doubts, more or less grave, as to the actual state of mind of the juror still remain, the challenge for implied bias should be allowed- People, v. Brotherton, 45 Cal. 530. 236. Disallowance of challenge as prejudice. If a party attempt to challenge a juror for implied bias, and the challenge being disallowed, he then challenge peremptorily, and if it does not appear affirmatively that he had exhausted his peremptory challenges at the time a full panel was sworn, he is not prej- udiced by the disallowance of his attempted challenge. People v. McGrungill, 41 Cal. 429., 237. Erroneous disallowance. "Where a challenge for cause was erroneously disal- lowed by the Court, and the juror then peremp- torily challenged, if the defendant exhausted the number of peremptory challenges to which . he was entitled before the jury was completed, the practical result of the erroneous disallow- ance of defendant's challenge for cause was to contract the number of peremptory challenges to which he was entitled, and may have been seriously prejudicial to the, defendant. People v. Weil, 40 Cal. 268. 238. Objection, when tp be taken. Where in a criminal case, a juror whose name is on the poll tax list only is sworn to try the' cause, and the defendant receives the juror without objection as to his competency, he cannot be heard after the verdict is rendered, to object that the juror was lacking in this particular. People v. Sanford, 43 Cal. 29. 239. Disability of juror. Where a juror in a criminal proceeding, upon examination as to his qualification to try the case, states that he has formed a fixed, decided opinion in regard to the guilt or innocence of the defend- ant, a subsequent statement by him on cross- examination, that his opinion is not an unqual- ified one, and. that he could try the case and render a verdict according to the evidence, notwithstanding any previously formed opin- ion, will not remove his disability as a juror. People v. Weil, 40 Cal. 268. 240. Objection to appointment of trier. If an objection is to be made to the appoint- ment of a trier in a criminal case, it must be made at the time, and the grounds of objection brought to the attention of the Court ; and if the objection be overruled, an exception must be reserved in the usual mode. People v. Voll, 43 Cal. 166. 7. Practice on admission of evidence.. A. In general. 241. Practice on admission.. When- ever, in a criminal case, the evidence offered by the defense is not plainly inadmissible, the better practice is for the prosecuting attorney to let it go in without objection. People v. Devine, 44 Cal. 452. * 242. Use of sketch of house. It is not error to permit a witness at the trial to use a sketch of a house, or other object, to explain his evidence as to the position of persons and objects, even though the sketch is not shown to be a correct representation, if the same be not introduced in evidence. People v. Murphy, 39 Cal. 52. 243. Privileged communications. Com- munications from a client to his attorney, touching the subject-matter under investiga- tion, are on principles of public policy privi- leged, and are not admissible in evidence, even though the attorney may be willing to dis- close them. People v. Atkinson, 40 Cal. 284. 244. When it appeared that an attorney called as a witness, in a criminal prosecution,, was unable to state whether admissions to which he had testified were made to nim as counsel, or by the defendant while under ex- amination as a witness in his own behalf, the 94 CRIMINAL LAW AND PRACTICE. Court should have excluded the testimony of its own motion. Id. 245. Testing value of opinion of wit- ness. The value of the opinion of a. witness may be tested by showing that on a former occasion he has expressed a different opinion, and by inquiring as to the grounds upon which the change of his opinion had been brought about. People v. Donovan, 43 Cal. 162. 246. Where a witness is asked if he had signed a paper of a certain tenor, stated in the question, and before answering is shown and examines the original, it is not error to admit his answer in evidence. Id. 247. Point considered as -waived. In a criminal case, the defendant's counsel offered to question a witness as to her husband having, at her instance, approached the defendant's friends for the purpose of obtaining money from him. The proffer was denied by the Court "for the present." No exception was reserved, the proffer was not subsequently re- newed, and no effort was made to obtain an ultimate decision on the point : held, that it must be considered as waived. Pe6ple v. San- ford, 43 Cal. 29. 248. Cross-examination of witness. A defendant who becomes a witness in his own behalf, and undertakes, on his direct examina- tion, to state all that transpired between two points of time, may be asked, on his cross-ex- amination, if he has omitted anything perti- nent to the. case ; and his attention may be directed to the precise point, by asking him if some specified thing did not occur. People v. Russell, 46 Cal. 121. 249. The prosecution is entitled to cross- examine a defendant respecting an occurrence about which he had testified in chief : first, for the purpose, of showing express malice ; and second, in order to lay a foundation to impeach his credibility. People v. Dennis, 39 Cal. 625. 250. Where the evidence in chief on the part of the prosecution is confined to acts and declarations occurring at the time of the hom- icide, and. the defendant introduces evidence tending to show a hostile and vindictive feel- ing and threats on the part of deceased against the defendant for a long period anterior there- to, the prosecution may, for the purpose of proving express malice, rebut such evidence by showing a similar state of feeling and threats on the part of the defendant toward the deceased. Id. 251. At the trial, the accused, who had been sworn as a witness on his own behalf, was asked, on cross-examination, if he had not made certain statements (which were repeated to him) involving apparently important ad- missions against himself, to which he an- swered : "I said words Jo that effect, but not exactly in that way." It was held, to be er- ror to deny to the accused the right to disclose exactly what he did say, and to state the whole conversation at that time, relating- to the same subject-matter. People v. Murphy, 39 Cal. 52. 252. Impeachment of -witness. It is not essential to the impeachment of a witness to prove by the witnesses called for that pur- pose that from his or her general bad reputa- tion for truth and veracity they would not be- lieve him or her under oath. People v. Tyler, 35 Cal. 553. - , 253. Impeaching credibility of wit- ness. Before the credibility of a witness can be assailed by proof of something he may have , said elsewhere contradictory of the testimony as given, the witness must first be inquired of . concerning it, and the time, place and person involved in the supposed contradiction must be called to his attention. People v. Devine, 44 Cal. 452. 254. A qualification of the rule governing the impeachment of witnesses by proof of contradictory statements elsewhere made by them is, that the matter involved in the sup- posed contradiction must not itself be merely collateral in its character, but must be relative to the issue being tried. People v. Devine, 44 Cal. 452. 255. Deposition before Coroner's Jury as evidence. The deposition of a witness given before a coroner's jury, and certified and returned by the Coroner to the District Court', as required by the statute, is admissible in evidence for the purpose of contradicting the statement of the witness, made under oath, . , on the trial of the person accused of having.. }; murdered the deceased. People v. Devine, 44 Cal. 452. 256. Proof of the conviction of a witness of an infamous offense. It is not competent to prove by parol the conviction of a witness of an infamous offense, in order to discredit his testimony. The record of the conviction is the best evidence. People v. Mel vane, 39 Cal. 614. 257. Evidence of a conviction to dis- credit a witness. In order to discredit a witness by showing his conviction of an of- fense, the best evidence of the conviction is requisite. People v. McDonald, 39 Cal. 697. 258. Oral testimony, if objected to, is not admissible to prove a previous conviction of crime of a witness examined in his own be- half, whether adduced on cross-examination of such witness, or given by other witnesses for that purpose, the record being the best evi- ' dence of that fact. People i>. Reinhart, 39 Cal. 449. 259. Variance in statements. ,In a criminal case the prosecution may show, by , other witnesses, that a witness for defendant had given a different account of what ocourred at the time the offense was committed, from that testified to by the witness on the stand. People v. Nyland, 41 Cal. 129. 260. Discretion of Court. Where the CRIMINAL LAW AND PRACTICE. 95 ' defendant introduces witnesses to impeach the credibility of one of plaintiff's witnesses, it is not an abuse of discretion in the Court to limit him to eight Witnesses, provided the plaintiff introduces no witnesses to sustain his credibility. People v. Murray, 41 Cal. 66. 261. How testimony of deceased wit- ness proved. The testimony of a witness, since deceased, given on a former trial in a criminal case, may be proved on a subsequent trial, by permitting a person who kept notes , of such testimony, and who swears they con- tain the substance of the testimony, to read his notes to the jury. People v. Murphy, 45 Cal. 137. 262. Religious belief of witness. — Dying declarations. No person is to, be held incompetent to be a witness in this State on account of his opinions on matters of religious belief. This rule applies to dying declara-" tions. The common law rule in this respect is abrogated. _ People v. Sanford, 43 Cal. 29. 263. Testimony of witness not an ex- pert as to sanity. A witness, even though not an expert, who details a conversation had between himself and another, may also, in connection there with, state his opinion, belief, or impression as to the state of the mind of such person as these seemed to the witness at the .time of conversation. Id. 264. One indicted as accessory, a wit- ness against the principal. One jointly indicted, with another, as an accessory after the fact, is a competent witness for the people on the trial of the principal. He is not obliged to criminate himself, but whether he do so or not is a matter which does not concern the defendant ; and he may refuse to testify unless first discharged from the indictment ; but this is a matter over which the defendant has no control. People t. Rodundo, 44 Cal. 538. B. Testimony of party as witness. 265. Testimony of defendant. If the defendant in a, criminal case does not avail himself of his right given by the statute to testify in his own behalf, the District Attor- ney should not be allowed, in addressing the jury, to comment on his failure to testify, as an evidence of guilt. People v. Tyler, 36 Cal. 522. 266. Defendant need not testify in his own behalf. A defendant in a criminal case is entitled to rest in silence and security upon his plea of not guilty, and no inference of guilt can properly be drawn against him from his failure to testify in his own behalf. Id. 267. Privilege of. A party to an action who becomes a witness in his, owrwbehalf , has no greater privilege than any other witness, and may refuse to answer a question when the answer would tend to degrade his character. People v. Reinhart, 39 Cal. 449. 268. Right of the accused to be ex- amined in his own behalf. The right of the accused to be examined/ in his own behalf is one which he may exercise or not, and no presumption can be properly indulged against him for his not doing, so. People v.' Anderson, 39 Cal. 704. 269. The existence of this right does not modify or change any of the rules of evidence as they existed anterior to its incorporation into the Code of Criminal Practice. Id. 270. The fact that a defendant offers'him- self as a witness in his own behalf does not change or modify the rules of practice, with reference to the proper limits of a cross- examination, and does not make him a witness for the State against himself. People v. Mc- Grungill, 41 Cal. 429. 271. If a defendant in a criminal case be- comes a witness in his own behalf, and gives testimony tending to exonerate himself, the Court need not, , of its own motion, instruct the jury as to the credit to be given to his testimony. People v. Rodundo, 44 Cal. 538. 272. The statute declaring that when a defendant in a criminal case becomes a witness in his own behalf, the credit to be given to his testimony must be left solely to the jury, under instructions of the Court, does not estab- lish a new rule for defendants in criminal cases, but simply applies to them a rule which . •exists as to other witnesses. Id. 273. Person accused, a witness in his own behalf. If a defendant, who is on trial for a larceny, becomes a witness in his own behalf, a question put to him on cross-examina- tion, as to whether he has not been previously arrested for another larceny, is not objection- able on the ground that the defendant cannot be shown to be guilty of the offense charged by showing that he had been accused of an- other crime. People v. McCauley, 45 Cal. 146. See Ante, 47, 251. 8. Argument of counsel. 274. Rule under Statute. The amend- ments of 1854 to Sections 362 and 363 of the Criminal Practice Act, providing that in criminal trials the prosecution must open and may conclude the argument, but that this orddr may, by permission of the Court, be de- parted from, (Stats. 1854, p. 169) do not change the rule, prescribed in Section 364, that in murder cases the accused has a right to be heard by two counsel, and that if the case be argued by two counsel on each side, in ad- dressing the jury, counsel shall do so alter- nately. People v. Pair, 43 Cal. 137. 275. Discretion of Court as to who to open. Under Section 363 of the Criminal Practice Act, as amended in 1854, (Stats. 1854, p. 169) the Court in a capital case may, in 'its discretion, "direct by which side the argument 96 CRIMINAL LAW AND PRACTICE. to the jury is to be opened ; but by whichever side it is thus opened, the other side, under Sec- tion 364, will have the close. Id. 276. If prosecution open, right of de- fense to close. On a murder trial, where two counsel on each side argue the case, they must speak alternately ; and if the prosecu- tion open, the defense has the right to the close ; and it is error to refuse an application for leave to do so. Id. 277. Argument, when to be made. The counsel for the prisoner is not entitled to make his argument on the case made out by the prosecution, when the prosecution ■ closes. The argument is to be made when the evi- dence is concluded. People v. Williams, 43 Cal. 344. 278. Order of argument. In a criminal case it is competent for the District Court to require the counsel for the defendant to open, and the counsel for the prosecution to close the argument to the jury. The Court need not state any reasons for such a ruling. Peo- ple v. Haun, 44 Cal. 96. 279. Effect of Penal Code. In crim- inal cases tried since the Penal Code took effect, the District Attorney' must open and may conclude the argument, even if the offense was committed before the Code took effect. People!). Mortimer, 46 Cal. 114. 280. Concluding argument. When other counsel are associated with the District Attorney in the prosecution of a criminal case, the Court may, in its discretion, for good reasons, allow the associate counsel to conclude the argument. People v. Strong, 46 1 Cal. 302. 281. In such case, nothing appearing in the record to the contrary, the presumption is that the Court had good, reason for allowing associate counsel to conclude the argument. Id. 282. Comments of counsel to jury. In such a case, it is irregular for the counsel for the prosecution, against the objections of the defendant's counsel, to comment, in his argu- ment to the jury, upon the refusal of the de- fendant to be cross-examined to the whole case ; and for the Court to permit a continua- tion x>i such comments, against such objection, is erroneous, and prejudicial to the rights of the defendant. People v. McGungill, 41 Cal. 429. 9. Charge to jury. 283. Oral instructions erroneous. In criminal cases, it is fatal error to give oral in- structions to the jury, without the consent of defendant. People v. Trim, 37 Cal. 274. Peo- ple v. Sanford, 43 Cal. 29. People v. Max, 45 Cal. 254. 284. And the consent of the defendant cannot be presumed from his presence and failure to make the objection when the oral instruction is given. People v. Sanford, 43 Cal. 29. 285. It is error per se for a trial Court, in a criminal case, to give to the jury any charge or instructions otherwise than in writing, ex- cept by the express consent of the parties, and the consent cannot be inferred from a failure to object at the time the oral charge is given. People v. Prospero, 44 Cal. 186. 286. Waiver of ■written charge to the jury. Under subdivision six of Section 1093 of the Penal Code, a written charge may be waived in a criminal case. People v. Bumber- ger, 45 Cal. 650. 287. The Court may, in a criminal case, by the express consent of the defendants, or by the mutual consent of the parties, charge the jury orally. People v. Kearney, 43 Cal. 383- 288. An entry in the minutes of the Court, in a criminal case, that "the Court charge the jury orally (a written charge being expressly waived)" must be construed as a "mutual consent " to an oral charge. Id. See Post, 397-401 ; Constitutional Law, 58- 60. 10. Instructions. 289. May be framed with reference to any reasonable hypothesis as to the facts. In preparing instructions, each party may as- sume any reasonable hypothesis in relation to the facts of the case, and ask the Court to de- clare the law as applicable to it ; and it is error to refuse an instruction so framed because the case supposed does not include some other hypothesis equally rational. People v. Taylor, 36 Cal. 255. 290. What should be given. Every in- struction which correctly declares the law ap- plicable to the case which it supposes, if the case can be rationally inferred from the testi- mony, should be given. Id. 291. Should be based on evidence. If there is no evidence on the subject as to which an instruction is asked, it should be refused. People v. Williams, 43 Cal. 344. 292. Evidence to justify instructions. There should be some evidence tending to show a settled, general insanity, as contradistin- guished from a mere temporary aberration, or hallucination, to justify instructions which do not recognize such distinction. People v. Prances, 38 Cal. 183. 293. Reasonable doubts. When the evidence against the accused is entirely cir- cumstantial, and is conflicting in relation to a material fact going to make up the chain of circumstances, an instruction to the effect that "if the jury entertain a reasonable doubt as to the existence of such fact, the defendant must be acquitted," it is pertinent and appropriate CRIMINAL LAW AND PRACTICE. 97 and should be given. People v. Phipps, 39 Cal. 320. 294. Alleged error in instructions. If the testimony is not in the record, a judgment in a criminal case will not be reversed for alleged error in instructions, if, from the na- ture of the case, testimony might have been introduced which would have warranted the instructions. People v. Strong, 46 Cal. 302. A. Practice in giving or refusing. 295. Instructions qualified. The de- fendant is not prejudiced by instructions, some portions of which, taken by themselves, may be objectionable, but as subsequently qualified, embrace a correct exposition of the law upon the points presented. People v. Dennis, 39 Cal. 62^. , 296. Erroneous. In a criminal prosecu- tion, an instruction from the Court to the jury, that they must convict, " although they may not be entirely satisfied, from the evidence, that the defendant and no other or different person committed the offense," is erroneous. People u. Phipps, 39 Cal. 326. 297. Instructions when defendant's attorney is absent. Where the record on appeal in a criminal case shows affirmatively that after the jury had retired for deliberation, under instructions of the Court, they were -brought into Court, on their request, and re- ceived further instructions, which were given in the absence of defendant's attorney, al- though the defendant was present, and the re- cord fails to show that the defendant's attorney was in any manner notified of the return of the jury for such purpose : held, that this was ■ fatal error. People v. Trim, 37 Cal. 274. 298. Failure to give instructions not asked for. Where a party in a criminal case, fails to ask the Court to give instructions, to the jury upon *. particular point, he cannot complain of error on the part of the Court in not giving the instructions. People v. Haun, 44 Cal. 96. 299. Already substantially given. Where an instruction asked has already been 'given substantially by the Court, it is not error to refuse it, but in a criminal case the better course' is to give it. People v. Murray, 41 Cal. 66. B. In various cases. 300. Proof of corpus delicti. On a trial for murder the Court gave an instruction to the jury which, by necessary implication, assumed that the death of the deceased was the result of wounds inflicted upon his body by some other person, but in a subsequent in- struction fairly submitted to the consideration of the jury, the question whether the defendant killed the deceased, and instructed the jury to acquit if, upon ^he evidence, they entertained I CAL. DIG. SUP. 7. a reasonable doubt on that point : held, that while the first instruction was erroneous, be- ' cause it assumed the establishment of the cor- , pits delicti, yet the error was rendered harm- less to the defendant by the last instruction, and did not justify a reversal of the judgment. People v. Dick, 37 Cal. 277. 301. Reasonable doubt of guilt; A reasonable doubt of the guilt of a person on trial for a criminal offense is that state of ' the case which, after the entire comparison and considr eration of all the evidence, leaves the minds of jurors in that condition that they cannot say they feel an abiding conviction to a moral cer- tainty of the truth of the charge— a certainty that convinces and directs the understanding, and satisfies the reason and judgment of those who are bound to act conscientiously upon it. People i'. Ashe, 44 Cal. 288. , 302. As to circumstantial evidence. In order to convict on circumstantial evidence, the evidence should be such as to produce nearly the same degree of certainty as that which arises from direct testimony . People v. Padillia, 42 Cal. 536. 303. Insanity. Where the defense of in- sanity is set up, an . instruction given for the purpose of impressing upon the jury the im- portance of special care and circumspection in considering the evidence tending to establish the insanity of a, defendant at the time of the commission of the offense charged, is proper. People v. Dennis, 39 Cal. 625. 304. An instruction to the effect that if the- jury find that defendant was insane at the time of the alleged shooting, they should declare the defendant not guilty, without regard to. the degree of insanity, is too broad, and is not law. People v. Best, 39 Cal. 690. 305. It is not improper for the Court, in its charge to the jury in a criminal case where the defense of insanity is set up, to caution the jury to be careful that no pretended case of in- sanity should be allowed to shield the defend- ant from the ordinary consequences of his act. People v. Baumberger, 45 Cal. 650. 306. Murder. It is not error for the Court, on the trial of a party for murder, to- instruct the jury fully on the law applicable to- murder in both degrees, rather than to limit the charge to the law applicable to man- slaughter and excusable homicide, where there is any evidence, however slight, tending to show that the offense committed was murder in either degree. On the contrary, it would be error in such case to refuse to give such in- struction if demanded on the part of the Peo- ple. The policy of the prohibition contained in the Constitution against charging juries in matters of fact is discussed and questioned. People v. Taylor, 36 Cal. 255. 307. Deliberation of accused before' killing. When the question of the capacity of the accused to deliberate, at the time of the homicide, is before the jury, the Court may also 98 CRIMINAL LAW AND PRACTICE. instruct as to what might amount to such de- liberation. People v. Williams, 43 Cal. 344. 308. Deliberation and premeditation. On a trial for murder, the questions of deliber- ation and premeditation are peculiarly the province of the jury to determine. People v. Valencia, 43 Cal. 552. 309. Malice and deliberation. The evi- dence may be such as to justify the Court in charging the jury, that if they believe the de- fendant killed the deceased, and that before doing so he declared it to be his intention to kill him, the killing was done with express malice and deliberation. People \>. Donahue, 45 Cal. 321. 310. Murder in the first degree. The Court, on a trial forjjmurder, should not charge the jury that the killing being proved, the law implies that it was willful, deliberate, and pre- meditated, and the defendant is guilty of mur- der in the first degree, and thus ignore any evidence tending to show mitigating or ex- tenuating circumstances, or to show that the homicide was justifiable or excusable. People v. Woody, 45 Cal. 289. 311. As to incorporation. In an in- dictment for possessing counterfeit notes with intent to utter them, if the legal existence of the corporation be not made an issue, it is not necessary to charge that the banking house whose bills have been imitated was an incorpor- ated company. It would be equally an offense whether the company be actually incorporated or not, so it is acting as a corporation, and is- sues bank bills which are current anywhere. People v. Ah Sam, 41 Cal. 645. 312. Possession of stolen property. An instruction to the jury, that " the posses- sion of stolen property is not alone sufficient to convict," and that " it is merely a guilty cir- cumstance which, taken in connection with other testimony, is to determine the question of guilt, ' ' is not erroneous by reason of the use of the words " guilty circumstance." People v. Rodundo, 44 Cal. 538. X. VERDICT. 313. Murder. In a trial for murder, if the jury find the defendant guilty, they must expressly state the degree of murder in their verdict. People v. Campbell, 44 Cal. 120. 314. Notwithstanding the crime charged in the indictment may.be murder in the first degree, a verdict that the jury find the de- fendant guilty of the crime charged in the indictment is not such a designation of the degree of murder as the statute requires. Id. 315. Assault to commit murder. The verdict of a jury in the trial of an indictment for the crime of an "assault to commit mur- der," which found the defendants guilty of <' an assault to commit great bodily injury," imports nothing more than that the defendants were guilty of a simple assault, which is>a misdemeanor only. Ex parte Ah Cha, 40 Cal. 426. 316. For lesser offense than that charged. Where the indictment charges an assault with a deadly weapon, with intent to do murder, and the verdict finds the assault to have been made with intent to do bodily harm, the offense found is necessarily included in the charge. People v. Congleton, 44 Cal. 93. 317. Description of offense in verdict. A verdict that an assault was made with intent " to do bodily harm upon the person " of an- other is equivalent to a verdict that the assault was made with intent "to inflict upon the person of another a bodily injury." Id. 318. Assault to do great bodily injury. A verdict on an indictment for an assault with intent to commit murder, finding "the defendant guilty of an assault to do great bodily injury," is a verdict for a misdemeanor merely, and does not warrant an imprisonment in the State Prison. Ex parte Max, 44 Cal. 579- 319. Receiving verdict. The irregu- larity of receiving a verdict in a criminal case, without first calling over the names of the jurors, does not prejudice a defendant, if the jury were all present and had agreed. People v. Rodundo, 44 Cal. 538. 320. Irregularity by consent of de- fendant. An order of the Court, in criminal case, made by consent of the defendant, author- izing the Sheriff to receive from the jury a sealed verdict, and upon its receipt to allow the jury to separate until the session of Court upon the following morning, is not an error of which the defendant can complain. People v. Kelly, 46 Cal. 356. 321. Conviction prior to taking effect of Code. Under the Penal Code there is no distinction between the first conviction of petit larceny, had anterior to January 1st, 1873, and a conviction for the same offense had after that date. Ex parte Gutierrez, 45 Cal. 429. 322. Effect, civilly, of conviction for felony. The forfeitures and disabilities im- posed by the common law upon persons at- tainted of felony, are unknown to the laws of this State. No consequences follow a convic- tion of felony, except such as are declared by- statute. Estate of Nerac, 35 Cal. 392. XI. BILL OE EXCEPTIONS. 323. Defined. Bill of exceptions is a statement in writing, settled and signed by the Judge, of what the ruling was, the facts in view of which it was made, and the protesfe'of counsel. People v. Torres, 38 Cal. 141. 324. To be signed. A bill of exceptions not signed by the District Judge will be dis- regarded on appeal. People v. Armstrong, 44 Cal. 326. CRIMINAL LAW AND PRACTICE. 99 325. Error must be shown. Where er- ror is alleged, it must be affirmatively shown by the party alleging it. People v. Best, 39 ,Cal. 690. 326. What must be shown. If a de- fendant who is jointly indicted with another for a crime relies, on appeal, on the fact that the declarations of his confederate were receiv- ed in evidence against him on his trial, and that he was not present when they were made, the bill of exceptions must show that he was not present when the declarations were made, or it will not show error. People v. Williams, 45 Cal. 25. 327. Omissions and uncertainties. All omissions or uncertainties in a bill of excep- tions are to be construed against the party presenting it. Id. 328. What is not a bill of exceptions. A document which merely details certain acts which transpired at the trial, but fails to show that there was any ruling by the Court in re- lation thereto, or any protest of counsel against the action of the Court, is not a bill of excep- tions. People v. Torres, 38 Cal. 141. 329. Error -without injury. When a, question, even if objectionable, is not answer- ed, an objection to it becomes a mere abstrac- tion, and no injury is done to the party except- ing. Peoples. Williams, 45 Cal. 25. 330. Insufficient statement. A bill of exceptions which says that a paper was offered in evidence, does not show that the paper was read in evidence. Page v. O'Brien, 36 Cal. 559- 331. A statement in » bill of exceptions that the plaintiff offered in evidence a deed to him and others, conveying the demanded premises to the parties therein named, accord- ing to their respective interests, does not show whether the deed conveyed the land to the > > parties as tenants in common or in severalty. Id. 332. Evidence must appear in a bill of exceptions. Where a motion for a new trial is granted, on the ground that the evidence was insufficient to justify the verdict, the only manner in which the question as to the suffic- iency of the evidence can be presented to the Supreme Court is by a bill of exceptions, duly settled and certified by the Judge who tried the cause. People v. Padillia, 42 Cal. 536. 333. Power of the Court tc add testi- mony. It is within the general power of the Court to add to a proposed bill of exceptions any testimony given at the trial pertinent to the exceptions, and necessary to the correct presentation of the errors assigned. People v. Kelly, 46 Cal. 355. 334. Objection to evidence. When the same evidence has been several times objected to and ruled out by the Court, there is no need to repeat the objection on every repetition of the question. The objection may be treated as continuing, unless something occurs to show that it is waived. People v. Melvane, 39 Cal. 614. 335. Point considered as waived. In a criminal case the defendant's counsel offered to question a Witness as to her husband having, at her instance, approached the defendant's friends for the purpose of obtaining money from him, The proffer was denied by the Court " for the present. " No exception was reserved, the proffer was not subsequently re- newed, and no effort was made to pbtain an ultimate decision on that point : held, that it must be considered as waived. People v. Sanford, 43 Cal. 29. See Ante, 240. 336. 'When a portion of the record. A bill of exceptions, when properly constituted and authenticated as required by the Criminal Practice Act, (Sections 433 to 438, both inclu- sive) becomes a portion of the " record of the action " in a criminal case. To constitute such bill of exceptions, it must be duly settled and signed by the Judge trying the cause, and must contain such evidence as is deemed necessary to illustrate such points of exception. People v. Trim, 37 Cal. 274. 337. Stipulations. In a criminal case, on appeal, the stipulations of attorneys or certifi- cate of respondent's attorney cannot be substi- tuted for the certificate and signature of the Judge to a bill of exceptions, so as to give it validity or entitle it to any consideration. Id. 338. Recital in bill of exceptions. A recital in a bill of exceptions that a notice of appeal has been served and filed, is no evidence that an appeal has been taken. People v. Phil- lips, 45 Cal. 44. 339. Office of. It is not the office of a bill of exceptions to show that the proper pro- ceedings have been taken to effect an appeal. Id. . 340. Construction of Criminal Practice Act as to instructions. Sections 438 and 462 of the Criminal Practice Act refer to the written charges or instructions which either party may present and ask to be given, in ac- cordance with Sections 400 and 401, and not to the charge which the Court may give upon its own motion. People v. Hart, 44 Cal. 598. XII. NEW TRIAL. 341. Improper influence. A person who has been sworn on his voire dire and accepted as a juror, and afterwards engages in conver- sation with, or voluntarily listens to the re- marks of otners on the subject of the charge, upon which, as a juror, he is to pass, is pre- sumed to have been subject to improper influ- ence, and unless it is shown that it failed of effect, the presumption is against the purity of the verdict. People v. Turner, 39 Cal. 370.' 342. Improper conduct of juror. Where a juror, during the progress of the trial, has 100 CRIMINAL LAW AND PRACTICE. manifested an inclination to talk about the case, such impropriety on the part of the juror is not a sufficient ground for setting aside the verdict, if it appear conclusively that the de- fendant was not affected prejudicially thereby. People v. Dennis, 39 Cal. 625. 343. Motion for new trial. Any sub- stantial error of the Court, on a question or matter arising during the course of the trial, is a proper ground for a motion for a new trial. People v. Turner, 39 Cal. 370. 344. After an issue of fact is joined, every step taken for the purpose of a determination of that issue, up to and including the verdict upon such issue, must be regarded as " arising during the course of the trial." Id. 345. A motion for a new trial cannot be based upon any objection to the sufficiency or validity of the indictment, or upon any errors or irregularities occurring in the proceedings, before issue of fact joined by plea. Id. 346. When verdict should be set aside. If the Judge before whom a case is tried is sat- isfied that a verdict is obtained against the ac- cused on the testimony of witnesses unworthy of belief, it is his duty, on the application of the defendant, to set aside the verdict and grant a new trial. People v. Baker, 39 Cal. 686. 347. Application requisite. In a crim- inal case a new trial can only be granted on application of defendant. People v. Bange- neaur, 40 Cal. 613. 348. Ruling of Court. "When the Court overrules a challenge, and the prisoner excepts, the exception is to the decision overruling the challenge, and not to the right of the Court to decide the question at all. People V. Kenfron, 41 Cal. 37. 349. Qualification of triers. It is no ground for a new trial in a criminal case that, on a challenge of a juror for aetual bias, one of the triers appointed is. on the panel of the jury in attendance in the case. People v. Voll, 43 Cal. 166. 350. Misconduct of jury. The retire- ment of a jury for a necessary purpose for a few moments, with the permission of the Sheriff, out of his sight, there being no evi- dence that during such retirement they com- municated with any one, or with each other, but positive proof to the contrary, is not suf- ficient ground upon which to grant a new trial. People v. Moore, 41 Cal. 238. 351. Disqualification of juror not ground for new trial. The fact that a juror had formed and expressed an unqualified opinion of the guilt of the accused, is not, under our practice, ground for a new trial, when the objection is taken for the first time after the trial, upon affidavits showing disqualification. People v. Fair, 43 Cal. 137. 352. In so far as it holds that an objection to the competency of » juror, taken for the first time after verdict, may be availed of on motion for new trial, People v. Plummer, 9 Cal. 298, is overruled. Id. 353. On ground of bias of juror. The fact that, after a verdict of guilty has been rendered, the accused ascertains for the first time that before the jury was impaneled, a juror had formed and expressed an opinion as to his guilt, is not a ground for a new trial. People v. Mortimer, 46 Cal. 114. 354. Grounds for. Section 440 of the Criminal Practice Act, which declares what shall be grounds for new trial, and uses the words " in the following cases pnly," clearly excludes all other grounds whatsoever. Peo- ple V. Pair, 43 Cal. 137. 355. A motion for a new trial must he made viva voce, and, if desired, the grounds of the motion and the rulings of the Court thereon may be embodied in a bill of excep- tions, and can be reviewed by the Supreme Court in no other way. People v. Ah Sam, 41 Cal. 645. 356. Challenge to grand jurors. A de- fendant who had not previously been held to answer is entitled, on motion, to have the ver- dict set aside when it is shown that he had, at the time they were impaneled, a good ground of challenge to one or more of the grand jurors who presented the indictment. People v. Turner, 39 Cal. 370. 357. When evidence is conflicting. The Court will 1 not grant a new trial in a criminal case on the ground that the evidence does not justify the verdict, if the evidence is conflicting. People v. Gill, 45 Cal. 285. 358. Although it is the practice of appel- late Courts to refuse to disturb a verdict in a criminal case, on the ground that it is not warranted by the evidence, when there is a substantial conflict in the evidence, yet there are exceptional cases, and one of these is, where a rape is alleged to have been com- mitted on a child under ten years of age, and a conviction is had on her uncorroborated tes- timony, and she makes no complaint for two years, sustains no physical injury, makes no outcry, and the defendant is her stepfather, and physicians testify that it was improbable that bleeding- and great bodily pain would not have followed, and the defendant testifies in his own behalf, denying the commission of the offense. People v. Hamilton, 46 Cal. 540. 359. In such case the Court is warranted in assuming that the jury must have rendered the verdict under the influence of passion or prejudice, particularly if one of them, during the trial, interrupts the counsel for the defense in an improper manner. Id. See Post, 392. XHI. ARREST OP JUDGMENT. 360. Specification in motion in arrest CRIMINAL LAW AND PRACTICE. 101 of judgment. The defects in the indictment authorizing a motion in arrest of judgment under Section 442 of the Criminal Practice Act, must he specifically stated and pointed out as the basis of such motion in the Court below, to entitle the action of the Court thereon to review on appeal. People v. Dick, 37 Cal. 277. 361. Available objections. Objections which may be presented by demurrer, may further be made available after verdict, by motion in arrest of judgment, and the action of the Court on this motion can only be re- viewed on appeal from, the judgment. People v. Turner, 39 Cal. 370. See Post, 384. 362. What defects in indictment held not fatal. Mere formal defects in the indict- ment, by which no substantial right of the defendant could be affected, will not justify an arrest of the judgment. Thus, where in an indictment for murder, the initial letters only of the Christian names of the deceased were prefixed to his surname, and it did not appear but that he was generally known, recognized and identified by the name as contained in the indictment, this Court will not reverse the order of the Court below refusing to arrest the judgment. People v. Dick, 37 Cal. 277. 363. Void judgment. A judgment upon a conviction of misdemeanor only, which adjudges the defendant to be punished by im- prisonment in the State prison, is absolutely void. Ex parte Ah Cha, 40 Cal. 426. 364. Immaterial variance. If the vari- ance between an allegation in an indictment and the proof be immaterial, it should be dis- regarded. People v. Hughes, 41 Cal. 234. 365. Erroneous order may be set aside by Court of its own motion. A Court may of its motion, or upon the application of a party interested, during the continuance of the term, in a, criminal case, modify or set aside an erroneous order ; and under Section 443 of the Criminal Practice Act, the Court may, upon its own view of fatal defects in an indictment, arrest the judgment without mo- tion. Ex parte Hartman, 44 Cal. 32. 366. Effect of order arresting judg- ment. The effect of an order ■ arresting a judgment in a criminal case, is to place the defendant as nearly as other and controlling rules of law will permit, in the same situation in which he was before the indictment was found. Upon its entry he must be discharged, unless detained by virtue of some other legal process or order. Ex parte Hartman, 44 Cal. 32. 367. Variance in indictment and ver- dict. Under an indictment for. an assault to commit murder, a conviction of an assault made with a deadly weapon to do bodily harm cannot be supported, unless it sufficiently ap- pear upon the face of the indictment that the assault was made with a deadly weapon. Peo- ple v. Murat, 45 Cal. 281. XIV. JUDGMENT. 368. Recital in judgment. The judg- ment in a criminal case need contain no re- cital of the particular offense, but only of the general offense, within which the particular one is included. Ex parte Murray, 43 Cal. 455- 369. For an assault. For the crime of an assault the defendant may be fined not ex- ceeding five hundred dollars, and may be ad- judged to pay the costs, and may be impris- oned for the fine, but not for the costs. Petty v. Co. Court of San Joaquin, 45 Cal. 245. 370. Fees of reporter in criminal case. The fees of a reporter in a criminal case are not to be taxed as costs against the defendant. Petty v- Co. Court of San Joaquin, 45 Cal. 245. 371. When may be pronounced. The statute does not require that judgment must of necessity be pronounced at the same term at which the verdict in a criminal case was found. People v. Felix, 45 Cal. 163. 372. Judgment of death. The practice of designating in a judgment of death, a day for carrying it into effect is not in keeping with the provisions of the Criminal Practice Act. The day should be designated in the warrant and not in the judgment. People v. Bonilla, 38 Cal. 699. 373. If the judgment of death be not executed, from any cause, on the day ap- pointed, it is competent for the Court render- ing the judgment to appoint another day for the carrying the same into execution. Id. 374. Day for carrying into effect sen- tence of death. The day for carrying into effect a sentence of death should not be desig- nated in the judgment, but in the warrant for the execution. People v. Murphy, 45 Cal. 137. 375. Jurisdiction. On the^ simple affirm- ance of an order or judgment appealed from, in criminal cases, no order of the appellate Court, directing the Court from which the appeal is taken to proceed to enforce the judg- ment, is necessary to re-invest that Court with jurisdiction. People v. Dick, 39 Cal. 102. 376. Execution of judgments. The mode of executing judgments, in criminal cases, is prescribed and controlled by statute, and not by an order of an appellate Court. Id. 377. Remittitur. — Loss of jurisdiction. When a certified copy of a judgment in an appellate Court is remitted to the Court from which the appeal is taken, the appellate Court loses all jurisdiction of the case ; and all orders necessary to carry the judgment into, effect must be made by the lower Court. This pro- vision of the statute is not confined to judg- ments in the Supreme Court, hut is applicable 102 CRIMINAL LAW AND PRACTICE. to proceedings in the County Courts. Ex parte Jones, 41 Cal. 209. 378. Judgment after conviction. It is doubtful whether the limitation of time fixed in the Penal Code, within which judgment may be pronounced in a criminal case after conviction, applies in the case of a judgment upon a plea of guilty. People v. Bobinson, 46 Cal. 95. 379. 'Waiver of statutory right in criminal case. The defendant in a criminal case may waive the time which the Penal Code allows after conviction before sentence is pro- nounced, and may consent that judgment be pronounced immediately. Id. See Pardon. XV. APPEAL. 1. Bight of. 380. Of Supreme Court. The Supreme Court has no jurisdiction in criminal cases except such as amount to a felony. It has, therefore, no jurisdiction of an appeal where the defendant was convicted of an assault, even if he was indicted for a higher offense, amounting to a felony. People v. Apgar, 35 Cah 389. 381. The jurisdiction of the Supreme Court in criminal cases, on defendant's appeal, is not to be determined by the offense charged in the indictment, but by the offense of which the defendant is convicted. Id. 382. Appeal by the People. By the just interpretation of that provision of the statute which gives to the People the right of appeal in criminal cases, it must be .confined only to such cases in which errors in the pro- ceedings may occur before legal jeopardy has attached to the accused. People v. Webb, 38 Cal. 467. 2. When it lies. 383. Criminal "intermediate orders." By the provisions of Section 484 of the Crimi- nal Practice Act, to the effect that inter- mediate orders or proceedings forming part of the record of a criminal case may be re- viewed on appeal from the final judgment, it was clearly intended to prohibit a separate appeal from such intermediate orders or pro- ceedings. People v. Clarke, 42 Cal. 623. 384. Effect of an order sustaining a demurrer to an indictment. An order sus- taining a demurrer to an indictment is a final judgment in the case, from which an appeal will lie. People v. Ah Own, 39 Cal. 604. See Ante, 356. 3. Orders not appealable. 385. Order admitting to bail. No ap- peal lies from the order of a Judge admitting a party to bail under the provisions of the Habeas Corpus Act. People v. Schuster, 40 Cal. 627. 386. Order resubmitting case to grand jury. An order of a County Court directing that a criminal charge ignored by one grand jury be submitted to another, is not an appeal- able order. People v. Clarke, 42 Cal. 623. 387. Order sustaining a demurrer. The mere entry of the order sustaining the demnr- rer to the indictment, does not of itself consti- tute a final judgment of the County Court in the sense of Seotion 481 of the Criminal Prac- tice Act. People v. Ah Own, 39 Cal. 604. 388. Criminal orders, after final judg- ment. That portion of Section 481 of the Criminal Practice Act, which authorizes an appeal from an order "which affects a substantial right in a criminal case amount- ing to felony," applies only to orders made after final judgment. People v. Clarke, 42 Cal. 622. 389. Arresting judgment. An appeal cannot be taken from an order made after a verdict of guilty, in, a criminal case, arresting the judgment. People v. Ah Kim, 44 Cal. 384. 390. Order overruling a demurrer. An appeal does not lie from an order overruling a demurrer to an indictment. People v. Hall, 45 Cal. 253. 4. Be.cord. 391. In capital case. If a prisoner ap- peals from a judgment of conviction and sen- tence for murder in the first degree, and the Judge of the Court in which the conviction was had fails to certify that in his opinion there, is probable cause for the appeal, and the Justices of the Supreme Court upon looking into the record are satisfied that no error has intervened, they will not grant such certificate, and the appeal will not stay the execution. People v. Valencia, 45 Cal. 304. 392. Duty of Attorney General. The Attorney General should examine the record presented on appeal, in a criminal case, in order to see if it is in a condition to be sub- mitted to the Court. People v. Phillips, 45 Cal. 44. 393. Must show an appeal has been taken. The transcript in a criminal case must show that an appeal has, in fact, been taken — otherwise the Court is not required to look into the case. People v. Phillips, 45 Cal. 44. 394. Exception must show on what it rests. When a question which is not per se objectionable, and which might be admissible under some circumstances, is put to a witness and answered under objection, the record must show the faots previously established in evi- dence, or the Court will not be able to pass on CEIMINAL LAW AND PEACTIOE. 103 the propriety of the question or answer. Peo- ple v. Williams, 45 Oal. 25. 395. Statement of evidence. The ques- tion whether the evidence sustains the verdict cannot be considered where the record does not present an authentic statement of the evi- dence. People v. Tetherow, 40 Oal. 286. 396. To contain the evidence. Where, in a criminal case, a. motion for a new trial is based upon the ground, among others, that the evidence is insufficient to justify the verdict, and it is granted by an order of the Court in general terms, without specifying any partic- ular ground upon which the Court proceeded, the Supreme Court will not undertake to re- view the order, unless the record sets forth all the evidence given at the trial. People v. Woods, 43 Cal. 176. 397 . From order setting aside verdict. If, in a criminal case, the verdict of a jury be set aside on the ground that it is contrary to the evidence, and an appeal be taken from the order setting aside the verdict, the record must show what the evidence was, or the question as to the sufficiency or insufficiency of the evi- dence cannot be considered. People v. Mc- Auslan, 43 Cal. 55 ! Approved, People v. Woods, 43 Cal. 176. 398. To show affidavits were used. Where on an appeal from an order granting a new trial, there is no evidence to show that the affidavits contained in the transcript were used or referred to on the hearing of the motion for a new trial, they will not be considered by the Supreme Court. People v. Padillia, 42 Cal. 535- 399. Phonographic report of evidence, how authenticated. The notes of evi- dence taken down by a phonographic reporter, as provided by the Act of March 28th, 1868, must be written out in long-hand, and must be authenticated by the affidavit or certificate of the reporter, showing that the report is a full, correct, and true statement of all the evi- dence admitted or offered on the trial of the action. People v. Tetherow, 40 Cal. 286. 400. Instructions. — Assignment of error. Errors assigned upon instructions will not be noticed unless the instructions are brought before the Court in an authentic form. Id. 401. Action of Court upon instruc- tions, how authenticated. The action of the Court below upon the instructions must be shown, either by an endorsement thereon as provided by Section 438 of theCriminal Prac- tice Act, or by a bill of exceptions. Id. 402. Oral instructions. Where the rec- ord on appeal discloses that oral instructions were given, but fails to show the consent of the defendant thereto, the judgment will be reversed. People v. Trim, 37 Cal. 274. 403. It will not be presumed by the Su- preme Court that the Court below charged the j ury orally, because the record does not state affirmatively that the charge was given in writing. People v. Wright, 45 Cal. 260. 404. Erroneous instructions. Alleged errors in the instructions given to the jury may be considered on appeal, in the absence of' tes- timony, if the instructions are incorrect in every conceivable state of the evidence. Peo- ple v. Padillia, 42 Cal. 535. 405. Where the record contains no part of the evidence, the judgment will not be re- versed on account of instructions alleged to be erroneous, unless it appears that such instruc- tions would have been erroneous under every conceivable state of facts. People v. Dick, 34 Cal. 663. See Ante, 290. 406. Charge to jury in criminal cases. If the charge of the Court to the jury in a, criminal case- appears in the record, and the record shows nothing to the contrary, the prer sumption will be that it was fully taken down by the reporter of the Court at the time it was given, as provided in Section 1093 of the Penal Code. People v. Bumberger, 45 Cal. 650. See Habeas Corpus, 7. 5. Bevievi on appeal. 407. Order on new trial. On an appeal from an order refusing or granting a new trials on the ground of error or irregularity arising during the course of the trial, the appellate Court is confined to a review of the proceed- ings between issue joined and the rendition of the verdict. People v. Turner, 39 Cal. 370. 408. From final judgment. The action of the Court on demurrer, or on the motion to set aside the indictment, can only be reviewed on appeal from the final judgment. Id. 409. Discharging jury. The action of the Court in discharging a jury in a criminal case, because of its inability to agree on a ver- dict, is subject to review by the appellate Court. ExsParte v. McLaughlin, 41 Cal. 211. 410. Rights and privileges of defend- ant. Any action of the Court during the progress of a trial for felony, which deprives the defendant of a substantial legal right in the premises, or to his prejudice, to any extent, withholds or abridges a substantial, legal, or constitutional privilege of a defendant, and by him claimed on the trial, is a proper subject matter of review on appeal. People v. Har- rington, 42 Cal. 165. 411. Notes of phonographic reporter. The notes of evidence taken by the phono- graphic reporter of a Court are prima facie evidence only in the Court below, and cannot be considered in the Supreme Court. People v. Woods, 43 Oal. 176. 412. Errors as to abstract principles of law. The Supreme Court will not consider alleged errors l upon merely abstract proposi- tions of law, in giving instructions in a crim- 104 CRIMINAL LAW AND PRACTICE. inalcase, but will merely review misdirection or refusal to give proper instructions upon points actually arising in the case. People v. Walsh, 43 Cal. 447. 413. Errors -without prejudice. An in- struction by the Court to such witness, that ' his evidence cannot be used against himself, even if erroneous, does not prejudice the de- fendant. People v. Rodundo, 44 Cal. 538. 414. Charge to jury no part of judg- ment roll. The charge given to a jury in a criminal case by the Court, upon its own mo- tion, forms no part of the judgment roll, and cannot be reviewed on an appeal upon the judgment roll alone. People v. Hart, 44 Cal. 598. 415. Allowing challenge for implied bias. The action of the trial Court in allow- ing a challenge to a juror for implied bias is not open to review. People is. Murphy, 45 Cal. 137. 416. Error to be reviewed on appeal, but not upon habeas corpus. Any error committed by the Court, in setting aside or modifying an erroneous order in a criminal case, may be reviewed in a proper case upon appeal, but cannot be questioned upon habeas corpus. Ex parte Hartman, 44 Cal. 32. 6. Determination on. 417. Error not presumed. The presump- tion in the Supreme Court is that the proceed- ings below are correct, except in so far as the record manifests the contrary. People v. Mc- Auslan, 43 Cal. 55. 418. Presumptions. — Excusing grand jurors. Where, on a motion to set aside an in- dictment for alleged errors committed in im- paneling the grand jury by which the indict- ment was found, it was shown only that cer- tain persons who had been drawn as such jurors were excused by the Court, the cause therefor not appearing : held, that it will be presumed, in the absence of a showing to the contrary, that the Court did not excuse said persons with- out legal cause. People v. Millsaps, 35 Cal. 47. 419. Verdict in criminal case. If a ver- dict finding the defendant guilty of murder is clearly not sustained by the evidence, the judg- ment will be reversed. People v. Lewis, 36 Cal. 531. 420. Variance. Where the indictment charged the defendant with stealing five cer- tificates of shares of stock of the number 7056, and the proof showed there was but one such certificate, and not a series of five, as alleged, there was a fatal variance. People v. Coon, 45 Cal. 672. 421. A verdict of guilty rendered by a jury under an instruction of- the Court, to the effect " that they must acquit the defendant, unless they find that the deceased was killed by Paul Tibeaux, while the defendant aided and abetted the killing," and the evidence was that the fatal shot was fired by a Frenchman named Paul, without proving that Paul was the same person known as Paul Tibeaux, is contrary to the instruction of the Court, and therefore erroneous. People v. Coyoda, 40 Cal. 586. 422. Contradictory charge. Where, on trial for murder, two parts of the charge of the Court to the jury are contradictory, and one iR correct and the other is erroneous, the judg- ment of conviction will be reversed, even though the appellate Court may be satisfied from the evidence that the jury ought to have found the defendant guilty. People v. Valen- cia, 43 Cal. 552. 423. Erroneous instructions. If an ap- peal is taken in a criminal case on alleged 1 error of the Court in giving instructions to the jury, and the evidence is not brought up, the judgment will not be reversed if the evidence might have shown a case that would justify the instruction. People v. Donahue, 45 Cal. 321. 424. Contradictory instructions. An erroneous instruction given to the jury at the request of the prosecution, is not cured by a correct one on the same point afterwards given at the instance of the defendant, as it is impos- sible to determine on which of the contradic- tory instructions the jury acted. People i\ Anderson, 44 Cal. 65. 425. When the instructions on a material point are contradictory, a new trial should be granted. Id. , 426. Error -without injury. Although it is error, when there is evidence as to defen- dant's good character in a criminal case, to in- struct the jury that " evidence of character can only be considered in cases where the guilt of the accused is doubtful," yet, if the evi- dence so conclusively establishes the guilt of the defendant that no amount of evidence of good character could have changed the result, such error does no injury and the judgment will not be disturbed. People v. Penwick, 45 Cal. 287. 427. Error immaterial. Where a ques- tion, the answer to which could not prejudice the defendant, or one to which no answer is given, is objected to by the defendant, and im- properly admitted by the Court, the error is immaterial. People v. Dennis, 39 Cal. 625. 428. Presumptions from absence of evidence. Where the evidence to which the instruction relates does not appear in the re- cord, the presumption will be in favor of the action of the Court below. People v. Best, 39 Cal. 690. 429. When the evidence is not brought up in the transcript, the judgment will not usually be reversed for an alleged error in the instruc- tions ; but where the Court gives an instruc- tion which is clearly contrary to law, on a particular point, it will be presumed that there was some evidence requiring an instruction on that point. People v. Long, 39 Cal. 694. CROSS-COMPLAINT.— DAMAGES. 105 430. ESeot of Supreme Court decis- ions upon inferior Courts. Nisi prius Courts are not at liberty to set aside or disre- gard the decisions of the Supreme Court, be- cause it may seem to them that the decisions are unsound . ' People v. McGuire, 45 Cal. 56. XVI. COMMITMENT AFTER APPEAL. 431. On affirmance of judgment. When a party is convicted of a criminal offense and appeals to the County Court, and, pending the appeal, is released on bail, and the judgment is affirmed, a second commitment need only recite the judgment -of conviction, and state that defendant appealed and the judgment was affirmed. It need not recite the judgment of the County Court, or that a remittitur has been issued. Ex parte Jones v. Ellwood, 41 Cal. 20Q. CROSS-COMPLAINT. See Pleadings, 187, 197-201. CROSS-EXAMINATION. See Forcible Entry and Detainer, 74 ; Trial, 35,63-66. CRUELTY. See Divorce, 1 . CUMULATIVE EVIDENCE. See Evidence, 1 ; New Trial, 6-8, 18, 125. CUSTOMS AND USAGES. See Evidence, 67 ; Pleading, 10. DAMAGES. I. FOE PERSONAL INJURIES. II. . Eok. injuries to property. III. EOR BREACH OP CONTRACT. ' I. FOR PERSONAL INJURIES. 1. Assault. A party guilty of a wanton, malicious and unprovoked assault upon the person, is liable for exemplary damages. Wade v. Thayer, 40 Cal. 578. 2. For causing death of parent or hus- band. Under the third section of the Act of April 26th, 1862, relative to compensation for death caused by the wrongful act or negli- gence of another, the jury or Court should assess such. damages as will be a just compen- sation to the surviving widow and children for the death of the husband and parent ; but if the widow dies before the trial of the ac- tion, the question of compensation to her no longer exists, and proof on that point is irrele- vant to the issues, and has nothing to do with the controversy ; and the only question left to be determined in relation to damages is, what will be a just compensation to the chil- dren for the loss of the father. Taylor v. W. P. R. R. Co., 45 Cal. 323. 3. The damages to which the children are entitled in such case are not to be arrived at by determining : first, what would have been a just compensation to the widow and children, and subtracting from this the sum to which the widow would have been entitled had she lived, but the fact that there had been a sur- viving widow is to be left entirely out of the case. Id. 4. For the death of an infant. Under the Act of April 26th, 1862, a jury may award exemplary damages for the death of an infant by the wrongful negligence of another. Myers v. San Francisco, 42 Cal. 215. 5. The discretion of the jury in fixing the amount of such damages should not be inter- fered with by the Court, except in cases of the most palpable abuse of such discretion. Myers v. San Francisco, 42 Cal. 215. 6. The infant daughter of M, seven years old, was run over and killed by a steam fire engine controlled by a servant of San Fran- cisco. In an action for damages, M obtained a verdict for five thousand dollars. Held, that the damages assessed were not so excessive as to justify a presumption that the jury was misled by passion, prejudice, or ignorance. Id. 7. Personal injury to trespasser. Al- though a person gets upon a railroad car wrong- fully and as a trespasser, for the purpose of riding without paying his fare, yet the con- ductor, if he resolves to exercise his right to remove him, must do so prudently, and in such a manner as not to endanger his personal safety. If he do not exercise this prudence, and injury result, the company cannot ab- ' solve itself from liability on the ground that the wrong was mutual. Kline v. C. P. R. R. Co., 37 Cal. 400. 8. Forcible ejection from railroad car. In an action for damages for injuries sustained by a forcible ejection from a railroad car, while in motion, proof that the conductor ordered plaintiff to get off, and accompanied such order with a show or demonstration of force sufficient to impress him with the belief that 106 DAMAGES. it would be employed, and thereby compelling him to jump from the car, is equivalent to proof of the employment of actual force. Kline v. C. P. R. R. 39 Cal. 587. 9. Injury by vicious animal. The owner of a dangerous or ferocious dog is liable for such damages only as result from his negli- gence in keeping it. Laverone v. Mangianti, 41 Cal. 138. 10. Where an infant child has been wounded by a vicious animal, and has thereby been disfigured or deformed, the father of the child can recover from the owner of the animal only for such expenses as he has incurred in healing the original wound, and not for any expense incurred in removing the deformity or disfiguration. Karr v. Parks, 44 Cal. 46. 11. By fall of awning. A person injured by the fall of an awning, in process of erection in front of a store, and who sues the person who was erecting the same for damages, is not entitled to include in his damages the sum paid for his board during the time he was dis- abled. Graeber v. Derwin, 43 Cal. 495. 12. Damages, how estimated. In an action for damages caused by injury to the person, the jury, in estimating damages, can- not take into consideration the fact that the plaintiff is a. man who has to depend on his manual labor for a living. The damages in such actions are not dependent on the wealth or poTerty of the plaintiff. Shea v. P. &B. V. R. R. Co., 44 Cal. 414. 13. Personal torts. In actions for per- sonal torts, the law does not fix any precise rule of damages, but leaves their assessment to the unbiased judgment of the jury. Whea- ton v. North Beach & M. R. R. Co^ , 36 Cal. 590. 14. In such case the verdict will not be disturbed on motion for new trial, unless the amount is so large as to induce a reasonable person, upon hearing the circumstances, to declare it outrageously excessive, or as to sug- gest, at the first blush, passion, or prejudice, or corruption on the part of the jury. Id. 15. Negligence. — Rule for assessing damages. It is competent for a jury, in assessing damages to an employee, resulting from negligence of the employer, to consider what, before the injury, was the health and physical ability of the plaintiff to maintain himself and family, as compared with his condition in such particulars afterwards; his loss of time, and how far the injury was permanent in its character and results, as well as the physical and mental suffering he sus- tained by reason of the injury ; and they should allow such damages as they think will fairly and justly compensate him for all loss and injury sustained. But the jury cannot consider the plaintiff's "condition in life "— whether he is rich or jjpor. Malone v. Haw- ley, 46 Cal. 409. See Malicious Prosecution, 14, 15; Negli- gence ; Principal and Agent, 14 ; Railroads, 9-15- II. POR INJURIES TO PROPERTY. 16. From building railroad on 'street. The Legislature may grant the right to lay down and construct a railroad upon public streets without providing for compensation for the damage to the owners of property along the line of such street, provided the owners of the property along the line of the street are not the owners of the contiguous land usque ad filtim vice. Carson v. Central R. R. Co., 35 Cal. 325. 17 . If an Act of the Legislature authorizes the laying down in a public street of a rail- road, a switch-turnout, and side track, the laying down of the switch-turnout and side track, and the use of it, is the exercise of a lawful right, from which no liability for damages for consequential Injury arises, unless there is some misconduct or negligence. IS. 18. Destruction by fire. Where a party makes a fire for a necessary purpose, upon or near the grounds of another, but negligently leaves it, with combustible material about it, and the fire spreads and destroys adjacent property, the party building the fire is liable for the damages done by the fire. Cleland v. Thornton, 43 Cal. 437. 19. Deposit of sediment. Where the bed of a watercourse, extending through the farming lands of R, is used by K as a channel to convey the waters discharged into it from his ditch, of which it forms a connecting link, such watercourse will be considered as part of K's ditch ; and where R"s lands were injured by a deposit of sediment thereon, resulting from an overflow of the watercourse, which was caused either by the failure of K to have it jproperly cleared of impediments, or by turn- ing into it a quantity of water which, added to the natural waters flowing therein, ex- ceeded its capacity to carry the same, K is lia- ble in damages to R for such injury. Rich- ardson v. Kier, 37 Cal. 263. 20. To land by overflow of water. A party is not liable for damages done to another's land, by an overflow of water from his own land, if the overflow is caused by a heavy fall of rain, increased by the additional momentum given to the water before it reaches the defendant's land by ditches dug by a third person. Mathews v. Kinsell, 41 Cal. 512. See Eminent Domain, 25-28, 35-43 ; Nuis- ance, 9, 14, 15 ; Right of Way, 4 ; Roads and Highways, 6 ; Streets and Street Assessment, 11-16; Trade Mark, 17; Water and Water rights, 14, 15. 21. For injury by mobs. The Act of the Legislature compelling a county to pay for property destroyed by a mob, created a new right, and provided a new remedy therefor, DAMAGES.— DEATH. 107 complete in itself. Clear Lake W. W. Co. v. Lake County, 45 Cal. 90. 22, It is not necessary that a claim against a connty for damages for property destroyed by a mob, should be presented to the Board of Supervisors for allowance/before bringing an action to recover judgment on it. Clear .Lake W. W. Co. v. Lake County, 45 Cal. 90. 23. Malicious trespass. Where a tres- pass is committed from wanton or malicious motives, or a reckless disregard of the rights of others, or under circumstances of great hardship and oppression, the measure and amount of damages are for the jury alone. Courts -will not disturb the verdict on the ground that the damages are excessive, unless the amount of damages is so disproportionate to the injury proved as to make it clear that the jury acted under the influence of passion or prejudice. Russell v. Dennison, 45 Cal. 337. IH. BREACH OP CONTRACT. 24. Of railroad passenger contract. In such case : held, that one hundred dollars was ample compensation for the injury sustained, and that a new trial be granted, unless plaint- iff elect to accept judgment for said sum. Tar- bell v. C. P. R. R. Co., 34 Cal. 616. 25. To make lumber. When a party who contracts with another to make lumber for him, and to pay him a fixed sum therefor monthly, as the lumber is made, breaks the contract, without any fault on the other's part, the rule of damages for the breach is the difference be- tween the cost of making the lumber and the contract price. Hale v. Trout, 35 Cal. 229. 26. Where one of the parties to a contract, the performance of which extends through a length of time, refuses to fulfill on his part, and declares the oontract at an end, the other may sue for and recover as damages the profits he could have made by the fulfillment of the contract, without waiting for the time to ex- pire. Id. 27. Contract price as measure of dam- ages. While the contract price will be adopted as the prima facie measure of damages in ac- tions for breach of contract for the perform- ance of services, the damages may, neverthe- less, be increased, or diminished, according as the proof shows that the plaintiff has sustained an actual loss greater or less than the contract price. Utter v. Chapman, 38 Cal. 659. 28. For services refused. Parties whose services have been refused, when offered according to their contract, may not refuse employment from others, and insist upon the payment of the full contract price, but should protect themselves from loss, so far as it may be done by reasonable exertion. Id. 29. The amount received for the employ- ment of the services by other parties should be deducted from the amount of the damages computed by the contract price. Id. 30. For breach of covenant. The rule of damages, where there has been an actual loss of the premises, is the purchase money and interest. Where the plaintiff has purchased the paramount title, it is the sum actually and in good faith paid for the paramount title, and the amount expended in defending his posses- sion ; provided that such damages shall in no case exceed the purchase money and interest. McGary v. Hastings, 39 Cal. 360. 31. Mere nominal damages do not belong to a case where there is a willful breach of a covenant to convey land, especially where the land has considerably appreciated in value since the making of the contract. Morgan v. Stearns, 40 CaL 434. 32. Undertaking on attachment. A judgment for damages on an undertaking on attachment for the depreciation in value of the goods taken during the time they were in the officer's hands, is not excessive. Frankel v. Stem, 44 Cal. 168. See Common Carrier, 8 ; Contract, 101-107 ; Covenant, 10 ; Equity, 50, 51 ; Warranty, 5. 33. For breach of trust. In case of loss arising from a breach of trust, the value of the property at the time of the commencement of the suit is the measure of damages. Price v. Reeves, 38 Cal. 467. See Action, 29 ; Trust and Trustee, 39. See Generally, Appeal, 258, 324, 372, 373 ; Claim and Delivery, 12, 14, 15; Ejectment, 126-128; Evidence, 13, 128; Fraud, 20; Landlord and Tenant, 26 ; Office and Officer, 19; Party, 6; Pleading 29, 30, 39, 49; Ver-, diet, i. DAMAGES BY THE ELEMENTS. See Act of God. DEATH. 1. Statutory construction. The appli- cation of the Act " requiring compensation for causing death by wrongful act, neglect, or default," (Stat, of April 26th, i862)isnotto be extended to any matters not embraced in the strict letter of the statute. Eustace v. Jahns, 38 Cal. 3. 2. Presumption. That a person has not been heard of for seventeen years by his wife, is sufficient to justify a presumption of his death. Garwood v. Hastings, 38 Cal. 217. 3. The testimony of the wife that she had not heard from her husband for seventeen years, being herself, all the time, absent from 108 DEBT.— DECREE. his last known place of residence, living under various assumed names, and at no time bear- ing that of her husband, thereby suggesting the probability that she had endeavored to con- ceal herself from her husband, is not sufficient to justify the presumption of his death. Id. See Appeal, 144-146 ; Attorney and Client, 9 ; Criminal Law and Practice, 312, 373 ; Dam- ages, 2-7 ; Limitations, 1 1 ; Parties 20-22 ; Partnership, 35 ; Probate Law and Practice, 8. DEBT. 1. Common property liable for -wife's sole debt. In an action against the husband and wife, on a .sole debt of the wife, con- tracted by her before marriage, a judgment may be rendered to be collected out of the common property of both husband and wife. Vlautin v. Bumpus, 35 Cal. 214. 2. Assignment of debt not in existence. An assignment of a debt not in existence is not valid at law. Such assignment creates an equity only. Hassieu. Gr. I. W. U. Cong., 35 Cal. 378. 3. When fraudulently contracted. The fraudulent intent of a party to procure goods without payment is consummated when the pos- session of the goods is obtained without pay- ment on delivery, or on call, according to the terms of sale. The debt, under such circum- stances, is fraudulently contracted. Stewart v. Levy, 36 Cal. i«. 4. Liability of partners for. In case of a debt fraudulently contracted by apartnership firm by one member alone, the others being ignorant of the fraud, while all the members will be bound in an action brought on the contract or to recover the property so fraudu- lently obtained, yet the liability to an action for the fraud, which is essentially different and involves moral turpitude, is limited to the partner committing the same, unless the others assented to the fraud, or ratified it by adopting the act of the fraudulent partner, or retaining its fruits with knowledge of the fraud. Id. 5. Payment of, by one not legally re- sponsible. The payment of a debt by a per- son not legally responsible for it is a satisfac- tion of the debt, if the money is accepted for that purpose. Martin v. Quinn, 37 Cal. 55. 6. Discharge in legal tender notes. A debt secured by note and mortgage made and executed before the passage of the Legal Ten- der Act, may be discharged in legal tender notes, if they contain no stipulation requiring payment to be made in coin. Belloc v. Davis, 38 Cal. 243. See Assignment, 1, 3, 12 ; Bankruptcy, 11,12; Corporations, 51-56 ; Fraud, 1 ; Injunction,. 1 ; Limitations, 2, 3, 29, 35, 38 ; Mortgage, 1; Pay- ment, 1 ; Taxation, 35, 36. DEBTOR. 1. Right to sue a person confined in the State prison. A creditor whose debtor is imprisoned in the State prison for a term less than his natural life, may sue and subject the property of such debtor to the satisfaction of his debt, during the term of his imprisonment. Estate of Nerac, 35 Cal. 392. 2. Effect of imprisonment for felony. One sentenced to the State prison for a felony, for a term less than his natural life, is not dead, in law. His civil rights in some matters are suspended, but the rights of his creditors are not suspended. Id. \ 3. Order discharging debtor from im- prisonment, how appealable. An order for the discharge from imprisonment of a judg- ment debtor, made under the provisions of the "Act for the relief of persons imprisoned on civil process," (Stats. 1850, p. 40) is a " special order made after final judgment," within the meaning of the three hundred and thirty-sixth section of the Practice Act, and an appeal therefrom cannot be taken , after sixty days from the entry of the order. Wells, Fargo & Co. v. Anthony^ 35 Cal. 696. 4. When judgment may authorize a ca. sa. In an action for fraudulent purchase of goods, an issue of fraud may be framed and tried, and the defendant, upon proper proof, may be adjudged guilty, and the Court may order an execution against the person of the' defendant so adjudged guilty of the fraud. Stewart v. Levy, 36 Cal. 159. See Appeal, 51 ; Assignment, 4 ; Attach- ment, 36 ; Estoppel, 6 ; Limitations, 5 ; Pay- ment, 3, 4, 5 ; Specific Contract Act, 1 ; Sure- ties, 1 ; Trust and Trustee, z. DECEIT. See Action, 30 ; Parties, 10. DECLARATIONS. See Criminal Law and Practice, 163-166 ; Evidence, 41', 78-88, 94, 95, 142. DECREE. 1. Decree upon stipulation. A decree, DBDI CATION.— DEED. 109 purporting to be entered upon stipulation, but not in conformity therewith, should be set aside on motion. People v. N. S. F. H. & E. K. Association, 38 Cal. 564. 2. Amendment of decree. A motion to amend the decree and findings of the Court is not proper practice. Thompson v. Lynch, 43 Cal. 483. See Appeal, 331 ; Divorce, 12 ; Equity, 10, II, 26, 27 ; Evidence, 48 ; Foreclosure, 10, 11 ; Injunction, 24; Interest, 15 ; Judgment, 8, 80, 83, 94 ; Land and Land Titles, 161 ; Partition, 23 ; Probate Law and Practice, 107, 115 ; Tax- ation, 137 ; Writ of Assistance, 10. DEDICATION. 1. To public use must be irrevocable. It is one of the essential elements of a good dedication that it shall be irrevocable, and that the land shall be forever dedicated for the public use which is designated, provided the public see fit to use it for that purpose. A reservation of the right to revoke the dedica- tion, defeats the dedication. San Francisco v. Canavan, 42 Cal. 543. 2. Valid and complete dedication. To constitute a valid and. complete dedication, there must be an intention by the owner, clear- ly indicated by his words or acts r to dedicate the land to public use, and an acceptance by the public of the dedication. Id. 3. Acceptance of. An acceptance of a dedication is generally established by a use by the public of the land for the purpose to which it had been dedicated. Until accepted, the dedication, whether made by deed or other- wise, may be revoked by the owner of the land. Id. 4. Nature of use necessary to consti- tute acceptance. The public use necessary to constitute an acceptance of a dedication, must be of such duration that the public inter- est and private rights would be materially im- paired if the dedication were revoked and the use by the public discontinued. Id. , 5. Evidence of. Where land was used in San Francisco as a cemetery, and was so mark- ed upon the Van Ness map, and where the Legislature subsequently authorized the re- moval of the dead bodies and the dedication of the land to such public use as the Board may deem proper, and the Board undertook to ded- icate it as a park : held, that the map was not evidence tending to prove a dedication as a public park. San Francisco a. Canavan, 42 Cal. 541. See Homestead, 6 ; Railroads, 13, 15; San Francisco, 19 ; Streets, 1-4. I. II. III. IV. V. VI. vn. DEED. generally. Construction op. Descriptions in. Effect op deed. When a mortgage. Op gift. Quit claim deed. I. GENERALLY. 1. The word "deed" in its largest sense includes a mortgage, but when it appears from the language of a contract that it was used therein in a limited sense, and as meaning an instrument conveying the title to land, it will not be held to include a mortgage, in con-' struing the contract. Hellman v. Howard, 44 Cal. 101. 2. Inserting name of grantee in deed. A deed, in due form, signed and acknowledged by the grantor, does not become his deed until the name of a grantee is inserted therein ; and an agent of the grantor cannot insert the name of a grantee in the absence of the grantor, unless his authority is in writing. Upton v. Archer, 41 Cal. 85, 3. Conveyance of land to partners. When a deed is executed to four persons, naming them, and then describing them as composing the firm of " Graff, Fulton &Co.," and the four persons compose a partnership, and the property conveyed, is paid for with partnership funds, and used for partnership purposes, the deed is not void as to either of the grantees, under the Statute of Frauds, but conveys the legal title to an undivided one fourth of the property to each of the four grantees, incumbered only Iry an equitable lien in favor of the other partners. McCauley v. Fulton, 44 Cal. 355. 4. By wife of non-resident. — Certificate dated after acknowledgment. The statute relating to conveyances by wives of non- residents of their separate estate, (Stats. 1855, p. 12) contemplates that some time may elapse, after the acknowledgment, and before the cer- tificate, in order to make the necessary proofs as to the non-residence of the husband ; but the certificate, when made, is the termination of a continuous transaction, and speaks as to the day of acknowledgment. Salmon v. Wil- son, 41 Cal. 595. 5. By tenant in common. If a party purchases from one who owns one undivided one seventh of a tract of land, a portion of such tract described by metes and bounds, he acquires the title to only one undivided one seventh of the portion he has purchased. Ma- honey v. Middleton, 41 Cal. 41. 6. Obligation of owner as to forged deed. It is not the duty of the owner of real estate, if his own interests do not require it, 110 DEED. to attack a forged deed to his property. Meley v. Collins, 41 Cal. 663. 7. Protection to purchaser under. A purchaser may protect himself from injury resulting from a forged deed by exacting the necessary covenants from the vendor. Id. 8. Deed fraudulent in law. If the grantor leave with his agent a deed, in due form, signed and acknowledged, with a blank left for the grantee, and the agent, without authority in writing and in the absence of the grantor, fill the blank with the name of a grantee and deliver it, the deed is fraudulent in law and void. Upton v. Archer, 41 Cal. 85. 9. Destruction or cancellation of deed. The destruction or cancellation of a, deed, after it has been delivered, does not revest the title in the grantor, even if destroyed or can- celed with the consent of all the parties for the express purpose of restoring the title to the grantor. The title cannot be restored to the grantor otherwise than by a reconveyance in writing. Cranmer v. Porter, 41 Cal. 462. 10. Deed does not show change of possession. A deed which conveys to the grantee all the grantor's right and title, and all his right of possession, does not show, or tend to show, any actual possession in the grantee, nor any change of possession from the grantor to the grantee. Sanchez v. Loureyro, 46 Cal. 641. See Contract, 72, 93, 94 ; Conveyances, 2-15 ; Corporation, 50 ; Covenants ; Ejectment, 106 ; Party, 9 ; Trust and Trustee, 3, 4, 5, 8. H. CONSTRUCTION OF. 11. Against the grantor. Deeds are con- strued most strongly against the grantor. Salmon v. Wilson, 41 Cal. 595. 12. Doubts how solved. All doubts as to the meaning of a deed must be solved in favor of the grantee. Piper v. True, 36 Cal. 606. 13. Latent ambiguities. Where the am- biguity in a deed is latent, testimony as to the facts and circumstances surrounding the parties and the subject matter at the time the deed was executed, is relevant. Id. 14. Subsequent facts and events. The rule that, in the construction of deeds, facts and events which have transpired since the deeds were executed cannot be considered, does not exclude events which at the time of the execution of the deeds the parties knew might happen. Id. 15. Deed without words of inherit- ance. A deed, which in its granting part simply grants, bargains, and sells to the party of the second part, and qontains no words of in- heritance, under our statute, conveys a fee simple title ; but the title thus conveyed may be limited, in the habendum clause, to an es- tate for life. Montgomery v. Sturdivant, 41 Cal. 290. 16. Such limitation in the habendum clause of a deed is not repugnant to the granting clause. Id. 17. Habendum clause. The office of the habendum clause in a deed is to limit and de- fine the estate which the grantee is to have in the property granted. Id. 18. Conveyance of life estate with re- mainder to heirs. A conveyance to husband and wife, for their joint lives, and to the sur- vivor during the life of the survivor, with re- mainder to the issue and heirs of their two bodies, and the heirs of such issue forever, vests a life estate in the grantees, and a, full estate • ■ in their children. Id. 19. Under power of attorney. Powell gave a power of attorney to Neleigh, authoriz- ing him to convey certain lots in San Jos6, con- firming by the terms of the instrument any sales he might make. Soon after receiving the power of attorney, Neleigh sold the property to Naglee for a fair consideration, and convey- ed it to him by his own deed, in which there is no reference to Powell ; but about a year thereafter, and while the power of attorney remained in full force, Neleigh indorsed on the deed a writing to the effect that the lots were intended to be sold to Naglee under the power ' ' of attorney, and that he executed the deed only as the attorney for Powell, adding : "and as such attorney I do hereby bind John W. Powell, his heirs and assigns, to the within agreement,' having- received the consideration as within specified. (Signed) : Rob't B. Ne- leigh, Attorney." Held, that in order to as- certain the intention of the parties, these two papers must be construed together, and that under the circumstances they constitute an at- tempt by Neleigh to convey to Naglee under the power of attorney. G-erdes v. Moody, 4r Cal. 335. 20. General rule of construction. In construing written instruments, the only rule of much value — one which is frequently shad- owed forth, but seldom, if ever, expressly stat- ed in the books — is to place ourselves as near as possible in the seats which were occupied by the parties at the time the instrument was ex- ecuted ; then taking it by its four corners, read it. Walsh v. Hill, 38 Cal. 482. 21. Vesting of title under deed upon condition precedent. The instrument ex- ecuted by John A. Sutter, Jr., to Brannan, Bruce, Graham, and Wetzlar, on June 20th, 1850, in reference to Sacramento and other property, was a deed upon condition precedent ; and upon the performance of that condition, which was the payment of the purchase mon- ey, the title to the lands described vested in the grantees. Talbert v. Hopper, 42 Cal. 397. DEED. Ill HI. DESCRIPTION OF LAND IN. 11. Descriptive clause. A deed from and wife described the premises conveyed as " all the undivided half of the right, title, and interest of the said parties of the first part of, in, and to that certain tract and parcel of land lying and being in the State of California and County of Santa Clara, known by the name of the Eancho Santa Teresa, the interest therein conveyed being the same acquired by the par- ties of the first part as heirs of Jos6 Joaquin Bernal and his wife, Josef a Sanchez de Bernal, deceased ' ' : held, that there was no repug- nance in the descriptive clause of the deed, and that it appeared on the face thereof that it was the intention of the grantors to convey only such interest as they had acquired as the heirs of Bernal and his wife. Held further, that the deed conveyed the separate interest which the wife of Castro, one of the grantors, had acquired as the heir of Bernal and wife, and that it did not convey the interest which one of the- grantors, Joaquin Castro, had ac- quired in the Eancho Santa Teresa by pur- chase. Castro v. Tennent, 44 Cal. 253. 23. Description by name. Where, in an action of ejectment, the plaintiff claimed under a deed which described the land by name, as " all the undivided two thirds of all the lands known by the name of Eancho de San Vicente, situate in the County of Los An- geles and State of California," and then added a particular description which was erroneous : held, that the deed was intended to convey two thirds of the whole rancho, however erroneous the particular description might be. Haley v. Amestoy, 44 Cal. 132. 24. A tract of land which has a well known name may be described by that name in a deed. Id. 25. Different descriptions. If a deed contains different descriptions, one of which applies to land which the grantor owned and the other to land which he did not own, the former shall be taken as true and the latter as false. Piper v. True, 36 Cal. 606. 26. When there are two descriptions in a deed, one.of which describes the premises con- veyed generally by name, and the other gives a particular description by metes and bounds, which is erroneous and does not cover all the land contained in the first, the latter will be rejected. Haley v. Amestoy, 44 Cal. 132. 27. Where general descriptions are fol- lowed by particular descriptions in a deed, the latter will not restrict the former, if they have been used in the sense of reiteration or affirmation. Piper v. True, 36 Cal. 606. 28. Description sufficient. A descrip- tion is not defective which calls for a lot of land one hundred varas square, bounded on three sides by well known streets, upon the plat of a city laid out, surveyed and platted, and on the other by the unsurveyed lands. Garwood v. Hastings, 38 Cal. 216. 29. The description in a deed of convey- ance was as follows : ' 'All my right, title and interest in and to a parcel of land situate in the town of San Francisco, being block No. 9, the same on which I now reside. The part thus donated commences at the northeast cor- ner of said block, running twenty-five varas west from said corner ; thence back one hun- dred varas." Held, that the description was sufficient to support the deed, and that there was thereby conveyed a strip off the easterly side of the block twenty-five varas wide and a hundred varas in depth. De Levillain v. Evans, 39 Cal. 120. 30. By reference to other documents. In construing a deed of conveyance, in which the land intended to be conveyed is described by reference to certain degrees of latitude, and also to a certain map therein specifically described, the degrees of latitude and other imaginary lines will be discarded; as less cer- tain and reliable than the map. Mayo v. Mazeaux, 38 Cal. 442. 31. The case of Mayo v. Mazeaux, 38 Cal. 442, affirmed, on the point that the land in Sac- ramento conveyed by John A. Sutter to John A. Sutter, Jr., by deed dated October 14th, 1848, was land described in the grant and subsequent patent to Sutter, Sr. Poorman v. Miller, 44 Cal. 269. 32. Deed from Sutter to Sutter, Jr. The deed of the 14th day of October, 1848, from John A. Sutter to his son John A. Sutter, Jr., and recorded in book "C" of deeds, in the office of the County Eecorder of the County of Sacramento, includes the site of the City of Sacramento. Sanchez v. Neary, 41 Cal. 485 ; Talbert v. Singleton, 42 Cal. 390. 33. By angle and by direction. I claimed title under a deed which described a boundary line as " commencing on a line at a point one hundred yards below the mouth of the creek running from San Eafael to the Bay of San Francisco, on the easterly side of said creek ; thence running at right angles to said creek to the highest ground on the ridge"; and T claimed under another deed a line as commencing "at a point about one hundred yards below the mouth of San Eafael Creek, and running thence northwesterly, or at right angles with the said creek, to a point on the top of the main ridge." There being no visi- ble monument called for at the end of the line in T's deed to fix its location : held, that the term "northwesterly," used in his deed, is less definite than the call in I's deed to run at right angles. Irwin v. Towne, 42 Cal. 326. 34. Where a deed described a portion of the German Eancho " beginning at the dis- tance of one and a fourth leagues, Spanish measure, from the northwest end of said rancho at a point on the shore of the Pacific Ocean ; thence running a direct line to the northern 112 DEED. boundary of said rancho one league; thence along said northern boundary one league, Spanish measure ; thence in a southern direc- sion to the Pacific Ocean, so as to include the improvements and house of said Hugal, and to include a quantity of land equal to one Spanish league "; and all the lines were agreed on ex- cept the third call "ma southern direction ' ' : held, that this line must deflect from a right angle with the northern line to such an extent as to include one league, and as much more as might be necessary to include Hugal's im- provements, and that parol evidence was not admissible to vary such construction of the deed. Piatt v. Jones,i 43 Cal. 219. 35. By right angle. A deed which con- tains a call describing a boundary as a. line commencing one hundred yards below the mouth of a certain creek (naming it) and to run at right angles with the creek, there being nothing on the face of the deed to indi- cate that the creek does not run in a perfectly straight course, or that a straight line drawn along the thread of the stream would not in- tersect the beginning point of the contested line, is not void for uncertainty on its face in respect to such line. A perpendicular line drawn from this base would answer the call in the deed. Irwin v. Towne, 42 Cal. 326. 36. Base for right angle, how estab- lished. In order to run a line at right angles to a tortuous stream, a straight Kne must first be established as a base. This can be done only by 'ascertaining and reducing to a straight line either the general course of the stream, from its source to its mouth, or that portion of the stream which shall appear to have been within the contemplation of the parties at the time of the execution of the deed. Id. See Description of Land, 1 ; Evidence, 54, 55- 37. Lines named in deed. The terms ' ' northwesterly, " " northerly, " " northeast- erly," etc., are only construed as" due north," "due northwesterly," etc., when such con- struction is necessary to prevent a failure of the deed for want of certainty, and must yield to another more definite description in the deed. Irwin v. Towne, 42 Cal. 326. 38. Location of line. A deed from J to I contained a call which referred to a creek "running from San Rafael to the Bay of San Francisco. ' ' It appeared that the stream above the village of San Rafael was a running stream but a part of the year, and was not known by the same name as the part below ; also, that below the village the stream is navigable a portion of the distance from its mouth. The stream is referred, to in another portion of the deed as " the creek running from San Rafael to the Bay of San Francisco"; held, that the parties making the deed intended to refer to that portion of the stream below San Rafael only, and that a straight line drawn from the head of the stream to its mouth would establish I a 1 base line for a right angle called for in the deed. Irwin v. Towne, 42 Cal. 326. 39. Deed void for uncertainty of de- scription. Where a* deed called for a lot in San Francisco, commencing on the north line of Jackson street, seventy-two feet from the intersection of Jackson and Drumm streets, running thence easterly on the north line of Jackson street fifty feet ; thence north on East street forty feet ; thence at right angles west fifty feet ; and thence to the place of begin- ning : held, that if East street did not extend' north of Jackson street, or .was so understood and recognized, East street was a false call, and must be rejected ; and the deed, as the de- scription then would fit equally well four dif- ferent parcels of land, would be void for un- certainty. Poople v. Klumpke, 41 Cal. 263. 40. Deed of a sobrante grant. S .being the owner of a sobrante grant, which had been confirmed to her by the Board of Land Com- missioners and the United States District Court, and which had been surveyed by direc- tion of the Surveyor General of the United States, which survey was supposed to be final, but had not been confirmed, and might be thereafter set aside and the grant again located by another survey upon different land, con- veyed one undivided half to P, and the other to C and P, by the following description l " One undivided half part of all that certain tract or parcel of land situate, lying, and being- in the County of Contra Costa, in the State of California, known as the Rancho Canada del Hambre y las Bolsas, being the tract of land upon which the Town of Martinez is situated, and the same confirmed to said S by decree of the District Court of the United States for the Northern District of California, and surveyed, by the order of the Surveyor General of the United States for California, by A. W. Von Schmidt, Deputy Surveyor, in March, i860, and approved by said Surveyor General ; the said tract, according to said survey, containing thirteen thousand three hundred and twelve and seventy one-hundredths acres of land; saving and excepting therefrom the piece of land now occupied, and inclosed by the parties of the first part, and also the adobe house built by them, now occupied by one Lathrop, and a convenient lot of land adjacent to said adobe house, and upon which the same stands ; the whole, however, including the said tract now occupied and inclosed, as aforesaid, or so much thereof as may be necessary, not exceeding the area of twenty-five acres of land." After- wards a new survey was made and confirmed by the District Court, which located the grant upon almost entirely different land, and did not include the Town of Martinez nor the land reserved in said deed. The question was, whether the title of S to the grant as finally surveyed had passed : Held, that it had passed. Piper v. True, 36J Cal. 606. 41 Courses. The courses south, east, north, and west, called for in a deed, will be DEED. 113 controlled by other -well defined and certain descriptions contained therein, and may be read southerly, easterly, northerly, and west- erly, if thereby all the calls will be harmon- ized. Faris v. Phelan, 39 Cal. 612. 42. Uncertain calls of deed. If there be such uncertainty in the calls of a deed that either one of two or more objects will answer it, so that the line will run in two or more positions, and still harmonize with the other calls of the deed, the parties to the deed may adopt either line — and, when so established, it concludes both parties. Hastings v. Stark, 36 Cal. 122. 43. When acquiescence for five years necessary. In such case, the acquiescence of the parties for the period of five years would add nothing to the conclusiveness of the loca- tion of the line, while such acquiescence would probably be necessary to give validity to a line not located according to the calls of the deed. Id. 44. Conflicting calls. Where there are conflicting calls in a deed, those which from their nature are less liable to mistake will con- trol those which are more liable to mistake. Walsh v. Hill, 38 Cal. 481. 45. If the starting call is fixed, certain and notorious, and there is a conflict between it and other calls, the latter must, generally, give way to the former.' But when the suc- ceeding calls are as readily ascertained, and are as little liable to mistake, they are of equal dignity with the first, and when they all conflict with the first, and agree with each other, their united testimony must control. Id. 46. Application of calls. Where a lot in San Francisco was claimed under a deed which called for a commencement ''at the northeasterly corner of Pacific street and Lone Mountain Cemetery Avenue, as such corner may be established, -by the city hereafter, whether known as such street or not ' ' ; and it appeared that there was a space, known as " Cemetery Avenue," which if extended would have crossed Pacific street at the lot claimed ; and it further appeared that the grantor had pointed it out as the lot conveyed : Held, that the description applied to the lot claimed, and could not be held to apply to a lot in the United States reservation at the cor- ner of Pacific street and an avenue thereafter established by the city, five hundred feet fur- ther west, and called "New Cemetery Avenue." Altschul v. S. F. C. P. H. A., 43 Cal. 171. 47. Deed with defective description. A deed which purports to describe a specific tract of land, giving the number of acres, and calling it parcel of a larger tract, but the calls of which fail to describe the tract of land intended to be conveyed, or any tract of land, does not convey an undivided interest in the larger tract, nor make the grantee a CAL. DIG. SUP. 8. tenant in common with the grantor in the larger tract. Grogan v. Vache, 45 Cal. 610. IV. EFFECT OF DEED. 48. Deed in fee carries after-acquired tit\e taken in name of stranger. The prin- ciple that if a vendor convey the fee in land to which he has no title, and to which he after- wards acquires the true title, the title thus ac- quired shall inure to the benefit of his ven- dee, cannot be defeated in equity by taking the after-acquired title in the name of a third person who has no real interest in the transac- tion. Quivey v. Baker, 37 Cal. 465. 49. If A, having no title, makes a convey- ance in fee of land to B, and afterward for his own benefit procures the holder of the real title to make a conveyance thereof to C, (C paying no consideration) this conveyance to C will, in equity, inure to the benefit of B and his grantees in all proceedings between C and B, or his grantees. Id. 50. Effect of deed of grantee before Mexican grant is confirmed. A deed given by the holder of a Mexican grant, before the confirmation and the issuance of a patent by the United States to him, vests in the grantee the legal title to the land conveyed by the deed. Walbridge v. Ellsworth, 44 Cal. 353. 51. Deed as an estoppel. So far as a deed is intended to pass or extinguish a right, it 'is the exclusive evidence of the contract, and the party is concluded by its terms ; but the deed is not conclusive evidence of the existence of facts acknowledged in the instrument, such as its date, acknowledgment of payment, consid- eration, etc. Rhine v. Ellen, 36 Cal. 362. 52. How far an estoppel. Parties to a deed are not estopped from denying collateral facts recited therein, not essential to its valid- ity, as an operative conveyance of the estate granted. Ingersoll v. Truebody, 40 Cal. 603. 53. Deed of land not in possession of grantors. A deed of a tract of land in San Francisco, only a portion of which has been so reduced to possession by the grantors as to give them possession, or the right to possession or title under the Van Ness Ordinance, will" confer upon the grantees no right under -the., ordinance, except to the part actually inclosed . and reduced to possession. Pattee v. Moyle, 44 Cal. 363. 54. Invalid deed. - An instrument which is not prima facie valid, but which exhibits on its face its- own invalidity, cannot constitute the basis of an action. Welton v. Palmer, 39 Cal. 456. V. DEED, WHEN A MORTGAGE. 55. Legal title. An absolute deed, al- though shown by parol evidence to have been 114 DEED. intended as a mortgage, conveys the legal title. Hughes r. Davis, 40 Cal, 117. 56. Deed not a mortgage. V gave F a deed of bargain and sale, absolute on its face ; at the same time, and as a part of the same transaction, F gave V a written instrument to the effect that the deed had been taken as security for a note which he held against V, and that IP would indorse upon the note all moneys received by him from sales of the land, and that when the note was all paid, F would deed back to V all the land then unsold : held, that this was not a mortgage merely, but a trust for the benefit of IP, and that the legal title was in F while the trust continued. Vance v. Lincoln, 38 Oal. 586. 57. Deed as mortgage. Under a plea of the general issue in ejectment, a deed absolute in form cannot be attacked on the ground that in was in fact intended to be a mortgage. Davenport v. Turpin, 43 Cal. 597. 58. Interest in land conveyed by trust deed for money loaned. A trust deed of real estate, taken by a person who loans money to the owner, defeasible on payment of the debt, is something more than a mortgage. It conveys the legal title and an interest in the land. Fuquay v. Stickney, 41 Cal. 583. 59. Covenant to reoonvey. Parties may buy lands in satisfaction of a debt, or for a consideration paid, and contract to reconvey upon the payment of a sum certain, without any intention that the transaction should create a mortgage. Henley v. Hotaling, 41 Cal. 22. 60. A covenant to reconvey does not neces- sarily convert an absolute deed into a mort- gage. It may be one among other facts show- ing that the parties intended the deed to operate as a mortgage. Id. See Ejectment, 72 ; Evidence, 50 ; Mortgage, 16-26. ' VI. DEED OF GIFT. 61. Deed of gift, notwithstanding money consideration. Where Bartolome Bojorques conveyed to his eight children eight ninths undivided of a valuable six-league ranch, in consideration of love and affection, " and in the further consideration of $461 to 1 him in hand paid by said parties of the second part ": held, that enough appeared on the face ,of the deed itself, in view of the value of the property conveyed in comparison with the paltry sum named, and in view of the con- dition of the parties, their relations, and the surrounding circumstances, to show the trans- action a donation, and not a sale. Salmon v. Wilson, 41 Cal. 595. 62. In so far as Tustin v. Faught, 23-Cal. 241, holds the deed of Bartolome Bojorques to his children of eight ninths of the Eancho Laguna de San Antonio to be a deed of bargain and sale, and not a deed of gift, overruled. Id. 63. Deed, when held a gift. In determ- ining the character of a deed, claimed and purporting to be a gift, but also expressing a money consideration, resort must be' had to the instrument itself ; but if it can be ascertained from its face, interpreted in the light of sur- rounding facts, that it was intended to be a gift, it will be so held, without the need of proof aliunde on that point. 64. Deed of gift "subject to a mort- gage." Where a deed of gift contains a pro- vision that it was made " subject, however, to the payments, conditions, and agreements spec- ified and contained in a certain indenture of mortgage ' ' : held, that by accepting the deed the grantees did not become personally liable for, or assume the payment of, the mortgage debt, and that the transaction was not thereby- rendered a sale. Id. 65. Deed of undivided interests, with special reservation. Where a father made a deed of gift to his eight children of eight ninths undivided of a large grant, reserving one ninth to himself, " to be laid out on that part of said rancho on which I now reside" : field, that the actual location of the reserved ninth was not a condition precedent to the vest- ing of the title to their undivided portions in the children." Id. See Husband and Wife, 12-20. VH. QUITCLAIM DEED. 66. Does not carry after-acquired title. Thd principle that a title acquired by the vend- or after a conveyance by him in fee inures to the benefit of the vendee, does not apply when the vendor's deed was a quitclaim, even if it contains a qualified warranty against a speci- fied adverse claim set up by a third party. Quivey v. Baker, 37 Cal. 465. 67. Quitclaim deed of Mexican grant. A quitclaim deed of a Mexican grant, executed by the grantee before he receives a patent from the United States, conveys to the purchaser the title, and the patent afterwards inures to his benefit. Crane v. Salmon, 41 Cal. 63. 68. Priority of record. A quitclaim deed, received iu good faith, and for a valuable con- sideration, and which is recorded before a prior deed of bargain and sale, will prevail over such prior deed. Graff v. Middleton, 43 Cal. 341- 69. "What passes by. A quitclaim deed passes whatever interest the seller has in the land at the time of its execution. Id. 70. A quitclaim deed of "all my right, title, and interest in Sacramento City, Upper California, consisting of -town lots and build- ings thereon," passes the grantor's interest in his lots in Sacramento. Frey v. Clifford, 44 Cal. 335. 71. Such deed, if made in good faith and for a valuable consideration, and without no- DEFAULT. 115 tice, will prevail over an older deed which is subsequently recorded. Id. See Generally, Abandonment, 9 ; Acknowl- edgment, 1, 2, 5 ; Appeal, 244 ; Easement, 1 ; , Ejectment, 8, 54, 55, no ; Equity, 12, 14 ; Es- toppel, 7 ; Evidence, 38-41, 43, 44, 47, 50, 52- 57, 103, 155; Forcible Entry and Detainer, 60, 61, 64, 71 ; Limitations, 43, 62 ; San Francisco, 8 ; Specific Performance, 32 ; Trial, 32 ; Trust and Trustee, 10. DEFAULT. I. II. In general. Opening default. I. IN GENERAL. 1. Effect of suffering a default. A de- fendant who fails to answer within the time allowed by the Court on the overruling of his demurrer, and whose default is entered, is not entitled to participate in the further proceed- ings in the case. People v. Culverwell, 44 Cal. 620. 2. In tax suit. After the default of a de- fendant has been entered, in a suit to recover delinquent taxes, the Court may enter judg- ment on the pleadings. Id. 3. Entry of, a ministerial act.' The entry of a default in a case authorized by law, is a ministerial act to be performed by the Clerk, and the disqualification of the Judge of the Court to try the cause does not disqualify the Clerk for the performance of this duty. People v. Carrillo, 35 Cal. 37. 4. When entry of by Clerk not requir- ed. In certain cases for the collection of taxes, (Stats. 1863-4, p. 399) no entry of default by the Clerk is necessary ;. but a default is deemed made on the failure of defendants to appear and plead within the time prescribed by law. 5. Effect of default. A default in an ac- tion to foreclose a mortgage is an admission of all the material facts alleged in the complaint, and authorizes the Court to render any judg- ment in accordance with those admitted facts. Hutchingsu. Ebeler, 46 Cal. 557. 6. A defendant in default is unaffected by the findings, and has no grounds of complaint if the judgment is not sustained by or is re- pugnant thereto. Himmelman v. Spanagel, 39 Cal. 401. See Judgment, 99. H. OPENING DEFAULT. 7. Legal discretion. Applications to open defaults are addressed to the legal discretion | of the Court. "Watson v. S. F. & H. B. R. R. Co., 41 Cal. 17. 8. As a general rule, when the circum- stances are such as to lead the Court to hesi- tate upon a motion to open a default, it is bet- ter to decide in favor of the application. 28. 9. Terms on opening default. In open- ing a default, terms and conditions ought generally to be imposed, which should be more or less severe, as the circumstances seem to warrant. Id. 10. When default should be opened. Where a defendant has been misled by an in- correct publication of the time the suit was commenced, in a printed sheet containing in- formation of Court proceedings, on which the business community generally relied, the de- fault should be opened. Id. 11. Setting aside default. An order de- nying or granting a motion to set aside a judgment by default on the ground of mis- take, inadvertence, surprise or excusable neg- lect of the defaulting party, rests in the sound discretion of the Court, and, except in a plain case of abuse of this discretion, will not be disturbed by this Court on appeal. Coleman v. Rankin, 37 Cal. 247. 12. Where the defaulting party discloses, in the case presented by him for an order to set aside such judgment, a degree of negligence, carelessness, and lack of diligence not to be predicated of a prudent business man in a mat- ' ter of material concern to him, this Court will not on appeal disturb the order of the Court below denying such application. Id. 13. Motion to open default. Upon a mo- tion by a party defendant to set aside a default, and to be admitted to defend the action, the plaintiff will not be permitted to file affida- vits contradicting the allegations of merits contained in the affidavits of the moving party. Gracier v. Weir, 45 Cal. 53. 14. Insufficient grounds. S&S brought suit to recover a sum of money which they claimed to be due them from B & W. B, upon being served with summons and copy of com- plaint, entered into an agreement with S&S, in which he admitted that a certain sum was then due, and stipulating that it was to be settled in a particular manner. Held, that the agreement affords no ground for setting aside a default entered against B, in the absence of any promise by S & S to discontinue the suit, or to delay its progress. Sweet v. Burdett, 40 Cal. 97. 15. Where a defendant is personally served in the county in which the action is brought, with the summons and copy of the complaint, and leaves the State without having prepared and verified an answer, and his attorneys do not answer for him, the Court is justified in rendering judgment by default, and in refus- ing to open the default. Hancock v.- Pico, 40 Cal. 153. 116 DEFENSES.— DESCRIPTION OP LAND. 16. Where the Court makes an order requir- ing the plaintiff to appear at a time specified, and show cause why a default of the defend- ant for failure to answer should not be set aside, and there is no service of the moving papers, but the application is heard and de- cided in the absence of plaintiff's attorney, and where there is no reasonable excuse for the failure to answer within the proper time, it is error for the Court to set aside the default. Reilley v. Ruddock, 41 Cal. 312. 17. Showing of diligence. It is not a sufficient showing of diligence to excuse a, failure to answer, for au attorney who has in- terposed a demurrer, which is afterwards struck out, and default for failure to answer entered, to make an affidavit that he was present in Court at the calling of the law calendar, on law day, and answered "Ready," when the demurrer was called for argument, but did not then argue it, because the oppos- ing attorney was not present in Court ; and that he did not know that the Court would en- tertain a motion concerning a demurrer, ex- cept on a regular law day, without stating that he had no notice of the motion to strike out the demurrer, nor when he was informed, for the first time, that it had been struck out, nor that he supposed the demurrer to be still pending until after the time for answering had expired. Id. 18. Opening default. If there are two defendants, and one of them is not a real party in interest, and relies on the promise of the other to defend the action, and for that reason is defaulted, it is not an abuse of discretion for the Court to open the default as to him. S. B. L. S. & P. Co. v. Thompson, 46 Cal. 63. DEFENSES. See Pleading, 153-184; Criminal Law and Practice, 135-146. DEFINITIONS. See Appeal, 59 ; Certiorari, 2 ; Constitu- tional Law, 75 ; Conveyances, 19, 23, 25 ; Cor- porations, 57 ; Criminal Law and Practice, 7, 9, 11, 12, 220; Deed, I ; Forcible Entry and De- tainer, 1-6 ; Heir, 1 ; Interest, 1 ; Jurisdic- tion, 1, 2 ; Mechanics Lien, 19 ; Mortgage, 12 ; Motions, 3; Statutory Construction, 8-12; Summons, 14, 25 ; Trade Mark, 7. DEMAND. 1. Action against Sheriff. No demand b necessary before suing a Sheriff for personal property tortiously taken by him. Wellman v. English, 38 Cal. 583. 2. Of possession in unlawful detainer. The demand and refusal of possession required by the third section of the Forcible Entry and Detainer Act must be made after the entry of the defendant. Brawley v. Risdon Iron W., 38 Cal. 676. 3. Fraudulent purchase. A demand for the price of goods sold is not necessary to maintain an action against a debtor for fraud- lently purchasing the same. Payment, though it would satisfy the debt, would not remove the taint of the fraud, which is the gravamen -of the action. Stewart v. Levy, 36 Cal. 159. See Forcible Entry and Detainer, 41-44; Fraud, 22 ; Mandamus, 30 ; Negotiable Instru- ments, 43-46 ; Specific Performance, 37 ; Streets and Street Assessments, 87-91. DEMURRER. See Pleading, 99-122. DENIALS. See Pleading, 125-152. DEPOSITIONS. See Trials, 36-40. DESCENTS AND DISTRIBUTIONS. See Probate Law and Practice, 89-98. DESCRIPTION OF LAND. 1. Construing description of land. Courts give effect to every part of the descrip- tion of land in a deed or patent if possible, but if this cannot be done, they reject that which is repugnant to the general intent of the instrument. More v. MaBsini, 37 Cal. 432. DEVISE.— DISTRICT ATTORNEY. 117 2. Inclosure of a tract of land. A beach, upon tide water, may constitute a por- tion of the inclosure of a tract, of land. Brum- agim v, Bradshaw, 39 Cal. 24. 3. Construction of description in patent. If a patent for a confirmed Mexican grant of land recites the decree of confirmation and the plat and certificate of survey of the Surveyor General, giving the courses and distances, and the certificate states that the land confirmed is bounded as therein described, and the decree bounds the land on the sea shore on one side,but the calls and plat of the survey extend from the interior to the sea shore, and then extend along the sea shore in places at and below low tide to a point on the shore, and the patent grants the land described in the survey, the patent will be con- strued as conveying the land only to the high tide line along the shore. More v. Massini, 37 Cal. 432. i. Notice of possessory claim. Where, by the other descriptive calls of H's said notice, by which alone his claim was designated and identified, his claim was bounded on the north by the land claims of W, which was shown to embrace the northern portion of the demanded premises, and on which for several years prior to H's claim W had been settled, and had a part inclosed with fences : held, that H's claim included no part of Ws claim because bounded by it. Hicks v. "Whitesides, 35 Cal. 152. 5. Measurement of distance on a nav- igable stream. Where a certain distance is called for from a given point on a navigable stream to another point on the stream, the measurement must be made by its meanders and not in a straight line. People v. Henderson, 40 Cal. 29. 6. On a public highway. The same rule " prevails when the distance is called for upon a traveled highway. Id. 7. Boundary lines in decree of parti- , tion. When, in a judgment of partition, a boundary line between two of the parties is described as passing along a visible object, and is also described by courses and distances, the latter must yield to the former. Mills i>. Lusk, 45 Cal. 273. . See Conveyances, 20 ; Deed, 22-36 ; Land, 44, 121, 122; Powers, 4; Streets and Street 9 ; Taxation, 72. DEVISE. See Wills ; Probate Law and Practice, 28, 58, 90, 104. DEVISEE. See Ejectment, 9 ; Limitations, 12. DISCHARGE. From Imprisonment, see Appeal, 51 ; Debtor, 3. In Insolvency, see Pleading, 1 70- 173- DISCRETION. See Appeal, 198-206, 323, 325 ; Attorney and Client, 14 ; Certiorari, 26 ; Courts, 2 ; Criminal Law and Practice, 134, 275 ; Default, 7, 1 1 ; Injunction, 29, 38 ; Motions, 4 ; New Trial, 107-112; Trial, 49-55, 63. DISHONOR. See Negotiable Instruments, 56- DISMISSAL. See Action; Appeal, 140-156. DISSOLUTION. Of Corporation, see Corporation, 90-109-113. Of Injunction, see Injunction, 30-41. Of Partnership, see Partnership, 17-27 ; Plead- ing! 5°> 5 1 - DISTRICT ATTORNEY. 1. Duty of. It is not the duty of the District Attorney to prosecute or defend civil actions in which the county is interested, which are pending in any other county than his own. Herrington v. Santa Clara Co., 44 Cal. 496. 2. Supervisors may employ other at- torneys. The Board of Supervisors of a county have a right to decline the services of a District Attorney when tendered in a civil action in which the county is interested, pend- 118 DISTRICT COURT REPORTERS. -DIVORCE, ing in another county, and have a right to employ other counsel. Id. 3. Commissions of. The statute does not allow the District Attorney commissions on sums paid into the County Treasury by the debtor, on a compromise made by the Board of Supervisors in good faith, pending an action brought by the county to collect an amount claimed due. Id. 4. Commissions where case is settled. If the District Attorney is entitled to commis- sions when he brings a civil action to recover money due the county, and a compromise is effected by the Board of Supervisors attributa- ble solely to the litigation, and the money is paid into the County Treasury for the pur- pose of depriving him of his commissions, such averments must be made in the complaint, in an action brought to recover these commis- sions, as will show such facts to have existed. Id. 5. In such case an averment in the com- plaint, that a certain sum was collected by means of said action, which amount was paid into the County Treasury in pursuance of a compromise made by the Board of Supervisors while the action was pending, is not sufficient. Id. See Supervisors, n. DISTRICT COURT REPORTERS. 1. Construction of Statute relative to. It was not intended by the Act concerning District Court Reporters, (Stats. 1865-6, p. 232) that the report of the testimony, transcribed into longhand from the reporter's notes, should be a substitute for the bill of exceptions. Such report is only prima facie a correct statement of the evidence and proceedings therein con- tained, while a bill of exceptions imports abso- lute verity, and is not to be taken as merely prima facie correct. People v. Padillia, 42 Cal. 53s. 2. Duty of attorneys and Court as to report of testimony. Before incorporat- ing the reporter's transcript of the testimony in a bill of exceptions, it is the duty of attorneys to eliminate from it all matter not necessary or proper to illustrate the points to be presented on the appeal. The'Judge of the Court should not permit the report to be used until it has been revised by him. Id. DISTRICT COURTS. See Jurisdiction, 21-29. DITCHES. See Water and Water Rights. DIVIDENDS. See Corporations, 65-67. DIVORCE. 1. Extreme cruelty. If the husband, on more than one occasion, inflicts violence upon the person of his wife, so that the marks thereof remain, he is guilty of extreme cruelty, which is not excused by the fact that the wife has a bad temper and scolds the husband. Eidenmuller v. Eidenmuller, 37 Cal. 364. 2. Neglect. Where the wife's earnings are sufficient for her support, and they are not interfered with by the husband, the neglect of the husband to provide the common necessaries of life for the wife is not sufficient ground for a divorce, although the husband be a good workman and able to earn enough to support the wife. Rycraft v. Rycraft, 42 Cal. 444. 3. Orders in action for. In an action for divorce brought by the wife, the Judge of the Court in which the action is pending has no jurisdiction to hear and determine in the District Court of an adjoining county, of the same district, an application by the wife for an allowance pendente lite, and for the custody of the children of the marriage. Bennett v. South- ard, 35 Cal. 688. 3J. An order for alimony and the custody of the children pendente lite can only be made by the Court in which the action for divorce is pending. Id. 4. Alimony in case of. The Court, in granting a divorce, may direct the defendant to pay the plaintiff a monthly sum as alimony, and the allowance may be based on his earn- ings or upon his ability to earn money. Eiden- muller v. Eidenmuller, 37 Cal. 364. 5. The provision for alimony, made in the statute concerning divorces, was not intended to be a prohibition to the granting of alimony in other eases. Galland v. Galland, 38 Cal. 265. 6. Separate maintenance. The power conferred on the Court by the statute concern- ing divorce and alimony, to provide for the separate maintenance of the wife, pending an action for, or after, a final decree of divorce, does, by necessary implication, negative the power or jurisdiction of the Court to decree an allowance for the separate maintenance of, the wife, except where jurisdiction is acquired by the commencement of an action for divorce DIVORCE.— EASEMENT. 119 upon allegations of statutory cause therefor. Sprague, J., Sanderson, J., concurring. Gral- land v. Galland, 38 Cal. 265. 7. The subject-matter of allowance for sep- arate maintenance or alimony to the wife, as an independent matter, is not within the gen- eral original jurisdiction of Courts of equity, and is only exercised in reference thereto as de- rivative and incidental to some other original, primary, substantive matter, to which their jurisdiction had attached. Id. 8. Allowance for past support of child. If, after a decree of divorce has been granted, and the wife has been awarded the custody of a child, she petitions the Court for an order re- quiring her former husband to make provision for the support of the child, the Court may make an order of allowance for the past as well as future support of the child. Wilson v. Wil- son, 45 Cal. 399. 9. Division of common property. When a divorce is granted on the ground of extreme cruelty, the appellate Court will not set aside the judgment of the Court below in dividing the common property, unless there has been an abuse of discretion. Eidenmuller v. Eiden- muller, 37 Cal. 364. 10. If, in an action for a divorce, the de- cree awarding it does not determine any dispo- sition of the community property, and no such question be presented for decision by the plead- ings, it will not conclude the parties, or either of them, in respect of their claims to such property. G-odey v. Gpdey, 39 Cal. 157. 11. Any other Court, than the one render- ing the decree of divorce, if otherwise compe- tent, has the jurisdiction to determine the dis- position of the community property, under the 1 provisions of the statute. Id. 12. If a decree for a divorce, simply, be for the cause of adultery, it does not follow that the guilty party would be deprived of his or her interest in the community property. Id. 13. Power of Court not affected by stipulation of parties. If a decree of divorce is entered, and a stipulation of the parties made at the time, that the wife shall receive a sum certain as her part of the common property, and shall have the custody of the infant child, and that such sum shall be in full for her allow- ance for the support of the child, such stipula- tion does not deprive the Court from after- wards, on her petition, making her an allow- ance for the support of such child. Wilson v. Wilson, 45 Cal. 399. 14. Corroborating evidence. If the wife, when plaintiff in an action for a divorce, testi- fies that she detected the husband in the act of adulterous intercourse, her testimony is suffi- ciently corroborated, under the second section of the Act concerning divorces, if it appears that the other party to such adulterous inter- course was of a doubtful character for chastity, and that the husband was in the habit of asso- ciating with women of bad character, and that this woman had been, the only female inmate of his house for a long time. Evans v. Evans, 41 Cal. 103. See Alimony, 1 ; Evidence, 42, 98, 99 ; Hus- band and Wife, 8, 10, 15. DOCUMENTARY EVIDENCE. See Evidence, 100-124. DONATION. 1. Donation. Neither under the civil nor the common law is a donation valid and oblig- atory until it is accepted. DeLevellain v. Ev- ans, 39 Cal. 120. 2. To one of mature age. If the donee be of mature years, he will be presumed to have accepted it, if it be for his advantage, un- less the contrary appears. Id. 3. To a minor. If the donation be to a minor, and to his advantage, the law accepts it for him. Id. See Deed, 61-65. DOUBLE TAXATION. See Taxation, 37-51. EASEMENT. 1. Where deed granting right of way had been already given. Where, in a pro- ceeding to condemn lands for railroad pur- poses, the railroad company had already ob- tained a deed from M, who was by it made a party to the proceeding granting the demand- ed right of way, and the Commissioners, nev- ertheless, awarded him damages : held, that, as the right of way was already secured by contract, M must look for his compensation therefor under his contract, and that the re- port of the Commissioners as regards M must De set aside, and the Court below directed to dismiss the proceeding .as, to him. W. P. R. B. Co. v. Reed, 35 Cal. 621. 2. Conveyance, construction of. When the owner of a tract of land sells one half of it, reserving a right of way across it, and in the same deed grants to the vendee a right of way across the unsold half, these rights are not an- 120 BASEMENT.— EJECTMENT'. nexed to, or appurtenant to the respective traota, and do not pass with the title. Wheth- er the grant of a right of "way be in gross, or appurtenant to some other estate, must be de- termined from the grant itself, and not by matters aliunde. "Wagner v. Hanua, 38 Cal. in. 3. Easement and right of way in gross. The principal distinction between an easement and a right of way in gross, is, that in the first there is, and in the second there is not, a dominant tenement. Id. 4. Grant construed. The grant of an easement is always made for the benefit of other premises which are described in the grant. Id. 5. Statute of Frauds. A right of way is an interest in lands, to be conveyed only by an instrument in writing, which must describe the interest conveyed. If it is appurtenant to another tract, it must be so described, together with the tract of land to which it is appurten- ant. Id. 6. Dominant tract. If there be two tracts of land, in one of which the owner or vendor reserves, and in the other grants, a, right of way, each becomes the dominant tract in res- pect to the right of way secured across the other. Wagner v. Hanna, 38 Cal. III. 7. No presumption of grant of ease- ment against one not called on to com- plain. Where water, after leaving a spring supplied by percolation alone, was conducted by an artificial channel to premises below and there appropriated : held, that as the owner of the spring had no right to complain of such appropriation below him, the fact that he did not complain for fifteen years and upwards would not create any presumption of a grant of an easement as against him, nor prevent him from using all the water of his spring as he pleased. Hanson v. McCue, 42 Cal. 303. 8. Presumption from user for length of time. The presumption of the grant of an easement, when indulged against a proper party, is because his conduct in submitting to the use for such a length of time without ob- jection cannot be accounted for upon any other hypothesis. Id. 9. Easement for the escape of water. When two parcels of land belonging to differ- ent owners are adjacent to each other, and one is lower than the other, and the surface water from the higher tract has been accustomed, by a natural flow, to pass off over the lower tract, the owner of the lower tract cannot obstruct this flow. The owner of the upper tract has an easement to have the water flow over the land below, and the land below is charged with a corresponding servitude. Ogburn v. Connor, 46 Cal. 346. See Eminent Domain, 44 ; Nuisance, 16 ; Right of Way. EJECTMENT. I. When action will and will not LIB. II. Who may maintain action. m. Against whom it lies. IV. What plaintiff must show. V. Defenses in. 1. Generally. 2. Equitable defenses. ,3. Improvements, set off against dam- ages. VI. Evidence. VII. Findings. VHI. Judgment. I. WHEN THE ACTION WILL AND WILL NOT LIE. 1. Landlord and tenant. When a land- lord is entitled to bring an action against a tenant at sufferance under the "Forcible En- try Act," he may, at his option, after due notice to quit, etc., proceed under the pro- visions of that Act, or maintain an action of ejectment. McCarthy v. Tale, 39 Cal. 585. 2. In an action of ejectment by the land- lord against a tenant at sufferance, it is not necessary that the complaint should state the tenancy, its termination, the notice, etc. ; and when it appears from the pleadings that such tenancy existed, it will be presumed in support of the judgment in favor of the landlord that it was proven on the trial that all the neces- sary steps to terminate the tenancy had been properly taken. Id. 3. Possession essential. Ejectment can- not be maintained against one who is not in possession of the demanded premises when the action is commenced. Mahoney v. Middleton. 41 Cal. 41. 4. Ejectment prematurely brought. If pueblo lands are confirmed to a town or city, as the successor of a Mexican pueblo, and the decree excludes from the confirmation certain ranchos granted by the Mexican Government within tie exterior boundaries of the pueblo, the confirmee cannot maintain ejectment as against those claiming under the excepted grants within the pueblo, until they have been finally confirmed and located by an approved survey. The action cannot be maintained while an appeal to the Supreme Court is pend- ing from an order of the District Court of the United States confirming the survey of the excepted ranchos. City of San Jos6 v. Uridias, 37 Cal. 339. 5. Complaint. The decision in the case of Payne & Dewey v. Treadwell, (16 Cal. 242) as to the form of the oomplaint in an action of ejectment, affirmed. McCarthy v. Yale, 39 Cal. 585. See Landlord & Tenant, 31;' Land, 65; Mines & Mining, 3 ; Tosemite, 2. EJECTMENT. 121 H. "WHO MAY MAINTAIN ACTION. 6. Parties plaintiff. One tenant in com- mon can recover possession of the entire premises, as against a mere trespasser, without joining his ■ co-tenants as plaintiffs. Treat v. Reilly, 35 Cal. 129. 7. Tenant in common. The grantee of a specific quantity in a larger tract, thereafter to be segregated, becomes a tenant in common ■with his grantor of the entire tract, and may maintain ejectment against his co-tenants. Lawrence v. Ballou, 37 Cal. 518. 8. A quitclaim deed passes all the title which the grantor has, and will support eject- ment. Id. 9. Heir or devisee cannot maintain ejectment -while administration unclosed. If letters be regularly granted, and the Probate Court acquire jurisdiction over an estate, though a vacancy occurs in the office of executor or administrator, the heir or devisee cannot main- tain ejectment during such vacancy as long as the administration remains unclosed. Chap- man 1;. Hollister, 42 Cal. 462. 10. When heir may maintain eject- ment. If there is no surviving wife, or issue of a testator, except a child for whom no provision was made in the will, without showing that it was inteiitional, such pretermit- ted child may maintain ejectment for the realty of which the testator died seized, if there is no pending administration of the estate. Pearson v. Pearson, 46 Cal. 610. 11. By pretermitted child. If there is a. surviving wife and children of the deceased who are, devisees in the will, and the testator makes no provision in the will for a child, the pretermitted child may maintain ejectment for his proportion of the realty of which the tes- tator died seized, if there is no pending ad- ministration. 'Id. 12. By executor. A complaint in eject- ment by an executor is not necessarily defect- ive because it fails to allege any title in the testator, as neither the legal title nor the right of possession may have been in him at his death, and yet both may have been afterwards acquired by the executor as such. Salmon v. Wilson, 41 Cal. 495. 13. By executor. — Allegation of seizin. Where a complaint in ejectment by an exe- cutrix, after setting forth the will, its probate, and the issuance of letters, averred that by virtue thereof she, as executrix, possessed her- ' self of the real estate of the testator, and that she ever since has been and is the owner, seized in fee, of an estate of inheritance there- in, both as such executrix and as heir at law, and is entitled to the possession thereof : Jield, a sufficient averment of seizin and right of possession in her capacity of executrix. Id. ■ in. AGAINST WHOM IT LIES. 14. Joint liability. If one of two defen- dants, with the knowledge and consent of the other, employs men to remove buildings and fences from lands, turn out the occupants, and take possession, the acts performed and posses- sion so acquired, are as much the acts and pos- session of the one who assented to them in advance, and for whose benefit in part such possession was taken and held, as of the party who actually employed the men and directed the acts to be done. Treat v. Reilly, 35 Cal. 129. 15. Defendants. The law laid down in Garner v. Marshall, 9 Cal. 270, that the pro- vision of the thirteenth section of the Practice Act, ' ' that any person may be made a defend- ant who has or claims an interest in the con- troversy adverse to the plaintiff, ' ' is not appli- cable to actions of ejectment, is discussed. Valentine v. Mahoney, 37 Cal. 389. 16. Party in possession. The general rule is, that ejectment can be maintained only against the real party in possession, although he is not personally on the premises, but may be in possession through servants and employ- ees. Polack v. Mansfield, 44 Cal. 36. See Ante, 3. 17 . United States officer. An action of ejectment may be brought against an officer of the armies of the United States who is in pos- session of the demanded premises for the pur- poses of a military camp or fortification under the direction of the Secretary of War or of the President of the United States. Id. 18. The above rule presupposes that the employer may be sued, but if a case arises in which the employer is not amenable to an action, the rule cannot be applied, and the employee becomes the proper party defendant. Id. 19. The general rule is, also, that a mere servant or employee, who does not claim any interest in the premises nor any right to their possession, and only in that manner occupies' the premises, cannot be sued in an action of ejectment brought to recover them. Id. TV. WHAT PLAINTIFF MUST SHOW. 20. Prior possession, or title. To entitle a plaintiff to recover in ejectment, he must show either a prior possession or a paper title. Page v. O'Brien, 36 Cal. 559. 21. On prior possession. If a plaintiff in ejectment relies on prior possession, he must show, not a mere scrambling possession, but a possession so clearly defined as to give him the exclusive dominion over the property. A man does not acquire possession of a piece of land upon which another has a house and is residing, 122 EJECTMENT. and which the other is using for pasturage, by inelosing.it -with a fenoe. 22. Possession, as against intruder. In an action for the recovery of land, possession gives the better right against a mere intruder ; and when the possession is shown in the plaintiff, a nonsuit should not be ordered. Wolfskill v. ' Malajowioh, 39 Cal. 276. 23. Possession under Van Ness Ordi- nance. The Act of March 4th, 1864, (Stats. 1863-4, p. 149) only prohibits a plaintiff in ejectment from relying on the Van Ness Ordi- nance if he commences his action more than one year after its passage, and has not been in possession within the next preceding five years. It does not prohibit him from recovering on prior possession or paper title. Kaimond v. Eldridge, 43 Cal. 506. 24. Prior possession. One who owns three hundred and twenty acres of land is not precluded thereby from acquiring and holding the actual possession of other land, and retain- ing the same by reason of his prior possession, as against one who enters without title. Slaughters. Fowler, 44 Cal. 195. 25. Actual possession. One who sues in ejectment to recover land on the ground of prior possession, and shows 'an actual posses- sion by inclosure of a portion only of the demanded premises, is entitled to recover such portion. Id. 26. One who has built a fence of any kind around land, which, together with natural barriers, is sufficient to turn cattle, and has used it for pasturage, can maintain ejectment to recover it from a mere intruder, who enters upon it without right or title. Southmayd v. Henley, 45 Cal. 101. 27 . Possession which makes defendant liable. The possession to be shown in the defendant, in order to maintain ejectment against him, need not be actual, as contradis- tinguished from constructive. Crane v. Ghir- ardelli, 45 Cal. 235.' 28. When the plaintiff's grantor, while in possession of the demanded premises, sold the same to the plaintiff, who thereafter, and up to the entry of the defendant, occupied the same as pasturage for his cattle, and the de- fendant shows no title or right of entry, the plaintiff is entitled to recover in ejectment. Pierce v. Stuart, 45 Cal. 280. 29. Requirements of Possessory Act. The Possessory Statute (Stats. 1852, p. 158) Confers no right, such as will maintain eject- ment, upon a settler, until all the acts required by it shall have been performed ; and it does not affect the question that he has been pre- vented by force or otherwise from making his intended improvements. Crowellv. Lanfranco, 42 Cal. 654. 30. Forcible driving off of intended settler. Where a person, with intention to take up a tract of public land under the Pos- sessory Act, (Stats. 1852, p. 158) filed his affi- davit of location, and. within ninety days thereafter hauled lumber upon the ground for a house ; and such lumber was removed during the night ; and on his attempting to replace it' next day he was driven off with threats of violence by a band of armed men : held, that ' he had acquired no rights under the Possessory Act which would enable him to maintain ejectment against those who drove him off. Crowell v. Lanfranco, 42 Cal. 654. 31. Possession of public land — Furrows and stakes. In ejectment for a portion of a tract of land taken up by plaintiff's grantor under the Possessory Act of April 20th, 1852, . . (Stats. 1852, p. 158) where it appeared that all the acts done were, that such grantor, be- sides filing his claim and affidavit, built a fence on one side, ran furrows around the whole tract, put stakes at the corners and along the lines, occupied and cultivated a por- tion not embraced in the suit, and while so occupying and cultivating sold to plaintiff, but by consent remained in possession till his crop was off : held, insufficient to prove either actual or constructive possession in the plain- tiff of the land sued for. Hughes v. Hazard, 42 Cal. 149. 32. Paper title. A plaintiff who relies on paper title in ejectment, must show that he acquired the title before the suit was com- menced. Page v. O'Brien, 36 Cal. 559. 33. Common source of title. In eject-, ment, where both parties claim under a com- mon source of title, it is unnecessary for the ' ' Court to investigate the question of title, un- less the plaintiff's deed includes the demanded premises. Irwin v. Towne, 42 Cal. 326. 34. Paramount source of title. When both parties claim under a common source of title, it is unnecessary for the plaintiff in eject- ment to trace his title back to the paramount source of title. Whitman v. Steiger, 46 Cal. 256. 35. Ouster of co-tenant. An adverse holding and claim of title by a tenant in com- mon, do not of themselves constitute an ouster of a co-tenant. Miller v. Meyers, 46 Cal. 535. 36. Denial of title in answer is ouster. In ejectment by a tenant in common against his co-tenant, a denial in the answer of the plaintiff's title and right of entry is equiva- lent to an ouster ; but an ouster established in this manner relates only to the commence- ment of the aotion. Id. 37. Better title in ejectment. Where both parties in ejectment rely on paper title, the possession of the defendant cannot be dis- turbed unless the plaintiff shows a better title. Irwin v. Towne, 42 Cal. 327. \ \ 38. Certificate of location •will not sup- port ejectment. A certificate of location of school or lieu land, issued under the Act of April 27th, 1863, (Stats. 1863, p. 59i)isnotev- EJECTMENT. 123 idence of legal title, and will not support ejectment. True v. Thompson, 42 Oal. 293. 39. Elder lien under common source of title must prevail in action at law. In ejectment, where both parties claimed under liens upon a common source of title, and no equitable defense was pleaded : held, that the title originating under the elder lien, provided it had not been allowed to become dormant, and the foreclosure proceedings were sufficient, must prevail. Littlefield v. Nichols, 42 Cal. 372- 40. Ejectment founded upon title. Where a plaintiff relies upon title as the basis of his right to recover possession, and fails to establish his title, judgment is properly ren- dered against him. Talbert v. Hopper, 42 Cal. 397- 41. Possession in defendant. The pos- session to be shown in the defendant in order to maintain ejectment against him, need not be actual as contradistinguished from con- structive. Crane v. Grhirardelli, 45 Cal. 235. 42. Failure to show possession in de- fendant ground of non-suit. In an action of ejectment, where defendants in their sworn answer denied being or having been in posses- sion, though in another defense, separately- pleaded, they set up that they were in charge of a lighthouse on the premises as the employes of the United States ; and on the trial plaintiff, relying upon the answer to show possession, * offered no evidence to show the possession of defendants : held, that a nonsuit for failure to show possession in defendants was correct. Buhne v. Corbett, 43 Cal. 264. 43. It is indispensable to a recovery in ejectment that the plaintiff should prove that at the commencement of the suit the defendant was in possession of some portion of the land to which the plaintiff establishes a title. Brown v. Brackett, 45 Cal. 167. 44. In ejectment by several, right of possession to be shown in all. Where four plaintiffs recovered in ejectment, and it ap- peared on appeal that no evidence had been offered tending to show any interest or right of possession as to one of them : held, that such judgment in favor of all four was not supported by the evidence, and was erroneous. Tormey v. Pierce, 42 Cal. 335. 45. Plaintiff must rely on legal title. The plaintiff in ejectment cannot recover on the ground that a purchase made by the de- fendant should, in equity, inure to his benefit, but must rely on legal title. Lawrence v. Webster, 44 Cal. 385. 46. Right of plaintiff. In ejectment the plaintiff must show that he was entitled to recover at the time the action was brought. Hestres v. Brennan, 37 Cal. 385. 47. Defendant cannot be enjoined from claiming title. The plaintiff in an action of ejectment cannot ask that he be adjudged the owner and put into possession, and that defendant be enjoined from claiming title to the land recovered. He must rely upon his judgment as a bar. Doyle v. Frank- lin, 40 Cal. 106. 48. Legal title. If the confirmation of a Mexican grant of land is made to the children of the grantee, they ,have the legal title, and they and their assigns will prevail in eject- ment against one claiming title under a sale made by the administrator of the grantee, when no equitable defense is set up. Hartley v. Brown, 46 Cal. 202. 49. Legal title to Mexican grant. The title which passes to the confirmee and patentee of a Mexican grant, when such confirmee and patentee is not the grantee, does not inure to the benefit of a purchaser at a sale made by an administrator of the grantee, so as to vest in him the legal title. Id. 50. Legal title to prevail. In ejectment, the legal title must prevail where there is no valid equitable defense set up. Id. 51. Possession of one tenant in com- mon. The tenant in common out of posses- sion has a right to assume that the possession of his cotenant is his possession until informed ^ to the contrary, either by express notice or by acts and declarations, which may possibly be equivalent to notice. Miller v. Meyers, 46 Cal. 535- ,52. Recovery against intruder. Neither title nor actual' possession in the grantor need be shown by the grantee in order to recover against a mere intruder, or one who enters with color of title only. All that he need do is to show an entry under his deed into the actual possession of a part, claiming the whole ; and by an entry under Ms deed, we mean such an entry as would set on foot an adverse pos- session against the true title under the Statute of Limitations ; that is to say, he must show an entry " under claim of title, exclusive of any other right founding such claim upon his deed." Walsh v. Hill, 38 Cal. 482. See Nonsuit, 2, 6. V. DEFENSES. 1. Generally. 53. Want of official authority as legal defense. In ejectment on a Sheriff's deed, where the general issue is well pleaded, the fact that the deed was executed after the Sheriff's authority had terminated would be a good legal defense, for the reason that the existence of official authority in the officer to execute the deed i3 of the very substance of the plaintiff's case ; but if such defense for any reason be not made, and judgment go against defendant, there is an estoppel thereby created against him, which, as long as the 124 EJECTMENT. judgment itself remains undisturbed, must continue as one of its inseparable consequences. Byers v. Neal, 43 Cal. 210. 54. Ejectment against stranger to the title. A defendant in ejectment who is a stranger to the title cannot object, in a case where the plaintiff derives his title from a mu- nicipal corporation, that the plaintiff has not proved otherwise than by the recitals in his deed, that he was one of the parties to whom the corporation was permitted by law to sell. Low v. Lewis, 46 Cal. 549. 55. Defense by stranger to title in ejectment. If a municipal corporation is by law allowed to sell its realty to certain persons or their assigns, and conveys to an assignee, who brings ejectment against a stranger to the title, the defendant, on the trial, will not be allowed to question the fact that the plaintiff was such assignee. Id. 56. Five years' adverse possession. A defendant in ejectment, who relies on the Stat- ute of Limitations, need, not prove adverse pos- session for the five years next preceding the commencement of the action. His defense is complete if he shows a five years' continued adverse possession, although not the five years next preceding the commencement of the suit. Cannon v. Stockmon, 36 Cal. 535. 57. Plea of Statute of Limitations. If the plaintiff, in his complaint in ejectment, re- lies on a title derived from the Mexican Gov- ernment and confirmed by the United States, without stating the time of confirmation, an answer which sets up as a defense the Statute of Limitations is good, without stating that the Mexican grant was finally confirmed within less than five years next before the commence- ment of the action. Anderson v. Fisk, 36 Cal. 625. 58. In ejectment, a plea of the Statute of Limitations of two years, under the ' ' Settlers' Act," is no defense. Id. 59. In ejectment, where the defendant claimed title under the Statute of Limitations, and relied upon adverse possession of his grant- ors, but it appeared that his deeds either called for land different from that sued for, or were void for uncertainty : held, that he did not connect himself by means of such deeds with the possession of his grantors. People V. Klumpke, 41 Cal. 263. 60. Plea of former recovery. A plea of former recovery in ejectment, as to a part of the demanded premises, should describe the land which was in contest in the former action ; and such plea is bad if it is pleaded as a general defense to the whole action, and there are sev- eral plaintiffs, and the former recovery was against one only of the several. Anderson v. Fisk, 36 Cal. 625. 61. Title acquired after issue joined. If, during the pendency of an action of eject- ment, a stipulation is made between the attor- neys, which limits the issues to the title then held by the respective parties, on the trial a Sheriff's deed is not admissible in evidence, ex- ecuted after the stipulation, even if the deed is given on a Sheriff's sale made before the stip- ulation was signed. Bagley v. "Ward, 37 Cal. 121. 62. Supplemental answer in ejectment. A title acquired by Sheriff's deed, executed after the commencement of a suit in ejectment, can only be made available by the defendant in the action by setting it up in a supplemental answer. Id. 63. Purchase by defendant in eject- ment. If a defendant in ejectment, who is in possession without claim or color of title, buys a fractional interest in the demanded premises, pendente lite, this purchase thenceforth pre- sumptively divests his possession of its hostile character. Carpentier v. Small, 35 Cal. 346. 64. A defendant in ejectment can only set up a title acquired pending the action, by amending his answer and averring the fact that the title was acquired since the commence- ment of the action. Keily v. Lancaster, 39 Cal. 354. 65. Title acquired pendente lite. A defendant in ejectment cannot, on the trial, avail himself of a title acquired pendente lite, unless it is set up by supplemental answer. Thompson v. McKay, 41 Cal. 221. 66. Title outstanding. If the plaintiff in ejectment relies on a paper title, the defends ant may show the true title to be outstanding' in a third person, without connecting himself with it. Cranmer v. Porter, 41 Cal-. 463. 67. The rule in actions of ejectment where the strict legal title is litigated, that proof by the defendant of an outstanding title in a stranger will defeat recovery by plaintiff, does not prevail in actions to recover mining claims. Bradley v. Lee, 38 Cal. 362. 68. In such actions, where the plaintiff re- lies on prior possession, it is not necessary for the defendant to connect himself with the out- standing title to render it effectual against the plaintiff. Id. 69. Title to part of premises. An an- swer in ejectment, setting up title to only a portion of the demanded premises, must par- ticularly describe the part to which title is claimed. If it does not, no proofs will be ad- mitted under it. Anderson v. Fisk,' 36 Cal. 625. 70. An answer in ejectment, setting up a title in defendant to the demanded premises and possession in him, should aver that such possession and title were adverse to the plain- tiff's claim of title. Id. 71. Improper defense in ejectment. B sued T in ejectment, claiming title under a de- vise of Bale ; T plead the general issue, and in- terposed another defense setting out an alleged agreement by Bale, before his death, to convey the premises (as soon as a Government surveyor EJECTMENT. 125 could be obtained to survey the land) to K, the grantor of T, provided K -would bind him- self to reserve certain timber for Bale, not to keep wild cattle on the place, and to do all the work he could at Bale's sawmill at current wages. Held, first, that as a defense at law the pleading is not to be supported ; second, that as a defense in equity it was insufficient, because it failed to show by direct and proper averment that the consideration Bale was to receive was adequate in amount, and not dis- proportionate to the value of the lands to be conveyed. Bruok v. Tucker, 42 Cal. 346. 72. Evidence under general issue. Un- der the plea of the general issue in ejectment, a deed absolute in form cannot be attacked on the ground that it was in fact intended to be a mortgage. Davenport v. Turpin, 43 Cal. 597. 73. Title as defense, after general issue pleaded. Where, in an action for ejectment, the defendant pleads the general issue, and then sets up title in himself, the plea of title amounts to nothing whatever, and. may be omitted. Bruck v. Tucker, 42 Cal. 346. 74. Pendency of proceedings for con- demnation. The bare pendency of proceed- ings for the condemnation of land is not a valid defense in ejectment. Coburn v. Pacific L. &M. Co., 46 Cal. 31. See Taxation, 157. 2. Equitable defenses. 75. Deed intended as mortgage. Where a defendant in ejectment, who is the plaintiff's grantor, sets up as a defense that the deed was intended as a mortgage, he must show an offer to redeem before he can be en- titled to relief in equity, or deprive the plain- tiff of his right of possession under the deed. Hughes v. Davis. 40 Cal. 117. 76. Must be strictly pleaded. An equitable defense in an action of ejectment must be distinctly pleaded and proved. Mc- Cauley v. Fulton, 44 Cal. 356. 77. Pacts to be fully set up. The de- fendant in ejectment, who relies on an equita- ble defense, must in his answer set up fully the facts on which his equity rests. Tormey ,«.' True, 45 Cal. 105. 78. Contract of purchase. If one who has contracted to buy land and pay the pur- chase money at a given date enters into pos- session and makes improvements, but, when the money falls due, refuses to pay it on de- mand and tender of a deed by his vendor, and neglects for two and a half years thereafter to pay the money, equity will not permit him to set up the contract as a defense, when sued in ejectment by the vendor. Thome v. Ham- mond, 46 Cal. 53q. 79. In such ease,_the facts; that during the two and a half years the land was sold by the . Sheriff under a judgment , enforcing a mechanics' lien, in which the vendor and ven- dee were made defendants, and a Sheriff's deed given to the purchaser, who afterwards con- veyed to the vendor, do not convey the legal title to the vendee, nor create an equity in his favor. Id. ' 80. In an action by the vendor of lands holding the naked legal title against his ven- dee to recover the possession, the vendee hav- ing paid the purchase money and being right- fully in possession under his contract of pur- chase, the Statute of Limitations is not a, bar to the equitable defense of the vendee, and to his right to affirmative relief. Gerdes v. Moody, 41 Cal. 335. 81. Objection when not waived. In ejectment by four plaintiffs, where the defense was that one of them had no right of posses- sion, and the only evidence of title or right of possession offered by plaintiffs were a patent to three of them : held, that defendant could not interpose his defense by way of objection to the introduction in evidence of the patent, and that he did not waive the objection by failing to make it at that time. Tormey v. Pierce, 42 Cal. 335. 82. Executory contract. — Vendee in possession. A vendee in possession under an executory contract, the conditions of which have been performed on his part, may avail himself of his equitable title as a defense to an action of ejectment brought against him by the holder of the legal title. Love v. Wat- kins, 40 Cal. 547. 83. A party who has been permitted to remain in possession under a contract for the purchase of land, for a long period of time, without objection, will be held, to be in pos- session under his contract, although his orig- inal entry may not have been under the con- tract, and no provision as to possession was contained in it. Id. 84. Ejectment against tenant in com- mon. In ejectment by one tenant in common against another who is in possession of a por- tion of the demanded premises described by metes and bounds, the defendant cannot resist a recovery as to the portion he thus possesses, on the ground that in equity his interest in all the demanded premises should be set off so as to include the portion' which he thus occupies. Mahoney v. Middleton, 41 Cal. 41. 85. Equitable title. If a defendant in ejectment desires to avail himself of an equita- ble title, as a defense, he must plead it, and ask for the appropriate relief. Kenyon v. Quinn, 41 Cal. 325. 86. Equitable title as defense to ac- tion under legal title. Where the owner of land sold the same, and covenanted to execute a warranty deed therefor on payment of the purchase money, and the purchaser took and held actual possession, and afterwards paid the purchase money : held, that such purchas- er's, or his grantee's, equitable title was a suf- 126 EJECTMENT. fioient defense to an action of ejectment un- der tie legal title, by the original owner, or any one holding under him, with notice. Tal- bert v. Singleton, 42 Oal. 395. 87. Reattaching of equities on revest- . ing of property. Where Sutter, Jr., haying covenanted to convey land, .with warranty, to Holman, conveyed to his father, who af- terwards conveyed back to the son : held, that whether the father took with notice or not, the son, on receiving the reconveyance, took , the land charged with Holman's equities. Id. 88. Bill to quiet title not an equitable defense. A bill to quiet title filed by de- fendant in an action of ejectment is not an equitable defense to the plaintiff's cause of ac- tion. Doyle v. Eranklin, 40 Cal. 106. 89. Converting plaintiff into trustee. One who was a purchaser from Vallejo, and in possession of a portion of the ' ' Suscol Ran- cho" prior to the rejection of Vallejo's claim to the same, and who refused to join with co- terminous purchasers in an application to ob- tain a patent under said Act, and made no ef- fort to avail himself of the privilege granted by said Act, cannot, in ejectment brought against him by such coterminous proprietors, who had obtained a patent for the land he had thus purchased, as an equitable defense con- vert the plaintiffs into trustees holding the legal title for his benefit, and compel them to convey to him. Sheehy v. True, 45 Cal. 236. - 90. Mistake in carrying out partition according to agreement. Where Guedici, Boots, and others, owners of a tract of land in common, entered into a partition agree- ment, according to which Commissioners were to divide the land so as to allow Boots to retain a certain portion then in his possession, but the Commissioners, in carrying out the agreement, by a mistake in running the line agreed upon, cut off a portion of Boots' share, and gave it to Guedici, and the partition deeds executed between the parties followed the lines of the Commissioners, and the mistake , was not discovered until afterwards : held, in ejectment by Guedici against Boots for the strip so by mistake cut off of his portion, that the facts constitute a good equitable defense, and that upon being properly set up and proved Guedici could not recover. Guedici c. Boots, 42 Cal. 452. 3. Improvements set off against damage*. 91. How pleaded. In ejectment, the fact that the defendant has made permanent and valuable improvements, in good faith and under color of title, is no defense to the action ; but if such fact is set up in the answer in such language as to contain the essential facts to justify a set-off of the value of im- provements against rents, it will be treated as a good answer for that purpose, although no offer is made of such set-off. Anderson v. Fisk, 36 Cal. 625. 92. The right of a defendant in ejectment to set off the value of improvements made by him against the claim 01 the plaintiff for damages, depends upon whether they were made by him or his grantors holding under color of title adverse to plaintiff, in good faith, and upon whether they are permanent or not. Carpentier v. Small, 35 Cal. 346. 93. An answer in ejectment which seeks to Bet off the value of improvements against damages, should aver that they were made while holding under color of title adverse to plaintiff, in good faith, and that they are per- manent. Id. VI. EVIDENCE. 94. Deed as a mortgage. In an ordinary action of ejectment the plaintiff will be al- lowed to show by parol evidence that an older deed, absolute on its face, made by the plainr tiff's grantor to the defendant, and first re- c6rded, was given as a mortgage. Jackson v. Lodge, 36 Cal. 28. 95. Testimony. When A sues B to re- cover possession of land, and relies on prior possession, he may on the trial introduce in evidence a judgment which he recovered against C, before B's entry, for possession of the same land, and the acts of the officer under it putting him in possession. Such testimony is relevant on the question of A's possession. Moon v. Bollins, 36 Cal. 333. 96. Of title. A patent for land, given to the plaintiff after he has commenced suit in ejectment, is not admissible in evidence to show his right to recover. Hestres v . Brannan, 37 Cal. 385. 97. Of title in defendant. Even if the plaintiff in ejectment shows title derived from the United States, through a patent from the State of California, the Court should not refuse to allow the defendant to prove title in him- self, unless derived from the State or the plain- tiff, even if the answer contains only a general denial. Id. 98. Proof in ejectment for pueblo lands. In ejectment brought by a town or city, as the successor of a pueblo, and to which the pueblo lands were confirmed, it devolves on the plaintiff to show not only that the demanded premises are within the exterior limits of the land confirmed to the town or city, but -if the decree excepts from its opera- tion certain lands within the tract confirmed, the plaintiff must also show that the de- manded premises are not a part of the excepted lands. City of San Jose' v. Uridias, 37 Cal. 339. 99. Rebutting evidence. If the plaintiff in ejectment relies on title by possession, he cannot introduce evidence on that point and rest, and then, if the defendant proves a prior EJECTMENT. 127 possession, introduce evidence of a still older possession in hirascif by way of rebuttal. Val- entine v. Mahoney, 37 Cal. 389. 100. Construction of stipulation. If, in ejectment, -where five years' adverse possee- sion is pleaded, the parties stipulate that the plaintiff was never in possession, but the stipulation admits title to have been in the plaintiff, the stipulation will be construed as referring to actual possession. San Francisco v. Fulde, 37 Cal. 349. 101. Title acquired after judgment. Although a judgment in ejectment does not estop a party against whom it is rendered from relying on a title acquired subsequent to its rendition, or a title not in issue in that action, yet the holding and production in evidence of such after-acquired title does not preclude the party in whose favor the judgment was ren- dered from producing it also in evidence. Valentine v. Mahoney, 37 Oal. 389. 102. Evidence of prior grants exceed- ing eleven leagues. In an action of eject- ment, where both parties claim under con- firmed Mexican grants, evidence that the original grantor of one of the parties had obtained grants from the Mexican govern- ment, exceeding eleven leagues in extent, prior to the grant under which the party claims, is inadmissible. Yates v. Smith, 40 Cal. 662. 103. Proof of ouster. Where, in eject- ment,, the answer put in issue the plaintiff's title and right of possession, while it was not denied that defendant was in exclusive posses- sion, holding for himself alone: held, that this was sufficient proof of ouster. Salmon v. Wilson, 41 Cal. 595. 104. If a tenant in common in possession refuses, on a proper demand, to admit his co- tenant into possession, this refusal constitutes an ouster, and in ejectment dispenses with the necessity of further proof on that point. Mil- ler v. Meyers, 46 Cal. 535. 105. An ouster by'one tenant in common of his cotenant, cannot be inferred from the facts alone, that the tenant in common was in the adverse possession, claiming adversely to his cotenant, when there has been no demand to be let into possession. Id. 106. Presumption that a deed contains demanded premises. In ejectment to re- cover lot number five; in the square bounded by Li and M and Fourth and Fifth streets, in the city of Sacramento, if the plaintiff offers in evidence a deed, conveying the south half of sixteen blocks, between Fourth and Eighth and M and I streets, in the city of Sacra- mento, excepting lots six and eight, between Fourth and Fifth streets and J and K streets, and lots five and eight, between Fourth and Fifth and K and L streets, and lot eight, be- tween Fourth and Fifth and L and M streets, and lots seven and eight, between Fourth and Fifth and Tand J streets — the lots conveyed being fifty-eight in number — there is enough on the face of the deed to raise the presump- tion that it includes the lot sued for, without other evidence. Sanchez v. Neary, 41 Cal. 485. 107. Evidence of a trust. If the plain- tiff in ejectment holds the legal title in trust for the defendant, the defendant cannot, on the trial, introduce evidence of that fact, unless he sets it up in his answer, and asks for appro- priate relief. Kenyon v. Quinn, 41 Cal. 325. 108. Conversations explanatory of character of possession as evidence. In ejectment on the ground of prior possession in plaintiff's grantor, it is competent for the de- fendant to show a conversation of such grantor while in possession, tending to ex- plain its character, whether as a claimant in his own adverse right, or as tenant of defend- ant's grantor. Phelps o. McGloan, 42 Cal. 298. 109. Evidence in ejectment against a county for land claimed to have been dedicated. In an action against Sonoma County to recover land, claimed by the county to have been dedicated to public use, the plain- tiffs offered to prove by C that he had been em- ployed by the Board of Supervisors to look after the fences and keep them in repair, and was so engaged at the commencement of the action ; and that in performing this service he was acting as the servant of the county, em- ployed for that purpose : held, that the evi- dence was admissible as tending, in some de- gree, to establish the possession of the county. Barry v. Sonoma County, 43 Cal. 217. 110. Effect of deed as evidence. Af- ter a deed is admitted in evidence in ejectment, it is necessary for the party claiming under it to show that it embraces the premises in con- troversy. Walbridge v. Ellsworth, 44 Cal. 353- 111. Necessary proof in ejectment. If the plaintiff, in ejectment relies on a con- firmed Mexican grant as his source of title, he must prove that the demanded premises are in- cluded within the decree of confirmation. Brown v. Brackett, 45 Cal. 167. 112. Verbal' understanding under lease. In ejectment, based on a lease made by defendant to plaintiff, evidence is admissible that there was a verbal understanding that the demanded premises were not to be included in it, provided that defense is set up, and the Court is asked to reform the lease. Murray v. Dake, 46 Cal. 644! 113. Of prior possession. Proof that a person entered into the actual possession of a- part of a tract of land, claiming the whole, under a deed describing the whole, is prima facie proof, under an issue of prior possession, and sufficient to go to the jury. Donahue v. Gallavan, 43 Cal. 573. 114. In ejectment, when the issue is prior possession, proof by plaintiff that he was in 128 EJECTMENT. possession by his servants, of houses on the de- manded premises, makes a prima facie ease suf- ficient to go to the jury. Id. 115. Certificate of Land Register. A certificate of the United States Register of lands that the plaintiff, as the agent of the State, has located land at his office in part sat- isfaction of lands granted to the State, is not admisible in evidence of the locator's right to recover in ejectment. Slaughter v. Fowler, 44 Cal. 195. 116. Diagram to show claim. In an action of ejectment, where the question in controversy was the position of the red line, or water front, of San Francisco : held, that a diagram, made by the County Surveyor and believed by him to be correct, though not an official plat, was admissible in evidence for the purpose of showing what the party offering it claimed to be the true position of such line. 'People v. Klumpke, 41 Cal. 263. 117. Proof of prior possession. In an action of ejectment, it is error to instruct the jury that the defendant, being in possession, plaintiff cannot recover unless he prove an earlier and better possession. Sweeney v. Keilly, 42 Cal. 407. 118. If, in ejectment, the defendant admits in his answer that he is in possession of a por- tion of the demanded premises, it is not neces- sary for the plaintiff to prove his possession. McCreery v. Everding, 44 Cal. 284. 119. In ejectment by a prior possessor for a part only of an inclosed tract of land, the defendant, if a mere intruder, cannot intro- duce evidence of title outstanding in a third person to a portion of the land inclosed, other than the demanded premises. Southmayd v. Henley, 45 Cal. 102. 120. Evidence of outstanding title. A mere intruder, who enters upon a portion of a tract of land previously inclosed by another, cannot, in ejectment brought by the prior pos- sessor, introduce evidence of title outstanding in a third person, either to defeat a recovery or to reduce the damages. Southmayd v. Henley, 45 Cal. 101. See Evidence, 66, 117 ; Mortgage, 29 ; Trial, 33-, Vn. FINDINGS. 121. Specifications in. Where, in ac- tions of ejectment, the parties claim under ad- verse or different titles, and the Court trying the cause without a jury finds as a fact that the title is in one of the parties as claimed : held, that while it is not necessary, in addition, to specify in the findings the facts constituting the claim of title set up by the opposite party, yet as a matter of oonvenience in practice, and to facilitate the decision thereon on appeal, the adoption of such a practice is recommended. Morrill v. Chapman, 35 Cal. 85. 122. Finding interest of plaintiff. The plaintiff in ejectment, who owns an undivided interest in the demanded premises, is entitled to recover upon a finding of the fact that he holds an interest in common with others in the premises ; but it is not error for the Court to find the extent of his interest, and it is proper that it should do so. Mahoney v. Middleton, 41 Cal. 41. 123. When the plaintiff in ejectment be- tween tenants in common, has made conveyan- ces of parcels of the demanded premises, the Court should, in finding his interest, deduct the parcels thus conveyed. Id. 124. Stipulation. If the Court, in eject- ment, finds that the defendant has no right or title to the premises or to the possession there- of, and plaintiff is a tenant in common in the premises with the estate of a deceased cotenant, and the parties stipulated during the trial, as a substitute for evidence on this point, that the defendant entered under a deed, from the ad- ministrator of a deceased cotenant, and by his permission, the finding is contrary to the evidence. Carpentier v. Small, 35 Cal. 346. Vm. JUDGMENT. 125. For damages. A judgment for damages, in an action of ejectment, where no damages are alleged in the complaint, is clearly ' erroneous. McKinlay v. Tuttle, 42 Cal. 570. 126. For damages in currency value. In ejectment, if the Court finds the value of the use and occupation of the premises in both gold and currency, a general judgment may be rendered for the currency value. C& r p«ntier v. Small, 35 Cal. 346. 127. Recovery of rents and profits. In ejectment, the value of the use and occupa- tion of the demanded premises can be recovered only in the form of damages. Miller v. Meyers, 46 Cal. 535. 128. If there is no proof of an ouster, in ejectment, except a denial of the plaintiff's title and right of entry in the answer, the plaintiff can recover damages only from the date of the institution of the suit. Id. 129. Erroneous recitals. It is error to re- cite in a judgment in ejectment between tenants in common, that the plaintiff has owned the premises recovered for a longer period than the proofs warrant. Mahoney v. Middleton, 41 Cal. 41. 130. Form of judgment. In ejectment against a number of persons who are severally in possession of different parcels of the de- manded premises, when no damages or mesne profits are claimed, the recovery against each defendant should be confined to the parcel in his possession. Id. 131. If the proofs in ejectment show that the plaintiff was, at the commencement of the EJECTMENT. 129 aetidn, in possession of a portion of the de- manded premises, he should not recover judg- ment for this portion. Id. 132. Description of land in. In a judg- ment in ejectment, if the land recovered is de- scribed as bounded by water-courses or by- claims of land, as "the Dows claim," or by any object, so that it appears upon the record that its boundaries are capable of being identi- fied in the field, the judgment upon its face is not void for uncertainty. Lawrence v. David- son, 44 Oal. 177. 133. Recovery against pre-emptioner after payment. Where Neal, being in pos- session of public land, made proof and pay- ment therefor under the United States pre- emption laws ; and thereafter Tallmadge brought an ejectment suit against him, and recovered judgment on the merits, and was placed in possession ; and afterwards Neal ob- tained the United States patent for the land : held, that the patent did not constitute a new title in Neal, but was merely a formal assur- ance of the estate he had already acquired by proof and payment, and that the effect of the recovery by Tallmadge was to estop Neal from denying that Tallmadge had the better title. Byers v. Neal, 43 Cal. 210. 134. Judgment as estoppel. A judg- ment for plaintiff in ejectment, when the title has been brought directly in issue, concludes the defendant against setting up in » subse- quent proceeding any mere legal defense which he might have made in such suit, and among others a defense that plaintiff's title there rest- ed upon a Sheriff's deed, made after the Sher- iff's authority had terminated, of which fact defendant was then ignorant. Id. 135. When ejectment is brought to recov- er two parcels of realty, and the defendant de- nies plaintiff's title, and on the trial the plain- tiff puts in evidence in support of his title to both parcels, and the plaintiff recovers one parcel only, the plaintiff is estopped by the judgment from again litigating the title to the parcel he failed to recover, even if the judg- ment is silent as to the latter parcel. Thomp- son v. McKay, 41 Cal. 221. 136. Complaint against "John Doe" does not support judgment against "Guadalupe Castro." Where in ejectment against John Doe and others, the complaint alleged that the true names of such defendants were unknown, and prayed that when ascer- tained they might be inserted with apt words to charge them; and Guadalupe Castro an- swered by his true name ; and there was judg- ment against, him, but the record showed no amendment of the complaint by inserting his true name : held, on a direct appeal by him, that the judgment was not binding and should be reversed. McKinlay v. Tuttle, 42 Cal. 573. 137. Judgment not authorized unless defendant properly charged. In ejectment, it is an indispensable averment of the com- CAL. DIG. SUP. 9. plaint that the defendant ousted and with- holds possession from the plaintiff; and no judgment can be regularly taken in such case against a person, as to whom there is no such allegation. Id. 138. For undivided interest. Where the intestate was a tenant in common with the plaintiff in ejectment in the demanded prem- ises, and the defendant entered upon the prem- ises with the permission of the administrator of the estate of the deceased cotenant, the en- try of the defendant is not tortious, and the plaintiff is not entitled to a judgment for pos- session of all the land, but only for his undi- vided interest. Carpentier v. Small, 35 Cal. 346. 139. New title after judgment. The judgment in ejectment is no bar to the acqui- sition of such new title, nor does it operate as an equitable estoppel in pais, against the par- ty acquiring such title. Montgomery v. Whit- ing, 40 Cal. 294. 140. Conclusive as to title. Where the issue is, whether defendant or plaintiff has the better title, a judgment obtained by the for- mer would be conclusive upon the title, and operate as a bar in his favor. Doyle v. Frank- lin, 40 Cal. 106. 141. Landlord bound by judgment against tenant. In an action of ejectment against a tenant, if the landlord assumes the defense and puts his title in issue, the judg- ment rendered therein binds him, as evidence by way of estoppel, the same as though he was made a party defendant. Valentine v. Ma- honey, 37 Cal. 389. 142. In an action of ejectment against a tenant, if the landlord assumes the defense and puts his title in issue, the judgment rendered therein binds him as evidence by way of estop- pel, the same as though he was made a party on the record. Russell v. Mallon, 38 Cal. 259. 143. Effect of judgment. A judgment in ejectment does not transfer to the prevailing party the title of the adverse party ; but it awards to the successful party the possession, because the opposite party had no title to the land in controversy, and estops him, and those claiming under him, from setting up or offer- ing proof of title to the land recovered, as against the successful party, or his privies in estate. Mahoney v. Middleton, 41- Cal. 41. 144. Judgment of what conclusive. A judgment for plaintiff in ejectment is not conclusive except as against defenses actually made, or legal defenses that might have been made on the trial, and does not preclude a defendant from asserting a title subsequently acquired. Mann t>. Rogers, 35 Cal. 316. 145. Judgment in bar badly pleaded. If, in ejectment, there are several defenses ses up in the answer, some of which are insuffi- ciently pleaded, and the defendants have a general verdict, and the record does not dit- . 130 EJECTMENT.— ELECTIONS. close on which one of the defenses the verdict was rendered, the judgment will be reversed. Anderson v. Eisk, 36. Cal. 625. 146. 'Who bound by. A judgment in ejectment binds the parties and their privies, and estops them from denying that the plain- tiff was entitled to the possession of the premises at the time of its rendition. Satter- lee v. Bliss, 36 Cal. 489. 147. Privies, within the meaning of the rule, are those who enter under the defendant in ejectment, or in collusion with him. Id. 148. Judgment as evidence. A judg- ment in ejectment may be introduced in evi- dence in an action to recover the same land between the same plaintiff and a party in privity with the defendant. Id. 149. Tenant of defendant. A tenant of the defendant in ejectment, who acquired his lease before the commencement of the suit, is not estopped as to his term by a judgment in the action obtained against his lessor. Id. 150. Judgment for damages or mesne profits. Where a judgment in ejectment does not specify whether the sum awarded was for damages or mesne profits, or for both, the pre- sumption is that the judgment was sustained by the evidence, and such judgment is a bar to a further recovery for the same cause. McCarthy 1). Tale, 39 'Cal. 585. 151. Presumption from judgment. A judgment for the plaintiff in ejectment raises the presumption that the defendant was shown to be in possession of the demanded premises at the commencement of the action. Tubbs v. Ghirardelli, 45 Cal. 231. 152. Effect of judgment. A judgment in favor of the plaintiff, in an action of eject- ment brought against his tenant for holding over after the expiration of his term, does not determine the question of title, or right of possession, as between the plaintiff and a third person, whom the tenant collusively placed in possession of the premises after the action was commenced. Calderwood v. Brooks, 45 Cal. 153. Judgment for defendant. If the plaintiff in ejectmerft shows title, and the de- fendant relies on adverse possession, and only shows an adverse possession of a part of the demanded premises, a judgment in his favor for all the demanded premises is erroneous. Hayes v. Martin, 45 Cal. 559. 154. In such case the Supreme Court can- not direct the Court below what part of the demanded premises to give the defendant judg- ment for, unless the record contains a correct description of that part of the demanded premises to which the defendant is entitled. Id. See Injunction, 7 ; Judgment, 1 5 ; Tenants in Common, 6. See Generally, Abandonment, 7 ; Appeal, 83, 260, 272, 369, 374; Conveyances, 24; Cor- porations, 54 ; Costs, 2 ; Equity, 40 ; Forcible Entry and Detainer, 72 ; Limitations, 13, 59, 60; New Trial, 13, 14; Trial, 3 ;"Writof Pos- session ; "Writ of Restitution, 1-4. ELECTIONS. I. In general. II. Election contents. I. IN GENERAL. 1. Registration of voters. Presence in the State more than six months and in the county more than thirty days, under orders as a soldier in the military service of the United States, does not by itself entitle a person to be registered as a voter. Devlin v. Anderson, 38 Cal. 92. 2. Mere presence as a soldier of the United States, in obedience to military orders, does not make a residence, in the sense of the Constitu- tion and laws in relation to the elective fran- chise. Id. 3. D being a citizen of New York, enlisted in that State as a soldier in the service of the United States. Having come to this State under military orders, and having been in the State more than six months, and in the County of Mendocino more than thirty days, but still in the service, and under military orders, ap- plied to the County Clerk to be registered as a voter in that county. Held, that in view of the foregoing facts only, he was not entitled to be registered. Id. 4. Election law in Sacramento. The general election laws of this State, with their successive modifications and changes, apply, so far as practicable, and so far as they are not inconsistent with the Act incorporating Sacra- mento, to the municipal elections in said city. Kirk v. Rhoads, 46 Cal. 398. 5. General election laws of this State. Section 1 1 1 1 and the following section of the Code of Civil Procedure, providing for the con- test of elections, are a part of the general sys- tem for the regulation of elections in this State. Id. 6. Rejecting ballots cast by an elector. A ballot east by an elector at an election should not be rejected simply because it differs from the regulations prescribed in the Code, in matters over which the elector has no control, such as the size of the ballot, the kind of paper on which it if printed, or the character of type or leading used in printing. Id. 7. Adoption of other statutes into an Act. The Legislature may, in an election law for a city, adopt and make a part of the same the general law of the State regulating elec- tions, not only as it exists at the time, but as ELECTIONS.— EMINENT DOMAIN. 131 it may exist after changes or modifications of the same. Kirk v. Rhoads, 46 Cal. 398. See Contract, 34 ; Corporations, 89 ; Office and Officers, 9 ; State, 1 ; Treaty, 4. II. ELECTION CONTEST. 8. Allegation by contestant that he " i3" an elector. Under the statute of March 23d, 1850, providing for the contesting of elections of county officers (Stats. 1850, p, 101, Sec. 56) it is sufficient for the contestant to allege that he is, at the time he files the writ- ten statement of contest, a qualified elector of the county, without alleging that he was so at the time of the election. Minor v. Kidder, 43 Cal. 229. 9. Affidavit to grounds of contest of election. The affidavit to the written state- ment of the grounds of the contest of an elec- tion may be in the form of an ordinary verifi- cation to a pleading. Kirk v. Ehoads, 46 Cal. 393. 10. Statement of cause. The degree of certainty required in a statement of the cause of contest in an election case is not the highest degree of certainty known in pleading, but only such as will suffice to inform the defendant of. the particular proceeding or cause upon which the contest is founded. Such state- ment need not detail the particular means or measures resorted to for the purpose of accom- plishing a miscount, but only the ultimate facts. Minor v. Kidder, 43 Cal. 229. 11. Election contests of public con- cern. An election contest, being an investi- gation in which the public at large are deeply concerned, is not an ordinary adversary pro- ceeding ; for, as against the high public inter- est involved; there can be no recognized adver- sary. Id. 12. Amendments of statement. In a contested election case, if the statement of the cause of contest lack the clearness and dis- tinctness of allegation desirable in judiciary proceedings, it should not for that reason be peremptorily dismissed, but an opportunity afforded to amend. Id. 13. When recount of ballots by Super- visors is not best evidence. If there is evi- dence tending to show that the ballots cast at an election are not sealed up after being count- ed by the Board of Canvassers, or that the packages of ballots have been opened and changed after they were received by the Clerk, the ballots on a recount by the Board of Super- visors are not the best evidence, but the Court may adopt the result arrived at by the Board of Canvassers in determining who is elected. People v. Burden, 45 Cal. 241. See Appeal, 102. ELECTION FOR COUNTY SEAT. See Mandamus, 36, 44. ELECTIVE FRANCHISE. See Citizenship, 4-7. EMBEZZLEMENT. See Criminal Law and Practice, 31-33, 105- 107. I. n. in. rv. v. EMINENT DOMAIN. Right of. • Proceedings in. 1. Judicial powers. 2. Petition. 3. Notice. 4. Commissioner duties. Compensation fob DEMNED. tlti,e to land condemned New trtai.. appointment and LAND CON- I. BIGHT OF. 1. Authority must be strictly pursued. The authority granted to a Board or tribunal to acquire private property for public pur- poses by special proceedings, and not with the consent of the owner, must be strictly pur- sued, or the proceedings will be void. Damrell v. B. S. S. J. Co., 40 Cal. 154. 2. Roads' and highways. Aroadmaster has no right to open a public highway over private land, until all the provisions of the statute under which he is proceeding have been strictly complied with. Murphy v. De Groot, 44 Cal. 51. 3. Railroads may be of " public use," though also for private profit. The mere fact that a railroad is owned and operated by a private corporation, and for private profit, does not prevent it from being also of " public use." S. & V. R. R. Co. v. Stockton, 41 Cal. 147. 4. On the point that railroads concern the public interest as a matter of legal judgment, and that legislative action to that effect is not open to review by the judicial department, Napa Valley Railroad Co. v. Napa County, 30 Cal. 437, is cited as controlling authority. Id. 132 EMINENT DOMAIN. 5. "Public use" to support taxation for railroad purposes. The same kind of " public use " which will authorize the taking of private property in aid of a particular rail- road, in the exercise of the power of eminent domain, will support the laying of a tax in aid of the same road, under the taxing power. Id. 6. Means of aid to railroads. Aid, as fostering a public use, may be extended to the construction of a railroad, by means of the power of eminent domain, or of subscription to capital stock, and by donation made by cities and other political subdivisions of the State, under the authority of the Legislature. Id. 7. Stockton City railroad. The Act of April I, 1870, empowering the City of Stock- ton to aid in the construction of the Stockton and Visalia Railroad, (Stats. 1869-70, p. 551) declared constitutional ; and the Common Council of Stockton required by mandamus to levy a tax to pay interest accruing under its provisions. S. & V. R. R. Co. v. Stockton, 41 Cal. 147. 8. Power of Legislature to prescribe steps. It is competent for the Legislature to prescribe the several steps to be pursued in the assertion of a right to compensation for land appropriated for public use ; but the prescribed procedure must not destroy or substantially impair the right itself. Potter v. Ames, 43 Cal. 75. 9. Statutes to be strictly construed. Statutes prescribing the modes by which a party may be divested of his property without his consent, must be strictly construed. Trumpler v. Bemerly, 39 Cal. 490. 10. A party claiming a title to property by virtue of such a statute, as against the original owner, must allege and prove that all the pro- visions of the statute for the acquisition of such title have been strictly complied with. Trump- ler v. Bemerly, 39 Cal. 490. 11. In proceedings to divest individuals of their estates for public use, statutes must be construed strictly in favor of individual right, yet in the exercise of the powers conferred, which are to be used for the public good, they should be construed liberally, so far as it is necessary to render their execution practicable. Chambers v. Satterlee, 40 Cal. 497. 12. Power to lay out or change street. The power to lay out and change streets is in • its nature legislative and not judicial, and the Legislature may itself perform those acts f or it may select such agencies for that purpose as it deems proper. Dewitt v. Duncan, 46 Cal. 342- 13. A Court has no jurisdiction to lay out or change a street unless the power to do so is conferred by the Legislature, and when this power is conferred it is a special proceeding. Id. See Constitutional Law, 21-23 > Mines and Mining, 33 ; Streets and Street Assessment, 11- 16. II. PROCEEDINGS. 1. Judicial powers. 14. Valuation. — Jurisdiction of County Court. The County Court has no authority to inquire into the question of mere valuation, that being fixed by the action of the Commis- sioners, in conjunction with the Committee of the Board of Supervisors ; no fraud being al- leged, the authority of the County Court is confined to errors of jurisdiction and irregular- ities appearing upon the face of the proceed- ings. Matter of Beale street, 39 Cal. 495. 15. Authority cf County Judge and Court therein. By the provisions of the Act for the incorporation of water companies, (Stats. 1858, p. 218; Stats. 1853, p. 99) which provide for the judicial condemnation of land and water to the use of water company corpor- ations, the County Judge or County Court be- fore whom such proceedings are prosecuted has no authority to try and determine, in the same proceeding, conflicting adverse claims to the same lands and waters, as between rival corporations, seeking the appropriation and use of the same lands and waters for substantially the same objects ; nor has such Judge or Court, in said proceeding, power or authority to de- termine whether such lands or waters are sub- ject to such condemnation or not. San Fran- cisco and Alameda Water Co. v. Alameda Water Co., 36 Cal. 639. 16. In such cases, the power and authority of the County Judge or Court is limited by said statutes to such matters and facts as relate to the regularity of the proceedings for said condemnation. Id. 17. The power and authority of the Coun- ty Court or County Judge to act in proceed- ings for the condemnation of lands and waters under said Act since the constitutional amend- ment of 1863, not decided. Id. 18. Powers so conferred will be strict- ly construed. The powers conferred by said statute, and all others to condemn private property to the use of another, without the consent of the owner, are in derogation of the common law and of general private rights, and must be strictly construed. Id. 19. Power of District Court. Where one of two rival water company corporations had acquired, by purchase and consent of the owner, certain lands and waters which were appropriated to the lawful purpose of its incor- poration, and thereafter the other corporation, without showing an unavailing effort made by it, in good faith, to acquire the same property for a like purpose, instituted proceedings un- der said statute for its condemnation, as EMINENT DOMAIN. 133 against the first corporation : held, first, that said first corporation might properly resort to the equitable jurisdiction of the District Court to annul a condemnation ordered in said pro- ceeding ; and, second, that in such case a judgment of the District Court annulling said proceeding was properly rendered. San Fran- cisco and Alameda Water Co. v. Alameda Water Co., 36 Cal. 639. 20. Water companies. The right of a water company to resort to the judicial pro- ceeding for the condemnation of lands and waters as prescribed in said Act only arises after its due incorporation, and an unavailing effort, made in good faith, on its part, to ac- quire said property by purchase and consent of its proprietors ; and a petition for such con- demnation must show said facts, also that the property sought to be condemned is necessary and proper for the lawful objects and purposes of such incorporation. Id. See Equity, 31 ; Ejectment, 74 ; Pleading, 8. 2. Commissioners, appointment and duties. 21. Duty of commissioner. It is the duty of commissioners appointed under that Act to ascertain and report the damages to the owner of each specific parcel of land affected by the proposed work, which should include the value of lands taken for the street. Jacobus v. Oak- land, 42 Cal. 21. 22. Evidence in proceedings. Commis- sioners appointed to assess the damage for taking land for public uses must hear the evidence offered by the parties, and in doing so, must be governed by the same rules by which the admission and exclusion of evidence in other eases is regulated. Central Pacific R. R. v. Pearson, 35 Cal. 247. 23. In proceedings to condemn land for public uses, opinions of witnesses as to the value of the land, who are unacquainted with its market value, or who do not form such opinions upon a knowledge of the location and adaptation of the land to other uses not speculative, should not be received in evi- dence. Id. 24. , Opinion of witnesses. In such pro- ceedings, witnesses giving their opinions of the value of the land cannot, upon direct ex- amination, testify as to the particular transac- , tions, such as sales of adjoining lands, or hew much has been offered for adjoining land or the same land, nor should testimony be re- ceived in relation to the value of wharf privi- leges, which may at some future time be attached to the land by reason of its boundary upon tide waters. Id. 25. Report of commissioners to assess . damage. The report of commissioners, ap- pointed by the Court to assess damages for taking land for public uses, should show upon its face a strict compliance on the part of the commissioners with the provisions of the statute, and the rules of law applicable to the several questions which may arise in the pro- gress of the investigation. Central P. R. R. v. Pearson, 35 Cal. 247. 26. Commissioners appointed to assess damages for taking land for public uses exer- cise a special delegated power, and their re- port should show upon its face that they have acted in the appointed mode. Id. 27 . Review of report assessing damage. The review by the Court of the report of com- missioners appointed to assess damages for taking land for public uses, is intended to be had upon the report itself, so far as all matters which should be stated there are concerned, and not upon bills of exceptions or statements. Id. 28. Setting aside or amending report. If the report of commissioners, appointed to assess damages for taking land for public uses, does not show fully what the proceedings before the commissioners were, it should be set aside for that reason, or sent back to the com- missioners for amendment. The ' Court has power to compel the commissioners to amend their report. Id. 29. If good cause exist for setting aside such report, outside of the report itself, such as fraud, or misconduct of the commissioners, it may be shown by affidavits or other com- petent evidence, or in any legal mode which the Court may prescribe. Id. 30. Amendment to report. A statement of matters proper to be inserted in the report of commissioners appointed to assess damage for taking land for public uses, signed by them after the trial, and in the form of a bill of exceptions, should not be rejected by the Court on motion to set aside the report, but should be considered; a part of the report itself, as an amendment thereto. Id. 31. Effect of decision. The directions given by the Supreme Court, in its decision on appeal from the County Court of San Eran- cisco County in The Matter of Beale Street, 39 Cal. 495, were but the announcement of re- sults to be ultimately reached, and had no ref- erence to the mere procedure to be pursued in the County Court for that purpose ; and they did not authorize that Court to itself modify the report of the Commissioners and enter final jndgment thereon. People v. San Erancisco, 43 Cal. 91. 32. Final judgment must conform to final report. Under the statute of March 28th, 1868, authorizing the Supervisors of San Eran- cisco to modify or change the grade of streets, (Stats. 1867-8, p. 463) the final judgment to be rendered by the County Court must be one rendered in conformity with the report of the Commissioners on file ; and when it is ascer- tained that there are errors in the report they must first 'be eradicated from it before the Court can proceed to final judgment ; nor can any report become the basis of final judgment 134 EMINENT DOMAIN. except it shall first have received the approval and sanction of the Supervisors. Id. 33. Control by San Francisco Super- visors over proceedings to change grade of streets. As, under the statute of March 28th, 1868, for the change of grade of streets in San Francisco, (Stats. 1867-8, p. 463) the County Court, before it is authorized to hear objections to the proceedings, must be notified " that the Board of Supervisors have confirmed the report ' ' of the Commissioners ; and as, if they reject it, it must fail, and without their approval the proceedings must halt, it follows that the Supervisors have an unqualified veto power over the proceedings in this respect — the proceedings being in reality their own, and none the less so because carried on through the instrumentality of the County Court. Id. 34. Report of Commissioners changing street grade in San Francisco to be ap- proved in all its parts by Supervisors. Under the statute for the change of grade of streets in San Francisco, (Stats. 1867-8, p. 463) the report of the Commissioners upon which the judgment of the County Court is to be ren- dered, as therein provided, must be one which as a whole and in all its parts and details, and, if modified, with all its modifications, has re- ceived the approval and confirmation of the Board of Supervisors. Id. III! COMPENSATION FOR LAND CON- DEMNED. 35. Damages for land condemned. In proceedings to condemn land taken for public uses, the owner of the land should not be al- lowed damages for the cost of removing his personal property from the premises. C. P. R. R. Co. v. Pearson, 35 Cal. 247. 36. "What damages the statute gives besides the value of the land, not decided. Id. 37. Assessment of damages in taking land for railroad. If Commissioners appoint- ed to assess damages and benefits in an applica- tion to condemn land for a railroad, assess the cost of fencing separately from the estimate of damages to land not taken, there is no substan- tial error, although the directions of the stat- ute are not technically complied with ; and, in such case, the Court may enter judgment for the value of the land taken and the cost of fencing, and the excess of damages over bene- fits to land not taken, if there are any. C. P. R. R. Co. v. Erisbie, 41 Cal. 356. 38. If such Commissioners, in a case where the damages exceed the benefits to land not taken, assess the value of the land taken, and then the gross amount of damages to land not taken over the benefits to land not taken, it is a, substantial compliance with the) statute re- quiring them to ascertain and assess the dam- ages to land not taken, and the benefits to land not taken. Id. 39. Land condemned for railroad pur- poses. If a railroad company, under proceed- ings for condemnation, enters on the land un- der an order of the County Judge, and con- structs its road across a tract of land in such a manner that it is imbedded in the soil and . becomes a part of the realty, and if the pro- ceedings are dismissed and new proceedings for the condemnation of the land are commenced, the owner is not entitled to have the value of the ties and iron constituting the track in- cluded in his damages upon the final condem- nation. Cal. P. R. R. Co. v. Armstrong, 46 Cal. 85. 40. Assessment of benefits in taking land for a railroad. If a part of a tract of land is taken for a railroad, and that part of the tract not taken is enhanced in value by the construction of the railroad, but receives no special benefits over other lands in the vicinity, and this enhancement in value is common to the contiguous lands, it is a benefit which is to be deducted from the injury caused to that part of the tract not taken. Id. n 41. Damage from building railroad on street. The Legislature may grant the right to lay down and construct a railroad upon public streets without providing for compen- sation for the damage to the owners of property along the line of such street, provided the own- ers of the property along the line of the streets are not the owners of the contiguous land usque ad filum via'. Carson v. Central R. R. Co., 35 Cal. 325. 42. Taking land for public use, for highway. When the Act for condemning land for a public highway requires the money allowed to a land owner for damages, to be set apart in the treasury by the Supervisors for the owner, the land is not taken for public use until it is so set apart ; and an order of the Supervisors awarding the damages allowed, payable from the Current Expense Fund of the county, is not a taking of the land for public use, and a tender to the land owner of the damages allowed, made after such order, is of no avail. Murphy v. DeGroot, 44 Cal. 51. 43. Interest on amount of award. Where land has been condemned under the above Act, (Railroad Law to condemn land for railroad purposes) and an award of damages made, the owner of the land is entitled to in' terest on the amount of the award, to com- mence thirty days after the final confirmation of the report. Phillips?;. Pease, 39 Cal. 582. See Judgment, 39. IV. TITLE TO LAND CONDEMNED. 44. Taking portion of a street for a railroad. The condemnation of land in ar street for the use of a railroad company, to en- able it to lay and/operate its track, gives it no title to the land condemned, nor any interest in it, except a mere easement in common with EMPLOYER AND EMPLOYEE. 135 the general public. S. P. R. R. Co. v. Reedet al., 41 Cal. 256. V. NEW TRIAL. 45. Setting aside report of Commis- sioners. The provisions of the Practice Act in relation to motions for new trials have no application to a motion to set aside the report of the Commissioners in a proceeding to con- demn lands for railroad purposes ; and such motion may properly be founded upon the re- port itself, of which the testimony taken by the Commissioners properly forms a part. W. P. R. R. Co. v. Reed, 35 Cal. 621. 46. Grovmds of awards of Commis- sioners in such cases. In such cases the Commissioners are not bound by the testimony of witnesses, but are both allowed and required to view the premises, and found their awards upon their own judgments, as well as the judgments of the witnesses. Id. 47. Setting aside the award when the evidence is conflicting. The award of the Commissioners in such cases will not be set aside, when there is a substantial conflict in the evidence. Id. See New Trial, 132. EMPLOYER AND EMPLOYEE. 1. Primary liability for wages. A party who employs another to do work is pri- marily liahle to the employee for his wages, although the work was being performed for him by a third party under contract. McFad- den v. Crawford, 39 Cal. 662. 2. Passage money. A party employed to perform work at a place distant from that at, which he was when employed, cannot re- cover his passage money to such place if the complaint fails to allege any consideration for the promise to pay such passage money. Id. 3. Interest. In an action to recover wages for work and labor, interest can only be recovered from the time of filing the com- plaint. Id. 4. When master chargeable -with acts of servant. The master is not chargeable with the acts of the servant, unless he acts in the execution of the authority given by the master, and then the act of the servant is the act of the master. Baker v. Kinsey, 38 Cal. 631. 5. An action to recover damages for the bite of a vicious dog belonging to the toll- keeper cannot be maintained against the owner of a bridge, if it appears that the de- fendant did not keep or harbor the dog in per- son, and did not authorize or require him to be kept, and did not need that the dog should be kept, for the conduct or protection of the busi- ness in which the owner of the dog was em- ployed, or as his assistant as toll-keeper. Id. 6. Responsibility for injuries, where the owner employs a contractor to do the en- tire work with his own means and by his own servants, is upon him who has the contract and management of the work. Du Pratt v. Lick, 38 Cal. 691. 1. Liability of employer for assault by employee. An employer, though not present, and in no manner consenting to or aiding the assault, is liable for the actual damage sus- tained in an assault upon the person, com- mitted by his servants or employees, while in the performance of their duties as such. Wade v. Thayer, 40 Cal. 578. 8. Liability of employer for injury to employee from neglect of fellow em- ployee. An employer is not liable to his em- ployee for injuries resulting from the negli- gence, carelessness or unskillfulness of a fell low employee, engaged in the same general business ; but the employer must exercise due care and prudence in the selection of compe- tent servants. Yeomans v. Contra Costa~S. N. Co., 44 Cal. 72. 9. The above rule is too firmly supported by authority to be overthrown, but it will not be extended beyond the limits designated by the general line of decisions. Id. 10. Risks employee takes on himself. One who contracts to perform labor for another takes upon himself such risks only, as are nec- essarily and usually incident to the employ- ment. Baxter v. Roberts, 44 Cal. 188. 11. Employer bound to tell employee of risks in employment. If the employer has knowledge that the particular employ- ment is, from extraneous causes, hazardous or dangerous to a degree beyond what it fairly imports or is understood by the employee to be, he is bound to inform, the employee of the fact, and if he fails to do so, he is liable to the employee for such damages as he sustains by reason of such causes. Id. 12. The above principle is not affected by the fact that the danger known to the em- ployer arises from the felonious or tortious de- signs of third persons, acting in hostility to the employer. Id. 13. The employee is entitled to all the in- formation the employer may possess, with re- gard to the danger of the employment, aris- ing from extraneous causes, to enable him to determine for himself whether, at the proffered compensation, he will assume the risk and incur the hazard. Id. 14. Liability of employer for injury to employee. Where an employee was injured by- the falling of a hoisting apparatus: held, that the liability of the defendant depended on three facts : 1 . That the method of attaching the hoisting rope was defective and unsafe, and 136 EQUALIZATION.— EQUITY. that the injury was caused by the defect. 2. That the defendant knew or ought to have known of the defect. 3. That the plaintiff did not know of it, and had not equal means of knowledge. Malone v. Hawley, 46 Oal. 409. See Attorney and Client, 22, 23 ; Contract, 4, S ; Ejectment, 16-19 i Evidence, 69, 129 ; Negligence, 15-17; Pleading, 207. EQUALIZATION. See Taxation. EQUITABLE ESTOPPEL. See Estoppel, 9, 10. EQUITY. I. General principles. II. Particular cases for relief. III. Bill of review. 3TV. Power and extent of relief. I. GENERAL PRINCIPLES. 1. He who seeks equity must do equity. Where parties come into a Court of equity seeking to enforce a trust created in their favor under a contract, their right to the relief demanded being founded on the contract itself, they cannot claim the benefit of such portions of it as are to their advantage and re- pudiate the rest. Pujol v. McKinlay, 42 Cal. 559- 2. Retaining fruits of mistake in judg- ment. A party who has, by the mere mis- prision of the Clerk, obtained the entry of a judgment against his adversary never in fact pronounced or rendered by ,the Court, cannot, while admitting the fact of the mistake, re- tain its fruits. Rousset v. Boyle, 45 Cal. 64. 3. Vague claims not enforceable. Courts of equity will not attempt to enforce vague and shadowy claims. Doe v. Culver- well, 35 Cal. 291. 4. The performance of acts prohibited by law not to be enforced. It may be stated, as a general proposition, that an act which the law prohibits to be done, is in so far infirm, that a Court of Equity will not lend its aid to enforce its performance. To grant any relief the Court must first decide that the transaction on which it is claimed was lawful and valid. Martin r>. Zellerbach, 38 Cal. 300. 5. Nor can a transaction, imbued with the fatal infirmity of being in violation of law, be purged of its infirmity by means of an estop- pel. Id. 6. Money regarded as land. The pro- ceeds of a policy of insurance (effected by the trustees) for a loss happening to the property during the continuance of the trust estate, and not expended for the purposes of the trust, will, on the determination of the trust estate, be regarded, in equity, as real property, and will belong to the owner of the reversion. HaweS't). Lathrop, 38 Cal. 493. 7. Equity -will not enforce an illegal contract. A Court of equity will not enforce an agreement to obtain the title to land from the United States by pre-emption, and then convey the same to plaintiff, for such an agree- ment is in contravention of the pre-emption laws of the United States. Hudson v. John- son, 45 Cal. 21. 8. C purchased certain lots, and borrowed the purchase money from M; to whom, as security for the loan, C caused a deed, in form absolute, to be made by the seller, upon the agreement that when payment should be made of the money loaned, and interest, together with certain additional advances made to C by M, the latter should convey the lots to C. To discharge this indebtedness C negotiated a loan of C. I. Co. of a sum sufficient to liquidate M's demands, and fifteen hundred dollars in addition, upon the agreements, which were fully executed, that C should pay M and re- ceive from him the promised conveyance, and simultaneously execute a mortgage of the lots to C. I. Co., to secure said last loan. Subse- quently C. I. Co. assigned an unpaid balance of its demand, together with said mortgage, to plaintiff, who brought suit to foreclose and make K a party* defendant, to whom C being indebted at the time of said purchase, and by reason thereof had promised K to buy for her a lot and thereon build a house which should be- come her property. While said lots stood in M's name, C pointed out to K one of them as the one intended, built a house thereon, and K went into possession, and so continued until said suit. There never was, however, any ac- counting between C and K at any time, or any price agreed or fixed on said lot. Held, that this transaction created no equitable title in K which could have been enforced in a Court of equity as against C, if the title had been in him, and is void as a defense to plaintiff's said action. Doe v. Culverwell, 35 Cal. 291. See Interest, 10. H. PARTICULAR CASES FOR RELIEF. 9. Against enforcement of contract. If a promissory note payable at a future day pro- vides for the payment of interest quarterly, and that if default be made in the payment of in- terest quarterly that the whole note shall im- EQUITY. 137 mediately become due at the option of the holder, a failure to pay the interest makes the principal due, and a Court of equity will not relieve against the enforcement of the con- tract as made. "Whitcher v. Webb, 44 Cal. •127.. 10. Bill to carry a decree into effect. A bill in equity ■will not lie to carry into effect an interlocutory decree. MeFadden v. Me- Fadden, 44 Cal. 306. 11. A bill to carry a decree into effect must •ordinarily show such decree to have been Anal in its character, and that by reason of some- thing occurring subsequently to its rendition, the rights of the parties cannot be properly enforced thereunder. Id. 12. Canceling void deed. A Court of equity will not interfere to cancel a deed upon the ground that it operates as a cloud upon the complainant's title, when the deed is void on its face, or the result of proceedings void upon their face and requiring no extrinsic evi- dence to disclose their illegality. Cohen v. Sharp, 44 Cal. 29. 13. Concealment. — Fraud. Concealment of the fact by a vendor of real property that he holds merely as tenant, does not constitute such fraud as will entitle his vendee to relief in equity. Hastings v. O'Donnell, 40 Cal. 148. 14. Deed made under defective power of attorney. Where a party applies to a Court of equity to cancel a deed made by an attorney in fact, under a power of attorney which did not authorize the conveyance, he may set out the power in his complaint and take the judgment of the Court as to whether it did authorize the conveyance or not. Cohen v. Sharp, 44 Cal. 29. 15. Defective execution of power of attorney. Such a case is the ordinary one of a defective execution of a power, and a Court of equity will afford the appropriate relief. Gerdes v. Moody, 41 Cal. 335. 16. It is only when there has been an un- successful attempt to execute a power in proper form, that the interposition of a Court of equity is properly invoked. Gerdes v. Moody, 41 Cal. 335. 17. Boundaries. The bare existence of a controverted boundary is not sufficient ground for relief in equity, by an action to settle dis- puted boundaries between adjoining land owners. Before Courts of equity will inter- fere in such cases some peculiar circumstances must exist, of such a nature that an action of ejectment will not afford adequate relief. Wether bee v. Dunn, 36 Cal. 249. 18. Mistake, how affected by negli- gence. When an attorney for defendant, on the trial of a cause, objects to the introduction of certain testimony, and the Court erroneously overrules the objection, and an exception is ^aken to the ruling, and by reason of said erro- neous ruling the plaintiff recovers judgment, and the testimony is taken down by the of- ficial reporter, who fails to note the objection and exception, and the defendant moves for a new trial, and adopts as his statement the re- port of the official reporter, without observing the error in the report, and by means thereof fails to obtain a new trial, the mistake has been accompanied by such negligence of de- fendant's attorney that a Court of equity will not relieve against the judgment. Quinn v. Wetherbee, 41 Cal. 247. 19. Mistake. A Court of equity will set aside a deed made nnder a mistake as to the rights of the parties. Hearst v. Pujol, 44 Cal. 230. 20. Mistake in executing partition deed. When a partition agreement fixed upon a certain line as dividing off the interest of one of the parties, but in carrying out the agree- ment a mistake was made in running this line so as to cut a portion of the land it was agreed he should have, and the mistake was carried into the partition deeds, and not discovered until afterwards: held, that the proceedings did not, under the circumstances, become a '' finality," but that the party was entitled to relief in equity. Guedici v. Boots, 42 Cal. 452. 21. Mistake in redeeming from Sher- iff's sale. When the redemptioner pays the whole or a part of the amount required to re- deem from the Sheriff's sale, in counterfeit money, and such money is paid and received under a mutual mistake as to its character, it is not a valid redemption, and the party from whose purchase the redemption was thus made is entitled to relief in equity, and to be placed in statu quo on returning the money which he received. Pownall v. Hall, 45 Cal. 189. 22. If, however, the defendant paid the money under an innocent mistake, a Court of equity will relieve him from the consequences of his mistake, and allow him to perfect the redemption on payment of good money and in- terest. Id. 23. Mistake in satisfying instead of as- signing a mortgage. Where the owner of a mortgage agreed to assign it to a third person, and at his request entered a satisfaction of re- cord, both supposing that would carry out their intentions: held, upon a proper'complaint by the intended assignee against the mortgagor, set- ting up the facts, that equity would relieve against the mistake and decree a foreclosure of the mortgage. Russell v. Mixer, 42 Cal. 475. 24. Mistakes of parties' own ignor- ance or inattention. Equity will grant relief against a mistake by which parties, through their own ignorance or inattention, fail to select or prepare a proper kind of instru- ment to effectuate their agreement and inten- tion, the same as if such mistake were made by a scrivener. Bussell v. Mixer, 42 Cal. 475. 25. Reforming written contracts. 138 EQUITY. When, by the mistake of a draftsman, some of the terms of an agreement are omitted in re- ducing it to writing, it should be reformed by the Court, and be enforced as reformed. Mur- phy v. Booney, 45 Cal. 78. 26. Reforming decrees and sheriffs' deeds. A Court of equity will reform a mort- gage by correcting a mistake, and after it has been merged in a decree of foreclosure, and the mortgaged property has been sold, will, if the mistake in the mortgage has been carried into the decree and Sheriff's deed, reform them. It will go back to the original mistake and cor- rect all subsequent mistakes which grow out of it. Quivey u. Baker, 37 Cal. 465. 27- Mistake in mortgage and decree of foreclosure. If there was a mistake in the mortgage in the description of the property, and the same mistake exists in the decree and Sheriff's deed, equity will go back to the orig- inal transaction and reform all three so as to make them conform to the original intention of the parties. Id. 28. Dismissal of bill for -want of equity. A subsequent mortgagee, who has been made a party to an action foreclosing a prior mortgage, cannot maintain a separate action to enjoin a sale under the judgment, and to be subrogated to the rights of the plaintiff, on the ground of a tender of the amount due on the judgment ; his remedy is by motion in the action foreclosing the mort- gage. Ketchum v. Crippen, 37 Cal. 223. 29. Remedy for relief in equity. Where a party to an equitable action has a plain and speedy remedy by motion in the action, he cannot maintain a separate suit in equity to obtain the desired relief. Id. 30. Remedy against judgment. An ac- tion was brought to enforce a lien upon prem- ises for a certain street assessment in San Francisco, without asking for personal relief. The defendant made default, and the plaintiff took a judgment, including personal relief also. The defendant brought an action to en- join the collection of the judgment upon the ground of fraud, and upon trial offered no proof of fraud except the judgment roll. Held, first, that the fraud cannot be predicated of such a proceeding ; second, that such a judgment will not be enjoined ; third, that if such a judgment be "void pro tanto, the remedy is by motion to set it aside ; fourth, that if it be merely erroneous, the remedy is by appeal. Whether such a judgment is void pro tanto or only erroneous, left open. Murdock u. De Vrees, 37 Cal. 527. 31. Over land condemned. A corpo- ration may properly resort to the equitable jurisdiction of the District Court to annul a condemnation of land and water to the uses of a rival corporation. See Facts, S. F. &A. WaterCo. 0. Alameda Water Co., 36 Cal. 639. 32. Ratification of an unauthorized act. A ratification by a party of an act done in his behalf by another, without authority, if such ratification be made under a misappre- hension of the full scope of the Act, is voidable to the extent of the mistake, and the party can be relieved pro tanto. Miller v. Board of Education Sac. City, 44 CaL 166. 33. Prosecution of another action to try title pending in the same Court. In such case, where one of the defendants claim- ing to own said land, and being in possession thereof, had, before said suit, commenced an action in the same Court against plaintiffs to determine as void plaintiffs' said adverse title to the land, which action was still pending, and was pleaded by defendants in bar of plain- tiffs' suit : held, first, that because said other defendants were not made parties to said ac- tion against plaintiffs, the latter could not in that action obtain all the relief to which they were entitled, if entitled to recover ; and, second, that an order made, pendente lite, in the second action, staying the further prosecu- tion of the first action until the further order of the Court in which both were pending, would not be reversed, although said order might more properly have been made in the first action. Corcoran v. Dall, 35 Cal. 476. 34. Trespass. A Court of Equity should not license a trespass upon ditch property in the mining regions, nor compel the owner to exchange the same for another means of con- veyance for the water flowing therein. Greg- ory v. Nelson, 41 Cal. 278. 35. If a plaintiff owns a ditch and right of way for same, by priority of location, a Court of Equity has no power, by its judgment, to allow the same to be washed away for min- ing purposes, provided an aqueduct of sufficient capacity to carry the water is previously built in its place. Id. 36. When equity will enforce a con- veyance of the title and possession of land. If A, being in possession of land, con- tracts in writing with B, to sell and convey the land to B, and to deliver him possession at any time within five years, upon the payment of the price agreed on, and C, with notice of this contract, obtains from A a deed of the land before B has paid the agreed price, B may pay the agreed price to C, and equity will compel C to convey the land to B, and to de- liver him possession of the same. Hildreth v. Shelton, 46 Cal. 382. 37. The fact that such land is public land, held by A under the Possessory Act of this State^ is no defense. Id. 38. Conveyance without consideration. The title of one who obtains a conveyance without any consideration cannot be assailed by another, who is neither a creditor of the grantor nor in the place of a creditor. Meyers v. Farquharson, 46 Cal. 191. 39 . Fraud or mistake . A Court of Equity will interfere to prevent the fraudulent use of EQUITY. 139 a paper for a purpose not contemplated at the time it was made, even where there was no mistake or fraud in its execution. Murray v. Dake, 46 Cal. 644. 40. Reformation of a lease by a Court of equity. If a lease is drawn of all of a brick building, but before it is signed by the lessor the parties agree verbally that it shall only cover the building as it then is, and that the lessor may erect and use the second story, the lessee cannot recover in ejectment a second story afterwards erected ; but a Court of equity will prevent such fraudulent use of the lease, and reform it so as to make it correspond with the verbal agreement of the parties. Id. 41. When suit in equity is not stale. If a judgment removing an alleged cloud on title to real estate is obtained by fraudulent practices, and the defendants do not reside in the State, they may maintain an action to set aside the judgment, and have their title to the land established within three years after their discovery of the facts constituting their cause of action, and the case is not stale because twelve years may have elapsed before suit was commenced. Hayden v. Hayden, 46 Oal. 333. 42. Equity will grant relief against 'fraudulent judgment. If one dies seized of real estate, leaving children in another State, and an interest in the real estate descends to the children, and the children are ignorant of their right to the property, and the widow of the deceased informs the children that the de- . ceased left no property, and at the same time, by fraudulent practices, obtains a judgment against them decreeing that they have no inter- est in the land, and enjoining them from set- ting up any title thereto, a Court of Equity will grant relief by setting aside the judgment and establishing the children's right to the property, and such relief will be granted as • against parties who purchased the property from the widow with notice. Hayden v. Hay- den, 46 Cal. 333. See Action 34, 35 ; Chattel Mortgage, 5 ; Growing Crops, 1 ; Judgment, 68 ; Mortgage, 7, 43 ; Parties, 2, 3, 16 ; Partition, 8 ; Plead- ing, 83; Taxation, 149,150. HI. BILL OP REVIEW. 43. For new trial. A bill of review for a new trial mast be filed within the time al- lowed by law for the prosecution of an appeal, or writ of error, in the original eause, a review of which is sought. Allen u. Currey, 41 Cal. 318. 44. Bill to set aside a judgment as fraudulent. A bill of review to set aside a judgment as fraudulent will not be sustained on the ground that the opposing party was sworn as a witness in the case in which the judgment was rendered, and knew of a fact which, if proved, would have given judgment to the other party, and failed to disclose it, and witnesses have since been discovered who will testify to such fact. Allen v. Currey, 41 Cal. 318. 45. Motion for bill in equity for a new- trial, when to be made. An application by bill in equity for a new trial, must be made promptly after the facts are discovered. It is too late to file such bill two years after the facts are discovered. Neal v. Byers, 45 Cal. 234. IV. POWER AND EXTENT OP RELIEF. 46. Over the pledge of negotiable in- struments. Has a Court of Equity power to decree the foreclosure and sale of a' negotiable instrument, in satisfaction of the debt for which it is held in pledge, under ordinary cir- cumstances ? Query '? Donohoe v. Gamble, 38 Cal. 340. 47. Under special circumstances, a Court of Equity has the power to decree the sale of such instruments so held. Id. 48. Where the maker of the note .or bill of exchange resides in a remote country, or in a . different State, and it is not shown that he has any property subject to seizure and sale, within the jurisdiction of the forum, there is pre- sented sueh special circumstances as to au- thorize the holder of the instruments given in pledge to resort to a Court of Equity for a foreclosure and sale. Id. 49. Account for rents in equity though merger of lease at law. Where a lessee, having redeemed the property leased from an execution sale and received the Sheriff's deed, recovered in ejectment against the lessor ; but it appeared that as a matter of fact the lessee, in making such redemption, did it in trust for the lessor : held, that although at law the lease was merged in the lessee's new title and recovery in ejectment, in equity there was no merger ; and that on » settlement of ac- counts, the lessee was chargeable with rents during the whole time. Pujol v. McKinley, 42 Cal. 559. 50. Interest by -way of damages. It is well settled that in an action at law for the conversion or non-delivery of personal property agreed to be delivered, interest may be awarded by way of damages for a breach of the con- tract ; and there are even more cogent reasons why equity should adopt the same rule in the settlement of a long standing account. Id. 51. Unliquidated damages not pay- ments on accruing interest account. Where Pujol leased a ranch from McKinlay at a rent of a certain number of calves to be delivered annually ; and afterwards advanced money to redeem the ranch from an execution sale, under an agreement that he was to be repaid the advance with interest at the rate of two and a half per cent, per month, compounding quar- terly, and no calves were delivered or rent paid : held, on a settlement of accounts, that 140 ERROR. MoKinlay's claim for non - delivery of the calves was in. the nature of unliquidated damages ; and that, though equity in making a settlement might, for the purpose of avoid- ing a multiplicity of actions, estimate such damages and deduct them from Pujol's de- mand, it would not compute the interest on his demand with rents — in other words, it would not treat such damages as pro tanto a payment of Pujol's demand at the several dates when the calves were to be delivered. Id. 52. Alimony. The power to decree ali- mony falls within the general powers of a Court of Equity, and exists independent of statutory authority. And in the exercise of this original and inherent power, a Court of Equity will, in a proper case, decree alimony to the wife, in an action which has no refer- ence to a divorce or separation. Galland v. G-alland, 38 Cal. 265. 53. Judgments at law. Courts of Equity will not grant relief against judgments re- covered at law, unless the party asking for relief was unable to avail himself of his de- fense in the action at law, or was prevented from doing so by fraud, accident, or mistake, without negligence on his part. Quinn v. Wetherbee, 41 Cal. 247. ERROR. 1. Presumed to be an injury. Error imports injury to the party against whom it is committed, unless it affirmatively appear by the record that no injury did or could occur to him thereby. Rice v. Heath, 39 Cal. 609. 2. Injury will be presumed from error, where the record fails to show that no error was done. Sweeney v. Eeilly, 42 Cal. 402. 3. Must be affirmatively shown. Where error is alleged, it must be affirmatively shown by the party alleging it. People v. Best, 39 Cal. 690. / 4. To be pointed out. Error will not be presumed ; but the presumption is that the proceedings below were correct, so far as such presumption is not overcome by the record. Moore v. Massini, 43 Cal. 389. 5. Finding not supported by evidence. In a suit to compel the conveyance of land, H alleged the purchase by herself of an interest in the land, and an agreement by P to ex- change title to other lands for the title to hers ; that she had deeded her interest to P under the agreement, but that P had refused to deed to her. The answer admitted the purchase by H, but averred that it was made with money loaned by himself to her ; admitted the con- veyance by H to himself, but denied the mutual agreement to convey. The referee who tried the case found that the purchase was made by H, but with P's money, and that P had paid no consideration for the deed from H. Judgment was for P. Held, to be error, because not supported by the evidence — all evidence contrary to the admissions of the answer being disregarded. Hall v. Polack, 42 Cal. 218. 6. Charge of the Court. It is error for the Court, in its instructions to the jury, to assume as a conclusion of law that a substan- tial inclosure, partly natural and partly arti- ficial, necessarily established the actual pos- session of the tract of land. Brumagim v. BradBhaw, 39 Cal. 24. 7 . Erroneous instructions. In an action of ejectment it is error to instruct the jury that the defendant being in possession, plain- tiff cannot recover unless he prove an earlier and better possession. Sweeny v. Reilly, 42 Cal. 402. 8. Consent to error. A party will not be heard to complain of an error which was the result of his deliberate and formal consent. Thompsons. Connolly, 43 Cal. 636. 9. Waiver of error. If an erroneous or- der is made setting aside the submission of a motion and authorizing new evidence to be in- troduced, the party against whom* the error is committed waives the same by availing him- self of the permission to introduce new evi- dence. Keys v. Warner, 45 Cal. 60. 10. Error cured. If the Court errs in re- fusing to allow a witness to be examined on certain matters, the error is cured by subse- quently allowing the witness to be examined on the same matters. Conroy v. Duane, 45 Cal. 597. 11. Error -when Court has jurisdiction. The rendition of a judgment for a demand which was not due when the action was com- menced is not an excess of jurisdiction, but er- ror in the exercise of jurisdiction. Monreal v. Bush, 46 Cal. 79. See Amendments, 1 ; Appeal, 75—77, 80, 95, 218, 232, 233, 273-289; Costs, 11; Criminal Law and Practice, 65, 319; Evidence, 74, 82, 157; Instructions, 7,8, 10: Land and Land Titles, 254 ; Mines and Mining, 1 ; New Trial, 3 2 -3S. 47. 5°, 5 1 . 54, 104, «9, 123, '36 I Par- tition, 22. ESTATE IN REVERSION. 1. Estate in reversion. — At what time the right to becomes absolute. The right to an estate in reversion becomes absolute on the happening of the event which terminates the intermediate estate. Hawes v. Lathrop, 38 Cal. 493- 2. Where it was provided in a conveyance of real estate to certain parties in trust for a specified purpose, that if the trustees should ESTATE OF DECEASED.— ESTOPPEL. 141 declare by resolution that the objects of the trust were found to be impracticable, that the estate thereby conveyed should be determined, and the land revert to the grantor, it was held that on the happening of that event the trust deed became void, and the right of the grantor became absolute, id. ESTATES OF DECEASED. See Probate Law and Practice ; Wills. ESTOPPEL. I. In general. n. By matter in pais. HE. By matter of record. IV. By judgment. V. As between vendor and vendee . VI. AS BETWEEN LANDLORD AND TENANT. I. IN GENERAL. 1. Doctrine of. The doctrine of estoppel, which may be said to be founded upon the adage that " the truth is not to be spoken at all times," is a harsh one, and is never %o be applied except where to allow the truth to be told would consummate a wrong to the one party, or enable the other to secure an unfair advantage. Franklin v. Merida, 35 Cal. 558. 2. Purchaser of adverse claim. One who is in possession of and claiming to own land does nof admit title in another, because he buys the other's claim of title solely to quiet his own title and avoid litigation. Such pur- chaser is not estopped by such purchase from denying the validity of the claim thus pur- chased. Cannon v. Stoekmon, 36 Cal. 535. 3. Sheriff's return. If a Sheriff make a return in these words : " John Moore, plain- tiff's attorney, was the purchaser at $180, and has paid the costs," he is not estopped thereby from testifying that the plaintiff, and not his attorney, John Moore, was the purchaser ; and if his deed has been lost, that he made it to the plaintiff, and not to his attorney. Moore v. Martin, 38 Cal. 428. 4. For use and occupation upon an undertaking. In an action for use and occu- pation upon an undertaking on appeal, the defendants are estopped from denying that the defendant in the judgment was in the posses- sion at the time he took his appeal and gave the undertaking. Murdock v. Brooks, 38 Cal. 596. 5. Validity of transfer. Where a trans- fer of property is made under the advice of a third party, neither the party who advised the transfer, nor his assignee with notice, is estopped to deny the validity and sufficiency of the transfer under the Statute of Frauds. Sexey v. Adkison, 40 Cal. 408. 6. Execution debtor not estopped from setting up after-acquired title. An execu- tion sale and Sheriff's deed does not estop- the execution debtor from asserting a subsequently acquired interest or right of possession to the land sold, as against the right of possession and interest sold and transferred by the Sheriff's deed. Emerson v. Sansome, 41 Cal. 552. 7. Forged deed as estoppel. In an action to recover possession of land held by an innocent purchaser, who deraigns title through a forged deed which has been of record five years with knowledge of plaintiff, the delay of the plaintiff to attack the forged deed is not material, if it be not relied upon as extinguishing the plaintiff's title by the opera- tion of the Statute of Limitations; and such delay does not estop the plaintiff to say that the alleged deed is not his deed. Meley v. Col- lins, 41 Cal. 663. 8. Receipt to Sheriff. One who, with knowledge of all the facts and circumstances surrounding the transaction, gives to the Sheriff an accountable receipt for property- levied upon as the property of another, is estopped from afterwards asserting ownership, in himself, unless at or before the, giving of the receipt he made known his claim to the officer. Dresbach v. Minnis, 45 Cal. 223. 9. Equitable estoppel. Equitable estop- pels are founded solely on the theory that to permit the party to maintain the right which he asserts would, operate as a legal fraud upon his adversary. Parish v. Coon, 40 Cal. 33. XO. The fact alone, that one as the attorney in fact for another, executes to a third person a deed of land, does not constitute an equitable estoppel, so as to prevent the person who thus acted as attorney in fact from afterwards set- ting up a title to the property acquired by him from the person for whom he acted as attorney in fact, before he executed the deed. Smith v. Penny, 44 Cal. 162. 11. A transaction imbued with the fatal infirmity of being in violation of law cannot be purged of its infirmity by means of an estoppel. Martin v. Zellerbacn, 38 Cal. 300. 12. Waiver of an estoppel. A party- who has a judgment in his favor which would- be an estoppel, may waive the benefits of the estoppel, in a case in which it is set up as a bar, by consenting in open Court to a judg- ment, notwithstanding the estoppel. Semple v. Ware, 42 Cal. 619. n. BY MATTER IN PAIS. 13. Estoppel in pais. A party cannot be estopped by matters in pais, unless at the 142 ESTOPPEL. time the estoppel was worked, he held the title. Marquart v. Bradford, 43 Cal. 526. 14. Doctrine of. The doctrine of estop- pel inputs proceeds wholly on the theory that the party to be estopped has, by his declar- ations or conduct, misled another to his preju- dice, so that it would be a fraud upon him to allow the true state of facts to be proved. Martin v. Zellerbach, 38 Cal. 300. 15. When invoked in respect to the title of property, to constitute an estoppel it must appear : first, that the party making the ad- mission, by his declarations or conduct, was apprised of the true state of his own title ; sec- ond, that he made the admission with the ex- press intention to deceive, or with such careless or culpable negligence as to amount to con- structive fraud ; third, that the other party was not only destitute of all knowledge of the true state of the title, but of all convenient or ready means of acquiring such knowledge by the use of ordinary diligence ; and, fourth, that he relied directly upon such admissions, and will be injured by allowing its truth to be disproved. Id. 16. What does not constitute. On the trial of an action for the alleged trespass of defendants on the plaintiff's mining claim, in which the title to the locus in quo constituted the main issue, the Court gave the following instruction to the jury, viz: " if the jury be- lieve from the evidence that plaintiffs, * * * more than five years prior to the commence- ment of this suit, in good faith, and under a claim of right, entered into the possession of said disputed ground, and have continued in possession thereof, and expended labor thereon, (with the knowledge of defendants, * * * they making no objections thereto) and that defendants have not forbidden plaintiff's pos- session so acquired, then the plaintiff is enti- tled to a verdict." Held, that this instruction, as an abstract proposition, fails to state the es- sential elements of an estoppel in pais, and was improperly given. Maine Boys' T. Co. v. Boston T. Co., 37 Cal. 40. 17. Where H, being the owner of the un- divided half of a parcel of land, and believing that he was the owner of the other half, enter- ed thereon, and M, who held the legal title to the other half, but believed the title was in H, withdrew from the possession ; and it appear- ed that M did not attempt to practice any .de- ception upon H in surrendering the possession, but H was as well iaformed of the state of the title as M, and did not rely upon any admis- sion or conduct of M : held, that the withdraw- al of M did not estop him from afterwards as- serting his title at any time within the period fixed by the Statute of Limitations. Daven- port v. Turpin, 43 Cal. 597. See Abandonment, 8 ; San Francisco, 1. III. BY MATTER OF RECORD. 18. Order denying motion to set aside sale. A person whose land is sold on erro- neous judgment, afterwards reversed, is not es- topped from maintaining an action for dam- ages by having had a motion to set aside the sale and be restored to possession denied. Rey- nolds v. Hosmer, 45 Cal. 616. 19. Judgment-creditor not estopped. A judgment creditor is not estopped from de- nying the title of the debtor to the property sold under execution, in satisfaction of his, judgment. Martin v. Zellerbach, 38 Cal. 300. 20. Doctrine of "res adjudicata" as to motions. The doctrine of res adjudicta, in its strict sense, does not apply to motions for alias writs and to motions for orders requiring a Sheriff to execute a writ. The Court may, on a proper state of facts, allow a renewal of such a motion, once decided ; but such leave will not be granted unless a new state of facts has arisen since the former hearing, or the facts were not then presented by reason of surprise or excusable neglect. Ford v. Doyle, 44 Cal. 635- IV. BY JUDGMENT. 21. Requisites of judgment. A judg- ment to operate as an estoppel, must be a judg- ment of a Court of competent jurisdiction upon the same subject-matter, in a cause regularly tried on its merits, upon issues duly joined by proper pleadings in such Court, between the same parties or their privies. Boggs u. Clark, 37 Cal. 236. 22. F recovered judgment against H, fore- closing a mortgage on certain lands, and un- der an order of sale duly issued thereon, the Sheriff sold, and in due course conveyed, the said lands by deed to B, who, under a writ of assistance, duly issued, procured C to be dis- possessed of a certain tract of land as being within said deed. C subsequently procured, from the Court rendering said judgment, upon proper motion and notice thereof to B, and after trial on the merits of the issues arising thereon, an order to be restored to said posses- sion, on the ground that said tract of land was not within said deed ; and was so restored, un- der said order, which" became final. Subse- quently, B brought ejectment against C to re- cover said land ; to which C, in answer, after setting up said facts, and that B had and claim- ed no other title to said land except under said deed, pleaded that, as between B and C, the title thereto was res adjudicata : held, that the facts so pleaded constituted no bar or legal de- fense to B's action against C to recover said land, and that the Court below did not err in striking out so much of C's answer as set up the same. Id. 23. Former judgment. — As to -what is- ESTOPPEL. 143 sue. The judgment of a Court of competent jurisdiction upon a material matter, put direct- ly in issue by the pleadings, is res adjtidicata as to that issue; and the parties are estopped by the judgment from litigating it again. Jackson v. Lodge, 36 Cal. 28. 24. If the defense made by sureties to a promissory note is, that a deed to a tract of land has been given to the plaintiff by the principal to the note, in satisfaction thereof, and the case is tried on this issue, and judg- ment rendered for the defendants, this is res adjudicata as to that issue ; and the same mat- ter cannot be again litigated between the par- ties in an action to recover possession of the land. Id. 25. As a plea in bar. A former judg- ment rendered in an action tried upon its merits between the same parties and upon the same subject-matter, is, if properly pleaded, an effectual bar to another action between the same parties on the same cause ; but it consti- tutes no defense to a cause of action which ac- crued between the same parties and upon the same subject-matter after the rendition of such judgment. Jones is. City of Petaluma, 36 Cal. 230. 26. Former recovery. When a com- plaint embraces several causes of action, the plaintiff, in a second suit, may show that he he " offered 1 ' no evidence as to one or more of those causes of action, and that the cause went to the jury upon a different part of his claim from that for which the second suit is brought ; in which case, the judgment in the first will be no bar to the second. Barnum v. Reynolds, 38 Cal. 643- 27. But when he attempts to give evidence as to all the causes of action, and submits the question to the jury, and he fails as to a part for the want of sufficient proof, the defendant may insist' upon the judgment as a bar. Id. 28. When the point in issue in the former suit was one of title, and it is not pretended that the plaintiff has now any other or better title than he had "when the first action was tried, he is estopped from litigating that ques- tion in the second action. Id. 29. Judgment in trespass against one tenant in common no estoppel against another. Where a judgment in trespass i/uare clansum fregit was recovered by Sutton against Woods, Hastings, and Haskell, who were tenants in common with Williams : held, that though Woods, Hastings, and Haskell were estopped from asserting title as against Sutton, there was no such estoppel as against Williams' claiming and recovering the whole property. Williams v. Sutton, 43 Cal. 65. 30. When one defendant suffers de- fault. The fact that one defendant, who suf- fered -judgment by default, is not estopped as to an issue made by the other' defendants, upon which they succeeded, does not prevent the judgment upon this issue from being an estoppel between the plaintiff and the de- fendants who pleaded it.' Jackson v. Lodge, 36 Cal. 28. 31. Judgment recovered by assignee estops assignor. If the owner of a demand assign the same by an assignment sufficiently comprehensive in its terms to enable the assig- nee to sue and recover the whole sum due, a judgment in favor of the assignee operates as an estoppel upon the assignor to the same ex- tent as though it had been recovered by the assignor. Wetmore v. San Francisco, 44 Cal. 294. 32. Estoppel of record. The claimant of the proceeds of a judgment, under the right- ful owner, is not estopped by the judgment in favor of the assignee, under an invalid assign- ment, unless it is shown that the fact of the assignment was put in .issue between the debt- or and the alleged assignee. Blood v. Mar- cuse, 38 Cal. 590. 33. Judgment for damages. Where an infant child sues by her father, as guardian, for damages for suffering and deformity caused by the act of a vicious animal belonging to the defendant, and recovers judgment, such judg- ment is not available as a bar or admissible in evidence in a suit brought by the father in his own name, for services rendered and expenses incurred in the cure of the wounds inflicted upon the child. Karr v. Parks, 44 Cal. 46. 34. Judgment as bar to an action. A judgment rendered in an action where an equitable defense was dismissed without being presented to the Court, is not a bar to a sub- sequent action, begun in due time, embracing the subject matter of the equitable defense. McCreary v. Casey, 45 Cal. 128. 35. When former judgment is a bar. In order to determine whether a judgment rendered in a former suit is a bar in a subse- quent suit, inquiry must be made, not only whether the former litigation was between the same parties, but also whether they were liti- gating in the same right or capacity in which they are litigating in the subsequent 'suit. Stoops v. Woods. 45 Cal. 439. 36. When former judgment not a bar. A judgment in favor of the plaintiff, in an action brought by him against a Sheriff for taking goods, and in which the Sheriff justified under an execution in favor of A and against B, is not a bar in a subsequent suit brought by the same plaintiff against the Sheriff for taking the same goods, and in which the Sheriff justi- fies under an execution in favor of C and against B. Id. 37. Judgment in evidence as a bar. A judgment between the same nominal parties is, not admissible in evidence in a subsequent suit between the same parties by name, and con- cerning the same property, unless the real par- ties in interest or their privies were the same. Id. 144 ESTOPPEL. 38. Judgment against administrator estops the heirs. When an administrator sues in ejectment to recover the land of his in- testate, and alleges the seizin of the deceased, and issue is joined on this point, and judgment rendered, the judgment is an estoppel, and binds the heirs of the intestate and all persons claiming under them. Cunninghan v. Ashley, 45 Cal. 485. 39. If such judgment is in favor of the administrator, it amounts to an adjudication that the title of the deceased is superior to that on which the defendant relies, and estops the defendant, his heirs, and privies ; but if it is in favor of the defendant, it is an adjudication that the title of the defendant is superior to that which the intestate had, and eBtops the heirs of the intestate, the administrator, and creditors, and all persons asserting title as hav- ing vested in them by reason of the death. Id. 40. Such estqppel applies not only to the title which is set up, but to any title which might have been set up on the action. Id. 41. Judgment for sum less than claimed. If the plaintiff, in an action to recover a gross sum alleged to be due under a contract, recover judgment for a less sum than he claimed, he cannot afterwards maintain an action for the residue. Wetmore v. San Fran- cisco, 44 Cal. 294. 42. Proof sufficient. A plea of former judgment as a bar is'sustained by proof of a a former trial before a Justice, and the verdict of a jury entered on his docket, without any formal entry of judgment. Lynch v. Kelly, 41 Cal. 232. See Ejectment, 101, 134, 135, 146-150 ; Ten- ants in Common, 6. V. AS BETWEEN VENDOR AND VEN- DEE. 43. On public domain. One who ob- tains the possession of public land of the United States from a prior possessor, under a contract of purchase with which he has not complied, is not estopped from setting up a subsequently acquired title from the United States, in an action brought by the vendor to recover the possession. Holden v. Andrews, -38 Cal. 119. 44. A person who has acquired the pos- session of lands under a contract of purchase, is precluded, while he continues in possession, from disputing the title of his vendor ; but he is not estopped to show that his vendor's title has expired. Id. 45. Reason for permitting the vendee to show that the vendor's title has ceased. In the cases in which it is permitted to the vendee, entering under a contract of purchase, to sbow that the vendor's title has ceased, the defense is allowed on the ground that, with- out fault or fraud on the part of the vendee,, the vendor's title has expired. Id. 46. Has no application to the sale of a possessory claim. But this reason has no. application to the sale of a possessory claim, of which alone the possession is sold, and to which the vendee knew the vendor had no other title than the possession. Id. 47. As between the vendor and vendee, an estoppel has its origin in the contract ; its oper- ation is limited to the title in reference to which the contract was made, and does not extend to the question of the right of posses- sion. Id. 48. In an action for the possession, the vendor's right of recovery depends upon his- title ; when his title expires, his right to the possession also expires. Id. 49 . The rule that the purchaser, remaining in possession after a breach of the contract, is estopped from setting up title from any other source, has reference only to title adverse to- the vendor. It has no application when the subsequently acquired title is consistent with the vendor's, and when the contract was made with full recognition of such title as the per- manent one. Id. See Deed, 51, 52 ; Trust and Trustee, 1 6. VI. AS BETWEEN LANDLORD AND TENANT. 50. As applied where the relation of landlord and tenant exists. If A, being in possession of land, deliver the possession to B upon his request, and upon his promise to re- turn it, with or without rent, at a specified time or at the will of A, B cannot be allowed, while still retaining the possession, to dispute A's title ; but it is otherwise if B is in posses- sion and takes a lease from A, since the latter parts with nothing, and the former has ob- tained nothing by the transaction. Eranklia v. Merida, 35 Cal. 558. 51. When tenant not estopped. The bare possession by the tenant of the demised land at the time the lease is given is sufficient to take the case out of the operation of the general rule, that the tenant cannot, before surrendering possession, dispute the landlord's title. (Tewksbury v. Magraff, 38 Cal. 237, affirmed.) Id. 52. As between landlord and tenant, the estoppel is designed as a shield for the protec- tion of the former, but not as a sword for the- destruction of the latter. Id. 53. Of restitution under. Where a plaintiff has been restored, under a writ of restitution, to the possession of the demanded premises in an action of ejectment, the defend- ant so evicted is ever after estopped at law to deny that plaintiff was rightfully restored, and that his own prior possession was wrong- ful. Mann v. Rogers, 35 Cal. 316. EVIDENCE. 145 t See Generally, Appeal, 401 ; Contract, 73 ; Corporations', 18 ; Equity, 5 ; Execution, 43 ; Forcible Entry and Detainer, 72 ; Land and Land Titles, -295 ; Pleading, 166-170 ; Probate Law and Practice, 28 ; Writ of Restitution, 3. I. H. DX IV. v.. VI. vn. vm. xx. x. XI. xn. xm. EVIDENCE. In general. BURDEN OF PROOF. i judicial notice. Experts. Contents of writing how proved. Agreement in writing deemed the whole. 1 . Generally. 2. Parol evidence to explain. Evidence to correspond with alle- gations. Competent evidence. Declarations and admissions. Documentary evidence. 1. When admissible. 2. When not. Parol evidence. 1 . When admissible. 2. When not. Weight of evidence. Effect of evidence. I. EST GENERAL. 1. Cumulative evidence. Evidence is cumulative if it supports evidence introduced on the trial to prove facts of secondary import- ance, the tendency of which was to prove the facts in issue. Stoakes v. Monroe, 36 CaL 383. 2. General rules of evidence. The general rules of evidence are the same in both criminal and civil cases. People v. Murphy, 45 Cal. 137. 3. Congress has no constitutional authority to legislate concerning the rules of evidence administered in the Courts of the State, nor to affix conditions or limitations upon which those rules are to be applied and enforced. Duffy v. Hobson, 40 Cal. 240. II. BURDEN OF PROOF. 4. What evidence to be produced. The best evidence of which the case, in its na- ture, is susceptible, must always be produced. Garwood v. Hastings, 38 Cal. 217. 5. Matters of mere inducement do not re- quire strict proof. Porter v. Gamba, 43 Cal. 105. 6. Adultery. The fact that a married man enters a house of prostitution in the evening and remains all night raises a strong presump- CAL. DIG. SUP. 10. tion of adulterous intercourse, and qasts the burden on the party who does so, of showing that he is innocent. Evans v. Evans, 41 Cal. 103. 7. The act of adultery, like any other fact, may be established by circumstantial proof. Evans v. Evans, 41 Cal. 103. 8. Lost execution, proof of. After the lapse of sixteen years, during the greater por- tion of which the purchaser at a sheriff's sale, under a judgment and alleged execution, has been in the possession of the premises sold, dur- ing which time the defendant in the judgment does itot appear to have made any claim to the premises adverse to the purchaser, a Court will be justified, as against a naked trespasser, in not requiring the very strictest proof of the issuing of an execution. Russell v. Harris, 38 Cal. 426. 9 . When it is shown that there was a judg- ment, of a proper date, upon which an execu- tion might have issued — a charge by the Clerk for issuing an execution, a sale by the sheriff, and a certificate of sale purporting to have been made in pursuance of an execution — and after the expiration of six months from the sale, the sheriff has executed a deed in which the judgment and execution are recited, are facts sufficient to raise the presumption of the existence of an execution after the lapse of six- teen years, although none could be found among the records of the Court. Id. 10. Malice. In actions for a malicious prosecution, actual malice must be proved as a fact to the jury. Levy v. Brannan, 39 Cal. 485. 11. Medical services. A physician em- ployed to attend a patient is the best and the proper judge of the necessity of frequent visits, and in the absence of proof to the con- trary, the Court will presume that all the pro- fessional visits were deemed necessary and were properly made. Todd v. . Myers, 40 Cal. 355- 12. Railroad turnout a nuisance. When a company is authorized by law to con- struct a railroad in a public street, and neces- sary switches and turnouts, and the road is built having switches and turnouts; the pre- sumption of law is that the switches and turnouts are necessary, and one complaining that they are a nuisance has cast upon him the burden of proving that they are so'. Car- son v. Central R. R. Co., 35 Cal. 325. < 13. Damage sustained by railroad turnout. Where a. street railroad company is _ authorized by law to build necessary switches and turnouts, and constructs them, a plaintiff who sues to abate a turnout as a nuisance cannot introduce evidence of the dam- age he has sustained, until he has first intro- duced evidence tending to show that the switch and turnout are not necessary. Id. 14. Offset. Where a claim which has been 146 EVIDENCE. assigned to a party defendant in an action, and paid by him, is offered in evidence as an offset against the 'demands of the plaintiff, the bur- den of the proof as to settlement of the claim by plaintiff rests upon the plaintiff, and the defendant has a right to have the credibility of the testimony upon the point submitted to the jury. Saxton v. Kneeland, 45 Cal. 116. 15. Holder of promissory note. The presumption is that the indorsee of a promis- sory note is a holder for value, and the burden of proof is on the party denying that it is so held. Poorman v. Mills, 35 Cal. 1 18. 16. Consideration. In such ca»^, the burden of proving -what the true consideration of the note was, is cast on the party claiming under the judgment. Bond v. Davenport, 44 Cal. 482. V 17. In suit to recover money due on contract. In an action to recover money, an allegation in the complaint of the precise day the money became due under the contract is not a material one, and the plaintiff may prove an indebtedness at the time of the in- stitution of the suit. Wetmore r. San Fran- cisco, 44 Cal. 294. 18. Garnishee. To justify a garnishee in the attachment suit for the debt of a partner, in paying any debts, due by him to the part- nership, to the creditors of the partnership, after the notice of the garnishment, the burden of proof is on him to show that the partnership debts would exhaust the entire amount of partnership property and assets. Dissenting opinion of Crocker, J. Robinson v. Tevis, 38 Cal. 611. 19. To enable the plaintiff in the attach- ment to recover, the burden is on him to show that there would be a surplus of funds after the payment of all the partnership debts. Per Sawyer, C. J. Id. 20. Under general denial in answer. In an action to recover money due, the de- fendant, under an answer containing a general denial, may prove payment, or that the plain- tiff had transferred the demand to another person. Wetmore v. San Francisco, 44 Cal. 294. See Common Carrier, 9 ; Corporations, 84 ; Iiand and Land Titles, 8 ; Malicious Prosecu- tion, 9, 10 ; Mortgage, 16 ; Negligence, 30, 32 ; New Trial, 16 ; Quieting Title, 2 ; Right of Way, 2. IH. JUDICIAL NOTICE. 21. Public Acts. A Legislative Act by which a city is incorporated, is a Public Act of which courts are bound to take judicial no- tice. People v. Potter, 35 Cal. 1 10. 22. Terms of Court. This Court will take judicial notice of the regular terms of the several District Courts, as prescribed by stat- ute, and of the contiguity of the several coun- ties composing the Judicial Districts, but not Of the distances and facilities for communica- tion between the county seats of the counties composing such districts. Boggs v. Clark, 37 Cal. 236. 23. Official signatures. Courts will take judicial notice of the officers of a county, and of the genuineness of their official signatures, and of the genuineness of the, official signa- tures of such deputies as the law authorizes them to appoint. Himmelmann v. Hoadley, 44 Cal. 213. 1 24. Geographical divisions. The Court will take judicial notice that the " Potrero," in the year 1850, was separated from the City of San Francisco, as it then was, by Mission creek, and that it is now a portion of the City of San Francisco, divided in lots, blocks and streets. Brumagin v. Bradshaw, 39 Cal. 24. 25. Exclusion of remittitur. If the Court excludes a remittitur as evidence, on the ground that it will take judicial notice of it, the presumption is that it did take judicial no- tice of it. Gambert v. Hart, 44 Cal. 542. See Courts, 14 ; Libel, 5 ; Municipal Corpo- rations, 5. IV. EXPERTS. 26. Abatement of nuisance. In an ac- tion to abate a nuisance caused by the erection of a dam, and the consequent overflow of land by back-water, the evidence of an expert as to the effect of an obstruction in causing the backwater is admissible. Grigsby v. Clear L. W. Co., 40 Cal. 396. 27. Evidence of experts. When an ex- pert is called by one of the parties to an action, his evidence should be received with great caution by the jury, and should never be al- lowed except upon subjects which require un- usual scientific attainments or peculiar skill. Id. 28. Mode of proving value of ditch. The ordinary and proper mode of proving the value of a water ditch is by showing its ca- pacity, the market value of water in the vicin- ity, and the probable duration of the demand. Clark v. WiUett, 35 Cal. 534. 29. In such case, as the cause of the sett- ling and cracking of the earth at the surface is matter of opinion rather than direct and pos- itive testimony, the proper mode of proof is to take the opinions of witnesses who have exam- ined the premises, and who are qualified by learning, observation, and experience to judge , intelligently of the cause. Id. V. CONTENTS OF WRITING, HOW PROVED. 30. By secondary evidence. Secondary evidence of the contents of a written instru- ment may be given, when the party offering it EVIDENCE. 147 is not entitled to the custody of the original, and the opposite party to whose custody it rightfully belongs, upon being notified to pro- duce it, disclaims all knowledge of it. Jones v. Jones, 38 Cal. 584. 31. To authorize certified copies of record- ed instruments' to be read in evidence, it must be shown that the originals are not under the control of the party, unless the proof of that fact be waived by the adverse party. Mayo v. Mazeau, 38 Cal. 442. 32. Waiver of introductory proof. If the Objection to the admission of a certified copy of a duly recorded instrument in proof be that the instrument is " not duly certified and proved," it will be held to be a waiver of the objection that the original waB not produced, or not shown to be under the control of the party offering the evidence. Id. 33. It is well settled that certified copies of instruments duly recorded may be read in evidence without proof of the execution of the original. Id. 34. Alcaldes' records of grants, etc. Certified copies of instruments found in the books of records of deeds, etc., kept by Alcal- des, and which have been transferred to the custody of County Recorders, are admissible in evidence under the same circumstances as are certified copies of records made by the Recorders themselves. Garwood v. Hastings, 38 Cal. 216. 35 . Certified copies of instruments recorded in Book "K" of Deeds, in the office of the Recorder for the City and County of San Fran- cisco; are admissible in evidence, without proof of the execution of the originals. Id. 36. Certified copy of recorded contract as evidence. If, at the time of the sale of land, the grantor executes to the grantee, and acknowledges so as to entitle it to record, an instrument assigning to the grantee all moneys due or to grow due on account of sales or con- tracts of sales made by the grantor of portions of the land, and the instrument is recorded, a certified copy of it is admissible in evidence in an action in relation to an enforcement of the contract between the grantee and one who had made a contract of sale with the grantor. Moss v. Atkinson, 44 Cal. 3. 37. Verdict of Coroner's jury. Show- ing the original verdict of a. Coroner's jury to a witness in a criminal case, and asking the witness if he had signed the verdict, is not " an effort to prove the contents of a written record by paitol." People v. Donovan, 43 Cal. 162. 38. Parol evidence of contents of a deed. Before parol evidence of the contents of a deed is admissible, it must be shown to have been lost or destroyed. Poorman v. Miller, 44 Cal. 269. 39. Evidence of oontents of a deed. When a deed is given of a tract of land, with a reservation of a certain parcel of land within the tract, which had been before con- veyed by the grantor to a third party, the boundaries of the reserved tract cannot be proved by a description contained in a deed of a later date from the same grantor to the same grantee, even if given in l^eu of the former deed. Id. 40. Such former deed is the best evidence of its contents, but if lost or destroyed, parol evidence of its contents is admissible. Id. 41. In such case the declarations of the grantor and grantee in the later deed, that it was made in lieu of a former deed of the same land, are not admissible in evidence to lay the foundation for the admission of the later deed in evidence for the purpose of fixing the bound- aries of the land conveyed in the former deed^ 42. Parol testimony is not admissible to vary the terms of a decree of divorce, or change the rights of the parties thereunder. Wilson v. Wilson, 45 Cal. 399. VI. AGREEMENT IN WRITING DEEMED THE WHOLE. 1 . Generally. 43. Conveyances. The operative words of conveyance and the covenants in a deed cannot be contradicted by parol testimony, but the acknowledgment of payment of the con- sideration, and of its amount, may be contra- dicted. Rhine v. Ellen, 36 Cal. 362. 44. Deeds. The testimony of a witness which tends to contradict or limit the opera- tion of deeds in evidence, one of which was executed to and another by the witness, should be excluded, when objected to on that ground. Judson v. Molloy, 40 Cal. 299. 45. Written contract. When a stranger to a joint written contract, entered into by several persons, relies on it as evidence of a partnership between the persons who signed it, in reference to the work the parties undertook by. the contract to perform, such parties may show, by parol evidence, the true relations between themselves, even though such evi- dence vary or contradict its terms. Smith v. Moynihan, 44 Cal. 53. 46. The rule that parol evidence cannot be recived to vary or contradict a written con- tract, applies only to Controversies between parties to the contract, their representatives, and those claiming under them, and has no ap- plication to a controversy to which a stranger is a party. Id. 47. Contract expressed in deed. When a negotiation for the purchase and sale of real estate culminates in a deed from the vendor to the vendee, reciting the whole con- sideration agreed to be paid, and, in a mort- gage from the vendee to the vendor, on the 148 EVIDENCE. land conveyed, to secure the purchase money, the vendee will not be "permitted to show by parol that the vendor also agreed in the same contract to sell and convey other lands not in- cluded in the deed. Ward v. McNaughton, 43 Cal. 159. 2. Parol evidence to explain. 48. Contract. Third parties may show that the respective parties to the contract are inter- ested in the subject-matter thereof in a different manner, capacity or extent than is indicated by the face of the contract, and may prove who are the real principals in the transactions to which it relates, and their respective liabili- ties. Ellis v. Crawford, 39 Cal. 523. 49. Memorandum book. An. entry in a memorandum book is subject to explanation by the party making it, to the same extent as it would have been had the words been spoken instead of being written. Rice v. Heath, 39 Cal. 609. 50. Deed as security. In California, parol evidence is admissible at law, as well as in equity, to show that a deed, absolute on its face, was given as security for money, and is, in fact, a mortgage. Jackson v. Lodge, 36 Cal. 28. Raynor v. Lyons, 37 Cal. 452. 51. Written contract. The general rule that parol testimony is inadmissible to contra- dict, add to, or vary a written contract, does not exclude proof by parol testimony of fraud or' mistake in the execution of the contract, when a, reformation of the instrument is sought. Murray v. Dake, 46 Cal. 644. 52. Evidence explanatory of deed. When one of the parties introduces in evidence a deed to which the other is a stranger, the other party may show the purpose for which the deed "was given. But if the deed as to the question at issue has the same effect as though it was a deed in partition, it is immaterial to show whether or not it was intended to be a deed of partition, and no injury results from not being allowed to show that it was such in fact. Satterlee v. Bliss, 36 Cal. 489. 53. Deed as evidence. When a deed, admissible in evidence, refers to another deed as containing a description of the premises conveyed, such other deed is also admissible in evidence as explanatory of the first. Id. 54. ^o explain calls of deed. In con- struing doubtful clauses in a deed, it is import- ant to ascertain all the attendant circum- stances in order to arrive at the intention of the parties', and whilst it is not competent to alter, enlarge, or vary the instrument by parol, oral' testimony is admissible to explain its calls by applying its descriptive portions to the natural objects called for. Altschul v. S. F. C. P. H. A., 43 Cal. 173. 55. Explanation of doubtful call in deed not contradiction of it. In an action to quiet title to a lot in San Francisco, where it appeared that plaintiff claimed under a deed, which described a lot as " commencing at the northeasterly corner of Pacific street and Lone Mountain Cemetery Avenue, as such corner may be established by the city hereafter, whether known as such street or not" : held, that parol evidence showing that there was an open space, known as Cemetery Avenue, which if extended, would have crossed Pacific street at the southwesterly corner of the lot in con- troversy, and that the grantor pointed out the lot in controversy as the one conveyed, did not contradict the deed, and was admissible. Altschul v. S. F. C. P. H. A;, 43 Cal. 171. 56. Consideration named in deed. In a personal action brought by the grantor to recover the purchase money of real estate con- veyed by a deed by the plaintiff to defendant, where the action is not founded on an express promise or covenant to pay contained in the deed, the defendant, for the purpose of defeat- ing the recovery, may plead and show by parol evidence that the consideration named in the deed was not to be paid at all, or that the con- sideration named in the deed was not the real consideration to be paid. The defendant may prove the real consideration, as between him and the plaintiff, upon which the conveyance was made. Rhine v. Ellen, 36 Cal. 362. 57. Where a deed to the wife recites a val- uable consideration, not stated to be the separ- ate property of the wife, the presumption of law is, that it is paid out of the common property ; but this presumption may be rebut- ted by parol proof that it was paid out of the, separate estate of the wife. Ingersoll v. True- body, 40 Cal. 603. See Wills, 1. VII. EVIDENCE TO CORRESPOND WITH ALLEGATIONS. 58. Evidence to correspond with alle- gations. Where a party in an action to set aside a sale as fraudulent, pleads that he was indebted to the person to whom the sale was made, in consideration of which he delivered the property in litigation to that person, evi- dence that the indebtedness was to the wife of the person designated is inadmissible. Tevis v. Hicks, 41 Cal. 123. 59. Evidence must be pertinent to the issues. The appellate Court will not presume that the Court below permitted evidence to be introduced on the trial to rebut facts admitted by the answer, nor will it presume that any evidence was received except such as was perti- nent to the issues. Gregory v. Nelson, 41 Cal. 278. See Ante, 17; Limitations, 33; Malicious Prosecution, 13. EVIDENCE. 149 Vin. COMPETENT EVIDENCE. 60. Abandonment. Mere lapse of time does not constitute an abandonment, but it may be given in evidence for the purpose of ascertaining the intention of the parties. Moon v. Rollins, 36 Cal. 333. 61. Abandonment of mining claim. As to support the plea of abandonment it must appear from the evidence that there was a leaving of the claim, without any intention of returning or making any further use of it, so it is competent for the opposite party to 'prove, in rebuttal, any acts explanatory of the leaving which tend to show that it was not accompanied with an intention not to return. Bell v. Bedrock T. & M. Co., 36 Cal. 214. 62. Evidence tending to rebut aban- . donment. Evidence tending to show that a party who, upon proper notification to him as the owner and occupant of certain lots in an incorporated city, had caused the streets front- ing on the same to be graded as required by" such notification, is pertinent and material in rebuttal of a claim that he had abandoned said lots, as tending to show his continued acts of ownership and control ' of the same ; also as tending to illustrate the character and bona fides of his possession of said lots. Bliss v. Ellsworth, 36 Cal. 310. 63. Character of house. On the trial of the issue whether a certain house was, at a given date, a hotel, the publication by its pro- prietors of an advertisement to the public of the house as such, in the newspapers of the vicinage, at and before said date, is competent evidence to establish the public character of the house. Stringer v. Davis, 35 Cal. 25. 64. Of ownership of goods. Where I, who was conducting a stable business, gave to the assessor, for the purposes of assessment for taxes, a list of the personal property used in said business, which was conducted in a build- ing owned by S, as the property of the latter, and thereafter S appeared before the Board of Equalization to procure a reduction of said assessment: held, in an action against S for goods delivered and used in said stable busi- ness, and in which action the main issue was whether said goods had been sold to I or S, that said assessment was competent evidence as tending to prove that said goods were sold to S. ' Arnold v. Skaggs, 35 Cal. 684. 65. Judgment roll. In an action against an administrator de bonis non, the judgment roll in a former suit by the same plaintiff, for the. same cause of action, against a prior ad- ministrator, is competent and conclusive evi- dence of the institution of said former suit. Geary v. Simmons, 39 Cal. 224., 66. Title. Where defendant alleges that he owns the ground in dispute, or denies that the plaintiff is the owner, without alleging title in himself, it is competent to him to over- come the plaintiff's evidence of title, by show- ing title in himself. Stone v. Bum pus, 40 Cal. 428. 67 . Customs. Evidence that it was the custom of the inhabitants of a locality to al- low boys to play in the street, does not tend to prove that such use of the street is lawful. Schierhold v. N. B. & M. R. R. Co., 40 Cal. 447- 68. Receipt of person not a party. If A executes a mortgage to B, to secure some of A's creditors, and B seeks to enforce the mort- gage, and a contest arises between him and other creditors of A, who claim that the mort- gage is fraudulent, B may, for the purpose of showing that one of the persons, for whose benefit the mortgage was given, paid money to a third person for A's benefit, intrqduce in evi- dence the receipt from such third person to the one paying the money. The fact that A owed the person to whom the money was paid must, however, be shown by other evidence. Locke v. Porter G. & S. M. Co., 41 Cal. 305. 69. Of a continued contract of hiring. When an employer changes his place of resi- dence, and engages in a new business, and a servant formerly in his employ at a fixed price is paid up, and then goes into his employ in the new business, and there is a conflict of evi- dence as to whether the servant had continued to perform service under the old contract, the Court should instruct the jury that the above state of facts was not evidence of a continuing contract of hiring at the former rate of wages. Reed v. Swift, 45 Cal. 245. 70. Title to land. Evidence of the pecu- niary standing and ability of a person is com- petent, on an issue as to whether he is in equity the owner of the land, the title to which has been taken in his name. Hobbsa. Duff, 43 Cal. 485- 71. Certificate of Receiver of United States lands. A certificate of the Receiver of a Land Office of the United States, that a person therein named has made full payment for a tract of land therein described, under a pre-emption entry, is evidence that the person to wBom it is given has taken the necessary steps towards pre-empting the land, and has paid for the same, and establishes in such per- son a right to the possession of the land, as against one who shows no title. McDonald v. Edmonds, 44 Cal. 328. 72. Possession of land. The mere fact of cutting grass upon land in the previous pos- session of another, is not evidence of actual possession of the land being in the one cutting it, in an action by the former occupant for the grass or hay so cut. Page v. Eowler, 37 Cal. 100. 73. Cause of injury to water ditch. Plaintiffs brought action to enjoin the defend- ants from the further mining, tunneling, and drifting of their mining claims beneath the surface of the earth across and on top of which 150 EVIDENCE. plaintiffs' ditch extended, and which had al- ready somewhat settled and the earth beneath it become cracked, on the ground that said ditch, the right of way for which was older than the mining right of the defendants, would be irreparably injured by reason of the further settling, cracking, and caving of said earth, which, as was alleged, would be caused there- by. The defendants joined issue on said last point. The plaintiffs offered to prove at the trial, in support of their side of the issue, that at a point in the vicinity, but. below defend- ants' claims, where, as was alleged, similar conditions to those of defendants' claims and contemplated mining operations existed, the earth had been caused to settle,; crack, and cave. The evidence was excluded on defend- ants' objection thereto as irrelevant and incom- petent : held, that the evidence was properly excluded. Clark v. Willett, 35 Cal. 534. 74. Implied promise of corporation. In an action against a corporation to recover on a quantum meruit for services performed, the sit- uation of the parties at the time, and the rela- tion, if any, in which they stood, of a business character or otherwise, are relevant and mate- rial circumstances ; and the exclusion of com- petent testimony, tending to show such circum- stances, is error. Barstow v. City R. R. Co., 42 Cal. 465. 75. Malicious arrest. In action by hus- band and wife for the illegal and malicious ar- rest of the latter by the defendant, for a sup- posed criminal offense committed upon his prop- erty, and of the commission of which by the wife there is circumstantial evidence only, it is competent for the defendant to prove threats and ill will on the part of the husband against him, as tending to prove that the wife com- mitted the offense for which the defendant ar- rested her, and to rebut the charge of malice on his part. Lyon v. Hancock, 35 Cal. 372. 76. Of sum due on a mortgage. If an answer, in an action to foreclose a mortgage, denies that there is money due on the debt the mortgage was given to secure, the mortgage is competent evidence for the plaintiff to prove the sum due. Whitmore v. Reynolds, 4&I Cal. 380. 77. To reduce sum due on mortgage. If two persons buy property together, and one furnishes all the money, and the other, to se- cure him for one half the money advanced for such other, mortgages other property, and the two then agree, in writing, that the mortgage is given for money advanced in the purchase, and that in the settlement of accounts the mortgagor shall be allowed reasonable com- pensation for services as an attorney which he may render in perfecting the title to the prop- erty purchased, the value of the services ren- dered as attorney under the contract may be proved for the purpose of reducing the amount due on the mortgage. Id. 78. Declarations in a will as evidence. Declarations made by the testator in his will are competent evidenoe after his death, tend- ing to prove his marriage and the legitimacy of his children, in a case where the persons so declared his wife and children are the devisees. Pearson v. Pearson, 46 Cal. 610. , , 79. Such declarations being competent ev- idence, and admitted without objection, in the absence of contradictory evidence, prove such marriage and legitimacy, and are not to be disregarded because the wife and witnesses of the marriage are living, who might have been called. Id. See San Francisco, 4-6. IX. DECLARATIONS AND ADMISSIONS. 80. Declarations of agent. The declar- ations of any agent are not admissible in ev- idence against his principal, until the fact of his agency is first proven. Grigsby v. Clear Lake Water Co., 40 Cal. 396. 81. If the relation of principal and agent has ceased, and parties dealing with the agent are notified of it, they cannot, in an action against the principal, for goods afterwards de- livered to the agent, introduce in evidence the agent's declarations that the agency had been renewed, or that the principal was to pay for the goods. Van Duzen v. Star Q. M. Co., 36 Cal. 571. 82. Of wife, acting as agent, when not part of res gestae, hearsay evidence. In an action by Bornheimer against Baldwin, for an undivided interest in land, alleged to have been purchased on joint account, and partly with money borrowed by Mrs. Bornheimer and handed to her by Baldwin : held, that the statements of Mrs. Bornheimer to a third per- son, to the effect that she "was borrowing ' money to pay Baldwin, were hearsay, and their admission against defendant's objections (though called out by questions of the Court) -,- . was error. Bornheimer v. Baldwin, 42 Cal. 2 7- 83. Of grantor. The declaration of the grantor, in a conveyance charged to be fraud- ulent, made subsequent to its execution, and while the grantee was in the possession of the property conveyed, and out of his presence, is not admissible in evidence to establish fraud on the part of the grantee or his vendee. Spana- gel v. Dellinger, 38 Cal. 279. 84. Evidence of acts and declarations of one in possession. The party claiming title by virtue of five years' adverse possession may give in evidence his acts and declarations ,j! >' made or done at any time while in possession, for the purpose of showing the character in which he claimed. Cannon v. Stockmon, 36 Cal. 535. 85. Declarations of the vendor of personal property, made after the sale, are not admis- sible in evidence for the purpose of showing a EVIDENCE. 151 fraudulent intent on his part in making the sale. Such declarations made before the sale are admissible. Jones v. Morse, 36 Oal. 205. 86. Declarations of a party are always ad- missible against himself, or those claiming un- der him, by conveyance made subsequent to the making of the declarations, -without refer- ence to the time when, or place where, they were made. McFadden v. Wallace, 38 Cal. 87 . In determining whether title ever vest- ed under the Van Ness Ordinance, on a stale claim, all the acts and declarations, wherever made, are admissible against the party claim- ing, for the purpose of ascertaining what he did really do to bring himself within the pur- view of the ordinance. Id. 88. Declarations of deceased. Declar- ations of a person, since deceased, not against, but in support of his own interest, are not admissible in 'evidence in favor of those who claim rights which the declarations would maintain. Poorman v. Miller, 44 Cal. 269. 89. Admissions of partner. A party who sues tw© persons as partners, one of whom . answers, denying the partnership, cannot, to prove the partnership as against the defendant denying it, introduce in evidence an answer of the defendant admitting the partnership, filed in another case between the two defendants. Etchemende v. Stearns, 44 Cal. 582. 90. Statements when part of res ges- tae. In an action by the creditor of the hus- band to set aside a deed of gift made by a third person to the wife, on the ground that the land was purchased with the husband's money, and that the deed to the wife was a fraud, evidence of conversations at the time of the creditor sale, between the grantor and one who nego- tiated the sale, is admissible, as a part of the res gestas. Tevis v. Hicks, 41 Cal. 123. 91. In such action, evidence of a sale of land, held by an agent of the debtor in trust for him, is not admissible unless averred in the complaint. Id. 92. The admissibility of such testimony does not depend on the question whether the conversation was brought home to the husband, as it does not affect him unless the negotiator was his agent. Id. 93. In an action to recover damages for an assault and battery, the language of the de- fendant, while committing the assault, is admissible in evidence for the purpose of char- acterizing the act, as bearing on the question of malice: Macdougall v. Maguire, 35 Cal. 274. 94. Declarations of wife. The declara- tions of a wife made in the presence of her husband, and not denied by him in a conver- sation relating to her separate property, are competent evidence in an action by the devisees of the husband, involving her title to the property. Ingersol v. Truebody, 40 Cal. 603. 95. Declarations of agent of corpora- tion. If the President of a mining corporation is selected on behalf of his company to point out to, others the mining ground claimed by the corporation, and in pointing it out states that certain ground in view is not claimed by the corporation, his declarations may be after- wards offered in evidence against the corpor- ation. Green v. Ophir C. S. & G. M. Co., 45 Cal. 522. 96. Conversation -with Directors of a corporation. In an action by the Superin- tendent of a railroad company brought against the company to recover the value of his serv- ices as Superintendent, if the company claim that his salary had been fixed at a stipulated sum, conversations between the plaintiff and Directors of the company are admissible in evidence to show that he dissented from the amount of salary proposed for him by the Directors, and that he did not consider his salary as fixed at a stipulated sum. Bee v. S. P. & H. B. R. P. Co., 46 Cal. 249. 97. Declarations of the President f a corporation. The declarations of the Presi- dent of a corporation may be received in evi- dence, to show that at the time the corporation purchased land it had actual notice of a mort- gage on the same. Christy v. Dana, 42 Cal. 175. 98. Confessions or admissions. — Di- vorce cases. In an action to obtain a di- vorce, the confessions or admissions of the defendant can be given in evidence. Evans v. Evans, 41 Cal. 103. 99. The eighth section of the Act of 1851, concerning divorces, does not prohibit evidence of such admissions from being received in evi- dence. It only prohibits a divorce from being granted on admissions of the defendant with- out any other proofs. Id. See Pleading, 132. X. DOCUMENTARY EVDDENCE. 1. When admissible. 100. Services to corporation by Di- rector By-laws as evidence. In an action byBarstow against the City Railroad Com- pany, to recover on an implied promise for alleged services performed by him, while a Director, in going to New York and negotiat- ing a construction contract for the company, where it appeared that the President told him, previous to going, that he should be compen- sated : held, that a by-law of the company, to the effect that Directors should receive no com- pensation for services as Directors, though traveling expenses might be audited and paid, was relevant testimony for defendant, and its exclusion, was error. Barstow v. City B. K. Co., 42 Cal. 475. 101. Contract referred to in another contract. If, in a contract between the plain- 152 EVIDENCE. tiff and the defendant, upon which an action is brought, reference is made to another con- tract as containing the plan by whiel^ and prices for which the work sued for is to be done, the other contract is admissible in evi- dence for purposes of description, whether or not it was legally executed, or its execution proved. Neuval v. Cowell, 36 Cal. 648. 102. Deed in forcible entry cases. Where in a forcible entry action the plaintiff, after 1 introducing evidence tending to show an actual possession of the demanded premises by " one C up to the time of the alleged forcible entry, introduced in evidence, against the de- fendant's objection thereto, a deed to the premises from C to plaintiff, dated one month prior to said entry, for the avowed purpose of showing that at the time of said entry the ap- parent possession of the premises by C was the possession of plaintiff ; held, first, that there was no error in admitting the deed ; and sec- ond, that the fact sought to be established by the deed might properly have been proven by parol evidence. Morgan v. Higgins, 37 Cal. 59. 103. Deed when admissible. A deed under which a party claims title, is admissible in evidence, unless it is void on its face, or it 1 appears therefrom that it does not relate to the lands in controversy. Yates v. Smith, 40 Cal. 662. 104. Sheriff's deed. If one party in- troduces evidence showing that a redemptioner redeemed from a Sheriff's sale, the other party may then introduce the Sheriff's deed to the redemptioner, without also showing that the papers required by the statute to entitle one to - redeem were produced. Bagley v. Ward, 37 Cal. 121. 105. Judgment and findings in a for- mer action. The judgment and findings in a former action are inadmissible in evidence in a second action, unless accompanied by the judgment roll. Mason v. Wolfe, 40 Cal. 246. 106. Evidence of prior suit. In an action against an administrator de bonis non, the judgment roll in a former Huit by the same plaintiff, for the same cause of action, against a prior, administrator, is competent and con- clusive evidence of the institution of said for- mer suit. Greary v. Simmons, 39 Cal. 224. 107. Former judgment. If , on the case made by the complaint, the defendant is not called upon, or has no opportunity to plead a former judgment as an estoppel, it may be received in evidence as matter of estoppel, without having been pleaded. Jackson v. Lodge, 36 Cal. 28. 108. The point, whether judgments against a corporation are admissible in evi- dence without putting in the entire judgment roll, not decided. Larrabee v. Baldwin, 35 Cal. 1551 109. When offered in evidence. When all the necessary papers to constitute the judgment roll in a foreclosure action ex- isted, but were never attached together in the form of a roll : held, that they were admissi- ble in evidence in support of a title to prop- erty acquired under a sale thereof as directed by the judgment therein. Sharp v. Lumley, 34 Cal. 611. 110. Letters of bailee. The purchaser of property from a bailee stands in privity with the latter, and the letters of the bailee written to his bailor, or other admissions of his while in possession, going to show how he held the property, are proper evidence against the bailee, or his transferee. Robinson v. Haas, 40 Cal. 474. 111. Promissory note. As the change from a blank to a full indorsement of a note is formal merely, it need not be made ; and so a note indorsed in blank is admissible in evi- dence in support of an allegation that the note was indorsed to the plaintiff by the payee. Poorman v. Mills, 35 Cal. n8. 112. Proof of the indorsement of a prom- issory note is necessary to entitle it to admis- sion in evidence, unless waived when the in- dorsement is offered in evidence. Id. 113. Miners' records. On the trial of an action to quiet the title to a mining claim, the plaintiffs' title depended upon maintaining their allegation, that by the custom prevailing among the miners of the district embracing their claims, the mode of locating claims there- in was for the locators to measure off and designate by stakes on the ground their boun- daries, to enter upon the occupation of the same, and to cause a record thereof to be made of such location, in the County Recorder's of- fice : held, that the contents of a book kept in said Recorder's office, consisting of the records of numbers of such locations — among which, and the first in the order of their registration, was the record of plaintiffs' claim — was prop- erly admitted in evidence as tending to prove such allegation. Pralus v. Pacific (5. & S. M. Co., 35 Cal. 30. 114. Sworn statement of insured. The sworn statement of the insured party to a contract of insurance, as to the nature and ex- tent of his losses suffered by fire, and the cer- tificate thereto of the Justice of the Peace, made according to the requirements of such contracts, constitute- documentary evidence, within the meaning of the one hundred and seventy-sixth section of the Practice Act ; and on the trial of an action by the insured to re- cover for a breach of the contract by the insu- rer, were properly allowed to be taken by the jury on their retirement to deliberate upon their verdict. Clark v. Phcenix Ins. Co., 36 Cal. 168. 115. Allegations in a former suit. Mate- rial allegations of the complaint in a suit against a prior administrator must b,e taken as admissions of the truth of the matters so al- leged against the same plaintiff in a subsequent action against the administrator de bonis non EVIDENCE. 153 of the same estate, for the same cause of action, and will be binding and conclusive upon him in the absence of any evidence tending to estab- lish that such allegations were made by mis- take, or under a misapprehension of the real facts. Geary u. Simmons, 39 Cal 224. 116. Recorded instrument. If an in- strument be duly recorded, it furnishes suffic- ient prima facie evidence that it was duly ex- ecuted. Mayo v., Mazeaux, 38 Cal. 442. See Bailment, 4; Ejectment, 116, 148. 2. When not admissible. 117. Pre-emption declaration. S sued R in ejectment, and proved a prima facie prior possession ; in order to show that S had abandoned the premises for others, R offered a pre-emption declaration by S, made under the Act 1 of April 22d, 1852, and the evidence was admitted : held, that the admission was erro- neous. Sweeney v. Reilly, 42 Cal. 401. 118. Affidavits not admissible in evi- dence. On tho trial of an action in which the plaintiff sues two defendants as partners, and one of them denies the partnership, the .plaintiff cannot, for the purpose of proving the partnership, introduce in evidence affidavits of the defendant who admits the partnership, and of other persons made for the purpose of dis- solving an attachment in another action be- tween the two defendants, it not appearing but what the persons who made the affidavits were living and within the jurisdiction of the Court, and competent witnesses. Etchmende v. Stearns, 44 Cal. 582. 119. Answer superseded by amend- ment. r If an answer has been superseded by an amended answer, the answer thus super- seded is not admissible in evidence as an admis- sion on the trial. Mecham v. McKay, 37 Cal. 154. 120. Award of arbitrators. An award is not admissible in evidence unless final and conclusive upon matters submitted. Jacob v. Ketcham, 37 Cal. 197. 121. Foreign judgment. A foreign judg- ment is not admissible in evidence unless ac- companied by a record, in some form recog- nized by law, of the proceedings on which it was based. Young v. Rosenbaum, 39 Cal. 646. 122. Illegal certificate. A certificate issued by a Register of the United States Land Office, which was unauthorized by statute, or by regulation of the Land Department of the United States, is inadmissible in evidence in an action involving title to land. Devlin, 40 Cal. 358. 123. Patent for land. A patent for land, given to the plaintiff after he has com- menced suit in ejectment, is not admissible in evidence to show his right to recover. Hes- tresu. Brennan, 37 Cal. 385. 124. Libelous publications. In an action for a libel, the defendant cannot introduce in evidence libelous articles, published by other persons, before the publication of the alleged libelous article, whether they refer to the same transactions spoken of in the article published by the defendant, or to other matters. Wilson v. Fitch, 41 Cal. 363. See Corporations, 49 ; Ejectment, 115. XI. PAROL EVIDENCE. 1 . When admissible. 125. Abandonment of mining claim. Evidence of the abandonment of a mining claim by a party suing to recover the same is admissible, without a special plea thereof, un- der a denial of title in the plaintiff, pleaded by defendant. Bell v. Red Rock T. & M. Co., 36 Cal 214. 126. To an action for the possession of a mining claim, the defendant pleaded in de- fense, first, a, denial of the plaintiffs' title ; and, second, a forfeiture of the same by the plaintiffs, under the mining rules and regula- tions of the district embracing the claim. At the trial, the defendant introduced testimony tending to prove that about two years before suit brought, the plaintiffs, or their grantors, who prior thereto had possessed and worked said claim, removed therefrom all tools and im- plements of mining, and ever since had ceased in any manner to work upon or occupy the same. The plaintiffs, in rebuttal, offered to prove that about nine months before suit brought, one W, on behalf of the defendant, offered to purchase of them said claim, and that they refused to sell. The Court rejected the offered testimony, upon the defendant's ob- jection thereto on the grounds of irrelevancy, and that no authority had been shown in W to act in the premises on behalf of the defend- ant. Held, first, that under the defendant's denial of plaintiffs' title, evidence.of abandon- ment of said claim by plaintiffs was admissi- ble, without special plea thereof ; second, that as said evidence introduced by defendants tended to prove such abandonment, it was equally relevant under both of said defenses ; and third, that as said testimony offered by the plaintiffs tended to disprove said abandonment, the Court erred in rejecting the same. Id. 127 . As to account. It is permissible for a witness to testify to the result of the items of an account, rather than to the items and facts from which the result arises, unless objec- tion is made to this form of testifying. Clark * v. Gridley, 35 Cal. 398. 128. Damages resulting from death. In an action for damages, resulting from the death of a parent and husband, caused by the wrongful act or negligence of the defendant,' evidence as to the business, education, and habits of sobriety and economy of the de- 154 EVIDENCE. ceased is admissible. Taylor v. W. P. K. It. Co., 45 Cal. 323. , 129. Injury to employee from negli- gence of employer. M, while employed as a sub-porter by H, a merchant, was injured by the falling of a hoisting apparatus : held, that evidence that the apparatus had fallen before from a similar cause was admissible to show knowledge of defect on the part of defendant. Malone v. Hawley, 46 Cal. 409. 130. Malice. Pr.oof of the repeating of the words, after suit brought, is admissible to show malice in actions for slander. jSTorris v. Elliot, 39 Cal. 72. 131. In an action where punitive damages are claimed, on the ground of malice, either party is entitled to prove any facts or circum- stances which tend in the slightest degree either to show malice or to rebut the presump- tion of malice. Lyon 1. Hancock, 35 Cal. 372. 132. In such case no fact or circumstance should be exoluded unless the Court is satisfied to a moral certainty that the jury can draw no rational presumption from it. Id. x 133. Negligence. In an action to re- cover the value of buildings destroyed by fire through the negligence of another, evidence as to the cost of new buildings to replace those destroyed is admissible, as furnishing some data for an approximate estimate of the value of the old buildings. Clelahd v. Thornton, 43 Cal. 437. "134. Character of timber. In an action to recover the value of standing timber which has been destroyed by fire, evidence as to the character of the timber is admissible. Id. 135. Nuisance. Evidence tending to show that the nuisance was produced by natural cause, is admissible. Grigsby v. Clear Lake W. Co., 40 Cal. 396. 136. Evidence on quantum meruit com- plaint. Evidence of a special contract to pay a sum certain for services may be received on a complaint upon a quantummeruit, as tending to show the value of the services. Eriermuth v. Eriermuth, 46 Cal. 42. 137. Of service of notice. The service of a notice to take depositions may be proved by oral testimony. Hobbs v. Duff, 43 Cal. 485. 138. Of title to land. When an issue is raised as to whether a person, since deceased, during liis lifetime asserted title to land, evi- dence may be introduced by those claiming under such person, that during his lifetime he performed work on the land. Lick v. Diaz, 44 Cal. 479. 139. Ownership of estate. Evidence that certain persons controlled or superin- tended real estate is admissible for the purpose of showing that such persons in equity own it, although the legal title stands in another. Hobbs v. Duff, 43 Cal. 485. 140. Testimony of deceased witness. In order to entitle the testimony of a witness, since deceased, to be received in evidence, it must be shown that the testimony was given in a case in which the parties to the suit in which it is offered, or their privies, were parties. Poorman v. Miller, 44 Cal. 269. 141. Inferences. When the situation of a witness is such that he probably would have known, or heard of a fact, from the parties themselves, if it had existed, and had never heard of it, it affords some slight ground for the inference that the fact did not exist ; and under the condition of the evidence in this case, such testimony was admissible. McEad- den v. Wallace, 38 Cal. 51. 142. Qf declarations made under oath. A referee was appointed to take and report the testimony in a cause. A witness called before him was first sworn on his voir dire, but the referee did not take down what the witness said in his voir dire: held, that in another action in which the witness was a party, the opposite party might prove by the referee what the witness said on his voir dire. Hobbs v. Duff, 43 Cal. 487. See Lien, 3. 2. When not admissible. 143. As to allegation admitted in an- swer. If the answer in replevin admits the value of the property averred in the com- plaint, evidence should, not be admitted as to its value. Tully v. Harloe, 35 Cal. 302. 144. Controverting admitted facts. Evidence is not admissible to controvert facts admitted by the pleadings. Patterson v. Sharp, 41 Cal. 133. 145. All evidence contrary to the admis- sions of the pleadings should be disregarded the admissions being binding on the party making them. Hall v. Polack, 42 Cal. 219. 146. 'What pleadings party bound by. Although a party is bound by the admissions contained in his. pleadings, yet it is only the admissions in the pleadings upon which he goes to trial. Mecham v. McKay, 37 Cal. 154. 147. Constructive possession. Evi- dence of permission by a lessor to his, lessee to extend his possession beyond the limits of the leased premises, is inadmissible, in order to show constructive possession of the exterior limits in the lessor. Mason v. Wolf, 40 Cal. 246. 148. In order to show such constructive possession in the lessor, it must appear that the lessee entered by virtue of such license. Id. 149. As to boundary of mining claim. In an action to recover damages for a trespass upon the plaintiffs' mining claims, where the defendants own adjoining claims lying west of the plaintiffs' ground, and both parties agree as to the north line of the plaintiffs' claims, EVIDENCE. 155 i and admit that their east and west lines are parallel, but disagree as to their location, and W. & Co. own claims adjoining and east of plain- tiffs, and H. & Co. own claims adjoining and east of W. &. Co., evidence of the location of the west line of H. & Co. is not pertinent, un- less the east and west lines of W. & Co. are parallel, and the east line of W. & Co. is coin- cident with the west line of H. & Co. Stoakes v. Monroe, 36 Cal. 383. 149. Personal injuries from negligence. The plaintiff sued for damages for personal in- juries received from falling in a passage-way in a boarding and lodging house, charged to have resulted from the negligent failure of the de- fendant to have the same properly lighted, whereby the same was rendered dangerous — on which latter point issue was joined. Held, that it was error to permit the plaintiff to prove, in chief, thatanother person had fallen and sustained injuries in the samepassage-way when in the like darkened condition. Marti- nez v. Planel, 36 Cal. 578. 150. Negligence in an attorney. In an action against an attorney for negligence in conducting a suit, evidence of another attorney is not admissible to show that, upon the facts admitted or proved, the attorney was guilty of negligence. Gamberti;. Hart, 44 Cal. 542. 151. Injury by railroads. Evidence to prove that the cars of another company were driven down the same grade at less speed than the cars of defendant, is inadmissible. Schier- hold v. N. B. & M. K. P. Co., 40 Cal. 447. 152. Injury by -water ditch. In an action for injury to water ditches, evidence of the 'value or profits of certain mining claims be- longing to the owners of the ditch, and supplied therefrom with water to mine the same, is in- admissible in evidence to establish the value of the ditch, unless accompanied by further evi- dence showing that the claims could not be worked without the aid of the ditch. Clark v. Wille,t, 35 Cal. 534. 153. Of lien on real estate. Parol evi- dence cannot be admitted, if objected to, to show that a written incumbrance exists on real estate. Racouillat v. Requena, 36 Cal. 651. 154. Transfer of interest in possessory claim. Oral evidence of a transfer of title or interest to land claimed under the Possessory Act is not admissible. Buel v. Frazier, 38 Cal. 693. 155. Cancellation of deed. Testimony is not admissible to show that a deed was with- drawn from the Recorder's office before it was recorded, for the purpose of being canceled, to revest the title in the grantor. Lawton v. Gordon, 37 Cal. 202. 156. Renunciation of grant. Upon an is- sue as to whether an Alcalde's grant was de- clined and renounced, evidence that at the al- leged time the pueblo was a small place, and » renunciation of the lot could not well have transpired without a knowledge of the wit- nesses, is inadmissible. Lick v. Diaz, 37 Cal. 437- 157. Of title to real estate. If it is the theory of the defendant in an action that a cer- tain person has acquired the title to real estate, he is not injured if the plaintiff proves such to be the oase by parol instead of written testi- mony, especially, if the written evidence is also introduced, and' the parol testimony does not add to or contradict it. Hobos v. Puff, 43 Cal. 487. XH. WEIGHT OF EVIDENCE. 158. Fraud and false swearing in making the same. Upon the question of fraud and false swearing by the insured, so as to deprive him, in case of a Iobs, of any bene- fit under the contract, any discrepancy found to exist between his sworn statement of his losses, and the actual loss, as proved at the trial of an action against the insurer for a breach of an insurance contract, which can reasonably be accounted for on the score of opinion, is entitled to no weight ; on the con- trary, such discrepancy will be considered as evidence of fraud or false swearing on the part of the insured, only when it is such as to show a material and. , intentional over- valuation by him. Clark v. Phoenix Ins. Co., 36 Cal. 168. 159. Warrants on County Treasury. The entry of the satisfaction of warrants, made under the loose provisions of the Act of April 4th, 1864, in relation to the Board of Su- pervisors of Butte County, is entitled to no more weight than oral testimony. Day v. Callow, 39 Cal. 593. 160. Certain tests by which its value may be determined. In support of a claim that a, verbal lease had been entered into fif- teen years before suit, upon which it was al- leged that payments had. been made, if no written evidence of such payment is claim- ed to have been given ; if, at every pay- ment of rent, some party by mere chance was present, and these parties were found and produced as witnesses at the trial ; if each of these parties should very par- ticularly remember remarks made — the pay- ment of rent — the amount paid — the kind of coin in which it was paid ; if the sum paid amounts to more than the sum due under the alleged lease ; if these witnesses have never thought of the transactions from the time of their occurrence until called on the stand — had never spoken to the plaintiff, or to his at- torney, or to any human being about it — there are such intrinsic improbabilities inherent in the testimony, as to render it extremely unsat- isfactory, when introduced to support a stale claim. McFadden v. Wallace, 38 Cal. 51. 161. Province of jury. The deduction or conclusions from facts proved is not the prov- ince of a witness, but of a jury ; such evidence 156 EVIDENCE.— EXCEPTIONS. is purely matter of opinion, and not the state- ment of a fact, and should be excluded. Lar- gan v. Central R. R. Co., 40 Oal. 273. Xm. EFFECT OE EVIDENCE. 162. Effect of testimony. When testi- mony is ruled out by the Court for one pur- pose, but admitted for another, the jury can only consider it for the purpose for which it was received. Macdougall v. Maguire, 35 Cal. 274. 163. Proof of incorporation. Proof of the company name raises no presumption that it is an incorporated company ; nor if the word " California " occurs in the name, does it raise a presumption that it was incorporated under the laws of this State. Briggs v. McCullough, 36 Cal. 542. 164. Effect of deed. The relative value or effect of deeds introduced in evidence by the respective parties to the action, can only be de- termined by the Court or jury to whom they are submitted for consideration. Yates v. Smith, 40 Cal. 662. 165. Evidence of filing paper. An in- dorsement on the plat of the survey of public land, that it was filed in the Land Office on a day named therein, which is not signed by any one, will, in the absence of other evidence on the subject, be taken as fixing the time of fil- ing the plat. Poppe v. Athearn, 42 Cal. 607. 166. Proof of ownership of land. Ev- idence that a person acquired the possession of and leased land to another, tends to show that he is the owner of it. Hobbs v. Duff, 43 Cal. 485. See Trial, 24. See Generally, Appeal, 68-70, 84, 85, 118, 131, 158-165, 291-313 ; Arbitration, 3 ; Attor- ney and Client, 4-8 ; Claim and Delivery, 11, 12 ; Constitutional Law, 11 ; Contract, 3, 21 ; Conveyances, 7, 29 ; Corporations, 13-23 ; 107, 108 ; Criminal Law and Practice, 144—173, 188-204; Ejectment, 94-120; Eminent Do- main, 22 ; Estoppel, 42 ; Forcible Entry and Detainer, 56-64, 78 ; Homestead, 1 5 ; Husband and "Wife, 20 ; Identity, 1 ; Judgment, 68 ; Land and Land Titles, 13, 20, 55, 67 ; Malici- ous'Proseeution, 11, 12 ; Mines and Mining, 2 ; Mortgage, 11, 23, 27-29; Negligence, 10; Ne- gotiable Instruments, 20, 37, 38 ; New Trial, 143—146 ; Partnership, 6 ; Payment, 5 ; Pho- nographic Reporter, 1 ; Probate Law and Prac- tice, 8 ; Revenue Stamps, 1 ; Streets and Street Assessments, 43 ; Summons, 20-26 ; Taxation, 134-136 ; Trespass, 2, 4, 7 ; Trust and Trustee, 20 ; Witness, 1, 4, 5. Practice on admission of, see Common Law and Practice, 241-269 ; Trial, 19-60. EXCEPTIONS. 1. Defined. An exception is a formal pro- test against the ruling of the Court upon a question of law. People u. Torres, 38 Cal. 141. 2. An exception is an objection taken at the trial to a decision upon a matter of law, made at any time from the calling of the cause for trial to the rendering of the verdict or decision. An exception simply to an order of the Probate Court appealed from, taken at the time it is made, is entitled to be consider- ed on such appeal. Will of Bowen, 34 Cal. 682. 3. To decision of Court. The decision of a Court, when not rendered immediately after the close of the testimony, is, by opera- tion of law, deemed to be excepted to on a mo- tion for new trial, or an appeal. No express exception to a final decision is ngcessary for the purposes of a motion for new trial, or re- view on appeal. Will of Bohen, 34 Cal. 682. 4. An exception must be taken upon a fact or facts not denied. The point of law to the decision of which an exception lies, does not arise until the facts are determined. Id. 5. When not required. When a party- stands by a pleading, to which a demurrer has been sustained, no exception to the decision is- required. Smith v. Lawrence, 38 Cal. 24. 6. ' To a general rule. A party who relies upon an exception to a general rule, must state the facts which bring his case within it. Sen- ter v. Davis, 38 Cal. 450. 7. To findings. Exceptions to findings provided for by Section 180 of the Practice Act, relate not to errors, but only to defects in the findings. Carroll v. City of Benicia, 40 Cal. 386. 8. Where a party wishes to put on record, for purposes of review, the decision of the Court on a matter of fact, the only mode is to request that written findings be filed, and on a failure or refusal to do so, to except for want of findings. Such decision by the Court on a matter of fact cannot be established by affidav- it on motion for new trial. Sanchez v. McMa- hon, 35 Cal. 218. 9. When defective or erroneous. If there be a material fact, in respect to which the findings are silent, the party aggrieved may except to them by pointing out the par- ticular defect or omission complained of, and if then the Court refuses to correct them, the remedy is by appeal. But if on any material fact the Court finds contrary to or without suf- ficient evidence, this is ground for a new trial only. Hathaway v. Ryan, 35 Cal. 188. 10. When not necessary. In such case no special exception to such presumed findings, or motion in the Court below for their cor- rection, is necessary. Steinbach v. Krone, 36 Cal. 303. 11. Settlement of exceptions to find- EXCESSIVE DAMAGES.— EXECUTION. 157 ings. Exceptions to findings will be disre- Sarded, -when not presented and settled by the ourt or Judge in the mode prescribed by the statute. Brooks v. Calderwood, 34 Cal. 563. 12. To charge to jury. An exception taken by counsel to instructions given by the Court to the jury need not state the points of the exception. It is sufficient to say generally in the statement that counsel excepted to each and all of the instructions. McOreery v. Ever- ding, 44 Cal. 246. 13. Exceptions to instructions given to a jury. When a party procures the Court ■to give to the jury an instruction -which con- tains legal propositions, it is sufficient for the opposite party to except generally to the in- struction, without specifying what part of it is objectionable ; but an exception to the charge given by the Court of its own motion, must specify the proposition which is deemed ob- jectionable. Shea k P. & B. V. R. R. Co., 44 Cal. 414. 14. Bill of exceptions. A bill of excep- tions must be reduced to writing and settled by the Judge immediately upon taking the exception. Central P. R. R. v. Pearson, 35 Cal. 247. 15. An extract from the minutes of the Clerk, signed by the Judge in the course of the proceedings from day to day; is not a bill of exceptions. Haraszthy v. Horton, 46 Cal. 545- 16. Sufficient bill of exceptions. A bill of exceptions to an order denying a con- tinuance, is not sufficient to present the alleged error in denying the continuance, unless it contains the affidavits used on the hearing of the motion. Id. 17. Review of evidence on bill of ex- - ceptions. The Court will not review Ihe evidence on a bill of exceptions, unless the bill specify the particulars in which the evidence is alleged to be insufficient to sustain the ver- dict or decision. Thome v. Hammond, 46 Cal. 530. , See Appeal, 112, 116, 207-219; Criminal Law and Practice, 240, 323-340, 394 ; Instruc- tions, 19 ; Judgment, 28 ; Reference, 6 ; Trial, 22, 23, 30, 39. EXCESSIVE DAMAGES. See New Trial, 19-23, 130. EXECUTION. I. Issuance of. II. Property which may or may not BE LEVIED ON. m. Levy, how made. IV. Property exempt. V. Sheriff's return. VI. Sale under. VTt. Redemption from sale. VM. Void and voidable executions. IX! Proceedings supplementary. I. ISSUANCE OF. s 1. When may issue. Execution may lawfully be issued and enforced so soon as the judgment is entered, and before the filing of the judgment roll. Sharp v. Lumley, 34 Cal. 611. 2. The statute does not require the docket- ing of the judgment to precede either the issuing- or service of the execution. The docket creates and preserves a lien for two years, but without docketing the judgment, execution may be issued upon it, and real estate levied upon and sold, and the sale and conveyance will pass all the interest held by the judgment debtor at the time of the levy. Hastings v. Cunningham, 39 Cal. 137. 3. Time -within which may issue. Up to April 8th, 1861, a party in whose favor a judgment was rendered was entitled to an execution at any time within five years, and after five years had elapsed, he was entitled to an execution on obtaining ieave of the Court. Between April 8th, 1861, and April 2d, 1866, an execution could issue only within five years after the entry of the judgment. Since April 2d, 1866, an execution in all cases other than for the recovery of money may issue after five years, upon leave of the Court. Mann v. Mc- Afee, 37 Cal. 11. 4. After five years. The Act of April 2d, 1866, granting the right to have execu- tions issued on all judgments other than for the recovery of money more than five years after the entry of the judgment, is not retro- spective. It applied only to judgments there- after to be rendered. Id. 5. Right to execution when once barred. If the right to an execution on a judgment in ejectment had expired by the lapse of more than five years on the second day of April, 1866, when the Act was passed providing for the issue of such executions, the passage of said Act did not revive the right to have an execution on such judgment. Mann v. McAtee, 37 Cal. 11. II. PROPERTY WHICH MAY OR MAY NOT BE LEVIED ON. 6. The indebtedness for the purchase price of real estate is the subject of an execu- tion or attachment, levy, and sale. Ross v. Heintzen, 36 Cal. 313. 7. On lands. The only purpose of an execution, in respect to real estate upon which 158 EXECUTION. a judgment lien subsists, and while it sub- sists, is to enforce the lien by ■ a sale of the property. Doubtless, lands not subject to the judgment lien may be levied upon by virtue of an execution. Bayley v. Ward, 37 Cal. 121. 8. Partnership property can be seized un- der an execution against one of the partners, for his individual debt, and sold, but the inter- est which passes by the sale is only the interest of the, debtor partner in the residuum of the partnership property, after the settlement of the partnership debts. Robinson v. Tevis, 38 Cal. 611. 9. "What Sheriff may seize. A Sheriff, under an execution issued on a judgment, " which is not a lien, can only seize and sell such title and interest as the judgment debtor had in the land at the time of the levy, and such as he acquired between the time of the levy and the sale. Kenyon v. Quinn, 41 Gal. 325- See Judgment, 33, 35-37 ; Vendor and Ven- dee, 2. in. LEVY HOW MADE. 10. Effect of levy. Under the provision of the statutes of this State, the levy of an ex- ecution has no further effect than to fix the date or commencement of the Sheriff's title, as against all persons who are not parties to the writ. Blood v. Light, 38 Cal. 649. 11. On land. — "What constitutes. Any act on the part of the officer showing the in- . tent to sell the specific land, and to subject it to the satisfaction of the judgment, consti- tutes a " levying " of the execution as against the defendant in the execution ; and the per- formance of the acts described in the statute as a levying of the execution is material, only, in reference to the rights of third parties, or persons who are not parties- to the writ. Id. 12. On real estate, effect of. The levy of an execution upon real estate, during the time that the judgment upon which the execu- tion issued was a lien upon the same, neither extends this lien of the judgment, nor does it create a new lien upon the property. Bagley v. Ward, 37 Cal. 121. 13. When irregular. When the judg- ment debtor has, or claims, an interest in only a small, well defined parcel of a much larger tract of land, it is extremely irregular, to say the least, to levy the execution upon his inter- est in the general tract, instead of the particu- lar parcel he claims. Logan v. Hale, 42 Cal. 645- 14. Lien by levy of execution. If an execution is issued and levied on real estate while the judgment lien subsists, and is re- turned without a sale, and after the judgment lien expires another execution is issued and levied, and a sale is made, the sale takes effect by relation at the time when the second exe- cution was levied. Bagley v. Ward, 37 Cal. 121. 15. When there are no judgment or at- tachment liens, the levy of an execution upon real property operates as it does upon personal property ; that is, the execution first levied has a priority of lien as between different execu- tions. Id. IV. PROPERTY EXEMPT. 16. Personal property. Personal prop- erty which is exempt from forced sale on exe- cution is none the less exempt because the judgment debtor owns an undivided interest in it, in common with a stranger to the judg- ment. Servantii;. Lusk, 43 Cal. 238. 17. Insurance policy. The -party claim- ing that a life insurance policy, under the statutes of this State, is exempt from execu- tion, must show that the policy was issued by a company incorporated under the laws of this State, and that the benefits which he ex- pects to derive from the policy are such as might have been secured by the payment of an annual premium not exceeding five hundred dollars. Briggs v. McCullough, 36 Cal. 542. 18. Endowment policy. An endow- ment policy, in which a life insurance com- pany, in consideration of a sum of money de- posited with it, agrees to pay the depositor, or his assigns, at the end of ten years, (or sooner, if he desires) a sum of money, together with such dividends as his deposit shall earn, is an insurance on the life, in the sense of the statute exempting life insurance policies from execution. Id. 19. Farming stock. The exemption of property liable to seizure and sale by the third subdivision of Section 219 of the Practice Aet, is intended to apply only to oxen, horses or mules, suitable and intended for the ordinary work- conducted on a farm. Robert v. Adams, 38 Cal. 383. 20. A stallion, not used as a work-horse on »■ farm, but kept for the service of mares, is not exempt from execution. Id. 21. Notice to Sheriff as to sale of homestead. A notice to a Sheriff, before he makes a sale, that the premises he is about to sell are the homestead of the party giving such notice, does not render the sale void. Such notice does not create a homestead, nor is it evidence of the existence of a homestead. Villa v. Pico, 41 Cal. 469. See Attachment, 29 ; Homestead, 5. V. SHERIFF'S RETURN. 22. Sheriff's return. — Estoppel. If a Sheriff make a return in these words: "John Moore, plaintiff's attorney, was the purchaser at $180, and has paid the costs," ne is not EXECUTION. 159 estopped thereby from testifying that the plaintiff, and not his attorney, John Moore, was the purchaser*; and if his deed has been lost, that he made it to the plaintiff, and not to his attorney. Moore v. Martin, 38 Cal. 428. 23. A return, that " John Moore, plaintiff's attorney, was the purchaser at $180, and has paid the costs," means that Moore purchased as attorney, and for the plaintiff. Id. 24. Sheriff's failure to return. If the Sheriff, after the receipt of an execution, col- lects and pays to the plaintiff the amount due on the same, he is not liable to the plaintiff in the amount thus collected, as a 'measure of damages, merely for a subsequent failure to return the writ. Hoag v. Warden, 37 Cal. 522. 25. Piling in Recorder's office. It is not necessary, when an execution is levied on real estate, that a copy of the same, with the levy indorsed thereon, should be filed in the "Recorder's office. Bagleyt). Ward, 37 Cal. 121. VI. SALE UNDER. 26. Sale in violation of injunction. The issuing of an execution and sale of real property during the existence of a preliminary injunction restraining the same, renders the sale voidable, and the execution and sale may, upon proper proceedings taken, be set aside. Such saje is not, -however, void, and a deed made under it confers a valid title. Bagley v. Ward, 37 Cal. 121. 27. Title of purchaser. If the return indorsed upon an execution fails to show a legal levy, or any levy, the purchaser's title is not prejudiced thereby, for it in no respect de- • pends upon the return of the officer for its validity. Hunt v. Loucks, 38 Cal. 372. 28. Sheriff's sale under foreclosure de- cree. A sale by the Sheriff under a judg- ment in a foreclosure suit directing a sale of all the defendant's right, title, and interest in the mortgaged premises, carries all the title which the defendant had in the premises at the time of the institution of the foreclosure proceedings. Hutchings v. Ebeler, 46 Cal. 557. 29. Sheriff's sale of homestead. A levy and sale by the Sheriff, under an execution, of a homestead held under the Homestead Act of 1851, made while said Act was in force, waB void, and conveyed no title to the purchaser. Deffeliz v. Pico, 46 Cal. 289. See Equity, 49-51 ; Injunction, 15 ; Judg- ment, 34 ; Judicial Sale, 30 ; Land and. Land Titles, 27 ; Sheriff, 6, 7 : Tenants in Com- mon. 2. VII. , REDEMPTION EROM SALE. 30. Right of. A redemptioner may exer- cise his right to redeem land sold on execu- tion, if no redemption has been made by the judgment debtor, at any time during the six months after the sale ; and if in sixty days thereafter there is no redemption from him, the right to redeem from him is gone, even as to the judgment debtor, and he is entitled to a Sheriff's deed. Boyle v. Dalton, 44 Cal. 332. See Corporations, 69; Judicial Sale, 7-12. VHI. VOID AND VOIDABLE EXECU- TIONS. 31. Executions void. Executions not un- der seal, issued from a Court which has been abolished, or is not of competent j urisdiction, or upon a void judgment, or upon a judgment against an administrator, or after the death of the judgment debtor, or after an appeal and stay — instanced by the Court as probable ex- amples of void executions. Hunt v. Loucks, 38 Cal. 372. 32. When voidable. If an execution directs the levy of more money than the judg- ment calls for, it is not for that reason void, but only voidable. Hunt v. Loucks, 38 Cal. 372. 33. When amended. If an execution calls for too much money, it will not be set aside, but amended, so as to agree with the judgment, upon the application of the parties to it, or either of them. Id. 34. Executions not void. 1 Executions which have been issued according to the estab- lished course of practice,, and are not so erron- eous that they cannot be amended, are not void. Id. 35. Not open to collateral attack. Executions which are merely voidable cannot be attacked collaterally even by the parties to them, much less by strangers. Hunt v. Loucks, 38 Cal. 372. 36. The plaintiff in an action of ejectment relied upon an execution sale to which neither he nor the defendant was a party. The execu- tion called for $695 more than the judgment, but corresponded with it in other respects. Held, that the execution was not void, but voidable only, and the sale therefore valid. Id. 37. Executions not irregular. If the execution calls for the amount of the judg- ment in the Court below, and for the costs of an appeal also, it is not, for that reason, irreg- * ular. Id. 38. Execution on Justice's judgment. If an execution is issued by the County Clerk on a judgment rendered by a Justice, after a a transcript of the judgment is filed with the Clerk, what Court has authority to entertain a motion to quash it? Query? Gates v. Lane, 44 Cal. 392. See Generally, Appeal, 73; Costs, 15; Evi- dence, 8, 9 ;'Estoppel, 8, 19 ; Injunction, 6-9 ; Partnership, 9 ; Evidence, 8, 9 ; Pleading, 20, 196 ; Mandamus, 24. Against Person of 160 EXECUTION.— FEES AND SALARIES. Debtor, see Debtor, 4 ; Judgment, 18 ; Criminal Law and Practice, 376. IX. PROCEEDING'S SUPPLEMENTARY. 39. Denials by garnishee. In proceed- ings supplementary to the execution, the denial of the debt, or the adverse claim to the property by the garnishee, contemplated by .the Practice Act, is a claim or denial in good faith, and not one of mere pretense. Parker v. Page, 38 Oal. 522. 40. When it is evident that the garnishee is acting in bad faith, in denying his indebted- ness or asserting his claim, the referee may treat it as fraudulent, and disregard it. Id. 41. A substitute for a creditor's bill. Proceedings supplementary to execution, by which a judgment debtor is required to ap- pear before a Court or referee to answer con- cerning his property, are but a substitute for a creditor's bill at common law, and are purely judicial ; and each party may call and examine witnesses. McCullough 1?. Clark, 41 Cal. 298. 42. Order on proceedings. If a judg- ment debtor is examined concerning his prop- erty before a Court or referee, on proceedings .supplementary to execution, the order made by the tribunal before which the examination takes place, concerning the subject matter, is binding, and estops the parties from again liti- gating the same matter in another form of action. Id. 43. Such estoppel protects the Sheriff. If a Court or referee, on proceedings supple- mentary to execution, orders property of the judgment debtor to be delivered up to the Sheriff to be sold on the execution, the judg- ment creditor is estopped by the order from maintaining an action against the Sheriff for selling the property. Id. 44. Finality of order. The petitioner, against whose property an execution, in pur- suance of a lawful judgment recovered against him, had been issued, refused to deliver to the Sheriff a certain pajul-up life insurance policy in satisfaction of the execution, on the ground that the policy was exempt under the statute concerning life insurance policies. (Stats. 1867- 8, p. 500.) In a proceeding suplementary to execution, regularly taken and pursued, a final order was made by the Court in which the judgment had been rendered, requiring peti- tioner to deliver the policy in satisfaction of the execution ; and on his refusal to obey the order, committed him to the County Jail until it should be obeyed. Held, first, that the Court had jurisdiction of the whole subject matter, and of the person of the petitioner, and that the process under which he was held was upon its face valid ; second, that under the writ of habeas corpus, it is not competent to determine whether or not the order of the Court upon which the process was founded is or is not er- roneous. Ex parte McCullough, 35 Cal. 97. See Appeal, 9, 24 ; Probate Law and Practice, EXECUTORS AND ADMINISTRA- TORS. See Probate Law and Practice. EXEMPTION. See Execution. EXPERTS. See Evidence, 26-29. EX POST FACTO LAWS. See Constitutional Law, 7, 39. EXTORTION See Office and Officer, 26 ; Party, 12. FALSE REPRESENTATIONS. See Contract, m ; Eraud, 2, 17, 19, 20. FEES AND SALARIES. 1. Validity of Statute. A law which provides for the amount of fees attached to- the service to be performed in an office, and at the same time provides that the officer shall pay a part of these fees into the Treasury, the title to which is, " An Act to regulate fees in office," is not liable to the constitutional ob- jection that it embraces more than one object, and that that is not expressed in the title. Ream v. Siskiyou Co., 36 Cal. 620. 2. Tax Collector. An Act which pro- vides in one section that a Tax Collector shall FEES AND SALARIES.— PERRIES AND FERRIAGE. 161 receive the fees allowed by law, and in another section that he shall pay a part of these fees into the Treasury for the benefit of the county, does not take private property for public use. Id. 3. The Legislature may, without violating the Constitution, provide by law that a col- lector of taxes shall pay a part of the fees and compensation allowed by law into the County Treasury, for the benefit of the General Fund. Id. 4. Under the Act of March 28th, 1868, " To regulate salaries and fix the compensation of certain county officers," the Sheriff of Tuolumne County, elected at the general elec- tion of 1869, became ex officio collector of taxes from and after the first Monday of March, 1870. , Trout v. Gardiner, 39 Cal. 386. 5. Of Clerk of Supreme Court. On ap- plication to dismiss an appeal on certificate of the Clerk of the District Court, the fees to be paid are the same as on filing a transcript — $25 ; and the Clerk cannot be required to file the certificate, or enter any order in the ease, till the fees are paid. Bolander v. Gentry, 36 Cal. 127. 6. , Of Sheriff on execution sale. If an execution is placed in the Sheriff's hands, and. he advertises property for sale, and the judg- ment debtor pays the full amount of the judg- ment to the judgment creditor before sale, he cannot deprive the Sheriff of his fees, but is liable to him for the fees allowed in case of a sale. Morse 1;. Gibbons, 43 Cal. 377. 7. Salary of an office. The salary of an office is incident to its title, and not to its occupation, and one elected to an office who has qualified and is ready to perform its duties, is entitled to its salary, even if it is occupied by an intruder. Carroll v. Liebenthaler, 37 Cal. 193. 8. Payment of salary. A salary of an office which is fixed at a monthly rate, be- comes due and payable monthly. Id. 9. The occupation of an office by an in- truder does not have the effect of deferring the time of payment of the salary until the in- truder is ousted. Id. 10. Salary of County Clerk of Placer County. The Act of February 25th, 1858, concerning the office of County Clerk of Placer County, {Stats. 1858, p. 29) does not limit the salary of the clerk to the amount of fees re- ceived by him ; and if the fees collected for any one month do not amount to the salary to which he is entitled, he can recover the difference from the county. Sewell v. Placer Co., 42 Cal. 650. 11. Statute requiring officers to pay over fees, less salary. Where a statute con- cerning the office and fixing the salary of a County Clerk provided that he should collect all official fees, and at the first of every month pay the same over to the County Treasurer, CAL. DIG. SUP. 11. " less his salary for the next preceding month ' ' ; and the fees for several months being less than the salary, it was claimed that the salary was only payable out of the collected fees : held, that he was entitled to his full annual salary, and that there was no legislative intention to limit the salary to the amount of fees re- ceived. Id. 12. Salaries and fees of District At- torneys. Section 4330 of the Political Code, as amended by the Act of March 28th, 1872, was intended to regulate the salaries of Dis- trict Attorneys, as contradistinguished from fees to which they were entitled under existing laws, and does not repeal prior statutes allow- ing fees in addition to salaries. Pillsbury v. Brown, 45 Cal. 46. See Appeal, 147 ; Constitutional Law, 78 ; San Francisco, 1 1 ; Supervisors, 9. FENCES. See Land 5^ ? Injunc- tion, 6. FORECLOSURE. I. Parties. n. Proceedings. IDC. Judgment and decree. IV. Sale under decree. I. PARTIES. 1. Subsequent incumbrancers are not necessary, though proper, parties to an action to foreclose a mortgage. Carpentier v. Bren- ham, 40 Cal. 221. 2. Parties defendant. Persons claiming title to real estate, under Sheriff's sales which passed no title, are not necessary or proper par- ties defendant in an action to enforce a mort- gage on the same real estate, made before the Sheriff's sale took place. Hall v. Yoell, 45 Cal. 584. 3. A suit of foreclosure as against a younger mortgagee is a suit to cut off the right of re- demption ; when, therefore, the younger mort- agee is not made a party, his right to redeem is unaffected by a decree of foreclosure and a sale under it. Carpentier v. Brenham, 40 Cal. II. PROCEEDINGS. 4. Foreclosure against estate. When the family residence, which has been mort- gaged before the husband's death, is set apart after his death by the Probate Court, for the use of the widow and family, the administra- tor of the estate is not a necessary party to the foreclosure of the mortgage, provided no per- sonal claim is made against the estate. Schadt v. Heppe, 45 Cal. 433. 5. Misjoinder of causes of action and of parties. In an action to foreclose a mort- gage, can the titles held by parties claiming under the mortgagor, obtained prior to the date of the mortgage, be litigated ? Query ? Hibernia Savings and Loan Society v. Ordway, 38 Cal. 679. 6. Notice of lis pendens and actual no- tice. The object of filing, a notice of lis pen- dens is to impart constructive notice of the pen- dency of such foreclosure action ; and the effect of actual notice thereof, to a party receiving it, is the same as if notice of lis pendens had been filed. Sharp v. Lumley, 34 Cal. 611. 7. Where, in the schedule attached to a petition of the mortgagor in insolvency, which was filed after the action of foreclosure was commenced, there was contained a description of the mortgaged premises and of the mortgage, also the further statement, " suit for foreclos- ure commenced "; and the order of the Judge before whom the insolvency proceedings were pending provided " that all actions now pend- ing may be prosecuted to judgment ": held, that notice of the action to foreclose was there- by imparted to the assignee of such insolvent, and to all parties purchasing from, him, and they are bound by the judgment in the action for foreclosure, if it be valid. Id. 8. Tender of sum due on mortgage. The. question whether a tender by a subsequent FORECLOSURE. 171 mortgagee of the amount due on a prior mortgage, if made after the law day of the mortgage, or after judgment foreclosing the mortgage, discharges the lien of the mortgage or judgment, without keeping the tender good, discussed, hut not decided. Ketchum v. Crippen, 37 Oal. 223. 9. Installment mortgage. When a mortgage is given to secure money to fall due in several installments from year to year, a judgment enforcing the lien of the mortgage for one installment is not a bar to another ac- tion to enforce the lien of the mortgage for another installment subsequently falling due. MeDougal v. Downey, 45 Oal. 165. See Default, 5 ; Equity, 46 ; Pleading, 52- 53 ; Probate Law and Practice, 2, 64, 75. IH. JUDGMENT AND DECREE. 10. Mortgage of public lands, when title is subsequently acquired. D in his life time mortgaged to plaintiff a tract of land, being part of the public domain — on which D resided — intending to claim the same as a pre- emptor. The mortgage was duly acknowl- edged and recorded. There was a provision in the mortgage to secure the repayment of such sums as the plaintiff might pay, for his greater ■ security, in procuring a title to the land, and for a reasonable attorney's fee in the event of a foreclosure. Thereafter, D filed his petition for the benefit of the insolvent laws, and in due course received his final discharge. There- after, D filed his claim in the Land Office to said land as a pre-emptor ; plaintiff furnished the money to pay the Government price there- for, and in due course a patent was issued to D. Thereafter, D and wife conveyed the land by absolute deed to defendant N. Thereafter, D dying intestate, his wife — defendant J — ad- ministered on the estate, which was insolvent. Thereafter, and during said administration, on default of payment of the several sums secured to be paid by the mortgage, plaintiff brought action to foreclose against J, as admin- istratrix ; and N, after setting up the foregoing facts, prayed for a sale of the land mortgaged and an application of the proceeds of sale to the payment of the principal of his debt and interest thereon, until paid, at the contract rate, which exceeded ten per cent, per annum, also said money advanced, and for one hundred and fifty dollars attorney's fees, but expressly waived judgment against the estate of D for any deficiency. In answer, J confessed the complaint, and consented to judgment as prayed ; but N in answer set up as ground of equitable defense, the said insolvency pro- ceedings and discharge of D, and that plain- tiff's debts were barred thereby ; that said con- veyance by deed from D and wife contained full covenants for title, and against all incum- brance of said land done or suffered by D, and that the consideration paid was the full value of the land. To the answer of N there was no replication filed, which, under the statute as then existing, had the effect of confessing the truth of such new matter. Plaintiff had judgment as prayed for in complaint. Held, first, that said new matter set up in answer was of immaterial facts, only ; second, that as no judgment passed against the estate of D, Sec- tion 13T of the Probate Act had no application, and the judgment as to interest after adminis- tration commenced — notwithstanding the es- tate of D was insolvent — was proper ; third, that the title to the land acquired subsequent to the mortgage under said patent inured to the benefit of plaintiff as mortgagee ; and fourth, that plaintiff was entitled to enforce his mortgage as against the land mortgaged, not- withstanding the personal liability of D for the debts may have been barred by said dis- charge. Christy v. Dana, 34 Cal. 548. 11. Decree of foreclosure. Where satis- faction- of a mortgage has been duly entered on the record, as provided by the statute, a decree of foreclosure, without at the same time setting aside the satisfaction of the mortgage, is erroneous. Russell v. Mixer, 39 Cal. 504. 12. Erroneous judgment. A judgment for the principal of a promissory note secured by mortgage, before it becomes due, and an order for the sale of the mortgaged premises for its payment, is erroneous. Hunt v. Dohrs, 39 Cal. 3°4, 13. Foreclosure for interest. Judgment may be had 'for the sale of so much of the premises as may be necessary to satisfy the interest due. Id. 14. Personal judgment for deficiency. A personal judgment cannot be docketed against the defendant in a suit for foreclosure of a mortgage, until it is ascertained by the Sheriff's return that a balance remains due. Id. 15. Power of Court to control its judgments. In a suit foreclosing a mortgage, the Court has full power, pn motion made by a subsequent mortgagee who is a party, to subrogate him to the rights of the judgment creditor, or to enter a discharge of the lien of the judgment, or to prevent a sale, or to enter a satisfaction of the judgment, upon a proper showing being made. Ketchum v. Crippen, 37 Oal. 223. 16. Where a lien had expired before the commencement of the action to foreclose it, and judgment of foreclosure was taken by de- fault : held, that it was not^rror for the Court, of its own motion, on the day following the rendition of judgment, to modify the judg- ment to a money judgment only. Lacore v. Leonard, 45 Cal. 394. 17 . Right of incumbrancer under j unior mortgage. In an action to foreclose a mort- gage, a subsequent incumbrancer under a junior mortgage is a proper party, and is en- titled to have his rights protected by an ap- 172 FORECLOSURE. propriate provision in a decree as to the dis- position of the surplus of the proceeds of the sale, if there be any, after satisfying the de- mands of the senior mortgagee. Ward v. Me- Naughton, 43 Oal. 159. 18. Mortgage merged in decree. A mortgage is merged in the decree of fore- closure, and a party who enters under the decree cannot be regarded as a mortgagee in possession. Davenport v. Turpin, 43 Cal. 597- 19. Mortgagee in possession by agree- ment. If a party holding a Sheriff's deed to land, executed under a foreclosure sale, enters upon it as mortgagee in possession, by agree- ment with the mortgagor, neither such agree- ment, nor the entry in pursuance of it, can •affect the title of a vendee of the mortgagor acquired intermediate the delivery of the mortgage and the commencement of the action to foreclose it. Id. 20. Counsel fees. If there is no pro- vision in a mortgage for payment of counsel fees, the plaintiff in an action to foreclose it is not entitled to such fees. Sichel v. Carrillo, 42 Cal. 493. See Judgment, 94. ,IV. SALE UNDER DECREE. 21. Installment mortgage. Section 248 of the Practice Act, in relation to enforcing the lien of a mortgage, does not apply to a case where an installment secured by the mort- gage falls due after it has been enforced for an installment due at an earlier date. McDougal v. Downey, 45 Cal, 165. 22. Subrogation. A purchaser at fore- closure sale, who voluntarily discharges a junior mortgage, is not, as a matter of law, thereby subrogated to all the rights which the junior mortgagee ever had against the mort- gagor ; but — if entitled to subrogation at all — only to such rights as the junior mortgagee has at the time of the payment of his mort- gage debt. Carpentier v. Brenham, 40 Cal. 221. 23. Conveyance by mortgagor. If the mortgagor conveys the legal title to another person, whose deed is recorded before the de- cree of foreclosure is entered* and this grantee is not made a party to the suit foreclosing the mortgage, the purchaser at the Sheriff's sale does not acquire the legal title. Davenport v. Turpin, 41 Cal. 100. 24. A proceeding in foreclosure instituted against a mortgagor alone, cannot overreach or affect the title of a vendee of the mort- gagor, vesting intermediate the delivery of the mortgage and the commencement of the action to foreclose it. Id. 25. Right to redeem. The right of the subsequent mortgagee as against the purchaser at the foreclosure sale under the first mortgage, is a right to redeem. Carpentier v. Brenham, 40 Cal. 221. 26. Who bound by judgment. One who purchases land pending an action to foreclose a mortgage on it, or after final judgment, with notice of the pending action or of the judg- ment, is bound by the judgment. If no notice of lis pendens has been filed, and he purchases without notice, after the entry of default, but before final judgment, he is not bound by the judgment, even if a final judgment gives con- structive notice to parties dealing with the subject matter. Abadie v. Lobero, 36 Cal. 390. 27 . If the defendant in an action to fore- close a mortgage, in which no notice of lis pendens has been filed, sells the- mortgaged premises before final judgment, and the pur- chaser buys without notice of the pendency of the action, and then sells after the entry of final judgment, the second purchaser is in no worse position than his grantor, as to being bound by the judgment. Id. 28. First mortgagee. • A first mortgagee, who obtains a valid decree of foreelosure, and becomes the purchaser at the foreclosure sale, acquires the legal title freed from the first mortgage, as against the mortgagor and all persons brought into Court, while as against a junior mortgagee, who was not a party to the foreclosure suit, he holds the legal title subject to both mortgages, and this, although he still retains his rights as first mortgagee. Carpen- tier v. Brenham, 40 Cal. 221. 29. Senior and junior mortgagees. Al- though the foreclosure of a first mortgage, to which the junior mortgagee was not a party, does not affect the rights of the latter, yet such a foreclosure is valid between the holder of the first mortgage and the mortgagor ; and the purchaser at the foreclosure sale acquires the legal estate of the mortgagor, subject only to the lien of the junior mortgagee. Carpen- tier v. Brenham, 40 Cal. 221. 30. Sale under decree on mortgage by tenant in common. If a party who owns an undivided one seventh of a tract of land, as a tenant in common with others, iSjin possession of a portion of the tract, and mort- gages all such portion, describing it by metes and bounds in the mortgage, and the mortgage is foreclosed, the purchaser at the mortgage sale acquires the title only to an undivided one seventh of the portion thus mortgaged. Mahoney v. Middleton, 41 Cal. 41. 31. Title of purchaser. A mortgagee who takes a mortgage to secure a pre-existing debt, and has it recorded, and forecloses it and buys the mortgaged property at Sheriff's sale, and applies the proceeds on his decree without' notice of a previous unrecorded deed, acquires a title superior to that vested in the grantee in the previous unrecorded deed. Erey v. Clif- ford, 44 Cal. 335. 32. Taxes on debt secured by mort- gage. If one person mortgages his property FOREIGN JUDGMENT.— FRANCHISE. 173 to secure the debt of another, and there is a provision in the mortgage for the payment of tastes on the mortgage debt, the plaintiff, in foreclosing, may retain such taxes out of the proceeds of sale. Sichel v. Carrillo, 42 Cal. 493. See Execution, 28 ; Trust and Trustee, 23 ; Writ of Assistance, 5, 6. FOREIGN JUDGMENT. See' Action, 39 ; Pleading, 210. FORFEITURE. 1. At common law. While a forfeiture at common law does not operate to divest the title of the owner until a suit is instituted for that purpose, and the rights of the State are established by judgment, yet it is otherwise when a forfeiture is declared by statute. 0. R. R. Co. v. 0. B. & F. V. R. Co., 45 Cal. 365. 2. Declared by statute. When a for- feiture is declared by statute, the title to the thing forfeited immediately vests in the State, upon the commission of the offense or the hap- *pening of the event, for which the forfeiture is declared. Id. 3. Of franchise. If a franchise is granted by the Legislature to construct a street rail- road within a certain time, with a condition, that if the provisions of the Act are not com- plied with the franchise shall be forfeited, a failure to lay the track within the time limited works a forfeiture of the right to lay the same without a judgment at the suit of the State declaring a forfeiture, and the Legislature may confer the franchise upon any other company or person. Id. See Corporation, 1 1 ; Land and Land Titles, 131; Mines and Mining, 8; Pleading, 178. FORGERY. See Criminal Law and Practice, 23, 108, 109. FRANCHISE. 1. Collection of tolls. The right to col- lect tolls on bridges, roads, etc., is a franchise. T.-& T. T. Road Co. v. Campbell, 44 Cal. 89. 2. Such a franchise is a certain privilege of a public nature, conferred by grant from the Government, and vested in individuals. It is a sovereign prerogative, and vests in an indi- vidual only by virtue of a legislative grant. Id. 3. Whether granted directly by the Legis- lature, or by a subordinate body, to whom the power of granting it. is delegated by legislat- ive Act, the franchise is still a grant emanating from the sovereign authority of the State. Id. 4. Grant by Board of Supervisors. A grant of a turnpike, franchise by a Board of Supervisors, made under authority granted by the Legislature, has the same standing in re- spect to its validity, the presumptions in its favor, and the mode in which it may be at- tacked, as a grant of any other right, privi- lege, or thing, made by any department of the Government under the authority of law. Id. 5. Not to be attacked by private per- son. A grant of a turnpike franchise is not liable to be attacked by a private person, or in a collateral proceeding, for mere error in the exercise of the authority to make the grant. Id. 6. As an estate. A franchise obtained by grant from the Legislature has the legal character of an estate or property. 0. R. R. Co. v. O. B. & P. V. R. R. Co., 45 Cal. 365. 7. Right of franchise to select asso- ciates. When the Legislature grants a fran- chise to a particular person, his associates and assigns, it delegates to him the right to select the person thereafter to be associated with him in the enterprise. Powell v. Maguire, 43 Cal. 11. 8. What agreements to share franchise are enforcible. The rule adopted in Miles u. Thome, 38 Cal. 335, that an agreement of partnership in a franchise might be enforced by a person who had been let into possession and expended money under an agreement to that effect after the granting of the franchise, is not to be extended beyond the facts of that case. Id. 9. Public policy as to ownership of franchise. If several persons, under an agree- ment of mutual interest, see fit to obtain a franchise from the Legislature in the name of one only, public policy requires that they should be made to rely solely upon his good faith in carrying out the agreement ; and if he repudiates the contract on obtaining the fran- chise, equity will not grant relief. Id. 10. Division of franchise by assign- ment. If the grantee of a franchise to con- struct a street railroad makes an assignment of a portion of his franchise, and the assignee en- ters into possession, the question whether the grantee can thus divide his franchise is one which concerns the public alone. O. R. R Co. v. 0. B. &F. V. R. R. Co., 45 Cal. 365. See Assignment, 2; Bankruptcy, 9, 10; Constitutional Law, 44 ; Contract, 35, 38, 100 ; Corporations, 24, 26 ; Forfeiture, 3 ; San Frah- cisco, 20, 21 : Trust and Trustee, 1. 174 FRAUD. FRAUD. I. What constitutes. II. Fraudulent intent. TTT. Fraudulent conveyance. TV. Effect of transaction, i V. Belief against fraud. I. WHAT CONSTITUTES. 1. Debt, when fraudulently contract- ed. The fraudulent latent of a party to pro- cure goods without payment is consummated when the possession of the goods is obtained without payment on delivery, or on call, ac- cording to the terms of sale. The debt, under such circumstances, is fraudulently contracted. Stewart v. Levy, 36 Cal. 159. 2. False representation. S entered into an arrangement with R, F, and W, to pur- chase, on their joint account, a tract of land, at a price not to exceed $34,000, with a mutual understanding that S should consummate the purchase for the least price for which the land could be bought. S completed the purchase for the sum of $30,000, but represented to his associates that the price was $34,000, and re- ceived from each of them his proportion of that sum. Held, that the false representations of S were a fraud upon his associates, and that he is liable to. them for the excess of purchase money received from them, with interest. Rhea v. Surryhne, 39 Cal. 579. 3. Verbal agreement. A verbal agree- ment was made by J and B, who were two of several judgment creditors, with Bartram, an execution debtor, who owned a large amount of real and personal property, then under ex- ecution levy, but still in Bartram's possession, the value of which exceeded the amount due on the executions by over one half, to take into their immediate possession, in their own names, and to purchase all of said property at the Sheriff's sale for the benefit of Bartram, and to advance their own money, if necessary for that purpose ; and when they should have re- paid themselves for said advances, with inter- est, together with the amount of their own judgment demands out of the rents, issues, and profits of the property, and the sales of such portions of the personal property as could he advantageously sold by them, to reconvey the portions 'of the property unsold to Bartram. Held, that so far as the agreement contemplat- ed the payment by J and B to be made from the proceeds of Bartram's property, there was raised a resulting trust in favor of Bartram, and it was, therefore, not within the Statute of Frauds ; and so far as the agreement con- templated the payment by J and B to be made from money to be advanced by J and B, it was equivalent to a loan of the money and a taking of the title as a security for its repayment, un- der such circumstances as would amount to a fraud upon Bartram, if J and B should after- wards be allowed to repudiate the agreement, and was therefore not within the statute. Sandfoss v. Jones, 35 Cal. 481. 4. To allow J and B under such circum- stances to evade their promise, would be to en- able them to practice a fraud upon Bartram, and convert a statute designed to prevent frauds into a shield for their protection. Id. 5. If in such case J and B acted from the outset in bad faith, and entered into said, agreement with the intent and for the purpose of defrauding Bartram, by betraying him into a false confidence, and thus to get possession of his property, such fraud on their part would, of itself, take the case out of the operation of the Statute of Erauds. Id. 6. In the purchase of land. If A rep- resents to B that he has obtained from the owner the privilege of buying a tract of land at a given sum, and wishes B to join with him in the purchase at that sum, and induces B to thus join him, when, in fact A has the right to purchase at a much less sum, and A procures B's note and mortgage for the difference between the real sum paid and the sum as represented to B that he had paid, the transaction is a fraud on B, and a Court of equity will not grant A any relief on the note and mortgage he thus obtained. Barry u. Bennett, 45 Cal. 80. 7. Mistake. It is not true, as a legal proposition, that a mistake is constructive fraud. Mercieri;. Lewis, 39 Cal. 532. See Contract, 108, 116; Negotiable Instru- ments, 32. II. FRAUDULENT INTENT. 8. A question of fact. The question whether a mortgage given for a greater sum than is due was given in good faith, both for a present indebtedness and to secure future ad- vances to be made, is one of fact for the jury under proper instructions from the Court. Tully v. Harloe, 35 Cal. 302. HI. FRAUDULENT CONVEYANCE. 9. To defraud creditors. A conveyance made by a debtor, without consideration, for the purpose of defrauding his creditors, can be set aside by the creditors on the ground of fraud, even if the grantee was ignorant of the fraudulent purpose for which it was given. Lee v. Figg, 37 Cal. 328. 10. Sale of land. A sale of his land by a debtor, to defraud a creditor, operates as a fraud on the creditor only to the extent of the interest which the creditor would have acquired, by purchase at a sale under execu- tion, of the land fraudulently conveyed. Moore v. Besse, 43 Cal. 511. FRAUD. 175 11. Property in hands of third person. If a sale of property is made which is fraudu- lent as to creditors of the vendor, and the Ten- dee then sells to a third person, in whose hands the goods are attached by a creditor of the first vendor, and the creditor, in an action against the Sheriff, attacks the sale as a fraud on cred- itors, this admits the validity of the sales as hetween the vendors and vendees, and the creditor must show that the second vendee was a party to the fraud. * The burden of proving the fraud is on him ; and the questions whether the second vendee had notice of the fraud of the first sale, or was an innocent purchaser, or whether the second vendee paid a valuable consideration, have no application to the case. Such questions apply only to a case where property is purchased by such fraudulent rep- resentations as will vitiate the sale between the vendor and vendee. Thornton v. Hook, 36 Cal. 223. 12. The Statute of Frauds does not annul a sale in favor of creditors, solely upon the ground that it was not founded on a valuable consideration. Id. 13. A creditor who attacks a sale on the ground of fraud as to him, admits the validity of the sale between the parties thereto, but seeks the benefit of the Statute of Frauds as to himself, and-nrast show fraud. Id. 14. Fraudulent mortgage. A mortgage knowingly given for a sum greater than is due, and not in good faith, as a pretended security for future advances, is fraudulent in law as to the creditors of the mortgage. Tully v. Harloe, 35 Cal. 302. See Deed, 8 ; Hushand and Wife, 12 ; Judg- ment, 52, S3 ; Land and Land Titles, 21 ; Mortgage, 5 ; Pleading, 57 ; Sale and Delivery, 6, 7, 9 ; Statutory Construction, 36. IV. EFFECT OF TRANSACTION. 15. Liability for. When one of two in- nocent parties must suffer loss by the fraudu- lent act of a third, he who enables such third party to occasion the loss must bear it. Poor- man v. Mills & Co., 39 Cal. 345. 16. Fraud of husband. The rights of the wife in the homestead cannot be prejudiced by the fraudulent acts of the husband, in which she did not participate. Barber v. Babel, 36 Cal. 11. 17. Rescission of a contract. A mis- representation of the value of a business and good-will, knowingly made by the vendors — the purchaser being ignorant of the true value — is fraudulent, and entitles the purchaser to a rescission of the whole contract, when it is an entire contract, and the fraud affects a material part of the consideration. Crness v. Fessler, 39 Cal. 336. 18. As to creditors. If A is indebted to B on a note given for a valid consideration, and overdue, and B applies to C to purchase the note, who refuses to do so because it is overdue, but agrees to purchase a new note drawn in place of the old one, payable on de- mand, and such new note is drawn, and. C buys it for less than its face, and obtains a judgment on it by confession, there is nothing in the transaction which is fraudulent as to the credi- tors of A. Pond v. Davenport, 44 Cal. 482. See Trust and Trustees, 13. V. BELIEF AGAINST FRAUD. 19. Action for false and fraudulent representation. An action lies for a false and fraudulent representation, whereby another has suffered damage. Marshall v. Buchanan, 35 Cal. 264. 20. Damages. A recovery cannot be had for a false representation, without proof of dam- age. Morrison v. Lods, 39 Cal. 381. 21. Allegation. An allegation of actual fraud is not sustained by proof of a mistake. Mercier v. Lewis, 39 Cal. 532. 22. Demand for price not necessary. A demand for the price of goods sold is not necessary to maintain an action against a debtor for fraudulently purchasing the same. Payment, though it would satisfy the debt, would not remove the taint of the fraud, which is the gravamen of the action.. Stewart v. Levy, 36 Cal. 159. 23. Liability of partners for. In case of a debt fraudulently contracted by a part- nership firm by one member alone, the others being ignorant of the fraud, while all the members will be bound in an action brought on the contract or to recover the property so fraudulently obtained, yet the liability to an action for the fraud, which is essentially differ- ent and involves moral turpitude, is limited to the partner committing the same, unless the others assented to the fraud, or ratified it by adopting the act of the fraudulent partner, or retaining its fruits with knowledge of the fraud. Stewart v. Levy, 36 Cal. 159. 24. Refunding purchased money. If a sale of lands, made under a power of attor- ney procured -through fraud, be set aside as fraudulent and void ab initio, the fraudulent vendee is not entitled to a, decree against the vendor for restitution of a part of the purchase money paid to the attorney who was privy to the fraud. Sanchez v. McMahon, 35 Cal. 218. 25. If a debtor, in anticipation of a judg- ment against him, fraudulently conveys his property to another who is' privy to the fraud, with the intent to hinder and delay the cred- itor, who thereafter obtains judgment, and levies his execution on the property in the hands of the fraudulent grantee, but is after- wards induced to' release the levy on the false and fraudulent representations of the grantor, 176 FUNDS.— GARNISHEE. and to permit his judgment to become barred by the Statute of Limitations, by reason of similar false representations by the judgment debtor, to the effect that he has no property and is insolvent, the creditor, on averring and proving these facts, and that he discovered the fraud but recently before the commencement of the action, is entitled to relief. Marshall v. Buchanan, 35 Cal. 264. See Appeal, 268, 283, 365 ; Debtor, 4 ; De- mand, 3 ; Equity, 13, 30, 39, 41, 42 ; Evidence, 158 ; Injunction, 2 ; Judgment, 18, 76 ; Plead- ing, 6, 83. FUNDS. 1. Funding Act. — Construction of. An Act of the Legislature, creating a Board of Commissioners for the purpose of examining into the legality or illegality of all claims or demands outstanding against a county, and for the funding of such as they shall consider legal and just ; and which further provides that no such demand or claim shall be a legal claim against the county, unless it is presented to and allowed by such Commissioners, is, in this last respect, unconstitutional. Bose v. Estudillo, 39 Cal. 270. 2. Warrant issued before passage of the Act. A warrant issued by the Auditor of a county, and which had been duly presented by the holder to the Treasurer, for payment, and indorsed by him" not paid, for the want of funds," prior to the passage of the Act, and the holder having elected not to present his warrant to said Commissioners, and it was therefore never funded, is, nevertheless, a valid claim against the county, and it is the duty of the Treasurer of the county to pay the same from the first moneys in the treasury, applicable to such payment. Id. 3. If there were funds in the treasury of the county, applicable to such payment at the time the demand was made by the holder of the warrant, which were raised under the law as it stood before the passage of the Act, and the warrant was first in the order of outstand- ing, unfunded debt of the county, which ex- isted prior to the Act in question, he had a right to be paid from these funds, which the Legislature could not deprive him of, without his consent. Id. 4. The Act having provided what taxes, may be imposed by the county, for county pur- poses, and designated the purpose to which each fund shall be devoted, no provision being made for that class of indebtedness to which the claim of the holder of the warrant belongs, except the funding provisions contained in the Act, and there being no funds in the treasury of the county applicable to that purpose, at the time he made Lis demand on the Treasurer, he has no remedy, except to apply to the Legislature, to provide the means of paying his debt. Id. 5. County indebtedness. The Act of 1868, to fund the indebtedness of Calaveras County, does not repeal the Act of 1861, on the same subject. Soher v. Supervisors Cala- veras County, 39 Cal. 134. 6. Neither the Act of 1861, nor the Act of 1868, is compulsory on the creditors, and does not require them to surrender their evidences of indebtedness, nor forbid the county to pay its debts, if the creditors should refuse to ac- cept the bonds. Id. 7. The Act of 1861 is still in force in re- spect to outstanding bonds issued under its provisions, and their payment must be pro- vided for as required by that Act. Id. 8. When no provision is made, in a fund- ing statute, for the payment of interest" after the bonds issued under it have become due, no interest will accrue thereon after that date. Id. 9. School fund raised by the Legisla- ture inviolable. Whenever the Legislature of this State raises a fund, by taxation or otherwise, for the support of common schools, any contemporaneous or subsequent legislation, having for its object the diversion of such fund to any other purpose, is in contravention of the second section of Article IX of the State Constitution, and is void. CroBby v. Lyon, 37 Cal. 242. See Constitutional Law, 63, 64. 10. Fund in hands of public officer. A public officer who holds in his hands a fund which rightfully belongs to a private person, but which the officer ought to have paid into the public treasury, will not be permitted, in an action brought against him by the rightful owner of the fund, to set up as a defense a breaeh of his official duty in not paying the fund into the treasury. Bandall v. Austin, 46 Cal. 54. See Appropriation, 1-3 ; Mandamus* 46 ; Municipal Corporations, 7, 8 ; Probate Law and Practice, 57; Taxation, v i 10. GAMING CONTRACT. i Negotiable Instruments, 41. GARNISHEE. s Evidence, 18. GARNISHMENT.— GUARDIAN AND WARD. 177 GARNISHMENT. See Attachment, 8, 9, 24, 34. GIFT. See Deed, 61-65 ; Donation ; Husband and Wife, 12-20 ; Mines and Mining, 26. GOLD COIN. See Judgment, 13-15, GOODS SOLD. See Pleading, 211 ; Warranty. GOOD WILL. See Contract, 16, 17, 100, no ; Fraud, 17. GRACE. See Negotiable Instruments, 48, 49. GRAND JURY. See Criminal Law and Practice, 61-68. GROWING CROPS. 1. As part of the land. Plaintiffs com- ' menced this action against several defendants for the possession of land on which was stand- ing a large crop of unharvested grain, and to set aside a conveyance of the land made by one of said defendants to the others, on the ground that it was made in fraud of the rights of plaintiffs, who claimed to have succeeded, before suit brought, to the title of the fraudu- lent grantor, under their judgment recovered as creditors against him, subsequent to said CAL. DIG. SUP. 12. fraudulent conveyance, and a judicial sale thereunder and Sheriff's deed : held, first, that said grain crop was part of the land, and plaintiffs were entitled thereto, if entitled to recover the land; and, second, that an order made by the Court, pendente lite, restraining defendants from alienating or incumbering the land during the litigation, and appointing a receiver to take possession, harvest and pre- serve the grain crop, was properly made. Cor- coran v. Doll, 35 Cal. 476. 2. Personal property. Growing crops are private property, and subject to taxation, the provision of said statute exempting them notwithstanding. People v. Gerke, 35 Cal. 677. 3. Sale and delivery. Growing periodi- cal crops are not goods and chattels, within the meaning of the Statute of Frauds, of which a sale, in order to be valid as against the creditors of the vendor, must be accom- panied by an immediate delivery and con- tinued change of possession. Davis v. Mc- Farlane, 37 Cal. 634. 4. Contracts of sale of. Contracts for the sale of growing periodical crops — fructfts industriales — are not contracts for the sale of an interest in land, within the meaning of the Statute of Frauds, and need not be in writing in order to be valid. Id, 5. Replevin of crops grown and har- vested by a trespasser. While the owner may recover for use and occupation, he can in no case be held to be the owner of the crops grown and actually harvested on the land by the defendant, while in possession. Page v. Fowler, 39 Cal. 412. 6. Lien on growing crops. When a, debtor gives to a creditor possession of a grow- ing crop, under an agreement that the creditor shall harvest it and apply the proceeds to the payment of the debt, the creditor thereby ac- quires a lien on the crop superior to the lien acquired by another creditor who receives from the debtor a mortgage on the crop, after the first creditor has taken possession, and with notice of the rights of the first creditor. Lovensohn v. Ward, 45 Cal. 8. See Claim and Delivery, 2-4 ; Statute of Frauds, 21-23. GUARANTOR. See Negotiable Instruments, 42, 47 ; Statute of Frauds, 19, 20. GUARDIAN AND WARD. 1. Guardians at common law. There were four kinds of guardians at common law : by nature, for nurture, in socage, and in chiv- alry. Lord v. Hough, 37 Cal. 657. 178 GUARDIAN AND WARD.— HABKAS CORPUS. 2. Testamentary guardians. Guardians in chivalry were abofished and testamentary guardians substituted by Statute 12, Car. H Chap. 24, and made to take precedence of all other kinds of guardians. Id. 3. Like all other guardians, the testamen- tary guardian was subject to the supervision of the Court of Chancery, and could be re- moved for cause. Id. 4. If the father dies, having appointed a guardian for his children by his last will and testament, but leaving a widow who is a quali- fied and fit person to have the personal cus- tody of her children, such widow is entitled, if she so desires, to the personal care and cus- tody of the children. In such case, the power of the testamentary guardian only extends to such special directions as the father may have given in his will with reference to the educa- tion and settlement of his children, and the care and management of their property, and does not include the personal custody of the children, if objection thereto be made by the mother. Id. 5. L being the father of three children, aged respectively eight, six and four years, made his will, by which he devised the cus- tody of his children to his mother in these words : " The personal care, custody, and control of my said children I do hereby confide to my dear mother, solely, except in such cases as my said trustees and executors may deem contrariwise for the purposes of educa- tion , ' ' and died, leaving a widow who was in all respects a fit and proper person to be intrusted with the personal care and custody of her children. In an action by the widow against the testamentary guardian and executors of L, for the custody of the children, it was held that, under the statute of this State, the widow's claim to the personal custody of the children was superior to that of the testamen- tary guardian. Id. 6. Guardians as trustees. Guardians of all kinds are trustees, and for that reason were subject to the supervision and amenable to the orders of the Court of Chancery. Id. 7 . Power of Court over. The power of the Court of Chancery over guardians is no greater than it is over dther trustees, and it cannot therefore remove a, guardian except for good cause shown or apprehended. Id. 8. Probate Court. A Probate Court has no jurisdiction of a proceeding to compel a guardian to advance out of the estate of his ward the necessary sums for his support, or to refund money advanced by the guardian of the person of the ward, or others* for that pur- pose. - Swift v. Swift, 40 Cal. 456. 9. Sale by guardian, void. Where shares in an insurance company belonged to an infant, but were issued to his guardian, under the name of "Augusta R. Josephi, guardian," and she afterwards, in the same name but with- out any order of the Probate Court, sold and as- signed them : held, that such sale was void, and that the purchaser could not require the > company to recognize him as having any title to such stock. De La Montagnie v. Union Ins. Co., 42 Cal. 291. 10. Every alienation of the property of a ward by a guardian, if made without an order of Court, is void ; and it is of no import whether the purchaser has knowledge that it belongs to the ward or not. Id. 11. Payment of claims by guardian. It is not necessary that claims against the ward be verified or approved by the Probate Judge, before they are paid by the guardian. Pvacouillet v. Requena, 36 Cal. 651. 12. Oath to guardian's account. The account of a guardian, in exceptional cases, may be verified by a person other than the guardian, if the guardian also swears that he believes his statements are true. Kacouillat v. Requena, 136 Cal. 651. 13. The guardian of an old man may per- mit the business affairs of the ward to be man- aged by others than himself, if such persons are relatives and conversant with his affairs, and the children and heirs at law of the ward request it, and no creditor appears to contest the account ; but a practice of that kind is not to be encouraged, and is permitted only in ex- ceptional cases. Id. See Appearance, 9 ; Probate Law and Prac- tice, 108-115. GUILTY POSSESSION. See Criminal Law and Practice, 24, 28-30, 82, 312. HABEAS CORPUS. 1. Office of the writ. Habeas corpus is the proper remedy for every unlawful impris- onment, both in civil and criminal cases ; but an imprisonment is not unlawful, in the sense of this rule, merely because the process or or- der under which the party is held has been reg- ularly issued, or is erroneous. Ex parte Mc- Cullough, 35 Cal. 97. 3. The functions of the writ, where the party appealing to its aid is in custody under process, does not extend beyond an inquiry in- to the jurisdiction of the Court by which it - was issued, and the validity of the process up- on its face. Id. 3. Petition for. One who applies upon habeas corpus to be admitted to bail, pending an, appeal, after conviction for the crime of manslaughter, must state in his petition fa'ots upon which the Court can exercise an intelli- HABEAS CORPUS.— HOMESTEAD. 179 gent discretion in determining the question ; such as, that injustice has been done -him dur- ing the trial, and that the appeal has been taken in good faith, and others of a like nature. Ex parte Voll, 41 Cal. 29. 4. What cannot be tried on. Neither a Court nor Judge will, on habeas corpus, in- vestigate or decide the question whether the jury impanneled to try the prisoner was prop- erly or legally discharged by the Court, be- cause of its inability to agree on a verdict. Ex parte McLaughlin, 41 Cal. 211. 5. A prisoner, confined on a criminal charge, is not entitled to his discharge on habeas corpus, because a jury impanneled to try him was discharged by the Court, without his consent, by reason of its inability to agree on a verdict. Id. 6. Commitment by Justice, discharge. A commitment by a Justice of the Peace, hold- ing a party to appear before a grand jury to answer upon a charge of murder, must state the name of the person alleged to have been murdered. But the omission of such name is not such a defect as will entitle the accused to be discharged on habeas corpus. Ex parte Bull, 42 Cal. 197. ' 7. Entry in minutes in criminal cases. The entry made in the minutes in criminal cases is part of the record, and errors or omis- sions in the record in that respect can be ex- amined only on appeal, and will not be review- ed on habeas corpus. Ex parte Murray, 43 Cal. 455- 8. Action of Supreme Court as to judgment. Upon habeas corpus, if the Court whose judgment be assailed be one of compe- tent jurisdiction to render a final judgment of the character appearing, the Court will only inquire if the judgment, as rendered, be upon its face certain and definite in terms, so that it may be known what punishment the prisoner is to suffer. Id. 9. Remedy for order erroneously made. " Where a party is held in custody un- der an order which is regular upon its face, and which the Court had power to make, he can- not be discharged upon habeas corpus because of error in granting the order. His remedy is by appeal. Ex parte Hartman, 44 Cal. 32. 10. Questions of mere error cannot be in- quired into upon habeas .corpus. Ex parte Max, 44 Cal. 579. 11. Discharge on. If, on an indictment for assault with intent to commit murder, the jury find the defendant guilty of an " assault to do great bodily injury," and the verdict is received and recorded by the Clerk, and the jury, under instructions from the Court, then retire and find the defendant guilty of an as- sault with a deadly weapon, with an intent to inflict bodily injury, without considerable provocation, and the last verdict is received and recorded, and the prisoner is adjudged guilty of a felony and sentenced to the State prison, it is mere error, which must be correct- ed by appeal, and does not render the judgment void so as to warrant the discharge of the pris- oner on habeas corpus. Id. 12. Discharge from State Prison on habeas corpus. When a judgment of a County Court for a felony is reversed by the Supreme Court, after the prisoner has been sent to the State Prison in pursuance of his sen- tence, the refusal of the County Court to order the prisoner to be brought back to the county for a new trial is no ground for his discharge from custody on habeas corpus. Ex parte Jack Bowen, 46 Cal. 1 12. HARBOR COMMISSIONERS. See Contracts, 22, 23 ; Ferries and Toll Bridges, 1 ; Injunction, 4 ; Office and Officers, 21 ; San Francisco, 13, 14. HEIR. 1. Definition of -word. The word " heir " is not limited in its meaning to one whom an estate of inheritance has descended from his immediate ancestor, but a person ib the heir of one from whom he has inherited by several successive descents. Castro v. Ten- nent, 44 Cal. 253. See Ejectment, 9, 10 ; Estoppel, 38, 39 ; Limitations, 12 ; Land and Land Titles, 197 ; Probate Law and Practice, 66, 89, 194. HOMESTEAD. I. n. in. VI. v. In general. Declaration of. Alienation of. Mortgage on. Inheritance ok. I. IN GENERAL. 1. What constitutes. The homestead represents the dwelling house of the family and necessary outhouses of every kind, and need not. be in a compact form, and may be inter- sected by highways. It is not limited as to quantity, the only limitations being as to its use and value. The homestead dwelling house may also be used as a place of business by the family. Estate of Delaney, 37 Cal. 176. 2. What essential to. The rule, as de- 180 HOMESTEAD. clared,in Gregg v. Bostwick, 33 Cal. 220, is affirmed. Mann v. Rogers, 35 Oal. 316. 3. Possession essential. A homestead right in lands cannot be acquired by one who, as at the time of declaring the same, is out of possession, and has never since had the pos- session ; nor can such right be created and as- serted by a wrongful possessor against one who at the time of such creation was lawfully en- titled to the possession. Id. 4. If a party acquires a homestead right in a tract of land, and subsequently is evicted under a judgment from the part of the tract on which he lived, he may move on the other part, and hold it under the homestead law. Spencer v. Geissman, 37 Cal. 96. 5. What may be held as homestead. A party having a naked possession only of land, the title being in a stranger, may acquire a homestead right thereto, as to everybody but the owner, and such homestead right will be exempt from forced sale on execution, or any final process for any debt. Id. 6. Dedication of land to homestead purposes. The party in possession of land by a dedication of the same to homestead use does not acquire any title which he did not before possess, and if he is in possession wrongfully, ne does not acquire thereby any defense against the claim of the true owner ; but as against the creditors of such party, such dedication to homestead purposes protects the land as much ' as though he was vested with the fee simple title. Brooks v. Hyde, 37 Cal. 366. 7 . Title immaterial. In questions arising between homestead claimants and those claim- ing under or against them as creditors, the question as to whether the homestead claimant "has or has not title is immaterial. Id. 8. The homestead right does not depend upon the character of the title held by the party claiming it. Whatever title he may have is protected from forced sale. Spencer v. Geissman, 37 Cal. 96. 9. Homestead a joint tenancy. In the homestead estate most of the unities of a joint tenancy are to be found. The main difference between a homestead tenancy and a joint ten- ancy at common law is, the want of power in one of the parties in the case of the homestead to sever the tenancy. Barber v. Babel, 36 Cal. II. 10. Tests of homestead. The homestead and the tests by which it is ascertained are the same, whether the question arises between a husband and wife, or one of them and a ven- dee, a mortgagee, a creditor, or the heirs of the deceased husband, or wife. Estate of Delaney, 37 Cal. 176. 11. Claiming a second homestead. A widow to whom the Probate Court has set apart a homestead out of the estate of her de- ceased husband, may, if she afterwards mar- ries, claim a second homestead under the gen- eral Homestead Act, on the estate of her second husband. Higgins v. Higgins, 46 Cal. 259. 12. Homestead in land held as tenant in common. If a husband owns an undi- vided interest in' land, as a tenant in common with others, and is living on it with his fam- ily, his wife may claim a homestead on it to the extent of the husband's undivided inter- est, and to the extent in value of .five thou- sand dollars. Id. See Execution, 21, 29 ; Findings, 25 ; Land and Land Titles, 31 ; Partition, 2. II. DECLARATION OF. 13. Residence at time of declaration. In order to impress the character of a home- stead upon premises, the party claiming the homestead must be actually residing thereon at the time the declaration is filed. Prescott v. Prescott, 45 Cal. 58. 14. Value of homestead. If the home- stead land increases in value after the filing of the declaration, so as to be worth more than five thousand dollars, the same will be de- creased in quantity pro tanto. Estate of De- laney, 37 Cal. 176. 15. As evidence. The declaration of homestead is not evidence of the value of the homestead, even if it states the value ; and if the declaration describes a tract of land, worth more than five thousand dollars, the actual homestead will be enough of the tract de*- scribed, including the dwelling house, to come within said value. Id. 16. Married woman. A declaration of homstead made by a married woman, under the Homestead Act of i860, is valid, notwith- standing her husband never resided or made his home on such homestead, and never exe- cuted or acknowledged the homestead claim made by her, and in the absence of any show- ing as to the causes of his absence from such homestead, or that he had a home or ' fixed residence elsewhere, or any family other than his wife. Gambette v. Brock, 41 Cal. 78. 17. The question as to the validity of the wife's homestead claim, when it appears that she and her husband were living separate by agreement, or that he had abandoned her, or that he had a fixed home and residence else- where, not decided. Gambette v. Brock, 41 Cal. 78. 18. Acknowledgment may be taken by Deputy County Clerk. A Deputy County Clerk has authority to take the ac- knowledgment of a declaration of homestead. Emmal v. Webb, 36 Cal. 197. ni. ALIENATION OF. 19. Homestead a joint estate. By the provisions of the Homestead Act, there is a HOMESTEAD.— HUSBAND AND WIPE. 181 - joint estate in the homestead vested in the husband and wife, -which can only be divested by the concurrent act of both in the manner provided by law. Barber v. Babel, 36 Cal. 11. 20. Deed of. A deed of a homestead, ex- ecuted by the husband alone, gives no right of entry to the grantee, so long as the grantor continues to occupy the premises as a home- stead. Brooks v. Hyde, 37 Cal. 366. 21. Effect of deed by husband. If a 1 deed of the homestead is executed by the husband alone, and he remains thereafter in possession, he does not become either tenant at will or the conventional tenant of the grantee. Id. 22. Title under the Van Ness Ordi- nance. If a quitclaim deed of a homestead within the limits of the Van Ness Ordinance, in San Francisco, was made before January 1st, 1855, by the husband alone, and he re- mained in possession until after said date, the title to the land by virtue of said ordinance vested in the grantor. Id. IV. MORTGAGE ON. 23. Power of husband over home- stead. The husband cannot, by his act alone, affect the right of the wife in the homestead, after the homestead right has once attached by the act of either. Barber v. Babel, 36 Cal. II. 24. The husband cannot, by his act alone, extend the time for commencing an action un- der the Statute of Limitations, upon a note and mortgage given in due form, so as to pro- long a lien upon the homestead. Id. 25. Fraud of husband. The rights of the wife in the homestead cannot be prejudiced by the fraudulent acts of the husband, in which she did not participate. Id. 26. The execution. of a new note and mortgage, by the husband alone, in place of a prior one given on the homestead before the declaration of homestead was filed, does not continue the old mortgage in life, as to the homestead interest, beyond the time when it would otherwise be barred by the Statute of Limitations. Id. See Mortgage, 5-7. V. INHERITANCE OF. 27. Statutory construction. Under the fourth section of the Homestead Act of i860, the legitimate children are entitled to take an interest in the homestead upon the death of either the husband or wife. Rich v. Tubbs, 41 Cal. 34. 28. Since the passage of the Homestead Act of 1862, the children of the deceased hus- band or wife do not inherit any interest in the homestead, but the same vests absolutely in the surviving husband or wife. Id. 29. The inheritance is regulated by the law in force at the time of the death. Ii I 30. Homestead. — Patent. Upon the death of a husband, who has taken up and entered a homestead, under the Act of Con- gress of May 20th, 1862, if the five years have not expired for a patent to issue, the widow, upon performing the remaining conditions, is entitled to a patent, and acquires a title in fee free from all trust in favor of the children, whether adults or minors. Jarvis v. Hoffman, 43 Cal. 314. See Probate Law and Practice, 16-31 ; Wills, 14- HOMICIDE. See Criminal Law and Practice, 4-15. I. H. HI. rv. v. HUSBAND AND WIFE. Separate property. Community property. Gift by husband. Contracts by. Actions by. I. SEPARATE PROPERTY. 1. Management of wife's separate property. The statute giving the husband the management and control of the separate property of the wife during marriage does not affect the right of the wife to bring an action against the husband on a promissory note made by him to her before marriage. Wilson v. Wilson, 36 Cal. 447. 2. If the husband manages the separate property of the wife, he must manage it as her separate property, and she is entitled to enjoy the income. Id. 3. If the husband purchases real estate with the separate property of the wife, but takes the conveyance to himself, the land thus purchased is also the separate property of the wife, as between the husband and the wife. Rich v. Tubbs, 41 Cal. 34. 4. The right of the husband, under the statute defining the rights of husband and wife, to control and manage the separate prop- erty of the wife, does not carry with it the right to sell the wife's personal property. O'Brien v. Foreman, 46 Cal. 80. H. COMMUNITY PROPERTY. 5. Common property liable for wife's sole debt. In an action against the husband 182 HUSBAND AND WIPE. and wife, on a sole debt of the wife, contracted. by her before marriage, a, judgment may be rendered to be collected out of the common property of both husband and wife. Vlautin v. Bumpus, 35 Cal. 214. 6. Unless the contrary appears, the pre- sumption is that all property acquired during the coverture is common property. Althof v. Conheim, 38 Cal. 230. 7. There is no legal presumption that land, the separate property of the husband, conveyed by him to the wife in consideration of money, the separate property of the wife, becomes after such conveyance the community property of the ^husband and wife. Hussey v. Castle, 41 Cal. 239. 8. Control of by husband. The pen- dency of a suit for divorce does not of itself in- terrupt the husband's powers in relation to his right of sale of the community property, al- though he cannot, with the intent to deprive the wife of her claims, in anticipation of a divorce, make a voluntary conveyance of any portion of the community property. Lord v. Hough, 43 Cal. 581, 9. Sale of. In the absence of fraudulent intent, a voluntary disposition of a portion of the community property, reasonable in refer- ence to the whole amount, may be made by the husband. Lord v. Hough, 43 Cal. 581. 10. On dissolution of community. Upon the dissolution of the community by the death of the wife, one half of the common property vests in the surviving children of the deceased, wife. Broad v. Murray, 44 Cal. 228. 11. Descent of. The words, ' ' shall go, ' ' as used in the eleventh section of the Act of 1850, denning the right of the husband and wife, mean " shall vest," and apply equally to the descendant of the deceased husband or wife, as to the survivor. Broad c. Broad; 40 Cal. 493- See Divorce ; Probate Law and Practice, 94. HI. GIFT BY HUSBAND. 12. Fraudulent conveyance by. hus- band to wife. There is no legal presumption that a conveyance of land, made by the hus- band to the wife, is fraudulent as against a judgment creditor of the husband, whose judg- ment was recovered after the conveyance. Hussey v. Castle, 41 Cal. 239. 13. Evidence of intention. Where the point in issue in a case was whether a deed, ' directed by a husband to be made to his wife, inured as a gift to her or not : held, that it was for the Court to decide upon the husband's intentions from his acts and conduct at the time ; and that a question to him, as to what his intentions had been, was properly excluded as immaterial. Woods v. Whitney, 42 Cal. 361. 14. Deed of gift by husband to his mother. A deed of gift of community prop- erty, of the value of four thousand dollars, made by a husband worth one hundred thous- and' dollars, to his mother, in consideration of love and affection, , is not unreasonable in amount. Lord v. Hough, 43 Cal. 581. 15. If a husband, pending a suit for a dit vorce, procures his mother to live with him, and take charge of his infant children, on a promise of providing for her, and makes her a deed of a portion of the community property, these circumstances show that he is not actuat- ed by a fraudulent intent towards his wife in making the deed. Lord v. Hough, 43 Cal. 581. 16. Deed not per se void. A deed of gift of a portion of the community property made by the husband is not void per se. Lord v. Hough, 43 Cal. 581. 17 . If such deed be made with the intent of defeating the claims of the wife in the com- munity property, the transaction is tainted, with fraud. Id. 18. Bargain and sale deed may be shown to be gift. If a husband, who is free from debt, purchase property with com- munity funds and direct the conveyance to be made to his wife, with intent to make it her- separate estate, the deed will take effect as a gift ; and if the conveyance be on its face an ordinary deed of grant, bargain, and sale, re- citing a valuable consideration, it is competent, to show by parol the real facts, in order to re- but the presumption that it is common property. Woods v. Whitney, 42 Cal. 358. 19. Gift from husband to wife. If the husband purchase an estate and pay for it out of the common property, and cause it to be conveyed to the wife by a deed of bargain and sale, with intent that it shall become her sepa- rate property, it operates as a gift from the husband to the wife. Higgins v. Higgins, 46 Cal. 259. 20. Evidence that deed to -wife was. deed of gift. Although prima facie a bargain and sale deed of property to the wife makes it common property, yet the wife may show by extrinsic evidence that it was intended as a deed of gift, and that it was her separate prop- erty, and such evidence does not contradict or vary the deed. Id. ' See Acknowledgment, 2, 3, 5 ; Conveyances,. 10, 29, 30 ; Deed, 4 ; Fraud, 16 ; Homestead j Probate Law and Practice, 32. IV. CONTRACT BY. 21. Contract by. A woman is not per- sonally liable on a contract signed by her hus- band and herself. It is the contract of the hus- band alone. Shartzer v. Love, 40 Cal. 93. 22. Ante nuptial contract. When a married woman has, prior to her marriage en- IDENTITY.— INJUNCTION. 183 tered into a contract which is binding upon her, a specifio performance may be decreed not- withstanding her subsequent marriage. Love v. "Watkins, 40 Oal. 547. 23. An ante-nuptial verbal contract, which is executed by the parties after marriage, can- not be assailed hy the parties thereto, or by third parties, on the ground that it was not in writing. Hussey v. Castle, 41 Oal. 239. See Contracts, 89 ; Sole Trader, 3, 4 ; Specific Performance, 12, 13. V. ACTIONS BY. 24. Wife may sue husband. A wife may maintain an action against the husband to recover money due upon a promissory note executed by the husband to the wife before marriage, and which is the separate property of the wife. "Wilson v. Wilson, 36 Cal. 447, 25. There is no statutory limitation as to the kind of actions that may be maintained by the wife, when they concern her separate prop- erty or are against her husband. Id. 26. Wife as party to a suit. The wife is an improper party to a suit brought to re- cover money loaned, to her to complete the amount of purchase money for a lot of ground, the, deed to which was executed to her, but which became common prqperty, and which purchase was afterwards ratified, by the hus- band. Althof v. Conheim, 38 Cal. 230. 27. Limitation of actions as to married ■women. In this State, prior to 1863, if a married, woman was entitled to maintain an action on a promissory note, the Statute of Limitations did not run as against her right of action during her coverture. Since 1863, the Statute of Limitations runs against a married woman in all those actions to which her hus- band is not a necessary party plaintiff with her. ' Wilson v. Wilson, 36 Cal. 447. See Contempt, 7 ; Evidence, 75 ; Findings, 25 ; Forcible Entry and Detainer, 84, 85 ; Lim- itations, 22-24, 36 S Parties, 7, 8 ; Partition, 7,8; Pleading, 34, 175, 177. IDENTITY. X. Identity of parties presumed from identity of names. Where William J. Doug- las was plaintiff in an action for rent, and the defendant set up a judgment obtained in an- other Court against William J. Douglas with- out averring the identity : held, that the iden- tity of the parties is to be presumed from the identity of names. Douglas v. Dakin, 46 Cal. 49- See Criminal Law and Practice, 1 50. IMMIGRATION. See Constitutional Law, 3, 4. IMPEACHMENT. See Criminal Law and Practice, 40. IMPRISONED DEBTOR. See Habeas Corpus. INDICTMENT. See Criminal Law and Practice, 73-123, 126- 128 ; Trespass, 1. INDORSEMENT. See Negotiable Instruments. I. II. m. IV. INJUNCTION. Various matters in which it has been allowed or refused. Issuance op. Partdss and proceeding's. Dissolution op. I. VARIOUS MATTERS IN WHICH IT HAS BEEN ALLOWED OR REFUSED. 1. Collection of debts. An injunction should not be granted to restrain the defend- ant from collecting debts that are due, when no provision is made by the appointment of a receiver, or otherwise, for their collection. De Oodey v. Godey, 39 Cal. 158. 2. Judgment by default. The collection of a judgment by default will not be enjoined, upon the ground of fraud, where there was no promise, misrepresentation, or understanding between thejparties by which the defendant in the judgment was deceived or misled to make default, and the only circumstance relied upon or proved as fraud is the fact that the plaintiff in the judgment obtained more relief than he 184 INJUNCTION. ■was entitled to. Murdock v. De Vries, 37 Cal. 527. 3. Construction of wharf. A person who is the owner of, and in possession of a private wharf, is entitled to « perpetual injunction, restraining the construction of another wharf in front of his, which will cut his wharf off from the navigable waters of the bay, unless the persons constructing the same show a law- ful right, proceeding from competent author- ity, to erect the proposed wharf. Cowellr. Martin, 43 Cal. 605. 4. A party' attempting to erect a wharf in the navigable waters of the Bay of San Fran- cisco, within or beyond the red line of 1851, under a contract with the Board of Harbor Commissioners, and in front of a private wharf, should be enjoined, at the suit of the owner of the private wharf, if the Commissioners, in letting the contract, have not followed sub- stantially the provisions of the statute. Id. 5. Diversion of ■water. A Court of equity , will not restrain the diversion of water by in- junction until the party complaining is in a condition to use it. While the dam and canal of the party claiming the water are in process of construction, but are not yet in a condition to appropriate the water, the use of the water by other parties is no injury, and such use affords no ground for relief, legal or equitable. N. C. & S. C. Co. v. Eidd, 37 Cal. 282. 6. Execution of judgment. A Court of equity will not interpose, by injunction, to re- strain the execution of a judgment in forcible entry and detainer, against a husband, for land claimed by the wife as her separate estate, upon the ground that she was not made a party to the proceedings, or that she was a sole trader. Saunders v. "Webber, 39 Cal. 287. 7. A perpetual injunction against a judg- ment in ejectment will not be allowed on grounds which could have been set up as a le- gal defense in the action at law. Agard v. Valencia, 39 Cal. 292. 8. A defendant, against whom a judgment has been rendered subsequent to his discharge in insolvency, who has a complete remedy at law, is not entitled to relief in equity by in- junction to restrain the enforcement of the judgment. Kahm v. Minis, 40 Cal. 422. 9. If the judgment of a Justice of the Peace is void on its face, will its enforcement by execution be restrained by injunction? Query f Gates v. Lane, 44 Cal. 392. 10. Water rights and mining rights. The rights of the parties in cases of injury to water ditches are peculiar. While the plain- tiffs have a right of way for their ditch upon the surface, the defendants have also a right to to mine in the bowels of the earth beneath, which rights are not necessarily incompatible. In such case the maxim, qui prior est tempore potior est jure, is not of controlling weight, but it falls under the maxim, sic utere tuo %t alienum non lasdas. Clark v. Willett, 35 Cal. 534- 11. How far, in such a case, where no neg- ligence is charged against the defendants, a Court of equity will interfere by injunction, is not decided. Id. 12. To enjoin washing away ditch. If a party owns a ditch and the right of way for the same to conduct water for mining purposes, and has acquired such right by priority of lo- cation, the Court should not, in an action to enjoin another party from washing away the ground over which it passes, limit the plaint- iff's right, by allowing the defendant to wash away the ditch, if he builds a flume or other aqueduct in place of the ditch, of sufficient capacity to carry the water, and gives bond to pay the damages sustained thereby. Gregory v. Nelson, 41 Cal. 278. 13. Issuance of patent. A Court of equity will not interfere to restrain the issuance of a patent for lands which would not be a cloud on plaintiff's title, and does not include any portion of his land, although the patent when issued would be invalid, and would require evi- dence dehors to show its nullity. Taylor v. Underbill, 40 Cal. 471. 14. Payment of county warrants. A Court of equity, on the complaint of a taxpayer, will enjoin the payment of and cancel county warrants illegally drawn on the Treasurer by order of the Board of Supervisors. Andrews v. Pratt, 44 Cal. 309. 15. Sale on execution. If the owner of a large tract of land contracts to sell a part of it, and the judgment creditors of the party with whom he contracts attempt to sell the whole tract on execution, the Court intimates that the owner may enjoin the sale, except as to the part contracted to be sold. Logan v. Hale, 42 Cal. 645. 16. Tax sale. A Court will not restrain a sale for taxes when it is apparent upon the face of the proceedings upon which the pur- chaser must rely to make out a prima facie case to enable him to recover under the sale, that the sale would be void. Bucknall v. Story, 36 Cal. 67. 17. Enjoining collection of tax. Courts of equity will not interfere by injunction to restrain the sale of property for delinquent taxes, unless it appears that the enforcement of the tax would lead to a multiplicity of suits, or produce irreparable injury, or where the property is real estate, and the .sale casts a cloud upon the title of the complainant. S. & L. Society v. Austin, 46 Cal. 415. 18. Trespasses. The Court will not inter- fere, by injunction, to restrain the commission of naked trespasses, where there is no waste committed. N. C. & S. C. Co. v. Kidd, 37 Cal. 282. 19. In an action for damages and to enjoin future trespasses upon the land, the Court, in INJUNCTION. 185 granting the injunction, should not extend it to land not owned by the plaintiff, although included in the description given in the com- plaint. Moore v. Massini, 43 Cal. 389. 20. Injunction to restrain illegal lia- bilities. An injunction will not he granted to restrain a Board of Supervisors from, incurring liabilities -which are not a legal charge against thecounty. Linden v. Case, 46 Cal. 171. 21. When judgment ought not to be enforced. If a judgment is rendered in favor of one person in trust for others, upon claims assigned to him by such other persons, with- out consideration, and the beneficial owners of the judgment acknowledge satisfaction of the judgment, the trustee, if insolvent, ought not to enforce collection of the judgment by exe- cution, even if the beneficiaries have not been paid. The same is the rule with regard to an assignee of the judgment, if he took the as- signment with notice of the rights of the bene- ficial owners. Meyer v. Tully, 46 Cal. 70. 22. Enjoining judgment. If a person in whose favor a money judgment is rendered in trust for others undertakes to enforce it by ex- ecution, after the beneficial owners have acknowledged satisfaction of it, equity will restrain the collection of the judgment, even if the beneficial owners have not been paid. Id. See Corporations, 68 ; Ejectment, 47 ; Equity, 30 ; Forcible Entry and Detainer, 85 ; Crowing Crops, I ; Mines and Mining, 34. H. ISSUANCE OF. 23. When may issue. The plaintiff in an action is entitled to an injunction at the time of issuing the summons upon the complaint alone, if it makes a proper case and is verified in the manner stated in the one hundred and thirteenth section of the Practice Act ;, but if he asks for an injunction there- after, he must do so upon affidavits. Falkin- burg v. Lucy, 35 Cal. 52. HI. PARTIES AND PROCEEDINGS. 24. Jurisdiction. Under our judicial system, one Court has no power to enjoin the execution of a decree of another Court of co- ordinate jurisdiction, unless it plainly appears that the Court rendering the decree under which proceedings are sought to be stayed is unable, by reason of its jurisdiction, to afford the relief sought. Proceedings for such pur- pose should always be instituted in the Court rendering the judgment or decree the execution of which is sought to be restrained. Crowley v. Davis, 37 Cal. 268. 25. The fact that the parties to the injunc- tion proceeding are not the same as the par- ties to the judgment sought to be restrained, does not relieve the case from the operation of the rule, nor will the consent of parties take a case out from the operation of this rule, which was established and enforced to protect the rights of Courts rather than of parties, to avoid conflict of jurisdiction, and to prevent confusion and delay in the administration of justice. Crowley v. Davis, 37 Cal. 268. 26. Parties in action to enjoin judg- ment. When one of the defendants in a joint judgment sues to have the judgment perpetu- ally enjoined, his co-defendants should be made parties to the action, or sufficient rea- sons for the omission to make them parties should be stated in the complaint. Gates v. Lane, 44 Cal. 392. 27 . In such case, if the defendants in the judgment are not all made parties, the Court should exercise its authority under the seven- teenth section of the Practice Act, and require the omitted parties to be brought in. Id. 28. Sale of tide lands. In an action to restrain the sale or other disposition of tide lands by the State, it is not enough to allege that she has no title, but it should be shown in what manner her title was lost, or for what reason she should be enjoined from selling and disposing of the land which, prima- facie, is subject to her control. Farish v. Coon, 40 Cal. 33. ' 29. Denial of equities. When it appears that all the equities of the complaint, are de- •nied by the affidavits filed on the part of the defense, it is not an abuse of discretion to deny the prayer for a temporary injunction. Kohler v. Los Angeles, 39 Cal. 510. See Appeal, 36, 258, 286 ; Execution, 26 ; Judgment, 17, 34; Pleading, 261. IV. DISSOLUTION OF. 30. On what papers. Where an injunc- tion has been granted without notice to the defendant, he may move to dissolve, first, upon the papers, whatever they may have been, upon which it was granted. ; or, second, upon the papers upon which it was granted, and affidavits on the part of the defendant, -with or without the answer. Falkinburg v. Lucy, 35 Cal. 52. 31. If the defendant rests his motion on the papers upon which the injunction was granted., the plaintiff can make no further showing, but must stand upon his complaint, or his complaint and affidavits, as the ease may be ; but if the defendant makes a counter showing, by affidavits, "with or without the answer, the plaintiff may meet it with a fur- ther showing on his part. Id. 32. If the defendant, moving to dissolve an injunction, uses his verified answer for that purpose, he makes it an affidavit in the sense of the one hundred and eighteenth section of the Practice Act for all the pur- poses of his motion ; and, as in the case of 186 INJUNCTION.— INJURIES. his use of affidavits for that purpose with- out the answer, the plaintiff is equally entitled to reply by way of affidavits on his part. Id. 33. Motion to dissolve. It is no ground for dissolving an injunction upon a motion made upon the complaint alone, that two causes of action has been improperly joined, without separately stating them. Fuhn v. "Weber, 38 Cal. 636. 34. When sufficient equities are shown in the complaint, and which are not denied by the answer, there is no error in refusing to dis- solve an injunction. Fuhn v. Weber, 38 Oal. 636. 35. Denial of equities. A temporary in- junction should not be dissolved on the coming in of the answer, which does not present a full or fair denial of the equities disclosed in the complaint, or which does not deny the prin- cipal matters on which the complaint proceeds, at all. De Godey v. Godey, 39 Cal. 157. 36. The general rule, that when an answer fully denies the equities of the complaint, the injunction should be dissolved, is not one of universal application ; nor does it follow, as a necessary legal conclusion, that the injunction be dissolved on the coming in of such an an- swer. Id. 37. When an injunction has been obtained upon the allegations that the property, the disposition of which is enjoined, is the common property of the plaintiff and defendant, on the coming in of the answer, denying that there is any common property, the injunction should be dissolved, unless the plaintiff shows by affidavits or other competent testimony, that the denials of the answer on that particular are untrue. De Godey v. Godey, 39 Cal. 158. 38. Discretion as to dissolving injunc- tion. Though an injunction should in general be dissolved when all the equities of the bill are denied by the answer, yet there may be circumstances disclosed by the pleadings under which the Court will, in the exercise of a sound discretion, be justified in continuing it tijl the hearing on the merits. McCreery v. Brown, 42 Cal. 457. See Appeal, 204, 205. 39. Affidavits. When the defendant moves, on the complaint and answer, to dis- solve an injunction, the answer will be treated, for all the purposes of the motion, as an affi- davit, and the plaintiff, on hearing of the motion, is entitled to reply to the answer by affidavits. Delger v. Johnson, 44 Cal. 182. ' 40. Service of copies of affidavits. The plaintiff is not required to serve upon the defendant copies of affidavits used in reply to the answer, on a motion to dissolve an injunc- tion. Id. 41. 'When injunction ■will not be re- tained. The injunction will not be retained where it appears that the acts, the performanee of which is sought to be restrained, had been performed before the order for the injunction was made or served. Id. See Action, 47. INJUNCTION BOND. 1. Suit on. An order made by the Court, dissolving an injunction, without assigning the grounds on which the dissolution was granted, is prima facte an adjudication that the plaintiff was not entitled to the injunction, and sufficient to enable him to maintain an action on, the injunction bond. Fowler v. Frisbie, 1,7 Cal. 34. 2. Parties plaintiff in suit. If several - parties are severally in possession of and culti- vating in separate parcels a tract of land, and are sued jointly in ejectment to recover posses- sion of the whole tract, and an injunction is obtained restraining them jointly from taking off the. crops, these parties cannot maintain a joint action for damages on the injunction bond, provided their damages are not joint. They can maintain a joint action for such damages only as are joint, such as attorney's fees. Id. 3. Action for several damages. The fact that the plaintiff brings a joint action against several persons as trespassers, and ob- tains an injunction against them jointly, does not estop him, in an action brought against him on the injunction bond, from showing that the damages were several, and from claim- ing that they cannot maintain a joint action for several damages. Id. 4. Liability of sureties. If the plaintiff, in an action to maintain a perpetual injunction restraining the commission of trespasses, at the time of commencing suit obtains a prelim- inary injunction, and on the trial it is made perpetual, and the judgment is afterwards re- versed and the action dismissed, the sureties on the injunction bond are not liable for any damages accruing after the entry of the decree making the injunction perpetual. Webber v. Wilcox, 45 Cal. 301. See Action, 40, 41 . INJURIES. To Person, See Damages ; Employer and Employee, 5; Evidenpe, 129, 149. To Property, See Damages ; Evidence, 73 > See Generally, Negligence, 11- 17. INSANE ASYLUM.— INSOLVENCY. 187 INSANE ASYLUM. See Office and Officer, n, 14. INSANITY. See Criminal Law and Practice, 140, 141 ; 263, 303-305. INSOLVENCY. 1. Statutory construction. The statute of this State for the relief of insolvent debtors and protection of creditors, (Stats. 1852, p. 69) is in conflict with the Federal Bankrupt Law, passed March 2d, 1867, and has been suspended in its operations from the time said Bankrupt Law went into effect. Martin v. Berry, 37 Cal. 208. 2. Under the Insolvent Law of this State, the Court in which a proceeding under it is commenced acquires the legal custody of the estate of the insolvent petitioner, from the time of making an order staying the creditors from all further judicial proceedings against the petitionor or his estate, as provided in the ' ninth section of said statute ; at which time the Court acquires jurisdiction to conduct said proceedings to a conclusion, without being af- fected therein by a Federal Bankrupt Law which goes into effect at any time after the acquisition of said jurisdiction. Martin v. Berry, 37 Cal. 208. '• 3. Jurisdiction. "Where a State Court has acquired jurisdiction under a State law of a case of insolvency, and is engaged in settling the debts and distributing the assets of the in- solvent before or at the date at which an Act of Congress upon the same subject takes effect, the State Court may nevertheless proceed with the case to its final conclusion, and its action in the matter will be as valid as if no law upon the subject had been passed by Congress. Id. 4. Insolvent Act. The Insolvent Act creates the right or privilege which is sought in the proceedings under it, and the record must show a substantial compliance with its requirements as conditions precedent. Has- tings v. Cunningham, 39 Cal. 137. 5. Validity of proceedings. Every in- tendment may be indulged in favor of the val- idity of the proceedings not inconsistent with the record ; but this rule does not dispense with a substantial corripliance with all the conditions of the statute. The record must, therefore, show such a compliance. Id. 6. If it appear affirmatively from the record that the order to show cause was made one day before the petition was presented to the Judge, it comes within the rule in Hahn v. Kelly,, and is coram non judice and void. Id. 7. No mistake as to date can be presumed,, even if every intendment is to be indulged in favor of the proceeding. This would be a pre- sumption against the record, which cannot lie. Id. 8. Dismissal of action. If an insolvent fails or refuses to answer an accusation of fraud, the Court may dismiss his case. San- born v. His Creditors, 37 Cal. 609. 9. If an insolvent fails to answer a charge of fraud, the Court cannot take his estate and distribute it among his creditors without dis- charging him from their claims against him. Id. 10. Order of Court. An order of the County Judge in insolvent proceedings, made under Sections 5 and 8 of the Insolvent Act, which directs the Clerk to issue an "or- der for the creditors to appear * * * and show cause why the insolvent should not be discharged from his debts, in pursuance of the insolvent laws, and likewise make an assign- ment of his estate for the benefit of his credi- tors,'" is a substantial compliance with said Act. Flint v. Wilson, 36 Cal. 24. 11. The Legislature has the constitutional power to authorize such order to be made at chambers by the County Judge. Id. 12. When title vests in assignee. Under the insolvent law of this State, the pro- ceeding in bankruptcy is the voluntary act of the insolvent, and he is not divested of his right of property, nor does the title vest in the assignee, until a valid assignment is made. Hastings v. Cunningham, 39 Cal. 137. 13. The assignment when properly made, takes effect by relation at the time the petition is filed, and the order staying proceedings is made. Id. 14. Insolvent's conveyance not " as- signment for benefit of creditors." Where Stanford, being in insolvent circumstances and largely indebted, conveyed, by an instrument in writing, certain valuable personal property to five persons, as a committee appointed by and representing themselves, and about ninety- five of his other creditors, reserving in him- self a right to redeem in six days ; and, at the same time, he delivered possession of the prop- erty, and the said creditors gave him receipts in full ; held, that the instrument and transac- tion was not an " assignment for the benefit of creditors, ' ' within the meaning andprohition of Section 39 of the' Insolvent Law. (Stats. 1852, p. 69). Lawrence v. Neff, 41 Cal. 566. 15. Preferences of creditors. There is nothing in Section 39 of the Insolvent Law (Stats. 1852, p. 69) prohibiting an insolvent debtor from conveying his property absolutely, or by way of security, directly to one or more of his creditors, to the exclusion of the re- mainder, Id, 188 INSPECTION OF DOCUMENTS.— INSTRUCTIONS. 16. Section 39 of the Insolvent Law, (Stats. 1852, p. 69) was aimed wholly at "assign- ments for tne benefit of creditors " ; but a conveyance to the creditor himself is not an " assignment," in the sense of the statute. Id. 17. Judgment against insolvent. A judgment rendered against a defendant subse- quent to his discharge in insolvency, in an ac- tion commenced before the proceedings in in- solvency were instituted, is not void on the ground that the judgment was in violation of the restraining order made at the commence- ment of the proceedings in insolvency, or that the defendant was discharged from all his debts and liabilities, including the debt of the plaintiff prior to the rendition of the judg- ment Rahm v. Minis, 40 Cal. 427. 18. Action to set aside. In an action to set aside a discharge in insolvency, because fraudulently obtained, a verdict, which finds that the insolvent did not turn over all his property to his assignee, does not necessarily establish that the property was fraudulently or purposely omitted from the schedule. Tevis v. Hicks, 41 Cal. 123. See Bankruptcy, 2, 3 ; Foreclosure, 7, 10 ; Fraud, 25. INSPECTION OF DOCUMENTS. See Trial, 41, 42. INSTALLMENT MORTGAGE. See Foreclosure, 9. INSTRUCTIONS. I. In general. II. Refusal o*'. III. In vabious causes of action. I. IN GENERAL. 1. Rights of parties. A party is entitled to have a jury instructed upon the law of the case as made by his testimony, if it is not con- tradicted. Sperry v. Spaulding, 45 Cal. 544. 2. Sufficiency of. It is not necessary that a single instruction, given for the purpose of presenting the law upon a point arising upon more than one fact, should contain all the qualifications and provisions that would be necessary if no other instructions were given ; and if, in other instructions, the jury are charged with the inquiry concerning those qualifications and provisions, in other portions of the charge, it is sufficient. Bradley v. Lee, 38 Cal. 362. 3. Modification of. The Court may modify instructions asked, provided the in- structions as given present the case clearly and correctly. Lightner v. Menzel, 35 Cal. 452. 4. Error without injury. A judgment will not be reversed on account of erroneous instructions to the jury, when it is apparent that the verdict would have been the same with correct instructions. Green v. Ophir C. S. & G. M. Co., 45 Cal. 522. 5. If the plaintiff is entitled to a verdict of the jury on the evidence, an erroneous in- struction to the jury on a question of law does not prejudice the defendant. Id. 6. An assumption in instructions to the jury, which, from admissions and in the con- dition of the evidence in the case, was not productive of any injury to the appellant, furnishes no ground of error. Bradley v. Lee, 38 Cal. 362. 7. Assumption of facts erroneous. An instruction which assumes as a fact estab- lished one of the issues tendered by the plead- ings, or which assumes that an outstanding title or right of possession in a third person will defeat the plaintiff's right of recovery against the defendant in a raining suit, is error. Id. 8. It is error to submit to the jury, upon the evidence, the construction of an admitted cus- tom which had been determined by the Court in a previous instruction, as the latter instruc-' tion has the tendency to nullify or destroy the effect of the first, and to confuse the jury upon a material question. Id. 9. Allegation not denied. In a case where a fact is alleged in the complaint and not denied in the answer, the jury should be- instructed that the fact is admitted in the pleadings. Tevis v. Hicks, 41 Cal. 123. 10. Must be supported by evidence.. It is error in the Court to give an instruction where there is no evidence to support it. Mendelsohn v. Anaheim Lighter Co., 40 Cal. 657. 11. How construed. Must be construed in reference jto the proof. Brumagin v. Brad- shaw, 39 Cal. 24. See Appeal, 170, 207, 239, 277, 278, 287, 329, 346, 347 ; Criminal Law and Practice, 289-312; Error, 6, 7; New Trial, 34, 35, 57: n. REFUSAL OF. 12. When may be refused. An in- struction which is sound as a proposition of law, but which has no application to the facts of the case, should be refused by the Court. People v. Best, 39 Cal, 690, INSTRUCTIONS.— INSURANCE. 189 13. Vague and unintelligible. An in- struction which is vague and unintelligible should be refused by the Court. People v. Best, 39 Cal. 690. 14. Not pertinent to issues. Instruc- tions to a jury asked by a party which are not pertinent to any issue in the cause should be refused, even though they embodied correct ab- stract principles of law. Conlin v. S. E. & S. J. R. E. Co., 36 Cal. 404. 15. Unsupported by evidence. In- structions asked niay be refused if there is no evidence upon which to predicate them. Me- cham v: McKay, 37 Cal. 154. 16. When may be refused. If the Court in its instructions to the jury states the law of the whole case fully and fairly, it is not error to reject instructions asked by coun- sel repeating the law in other language. Con- roy v. Duane, 45 Cal. 597. 17. It is not error for the Court to refuse instructions to a jury upon propositions of law having no reference to any evidence introduced. Bowers v. Cherokee Bob, 45 Cal. 495. 18. Already substantially given. Where an instruction asked has already been given substantially by the Court, it is not error to refuse it, but in a criminal case the better course is to give it. People v. Murray, 41 Cal. 66. 19. Right to exception on refusal of. Counsel have a right to propound to the Court, in a jury trial, a proposition of law, as an in- struction to the jury, and is entitlepL either to have it given, or to have an exception entered of record for its refusal. If the instruction is given as asked, he cannot have an exception, haying obtained the benefit of the instruction in the deliberation of the jury; hence, the jury must obey the instruction, else counsel is left as if he had presented none. Emerson v. County of Santa Clara, 40 Cal. 543. See Criminal Law and Practice, 295, 299 ; Exceptions, 12, 13 ; Trial, 74-80. ni. IN VARIOUS CAUSES OE ACTION. 20. Abandonment. In such a case it is not error to refuse to instruct the jury, that after the entry of defendant no neglect or omission of plaintiff in taking or exercising possession of the land can be considered as an indication of abandonment. Sweeney v. Eeilly, 42 Cal. 402. 21. Breach of promise of marriage. Where, in an action for a breach of promise of marriage, the defendant does not, either in his answer or by his testimony, attack the chastity of the plaintiff, it is error for the Court to in- struct the jury that " if the defendant has un- dertaken to rest his defense, in whole or in part, on the bad character or improper conduct of the plaintiff, and failed in his proof, the jury may consider this as an aggravation of damages." Powers v. Wheatley, 45 Cal. 113. 22. Insurance. In an action on a policy of insurance, to recover for a loss occasioned by fire, if the question whether- the plaintiff caused the building to be burned was not one of the issues made by the pleadings, it is error for the Court to instruct the jury they could find against the plaintiff on that ground.. Ca- puro v, Builders' Ins. Co., 39 Cal. 123.' 23. Mining case. On the trial of a min- ing case, the language of an instruction to the jury, ' ' open and subject to appropriation ' under the local usages of the district," does not necessarily imply that a mining claim in the actual possession of a person may be re-lo- cated by another person, if the person in pos- session has not taken the necessary steps - to give him the constructive possession of the claim. Bradley v. Lee, 38 Cal. 362. . 2$. Conflicting claims. An instruction to the effect, that if at the time plaintiffs took up and worked the ground in dispute, defend- ants or their grantors stood by and permitted plaintiffs to work and develop the same without objection or opposition, were matters, if true, to be taken into consideration in determining the conflicting claims of the parties to the premises, is erroneous. Stone v. Bumpus, 40 Cal. 428. 25. Malicious prosecution. In an ac- tion to recover damages for a malicious prose- cution, it is not error for the Court to instruct the jury, that when the plaintiff first rested his case the Court had decided as a matter of law that there was a want of probable cause, pro- vided the testimony of the plaintiff and the admissions in the pleadings warrant it, and the testimony introduced by the defendant has not in any degree tendered to obviate or avoid the want of probable cause made by the pleadings and the plaintiff's testimony. Kinsey v. Wal- lace, 36 Cal. 464. See Contract, 95 ; Ejectment, 117 ; Eorcible Entry and Detainer, 79 ; Land and Land Ti- tles, 254; Libel, 3 ; Malicious Prosecution, 16 ; Mines and Mining, 1,9; Sale and Delivery, 9 ; Mills, 5. INSURANCE. 1. Interpretation of policies. Policies of insurance are written contracts, to be inter- preted by the same rules which apply to other contracts, and to be enforced according to the intention of the parties. W., F. & Co. v. Pa- cific Ins. Co., 44 Cal. 397. 2. Policies of insurance are to be con- strued liberally in favor of the assured. Id. 3. When a policy of insurance provides that the loss shall be estimated when it accrues, and be paid sixty days after due notice and 190 INSURANCE.— INSURANCE COMMISSIONER. proof of the same made by the assured, the company is not bound to pay until sixty days after such notice and proof. Doyle v. Phoenix Insurance Co., 44 Cal. 264. 4. Fire insurance policy. Where » policy of fire insurance upon goods in a store contained a clause prohibiting the use of any burning fluid or chemical oils, and a subse- quent clause expressly permitting the use of kerosene oils for lights in dwellings : held, that the use of kerosene oil as a light in the store 1 rendered the policy null and void. Dennery v. Home Ins. Co., 44 Cal. 320. 5. Where the owner of a store in which the goods were assured slept in a small back room at the store, with his clerk, but kept a kerosene lamp burning at night in the store, for protection against burglars : held, that such use did not constitute the premises » dwelling, so as to avoid a clause in the policy which prohibited the use of kerosene light in the store. Id. 6. Of treasure shipped in vessels. When an express company which is engaged in trans- porting bullion and treasure for hire on vessels, as a common carrier, insures such bullion and treasure, and the policy given by the insur- ance company provides that the express com- pany is insured upon treasure and bullion to be laden at the ports, (naming them) and that the adventure upon such bullion and treasure shall begin from and immediately following the loading thereof on the vessels at the ports named, the clause which provides where the adventure shall begin is not to be construed as a. warranty, but as a mere recital of the ex- pectation that the treasure insured was to be shipped from the designated ports. W., E. & Co. v. Pacific Ins. Co., 44 Cal. 397. 7 . The risk in such policy commences when bullion or treasure is on board the vessel, in the hands of the messenger of the assured at one of the ports named, even if it was not taken on board at one of the ports named, but at some other place in the course of the voyage, •or was handed to the messenger by a passenger, away from one of the ports named. Id. 8. When such policy contained a clause that the agent of the express company should forward to his principal, advices of the amount of each shipment of bullion and treasure, and that the risks should be reported to the insur- ance company for indorsement on the policy as soon as known to the assured, it became the duty of the assured to report to the insurance company the amount of a shipment as soon as it was known, no matter from what source the information was obtained ; but the forwarding of advices by the agent of the assured, of the amount and place of a shipment, was not in- dispensable to the right of the assured, to de- mand an indorsement of the risk on the policy, and to recover payment in case of loss. Id. 9. Report of loss. The fact that, under such circumstances, a loss occurs and becomes known to the assured before it is reported to the insurance company for indorsement on the policy, does not release the insurer from his obligation to make it good, provided it is re- ported as soon as known to the assured. Id. 10. Life insurance. — What is a local disease. A tubercular affection of the lungs, or tubercles upon the lungs, or tubercles on the brain, or consumption, either of them con- stitute a local disease, as matter of law within the meaning of the word "local " when used .by a life insurance company to an applicant for insurance, by asking him if he has a local disease. Scoles v. Universal Life Ins. Co., ,42 Cal. 525.' 11. Usual medical attendant. The question, who was the usual medical attendant upon an applicant for life insurance, is a ques- tion of fact for the jury, in an action on a life insurance policy. Id, 12. Cancelling the policy for non-pay- ment of the premium. A policy of insurance contained the following clause: "If in the opinion of the oompany, the risk be increas- ed, by any means, or if for any other cause the company shall so elect, the company reserve to themselves the right of cancelling this policy. ' ' The premium thereon not being paid, the com- pany gave notice to the insured (after the as- signment of the policy) that unless the prem- ium was paid on a specified day, they would cancel the policy on the following day. The money not being paid on the day mentioned, and a loss subsequently occurring by a danger insured against, in an action on the policy by the assignee, it was held, that the company had the right to treat the policy as rescinded on the day designated in their notice, and that no further act was requisite on the part of the company to effect the rescission. Bergson c. Builderri Ins. Co., 38 Cal. 541. 13. Premium. The payment of the prem- ium is a condition precedent to the right to re- cover for a loss. Id. 14.. Acknowledgment of payment of premium. The acknowledgment of the receipt of the premium in the policy may be contra- dicted. Id. See ' Assignment, 6-8; Evidence, 114; Ex- ecution, 17, 18; Instructions, 22; Pleading, 58; Trial, 25. INSURANCE COMMISSIONER. 1. Requisition to repair capital stock. The Insurance Commissioner may, under the Act of March, 26th, 1868, creating his office, (Stats. 1867-8, p. 336) legally require- an insur- ance company, ascertained by him to be insol- vent, as therein provided, to repair its capital stock without revoking its certificate. Palache i\ Pacific Ins. Co., 42 Cal. 418. , INTEREST. 191 2. Statute construed. The Act relating to the office, powers, and duties of Insurance Commissioner, (Stats. 1867-8, p. 336) plainly distinguishes between the effect of a revocation of a certificate by such Commissioner, and a requisition by him to repair capital stock ; and it does not oblige him to make a revocation be- fore he can require a repair. Palache v. Pacific Ins. Co., 42 Cal. 418, 3. ' Duties of Insurance Commissioner. — Discretion. The duties imposed upon the Insurance Commissioner, though generally de- fined by the Act creating his office, (Stats. 1867-8, p. 336) are in their nature largely dis- cretionary, and depend for their efficient per- formance in a great degree upon the exercise of an enlightened and careful' discrimination with reference to the circumstances of the par- ticular case with which he has to deal. Id. ' 4. No limit to assessments ■when re- quired to repair capital stock. The lim- itation of five per cent, in the imposition of as- sessments upon the capital stock of corpora- tions, as provided by the Act of March 26th, 1866, (Stats. 1865-6, p. 458) has no application to assessments made by an insurance company, in response to a requisition of the Insurance Commissioner, under the Act of March 26th, 1,868, (Stats. 1867-8, p. 336) for the repair of . its capital stock. Id. INTEREST. I. H. m. IV. In general. . Computation of. On contracts. On judgments. I. IN OENERAL. 1. Legal interest. By the use of the term legal interest, in a statute, must be un- derstood interest at a rate per cent, fixed by law; in the absence of special contract, at the date of the passage, of the Act. Beals v. Ama- dor Co , 35 Cal. 624. 2. Statute reducing interest prospec- tive in operation. The Act of March 30th, 1868, (Stats. 1867-8, p. 553) reducing the rate of interest, was only prospective in its oper- ation, and was not intended to take away or ^impair rights which had already accrued un- *der the prior statute. White v. Lyons, 42 Cal. 279. 3. When no provision is made, in a fund- ing statute for the payment of interest after the bonds issued under it have become due, no interest will accrue thereon alter that date. Soher v. Supervisors Calaveras County, 39 Cal. 134. 4. Where, by a prior statute for the ascer- tainment of a debt due from one county to an-, other, and to provide for its payment by a tax which was thereby imposed, without allowing ' or making provision for the payment of inter- est thereon, under which enactment the debt was fully paid, it is competent for the Legisla- ture, by subsequent enactment, to provide for the payment of interest on such debt, by the imposition of a further tax for that purpose. Beals v. Amador County, 35 Cal. 624. See Eminent Domain, 43 ; Equity, 50-51 ; Funds, 8 ; Land and Land Titles, 130 ; Pro- bate Law and Practice, 83-87 ; Tender, 2. II. COMPUTATION OE. 5. Rule for computing. The rule for computing interest where partial payments have been made, is that where the partial pay- ment exceeds the amount then due for interest, the principal sum and interest shall be added together, and the payment deducted, and the remainder will bear interest until the next pay- ment. But if the interest, due at the time of a partial payment, exceeds the amount paid", the payment shall be credited on the accrued interest, and the balance of unpaid interest shall be added to the interest afterwards accru- ing until the next payment. Estate of Den, 35 Cal. 692. 6. The rule of law, except in certain special, equitable cases, is that interest shall not be compounded unless in accordance with the stipulations of the contract between the par- ties. Id.- 7. Reduction from ten to seven per cent The Act of March 30th, 1868, (Stats. 1867-8, p. 553) reduced the rate of interest, in case of the absence of a contract, from ten to seven per cent, per annum ; and the effect was that, though ten per cent, might be computed up to the taking effect of that Act, only seven pijr cent, was allowable afterwards. (White v. Ly- ons, 42 Cal. 279, affirmed as to the effect of a change of Acts allowing interest. ) Randolph v. Bayue, 44 Cal. 336. * 8. Tender. A tender, as far as the com- putation of interest is concerned, must be con- sidered as a payment. Hidden v. Jordan w Cal. 61. ■" in. ON CONTRACT. '■ "'ages. Li an action to recover wages far work and labor, interest can only be re- covered from the time of filing the complaint: McPadden v. Crawford, 39 Cal. 662. 10. Interest stipulated by contract only partly executed. Where an agree- ment was made between Pujol and McKinlay that Pujol should advance money to redeem McKinlay's land from an execution sale ; that he should be paid interest at the rate of two and a half per cent, per month, compounding 192 INTEREST.— INTERVENTION. quarterly on his advances ; that after redemp- tion he should advance a further sum sufficient to make the whole advance three thousand ' dollars, for which sum at the said rate of in- terest McKinlay was to give his note and mortgage ; and it appeared that after redemp- tion and the taking of a Sheriff's deed by Pu- jol, he made no tender of the additional sum, nor did McKinlay tender the note and mort- gage : held, that Pujol was entitled to interest on his advances at the stipulated rate ; that McKinlay could not defeat it on the plea that such was not to he the rate unless the full amount of three thousand dollars was ad- vanced, because Pujol was not in default so long as no tender of the note and mortgage had been made by McKinlay ; and that before McKinlay could ask equity to compel Pujol to transfer the legal title acquired by the Sheriff's deed, he must do equity by paying Pujol his advances with the interest stipulated. Pujol v. McKinlay, 42 Cal. 559. 11. On unliquidated demand. When a claim is uncertain and unliquidated, and the amount due cannot be estimated on the face of the contract, interest on the amount found due by process of law must not be allowed. Brady v. Wilcoxson, 44 Cal. 239. 12. At conventional rate. A party can- not recover interest at a conventional rate, un- less there is an agreement in writing fixing the rate. Goldsmith v. Sawyer, 46 Cal. 209. 13. Partnership. In a contract between two parties, in which it is conditioned that one shall advance the necessary funds in the execution of the contract, and the other his services, skill and experience, and that each shall receive an equal portion of the profits, the party advancing the money is not entitled to interest on the same in the absence of any agreement that he should receive interest. Ferrell v. Jones, 39 Cal. 655. See Contract, 83 ; Negotiable Instruments, 8. IV. ON JUDGMENTS. 14. Statute construed. TheActofi87o concerning interest, allows interest on all money judgments. Bell v. Knowles, 45 Cal. 193- 15. Right to interest. The right to in- terest follows, as a matter of course, when the facts on which it depends are established. Dougherty v. Miller, 38 Cal. 548. 16. Decree enforcing mortgage. A de- cree enforcing a mortgage rendered after the passage of the Act of 1867-8, concerning in- terest, may contain a provision making the sum due bear interest at seven per cent, per annum. Whitcher v. Webb, 44 Cal. 127. 17. Statute construed. Under the Act of 1868, regulating interest, all judgments for the recovery of money bear interest at the rate of seven per cent, from the time the money be- came due thereon, unless the judgment speci- fies a lower rate of interest. Randolph v. Bayue, 44 Cal. 366. 18. The Act of 1868, regulating interest or judgments, applies to judgments for money due oil contracts for improving a street. Id. 19. Under the first section of the Act of March 30th, 1868, regulating the rate of inter- est, all final money judgments, whether for money lent or otherwise, bear interest at the rate of seven per cent, per annum. Clark v. Dunnam, 46 Cal. 204. 20. Judgment between copartners. If a judgment be rendered in an action brought by one partner against his copartners, dissolv- ing the partnership, and directing a sale to be made of the partnership property and a divis- ion of the proceeds — first, to the payment of costs ; second, to the payment of an amount found due to the plaintiff from the partner- ship ; and the balance to be distributed among the partners — the Sheriff, in making the distri- bution, must pay legal interest on the amount found due to the plaintiff. Id. 21. Modification of judgment by Su- preme Court. An order of the Supreme Court, modifying a judgment from which an appeal has been taken, by reducing its amount, does not set it aside so as to prevent it from drawing interest from the time it was rendered by the Court below. Id. 22. Action of tort. Since the Act con- cerning interest, passed April 4th, 1870, judg- ments for money in actions of tort bear inter- est. Atherton v. Eowler, 46 Oal. 320. 23. When there is no contract in writing fixing the rate of interest, interest can be re- covered only at the rate of seven per cent, per annum after the passage of the Act of March 30th, 1868, concerning interest. Id. 24. Interest between time of verdict and judgment. If a judgment is not entered up until some time after the verdict, interest cannot be included in the 'judgment from the time the verdict is rendered up to the time the judgment is entered. Id. > See Appeal, 362 ; Foreclosure, 13 ; Judgment, 16. INTERVENTION. 1. Intervention without objection. If answers of intervention are filed in the Court below, by persons not parties to the record, and the plaintiff makes no objection, but goes to' trial, he cannot afterwards raise the objection in the Supreme Court that it was irregular and erroneous to permit them to intervene. Smith v. Penny, 44 Cal. 161. 2. Motion. A motion for leave to inter- vene in an action, made at any stage of the INTOXICATION.— JUDGMENT. 193 proceedings, presents a judicial question, the decision of -which cannot be reviewed or con- trolled by this Court by mandamus, however erroneous it may be. People v. Sexton, 37 Cal. 532. 3. Right to intervene. In a suit upon a promissory note, by the holder against the maker, a third person, who claims to be the rightful owner of the note, has the right to intervene. Stich v. Dickinson, 38 Cal. 608. See Appeal, 4 ; Lis Pendens, 2. INTOXICATION. See Contract, 21 ; Criminal Law and Prac- tice, 143-145- ISSUES. See Admiralty, 2 ; Probate Law and Prac- tice, 3, 4 ; Trial, 1, 2. JEOPARDY. See Constitutional Law, 19, 20 ; Criminal Law and Practice, 137, 139. JOINT TENANCY. 1. Conveyance in trust. A conveyance to a trustee for the use and benefit of two or more persons, made prior to the passage of the amendatory Act of April 27th, 1855, concerning conveyances, vests the equitable estate in the cestui que trust as joint tenants. Greer v. Blanchar, 40 Cal. 194. 2. Right of Survivorship. There is < nothing in the amendatory Act of April 27th, 1855, showing that it was intended to have a retrospective operation ; and if such were the intention, the Legislature had not competent authority to give such an effect to the statute, as would deprive joint tenants of one of the essential elements of their tenure, the right of survivorship. Id. See Homestead. CAL. DIG. SUP. IS. I. n. in. rv. v. VI. vn. ym. IX. x. XL XII. xin. xiv. JUDGMENT. In general. Relief granted. Entry of. Lien of. Satisfaction of. Finality of. Conclusiveness of. Erroneous judgments not void. Void judgments. Vacating judgments. Collateral attack. Judgment by default. Judgment by confession. Judgment roll. I. IN GENERAL. 1. To accord with pleadings. The judgment must accord with and be warranted by the pleadings of the party in whose favor it is rendered. Bachman v. Sepulveda, 39 Cal. 688. 2. Unusual practice. It is an anomaly in practice to render judgment in favor of a party who is not before the Court, and is not represented in any manner in the action. Bachman v. Sepulveda, 39 Cal. 688. 3. What should be. A judgment should be a simple sentence of the law upon the ulti- mate facts admitted by the pleadings or found "by the Court. 'Gregory v. Nelson,'4i Cal. 278. 4. What should not contain. A judg- ment should not declare the existence of facts which are not within the issues made or ten- dered by the pleadings, nor should it declare the judgment of the Court upon such facts. Gregory v. Nelson, 41 Cal. 278. 5. On facts not in issue. If the judgment decrees the existence of facts not within any issues made or tendered by the pleadings, and. then pronounces the judgment of the Court upon such facts, such part of the judgment is superfluous and void. Id. 6. Construction of. A judgment must be construed in connection with the case made by the complaint, and in view of the law ap- plicable ts the subject. Shepard v. McNeil, 38 Cal. 72. 7. P conveyed lands to M by deed, which was immediately recorded, without receiving any portion of the purchase money, although it was in said deed recited as having been fully paid. Subsequently M conveyed said, lands to K and H for a sound price. From a time long prior to said conveyance from P to M, to and including said conveyance by M to K and H, P had been in the' actual and notorious possession of said lands. At the time of said conveyances, M was in insolvent circumstances . Subsequently, P brought action against M, K and H, to recover personal judgment for said 194 JUDGMENT. purchase money against M, and to enforce therefor as against K and H a vendor's lien on said lands. At the trial, P failed to prove any notice of his equities to K and H, (who de- fended on the ground that they were pur- chasers in good faith, without notice) except such as was imparted to them by P's said con- tinued possession of the lands. Held, that the judgment, which was for P, as demanded, against K and H, was properly rendered. Pell v. McElroy, 36 Gal. 8. Direction ia decree as to applica- tion or proceeds of sale, not a judgment. A clause in a decree enforcing a mortgage directing the Sheriff, out of the proceeds of the sale of the mortgaged property, to satisfy a judgment against the plaintiff in the fore- closure suit in favor of a third person, is not a judgment in favor of such third person (even if he is a party thereto) and against the de- fendant in the foreclosure suit, nor does it give such third person any cause of action against such defendant in the foreclosure suit. Kohl- berg v. Benton, 45 Cal. 265. 9. By Judges at chambers. The Constitu- tion does not prohibit the Legislature from conferring upon District Judges the power to hear and determine actions and proceedings at chambers. Brewster v. Hartley, 37 Cal. 15. See Amendments, 2 ; Appeal ; Constitu- tional Law, 42 ; Courts, 23 ; Criminal Law and Practice, 368-379 ; Estoppel, 21-42 ; Findings, 7 ; Evidence, 121 ; New Trial, 26 ; Nonsuit, 10, 11; Payment, 2; Pleading, 7,> 60, 183, 194, 195, 251-263 ; Water and Water Rights, 9 ; Writ of Possession, 8. II. RELIEF GRANTED. 10. Power of Court. The District Courts in this State, by virtue of their organi- zation and common law powers, have full au- thority, except when limited by the Constitu- tion or Practice Act, to pronounce such judg- ment as the exigency of each case shall re- quire. Stewart v. Levy, 36 Cal. 159. 11. Relief to be granted on verdict. Although when an answer is filed, the Court, under Section 147 of the Practice Act, may grant any relief consistent with the case made by the complaint and embraced within the issue, yet the Court should not grant any relief not prayed for, unless the facts proved within the issues and the circumstances cleariy justify it? N. C. & S. C. Co. v. Kidd, 37 Cal. 282. 12. Judgment by default. Section 147 of the Practice Act, which provides that the relief granted to the plaintiff shall not ex- ceed that asked in the complaint, has no ap- plication to questions of jurisdiction. Chase v. Christianson, 41 Cal. 253. 13. Judgment in gold coin. A party is not entitled to a judgment in gold coin, unless it is averred in the complaint that there was a contract in writing, or that it was understood and agreed by the parties that payment should be made in that kind of coin.- Goldsmith v. Sawyer, 46 Cal. 209. 14. Gold coin judgment. A- judgment for work and, labor performed may be made payable in gold coin, if there is a promise to pay in gold coin. Bradbury v. Cronise, 46 Cal. 287. 15. Currency value. In ejectment, if the Court finds the value of the use and occu- pation of the premises in both gold and cur- rency, a general judgment may be rendered for the currency value. Carpentier v. Small, 35 Cal. 346. 16. Interest on. The Act of 1870 con- cerning interest,' (Stats. 1870, p. 699) allows interest on all money judgments. Bell v. Xnowles, 45 Cal. 193. See Dougherty v. Miller, 38 Cal. 548; Whitcher v. Webb, 44 Cal. 127 ; Randolph v. Bayue, 44 Cal. 366. See Interest, 14-24. 17. On injunction. In an action for an injunction to stay waste, or the asserting of a hostile title by the defendants, and for an ac- counting, and the relief granted is limited to the injunction prayed for, the fact* that a party, only necessary to that branch of the case which relates to the accounting, was sued by a wrong name, does not operate to the prejudice of the defendant, and is immaterial. Parrott v. Byers, 40 Cal. 614. See Appeal, 264 ; Verdict, 1 ; Specific Con- tract Act, 3 . 18. When judgment may authorize a ca. sa. In such action an issue of fraud may be framed and tried, and the defendant, upon proper proof, may be adjudged guilty, and the Court may order an execution against the person of the defendant so adjudged guilty of the fratid. Stewart r. Levy, 36 Cal. 159. III. ENTRY OF. 19. Entry of in vacation. A final judg- ment may be entered either in term time or vacation. Ex parte Bennett, 44 Cal. 85. 20. In cause tried at chambers. Where a cause, of which the Court has juris- diction, is tried at chambers, by consent of the parties, the judgment rendered therein is not necessarily void in the absolute sense, for want of a trial in open court. Id. 21. Entry of judgment in vacation. Where a cause has been submitted in present! , a judgment may be entered in vacation. The power to enter the judgment is not dependent upon or affected by the fact of trial. Id. 22. Submission of cause " in pre- senti." An order of Court that " upon' the filing of the proofs and testimony as taken by JUDGMENT. 195 the Court Commissioner, the case be submitted to the Court and decided at chambers, and the decision and judgment be entered as of this term of Court," is a submission in presenti. Id. 23. Change of conclusions of law by Court. Whether, after the Court has made its findings of fact and adopted its conclusions of law, it may change the conclusions of law, and enter a different judgment from that first ordered, spoken of, but not decided. Sichel v. Carrillo, 42 Cal. 493. 24. When orders may be made. A judg- ment on demurrer rendered in the District Court of the Fifteenth Judicial District for Contra Costa County, in open Court, is valid, notwithstanding the order sustaining the de- murrer was made in San Francisco, and en- tered on the minutes during vacation. Agard v. Valencia, 39 Cal. 292. 25. Stipulation for entering judgment. A stipulation of the. parties that the plaintiff take judgment for a sum named and costs, but that execution be stayed until the decision of a certain other case pending in another Court, and that if said other case is decided for the defendant for a certain reason, the judgment be, set aside, otherwise an execution to issue, authorizes a judgment absolute in terms to be entered for the plaintiff, which will not be set aside if such other case, is decided for the de- fendant, unless it is so decided for the reason given. Keys v. "Warner, 45 Cal. 60. 26. Mistake as to parties plaintiff. A mistake as to the enumeration of parties plain- tiff in entering judgment in ejectment, is no ground for a motion to vacate the judgment. Mann v. Haley, 45 Cal. 653. 27. Correcting mistake. If the Clerk in entering up judgment omits by mistake the names of some of the plaintiffs, the Court will, on motion, allow the mistake to be corrected. Id. 28. Entry of, before ruling upon ex- ceptions. The entry of a judgment before overruling exceptions which have been taken to the findings, does not vitiate the judgment. Haley v. Amestoy, 44 Cal. 132. See Appeal, 155. IV. LIEN OF. 29. Lienholder. The holder of a lien acquired by judicial process, occupies no better position than a purchaser with notice. O'Rourke v. O'Connor, 39 Cal. 442. 30. When a judgment is rendered and be- comes a lien on the real property attached, the lien of the attachment is merged in that of the judgment, and has no effect except to con- fer a priority in the lien of the judgment, and does not revive upon the expiration of the two years' lien of the judgment. Bagley v. Ward, 37 Cal. 121. 31. Subrogation to interest of judg- ment debtor in land. If A makes a verbal contract with B, to sell him a tract of land, and puts B in possession thereof, judgment creditors of B do not thereby, by virtue of the lien of their judgment or the levy of an execu- tion, acquire such an interest in the land as to entitle them to be subrogated to B's rights, and to compel A to make a conveyance to them upon paying him the purchase price which B was to pay. Logan v. Hale, 42 Cal. 645. 32. Lien of judgment creditor. If A makes a verbal contract with B to sell him a tract of land, and B goes into possession, B's judgment creditors acquire no interest in the land except a lien on his interest to be enforced by sale on execution. Id. 33. Judgment lien. A judgment credi- tor, in order to preserve the priority of his lien, must sell the real property within the period of the statutory lien of the judgment, and the levy of an execution during that period neither creates a new lien nor extends the judgment lien. Rogers v. Druffel, 46 Cal. 654- 34. When judgment lien commences to run. The two years within which the judgment creditor must sell the real property dates from the docketing of the judgment, unless execution is stayed by an order of the Court pending a motion for a new trial, or by an appeal with a stay bond. An order enjoin- ing a sale on the execution does not stop the running of the two years' lien, nor extend the time within which the executor's sale must be made. Id. See Attachment, 33. V. SATISFACTION OF. 35. By levy. Although it is a general proposition that a levy under an execution upon sufficient personal property to satisfy It amounts to a satisfaction of the judgment, yet such is not the case as to the debtor if he con- sents to an application of the proceeds of sale to junior executions. Barber v. Reynolds, 44 Cal. 520. 36. By waiving right to proceeds of sale. If a judgment has the first lien on real estate, and mechanics' liens have the second lien, and other judgments the third lien in point of time, and an execution issued on the first judg- ment is levied on sufficient personal property to satisfy it, and executions on the other judg- ments are then levied on the same, and the attorney for the plaintiff in the first judgment consents that the proceeds of sale be applied to the other judgments, the first judgment will ■ be deemed satisfied as against the mechanics' liens. Id. 37. Notice of matters affecting validi- ty of judgment. If the plaintiff in a judg- ment bids in real estate sold on execution 196 JUDGMENT. issued under it in the name of another person, but applies the amount due on the judgment in payment of the bid, and is himself- the real purchaser, such other person will be deemed to have notice of all matters affecting the valid- ity of the judgment and sale under it, which were within the knowledge of the plaintiff in the judgment. Id. VI. FINALITY OF. 38. Final judgment. A judgment of the Court below, from which an appeal is pending, is a final judgment, in contemplation of Section 21 of the United States Bankrupt Act. Merritt v. Glidden, 39 Cal. 559. 39. Confirmation of report of Commis- sioners. An order of the District Court, con- firming the report of the Commissioners ap- pointed under the Railroad Law to condemn lands for railroad purposes, is a final judgment, within the meaning of Section 347 of the Practice Act. Phillips v. Pease, 39 Cal. 582. 40. Judgment of reversal. The effect of the order " judgment reversed and cause re- manded ' ' is only to set aside the judgment that a new trial may be held, unless it is ap- parent from the opinion of the Court that the adjudication was intended to be a final dispo- sition of the cause. Ryan v. Tomlinson, 39 Cal. 639. 41. Dissolving partnership. A judgment dissolving a partnership and directing a sale of the partnership property and a division of the proceeds, is a final judgment. Clark v. Dun- nam, 46 Cal. 204. VII. CONCLUSIVENESS OF. 42. Conveyance upon trust. If V convey to F upon trust to sell enough land to pay a note held by him, and then to reconvey what shall be left unsold ; and if F during the trust sues A to recover some of the land, and is de- feated ; and if, after the land is reconveyed, V sues A, relying upon the same title, the judg- ment against F is conclusive, if pleaded by A against a recovery by V. Vance v. Lincoln, 38 Cal. 586. 43. On matters in issue. A judgment is conclusive only upon questions involved in the action, and upon which it depends, or upon matters which, under the issues, might have been litigated and decided in the suit. Phelan v. Gardner, 43 Cal. 307. 44. Who judgment concludes. A judg- ment concludes only the real party in interest. Stoops r. Woods, 45 Cal. 439. 45. A defendant in possession, not directly interested in the question in litigation between other parties to the action, should not be af- fected by the results of such litigation. Wei ton v. Palmer, 39 Cal. "456. See Post, 89; Ejectment, 152; Estoppel; Landlord and Tenant, 32, 33 ; Lis Pendens, 3 ; Partition, 20 ; Probate Law and Practice, 38 ; Trial, 6 ; Writ of Possession, 5-7. VIII. ERRONEOUS JUDGMENTS NOT VOID. 46. Of District Courts. If the District Court has jurisdiction of the person of the de- fendant and the subject matter of the action, its judgment is not void, however erroneous it may be. Moore v. Martin, 38 Cal. 428. 47. When jurisdiction attaches. A judgment rendered by the Court in a cause in which it has jurisdiction of the subject matter and of the person is not void, even though it may exceed ^he measure of relief demanded in the complaint, and no answer may have been filed. Chase v. Christianson, 41 Cal. 253. 48. Stay of execution. The Court will not, on motion, order a perpetual stay of ex- ecution on an erroneous judgment, if it had jurisdiction of the subject matter and of the person of defendant. Id. 49. Judgment for a less sum than that admitted to be due. It is error to render judgment for a less sum than that which is ad- mitted to be due by the pleadings. Nunan v. San Francisco, 38 Cal.' 689. 50. Joint judgment. — Community of interest. Where there are several defendants, and no community of interest or ownership in the property is shown by them, a joint judg- ment in their favor is erroneous. Page v. Fow- ler, 39 Cal. 412. 51. When for possession for defendants already in possession. A judgment that the plaintiffs take nothing as against certain defendants, and that those defendants recover from the plaintiffs the possession of portions of the premises specially described, when those tracts were, at the time, in the possession of the respective defendants, is in that respect er- roneous. Judson v. Malloy, 40 Cal. 299. 52. Fraudulent conveyance. In an ac- tion brought against the grantee, to set aside a conveyance made by a deceased debtor,, on the ground that it was made to hinder and delay creditors, to which the representative of the deceased debtor was not a party, it is error to render a judgment declaring a trust against the grantee and im favor of the estate of the grantor. Bachman v. Sepulveda, 39 Cal. 688. 53. On fraudulent deed. If a deed is fraudulent in law and void, the proper judg- ment is that the deed be cancelled. The judg- ment should not direct the grantee to reconvey. Upton v. Archer, 41 Cal. 84. 54. Repugnancy to facts admitted. Any finding or judgment of the Court, re- pugnant to facts admitted by the pleadings, is erroneous. Gregory v. Nelson, 41 Cal. 278. JUDGMENT. 197 55. Joint judgment erroneous as to one defendant. A joint judgment on a promissory note rendered against the adminis- trator of a deceased maker and the surviving makers, is erroneous as to the administrator, if it is not made payable de bonis testatoris, but this error does not invalidate it as to the other defendants. Bank of Stockton v. How- land, 42 Oal. 129. 56. When judgment by confession fraudulent. If a statement for the entry of a judgment by confession on a promissory note merely states that the note was given for money due, the judgment entered upon it is prima facie fraudulent as to the creditors of the defendant, but it is not so fatally defective as to be void. The presumption which arises that such judgment was fraudulent may be re- butted by proof of the necessary facts which were omitted from the statement. Pond v. Davenport, 44 Cal. 482. 57. When judgment not void. A judg- ment is not void as to creditors because the ac- tion is commenced before the maturity of the note which was the cause of action, and the defendant confesses judgment without service of. process. Pond v. Davenport, 45 Cal. 225. 58. Of Courts of first instance. The judgment of Courts of first instance, and the titles acquired under them, are valid, notwith- standing they migbjt be void if tested by the strict rules of common law. Ryder v. Cohn, 37 Cal. 69. 59. Of District Court. A judgment of the District Court, bounded upon a judgment of a Justice of the Peace, which is in excess of his jurisdiction, and therefore void, is er- roneous, but not void, and therefore valid as against a collateral attack. Moore v. Martin, 38 Cal. 428. 60. Of Justice of the Peace. If, on a jury trial before a Justice of the Peace, the jury find a verdict for a sum certain for the plaintiff, and the Justice thereupon enters the verdict in his docket, but fails to enter up a judgment, it is an irregularity ; but not such an one as renders a sale made upon an execu- tion, which recites a judgment issued thereon, void. Lynch v. Kelly, 41 Cal. 232. See Claim and Delivery, 16 ; Ejectment, 129, !3 6 i 137, 153; Equity, 30; Injunction, 9; Ju- dicial Sale, 35; Mandamus, 46; Partition, 17, 18, 22. IX. VOID JUDGMENTS. 61. Against a person not a party. When the record does not disclose any service of summons, but a person not named as defend- ant answers, and judgment is afterwards ren- dered against another person not named in the complaint and who does not appear, the judg- ment is void. Ford v. Doyle, 37 Cal. 346. 62. Judgment without service of pro- cess or appearance. A judgment against a person not served with process, and who en- tered no. appearance in the action, cannot be sustained. Hawkins v. Abbott, 40 Cal. 639. 63. Substitution of executor as de- fendant. If, pending an action, one of the defendants dies, and on plaintiffs' motion his executor is substituted as defendant in his place, and no notice of this fact is served on the executor, and he does not appear or answer, or adopt the answer of his testator as his own, and the testator is named in the judg- ment, the rights of the executor are not affected , by the trial and judgment, and a judgment rendered is a nullity, so far as he is concerned. ■ McCreery vs. Everding, 44 Cal. 284. 64. Judgment in favor of one dead. A judgment in favor of a dead man is a nul- lity. Id. 65. Judgment not supported by plead- ings. A judgment that is not supported by the pleadings is as fatally defective as one which is not sustained by the evidence. Bach- man v. Sepulveda, 39 Cal. 688. X. VACATING JUDGMENTS. 66. Motion to set aside. If, under the sixty-eighth section of the Practice Act, au- thorizing the Court to relieve a party, or his legal representatives, from a judgment taken against him through his mistake, inadvertence, surprise, or excusable neglect, a motion is made, by persons other than the plaintiff, claiming to be his legal representatives, to set aside a judgment, and to be substituted as plaintiffs, the parties making such motion must show such a state of facts as would have supported such an application by the plaintiff in the judgment. Corwin v. Bensley, 43 Cal. 253. 67 . Possibly the above rule would not ap- ply in case of an executor or administrator, moving in behalf of creditors to open a judg- ment collusively or negligently suffered by the testator, or intestate, by which the cred- itors may be damnified. Id. 68. Evidence in action to set aside judgment. In an action to set aside a judg- ment in a former suit between the same parties, obtained, as alleged, by a fraudulent and collusive compromise with plaintiffs' (then) attorney, it is necessary for the plaintiffs to show that they were defrauded by the compro- mise ; and, therefore, the merits of the former suit are the proper and necessary subjects of inquiry in the second. Preston v. Hill, 38 Cal. 686. 69 . What record must show as against direct attack. In order to maintain a judg- ment on the merits, directly attacked as on appeal therefrom, it is requisite that the record should show that the Court had juris- diction of the person against whom the judg- 198 JUDGMENT. raent was rendered, and that such judgment was warranted by the pleadings of the party in whose favor it was rendered ; and in determ- ining these questions recitals in the judgment cannot be regarded. McKinlay v. Tuttle, 42 Oal. 571. 70. The doctrine announced in Hahn v. Kelly, 34 Cal. 391, as to the presumptions in- dulged in favor of the jurisdiction and correct- ness of recitals of judgments of Courts of general jurisdiction, applies only in cases where the attack is collateral, and not where the attack is direct. Id. 71. Recitals in judgment not received on direct attack. Upon a direct.attack, the recitals in a judgment will not be accepted as a substitute for the summons and proof of serv- ice, to show jurisdiction of the person of defendant, any more than would recitals in it be received instead of the necessary allegations of the pleadings. Id. See Equity, 41, 42, 44, 53 ; Writ of Posses- sion, 4. XI. COLLATERAL ATTACK. 72. What essential to validity on col- lateral attack. Where the record in an ac- tion for foreclosure contains an admission of . service indorsed on the summons, purporting to be signed by the defendant — a default duly indorsed, and the judgment recites " service duly proved ": held, that this was sufficient to establish the validity of the judgment against a collateral attack. Sharp v. Lumley, 34 Cal. 611. 73. Where the decree in an action by M against S, B, and others, for foreclosure of a mortgage, recited that " the defendants above named, having been duly served with process, * * * * as appears by the proof of service of the process issued herein and on file in this action," etc. : held, that this recital, under the rule in Hahn v. Kelly, 34 Cal. 390, is conclusive in favor of the jurisdiction of the Court of the persons of said defendants. Sharp v. Brunnings, 35 Cal. 528. Affirmed, Quivey v. Porter, 37 Cal. 458. ' 74. For -want of jurisdiction of the person. On a collateral attack of a judg- ment rendered by a Court of record for want of jurisdiction of the person of the defendant : held, first, that in ascertaining whether a want of jurisdiction appears, the whole record, which consists exclusively of the judgment roll, must be consulted ; and second, that in caBe of serv- ice of summons by publication, neither the affidavit nor the order for its publication form a part of the judgment roll. Quivey v. Por- ter, 37 Cal. 458. 75. Where, in an action brought in the District Court by Q against Joseph H. Ruckle, the return made by the Sheriff of service of the summons showed only that George S. Buckle had been served, while the judgment recited that Joseph S. Ruckle had been duly served with process, etc. : held, that said recital in the judgment is not contradicted or overcome by said return of the Sheriff, and that such judgment is not liable to a collateral attack for want of jurisdiction of the person of the defendant. Id. 76. Attack on judgment by confession. A judgment for money, by confession, upon » statement which does not sufficiently state the facts out of which the indebtedness arose, nor that the amount confessed is justly due, is not a nullity on its face. Such judgment cannot be collaterally attacked. It can only be called in question by the creditors of the defendant on the ground of fraud, and in a direct pro- ceeding for that purpose. Lee v. Eigg, 37 Cal. 328. 77. Recitals conclusive. If the judg- ment of the District Court recites, " Now comes the plaintiff by his attorney, and the defendant in proper person, ' ' the recital is con- clusive in favor of the jurisdiction of the Court over the person of the defendant in a collateral proceeding. Moore v. Martin, 38 Cal. 428. 78. E0ect of. When the judgment re- cites that all owners and claimants of property have been duly summoned to answer the com- plaint and have made default, the judgment in this respect cannot be impeached in a collateral action, although it appear that the name of one of the owners was omitted in the published summons. Eeily v. Lancaster, 39 Cal. 354. 79. Collateral attack on judgment. A judgment cannot be collaterally attacked on the ground that the costs were improperly taxed or inserted in the judgment. Rogers v. Druffel, 46 Cal. 654. 80. Decree conclusive. The decree of a Court of competent jurisdiction, for the sale of lands alleged to be delinquent in the pay- ment of taxes, is conclusive on the owner, and on the premises, of the truth of the matters ad- judged, and no mere collateral inquiry can be allowed on that point. Mayo v. Foley, 40 Cal. 281. '' 81. Judgment against married woman. A judgment against a married woman upon a contract, made by her during the marriage, is valid until reversed, and cannot be impeached in a collateral action on the. ground of her coverture. G-ambette v. Brock, 41 Cal. 78. 82. When jurisdiction attaches. If the Court has jurisdiction of the subject matter, and acquires jurisdiction of the person of the defendant, the decision of all other questions arising in the cause is but the exercise of that jurisdiction, and an erroneous decision of any of these other questions cannot impair the val- idity and binding force of the judgment, when brought in question collaterally. Chase v. Christianson, 41 Cal. 253. 83. Decree by consent. Where a de- JUDGMENT. 199 cree recited that defendants consented io the entry thereof : held, that it -would be presumed, against collateral attack, that Buch consent was so presented as to give the Court jurisdic- tion of their persons at the date of decree. Foote v. Richmond, 42 Oal. 440. 84. Against innocent purchaser. Against a stranger who is an innocent pur- chaser at a judicial sale, without notice, the judgment is no more open to attack than if offered in evidence in a collateral action. Reeve v. Kennedy, 43 Cal. 644. 85. For larger sum than proofs justify. A judgment is not void because it is for a larger sum than the proofs justify, nor is an execution void because it is for a larger sum than the judgment authorized. Id. 86. Judgment valid on its face. If a judgment on the face of the roll appears to be valid, thoBe who purchase property on the faith of it are protected, even if it was procured by fraudulent practice, if they had no aotual no- tice of such fraudulent practice. Hayden v. Hayden, 46 Cal. 333. 87. Contrary to stipulation. A judgment cannot be attacked collaterally by evidence to show that the parties stipulated to a different judgment from the one entered. Hobbs v. Duff, 43 Cal. 485. 88. Reforming judgment. A judgment which is riot what it should have been can be reformed only in a direct proceeding brought for that purpose. Id. 89. Conclusiveness of judgment. The minutes of the Court, if they differ from the judgment roll, are not admissible in evidence for the purpose of varying or contradicting the roll. Id. 90. Service of summons by publication. In a collateral attack on a judgment which recites the service of summons by publication, the affidavits and order showing service can- not be considered. McCauley v. Fulton, 44 Cal. 356. 91. When a judgment entered by default, upon a service of summons made by publica- tion, recites that it was entered in pursuance of an order, the presumption is that it was en- tered in pursuance of an order of the Court, and the judgment is not void on its face. Id. 92. Recitals in a judgment as to serv- ice of process. Upon a collateral attack, thejrecitals in a judgment are conclusive of the question of jurisdiction of the person, when the judgment is rendered by a Court of super- ior jurisdiction. Id. 93. In a collateral attack on a judgment of a Court of superior jurisdiction, all intend- ments are indulged in its support, and what- ever is upon its record is presumed to have been rightfully done. Drake v. Duvenick, 45 Cal. 455- -. 94. On judgment foreclosing a mort- gage. Where there is attached to a, decree foreclosing a mortgage, a stipulation, signed by the attorneys, consenting that it may be entered as the decree in the case, and the de- cree is filed with the Clerk, and is entered and copied at length in the Judgment record book, and. at the foot of the record is the entry, "Decree rendered on the 15th of October, 1856," there is nothing which shows that the judgment was not the act of the Court, and it cannot be successfully attacked in a collateral proceeding. Drake v. Duvenick, 45 Cal. 455- 95. Presumption in favor of validity of judgment. When a purchaser under a Sher- iff's sale enters into possession under the Sher- iff's deed, with the knowledge of the defend- ant, and he continues for several years to re- side near the land, and suffers the purchaser to remain in possession, and acquiesces in such adverse possession of the purchaser, and buys back a part of the land, these facts are suffic- ient to warrant the Court in presuming, in a collateral attack on the judgment, that every- thing necessary to the validity of the judg- • ment was not only performed, but rightfully performed. Id. See Ante, 59, 70 ; Insolvency, 7. XII. JUDGMENT BY DEFAULT. 96. Jurisdiction of the person. A judg- ment by default is valid if it contains a recital that the defendant was personally served with process, although the certificate of service of summons found in the judgment roll fails to show that the service was sufficient. Quivey v. Baker, 37 Cal. 465. 97. For damages. A judgment on default for damages is erroneous, if no amount of dam- ages, nor a prayer for damages, be contained in the complaint, notwithstanding the com- plaint states facts sufficient to sustain a judg- ment for damages. Pitts C M. Co. v. Green- wood, 39 Cal. 71. 98. Relief granted. Section 147 of the Practice Act, which provides that the relief' granted to the plaintiff shall not exceed that asked in the complaint, has no application to questions of jurisdiction. Chase v. Christian- son, 41 Cal. 253. 99. Entering up a default. It is not nec- essary that the default of a party should be ac- tually entered up by the Clerk, before a judg- ment can be taken against him. Drake v. Du- venick, 45 Cal. 455. 100. Setting aside judgment taken by default. An order to release a party from a judgment taken against him by default under the sixty-eighth section of the Practice Act, should only be granted upon the terms, as a condition precedent, of payment of all costs accruing to the adverse party to the time of service and filing of notice of motion therefor. Leet v. Grants, 36 Cal. 288. See Appeal, 314, 315; Default, 15; Injunc- tion, 2 ; New Trial, 113. 200 JUDGMENT ROLL.— JUDICIAL OPINIONS. XIII. JUDGMENT BY CONFESSION. 101. Definition of. If an action is com- menced and a summons served, and the defend- ant, before the time for answering expires, files a, verified statement consenting to a judgment, and specifying the amount, and undertaking to state the subject matter of the indebtedness, a judgment entered on such statement is a judg- ment by confession, under the three hundred and seventy-fourth and three hundred and seventy-fifth sections of the Practice Act. Pond v. Davenport, 44 Oal. 482. 102. Statement for judgment by con- fession. A statement for judgment by con- fession on a promissory note, should state fully the facts out of which the indebtedness for which the note was given arose. It is not suffi- cient in such statement to say that the promis- sory note was given for money due the plaintiff from the defendant. Id. See Ante, 56. XIV. JUDGMENT ROLL. . 103. Docketing judgment. The statute does not require the docketing of the judgment to precede either the issuing or service of the execution. Hastings v. Cunningham, 39 Cal. 137- 104. Order submitting demurrer. An . order submitting a demurrer, where it is taken under advisement, forms no part of the judg- ment roll. Anderson v. Fisk, 36 Cal. 625. 105. Judgment docket. It is not con- templated that there shall be more than one judgment docket in each county. Gillis v. Barnett, 38 Cal. 393. 106. What constitutes. An order sus- taining a demurrer to a defendant's cross-com- plaint and the bill of exceptions, constitutes a part of the judgment roll. So also does the motion to strike out parts of pleadings, when referred to in the bill of exceptions. Packard v. Bird, 40 Cal. 378. 107. Interlocutory decree. An inter- locutory judgment comes within the spirit and meaning of the statutory requirement that the judgment shall constitute a portion of the judgment roll. Packard v. Bird, 40 Cal. 378. ' 108. Justice's judgment on verdict of jury. " The formal entry of a judgment by a Justice of the Peace, upon the verdict of a jury, is a mere clerical duty, which he may be com- pelled to perform ; and if he fails to do so, » motion to set aside an execution should be sus- tained ; but an execution issued by the Jus- tice, which recites a judgment, is not void by reason of his failure to enter the judgment. Lynch v. Kelly, 41 Cal. 232. See Evidence, 65, 105-109 ; New Trial, 76. See, in Various Actions, Arbitration, 4 ; Claim and Delivery, 17-19 ; Corporations, 85, 86, 243 ; Ejectment, 125, 132, 136-144, 150 ; Eminent Domain, 32 ; Forcible Entry and Detainer, 84, 85 : Foreclosure, 10, 12-15 > In- junction, 2, 6-9, 21,22, 26,27 ; Insolvency, 17 ; Land and Land Titles, 29 ; Lien, 2 ; Manda- mus, 22,27 > Mechanics' Lien, 2, 31 ; Partition, 14-20; Quieting Title, 16; Sole Trader, 5 ; Streets and Street Assessments, 121-122 ; Su- pervisors, 20-22 ; Taxation, 138— 141 ; Tenants in Common, 6. JUDGMENT ROLL. See Appeal, 220-229 ; Judgment, 103. JUDICIAL ACT. 1. Ministerial act. The performance of a ministerial act by a judicial officer does not constitute the act itself a judicial proceeding. People v. Bush, 40 Cal. 344. JUDICIAL DISTRICT. ! Evidence, 22 ; New Trial, III. JUDICIAL NOTICE. See Evidence, 21-25. JUDICIAL OFFICER. See Courts of Justice. JUDICIAL OPINIONS. 1. Dicta. In construing judicial decis- ions, that only is held to be authoritatively de- cided which was necessarily involved in the decision of the cause. Banks v. Moreno, 39 Cal. 233. See Appeal, 375-387 ; Eminent Domain, 31 ; Stare Decisis, 1 . JUDICIAL SALE. 201 JUDICIAL SALE. I. In geneuat,. n. Redemption. m. Sheriff's deed. IV. PURCHASER AT SALE. I. IN GENERAL. 1. When void. Sales to a bo.nafide pur- chaser under voidable executions are valid, though the executions be afterwards set aside, but sales under void executions, are invalid, and pass no title, even to a bona fide pur- chaser. Hunt v. Loucks, 38 Cal. 372. 2. Common law rules as to validity. The two hundred and thirty-seventh section of the code does not change the rules of the common law as to the validity of judicial sales, but guards against their mischievous consequences in certain cases, by affording a remedy which the common law does not. Id. 3. When valid. A sale made under a valid, though erroneous judgment, which has not been reversed or set aside, is valid. Moore v. Martin, 38 Cal. 428. 4. Sale under erroneous judgment. If a judgment for a tax enforces a lien on real estate, not only for the tax on the land, but' also for the owner's tax on personal property, and the latter is erroneous, a sale made under the judgment is not void, nor can it for that reason be impeached in an action brought to set it aside. Reeve v. Kennedy, 43 Cal. 643. 5. Tax sales. The principles applicable in other judicial sales are applicable to sales under judgments enforcing liens for taxes. Jones v. Gillis, 45 Cal. 541. 6. When sale conveys an equitable title. If, after the levy of an execution by the Sheriff on public land, and before the sale, the judgment debtor, being a pre-emptioner, pays for the land levied on, and obtains a cer- tificate of purchase, the purchaser at the Sheriff's sale succeeds only to the equitable title of the judgment debtor, who, when he obtains the legal title by means of the patent, holds it in trust for the purchaser at the Sher- iff's sale. Kenyon v. Quinn, 41 Cal. 325. • See Attachment, 36 ; Contract, 37 ; Convey- ances, 10, 11; Corporations, 48 ; Foreclosure, 21 ; Growing Crops, 1 ; Judgment, 84; Hen, 4 ; Pleading, 56, 80 ; Probate Law and Prac- tice, 45-54- II. REDEMPTION. 7. By transfer of certificate. A re- demption from Sheriff's sale is a transfer of the certificate of sale ; and if a redemption is made to the satisfaction of the purchaser, and the person redeeming was entitled to redeem, the Sheriff's deed to the redemptioner passes the same title that it would have passed to the purchaser if executed to him without re- demption, even if the statutory requirements were waived by the purchaser, and he received less than he was entitled to. Bagley v. Ward, 37 Cal. 121. 8. Redemptioner. If A enters into a contract with B to pasture for B a stated number of cattle for a given number of years, and to secure the fulfillment of the contract, executes to B a mortgage on his land, and a judgment is afterwards recovered against B, on which an execution issues, and a sale is made of B's cattle so being pastured on said land, such sale does not give to the purchaser of the cattle a title to the contract and mortgage, nor does it make him a redemptioner, if the land is sold on a prior mortgage. Abadie v. Lobero, 36 Cal. 390. 9. Purchaser. — Rights of. If a pur- chaser at Sheriff's sale treats one not entitled to redeem as a redemptioner, receives from him the redemption money, and gives a certificate of redemption, the most that such party so claiming to redeem can acquire by the trans- action is the interest of the purchaser as pur- chaser. He acquires no title to the judgment under which the sale took place. Abadie v. Lobero, 36' Cal. 390. 10. A purchaser at execution sale, as be- tween himself and a redemptioner, may waive the production of the papers mentioned in the statute as necessary to entitle one to redeem, and such waiver is good as between himself and the parties thereto ; and a. creditor not claiming to be a redemptioner, but selling the property under his own execution, has no right to complain of such waiver, and. cannot claim that the redemption was insufficient be- cause such papers were not produced. Bagley v. Ward, 37 Cal. 121. 11. Effect of redemption or assignment of certificate. A purchaser at Sheriff's sale does not by such purchase acquire any interest in the judgment upon which the execution or order of sale issued, or the debt or mortgage upon which the judgment was rendered ; nor does a redemptioner, as such, or an assignee of the certificate of sale, when the purchaser was the plaintiff, acquire any interest in such judgment, debt, or mortgage. Abadie v. Lobero, 36 Cal. 390. 12. Evidence of a redemption. If one party introduces evidence showing that a re- demptioner redeemed from a Sheriff's sale, the other party may then introduce the Sheriff's deed to the redemptioner, without also show- ing that the papers required by the statute to entitle one to redeem were produced. Bagley v. Ward, 37 Cal. 121. 13. Occupation of land during period of redemption. The occupation of the prem- ises from the time of the Sheriff's sale to the execution of the Sheriff's deed, renders the 202 JUDICIAL SALE. tenant prima facie liable to the purchaser for the rent. Webster v. Cook, 38 Cal. 423. 14. Payment by the tenant in ad- vance. If the rent was paid in advance, that is a matter of defense, and should be set up by the defendant in avoidance of his prima facie liability to the purchaser for rent. Webster v. Cook, 38 Cal. 423. 15. If the tenant in possession pay the rent in advance to the defendant in the execu- tion after the sale, it will not relieve him from the liability cast upon him by the stat- ute to pay the rent to the purchaser. Id. 16. Rents and profits of possessory claim. Where the possessory claim of a set- tler on public land was sold out on execution, and he afterwards entered the same land as a homestead, under the Act of Congress of May 20th, 1862 : held, that, though the purchaser under the Sheriff's deed might not be entitled to the possession of the land, which had so been entered as homestead, he was entitled to the rents and profits for so long as the settler occupied the land intermediate the Sheriff's deed and homestead entry. Emerson v. San- some, 41 Cal. 552. See Equity, 21 ; Evidence, 104 ; Foreclos- ure, 25. III. SHERIFF'S DEED. 17. Void. If a Sheriff's deed be given before the time for redemption has expired, it is void. Moore v. Martin, 38 Cal. 428. 18. A Sheriff's deed of real estate, exe- cuted under an execution sale, if made before the time for redemption expires, is void. Hall v. YoeU, 45 Cal. 584. 19. Recital of execution in. If the ex- ecution is erroneously recited in a Sheriff's deed, it will not affect the validity of the deed if the Sheriff, in fact, had authority to sell. Blood v. Light, 38 Cal. 649. 20. Does not convey after-acquired interest. A Sheriff's deed transfers to the purchaser all the interest the execution debtor had in the land sold> at the date of the levy, but no subsequently acquired right or interest of such debtor. Emerson v. Sansome, 41 Cal. '552. 21. Execution debtor not estopped from setting up after-acquired title. An execution sale and Sheriff 's deed does not estop the execution debtor from asserting a subse- quently acquired interest or right of possession to the land sold, as against the right of pos- session and interest sold and transferred by the Sheriff's deed. Id. 22. Statute not applicable. The thirty- third seetion of the Act concerning convey- ances, which provides that a conveyance of land in fee simple absolute shall convey the legal estate afterwards acquired by the grant- or, has no application to a Sheriff's deed, made under execution sale. Kenyon u. Quinn, 41 Cal. 325. 23. Title of mining company to quartz mine and mill. Certain real property, con- sisting of a quartz mine and mill, was owned and worked by a mining company consisting of M and S, who together owned two thirds, and C and Y, who together owned the remain- ing one third undivided interest therein. The profits and losses of their mining business, were, by tacit agreement, shared by said mem- bers in proportions corresponding to their said several interests in the property. M and S conveyed by deed absolute their said two thirds interest in said property, to R, who immedi- ately entered into and thereafter continued in possession of the same. A small portion only of the purchase price was paid down by R at said sale. At the date of said conveyance, the company was indebted on account of their said mining business, in the sum of twelve thous- and dollars, for which afterward suit was brought against the said members of the com- pany, and under a writ of attachment issued therein said property was levied on as the prop- erty of said M, S, C, and T, and in due course judgment passed against them, and all their right, title, and interest in the property were sold to H, who in due course received a Sheriff's deed therefor, under and by virtue of which he thereafter claimed to own all said property. Held, in an action by R against H, brought un- der the two hundred and fifty-fourth section of the Practice Act, that R acquired under said deed from M and S the title to said two thirds undivided interest in said property, and that H acquired by said Sheriff's deed only the one third undivided interest of C and T in said property. Ross v. Heintzen, 36 Cal. 313. 24. Takes effect by relation. A Sher- iff 's deed, executed in pursuance of a judgment obtained in an attachment suit, takes effect by relation as of the date at which the attach- ment was levied, and overreaches any deed made subsequent to such date. Sharp is. Baird, 43 Cal. 577. 25. Tax deed. A deed executed under a sale made for the non-payment of an assess- ment for widening Kearny street, in San Fran- cisco, without other evidence, is not prima facie evidenoe of title. Bucknall v. Story, 36 Cal. 67. See Ejectment, 53 ; Equity, 49 ; Estoppel, 6 ; Execution, 30 ; Taxation, 154-156, 160. IV. PURCHASER AT SALE. 26. Bona fide purchaser, -who is. If a purchaser at a judicial sale be not a party to the execution, he is a bona fide purchaser ; but whether he would be a bona fide purchaser, if a party to the execution, not decided. Hunt v. Loucks, 38 Cal. 372. 27. Innocent purchaser. A purchaser JURISDICTION. 203 for value at a judicial sale, who is not the judg- ment creditor, without notice of extrinsic facts which are relied upon to impeach the judg- ment under which the sale was made, is not affected by such facts. Reeve v. Kennedy, 43 Cal. 643. 28. Purchaser's title to property. The purchaser of property at a Sheriff's sale is only required to show a sale, and the authority of the officer to make it ; the judgment and exe- cution prove the latter, and the deed the for- mer. Blood v. Light, 38 Cal. 649. 29. The validity of a purchaser's title is unaffected by the failure of the officer to make a seizure of the land in the mode or by the steps prescribed in the statute ; his power to sell comes from the judgment and execution, and is not to be measured by his proceedings under the writ ; if he sold the land by a des- cription sufficiently certain, the title of the debtor, as against the parties to the writ, will pass, unless redeemed in good time. Id. 30. Evidence of title. In* order to es- tablish in the purchaser of real estate at Sheriff's sale such title as the defendant in ex- ecution had, it is sufficient to show a judg- ment of a Court of competent jurisdiction, (no matter if it be erroneous on its face) valid pro- cess issued to the Sheriff therein, and a Sheriff's deed made upon a sale thereunder. Mayo v. Foley, 40 Cal. 281. 31. Purchaser, obligations of. A pur- chaser at a judicial sale is bound to inquire at his peril, whether it sufficiently appears on the face of the record that the Court had jurisdic- tion to render the judgment, and whether there Is a valid execution ; but beyond that he need not go, and subject to such inquiry his purchase will be protected, even though the judgment is afterwards reversed for error. Reeve v. Kennedy, 43 Cal. 643. 32. Title acquired at judicial sale. A title acquired at a judicial sale by a bona fide purchaser, without notice, cannot be over- thrown by subsequent proof that the judg- ■ ment was obtained by fraud, or that the rec- ord which showed due service on the defend- ant was in fact false. Id. 33. Evidence to contradict record. In an action to impeach the title to property acquired by an innocent purchaser at judicial sale, the plaintiff cannot contradict the rec- ord, by proof that there was in fact no service of summons, or that the judgment was ob- tained by fraud. Id. 34. Right of pledgee to buy at judic- ial sale. If a note and mortgage are pledged by the owner, by delivery and an instrument in writing conveying the legal title to the pledgee, and authorizing him "to have, use and take all lawful ways and means for the recovery of the money due on the same," the pledgee has a right to purchase and hold for his own account the property mortgaged, at a fair judicial sale, under a decree of foreclosure, and he will hold the property subject to no other trust, except to pay the surplus, if any, to the pledgor. Wright v. Ross, 36 Cal. 414. 35. Who liable for sale under erro- neous judgment. One who takes an assign- ment of an erroneous judgment, and procures an execution to be issued on it, and becomes a purchaser of land sold under the execution, is not entitled to protection as a bona fide pur- chaser, and is liable in an action for damages caused by the sale. Reynolds v. Hosmer, 45 Cal. 616. See Judgment, 95 ; Parties, 14, 17 ; Trust and Trustee, 22 ; Writ of Assistance, 10. JURISDICTION. I. IS GENERAL. II. Of supreme court. in. Of district court. TV. Of county court. V. Op probate court. VI. Of the late superior court. VII. Of the municipal court. VJJX Of the court of first instance IX. Of the police court. X. Of justices' courts. I. IN GENERAL. 1. Definition of. The general definition of jurisdiction is the power to hear and de- termine, and, as applied to a particular claim or controversy, is the power to hear and de- termine that controversy. C. P. R. R. Co. u. Placer Co., 43 Cal. 365. 2. Jurisdiction is the power to hear and determine, or to hear without determining, or to determine without hearing. Ex parte Bennett, 44 Cal. 85. 3. Of State Courts. State Courts have concurrent jurisdiction of causes of action cog- nizable in admiralty, where only » common law remedy is sought. Bohannan v. Ham- mond, 42 Cal. 227. 4. Inferior Courts. Inferior Courts can- not go beyond the power conferred on them by statute. They can assume no power by im- plication. Winter v. Pitzpatrick, 35 Cal. 269. 5. Where an inferior tribunal, as the Board of United States Land Commissioners, has once acquired jurisdiction of a matter, its subse- quent proceedings therein cannot be collaterally questioned for mere error or irregularity. Ber- nal v. Lynch, 36 Cal. 135. _ See Admiralty, 1, 5; Appeal, 108; Arbitra- tion, 5, 6 ; Constitutional Law, 45-62 ; Con- tempt, 2; Corporations, 11, 97; Courts, 2, 6; Criminal Law and Practice, 40, 375 ; Divorce, 1 1 ; Equity, 48 ; Error, 1 1 ; Injunction, 24, 25 ; Judgment, 24, 82 ; Land and Land Titles, 204 JURISDICTION. 41 ; Nuisance, 4-6 ; Quieting Title, 20 ; Spe- cific Performance, 1-6 ; Summons, 20. II. OF THE SUPREME COURT. 6. Amount in controversy. The Su- preme Court has no appellate jurisdiction in cases at law, where the demand in contro- versy, exclusive of interest, is less than $300. Sweet v. Tice, 45 Cal. 71. 7. On awards. The Supreme Court has appellate jurisdiction from judgments rendered in District Courts upon awards. Fairchild v. Doten, 42 Cal. 125. 8. Orders , after final judgment. That the Supreme Court has no jurisdiction of an appeal from an order made after final judg- ment, unless such order followed the judg- ment, not merely in time but also in logical sequence. Quivey v. Gambert, 32 Cal. 305 ; overruled Calderwood v. Peyser, 42 Cal. 1 10. 9. Appeal, the creature of statutory enactment. Independently of rules adopted by the Supreme Court, an appeal as a mere prpcedure is defined by statute. It is essen- tially the creature of the statute, and may be accorded or withheld, restrained, enlarged, or wholly abrogated, by legislative enactment. "Wallace, J. Appeal of S. O. Houghton, 42 Cal. 35. 10. The Constitution has not undertaken to define or secure the benefit of an appeal to any person against the legislative control. It has left that subject wholly to the Legislature, or, in default of legislative enactment, to the Supreme Court, through rules adopted for that purpose. Id. 11. The appellate jurisdiction of the Su- preme Court exists, and is capable of effective assertion, independently of legislative aid, as to the procedure through which an appeal is to be exerted. Id. 12. Appeal must be authorized by statute or rule. No appeal in cases of a particular class or character can be entertained by the Supreme Court, unless authorized by a statute, or a rule of Court, even though such cases be in themselves within the appellate jurisdiction of the Court, as denned by the Constitution. Id. 13. General jurisdiction of Supreme Court. Except cases arising in the Probate Court, and criminal cases amounting to felony, no case is, by the terms of the Constitution, subject to review by the Supreme Court, in the exercise of its appellate power, unless it be a. case in equity, or a case at law of denned char- acter. Id. 14. Special cases not cases at law. Special cases are special proceedings character- istically differing from ordinary suits at the common law. They do not proceed according to the course of the common law, but give new rights and afford new remedies. Such cases are not cases at law within the appellate jurisdiction of the Supreme Court, as defined by the Constitution, even though they involve questions of value. Id. 15. As to legislative power in refer- ence to the jurisdiction of the Supreme Court. Whether it would be competent for the Legislature to add to the class of cases over which the Constitution has declared that the appellate power of the Supreme Court is to be exercised, another and distinct class, not enumerated as such in the Constitution ? Id. 16. Judgment conclusive as to assess- ment. The proceeding under the Acts of 1868 and 1870 was a proceeding in the exercise of the sovereign power of taxation, and the action of the Court was final and conclusive as an assessment. Temple, J. Appeal ' of Houghton, 42 Cal. 35. 17. Not a case at law. Such proceeding is not a case at law of which the Constitution has vested the Supreme Court with appellate jurisdiction, in terms. Knowles v. Yeates, 31 Cal. 82 ; Conant v. Conant, 5 Cal. 252. Dis- approved. Temple, J. Appeal of Houghton, 42 Cal. 35. 18. Special cases not included in cases as used in Constitution. Special cases are not included within the meaning of the word "cases," as it is used in that portion of the Constitution which defines the jurisdiction of the Supreme Court, Rhodes, C. J. Appeal of, Houghton, 42 Cal. 35. 19. Jurisdiction derived from Consti- tution. The jurisdiction of the Supreme Court is derived, from the Constitution alone, and the Legislature can neither enlarge nor restrict it. When a special case is devised, the question whether the Supreme Court has juris- diction in the matter must be determined by an interpretation of the provisions of the Con- stitution, and not by reference to the statute. Id. 20. The Supreme Court has appellate jur- isdiction of special cases, such as that under the Acts of 1868 and > i870, relative to modify- ing grades of 'streets in San Erancisco, not- withstanding the Legislature may have in- tended to cut off such appeal. Knowles v. Yeates, 31 Cal. 82 ; Conant v. Conant, 5 Cal. 252 ; approved. Id. See Appeal, 16, 66 ; Criminal Law and Practice, 380, 381 ; Mandamus, 2, 3. HI. OF DISTRICT COURTS. 21. Extortion in office. The District Courts have jurisdiction of an action com- menced under the Act of March 14th, 1853, to prevent extortion in office and to' enforce of- ficial duty, and the County Courts have not jurisdiction of such actions. Matter of J. J. Marks, 45 Cal. 199. JURISDICTION. 205 22. Abatement of nuisance. District Courts have jurisdiction in actions to prevent or abate a nuisance. Yolo Co. v. City of Sac- ramento, 36 Cal. 193. 23. Trespass against Marshal. District Courts have jurisdiction of actions for trespass against a United States Marshal. Hirsch v. Band, 39 Cal. 315. 24. Whether the fact that defendant was Marshal of the United States, and the trespass was committed by his deputy, under cover of his office, gives him the right to have the cause transferred to the Courts of the United States, — not decided. Id. 25. Issues framed in Probate Courts. Since the adoption of the constitutional amend- ments of 1862, District Courts have no jurisdic- tion to try issues framed in Probate Courts. Section 6 of Article VI, as amended, deprived District Courts of said jurisdiction, as conferred by said section before amendment, and denned in Section 20 of the Probate Act. Section 8 of the same Article, as amended, vested this juris- diction exclusively in Probate Courts. Will of Bowen, 34 Cal. 682 ; Estate of Tomlinson, 35 gal. ,509. 26. Since said constitutional amendments, the provisions of Section 20 of the Probate Act — conferring probate jurisdiction on Dis- trict Courts — have become repugnant to the Constitution, and void. Id. 27. In probate matters. The District Courts have jurisdiction of actions against the administrator of an administrator, to settle the account of his intestate with the estate of which he was the administrator. This juris- diction arises out of the equity powers of Dis- trict Courts. Bushu. Lindsey, 44 Cal. 121. 28. In such case an action on the bond of the deceased administrator, (even if it might be maintained) is not the sole remedy, but a claim may be presented to the administrator, and, if rejected, a suit may be brought on it. Id. 29. The District Court has no jurisdiction of an action against an administrator, which seeks to charge the estate with expenses of ad- ministration. Gurnee v. Maloney, 38 Cal. 85. See 1 Certiorari, 16 ; Constitutional Law, 51 ; Courts, 7 ; Eminent Domain, 19 ; Evidence, 22 ; Judgment, 10; Mandamus, 1, 22 ; Nuisr. ance, 4 ; Taxation, 112 ; Witness,. 7. IV. OE COUNTY COURTS. 30. Supplementary proceedings. The County Court has jurisdiction in proceedings supplementary to execution, regularly taken, to make a final order requiring the defendant to deliver up a policy of insurance in satisfac- tion of the execution, and on his refusal to commit him for contempt. Ex parte McCul- lough, 35 Cal. 97. 31. Bail. The County Court is not fet- tered in the exercise of its jurisdiction over the person of the defendant after an indict- ment has been found by reason of any proceed- ing previously had in the premises. If bail has been taken and is not deemed sufficient se- curity for the defendant's appearance, the Court may order him into custody, either for the purpose of procuring additional bail, or for his detention until trial, if deemed by the Court to be a case in which bail ought not to be taken. Ex parte Cook, 35 Cal. 107. 32. Conclusiveness of jurisdiction. In a matter in which the County Court has final jurisdiction, and acts, there is no remedy even if it acts erroneously. Lewis v. Barclay, 35 Cal. 213. 33. Judgment when void. A judgment rendered by the County Court, upon appeal, for the sum of three hundred dollars, is void.. Will v. Sinkwitz, 39 Cal. 570. . 34. Common law jurisdiction. The sev- eral County Courts of this State have common law jurisdiction within the meaning of the third section of the Act of Congress of April 14th, 1802, establishing a uniform rule of nat- uralization. In the matter of Martin Conner, 39 Cal. 98. 35. Naturalization. The County Courts have the power to admit foreigners to all the rights of citizenship, and to issue papers of naturalization. Id. 36. Nuisance. In an action to abate a nuisance and to recover damages, the County Court has no jurisdiction of the action for damages, except as an incident to its power to abate the nuisance. Grigsby v. Clear Lake Water Co., 40 Cal. 396. 37. New Trials. County Courts are Courts of superior jurisdiction, and have power to grant new trials. Yenawine v. Bichter, 43 Cal. 313. 38. If a County Court grants a new trial in disregard of the statutory method of pro- cedure, it is error ; but it cannot be said there is a want of jurisdiction, and that the order is void. Id. 39. Unlawful detainer. The County- Courts have jurisdiction of actions of unlaw- ful detainer against tenants for holdino- over. Johnson v. Chely, 43 Cal. 300. 40. In "special cases." The Constitu- tion has left to the legislative will to determine whether jurisdiction over any given special case shall be vested in the County Court or some other Court. Matter of J. J. Marks, 41 Cal. 199. " 41. County Court of Sacramento Coun- ty. The County Court of the county of Sac- ramento has jurisdiction to hear and determine a contest concerning the right to hold a munic- ipal office in the city of Sacramento. Kirk v. Rhoads, 46 Cal. 398. 206 JURISDICTION. See Appeal, 397-401 ; Certiorari, 1 ; Consti- tutional Law, 4, 9, 53—55 ; Courts, 8, 9 ; Emi- nent Domain, 14-17, 31-34; Injunction, 20; Mandamus, 5, 20, 21 ; New Trial, 95 ; Nuis- ance, 5, 6. 42. Expenses of Administration. Serv- ices rendered and money advanced, at the re- quest of an administrator, for the benefit of an estate, are " expenses of administration "; and the Probate Court has exclusive original jurisdiction to adjust and enforce such de- mands. Gurnee v. Maloney, 38 Cal. 85. 43. Guardian and -ward. A Probate Court has no jurisdiction of a proceeding to compel a guardian to advance out of the estate of his ward the' necessary sums for his support, or to refund money advanced by the guardian of the person of the ward, or others, for that purpose. Swift v. Swift, 40 Cal. 456. 44. Specific performance. The ques- tion whether the Probate Court has jurisdic- tion to specifically enforce the performance of a contract for the sale of real estate, not de- cided. Treat v. DeCelis, 41 Cal. 202. 45. Jurisdiction of person. When the record recites the mode adopted to acquire jurisdiction over the person, in a probate pro- ceeding, it will not be presumed something different was done. Pearson v. Pearson, 46 Cal. 610. 46. Appearance in Probate Court. In a proceeding in Probate Court for the distribu- tion of an estate, if there are minor heirs named in the will, and a minor heir not named in the will, and an attorney is appointed to rep- resent the minor heirs named in the will, and ' the decree of distribution recites that he ap- peared for the minor heirs, but on the settle- ment of the executor's accounts he appears for the minor heirs named in the will only, the reoital in the decree of distribution will be construed as an appearance for the minor heirs named in the will only. Id. See Constitutional Law, 52, 57 ; Place of Trial, I, 2, 4 ; Probate Law and Practice, 1, 2, 10, 61, 69, 88, 113, 114. VI. OF THE LA.TE SUPERIOR COURT OF SAN FRANCISCO. 47. Judgments of. The judgments of the late Superior Court of the city of San Fran- cisco import the same absolute verity as those of the District Courts. Vassault v. Austin, 36 Cal. 691. 48. Jurisdiction of person. If a judg- ment of the late Superior Court of the City of San Francisco recites that the defendant had been regularly served with process and had failed to appear, and that his default had been duly entered, these recitals are conclusive upon the pointof jurisdiction of the person, although the return of service of summons is not of itself sufficient for that purpose. Id. 49. Act creating. The Act creating the late Superior Court of the City of San Fran- cisco was constitutional. Upon this point, Seale v. Mitchell, 5 Oil. 403, and Hickman v. O'Neal, 10 Cal. 294, affirmed. Id. 50. The Superior Court of San Francisco was a Court of superior jurisdiction. McCauley 0. Fulton, 44 Cal. 356. 51. The Superior Court of the City of San Francisco could acquire jurisdiction of the per- son of a defendant by publication of a sum- mons. Id. Yn. OF THE MUNICIPAL CRIMINAL COURT OF SAN FRANCISCO. t 52. Constitutional construction. The Municipal Criminal Court of the City and Coun- ty of San Francisco is an inferior Court within the intent of Section I, Article VI, of the Con- stitution, as amended in 1862. Ex parte John Stratman, 39 Cal. 517. 53. Effect of amendment of 1862. The' effect of the amendment of 1862 was to limit the power conferred on the Legislature by Ar- ticle VI of the Constitution, to the establish- ment of municipal and inferior Courts within the limit's of an incorporated city. Id. 54. Order transferring cases to, before organization. An order of the County Court of the City and County of San Francisco transferring certain criminal cases pending in said Court to the Municipal Criminal Court of said city and county, prior to the qualification of the Judge of the last mentioned Court, was valid, and the Municipal Court, when organ- ized, had authority to try and dispose of such cases. Id. VIII. OF THE COURT OF FIRST IN- STANCE. 55. Courts in California in 1849. The correctness of the proceedings of the Courts exercising civil jurisdiction in Califprnia, be- tween the time of its acquisition by the United States and the time when the code of laws enacted, in 1850 went into effect, are not to be. tested by the strict rules of either the civil or common law. Ryder 11. Cohn, 37 Cal. 69. 56. The judgment of such Courts, and the titles acquired under them, are valid, notwith- standing they might be void if tested by the strict rules of common law. Id. 57. The Court of First Instance was a de facto Court, exercising general and unlimited jurisdiction in civil cases and in matters of administration on the estates of deceased per- sons, prior to the enactment of a code of laws in this State in 1850. Id. 58. Judgments of. The judgments of the. Court of First Instance, when offered in JUROR AND JURY.— LABOR. 207 evidence in a collateral action, will not be held to be roid for want of" jurisdiction of parties, unless it appears affirmatively from the record that the Court did not acquire jurisdiction of the parties. Id. 59. In probate matters. The Courts of First Instance in California, between the time of its acquisition by the United States and the passage of a Probate Act in this State, had jurisdiction of matters pertaining to adminis- tration on the estates of deceased persons, and could make valid orders for the sale of the property of the deceased, for the payment of debts, etc. Id. 60. The Court of First Instance will be deemed to have acquired jurisdiction over the parties, in matters relating to administration on the estates of deceased persons, unless the record of its judgment therein shows affirma- tively that it had not such jurisdiction. Id. IX. OF THE POLICE COURT. 61. In criminal cases. The Police Court of the City and County of San Francisco is not of inferior jurisdiction, in the sense that upon mere collateral inquiry, nothing is to be in- tended in support of its judgment, when ren- dered in a particular case, included by general definition in that class of criminal cases over which jurisdiction has been conferred upon it by law. ^Jx parte Murray, 43 Cal. 455. X. OF JUSTICES' COURTS. . 62. Trespass on real estate. An. action for trespass on real property is within the jurisdiction of a Justice of the Peace, where the damages sued for are less than three hun- dred dollars. Pollock v. Cummings, 38 Cal. 683. 63. A Justice of the Peace has jurisdiction of an action for damages for trespass on real estate, where the right of possession of the premises- is not put in issue by the pleadings or controverted on the trial. Cornett v. Bishop, 39 Cal. 319. Affirming Pollock v. Cummings, 38 Cal. 683. 64. Judgment when void. A judgment rendered by a Justice of the Peace, for the principal and interest due on a promissory 1 note, and for a further sum of fifty per cent, on the amount of such principal and interest, under a stipulation to that effect contained in the note, which latter sum added to the princi- pal exceeds in amount the sum of three hun- dred dollars, is void for want of jurisdiction in the Justice to render it. Reed v. Bernal, 40 Cal. 628. See Appeal, 397 ; Courts, 22 ; Injunction, 9 ; Judgment, 59, 60, 108. JUROR AND JURY. See Criminal Law and Practice, 136, 217- 240; Trial, 7, 8, 11. JUSTICES' COURTS. See Jurisdiction, 62-64. JUSTIFIABLE HOMICIDE. See Criminal Law and Practice, 13-15. LABOR. 1, Construction of statute. Contracts for the grading of streets made with the Super- intendent of Public Streets and Highways of the City and County of San Francisco are con- tracts "by the authority of a municipal gov- ernment," within the meaning of the Act " to limit the hours of labor." Drew v. Smith, 38 Cal. 325. 2. The provision made in the second sec- tion of the Act, _that a " stipulation to that effect shall be made a part of all contracts," etc., means that " eight hours labor shall con- stitute a legal day's work," under the contract to which the stipulation is made applicable. Id. ' 3. By the second section of the Act, it was the intention of the Legislature absolutely to prohibit the officers of the State and subordin- ate local governments from requiring any one doing public work to work more than eight hours in doing a legal day's work, but it was not the intention to require them to prohibit the laborer from doing extra work for extra pay. Sanderson, J. Drew v. Smith, 38 Cal. 325- 4. The Legislature has seen proper not to pre- scribe a penalty for a breach of the covenant re- quired by the second section of the Act to be incorporated into the contract, but to leave that matter to be determined by the Courts, upon the principles of the common law ; and it is not competent for a ministerial officer to de- clare what shall be the consequences of a breach of a covenant exacted by the Legislat- ure, but to which the Legislature itself has an- nexed no penalty. Sanderson) J. Id. 5. The manifest intent of the Legislature in the enactment of the second section, was, in reference to all labor performed for the State 208 LAND AND LAND TITLES. government, or any subordinate department thereof, to prohibit any stipulation being made or permitted by the officers having charge or control of such work, by which the hours for a day's labor should be extended beyond the limits fixed by the first clause of the first and second sections ; and it is competent and proper that, as a security for the performance of such stipulation on the part of a contractor, •a penalty should be prescribed in the contract itself for a failure to comply with the terms of the stipulation. Sprague, J. Id. 6. To require of the contractor not to per- mit any person to work more than eight hours per day, is evidently in excess of the law. , J. Id. 7. It is right, and it is the duty of any person making a contract for labor, under the authority of the State government, or of any subordinate department thereof, to compel the contractor to stipulate that he would not re- quire any laborer, by means of a contract with him or otherwise, to labor more than eight hours per day. But they have no authority to require that in case of a violation of the stip- ulation by the contractor, the latter should " not be entitled to any pay for any work done," or that he should not "permit" any person employed on the work to labor more than eight hours per day. Crockett, J. Id. See Contract, 5, 9. LAND AND LAND TITLES. I. Public domain. II. Bight of pre-emption. 1 . Generally. 2. On rejected Mexican grant. III. Rights under possessory act. IV. State lands. V. School, lands. VI. Swamp and overflowed lands. 1 . Generally. 2. Title, how acquired. 3. Controversies concerning. VII. .Mexican grants. 1. Title under. 2. Confirmation of. 3. iSurvey. 4. Patent. 5. Effect of rejection of claim. 5. Actions involving Mexican title. VIII. Pueblo lands. , IX. Alcalde grants. X. Title under van ness ordinance. XI. Town lands. XII. Possession of lands. XIII. Constructive possession. XIV. Possession as notice of title. XV. Title by adverse possession. 1. Generally. 2. Must be actual. 3. Must be continuous. 4. Evidence of. 5. Miscellaneous. I. PUBLIC DOMAIN. 1. Regulations for disposal of public lands. The Commissioner of the General Land Office has authority to make regulations respecting the disposal of the public lands, and such regulations, when not repugnant to the Acts of Congress, have the force and effect of laws. Poppe v. Athearn, 42 Cal. 607. 2. Consent of United States to entry of land by State. A certificate of the Regis- ter of United States lands, issued to one who applies to him to locate a State land warrant on public land, that he approves of the location by the State, is a legal and valid consent of the United States to such location, because it is prescribed by the Commissioner of the Gen- eral Land Office. It is also correct to surren- der to the Register the State land warrant. Poppe v. Athearn, 42 Cal. 607. 3. Survey of public lands. The pro- visions of the Act of May 3d, 1852, for the sur- vey of public land by county surveyors, apply to such lands only as have not been surveyed by the United States. Poppe v. Athearn, 42 Cal. 607. 4. State selections upon unsurveyed public lands confirmed. The holders of State selections, made upon public lands not then surveyed by authority of the United States, under the Act of Congress of the 23d of July, 1866, to quiet land titles in California, have acquired the rights of a pre-emptioner upon unsurveyed public lands, if their selec- tions have been surveyed and marked off and designated in the field, and bought in good faith under the laws of the State, unless, at the date of that Act, some pre-emption, home- stead, or other right, under the laws of the United States, had attached to the land, or the land was within some reservation. Toland v. Mandell, 38 Cal. 30. 5 . It had the effect to legalize the possession of locators upon unsurveyed lands, until they have an opportunity to present their claims for determination by the officers of the United States, as therein provided, and to enable them, to maintain actions in the Courts in relation thereto. Id. 6. "L.and sold in good faith." By the words " sold to purchasers in good faith, under the laws of the State," occurring in the Act of Congress of the 23d. of July, 1866, is meant such selections as have been made according to> the conditions of the "State laws under which they purport to have been made, and which have been sold in a manner which would have LAND AND LAND TITLES. 209 passed the title, had it then been in the State. Id. 7. Under the Aot of Congress of the twenty-third of July, 1866, the holder of a State location upon unsurveyed public land, bought by him in good faith, under State laws, may maintain ejectment, if outside. Id. 8. Burden of proof in an action to re- cover a State selection. The holder of a State selection upon unsurveyed public land, in an action to recover the possession, makes a prima faQie case by exhibiting a certificate of purchase from, the State. If the land be 1 within any of the exceptions stated in the Act of Congress, the burden of proof is upon him that contests it. Id. 9. Mineral lands on Pacific Railroad grant. The mere fact that land contains par- ticles- of gold, or veins of gold-bearing rock, does not necessarily impress it with the char- acter of " mineral land," within the meaning of the Acts of Congress of July 1st, 1862, and July 2d, 1864, granting alternate sections to 'the Pacific Railroad, but reserving from the grant mineral lands. Alford v. Barnum, 45 Cal. 482. See Cities and Towns ; Contract, 94 ; Rail- roads, 1. II. RIGHT OF PRE-EMPTION. 1. Generally. 10. Withdrawing land from pre-emp- tion. Congress has, the power, at any time after a settler has moved upon and taken the prescribed steps to acquire a pre-emption right to land, but before he has perfected his right by payment, to withdraw the land from the operation of the general pre-emption laws, and deprive the settler of a right to perfect his claim and enter the land, and confer a right of entry upon another. Hutton v. Erisbie, 37 Cal. 475. 11. Eight defeasible by government. Though a qualified pre-emptioner enter upon public land, with intention to pre-empt the same, and perform all the acts necessary to perfect his pre-emption right, except the pay- ment of the purchase price, the government may, nevertheless, at any time before the price is actually paid or tendered, devote the land to another purpose, and thereby wholly defeat the right of pre-emption. Low v. Hutchings, 41 Cal. 634. 12. Entry on land as a pre-emptor. "When a party enters upon public surveyed land, peaceably and in good faith, believing that he has a right to enter, and is a qualified pre-emptor, and enters for the purpose of pre- empting, he cannot be removed under the Un- lawful Detainer Act by one who had previously inclosed and was cultivating it. Townsend v. Little, 45 Cal. 673. CAL. DIG. SUP. 14. 13. Evidence of entry, in good faith. Evidence that land is public surveyed land of the United States, and that the defendant is a qualified pre-emptor, and that before filing his answer he has filed his declaratory statement in the United States, Land Office, is, if uncon- tradicted, sufficient evidence of an entry in good faith to prevent the plaintiff from re- covering in unlawful detainer, when he relies on prior possession. See Evidence, 71. .. 14. Duty of Land Officers. It is the duty of the proper officers in the Land Offices of the United. States, to ascertain whether par- ties possess the requisite qualifications to en- title them to pre-empt lands, and their decis- ion upon questions arising as to such 1 qualifica- tions is binding upon the parties, unless some question of fraud or trust intervenes. Burrell v. Haw, 40 Cal. 373. 15. Pre-emption of unsurveyed lands. A party who desires to avail himself of the pre-emption laws, authorizing a settlement on unsurveyed lands, must file his declaratory statement within three months after the filing of the township plat. Damrell v. Meyer, 40 Cal. 166. 16. A person who has neither filed his declaratory statement, nor been prevented from so doing by the fraud of another person, cannot avail himself of the benefits of an entry made by such other person, and a patent issued in pursuance thereof. Id. 17. Premature filing of declaratory statement. The filing of a declaratory state- ment in the Register's office before the Survey- or General files the plat of the survey, is pre- mature and of no effect. Daniels v. Lansdale, 43 Cal. 41. 18. Declaratory statement. There are some classes of lands subject to pre-emption which may be purchased by pre-emptioners without filing declaratory statements, such as lands reserved for railroad purposes which have been settled on ; and one attacking a patent issued to a pre-emptioner, on the ground that no declaratory statement was filed, must show that it belonged to that class of lands to pur- chase which a declaratory statement is re- quired. Collins v. Bartlett, 44 Cal. 372 . See Evidence, 117. 19. Failure to file claim. One who settles on unsurveyed public land as a pre- emptioner, but who fails to file with the Reg- ister of the proper Land Office his declaratory statement within three months after the plat of survey of the land is filed in the Register's office, loses his pre-emption claim, as against one who in the meantime has taken the neces- sary steps to acquire the title to the land. Poppe v. Athearn, 42 Cal. 606. 20. Evidence of filing paper. An in- dorsement on the plat of the survey of public land, that it was filed in the Land Office on a 210 LAND AND LAND TITLES. day named therein, which is not sighed by any one, will, in the absence of other evidence on the subject, be taken as fixing the time of filing the plat. Id. 21. Citizenship. — Fraud. The fact that an appellant under the pre-emption laws of the United States, after filing his declaratory statement, made a declaration of his intention to become a citizen, is but evidence tending to prove that at the time he was not a citizen, but would not necessarily prove fraud on the part of the applicant. Burrell v. Haw, 40 Cal. 373. 22. United States certificate conveys an equitable title only. A pre-emptioner on public lands, by paying for the same and obtaining a certificate of purchase; acquires only an equitable title to the land, which en- titles him to a conveyance of the legal title by a patent from the Government. Kenyon v. Quinn, 41 Cal. 325. 23. Register's certificate. A declaratory statement for the purpose of pre-empting lands, or the Register's certificate of the filing of such statement, confers no title. It is merely an application — an offer to purchase, after the requisite proof of residence, qualifications, etc., shall be made. Hemphill r. Da vies, 38 Cal. 577. 24. Illegal certificate. A certificate issued by a Register of the United States Land Office, which was unauthorized by statute, or by regulation of the Land Department of the United States, is inadmissible in evidence in an action involving title to land. Hastings v. Devlin, 40 Cal. 358. See Evidence, 122. 25. Improvements on public lands. All improvements on public lands of the United States, which become a part of the realty, pass to the purchaser from the United States. Collins v. Bartlett, 44 Cal. 372. See Statutory Construction, 18. 26. Pre-emption claim. The question whether a pre-emption claim on the public lands is subject to seizure and sale, under an execution against the pre-emptioner, not decided. Kenyon v. Quinn, 41 Cal. 325. 27. Right of party to pre-empt lands after execution sale of his former posses- sory right. The sale of a possessory right held under a declaration to pre-empt, at Sher- iff's sale, and the subsequent eviction of the party in possession by the purchaser at such sale,, under a judgment in ejectment, is no im- pediment to the filing, by the party evicted, of a new declaration of intention to pre-empt, and the perfecting of the same, under a new settle- ment, on the same subdivision of the public lands, and embracing the same lands from which he had been evicted. Montgomery v. Whiting, 40 Cal. 294. 28. Relation of contract. There is no such relation of contract between the party so acquiring a new title, and the purchaser at the Sheriff's sale, as to constitute the former the trustee of the latter, as to such newly-acquired title, nor does such title inure to the benefit of the purchaser at the Sheriff's sale. Id. 29. Judgment in ejectment. The judg- ment in ejectment is no bar to the acquisition of such new title, nor does it operate as an equitable estoppel in pais, against the party acquiring such title . Montgomery v . Whiting, 40 Cal. 294. 30. Sale of pre-emption right under execution. A judgment creditor, by a pur- chase at a sale under execution, of land to which the judgment debtor had only a pre- emption right, obtains no interest in the land which will enable him to procure the title under the pre-emption laws of the United States. Moore v. Besse, 43 Cal. 511. 31. Possessory rights under the United States homestead law. Where the posses- sory claim of a settler on public land was sold out on execution, and afterwards he entered the same land as a homestead, under the Act of Congress of May 20th, 1862 ; held, that he had by his homestead entry acquired from the paramount proprietor a right and interest in the land which he did not possess at the time of levy and sale, and that this newly acquired right and interest vested an independant right, of possession, which would constitute a com- plete and valid defense to an action of eject- ment based on the Sheriff's deed. Emerson v. Sansome, 41 Cal. 552. See Judicial Sale, 16. 32. Sale of the right of pre-emption. All transfers of the right of pre-emption are void by the statute ; and the sale and delivery or possession of the land to another extinguishes all the incipient pre-emption rights' which the first occupant may have acquired. Quinn v. Kenyon, 38 Cal. 499. 33. The purchaser, if he has the proper qualifications, may acquire a new pre-emption right of his own, provided he can do it before a right should attach in any .other person ; but it would only date from the time he him- self performed the necessary acts. Id. 34. Quit- claim deed. A conveyance by a quit-claim deed does not preclude the grantor from afterwards acquiring and holding the same land by pre-emption under the laws of the United States. McDonald v. Edmonds, 44 Cal. 328. 35. Sale by pre-emption. After a pre- emptor has made the necessary proofs and paid for the land, and received a certificate of pur ; chase, and before the patent issues to him, he may make a valid sale of the land. Thurston v. Alva, 45 Cal. 16 ; Hudson v. Johnson, 45 Cal. 25. 36. Fraud hi the sale of land. If a judg- ment debtor sells public land, to which he ha's a pre-emption right, for the purpose of defraud- LAND AND LAND TITLES. 211 ing a creditor, and the purchaser then pre- empts the land, and obtains a patent therefor, the creditor cannot, by reason of the fraud, at- tack the patent, or the title held thereunder. Moore v. Beese, 43 Cal. 511. 37. Agreement to divide void under Pre-emption Act. An agreement between two persons, to the effect that if either shall succeed in establishing a pre-emption claim to a tract of land, he shall divide the land with the other, is in contravention of the Pre-empt- ion Act, and cannot be enforced. Damrell v. Meyer, 40 Cal. 166. . 38. Contract to pay purchase money of land. If the purchaser of land who ac- quires possession from his grantor, contracts to pay the purchase money when his grantor ob- tains the title of the United States, and if this possession disables the grantor from acquiring - the title of the United States, and enables the purchaser to obtain it in his own name, the purchaser must pay the purchase money, less the expense he was at in obtaining the title from the United States. Snow v. Ferrea, 45 Cal. 195. 39. When patentee holds land in trust. One who obtains a patent to public land of the United States as a pre-emptioner, by fraudu- lently obtaining and forcibly retaining pos- session thereof from another, who had taken the preliminary steps to enter it as a home- stead, under the laws of the United States, and by procuring a cancellation of the home- stead entry by means of false evidence, holds the title in trust for the homestead claimant. Bird p. "Wilcox, 45 Cal. 686. 40. In such case, the grantee of the patentee, who buys with notice, also holds the legal title in trust for the homestead claimant. Id. 41. Jurisdiction of State Courts. Have the Courts of a State the jurisdiction to review the action of the Federal Land Depart- ment in deciding upon contested claims to the right of pre-emption, when the subject mat- ter of the investigation, and upon which the preference depends, were transactions that oc- curred before the contest? Query? Quinn v. Kenyon, 38 Cal. 499. 42. In such case, a complaint which fails to show that the plaintiff ever contemplated acquiring a pre-emption right, or that he would have done so, or that he in any way lost anything by the acts of the defendant, is fatally defective. Id. 43. Complaint seeking equitable relief by one who claims to have the superior right to pre-emption. A complaint which seeks to obtain equitable relief on the ground of the superior claims of the plaintiff to the right of pre-emption of the land in controv- ersy, must show that plaintiff was qualified to acquire a pre-emption right, and that all the .. steps necessary under the Act of Congress to acquire one were taken. Quinn v. Kenyon, 38 Cal. 499. 44. Claim of land. One jn possession of public land, sufficiently describes the same in a power of attorney, by calling it his claim of land. Henley v. Hotaling, 41 Cal. 22. 45. Attack on patent. A party claiming land under a patent from the United States has the benefit of the presumption that the-officers rightly performed all their duties in selling the land and issuing the patent, and it de- volves on the party assailing the patent to show that it was issued without authority^ of law. Collins v. Barfclett, 44 Cal. 372. 46. Contested patent. Before a person will be permitted to call in question the pro- ceedings through which another has obtained a patent to public lands, he must show in him- self all the conditions necessary to enable him to pre-empt. Burrell v. Haw, 40 Cal. 373. 47. Collateral attack. If a patent be void on its face,, or was issued without au- thority, or was prohibited by law ; or if the government in whose name it is issued had no title, it may be attacked collaterally. Durfee v. Plaisted, 38 Cal. 80. See Boundaries, 2, 4, 6 ; Ejectment, 133 ; Evidence, 123 ; Probate Law and Practice, 26. 2. On rejected Jle.riam grant. 48. Pre-emption. If a Mexican grant of land is rejected, from the time of its rejection the land becomes a part of the public domain , of the United States, and open to pre-emption. Page v. Fowler, 37 Cal. 100. 49. Act relating to Suscol Rancho. The Act of Congress of March 3d, 1863, enti- tled "An Act to grant the right of pre-emption to certain purchasers on the Suscol Rancho, in California, ' ' provided that it should be lawful for individuals, bona Ude purchasers from Val- lejo, or his assigns, of land on said rancho, to enter at one dollar and twenty-five cents per acre said land so purchased, to the extent to which each had reduced it to possession. Said rancho was claimed by Vallejo under a Mexican grant which had been rejected by the Supreme Court of the United States. Held, that the said Act describes the specific tract of land which each individual purchaser from Vallejo is en- titled to enter, and for that reason does not come within the rule laid down in Chotard v. Pope, 12 Wheaton, 587, that when a party is authorized by Act of Congress generally to enter a given quantity of land within larger boundaries, he cannot take lands upon which a pre-emption or some other right has attached. Meld, further, that said Act withdraws the lands which had been purchased bona fide from Vallejo and reduced to possession from the operation of the general pre-emption laws, and gives such purchasers and possessors a right to enter the same as against one who had taken steps to become a pre-emptor on the same, un- der the general pre-emption laws, before the passage of said Act. Held, further, that said 212 LAND AND LAND TITLES. Act did not confine purchasers from Vallejo, or their assigns, to one hundred and sixty acres, but allowed them to enter to the extent of the possession of each. Hutton u. Frisbie, 37 Gal. 475- 50. The statute does not prohibit a pur- chaser .of land within the limits of the City of Vallejo, situated on said rancho, from present- ing hisclaim for, and entering such land. Dur- fee v. Plaisted, 38 Cal. 80. 51. The exception " of such lands as may be designated by the President, ' ' contained in the proviso to the fifth section of the Act, has reference only to such designation as thereafter might be made. Id. 52. Patent to purchasers of the Suscol Rancho. A patent issued pursuant to the provisions of the Act of Congress granting the right of pre-emption, etc., to the purchasers of the Suscol rancho, is the record of the Govern- ment that the land was subject to entry by the patentees, and was entered by them in conformity to law ; and is conclusive evidence of the regularity, as well as of the validity of the action of the officers, in confirming the title of the patentees as purchasers from Val- lejo or his assigns. Durfee v. Plaisted, 38 Cal. 80. , 53. No one who does not connect himself with the source of title to the Suscol rancho, will be permitted to inquire whether the con- ditions of the statute were complied with, or whether the officers issuing the patent right- fully performed their duty.. Id. 54. Patent creating tenancy in com- mon. A patent issued to two or more per- sons, by virtue of the Act of Congress of March 3d, 1863, granting the right of pre-emp- tion, etc., to the purchasers of the Suscol Rancho, creates, presumptively, a tenancy in common in the patentees, as between them and third parties. Frisbie v. Marquez, 39 Cal. 451. 55. Proof of rights of claimants. It was the special duty of the Register and Re- ceiver of the United States Land Office at San Francisco to take proof of the necessary facts entitling applicants, under the Act of Con- gress of March 3d, 1862, relative to the Suscol Rancho, to the benefit of that Act ; and where there is no- charge of fraudulent proofs, the award of the Register and Receiver will be regarded as conclusive. Marquez v. Frisbie, 41 Cal. 624. 56. By the Act of March 3d, 1863, rela- tive to the Suscol Rancho, all the lands in- cluded in the grant to .Vallejo are withdrawn from the operation of the general pre-emption laws of the United States, and an attempt to pre-empt such lands under the general laws is futile, and confers no title, either legal or equitable. Id. 57 . One who claims the benefit of the Act of Congress, passed March 3d, 1863, granting the right of pre-emption to purchasers from Vallejo, of land in the Suscol Rancho, before the rejection of Vallejo's claim thereto by the Supreme Court of the United States, must show that he purchased from Vallejo, or his assigns, and had reduced the land to possession before the time of said rejection of Vallejo's claim. Tormey v. True, 45 Cal. 105. 58. Privileges under the Act. The Act of Congress, approved March 3d, 1863, granting the right of pre-emption to bona fide purchasers from Vallejo of the Suscol Rancho, or portions thereof, gave to such purchasers the mere privilege of acquiring the title from the United States ; and those who failed or refused to exercise that privilege lost all right to claim the benefit of the Act. Sheehy v. True, 45 Cal. 236. See Post, 202, 203. ni. RIGHTS UNDER POSSESSORY ACT. 59. Statutory construction. No one can obtain the benefit and protection of the Possessory Act of this State, and of the Acts amendatory thereto, but they who actually re- side upon the land. Wolfskill v. Malajowich, 39 Cal. 276. 60. Occupant. The term "occupy," as employed in the Possessory Act, is equivalent to the term " reside upon." Wolskill v. Mala- jowich, 39 Cal. 276. 61. Constructive possession. Construc- tive possession of what is known to be public land cannot be established, except by a com- pliance with the provisions of the Possessory Act. Id. 62. The right to be protected in his con- structive possession is a personal right accorded to the claimant, who complies with the Act, and, if assignable at all, is clearly only assign- able to one who shall actually reside upon the land. Id. 63. Conditions precedent. The posses- sory statute, (Stats. -1852, p. 158) confers no right, such as will maintain ejectment, upon a settler, until all the acts required by it shall have been performed ; and it does not affect the question that he has been prevented by force or otherwise from making his intended improvements. Crowell v. Lanfranco, 42 Cal. 654- 64. Sufficiency of notice. Where in an action by H against W to recover possession of a quarter section of land, being part of the public domain, H made claim under the Pos- sessory Act of this State, and his statutory no- tice whereby the claim was made, in addition to certain specified metes and bounds, des- cribed the lands as the southeast quarter of section eight, township twenty-one north, of range one east, etc., while in faoff, the de- manded premises were in township twenty- two, instead of said township twenty-one : held, that so much of said description as at- tempted to identify the land by reference to LAND AND LAND TITLES. 213 the Goverment survey, must be disregarded, because of the error in the number of the town- ship. Hicks v. "Whitesides, 35 Cal. 152. 65. Forcible driving off of intended settler. Where a person, with intention to take up a tract of public land under the Possessory Act, (Stats. 1852, p. 158) filed his affidavit of location, and within ninety days thereafter hauled lumber upon the ground for a house ; and such lumber was removed during the night ; and on his attempting to replace it next day, he was driven off with threats of violence by a band of armed men : held, that he had acquired no rights under the Possessory Act which would enable him to , maintain ejectment against those who drove him off. Crowell v. Lanfranco, 42 Cal. 653. 66. Deed of possessory claim does not convey constructive possession. Where the vendor of a tract of land taken up under the Possessory Act, (Stats. 1852, p. 158) remained in possession, with vendee's consent, of the only portion ever actually occupied by him, and vendee never entered under his deed : held, that whether such possession by the vendor might be considered as an entry under his deed by the vendee or not, the deed would certainly not extend the vendee's possession by construction to any portion of the tract never in the actual possession of Idle vendor. Hughes l\ Hazard, 42 Cal. 149. See Evidence, 154. IV. STATE LANDS. 67. Certificate of purchase. In an action to recover possession by the locator of a land warrant, the certificate of purchase from the State is prima facie evidence that the locator is a purchaser in good faith, and the burden of proof is on the defendant to show that the land is within the exceptions contained in Sec- tion I of the Act of Congress of July 23d, 1866, to quiet land titles in California. Hodapp v. Sharp, 40 Cal. 69. 68. When title passes to the State. The selection of land on behalf of the State is not confirmed nor does the title pass until the land is certified over to the State by the Com- missioner of the General Land Office, as re- quired by the second section of the Act of July 23d, i860. Hodappi). Sharp, 40 Cal. 69. 69. Error in the selection of lands. An error in the selection of lands in lieu of those lands' which are in fact in place, or in the se- lection of unsurveyed lands, is the error of 'the State officials ; and, in the absence of any evi- dence that the purchaser was cognizant of such error, it will not deprive him of the position of a purchaser in good faith within the meaning of the Act of Congress. Hodapp v. Sharp, 40 Cal. 69. 70. Act of Congress confirming State land sales. The Act of Congress of July, 1866, to quiet land titles in California, pro- vides the means by which an invalid location of a State school land warrant on unsurveyed lands may be confirmed, but in order to obtain such confirmation the purchaser must present and prove up his. purchase and claim within the time allowed to pre-emptioners under ex- isting laws. The land, will not be certified to the State until the claim is presented and proved up. Collins v. Bartlett, 44 Cal. 371. 71. If one holding public land under an invalid location of State school warrants, made before the passage of the confirmatory Act of Congress of July, 1866, fails to present and prove up his claim under said Act, and an- other; after the passage of said Act, pre-empts the land and obtains a patent therefor, he ac- quires the legal title. Id. 72. No title to such lands passes from the United States to the State, or to the purchaser from the State, until the same are certified over to the State by the Commissioner of the General Land Office at Washington.' Id. 73. Right to buy lieu lands. A suit concerning the right to purchase lieu lands cannot be commenced in the Courts until the Surveyor General has made an application to the Register of the proper Land Office to have the land accepted in part satisfaction of the grant under which it is sought to locate them. Berry v. Cammet, 44 Cal. 348. 74. Sale of lieu lands. Lieu lands can- not be sold by the State officers until the selec- tion of them by the State has been approved by the Register of the proper Land Office. Id. 75. Date of certificate of Commissioner of General Land Office. Where the evi- dence shows that the land selected has been certified over to the State by the Commis- sioner of the General Land Office, though the date of the certificate is not given, if no objec- tion is made to the evidence, it will be pre- sumed that it was done prior to the commence- ment of the'action. Hodapp v. Sharp, 40 Cal. 69. 76. When purchaser may maintain ac- tion for possession. A purchaser from the State, whose selection falls within the second section of the Act, cannot maintain an action for the possession of the land before it is certi- fied over to the State, unless the defendant has intruded upon his actual possession. Id. 77. Register of the State Land Office. In awarding a certificate upon a located land warrant, the Register of the State Land Office does not exceed his authority, under the fifty- ninth section of the Act of 1868, if he is satisfied the location made is ineffectual or use- less, and that the lands located would not, by reason of such location, be lost to the State. Stuart v. Haight, 39 Cal. 87. 78. The determination and judgment of the Register upon these matters, are not the subject of review either by the Executive or the Courts. Id. 214 LAND AND LAND TITLES. 79. If it appear that land was duly located by the State Locating Agent, for the benefit of the State, at the United States Land Office, with the consent of the Register and Re- ceiver, and that such location appears in their official books, a sufficient consent is thereby shown to the location, on the part of the United States. Rush v. Casey, 39 Cal. 339. 80. Certificate of purchase as evidence of title. Under the Act of April 27th, 1863, for the sale of certain lands belonging to the State, (Stats. 1863, p. 591) the Register's cer- tificate of purchase of school or lieu land is the only prima facie evidence of legal title prior to a patent. True v. Thompson, 42 Cal. 293- 81. The Act of April 13th, 1859, (Stats. 1859, p. 227) in so far as it niade a certificate of location of school or lieu lands prima facie evidence of title, was superseded and repealed by the Act of April 27th, 1863, (Stats. 1863, p. 591) which inaugurated a new system of land law, intended to be complete in itself. Id. 82. Application to purchase. — Filing affidavit. No rights will attach in favor of an applicant to purchase school lands from the State, under the Act of April 27th, 1863, until he files the affidavit prescribed by Sections 28 and 29 of that Act, indorsed on a description of the land, in the office of the County Re- corder. Hogan v. Winslow, 45 Cal. 588. 83. Time of filing. The statute does not require that the affidavit shall not be filed be- fore or at the time of the other proceedings. It is only necessary that it be filed within a reasonable time before or after, and for the purposes of the intended purchase. Id. 84. Application to purchase. An ap- plication to purchase State lands must con- form to the statute, or it is invalid. Woods v. Sawtelle, 46 Cal. 389. 85. A application to purchase State school lands, made under the Act of 1868, must, if there is an adverse occupation of the land un- der a settlement made more than six months after the passage of the Act, state that fact, and that the adverse occupant has been in such occupation more than sixty days, and that the township has been sectionized and sub- ject to pre-emption three months or over. Id. 86. The approval, by the Surveyor Gen- eral, of an application to purchase State lands, does not raise the presumption that the appli- cation conformed to the statute. Id. 87. Certificate of oath. Under the Act of April 27th, 1863, no title to the land, and no right of possession or of purchase, inchoate or otherwise, attaches from any proceedings tak- en, until a certificate of the oath, prescribed by the twenty-eighth section of the statute, is in- dorsed on the description of the land, and filed in the office of the County Recorder. Dunn v. Ketchum, 38 Cal. 93. 88. Action to annul State certificate. In an action to annul a certificate of purchase of land sold on credit by the State for non-pay- ment of the purchase money, if the holder of the certificate is known, the action must be brpught against him by his real name, and there must be a personal service of summons. In such case, the summons cannot be served by publication. People v. Herman, 45 Cal. 689.' 89. Making holder of United States title trustee for holder of State title. One who purchases public land from the State, as a part of the five hundred thousand acres to which it became entitled by the Act of Con- gress of April 4th, 1 841 , cannot claim the bene- fit of a patent for the same land, issued by the United States to another person as a pre-emp- tioner, and make him his trustee holding the legal title. Poppe v. Athearn, 42 Cal. 607. 90. Sale of tne shore of the ocean be- low high tide. The Act of March 28th, 1868, for the sale of lands belonging to the State, does not authorize the sale of the beach of the ocean below high tide. Kimball v. Macpher- son, 46 Cal. 103. 91. Nothing short of a very explicit pro^ vision in the law to that effect will justify the Court in holding that the Legislature intended to permit the shore of the ocean, between high and low water mark, to be converted into pri- vate ownership. Id. . See Ante, 2, 4; Trust and Trustee, 10; Yo- semite, 1, 2. V. SCHOOL LANDS. 92. Selection of five hundred thousand acres granted to each State. No valid se- lection can be made of the five hundred thou- sand acres of land granted to each State by the Act of Congress of September 4th, 1841, until after the land selected has been surveyed by the proper officers of the United States. Hast- ings v. Jackson, 46 Cal. 234. 93. No valid selection of such lands can be made except in the manner prescribed by the Legislature of the State. Id. 94. School lands. Section 4 of the Act of April 23d, 1858, to provide for the location and sale of certain school lands, which pro- vides that the locating agent shall not locate , more than three hundred and twenty acres, either direotly or indirectly, for any one per- son, was not amended or repealed so as to abro- gate or dispense with such limitation until the Act of March 28th, 1868. Chapman v. Buck- man, 39 Cal. 674. 95. Only such portions of prior Acts re- lating to the same subject, as are repugnant to or in conflict with its provisions, were super- seded or repealed by the Act of April 27th, 1863, to provide for the management and sale of the. lands belonging to the State. Id. 96. Payment of installment. An appli- cant for the purchase of lands belonging to LAND AND LAND TITLES. 215 the State, under the provisions of the Act of March 28th, 1868, who has obtained a oertifi- pate of location from the Surveyor General, but has failed to pay the installment of twenty per cent, of the purchase money within fifty days from the date of the certificate, will be considered as having abandoned his exclusive right to purchase, and the Surveyor General may issue a new certificate to another appli- cant for the purchase of the same lands. Eckart v. Campbell, 39 Cal. 256. 97. School land warrant Patent. A patent to land obtained under the location of a school land warrant on lands reserved from entry and sale, is unauthorized by law and void. Hush v. Casey, 39 Cal. 339. 98. Duplicate warrants. When the lo- cation of a State land warrant cannot be made available, in consequence of the prior claims of persons holding pre-emption rights upon the lands located, the owner of the warrants will be entitled to duplicate land warrants, in ac- cordance with the provisions of the Act of 1868, ' ' to provide for the management and sale of the lands belonging to the State. ' ' Stuart v. Haight, 39 Cal. 87. 99. Pre-emption on sixteenth and thir- ty-sixth sections. The Act of Congress of May 30th,i 1862, authorizing settlements to be made on unsurveyed lands, did not have the effect of extending the right of pre-emption to the sixteenth and thirty-sixth sections in the State of California. Sherman v. Buiek, 45 Cal. 656. 100. School land warants, location of. Under the Act of May 3d, 1852, "to provide for the disposal of the five hundred thousand acres of land granted to this State by Act of Congress," school land warrants can only be located on lands belonging to the United States subject to such location. Farish v. Coon, 40 Cal. 33. 101. The locator of the warrants is in the position of a purchaser in possession, whose possession is not hostile but in consonance with the title of the vendor ; and in order to put the Statute of Limitations in motion, it must appear that the locator repudiated the title of the State, and claimed to hold, not under that title, but in hostility to it. Id. 102. Tide lands. Lands covered by the ebb and flow of the tide are not subject to loca- tion with school land warrants ; nor does the location of such lands with school land war- rants confer on the locator a right to the pos- session as against the true owner, or amount to a color of title. Id. 103. State not estopped. Where school land warrants are located on lands belonging to the State not subject to such location, the State is not estopped from asserting title to such lands by the fact that the purchase money for the warrants was paid into the State Treasury, and has never been refunded or offered to be refunded. Id. 104. Neither the United States Register for California, nor the Surveyor General of the State, have authority to approve the location of school land warrants on tide lands belong- ing to the State. Id. 105 . The purchaser of school land warrants was bound in law to know that they could only be located on lands belonging to the United States. Id. 106. Where such warrants were, through mistake, located on other lands not subject to location, the only remedy was to float the warrants and locate on other lands. Id. 107 ." Location of school land war- rants on unsurveyed lands. The location of a school land warrant issued under the Act of May 3d, 1852, upon unsurveyed lands of the United States, is void, and confers no right whatever upon the locator. Hastings v. Devlin, 40 Cal. 358. 108. Location, when void. The loca- tion of school land warrants, issued by this State, prior to the survey of the land on which they are located by the United States, is void.- Collins 1;. Bartlett, 44 Cal. 371. 109. Location invalid. A location and entry of any portion of a sixteenth or thirty- sixth section, made under the Act of April 27th, 1863, is invalid, and' fails to vest any title in the locator, provided there was a set- tlement, by occupation or improvement, on any part of the section owned by another, who had. acquired no pre-emption right to a specific part of the section, and the locating agent did not give the occupant or claimant of such im- provement the notice of sixty days required by the fifth section of said Act. Hildebrand ■u. Stewart, 41 Cal. 387. 110. Affidavit, what to state. The lo- cation and entry of any portion of a sixteenth or thirty-sixth section is invalid, if the affi- davit of the locator, on his application to locate and purchase, does not state, that he is desirous to purchase the land, and does not give a de- scription thereof by legal subdivisions. A statement, signed by the applicant and not sworn to, containing' the same matters required in the affidavit, and accompanying the affi- davit, does not render the entry valid. Id. 111. Right to purchase public lands. When the law, under which public lands are sold, requires certain acts to be performed as a prerequisite to the right to purchase, the Courts cannot dispense with the performance of those acts, by legalizing an entry made without complying with them. 10. 112. Improvements. A house and cor- ral are improvements of the character contem- plated by the fifth section of the Act of April 27th, 1863, providing for the sale of certain lands belonging to the State. Id. 113. Title vested in State. The Act of Congress of March 3d, 1853, granting to the State of California the sixteenth and thirty- 216 LAND AND LAND TITLES. sixth sections of the public lands 'within said State, vested absolutely in the State the title to those sections, upon their being surveyed, and Congress had no power after the passage of said Act to impair the grant, or to prevent the title to those sections from vesting in the State, upon their being surveyed. Sherman v. Buick, 45 Oal. 656. See Contract, 44 ; Ejectment, 38. VI. SWAMP AND OVERFLOWED, SALT MARSH AND TIDE LANDS. 1. Generally. 114. Object of Congress in granting. The object of the Federal Government in donating the swamp lands to the several States was to promote the speedy reclamation of the lands, and' thus invite to them population and settlement, thereby opening new fields for in-, dustry and increasing the general prosperity. Kimball v. Reclamation Fund Commissioners, 45 Cal. 344- 115. Obligations of the State in ac- cepting the grant. In accepting the grant of swamp lands, the State of California was bound to carry out in good faith the objects for which it was made. The Legislature has, at all times, recognized the binding force of this obligation. Id. 116. Presumption as to party claiming title to swamp lands. A party claiming title to swamp lands under a patent from the State which conveys a title without conditions, is deemed to have acquired his title with a full knowledge of the terms, conditions, and pur- poses of the grant, and to have accepted the title in subordination to the paramount right and duty of the State to cause the land to be reclaimed. Id. 117. Cost of reclamation. He is pre- sumed to have taken the title with the consent that the Legislature might afterwards modify the system of reclamation, and that, if the pro- ceeds of the sale should prove to be insufficient to accomplish the reclamation, he would sub- mit to the imposition of such burdens on the land to effect the object as the Legislature might deem expedient. Id. 118. Assessing swamp lands to pay cost of reclamation. The Legislature may provide for dividing swamplands into districts, and having an estimate made of the cost of rec- lamation, and for the issuing of bonds and sale of the same to pay the expense of the rec- lamation, and the levy of an assessment on the lands in the district to pay the same, even after it has sold the land and given a patent which does not contain any conditions. Id. 2. Title, how acquired. 119. Application to buy tide land con- fers a right to be lost only by the fault of the applicant. An application to buy tide land, made in accordance with law, confers a right to purchase upon the applicant which, as against the State and all subsequent appli- cants, can be lost only by the failure of the ap- plicant to pursue the further steps prescribed by the statute — not through the fault of any officer. Hinckley v. Fowler, 43 Cal. 56. 120.- What application to contain. An application to" purchase tide lands from the State must contain an intelligible description of the lands sought to be purchased. If the des- cription be unintelligible, it will not support- the application in case of a contest. Miller v. Taylor, 45 Cal. 219. 121. Description in application to pur- chase. 1 The Act of 1863, supra, only requires the applicant to describe the land applied for^ and a description which the County Surveyor can understand is sufficient. The survey, which it is his duty to make, ought .to fix the lines with the requisite precision. Hinckley v. Fowler, 43 Cal. 56. 122. Good description. F filed an ap- plication under the Act to provide for the sale of certain lands belonging to the State, (Stats. 1863, p. 591) in which he described the land for which he applied as " the one half mile water front donated to the San Francisco and Marysvil'le Railroad Company, by an Act of the Legislature of the State of California, ap- proved April 24th, 1858." Held, that the de- scription was in every respect in accordance with law. Id. 123. Right of applicant where less than tract applied for is approved. Where a party makes an application in accordance with the Act of 1863, to purchase a certain piece of tide land, but the County Surveyor actually surveys but a small portion of it, and such survey is approved by the Surveyor Gen- era], and subsequently, under the advice of the Surveyor, the applicant makes a payment upon the tract approved, and then files a new appli- cation for the balance of the tract, he is not precluded from insisting upon his rights under the first application. Id. 124. Payment of installments. In passing the Act of March 30th, 1868, " to sur- vey and dispose of certain salt marsh and tide lands belonging to the State of California," it was the intention of the Legislature to pro- vide for the payment of the deferred install- ments, by requiring the payment of twenty- five per cent, of the whole ' purchase price within the first year, and a like amount in each of the two following years. People v. Washington, 40 Cal. 173. 125. The stipulation in the receipt to be given by the Commissioners to the purchaser, for the amount of the first payment of twenty- five per cent., to the effect, "that if within one, two or three years thereafter he pays the additional seventy-five per cent. , * * * he LAND AND LAND TITLES. 217 shall receive a deed from the State, ' ' was in- serted for the purpose of giving the purchaser the privilege of paying the whole balance in a shorter period of time than three years, should he desire to do so. 7c?. 126. Unpaid installments. It was the duty of the Tide Land Commissioners to treat lands, upon which the first installment of the deferred payments remained unpaid for a longer period than one year, as ' ' lands unsold by the State," and to proceed to resell the same. Id. 127. Time of first payment. Under Section 1, of the Act of April 27th, 1863, for the sale of certain lands of the State, (Stats. 1863, p.' 591) the first payment must be made within thirty days after the record in the County Surveyor's office of the approval of the Surveyor General ; and a failure by the appli- cant to pay within the thirty days will not be excused on account of the neglect of the Coun- " ty Surveyor to forward to him the approved copy of the survey. Carpenter v. Sargent, 41 Cal. 557. • 128. No extension of time for first payment. The thirty days' time after the record of the Surveyor General's approval of survey, prescribed for the first payment of money by Section 1 of the Act for the sale of swamp and overflowed lands, (Stats. 1863, p. 591) .cannot be postponed on account of acci- dent, mistake, neglect, or inadvertence. Id. 129. ^Failure to pay -within time an abandonment. A County Treasurer is not bound to accept money tendered after the time prescribed bylaw, (Stats. 1865, p. 591, Sec. I) for the first payment on a proposed purchase of swamp and overflowed lands, but may properly treat the proposed purchase as abandoned. Id. 130. Forfeiture. A failure to pay the interest annually, and to pay the principal at the end of five years, on a swamp and over- flowed land purchase, made under the Act of 1855, works a forfeiture, and the State- may resell, as if no purchase had been made. Bor- land v. Lewis, 43 Cal. 569. 131. A State may waive a forfeiture ; but if, after a forfeiture, and before a waiver, the State resells the land, forfeited, the waiver will not have the effect to divest the rights acquired by the second purchase. Id. 132. Certificate, when void. A certifi- cate of purchase, as swamp and overflowed lands, of land on the Sacramento River, situ- ated below high water mark, and over which the tide ebbs and flows, is void. Taylor v. Underhill, 40 Cal. 471. 133. Obstruction to navigation. No right to obstruct navigation passes to the pur- . chasers under the laws for the sale of swamp and overflowed lands. *Id. 3. Controversies concerning. 134. Jurisdiction. The judicial depart- ment of the State has no jurisdiction of con- troversies arising between applicants for the purchase of State lands, except in cases where such jurisdiction is expressly conferred by stat- ute. Berry v. Cammet, 44 Cal. 348. 135. Contest, how adjudicated. Under the twenty-seventh section of the Act of 1863, for sale of tide land, when a contest- is referred to the Courts for settlement, it is to be determ- ined upon the principles of law and equity involved. The Court is to exercise its judicial , authority in adjudicating the entire case as presented, and is not confined to the measure of reHef which the Surveyor General might award. Hinckley v. Fowler, 43 Cal. 59. 136. Surveyor General to determine facts only. The Surveyor General is to de- termine only those contests about the purchase of lands in which the survey, or "purely a question of fact, " is involved. Id. 137. Question of law to be referred to the Courts. When a question of law only is involved, or one of law and fact, in relation to purchase of tide lands, the parties are to be re- ferred to the Courts for the settlement of such questions. Id. See Ante, 90, 91, 102 ; Injunction, 28; Lim- itations, 19, 20; San Francisco, 19. 138. Rules as to pleadings and evi- dence in contested cases. The ordinary rules of pleadings and of evidence are to be observed, and judgment is to be rendered as in ordinary adversary proceedings. Id. 139. Regularity or sufficiency of se- lection. Neither the Secretary of the Interior nor any officer of the Land Department of the General Government has authority to deter- mine the question of the regularity or the sufficiency of the selection of such lands. Hastings v. Jackson, 46 Cal. 234. . 140. As between conflicting claimants to such lands, under the State, neither the Com- missioner of the General Land Office nor the Secretary of the Interior has the power to de- cide. Id. 141. The proper officers of the General Government must approve of the selection of such lands, when made in accordance with the laws of the State, and in such parcels and from such lands as the Act of Congress pre- scribes, but beyond such approval they have no power to act. Id. 142. Patent for State land. The Reg- ister of the State Land Office must not issue a patent for State lands until the applicant for the patent surrenders the certificate of pur- chase. Duncan v. Gardner, 46 Cal. 24. 143. When a judgment debtor has a State certificate of purchase of a tract of land sold him by the State, one who purchases at Sheriff's sale a part only of the tract, and obtains a Sheriff's deed therefor, is not entitled to a patent from the State for the land by him go purchased. Id. 218 LAND AND LAND TITLES. 144. Adverse patents from State and United States. Where, in an action of ejectment, plaintiff claimed under a patent from the State of California, dated January 15th, 1856, as of swamp and overflowed lands, acquired under the Act of Congress of 1850, granting the same to the State, and the de- fendant claimed the same land under a patent from the United States, dated September 10th, 1866 : held, first, that both patents were prop- erly admitted in evidence on the trial of the issue of title, as being necessary links in the respective chains of proofs of the parties ; but that the question as to which patent conveyed the title depended on the further fact whether or not the lands were swamp and overflowed, within the meaning of said Act of Congress ; second, that this question was properly de- terminable, not from the recitals of either patent, or the records of either the State or United States Land Office, but upon parol proofs as to the real character of the lands. (Keeran v. Griffith, 27 Cal. 87, and 31 Cal. 461, andKeeranu. Allen, 33 Cal. 542, affirmed.) Keeran v. Griffith, 34 Cal. 580. 145 . Who may not attack patent made by the State. A person who, with a State land warrant, locates three hundred and twenty acres of land under the provisions of the Act of May 3d, 1852, for the disposal of the five hundred thousand acres of land granted to the State, but whose location is void because made before the land is surveyed by the United States, bears no such relation to the land as to enable him to attack a patent made by the State for the same land to a person who makes a subsequent location, after a survey. Hastings v. Jackson, 46 Cal. 234. • 146. Contest for purchase of lands. — Complaint. When a controversy between applicants for the purchase of State lands is referred to the Courts for decision, the com- plaint in the action must state, not only that the parties are contesting claimants for the purchase of the land, but also all the facts con- ferring jurisdiction on the Court, such as the proceedings before the Surveyor General, and the order made by him referring to the Courts. Berry v. Cammet, 44 Cal. 348. 147. A complaint in an action between contesting applicants to buy lieu lands must aver that the Surveyor General has made ap- plication to the Register to have the land ac- cepted in part satisfaction of the grant under which it is sought to locate them. Id. VII. MEXICAN GRANTS. 1. Title under. 148. Right of Mexican grantee to pos- session until survey. A party whose Mexi- can grant to a specific quantity of land within the exterior boundaries of a larger tract has been confirmed by the United States District Court, has a right to the possession of all the land within the exterior boundaries of the larger tract, until the government of the United States shall segregate the part con- firmed by a final and approved survey. Mbtt v. Reyes, 45 Cal. 379. 149. Right of Mexican government to annul a grant. The question reserved, as to whether the Governor of California, when it was a part of Mexico, had the power, after a grant of land had been made to a party in due form of law, afterwards to annul and vacate it, on the ground that it was fraudulently ob- tained, and grant the land to another. Id. 150. License by Mexican authorities to occupy land. A license to occupy land temporarily, called a provisional grant, grant- ed by the Governor of California before the acquisition of California by the United States, conveyed no title, legal or equitable, to the land, and was revocable at pleasure. Id. 151. Revocation of grant. Certain acts and orders of the Governor of California, when it was a part of Mexico, made in relation to a former grant of land, reviewed and discussed, and held not to be a revocation of such former grant, and not to amount to a grant, them- selves, but to be only a license to occupy. Id. 152. When inchoate. If an order made by the Mexican government for a license to occupy land, be treated as a grant of land, it does not make a perfect grant, but only an inchoate title. Miller 1;. Dale, 44 Cal. 562. 153. If a petition made to the Mexican government for a concession of land asks for a certain number of leagues, more or less, within boundaries which are indefinite, the concession gives only an inchoate title. Id. 154. Priority of right to purchase. It was the practice of the Mexican government to consider a long possession, held under such provisional grant or license, as entitling the occupant to some sort of priority of right to purchase when the land came finally to be dis- posed of ; but this priority did not rest on any' legal obligation which the government was under to such occupant. Mott v. Reyes, 45 Cal. 379. 155. Grant of the sobrante. Two par- ties were contesting before the Governor of California, while it was a part of Mexico, the validity of their respective grants to the same tract of land, being grants which each had of a specific quantity within the exterior limits of a larger quantity ; in the mean time the Governor granted to one the sobrante within such exterior limits : held, that this grant of the sobrante did not impair the rights of the other, whose grant was the better one. Id. 156. What gives perfect title to in- choate Mexican grant. The claimant of a Mexican grant, whose title is not perfect, and for that reason requires confirmation, does not acquire a perfect title except by means of a LAND AND LAND TITLES. 219 patent, or a survey confirmed in accordance with the Act of June 14th, i860. Chipley v. Farris, 45 Cal. 527. 157. Definitive grant. An approval of a Mexican grant of land by the Departmental As- sembly, and the giving of juridical possession, are necessary to create a definitive grant. Mil- ler v. Dale, 44 Cal. 562. 158. Imperfect title. Where there is nothing in the grant, nor in any of the docu- ments to which it refers, by which to fix the lines of one of the sides of the tract intended to be granted, or to determine the particular quntity, the concession does not confer upon the grantee a perfect title to any specific parcel of land. (The cases of Minturn v. Brower, 24 Cal. 644, and United States v. Peralta, 19 How. 340, commented on and ex- plained.) Banks v. Moreno, 39 Cal. 233. 159. Perfect grant. To constitute a com- plete and perfect grant to a specific parcel of land, it must, in some method, appear on the face of the instrument, or by the aid of its descriptive portions, not only that a specific parcel was intended to be granted, but it must also be so described that the particular tract intended to be granted can be identified with reasonably certainty. Banks v. Moreno, 39 Cal. 233. 160. Perfect title acquired by Mexican grant. A grant of land by Mexico did not convey a perfect title, unless there was a seg- regation and a judicial delivery of the posses- sion of the quantity of land granted. Schmitt v. GriOvanari, 43 Cal. 617. See Appeal, 267 ; Boundaries, 3 ; Contract, 93 ; Deed, 50, 67 ; Description of Land, 3 ; Ejectment, 102, in; Limitations, 50-56; Stipulations, 7 ; Trust and Trustee, 26. 2. Confirmation of. 161. Imperfect grants. If, at the date of the cession of California to the United States under the laws of Mexico, there remained any- thing to be done by the Mexican Government, in order to vest the grantee of land in Cal- ifornia with title to the specific land claimed by him, his title was imperfect, and it was necessary for him to present it to the Land Commissioners for approval within two years from the passage of the Act of March 3d, 185 1, under the penalty of having the land become a part of the public domain if he failed to do so. Stevenson v. Bennett, 35 Cal. 424. 162. Pueblo lands are not exempted from the operation of the above rule. Id. 163. Decree confirming grant. If a de- cree confirming a Mexican grant of land con- firms it by metes and bounds, subject to "de- ductions" of certain ranchos (naming them) within the exterior bounds of the confirmed grant, and then provides that 'the excepted ranchos are excluded from the confirmation, the confirmation extends only to such lands as are not included within the excepted ranchos. City of San Jose v. Uridias, 37 Cal. 339. 164. Who is confirmee. A confirma- tion of a grant of land made by Mexico, under the provisions of the Act of Congress of March 3d, 1851, necessarially requires a confirmee, and, although the confirmation may inure in law or in equity to the benefit of other persons than the confirmee, yet the person whose claim, is confirmed is the confirmee. Schmitt v. Grio- vanari, 43 Cal. 617. 165. Purchase from grantee. One who bought land included in a Mexican grant be- fore the presentation of a petition for its con- firmation, became entitled to have a confirma- tion of his claim, but if he neglected to apply for the same, and suffered his grantor to pre- sent a petition and have a confirmation made to such grantor, he must, in order to obtain the benefit of the confirmation, so far as the legal title is concerned, rely on the estoppel springing from his vendor's deed, unless there is a clause in the decree of confirmation giving him the benefit of the same. Id. 166. Construing decree. The construc- tion given by the Supreme Court of the United States to its decree confirming a Mexi- can grant of land in California, is of binding authority in the State Courts. Id- 167. Effect of decree. A decree of a Court of the United States confirming a Mexi- can grant to one who had purchased from the original grantee, and which declared that the confirmation should be without prejudice to the legal representatives of the original grantee, and should inure to the benefit of any person who owned the land by any title derived from the original grantee, gives a per- fect title to a purchaser from the confirmee, who bought from him before he presented his petition for a confirmation to the Commission- ers appointed under the Act of Congress of March 3d, 1851, as against-one who bought from him after the confirmation. Id. 168. Mexican grant, including private claim. A Mexican grant was confirmed by the United States, excepting certain tracts in- cluded within its exterior boundaries, granted to private claimants. Land claimed as part of a tract thus excepted was excluded by an official survey of the tract. Held, that the land thus excluded is a portion of the land confirmed in the larger grant. City of San Jose" v. Trimble, 41 Cal. 536. 169. Effect of confirmation of part of grant. A confirmation of a portion of a Mex- ican grant to a purchaser of such portion from the grantee does not have the effect of con- firming to the grantee and purchasers from him the entire grant. Brown v. Brackett, 45 Cal. 167. 170. Legal title vests in confirmee. The legal title to a Mexican or Spanish grant of land vests in the confirmees and their as- signs. Hartley v. Brown, 46 Cal. 2QI. 220 LAND AND LAND TITLES. 171. Equitable title in grantee. If a Mexican or Spanish grant of land was imper- fect or inchoate, the fee remained in the Gov- ernment until the confirmation and final survey by the United States, if not until the issuing of the patent. Until then, the grantee had only an equitable title. Wilkins v. McCue, 46 Cal. 656. 172. Presumption in favor of judg- ment. If it is admitted by the plaintiff on the 'trial that he has title, under a patent issued for a Mexican grant •within less than five years before the commencement of the action, and the defendant recovers judgment, and the plaintiff claims title by prescription, it will be presumed, in support of the judgment, that the grant was an imperfect one, and conveyed only an equitable judgment. Id. See Covenant, I ; Ejectment, 48, 49. 3. Survey of. 173. Confirmation of surveys. Under the Act of Congress of June 14th, i860, the confirmation of a survey is a judicial act, and the decree of confirmation has the force of res adjudieata against all persons, whether they intervened or not. Yates v. Smith, 38 Cal. 60 ; affirmed same case, 40 Cal. 662. 174. Proceedings judicial. The proceed- ings of the District Court of the United States under the Act of Congress of June 14th, i860, relative to surveys of Mexican grants of land, are of a judicial nature. Semple v. Ware, 42 Cal. 621. 175. Duty of Surveyor General. — Responsibility for neglect to transmit survey. The Act of Congress of July ist, 1864, " to expedite the settlement of titles to .lands in the State of California, ' ' makes it the duty of the Surveyor General to transmit the survey to the Land Department, and every act, from the confirmation of a survey to the issuing of a patent, is an official act ; and where there is any neglect or unnecessary de- lay in issuing the patent, the confirmee is not responsible for it. Shartzer v. Love, 40 Cal. 93. 176. Decree of confirmation. Under the Act of Congress of June 14th, i860, the con- firmation of a survey is a judicial act, and the decree of confirmation has the force of res ad- judicata against all persons, whether they intervened or not. Yates v. Smith, 38 Cal. 60. 177. Who bound by decree. If the owner of a Mexican grant, who has obtained a confirmation of his survey, is bound by a sub- sequent confirmation of a survey embracing the same land under another grant, the latter confirmee is equally bound by the decree ap- proving and confirming the first survey ; and in such case the Court will look behind the con- firmations, and ascertain which has the prior equity. Id. 178. Title under elder grant. The elder srant gives the better title, where it calls for a specific and ascertained parcel of land. Crockett, J. Yates v. Smith, 38 Cal. 60. 179. But if a grant calls for a specified quantity of land, to be located within certain larger exterior limits, the government thereby reserves to itself the exclusive right to locate the quantity granted. Id. 180. If the government subsequently granted to another a portion of the overplus . within certain designated bounds, this is pro tanto a location of the first grant, and an un- equivocal declaration that the first grant should not be so located as to include the land embraced in the second. Id. 181. In such case, the confirmation of the survey under the second i grant ought not to be affected by the subsequent confirmation of the survey under the first grants — there being more than sufficient land within the exterior limits called for in the grants, to satisfy the requirements of both. Id. 182. Conflict of surveys. Where two imperfect grants of land were made by the Mexican Government, both of which were confirmed by the United States', and their final approved surveys, made under the Act of Con- gress of July Ist, 1864, lapped over each other, and for one a patent was issued by the United States : held, that the owners of the grant for which no patent had been issued could not re- cover, from those claiming under the other grant, possession of the land where the sur- veys conflicted. Miller v. Dale, 44 Cal. 562. 183. Approval of survey. The approv- al of a final survey of a Mexican grant can- not have the force of a patent unless such ef- fect is given to it by statutory enactment, and the Act of Congress of July 1st, 1864, is silent as to the effect an approval of a survey shall have. Miller v. Dale, 44 Cal. 562. 184. The approval of a final survey of a Mexican grant of land by the United States Courts, under the Act entitled "an Act to expedite the settlement of titles to lands in the State of California," approved July ist, 1864, is not equivalent to a patent for the land. Id. 185. If the patent purports to convey the land described in the approved survey of a Mexican grant, and the decree of confirma- tion comprises a greater area than the ap- proved survey, the claimant has no title except to the land described in the approved survey. Chipley v. Farris, 45 Cal. 527. 186. Confirmation and approved sur- vey. If the decree of confirmation of a Mex- ican grant does not accord in its description of the land with the approved survey, and the patent conveys the land as described in the ap- proved survey, the claimant's title is confined to the land as described in the approved survey, even if the decree of confirmation is inserted in the patent. Chipley v. Farris, 45 Cal. 527. 187 . The boundaries mentioned in the ap- LAND AND LAND TITLES. 221 proved survey must, prevail over those men- tioned in the decree of confirmation. Id. 188. If the decree of confirmation covers land not included in the approved survey, and not conveyed by the patent, the claimant has no title to the surplus which is not conveyed by the patent. Id. 189. Survey necessary. After a decree is made confirming a, Mexican grant of land, a survey is necessary to fix and determine the boundaries of the land con- firmed ;• and when such survey has been made and approved as required by law, the Courts will not go behind it and look into the decree to ascertain what are the bounda- ries of the grant. City of San Diego v. Alli- son, 46 Cal. 162. 4. Patent. 190. Validity of. A patent for lands un- der a confirmed Mexican grant and final sur- vey, which shows upon its face that it includes lands embraced in a previously approved final survey of another confirmed Mexican grant, is not void as to that portion of the lands in- cluded in both surveys. Yates v. Smith, 40 Cal. 662. 191. A note by the Commissioner of the General Land Office, contained in a patent for lands, under a confirmed Mexican grant, to the effect that the lands granted in the patent included lands embraced in the final suryey of a previously confirmed Mexican grant, does not operate to except the lands so included from the lands granted in the patent. Id. 192. A patent of a Mexican grant of land is not issued without authority, of law, be- cause the Surveyor General of California trans- mits to the General Land Office the plat and survey of the land certified and approved by him, instead of having the transmission made by the confirmee. Chipley v. ITarris, 45 Cal. 527. 193. Issuance of patent. The issuance of the patent is the last step in the proceedings for the confirmation of a Spanish or Mexican grant, under the Act of Congress of 1851. Id. 194. Evidence to show patent void. Neither the claimant of a Mexican grant, nor those claiming title through him, can intro- duce evidence, in an action brought by them to recover possession of the grant, or a portion thereof, to show that the patent issued therefor was void. Id. 195. Delivery and acceptance. It is ' not necessary that a patent issued for a Mexi- can grant, under the Act of 1851, for the set- tlement of private land claims in California, should be accepted by or delivered to the claimant or patentee. The patent takes effect when issued. Id. 196. Cannot be attacked collaterally. A patent for a Mexican grant of land is a rec- ord which binds both the Government and the claimant, and those deriving title through him, and cannot be attacked by either party, except by direct proceedings instituted for that purpose. Id. 197. Title when vested in' heirs. If the patentee to whom the patent is made, un- der the Act of March 3d, 1851, to settle pri- vate land claims in California, dies before the patent is issued, the title to the land therein designated becomes vested in the heirs, devi- sees or assignees of the deceased patentee, the same as if the patent had issued during his life. Id. 198. Attack on a patent in a collat- eral action. In ejectment between those claiming under a confirmed Mexican grant for which a patent has been issued, and those claiming under another confirmed grant for which no patent has been issued, the Court cannot inquire whether the confirmation which resulted in the issuing of a patent was obtained by the use of false and fraudulent evidence. Miller v. Dale, 44 Cal. 562. 199. A patent is a record of the Govern- ment which cannot be assailed on the ground that it was obtained by false or fraudulent evidence, in a collateral action in which it is used as evidence as a source of title. Id. 200. Third persons, who are. Third persons, within the meaning of the Act of Con- gress of 1851, against whose interest the final confirmation and patent of a Mexican grant are not conclusive, are those, and those only, who have such claim of title that they could, under the stipulations of the treaty of Guada- lupe Hidalgo, and the law of nations, with- stand the Government of the United States, if it were claiming the land for itself. One claiming under an inchoate Mexican grant which has been confirmed, and the final survey of which has been approved under the Act of July 1st, 1864, is not such third person. Id.. 201. Title takes effect by relation. A title to land founded upon the confirmation and survey of a Mexican grant, and a patent issued in pursuance thereof, or a confirmed survey — which is now equivalent to a patent — takes effect by relation at the date of filing the petition therefor, and will prevail over a subsequent patent issued upon a purchase from the United States. Morrill v. Chapman, 35 Cal. 85. 5. Effect of rejection of claim. 202. Land restored to public domain. By Section 13 of the Act of Congress of March 3d, 1851, establishing a Board of Land Com- missioners for the adjudication of private land claims in the State of California, the final re- jection of a claim operates, . proprio oigore, to- restore the land included therein to the mass- of the public domain, without further action by the Land Department of the Government, 222 LAND AND LAND TITLES. and the same becomes subject, at once, to lo- cation, or appropriation, in any manner pro- vided by law. Bush v. Casey, 39 Cal. 339. 203. The final rejection of a Mexican land claim under the provisions of the Act of Con- gress of the third of March, 1851, operates, propria iiigore, to restore the land to the mass of the public domain. McGary v. Hastings, 39 Cal. 360. See Ante, 48-58. 6. Actions involving Mexican titles. 204. Bona fide settler. A party -who claims the benefit of the Act of April 2d, 1866, staying proceedings in actions for'the recovery of land embraced -within the exterior limits of unsurveyed Mexican or Spanish grants, must show that he was a bona fide settler upon the demanded premises, dwelling thereon. City of San Jose' v. Shaw, 45 Cal. 178. 205. Acts of officers of Foreign Gov- ernments. The general rule is, that when the acts of the officers of a Foreign Govern- ment are brought in question in our Courts, the acts performed by them will be presumed to have been within the scope of their lawful authority, unless the contrary appears. Mott v. Reyes, 45 Cal. 379. 206. Evidence in. "When the plaintiffs, in ejectment, rely for title on » Spanish or Mexican grant, and prove a confirmation of the same under the Act of 185 1, for the settle- ment of private land claims in California, and it appears that a patent has been issued for the same, the plaintiffs must, if requested, produce the patent in evidence, or their testimony will be stricken out. Chipley v. Farris, 45 Cal. 527. Vm. PUEBLO LANDS. 207. Right of pueblo to land. A pueblo, when once legally established, became entitled to four square leagues of land, to be surveyed in the form of a square or quad- rangle, and marked by boundaries which could be readily known by official authority. Steven- son v. Bennett, 35 Cal. 424. 208. "When right forfeited. If, at the date of the cession of California to the United States, a pueblo existed which was entitled to four leagues of land, but the same had not 'been surveyed and had its boundaries marked by official authority, the title of the pueblo to the land was imperfect, and the same became a part of the public domain, unless an appli- cation was made to the Land Commissioners for its confirmation within two years from the passage of the Act of Congress of March 3d, r85i. Id. 209. Title by Mexican grant as against a pueblo title. It does not follow, because the inchoate title of the pueblo of which said land was a part, was older than the Mexican grant under which said confirmee claimed the same, that the former was the better title. The decree by which the title of the City of San Francisco was confirmed to said pueblo expressly excepted Mexican grants from its operation; moreover, the exercise of the power by the Governors of California under the Mexican Government to grant lands with- in pueblos has been so long acquiesced in, and so many titles depend upon a recognition of the power, that it ought not now to be drawn in question, except upon the most cogent con- siderations. Bernal v. Lynch, 36 Cal. 135. 210. Pueblo of San Francisco.— Ad- verse claim to lands. A claim to land within the boundaries of the former pueblo of San Francisco, taken up under the statutes of this State, is void. Judson v. Malloy, 40 Cal. 299. 211 Statute of Limitations. The holder of a title, derived from such claim, though in possession of a part of the lands, and claiming title to the whole, upon the rule of Hicks v. Coleman, 25 Cal. 122, does not come within the proviso to the sixth section of the Statute of Limitations of 1855, nor the second proviso to the sixth section of the amendatory Act of 1863. Id. 212. Power. of the State as to pueblo lands. When California was elected into a State of the American Union, it succeeded to the power which the Government of Mexico had before exercised over its municipalities, in respect to the control and disposal of the pueblo lands, so soon as the title of the pueblo, or its successor, and the nature of the trust on which the lands were held, should be recog- nized by the proper tribunals of the United States. San Francisco v. Canavan, 42 Cal. 542- 213. Title of San Francisco to pueblo lands. Neither the former pueblo nor the City or County of San Francisco, as its successor, ever held an indefeasible proprietary interest in the pueblo lands. Such lands are held in trust for certain municipal purposes. Id. 214. Conditions precedent to vesting of title. Congress relinquished and granted to the City of San Francisco the right of the , United States to certain pueblo lands within its limits, to hold in trust, to dispose of, and convey the same to parties in possession there- of, on such conditions as should be prescribed by the Legislature. One of the conditions prescribed by the Legislature, by which a per- son in possession, or who had been unlawfully ousted, was to become entitled to the benefit of the Act of Congress, was, that prior to a certain time, all taxes which had been assessed during the five years preceding, shall have been paid : held, no title vested in one in pos- session, or who had been ousted from posses- sion, unless he, or some one acting in his be- half, had paid such taxes : held, also, that the same rule prevailed as to the payment of an LAND AND LAND TITLES. 223 assessment imposed on the land as a condition precedent to vesting title. Dupond v. Barstow, 45 Cal. 446. See Ante, 162 ; Ejectment, 4, 98 ; Trust and Trustee, 17, 18. IX. ALCALDE GRANTS. 215. Alcalde grant. Although neither the delivery of an Alcalde's grant nor the pay- ment of the municipal fees, were necessary to vest title in the grantee, yet, if immediately after a grant was . made, to two persons, and signed and recorded in due form by the Al- calde, the grantees appeared before him, and one of them verbally renounced his right in the lot granted, the Alcalde might amend his record by endorsing on the back of the grant the renunciation, and the fact that the other person might have the entire lot, and the lot then became the sole property of the one not renouncing. Licku. Diaz, 37 Cal. 437. 216. ' Power to modify. The power vest- ed in an Alcalde to grant lots implies the power to modify the grant, with the consent of all parties in interest, while the proceedings are in fieri, and so long as anything remains to he done by the granting power. Id. 21.7. It was competent for one of the grant- ees of a lot made by an Alcalde to two persons, at any time before the proceedings were com- pleted, to decline the grant, and consent that the grant be made to his cograntee, and the Alcalde might then modify the grant by an endorsement thereon, making it inure to the benefit of such cograntee, and the title would then vest in him alone. Id. 218. Such modification of an Alcalde's grant is not a transfer of title from one co- grantee to another, but an exercise of the granting power. Id. 219. Alcalde cannot divest title. When an Alcalde has made a grant to two r persons jointly, and has delivered possession and com- pleted the proceedings, the title vests in the two jointly, and an endorsement then made by the Alcalde on the grant, without the consent of the grantees, that one of them has re- nounced, and that the grant shall inure to the benefit of the other, does not divest the title of the one said to have renounced. Id. 220. Evidence as to Alcalde grant. Upon an issue as to whether an Alcalde's grant was declined and renounced, evidence that at the alleged time the pueblo was a small place, and a renunciation of the lot could not well have transpired without a knowledge of the witnesses, is inadmissible. Id. 221. Parol testimony to show de san- ation of. The fact that one of the cograntee? in an Alcalde's grant, before the proceedings to vest title were completed, appeared before the Alcade and consented to renounce his in- terest in the grant, and declined the same, and requested it to be made to the other cograntee, may be shown by par61 testimony, provided the Alcalde has made such modification of the grant by an indorsement thereon. Such testi- mony may be rebutted by parol testimony on the other side tending to snow that such were not the facts. Id. 222. Official records. The best evidence of an Alcalde's grant is the official public rec- ord of the acts of the Alcalde by whom the grant was made. In the absence of this, and of all secondary proof to establish the genuine- ness of the grant, a copy of a record of a grant made in a book seen in the office of an Alcade is not admissible in proof, more especially if the grant claimed was made nine months be- fore the record, and it be not shown that the Alcalde in whose charge it was seen continued in office until the date of the record. Garwood v. Hastings, 38 Cal. 216. 223. Confirmation of title. A confirm- ation by the "Van Ness Ordinance, of the title to a lot granted by an Alcalde, -inures alike to the benefit of all the tenants in com- mon of the lot. Broad v. Broad, 40 Cal. 493. 224. Construction of Alcalde grant. An Alcalde granted a lot in the Pueblo of San Jose' to P, describing it as " situated to the south of the house of the citizen Feliz Buelna and in this municipality": held, that the des- cription may be construed to mean south of the lot of Buelna. Romieu. Casanova, 45 Cal. 131. See Evidence, 156 ; Limitations, 57. X. TITLE UNDER VAN NESS ORDIN- ANCE. 225. Decree of confirmation of Mexi- can grant. Where a Mexican grant to land situated within the limits of the City and County of San Francisco was confirmed by the Board of United States Land Commission- ers, and, together with the survey thereof, was in 1863 affirmed by the United States Dis- trict Court, and on appeal said survey was confirmed by the Supreme Court of the United States : lield, that under the provisions of the Act of Congress approved June 14th, i860, as against those claiming under the party who contested said survey in the District Court and on said appeal, and who claimed title there- to under the Van Ness Ordinance, the succes- sors in interest of the grantee of said land ac- quired thereby such title thereto, without a patent from the United States, as to maintain an action of ejectment therefor. Bernal 1 . Lynch, 36 Cal. 135. '< , 226. In such case, the decree confirming the survey was an adjudication that said land mentioned in the decree confirming the claim was properly located and correctly surveyed ; and the contestant of said survey, having made himself a party to the proceeding for its confirmation, neither he nor those claiming 224 LAND AND LAND TITLES. under him can be permitted to collaterally question the decree. Id. 227. Claim of confirmee. Conceding that said contestant acquired to said land, by virtue of the Van Ness Ordinance, all the title which the City of San Francisco, held to it as pueblo land, yet, as, under said Act of Congress of i860, said decree of confirmation was made" the equivalent of a .patent issued by the United States, the confirmee thereby acquired the title of the United States, and his title so ac- quired was unaffected by the Act of Congress of 1864, entitled- " An Act to expedite the settlement of titles to lands in the State of California." , The claim of the confirmee was, by the decree of confirmation, established as a bona fide claim, and was therefore within the protection accorded to bona fide claims by the fifth section of said last named Act. Id. 228. Substantial fence, and actual possession of land. The Court cannot say that a fence built in San Francisco in 1850, and made of posts and boards, two boards and a cap high, was not a substantial fence, or that this in connection with building and occupying a house within it, and exercising control over the land, did not constitute an actual pos- session within the meaning of the Van Ness Ordinance. The testimony was sufficient to require its submission to the jury. Satterlee v. Bliss, 36 Cal. 489. 229. Title under Van Ness Ordinance. It was not the possession mentioned in the Van Ness Ordinance that conferred title, but the legislative confirmation of the ordinance. Valentine v. Mahoney, 37 Cal. 389. 230. The title under the Van Ness Ordi- nance dates not from the time possession of the land was taken, but from the time of the passage of the Act confirming the ordinance. Valentine v. Mahoney, 37 Cal. 389. 231. It cannot be said that one person ac- quired a better title than another under the Van Ness Ordinance. The one having the requisite possession took the title ; the other took nothing. Id. 232. The Van Ness Ordinance vested the title in a person not in possession by himself or tenant on the first day of January, 1855, provided such person had been in possession before that time, and his possession had been interrupted by an intruder, and could be re- covered by legal process. Id. 233. Word " tenant " in Van Ness Ordinance. The Court are inclined to con- sider the word "tenant," as used in the Van Ness Ordinance, as meaning a conventional tenant. Brooks t». Hyde, 37 Cal. 366. 234. Word " tenant " in Van Ness Ordinance. The word "tenant," as used in the Van Ness Ordinance, is not restricted in its meaning to a mere conventional tenant, as was intimated in Brooks v. Hyde, 37 Cal. 366, but applies to any party who holds the actual pos- session in subordination to another party, under or by virtue of an agreement, either express or implied. Irvine v. Adler, 44 Cal. 559. 235. Possession by tenant. The actual possession of land in San Francisco within the boundaries of the Van Ness Ordinance, by a tenant, was the possession of the landlord, so as to entitle him to the benefits of that ordi- nance, and the same result followed if the tenant assigned the lease, and his assignee took possession. McLeren v. Benton, 43 Cal. 468. 236. If, on the first day of January, 1855, a person was in possession of land in San Fran- ciseo, within the limits of the Van Ness Ordi- nance, as the tenant of another, or, as against such person, an intruder who could have been evicted by legal process, the person thus in possession did not acquire title by the Van Ness Ordinance, but the title vested in the landlord, or the person who could have re- covered possession. Brooks v. Hyde, 37 Cal. 366. 237. Actual possession essential. A title under the Van Ness Ordinance does not accrue unless there is an actual possession of - the premises. Judson v. Malloy, 40 Cal. 299. 238. Occasional and casual acts of dominion exercised over land in San Francisco, without cultivating it or surrounding it with a fence, are not sufficient to establish title under the Van Ness Ordinance. Pattee v. Moyle, 44 Cal. 363- 239. Quitclaim deed. If a quitclaim deed of a homestead within the limits of the Van Ness Ordinance, in San Francisco, was made before January 1st, 1855, by the husband alone, and he remained in possession until after said date, the title to the land by virtue of said ordinance vested in the grantor. Brooks v. Hyde, 37 Cal. 366. See Ejectment, 23 ; Probate Law and Prac- tice, 95 ; San Francisco, 7. XI. TOWN LANDS. 240. Effect of Act of Congress. The effect of the Act of Congress of July 1st, 1864, (U. S. Stats. 1863-4, p. 343) in relation to the disposition of coal lands and of town property on the public domain, was to withdraw lands upon which cities and towns had been estab- ished before its passage, or might be thereafter established, from the operation of the general statutes in relation to the disposal of public lands, and to provide a new system for their disposal. Jones v. City of Petaluma, 36 Cal. 230. 241. The Act of Congress entitled " An Act for the disposal of coal lands and of town- property in the public domain," approved July 1st, 1864, and the supplementary Act thereto, approved March 3d, 1865, were de- signed for the benefit and relief of such per- sons as, having settled upon the public land, LAND AND LAND TITLES. 225 might desire to lay out and establish a town or city, including their possessions ; or having already laid out a town or city on unoccupied public lands, and settled upon lots or munic- ipal subdivisions within the boundaries there- of, to enable the occupants of such town or city lots to procure a title thereto from the United States at » minimum price ; and to enable other parties desiring to purchase lots within an established city or town, upon the public lands, to procure a valid title thereto. Jones v. City of Petaluma, 38 Cal. 397. 242. Town of Petaluma. In attempt- ing to avail themselves of the Act of July 1st, 1864, the Trustees of the Town of Petaluma had no power to change the plan of the town in such manner as to convert into a street, al- ley or public square, land which, under the previous existing plan, was a municipal divis- ion, intended for private use, and actually oc- cupied for that purppse. Alemany v. Peta- luma, 38 Cal. 553. 243. City of Benicia. In an action to recover the possession of lands, under the Act of Congress of July 23d, 1866, to quiet the title to the lands within the City of Benicia, where it appears that the plaintiff's grantor had>exe- euted to the persons under whom defendant claimed a prior quit-claim deed for the same property, and for all the subsequently acquired title of the party of the first part under her deed, the plaintiff cannot recover, notwith- standing the fact that such grantor was in the bona fide occupancy of the premises at the time of the passage of the Act. Carroll v. City of Benicia, 40 Cal. 386. 244. Town of Santa Clara. A person claiming title to land in the town of Santa Clara, which, by virtue of the authority con- ferred by the Act of Congress of March 1st, 1867, " to quiet title to lands in the towns of Santa Clara and Petaluma," had been con- veyed by the Trustees of the town to another person who was in possession of the premises at the time of the passage of the Act, must show that the grantee entered or held the pos- session by his license or in subordination to his title. Black v. Galindo, 40 Cal. 171. 245. City of San Francisco. The Act of Congress of July 1st, 1870, relinquishing to the City of San Francisco, in trust for the present or former occupants, the "Point San Jos6 Military Reservation," in the City of San Francisco, did not make those who, many years before the passage of the Act, obtained deeds for large tracts from grantors out of pos- session, and who performed no act except to erect a house within the limits of the tract, its beneficiaries. LeBoy v. Cunningham, 44 Cal. 599- 246. Actual possession. The entry up- on one hundred and sixty acres of said reserva- tion, tinder a deed describing it, and the erection of a house on it, without enclosing or cultivating any part of it, did not constitute CAL. DIG. SUP. 15. an actual possession of the whole one hundred and sixty acres, within the purview of said Act of July 1st, 1870. Id. 247. If a tenant, who has leased from one in possession of a portion of the "Point San Jos<§ Military Reservation," sells out to a stranger and puts him in possession, _ the stranger is not in bona fide possession, within the meaning of that phrasers used in said Act of July 1st, 1870, and is not entitled to the benefit of said act as a cestui que trust. Id. 248. The "actual bona fide possession" entitling a party to a conveyance of the legal title, referred to in the Act of July 1st, 1870, releasing to San Francisco, to hold in trust for the possessors, the "Point San Jose' Military Reservation," is an actual possession, which was bona fide as between adverse claimants, and not as against the Government. It is im- material whether the pessession as against the Government was good or bad. Id. 249. A person who is not entitled to a con- veyance from the city, cannot raise the ques- tion whether the City of San Francisco made the conveyance of a portion of the "Point San Jose" Military Reservation" to the person who was entitled to it under the Act of Congress of July 1st, 1870. Id. XII. POSSESSION OF LAND. 250. Actual possession. The whole theory of a possessio pedis rests upon the assumption that the acts of dominion which establish it are such open, notorious acts of ownership, as usually accompany the possession of real property, and naturally spring from a claim of exclusive dominion. Brumagim v. Bradshaw, 39 Cal. 24. 251. Actual possession of land can only he taken by such open, unequivocal and notorious acts of dominion, as plainly indicate to the public that he who performs them has appro- priated the land, and claims the exclusive dominion over it. Id. 252. The acts of ownership and dominion over land, which may be sufficient to consti- tute an actual possession, vary according to the condition, size and locality of the tract. Id. 253. Artificial inclosure. A substantial, artificial inclosure, erected around the entire tract, is such an act of dominion, and is held to be, of itself, sufficient to constitute actual possession. Id. 354. Inclosure partly natural. It is error for the. Court, in its instructions to the jury, to assume, as a conclusion of law, that a substantial inclosure, partly natural and partly artificial, necessarily established the actual possession of the tract of land. Id. 255. An inclosure, partly by natural and partly by artificial barriers, will, under cer- 226 LAND AND LAND TITLES.' tain circumstances, likewise establish an actual possession ; but it does not follow that every such inolosure establishes an actual possession, as a conclusion of law. Id. 256. A beach, upon tide water, may con- stitute a portion of the inclosure of a tract of land. Id. 257 . When an inclosure by such barriers is relied upon as establishing the actual pos- session, it is the province of the jury, upon all the proofs, and considering the quantity, lo- cality and. character of the land, to decide whether or not the artificial barriers were suf- ficient to notify the public that the land was appropriated, and to impart to the claim of appropriation the characteristic notoriety and indicia of ownership. Id. 258. Possession of specific land within large inclosure. A general inclosure of a large tract of land is not sufficient to consti- tute an actual, exclusive possession of a specific parcel within it, when it appears that much of the land within the inclosure is not claimed, and much of it is in the actual occupancy of parties claiming and holding adversely. Walsh u.Hill, 41 Cal. 571. 259. Actual possession without in- closure. Actual possession of land may be had without fences or inclosure. McCreery v. Everding, 44 Cal. 246. 260. A fence alone as showing actual possession. Residence upon premises is not indispensable to their actual possession, nor is cultivation necessary, nor improvement, as contradistinguished from the erection of fences or substantial barriers, marking the line of the premises over which control is asserted. Gray v. Collins, 42 Cal. 153. 261. Cultivation of city lot. The erec- tion of a substantial fence and planting of ornamental trees around a city lot amount to actual possession and cultivation of it, as appro- priate to such lot as the seasonable plowing and •sowing of agricultural lands would be, and equally significant as acts manifesting control over the premises. Id. 262. Possession of tenant that of land- lord. If A enters under a lease from and as a tenant of B, and C then recovers a judgment of eviction against A, after which A attorns to and pays rent to C,from this last period the possession of A becomes that of C. Mecham v. McKay, 37 Cal. 154. 263. License. One who enters into the possession of land, under a license from an- other, holds the same in subordination to the title of the other, whether he pays rent or not. Brumagim v. Bradshaw, 39 Cal. 24. 264. Title by possession. A party in the actual possession of public land, to which he has no title, is to be deemed the owner as against mere intruders without title or color of title ; and the fact that such party has a deed for the land from one who did not own it, does not place him in a worse position, nor does it enable a trespasser to claim that he must rely on his paper title, and not on his prior possession. Page v. Fowler, 37 Cal. 100. 265. Entry within inclosure. One who enters upon land within the inclosure of anoth- er, and of which the other has the prior pos- session by the inclosure, and by having sub- jected it to his control, does not divest the prior possession of the other to any greater ex- tent than he actually occupies the land ; and if he occupies only one part, and enters upon another part and cuts hay thereon, this cut- ting of hay does not divest the possession of the other where the hay grew. Id. 266. What insufficient. The mere fact of cutting grass upon land in the previous pos- session of another, is not evidence of actual possession of the land being in the one cutting it, in an action by the former occupant for the grass or hay so cut. Id. 267. Riparian owner. — Accretions. A party as riparian owner cannot be protected as to accretions to his land which are not in existence, and which may or may not exist in the future. Taylor v. TJnderhill, 40 Cal. 471. See Conveyance, 8 ; Ejectment, 29-31 ; Evi- dence, 72 ; Limitations, 13 ; Mines and Min- i^gfj 5,6; Specific Performance, 1 1 ; Writ of Restitution, 4. XIII. CONSTRUCTIVE POSSESSION. 268. Possession under deed. One in possession of land under a deed from an admin- istrator, which purports to convey the title of the intestate, and the possession is also with the consent of the administrator,"' can retain possession as against strangers not claiming under the administrator or the intestate, even if the deed is void. Carpentier v. Small, 35 Cal. 346. 269. When one enters upon a portion of a tract of land, claiming the whole under a deed, no other person being in the adverse pos- session of any part of it, his possession extends to the bounds of his deed. Russell v. Harris, 38 Cal. 426. 270. A party who enters into the actual possession of a portion of a tract of land, claiming the whole under a deed in which the entire tract is described by metes and bounds, is not limited in his possession to his actual enclosure or possession, but acquires construct- ive possession to the entire tract, if it is not in the adverse possession of any other person at the time of his entry ; and such person, in an action to recover possession of the land, will prevail against one who enters subsequently' upon the unenclosed part as a mere intruder, or showing color of title only. Walsh v. Hill, 38 Cal. 482. 271. The fact that the grantor in the deed had neither title nor actual possession, puts LAND AND LAND TITLES. 227 the case -within, instead of -without, the rnle. It is the want of title and actual possession in the grantor that renders the rule necessary to the grantee. Id. 272. If a person, in lack of good faith, in- tentionally takes a deed from a stranger hav- ing no title, and asserting no claim, for the sham purpose of adding a constructive posses- sion of a larger tract to an actual possession of a smaller tract, he could obtain no advan- tage under this rule. In no just sense could he be considered as entering under claim of title founded, upon his deed. Id. 2,7 Z. Possession of a whole tract by entry on a pari? under a deed calling for the whole, can only be obtained when it appears, first, that the deed is for a specific parcel of land, with distinct boundaries, and purports, on its face, to convey an estate in the whole tract, which entitles the grantee to the possession of the whole ; second, that the grantee entered under the deed, believing, in good faith, that by virtue of the deed he had acquired an estate in the land, which, in law, entitled him to the possession of the whole tract ; third, that there is no adverse possession. Wolfskill v. Mala- jowich, 39 Cal. 276 ; Hicks v. Coleman, 25 Oal. 122 ; Ayres v. Bensley, 32 Cal. 620, com- mented on and qualified. Id. 274. To enable a party to maintain a con- structive possesion of a large tract of land by the actual possession of a small portion of it, un- der a deed, it^must appear that he entered un- der his deed and founded his claim upon it, in good faith. Cannon v. Union Lumber Co., 38 Cal. 673. 275. If one who is in the actual possession of a portion of a tract of land, claiming the whole, makes a conveyance of the whole, and the grantee enters into actual possession of such part, claiming the whole, such entry, under the deed, gives the grantee constructive possession of the whole tract. Donahue v. Gal- lavan, 43 Cal. 574. 276. Possession of lots and blocks in a City. The rule that one who enters into the actual possession of a part of a tract of land, claiming the whole under a deed describing the whole, is in constructive possession of the whole, applies to land in San Francisco within the district covered by the Van Ness Ordinance, and to city lots. Id. 277. A person who takes a deed from a stranger to the land, for the purpose of adding a constructive possession of a larger tract to the actual possession of a smaller tract, obtains none of the benefits of a constructive possession thereby. Cannon v. Union Lumber Co., 38 Cal. 673- 278. If the land conveyed is known, to the parties to the conveyance to be a part of the public domain, to which the grantor has no title or color of title, an entry under the deed gives no constructive possession to any portion 279. Possession acquired under a deed by entry of a tenant. If possession is ac- quired of a part of a tract of land by the entry of a tenant within and upon certain described limits, it gives to the landlord possession only to the extent of the described limits ; but if the lease contains no definite boundaries, the pos- session of the tenant gives to the landlord a possession coextensive with the boundaries of the whole tract. Walsh v. Hill, 38 Cal. 482. 280. Evidence of permission by a lessor to his lessee to extend his possession beyond the limits of the leased premises, is inadmissible, in order to show constructive possession of the exterior limits in the lessor. Mason v. Wolf, 40 Cal. 246. 281. In order to show such constructive possession in the lessor, it must appear that the lessee entered by virtue of such license. Id. 282. Has the Legislature competent power to confer upon a settler upon the public lands of the United States constructive possession of any parcel of such lands ? Query ? Wolfskill v. Malajowich, 39 Cal. 276. 283. The question not decided, whether a , person who enters into possession of a piece of land under a deed conveying a larger tract, with constructive notice that his grantor had before conveyed the whole tract to another, is so affected by this constructive notice that he cannot say he entered under his deed, believ- ing in good faith that it transferred to him the right to the possession of the whole tract. Russell v. Harris, 44 Cal. 489. 284. Possession of public land. When a person erects a house upon a tract of public land'and moves into it, but does not cultivate or inclose any part of the tract, his possession does not extend to the entire tract. Le Hoy v. Cunningham, 44 Cal. 599. See Ante, 61, 62, 66. XIV. POSSESSION AS NOTICE OE TITLE. 285. Constructive notice of possessor's * title. The actual possession of land, with the exercise of the usual acts of ownership and dominion over it, operates in law as construc- tive notice to all the world of the claim of title under which the possessor holds. Talbert v. Singleton, 42 Cal. 395. 286. Equities of occupant without legal title Neither the fact that the party in possession first entered as an intruder with- out title, and subsequently obtained from Na- glee all his title to the premises, nor the fact that Naglee reconveyed one of the lots to Ne- leigh soon after the making of the second writing, would impair the equities of the party in possession. Gerdes v. Moody, 41 Cal. 335. See Evidence, 148 ; Quieting Title, 12. 228 LAND AND LAND TITLES. XV. TITLE BY ADVERSE POSSESSION, i. Generally. 287. "What constitutes. The cases of McCracken v. City of San Eraneisoo, 16 Cal. 591, and Kimball v. Lohmas, 31 Cal. 154, as to what constitutes adverse possession, ap- proved. Garrison v. MeGlockley, 38 Cal. 78. 288. Prior possession. The personwho first takes possession of land makes it his by occupancy as against all the world except the true owner, and the land remains his as against all persons entering afterwards without his consent, and without title, unless he abandons it, or it is taken from him by some method known to the law. Moon v. Rollins, 36 Cal. 333- 289. When title by prior possession is once shown, there is no presumption of its Iobs ; but an abandonment must be made to appear affirmatively by the party relying on it to defeat a recovery. Id. 290. Title acquired by adverse posses- sion. A person in the adverse possession of land for five years, claiming to own the same exclusive of any other right, thereby acquires a fee simple title to the same ; and if he is then ousted, even by the party having the paper title, he can recover possession at any time before his right of action is barred by a five years' adverse possession. Cannon v. Stockmon, 36 Cal. 535. 291. When the fee is once acquired by a five years' possession, it continues till con- veyed by the possessor, or till lost by another adverse possession of five years. Id. 292. Title, how acquired. A party, in order to acquire title to land by the Statute of Limitations, must not only have possession adverse to the true owner, but also must claim the title as against the owner during the en- tire statutory period. Lovell v. Erost, 44 Cal. 471- 293. To enable a defendant to avail himself of the Statute of Limitations, as a defense, it must appear that he was in the adverse posses- sion of the demanded premises for the period required by the statute to bar the plaintiff's right of action. Raimond v. Eldridge, 43 Cal. 506. 294 . An adverse possession does not ripen into a title unless continued for five years. Hayes v. Martin, 45 Cal. 559. 295. Title under Statute of limitations from estoppel under judgment in tres- pass. In ejectment by Williams againt Sut- ton, where it appeared that Williams was a tenant in common of the property demanded, with Woods, Hastings, and Haskell ; and that Sutton had recovered judgment in trespass quare clausum free/it in reference thereto against Woods, Hastings, and Haskell, which judg- ment he set up to prevent Williams from re- covering more than one undivided fourth: held, that the rule invoked by Sutton (that if one of several tenants in common be under such disability as would preserve his rights under the Statute of Limitations, this would not save the rights of his cotenants against whom the statute had fully run) was not applicable, for the reason that the title of a disseizor un- der the Statute of Limitations was a new title, corresponding with that on which the disseizin operated, while Sutton acquired no new title by disseizin or otherwise, but could simply rely upon his judgment as concluding the defen- dants therein from asserting title against him. Williams v. Sutton, 43 Cal. 65. 296. A defendant in ejectment, who re- lies on the Statute of Limitations, need not prove adverse possession for the five years next preceding the commencement of the action. His defense is complete if he shows a five years' continued adverse possession, although not the five years next preceding the commencement of the suit. Cannon v. Stockmon, 36 Cal. 535. 297. Adverse possession of land occu- pied by mistake. Where a grantee, in tak- ing possession of a lot in San Francisco under his deed, by mistake and in good faith entered into possession of a strip of land adjoining his lot, but not included within its boundaries, and remained in continuous, open, notorious, and adverse possession, claiming to hold ad- versely to all persons whomsoever : held, that such possession comes fully within the defini- tion of an adverse possession which- will set the Statute of Limitations in motion. Grimm v. Curley, 43 Cal. 251. 298. Of separate property of married woman. Adverse possession for five years of the separate property of a married woman creates a bar under the Limitation Act of Ap- ril 18th, 1863, (Stats. 1863, p. 325) and is a good defense to an action of ejectment by her or her grantee. Kapp v. Griffith, 42 Cal. 408. See Adverse Possession. 2. Possession must be actual. 299. To work out the Statute of Limita- tions requires an actual possession, not an as- sertion of possession by words or an action ; and if the continuity is broken, either by fraud or a'wrongful entry, the protection given by the Statute of Limitations is lost. San Francisco v. Fulde, 37 Cal. 349. 300. What adverse possession sets Statute of Limitations in motion. To con- , stitute an adverse possession, so as to set the Statute of Limitations in motion, the occupa- tion of the one holding adversely must be open and notorious, under a claim of right, and the person against whom it is held must have knowledge, or the means of knowledge, of such occupation and claim of right. Thomp- son v. Pioche, 44 Cal. 508. 301. A clandestine entry or possession will LAND AND LAND TITLES. 229 not set the Statute of Limitations in motion. Id. 302. What does not constitute adverse possession. If the owner of the land finds one in possession of it who is the tenant of an- other, and due inquiry does not disclose to the owner the fact that such possessor is the ten- ant of another, and then, without notice of such tenancy, the owner makes a lease to such tenant, he does not, hy such lease, acqui- esce in the adverse possession of the undis- closed landlord, so as to keep the Statute of Limitations in motion in favor of such land- lord. Id. 303. What required to constitute ad- verse possession. There must be both knowledge of, or the means of acquiring "knowledge of after due inquiry, and acquies- cence in the adverse possession of another, in order to subject the owner of the land to the bar of the Statute of Limitations. Id. 3. Possession must be continuous. 304. Succession in interest. An ad- verse possession of land for five years continu- ous in the party who first becomes the adverse possessor, or in him and his grantees and suc- cessors in interest, is requisite- to acquire title by the Statute of Limitations. San Francisco v. Fulde, 37 Cal. 349. 305. A party, in order to make up five years adverse possession of land, cannot add to his own possession that of the one who pre- ceded him, when he did not enter into posses- sion under or through the one who preceded him. Id. 306. If the person claiming the benefit of the Statute of Limitations has not been in pos- session five years, but claims to add the pos- session of his predecessor to his own, his pre- decessor will be deemed to have held in subor- dination to the true title, unless he shows a privity between himself and his predecessor, and if he does not show this privity, he can- not dispute this presumption and show that his predecessor did hold adversely. Id. 307. Adverse possession of one's grantors. In an ejectment suit by the State, for land in San Francisco outside of the red line, where a defendant claimed title under the Statute of Limitations, and relied upon the adverse possession of his grantors ; but it ap- peared that his deeds either called for land dif- ferent from that sued for, or were void for uncertainty of description : held, that he did not connect himself, by means of Buch deeds, with the possession of his grantors. People v. Klumpke, 41 Cal. 263. 308. Continuity, how broken. Ad- verse possession, in order to bar a recovery- by the true owner, must have continued, with- out interruption, during the statutory period. If interrupted, even by force or fraud, and the possession be recovered by a peaceable or forci- ble entry, or by process of law, the continuity is broken, and the statute begins to run only from the time of the re-entry. San Jose" v. Trimble, 41 Cal. 536. - 4. Evidence of. 309. Acts and declarations of one in possession. The party claiming title by virtue of five years' adverse possession, may give in evidence his acts and declarations made or done at any time while in possession, for the purpose of showing the character in which he claimed. Cannon v. Stockmon, 36 Cal. 535. 5. Miscellaneous. 310. Adverse claims. — Purchase of. The purchase of an outstanding adverse claim to land by one in possession claiming ad- versely to all others, for the purpose of quiet- ing his title, does not estop him from setting up the Statute of Limitations against a third party also claiming under an adverse title. Cannon v. Stockmon, 36 Cal. 535. 311. If a party in possession of land offers to purchase it from the true owner, and this offer is made, not merely to buy an outstand- ing or adverse claim, in order to quiet his pos- session or protect himself from litigation, the offer is a recognition of the owner's title, and will stop the running of the statute. Loyell v. Frost, 44 Cal. 471. 312. Possession under vendor not ad- verse to vendor's title. Where the pur- chaser of a tract of land, through mistake or fraud, enters upon another tract of the same vendor, the entry is under a claim of title as- sumed to have been derived from the vendor, and is in subordination to the vendor's title. Farish v. Coon, 40 Cal. 33. 313. The essence of an adverse posses- sion is, that the holder of it claims the right to his possession, not under, but in opposition to, the title to which his possession is alleged to be adverse. Id. 314. As to coterminous proprietors. When two coterminous proprietors of land, who are ignorant of the true boundary line between their respective tracts, fix a line with an agreement that each shall possess to that line till the true boundary is ascertained, and the true boundary, when ascertained, leaves one in possession of a portion of the other's land, this possession is not adverse, so as to set the Statute of Limitations in motion, until there is a distinct repudiation of the agree- ment under which it was taken. Irvine v. Adler, 44 Cal. 559. 315. In such case the grantees of the one who is in possession of a portion of the other's land, who buy without notice 'of agreement made by their grantor, cannot claim the bene- fit of the Statute of Limitations until the agree- 230 LANDLOKD A'ND TENANT. ment is repudiated, but occupy the same posi- tion their grantor would have done if he had not sold. Id. 316. Notice by adverse possession. The continued adverse possession of lands by the vendor after his formal conveyance of the legal title, is a fact in conflict with the legal effect of his deed, and is presumptive evidence that he still retains an interest in the premises, and is sufficient to put a purchaser upon in- quiry, and subjects him to the rule applicable in case of the party in possession being a stranger to the title as of record. Pell t;. McElroy, 36 Cal. 268. 317 . The fact of notorious and exclusive possession of lands by a stranger to a vendor's title, as of record, at the time of a purchase from and conveyance by such vendor out of possession, presumptively imparts notice to such purchaser of the equitable rights in the premises of the party in possession ; and this presumption can only be rebutted on the part of such purchaser, or those claiming under him, by explicit proof of diligent and unavail- ing effort by the vendee to discover or obtain actual notice of any legal or equitable rights in the premises in behalf of the party in pos- session. Id. LANDLORD AND TENANT. I. Relation between. 1. In general. 2. Notice to quit. 3. Termination of tenancy. 4. Creation of new tenancy. n. Rights and obligations. 1. In respect to each other. 2. In respect to third persons. TTT. Remedy op landlord. I. RELATION BETWEEN. 1. In general. 1. Tenancy for years. A tenancy for the specified period of one month is a tenancy for years, and. not a tenancy from year to year, or from month to month. Stoppelkamp v. Man- geot, 42 Cal. 317. 2. Tenancy for years, and from year to year. If a tenant for years holds over with the consent of his landlord, express or implied, paying yearly rent, without any further ar- rangement as to time, the tenancy may thus be converted into a tenancy from year to year. Id. 3. Tenancy from month to month. A tenant for the specified period of one month, who holds over with the consent of his land- lord, thereby becomes a tenant from month to month. Id. 4. Tenant at sufferance. At the expiration of the term for which the demised premises are leased, the tenant, by holding over, be- comes a tenant at sufferance. Hauxhurst v. Lobree, 38 Cal. 563. 5. Grantor who remains in possession. Where a person in possession of land conveys to another, and thereafter remains in posses- sion, he does so as the tenant at will of the grantee. The conventional relation of land- lord and tenant does not, however, exist be- tween the grantor and grantee. The grantor holds in subserviency to the grantee, who may recover possession at any time. Brooks v. Hyde, 37 Cal. 366. 6. Assignment of lease by lessee. An assignment made on a lease of land, of all"tae tenant's right, title, and interest in the prem- ises held under the lease, is not a surrender of the lease to the person to whom the assignment is made, nor does it amount to an attornment to him, unless he has purchased the title from the lessor, but such assignment makes the as- signee the tenant of the lessor. McLeran v. Benton, 43 Cal. 468. 7. Construction of lease. When J leased of O a tract of farming land for one year after June 14th, 1870, and O agreed in the lease that he would refrain from using any ground had under cultivation by J until November 1st, 1 87 1 ; held, that the term of the lease expired June 14th, 1871, and that if Jdesired to claim anything under the agreement that would not use the cultivated ground until November 1st, 187 1, he should have averred that the land was under cultivation at the date of the de- mand for the possession. O'Brien v. Jones, 44 Cal. 193. 8. Lease with reservation. A lease of land containing a provision that the lessor may, during the term of the lease, occupy any house or houses, or occupy any part or the whole of the demised premises, is valid. Bowers v. Cherokee Bob, 45 Cal. 495. 9. Changing terms of lease by landlord. The mode of changing the terms of a lease up- on notice by the landlord, depends wholly up- on the statute ; and the cases in which such changes can be made are limited to those in which it is expressly authorized. Stoppelkamp v. Mangeot, 42 Cal. 317. 10. When possession of tenant not notice of tenancy. If the tenant is in pos- session of the land, and the party dealing with it makes due inquiry, and such inquiry fails to disclose the fact of the tenancy, the party making the inquiry is not chargeable with the notice of the tenancy. Thompson v. Pioche, 44 Cal. 508. 11. Possession of tenant notice of title of his landlord. Although the possession of the tenant is not, of itself, notice of the title of the landlord, yet such possession is sufficient to put a person dealing with the property upon I inquiry, and is proof of notice, unless it is LANDLORD AND TENANT. 231 shown that the inquiry, after having been prosecuted with due diligence, did not disclose the title of the landlord. Thompson v. Pioche, 44 Cal. 508. 12. Possession of tenant that of land- lord. If A enters under a lease from and as a tenant of B, and C then recovers a judgment of eviction against A, after which A attorns to and pays rent to 0, from this last period the possession of A becomes that of 0. Meehamu. McKay, 37 Cal. 154. 13. Covenant on part of lessee in a lease. When a lease is made of the entire premises constituting a hotel, and the land surrounding the same, and a covenant on the part of the lessee is inserted, that the lessor may retain and occupy _a room in the hotel, and board there, this covenant is not a reservation of the'room from the operation of the lease, and for a forcible entry into this room the les- see alone can complain. Polack v. Shafer, 46 Cal. 270. 2. Notice to quit. — Demand for rent. 14. Tenant at sufferance. Independent of the statute, the tenant at sufferance is not entitled to notice to quit. Hauxhurst v. Lo- bree, 38 Cal. 563. 15. The Statute of 1861, relating to land- lords and tenants, has not changed the rule, but the remedies therein provided are cumula- tive. Id. 16. Forfeiture for non-payment of rent. To work a forfeiture of a lease for non-pay- ment of rent, the demand must be made for the precise sum due, on the premises j or wherever the rent is payable. Gage v. Bates, 40 Cal. 384. 17 . Demand for rent. A demand for rent should be of the amount due. If the amount due is not demanded, a refusal to pay does not work a forfeiture of the lease. O'Connor v. Kelly, 41 Cal. 452. 3. Termination of tenancy. 18. Lease of a building. If there be no covenants to repair in the lease of a building, and not of the land on which it rests, the de- struction of the building terminates the lease and the relation of landlord and tenant, and no rent can be recovered therefor, subsequent to the destruction of the building. Ainsworth v. Ritt, 38 Cal. 89. 19. Repudiated by act of landlord. S sued M, alleging that he had leased certain lots to M for one month, for twenty-five dol- lars ; that fifteen days before the close of the month he gave notice, in writing, under the Forcible Entry and Detainer Act of '1863, that the rent for the next month would be five hundred dollars, payable in advance ; that M had held over, and had failed to pay the rent : held, that by giving the notice of a change of terms before a tenancy from month to month commenced, and following it up by a demand of rent, and immediately thereafter of possession, he repudiated the holding over on the original terms, and the claims of the parties were adverse, and actually hostile, from the moment of the expiration of the specific terms alleged, and there never was a tenancy from month to month. Stoppelkamp v. Mangeot, 42 Cal. 317. 20. Estates by lease. — Time specified, and time indefinite. A lease for a specified period of time, as for one month, creates an es- tate substantially different from that created by a lease for an indefinite period, with rent payable monthly, or by a lease from month to month. Where the time is specified, the lease terminates by the mere lapse of time. No notice is necessary to entitle the landlord to re-enter, or to enable him to recover posses- sion. But where the lease is from month to month, the lease does not terminate by the mere lapse of time — neither party can termin- ate the relation without notice to the other in advance. Stoppelkamp v. Mangeot, 42 Cal. 317- 21. Tenant cannot destroy relation. The tenant cannot, without the consent of the land- lord, or without the judgment of some Courtof competent jurisdiction authorizing it, destroy the relation of tenancy between himself and his landlord by attorning to another person, even to the owner of the land. Thompson v. Pioche, 44 Cal. 508. See Forcible Entry and Detainer, 35-40, -52. 4. Creation of new tenancy. 22. Payment of monthly rent on expi- ration of lease for years. If, on the expira- tion of a lease for a year or for years, with rent payable monthly, the tenant retains possession of the premises and pays the same rent each month, this does not in law create a new term for a year, without any agreement to that effect, but only creates a tenancy from month ' to month. Skaggs v. Elkins, 45 Cal. 154. 23. Presumption arising from payment of rent after term expires. The payment of monthly rent, after the expiration of a lease for years with rent payable each month, is a mere fact in evidence from which an agreement for a further term may be presumed, but if the evidence tends to show that the tenant refused to accept a new term of a year, that fact tends to overthrow this presumption. Id. H. EIGHTS AND OBLIGATIONS. 1. Inrespect to each other. 24. Covenant of tenant to repair. A general covenant of the tenant to repair the demised premises , is binding upon the tenant 232 LANDLORD AND TENANT.— LEASE. under all circumstances, even if the injury proceeds from the act of God, from the ele- ments, or /from the act of a stranger. Polack v. Pioche, 35 Cal. 416. 25. Relief from liability. If the tenant desires to relieve himself from liability for in- juries resulting from any of said causes, he must except them from the operation of his covenant. Id. 26. What damages tenant bound to re- pair. If the embankment of a natural reser- voir, which is filled with water by unusual rains, is broken by a stranger, so that the de- mised premises are injured by the water, the in- 'jury is not the act of God or of the elements, and the tenant is bound to repair, even if "damages by the elements or acts of Provid- ence ' ' are excepted from his covenant. Polack v. Pioche, 35 Cal. 416. 27. Covenant to build. A covenant by the lessor of land to build on the leased prem- ises, does not, by implication, impose on him an obligation to rebuild in case of the destruc- tion of the building, by fire, during the tenan- cy. Cowell v. Lumley, 39 Cal. 151. ■28. Rent. The failure of the lessor to rebuild after the accidental destruction of the building by fire, does not relieve the lessee from his express agreement to pay rent. Id. See Act of God. 2. In respect to third persons. 29. Attornment of tenant to a stranger. The attornment of a tenant to a person other than the landlord, is void as to the landlord, unless such attornment is with the consent of the landlord, or in consequence of a judgment or decree of some Court of competent juris- diction. Thompson v. Pioche, 44 Cal. 508. 30. Notice of assignment of lease. If the landlord sells and conveys the leased premises, and assigns the lease, the grantee must inform the tenant of the sale before de- manding rent, and if the tenant refuse to pay rent to the grantee, when he does not know of the sale, the refusal is not a forfeiture of the lease. O'Connor v. Kelly, 41 Cal. 432. 31. Ejectment against tenant. The grantee cannot maintain ejectment against the tenant of the landlord, because the tenant has refused to pay him rent, unless the tenant had been informed of the sale, before rent was de- manded. Id. 32. When landlord bound by judg- ment against tenant. In an action of eject- ment against a tenant, if the landlord assumes the defense and puts his title in issue, the judgment rendered therein binds him as evi- dence by way of estoppel, the same as though be was made a party on the. record. Russell v. Mallon, 38 Cal. 259. 33. A tenant cannot justify his attornment to a third party by merely showing that such party has recovered a judgment against him for the possession of the leased premises. He must also show that his landlord was notified of the pendency of the action brought against him, and had an opportunity to defend ; other- wise the landlord is neither bound nor estopped by the judgment. Douglas v. Eulda, 45 Cal. 592- in. REMEDY OP LANDLORD. 34. Against tenant at sufferance. When a landlord is entitled to bring an action against a tenant at sufferance under the Forc- ible Entry Act, he may, at his option, after ' due notice to quit, etc., proceed under the pro- visions of that Act, or maintain an action of ejectment. McCarthy v. Yale, 39 Cal. 585. 35. Requisites to maintain action against tenant for unlawful holding over. Steinback v. Krone, 36 Cal. 303. See Forcible Entry and Detainer. 36. Action on lease. In an action upon a lease, where the question of title is not in- volved and cannot be raised, the consequence of entering into the contract can only be avoided by showing some fraud or mistake which would have been sufficient to set aside the lease itself. Mason v. Wolff, 40 Cal. 246. See Ejectment, 1, 2, 112, 141, 142, 152; Estoppel, 50-53 ; Evidence, 147 ; Judicial Sale, 14-16 ; Land and Land Titles, 247, 262, 263; Limitations, 59-61 ; Pleading, 81, 194; Quieting Title, 11. LARCENY. See Criminal Law and Practice, 25-27, 32, 76, 110-117, 184-186. LAW OF A CASE. See Appeal, 375-387- LEASE. See Equity, 40, 51 ; Landlord and Tenant, 6-13, 18-20. LEGAL TENDER— LIBEL AND SLANDER. 233 LEGAL TENDER. 1. Act constitutional. The question of the constitutionality of the Legal Tender Act, of February 25th, 1862, must be considered as put to rest by the previous adjudications of this Court, unless they shall be overruled by the Supreme Court of the United States. Bel- loo v. Davis, 38 Cal. 243. 2. A debt secured by note and mortgage made and executed before the passage of the Legal Tender Act, may be discharged in legal tender notes, if they contain no stipulation re- quiring payment to be made in coin. Id. 3. Treasury notes a legal tender for county bonds. Bonds issued by a county, either after or before the passage of the Le- gal Tender Act of Congress, made payable in money generally, and issued under a law ■which does not require payment to be made in any specified kind of money, may be paid in legal tender notes. People v. Cook, 44 Cal. 638. 4. The bonds issued at the date of or sub- sequent to the passage of the first Legal Ten- der Act, and not expressly made payable in coin, may be satisfied with legal tender notes, unless the law .providing for their issue re- quires payment to be made in gold coin only. Id. See Debt, 6 ; Probate Law and Practice, 62. LEGISLATURE. 1. Legislature of 1850. The Legislature of 1850 was vested with authority to pass laws. Anderson v. Fisk, 36 Cal. 625. 2. Long acquiesence in laws. After the people have for years acquiesced in the validi- ty of laws, and rights of property of great magnitude have grown up under them, noth- ing but the most imperative rules of law will induce Courts to hold that the Legislature which passed them had no power to legislate. Id. 3. Fraud in passing a law. An Act of the Legislature cannot be attacked on the ground of fraud. O. & V. P. R. Co. v. Plumas County, 37 Cal. 354. 4. Passage of a bill. If an Act is prop- erly enrolled and authenticated, and is depos- ited with the Secretary of State, it is conclu- sive evidence of the legislative will at the time of its passage, and Courts will not look into the journals of the Legislature to see whether or how the bill passed. People v. Burt, 43 Cal. 560. . See Constitutional Law, 34-44. LETTERS. See Bailment ; Contract, 2. LIBEL AND SLANDER. I. Libel. II. Slandbh. I. LIBEL. 1. Article libelous on its face. When an article in a newspaper imputes to a person grave offenses and dishonest practices, which, if established would bring him into general contempt and disgrace, it is actionable on its, face. "Wilson v. Fitch, 41 Cal. 363. 2. Words not libelous of themselves.' The words " Clarke is a carpenter by trade, is interested in the Moore title, and has figured quite prominently in some of the squatter riots which have occurred in the Western Addition, ' ' are not libelous of themselves, as usually un- derstood and received in this State. Clarke v. Fitch, 41 Cal. 472. 3. Libel couched in ambiguous lang- uage. In an action for a libel, it is the prov- ince of the Court to determine whether the language of the alleged libel will bear a double meaning, one of which is libelous ; and when the Court has determined that it will bear such double meaning, it is the province of the jury to determine in which sense it was used. Van Vactor v. Walkup, 46 Cal. 124. 4. Construing libel couched in am- biguous language. In determining whether the language of the alleged libel will bear a double meaning, one of which is libelous, the Court must not separate it into parts, and con- strue each part separately, but must construe each part of the alleged libel in connection with all the rest. Id. 5. Popular sense in which words are used. Whether a publication is libelous per se is to be determined wholly by the sense in which the same is usually understood and re- ceived in this State ; and when words have a general and notorious signification in this State, Courts will take judicial notice of it. Clarke v. Fitch, 41 Cal. 472. 6. No libel in truly charging carrying on unlawful business. Where an ' alleged libel is only in respect to an unlawful business carried on by plaintiff, the action cannot be maintained. The illegality of the business is an answer to the complaint. Johnson v. Si- montOn, 43 Cal. 243. 7. Penalty for act amounts to prohibi- tion of act. A city ordinance, duly authorized, imposing a penalty for feeding still slops to 234 LIBEL AND SLANDER. cows, and also for vending the milk of cows so fed, amounts to an authoritative prohibition in both respects : and the prohibited act becomes thereby unlawful. Id. 8. Question of wholesomeness of • ' swill milk . " In an action of libel for charg- ing a person with selling " swill milk," and thereby poisoning the people of San Francisco, where it appeared that the alleged libels were only in respect of the unlawful business car- ried on by plaintiff, in violation of a city ordinance against the vending of the milk of cows fed on still slops, and defendant justified under such ordinance, and there was judgment for defendant : held, on the appeal from the judgment, that the scientific correctness of the determination by the Supervisors of the un- wholesomenesa of such milk was not open to inquiry in the Supreme Court. Id. 9. Justification. If the libel assert the defamatory matter, not as a fact, but only as the belief of the author, or as a rumor, or general suspicion; the libel cannot be justified by proof that the author believed it to be true, or that there was such a rumor, or general suspicion. Wilson v. Fitch, 41 Cal. 363. 10. In order to justify such publications of the belief of the author, or of others, the de- fendant must prove the truth of the matter published. Id. 11. Rebutting presumption of malice. In such case the publisher, in order to rebut the presumption of express malice, should be allowed the fullest opportunity to show the circumstances under which the publication was made. Id. 12. When colloquium not necessary. A colloquium is not necessary, except when the libel is not actionable on its face, but has a covert libelous meaning. Id. 13. Proof of colloquium. When an al- leged libel is actionable per se, and still a colloquium is inserted in the complaint, it is unnecessary to prove the colloquium. Id. 14. Subsequent publication. In an ac- tion for a libel in which the name of the plaintiff is not mentioned, a subsequent publi- cation by the defendant, in which the plaintiff's name is mentioned, may be introduced in evi- dence to show that the former publication referred to the plaintiff. Kussell v. Kelly, 44 Cal. 641. 15. Proofs not admissible. In an action of libel, the defendant cannot introduce evi- dence to show that prior to and up to the time of the publication by defendant, the plaintiff had been generally reported and suspected to have been guilty of the acts imputed, to him in the libel. Wilson v. Fitch, 41 Cal. 363. 16. In an action for a libel, the defend- ant cannot introduce in evidence libelous arti- cles, published by other persons, before the publication of the alleged libelous article, whether they refer to the same transactions spoken of in the article published by the de- fendant, or to other matters. Id. 17 . Evidence of belief. In an action for damages for publishing a libel, in which it is stated that the owners of a mine believe that they have been swindled by the plaintiff, tes- timony that such owners, at the date of the publication, believed that they had been swin- dled, is not admissible, either in justification or mitigation of damages. Id. 18. Testimony admissible. In an action for a libel in which the name of the plaintiff is not mentioned, the plaintiff may, for the pur- pose of proving that the libel referred to him, introduce witnesses to testify that . they knew the parties, and were familiar with the rela- tions existing.betweenthem immediately prior to, and at the time of the publication, and that on reading the publication they understood the plaintiff to be the person referred to. Russell v. Kelly, 44 Cal. 641. 19. Privileged communication. The trustee of a private corporation is not a public officer in such a sense as to enable the publish- ers of a newspaper to claim an article publish- ed concerning him and criticising his conduct as trustee, as a' privileged communication, and therefore compel such trustee, in an action for libel, to prove express malice. Wilson v. Fitch, 41 Cal. 363. 20. Defamatory publication not priv- ileged. A defamatory publication in a pub- lic journal, concerning a private person, is not privileged, so as to require proof of express malice on the part of the plaintiff, simply be- cause it relates to a subject of public interest, and was published in good faith without mal- ice, and from laudable motives. Id. 21. Verdict for excessive damages. In an action for a libel, if there is no proof of malice or ill-will toward plaintiff, and the publication is made in the usual course of de- fendant's business as public journalists, in the full belief that the article was true, after a careful inquiry from an apparently reliable source, the plaintive is not entitled to punitive damages. Id. 22. If the libel assert the defamatory mat- ter, not as a fact, but only as the belief of the author, or as a rumor, or general suspicion, the libel cannot be justified by proof theft the author believed it to be true, or that there was such a rumor, ©r general suspicion. In order to justify such publication of the belief of the author or of others, the defendant must prove the truth of the matter published. Id. 23. Proof of colloquium. When an alleged libel is actionable per se, and still a colloquium is inserted in the complaint, it is unnecessary to prove the colloquium. Id. 24. In such case the publisher, in order to rebut the presumption of express malice, should be allowed the fullest opportunity to show the circumstances under which the publication was made. Id. LIEN.— LIMITATIONS. 235 25. Testimony not admissible. In an action for damages for publishing a libel, in ■which it is stated that the owners of a mine be- lieve that they have been swindled by the plaintiff, testimony that such owners, at the date of the publication, believed they had been swindled, is not admissible, either in jus- tification or mitigation of damages. Id. 26. In an action of libel, the defendant cannnot introduce evidence to show that prior to and up to the time of the publication by de- fendant, the plaintiff had been generally re- "ported and suspected to have been guilty of the acts imputed to him in the libel. Id. See Evidence, 124 ; Pleading, 25, 61-62. II. SLANDER. 27. Pleading and proof. In actions for slander, it is not necessary to show that the slanderous words were spoken on the precise day alleged in the complaint. Norris v. Elliot, 39 Cal. 72. 28. When the answer denies that the slan- derous words were spoken at the time and place alleged, or at any other time or place, and the Statute of Limitations is not pleaded, it is not error to admit proof of the speaking of the words at any time before the commencement of the action. Id. 29. Proof of malice. Proof of the re- peating of the words, after suit brought, is ad- missible to show malice. Id. See Evidence, 130. LIEN. 1. Transfer in trust. Where a debtor transfers to a creditor personal property to be sold by him, and the proceeds applied to the payment of his debt and the debts of certain other creditors, with their consent, the trans- feree and those he * represents obtain a lien upon the property and its proceeds, superior to any which other creditors could acquire by the subsequent levy of an attachment or other process thereon. Handley v., Pfister & Co., 39 Cal. 283. * 2. Of judgment creditor. If A makes a verbal contract with B to sell him a tract of land, and B goes into possession, B's judg- ment creditors acquire no interest in the land except a lien on his interest to be enforced by sale on execution. Logan v. Hale, 42 Cal. 645. 3. Proof of Hen on real estate. Parol evidence cannot be admitted, if objected to, to show that a written incumbrance exists on real estate. Racouillat v. Requena, 36 Cal. 651. 4. Title under later sale on elder Hen superior to title under earlier sale on ju- nior lien. A title derived under a lien elder in its origin is prima facie superior to a title from a common source, purporting to be de- rived under a lien junior in point of time, though the judicial sale under the latter may have preceded the sale under the former. Lit- tlefield v. Nichols, 42 Cal. 372. 5. Action to enforce. In an action to enforce a lien on property in the adverse pos- session of a third person, the person in posses- sion must be made a party defendant ; other- wise, the judgment as to him is void. Win- gard v. Banning, 39 Cal. 543. 6. Lien for freight. The lien of a com- mon carrier for freight or transportation of property is lost by the voluntary surrender of the possession. Id. 7. If a common carrier sues out, and pro- cures to be levied , a writ of attachment against property on which he has a lien for freight, he thereby abandons and forfeits his lien. Id. 8. Property held adverse to. When a party holds a lien on property which he claims is wrongfully in the possession of a third party, his remedy is by an action to recover the pos- session, or for a wrongful conversion. Id. See Attachment, 4 ; 33-36 ; Common Car- rier, 3 ; Evidence, 153 ; Growing Crops, 6 ; Judgment, 29-34 ; Lis Pendens, 5 ; Mortgage, 30-37; Right of Way, 1-3; Stoppage in Tran- situ, 2 : Streets and Street Assessments, 92-95 ; Taxation, 80-82; Vendor and Vendee, 1. LIFE INSURANCE. See Insurance, 10, 11 LIMITATIONS. I. Construction of statute. II. New promise. III. In particular .actions. I. CONSTRUCTION OE STATUTES. 1. Rule of. It is a universally accepted rule that statutes of limitations are to be strictly construed. General words in the statute must receive a general construction, and if there be no express exception, the Courts can make none. Tynan v. Walker, 35 Cal. 634. 2. Effect of statute. The Statute of Limitations does not have the effect to ex- tinguish a debt nor raise a presumption of its payment. It only bars the remedy, and thus 236 LIMITATIONS. becomes a statute of repose.. McGormick v. Brown, 36 Cal. 180. \ 3. The expiration of the time fixed in the Statute of Limitations, with reference to actions for money due on contracts, does not discharge the debt or extinguish the right, but only takes away the remedy. Sichel v. Car- rillo, 42 Cal. 493. 4. Suspension by agreement. If a party enters into a valid agreement, in writ- ing, with the defendant, not to sue upon a particular demand, which he holds, until the happening of a particular event, the running of the statute is suspended until the event oc- curs. Smith v. Lawrence, 38 Cal. 24. 5. To make such agreement valid, it is not necessary that the debtor should sigh it. Id. 6. No difference between suspension by waiver and by absence. There is no difference in principle between the suspension of the running of the Statute of Limitations resulting from an express waiver, and one caused by voluntary act in absenting oneself from the State. Wood v. Goodfellow, 43 Cal. 185. 7. In case of departure from State. If, when the cause of action here accrues, the person against whom the same exists resides in the State, and he afterwards departs from the State, his successive absences from the State must be aggregated together, and deducted from the whole time which has elapsed since the cause of action accrued, and the balance is the time the Statute of Limitations has run. Rogers v. Hatch, 44 Cal. 280. 8. If the Statute of Limitations has been set in motion by a departure from the State, and is then interrupted by a return, it com- mences running again by a second absence from the State. Id. 9. To what time statute runs. The time to which the Statute of Limitations runs is the filing of the original complaint. The filing of an amended complaint does not ex- tend this time up to the period when it is filed. Lorenzana v. Camarillo, 45 Cal. 125. 10. Exceptions in statute. The clause in the Statute of Limitations which provides that civil actions shall be commenced within certain periods therein prescribed "after the cause of action shall have accrued," does not imply, in addition, the existence of a person legally Competent to enforce it by suit. The statute must run in all cases not therein expressly excepted from its operation. Tyman v. "Walker, 35 Cal. 634. 11. There is no provision made in the statute excepting from its operation a case where the party who would have been entitled to sue dies before the cause of action has ac- crued. Id. 12. In such case, the persons interested in his estate — his creditors, heirs and devisees — have the full time allowed by the statute (six months) to obtain a grant of administration and commence an action. Id. 13. B- being seized of certain lands, shortly before his death, which occurred April 5th, 1854, placed W in possession under him. In October, 1854, W made entry and claim of said lands as his own, and thereafter, under said claim, held the undisturbed possession of the same for more than twelve years. On the 5th day of October, 1866, T was appointed ad- ministrator of the estate of B, and on the 8th day of November following, brought ejectment against W to recover the possession of Baid lands, to which action W pleaded the Statute of Limitations in bar : held, that the plea was well taken and the action was barred. Id. 14. As to claims against estate. The Statute of Limitations does not run, while the administration is pending and unsettled, as to a claim against an estate which has been allowed, nor as to a judgment which has been recovered against an administrator or an execu- tor for a debt of the estate. Estate of Schroe- der, 46 Cal. 305. 15. As against estate of deceased. The limitation on the right to enforce a claim or debt, which is not presented to the admin- istrator within ten months after the first pub- lication of notice to creditors, applies solely to the claim as against the estate, and in no way affects the validity of the debt as against other persons who are liable for the debt, or whose property is liable. Sichel v. Carrillo, 42 Cal. 493- 16. Adverse possession. The object of Section 10 of the Statute of Limitations is to " define accurately under what conditions a pos- session shall be decreed adverse, when the party enters under a claim of title founded upon a written instrument, judgment or de- cree. Egg v. Mayo, 39 Cal. 262. 17. The party who invokes the benefit of that section in aid of his possession, must show that he entered not only under a claim of title, but it must also be exclusive of any other right. Idj 18. Town lots. A" block of land in a town or city, which is represented on the plan or map of the city as surrounded by public streets, and divided in the center by an alley, and laid out in lots appropriately numbered, is within the spirit and letter of the exception of Section 10 of the Statute of Limitations., Id. 19. Tide lands. The tide lands held by the State in virtue of its sovereignty are not within the purview of the third section of the Statute of Limitations. Earish v. Coon, 4° Cal. 33. 20. A party in possession of tide lands be- longing to the State, who afterwards locates school land warrants on such lands, and thenceforth claims and occupies under such locations, holds not adversely, but in subordin- ation to the title of the State, and the Statute : LIMITATIONS. 237 of Limitations will not run against the State. m. 21. The locator of the warrants is in the position of a purchaser in possession, whose possession is not hostile but in consonance with the title of the vendor; and in order to put the Statute of Limitations in motion, it must appear that the locator repudiated the title of the State, and claimed to hold, not under that title, but in hostility to it. Id. 22. As ^to married woman. In this State, prior to 1863, if a married woman was entitled to maintain an action on a promissory note, the Statute of Limitations did not run as against her right of action during her cover- ture. Since 1863, the Statute df Limitations runs against a married woman in all those actions to which her husband is not a neces- sary party plaintiff with her. "Wilson v. "Wil- son, 36 Cal. 447. 23. As to separate property of mar- ried woman. As a married woman, under Section 7 of the Practice Act, may maintain ejectment for her separate property without joining her husband, her coverture does not create a disability so as to save the bar of 'the Statute of Limitations as to such property — the amendment of April 18th, 1863, (Stats. 1863, p. 325) having changed the rule of the statute of 1850 on this subject. Kapp v. Grif- fith, 42 Cal. 411. 24. Adverse possession of separate property of married -woman. Adverse pos- session for five years of the separate property of a married woman creates a bar under the Limitation Act of April 18th, 1863, (Stats. 1863, p. 325) and is a good defense to an action of ejectment by her or her grantee. Id. 25. Effect of tax sale on statute. One who is in the adverse possession of land does not impair his right to rely upon the Statute of Limitations by purchasing the land at a tax sale, unless he makes the purchase for the owner under an agreement to have a lease of the land or a portion thereof, which would amount to a recognition of the owner's' title and stop the running of the statute. Hayes v. Martin, 45 Cal. 559. See Appeal, 130 ; Constitutional Law, 7-14 ; Criminal Law and Practice, 43 ; Equity, 43, 45,49; Estoppel, 7; Land and Land Titles, 211, 295, 298; Probate Law and Practice, 12 ; Trial, 80 ; Trust and Trustee, 9. H. NEW PROMISE. 26. Nature of the contract resulting. Under the provisions of the thirty -first section of the Statute of Limitations, there are two ultimate facts that may be proved in the mode therein prescribed — a continuing contract and a new contract. The statutory acknowledg- ment or promise, if made while the original contract is a subsisting liability, establishes a continuing contract ; while if made after the bar of the statute, a new contract is created. McCormick v. Brown, 36 Cal. 180. 27. Terms of express promise. An ex- press promise, to be available to the creditor, must be either direct, certain, and uncondi- tional as to time or manner to pay the debt, or a direct offer to pay, unconditionally, a speci- ' fied part of the debt, or a like offer, upon specified conditions, as to either time or man- ner, or both, to pay the whole or some part of the debt, or a direct conditional promise to pay the whole or a specified part of the debt ; but in case of such offer or conditional promise, the creditor can only recover by showing an acceptance by him of the offer as made, or a performance on his part of the prescribed con- ditions of the promise. Id. 28. Nature of new promise. The new promise may be either express or implied. An express promise can only be established by producing the promise itself, in the form pre- scribed by the thirty-first section of the stat- ute ; while an implied promise can only be established by the production in like form of the acknowledgment prescribed in said section. Id. 29. Nature and scope of acknowledg- ment. An acknowledgment, within the statute, to support an implied promise, must be a direct, distinct, unqualified, and uncon- ditional admission of the debt which the party is liable and willing to pay. Such acknowl- edgment cannot be deduced from an offer or promise to pay a part of the debt, or the whole debt in a particular manner, or at a specified time, or upon specified conditions. Id. 30. Sufficient acknowledgment. The rule held in McCormick u. Brown, 36 Cal. 180, as to what constitutes a sufficient acknowledg- ment of a debt to take it out of the statute, affirmed. Farrell v. Palmer, 36 Cal. 187. 31. Nature of action on cause that is barred by the statute. "When a creditor sues after the statute has run upon the original contract, his cause of action is not founded on the original contract, but upon the new promise ; the original contract, or the moral obligation arising thereupon, being a sufficient consideration for the new promise. McCor-' mick v. Brown, 36 Cal. 180. 32. New promise necessary to sup- port action. A creditor cannot recover after the statute has run upon the original contract or obligation, without proving a new promise. Id. 33. Pleading and proof. It is sufficient, where the complaint alleged an express promise to pay a debt which was barred by the statute, to prove an acknowledgment of the debt from which a promise to pay is implied. Earrell v. Palmer, 36 Cal. 187. 34. To whom acknowledgment may be made. An acknowledgment of a debt, as provided in the thirty-first section of the 238 LIMITATIONS. Statute of Limitations, if made to the adminis- trator of the estate of the creditor, deceased, is sufficient. Id. 35. Identification of debt acknowl- edged. Where, on the trial of an action founded on a statutory acknowledgment, or new promise, to recover a debt which was barred by the statute, the plaintiff having proved the debt and an acknowledgment which might apply to it : held, that this waB a prima facie case of identification for the plaintiff, and that the omis was then on the defendant to prove another debt to which such acknowl- edgment referred. Id. 36. Married woman. If one of the mak- ers of the note and mortgage, and of the sub- sequent promise, was a married woman, such subsequent promise could not be enforced against her, under any circumstances, person- ally ; nor against her estate, unless the instru- ment in writing containing the subsequent promise had been acknowledged and certified as required by law. Belloc v. Davis, 38 Cal. 243- 37. Subsequent encumbrancers. Nor would subsequent encumbrancers or purchas- ers, whose rights had attached to the mort- /gaged property prior to the date of the sub- sequent promise, be affected thereby. Id. 38. Sufficiency in the designation of the debt to -which the promise refers. Such promise is not void for want of certainty. The promise to "pay all indebtedness" must be deemed sufficiently specific to embrace the only debt which is shown to be owing. Id. 39. Limitation of action on new prom- ise to pay judgment. An action on a new promise to pay a judgment, so as to avoid the bar of the statute, must be brought within four years from the making of the new prom- ise. McCormack v. Brown, 36 Cal. 180. See Action, 42, 43 ; Pleading, 22. HI. IN PARTICULAR ACTIONS. 40. Accounts. When one party is selling the other goods from time to time, and charg- ing the same, and the other gives him money which he credits on the account as a payment, this credit does not make the account a mutual one within the meaning of the eighteenth sec- tion of the Statute of Limitations. Adams v. Patterson, 35 Cal. 122. 41. When the account is not a mutual one, the Statute of Limitations bars each item of the same two years after its delivery. Id. 42. Covenant of warranty for quiet en- joyment. The cause of action accrues at the time of an eviction, actual or constructive. McG-ary v. Hastings, 39 Cal. 360. 43. Covenant in deed. A covenant in a deed that the tract conveyed contains a specific quantity of land, is a mere chose in action, and is broken, if broken at all, as soon as made, and the mere fact that there was no proof till long after it was made, by which the breach of it could be established, might possibly prevent the Statute of Limitations from running — but this point not decided. Salmons. Vallejo, 41 Cal. 481. 44. Implied warranty. The Statute of Limitations, upon an implied warranty of title to chattels sold, by one in possession, does not commence running until the vendee is dis- turbed in his possession by the true owner. Gross v. Kierski, 41 Cal. 1 11. 45. Advances on joint venture. In an action by Hill, to recover one-half his advan- ces made under a contract between him and Haskin, whereby they agreed to buy and sell on joint account certain mining stock, Hill to . advance all the money and Haskin to repay one-half with interest, and Hill to hold all the stock purchased as security for his advances, but without specifying any time within which the repayment was to be made : held, that an offer to account and a demand for repayment by Hill were conditions precedent to his right to maintain the action, and that the Statute of Limitations would not commence running against him until such offer and demand. Hillu. Haskin, 42 Cal. 159. 46. As to conveyance of land. When two parties enter into a contract for an ex- change of lands, the facts, that one of the par- ties has performed on his part, by conveying the land which he agreed to convey in ex- change for the tract to be conveyed by the other, and that the grantee has entered into possession and sold portions of the land thus conveyed, do not prevent the Statute of Limi- tations from running as to the right of the party who has performed to a conveyance from the other. Brennan v. Pord, 46 Cal. 7. 47. When covenants are dependent. When mutual agreements to convey lands are to be performed concurrently, the Statute of Limitations does not commence running until one party has performed by delivering a deed, or has offered to perform by making a tender. Id. 48. As to stockholders of corporations. A creditor of a corporation, who seeks to make the stockholders liable for his demand, must bring his action against them within the time prescribed by the Statute of Limitations. The statute begins to run when the debt falls due> and the time prescribed by the Statute Of Lim- itations is not extended, as to the right to sue the stockholders, by a judgment against the corporation. StUphen v. Ware, 45 Cal. no. 49. As to division fence. If one of two coterminous proprietors erects what is intend- ed to be a division fence, claiming it to be on the true line, and holds and occupies the land in- cluded by the fence adversely for five years, this is sufficient to support the Statute of Lim- itations, even though the other coterminous LIMITATIONS. 239 proprietor did not at any time acquiesce in the location of the fence, but constantly protested against it. Whitman v. Steiger, 46 Cal. 256. 50. Recovery under Mexican grant. An actual adverse possession of five years sub- sequent to the passage of the Act of 1863, rel- ative to Spanish and [Mexican grants, will, in certain cases, bar a recovery under a title de- rived from Spain or Mexico, even though the title was not confirmed until after the expira- tion of the five years. City of San Jos6 v. Trimble, 41 Cal. 536. 51. Under Act of 1855. The final con- firmation of a Mexican grant, so as to set the Statute of Limitations in motion, under the Act of 1855, passed by the Legislature of Cal- ifornia, was the issuance of a patent to the grantee. Sabichi v. Aguilar, 43 Cal. 285. 52. Under the Act of 1863, amending the Statute of Limitations of 1855 (Stats. 1863, p. 327) the final confirmation which set the Statute of Limitations in motion was the final confirmation of a survey by the Courts of the United States provided for in the Act of Con- gress of June 14th, i860, or the issuance of a patent. Id. 53. The approval of a survey of a Mexican grant, by the Surveyor General alone, was not final, so as to set the Statute of Limitations in motion. Id. 54. The pendency of proceedings for the approval of a survey of a Mexican grant of land, does not stop the running of the Statute of Limitations in favor of one in the adverse possession. Hayes v. Martin, 45 Cal. 559. 55. An actual adverse possession of five years subsequent to the passage of the Act of 1863, relative to Spanish and Mexican grants, will, in certain cases, bar a recovery under a title derived from Spain or Mexico, even though the title was not confirmed until after the expiration of the five years. San Jose v. Trimble, 41 Cal. 536. 56. Claiming land adversely. One who relies on title by adverse possession to land in- cluded in a Mexican grant, need not show that he claimed adversely to the United States, but it is sufficient if he shows that he claimed adversely to the title on which the plaintiff relies. Id. 57. Recovery under Alcalde grant. An adverse possession for five years subsequent to the passage of the Act of April 18th, 1863, amending the Statute of Limitations, will bar a cause of action under an Alcalde grant in San Francisco. Grimm v. Curley, 43 Cal. 251. 58. Under Van Ness Ordinance. The Act of March, 1864, (Stats. 1863-4, p. 149) in relation to limitations of actions for the recov- ery of real estate in the City and County of San Erancisco, is not unconstitutional. Brooks v. Hyde, 37 Cal. 366. 59. EJjectrnent by landlord against tenant. The provision in the fourteenth sec- tion of the Statute of Limitations, that the possession of the tenant shall be deemed the possession of the landlord, does not apply when the tenant acquired another title five years before the commencement of the suit, or has held adversely to the landlord for five years before the commencement of the suit. Lawrence v. Webster, 44 Cal. 385. 60. If the tenant acquired another title five years before the commencement of suit by the landlord, or has held adversely to him more than five years, the landlord in eject- ment must rely on title, exclusive of the lease. Id. 61. If the tenant is in possession of the land, under an agreement with his landlord to de- liver him possession upon ten days' notice, and the owner of the legal title, without knowl- edge or notice of the tenancy, after due in- quiry, executes a lease to the tenant, the pos- session of the tenant, after the execution of such lease, and while "the landlord has no knowledge of the tenancy, is not of such an adverse character as to keep the Statute of Limitations running in favor of the landlord, and against the owner. Thompson v. Pioche, 44 Cal. 508. 62. Deed as security for debt. Where a deed was executed and delivered as security for a subsisting debt, and it does not appear when the debt thus secured became due, the presumption is that it was due immediately, or upon demand', and if sufficient time has elaps- ed since the date of the conveyance for the Statute of Limitations to run, the debt , is barred. Espinosa u. Gregory, 40 Cal. 58. 63. Where an absolute conveyance is thus given as security, the mortgagor retains the right of redemption only, the legal title being in the mortgagee, and the rights of mortgagor and mortgagee are so far mutual, that when the debt is barred the right to redeem is also barred. Id. 64. Mortgage given to secure another's debt. Where a promissory note is executed by one person, and a mortgage to secure the debt is given by another, and the payor of the note dies, and the holder thereof fails to pre- sent either the note or mortgage to his admin - istrator for allowance within ten months after publication of notice to creditors, although the claim is barred as against the estate, yet the mortgage remains in full force as against the mortgagor and the mortgaged property, and may be foreclosed at any time before it is barred, as against the mortgagor, by the Stat- ute of Limitations. Sichel v. Carrillo, 42 Cal 493- 65. The above rule remains the same when the note is made by the husband for his own debt, and the wife mortgages her separate prop- erty to secure it, and the husband signs the mortgage to show his assent to it. In such case the wife's liability on the mortgage is not affected by the death of the husband, and the 240 LIMITATIONS.— LIS PENDENS. failure of the holder to present the claim for ' allowance to the administrator of his estate. Id. 66. Statute suspended by consent of mortgagor. So long as a mortgagor holds the equity of redemption, and no other rights intervene by reason of subsequent liens or in- cumbrances, he has the power by written stipulation under the statute, or by absenting himself from the State, to suspend the running of the Statute of Limitations. Wood v. Good- fellow, 43 Cal. 185. 67. Where third persons become in- terested subsequent to mortgage. When third persons have acquired interests in mort- gaged property subsequent to the mortgage, they may invoke the aid of the Statute of Limitations as against the mortgage, even though the mortgagor, as between himself and the mortgagee, may have waived its protec- tion. Id. 68. Action upon mortgage barred after four years. Where a mortgagor transfers his interest in the mortgaged premises to a third person, the mortgage, as contradis- tinguished from the mortgage debt, is to be deemed a contract in writing in the sense of the statute, on which an action must be brought within four years from the time when the action would lie, in order to avoid the bar of the Statute of Limitations. Id. 69. On official bond. An action upon an official bond is not an action ' ' upon a lia- bility created by statute ' ' mentioned in the third subdivision of the seventeenth section of the Statute of Limitations, and is not therefore barred by such statute after the expiration of three years. Placer Co. v. Dickerson, 45 Cal. 12. 70. On promissory note. Upon a note payable six months after date, with inter- est payable monthly, and further providing that ' ' in case default be made in any pay- ment of interest, when the same shall become due, then the whole amount of principal and interest to become due and payable immedi- ately upon such default," the cause of action, within the true meaning of the Statute of Limitations, arises at the expiration of the credit fixed by the note, and not at the time when default is made in the payment of the interest. Belloc v. Davis, 38 Cal. 242. 71. Such a provision in a note is in the nature of a penalty, inserted for the sole ben- efit of the creditor, and one which he may en- force or waive, at his election. Id., 72. Waiver of the forfeiture. By ac- cepting the payment of the interest after de- fault has been made, the creditor waives all benefit from the default, and thereafter the rights and obligations of both parties continue, without regard to the forfeiture. Id. 73. Computation of time. In comput- ing the time at which the Statute of Limita- tions begins to run on promissory notes, the day on which the note becomes due is ex- cluded, in all cases, when days of grace are al- lowed. Bell v. Sackett, 38 Cal. 407. 74. A promissory note made payable one day after the happening of a particular event, is not due until one day after such event hap- pens, and a suit on it is not barred by the Statute of Limitations, if commenced -on the day after such event happens. Hathaway v. Patterson, 45 Cal. 294. 75. Express trust. The Statute of Limita- tions does not begin to run in the case of an express trust, until the trustee, with the knowl- edge of the cestui que trust, has disavowed and repudiated the trust. Miles v. Thome, 38 Cal. 335. 76. Trustee and cestui que trust. The Statute of Limitations does not run in favor of a trustee, as against the cestui que trust, while the latter is in the possession of his estate, and there has been no adverse holding on the part of the trustee. Love v. Watkins, 40 Cal. 547. 77. If A conveys land to B, with a pro- vision in the deed that B shall reconvey to him, B holds the land in trust for A, and the Statute of Limitations does not commence running on A's right to a reconveyance until B repudiates the trust, and such repudiation is brought to the knowledge of A. Hearst v. Pujol, 44 Cal. 230. 78. Vendor and vendee. The statute does not run against a vendor in possession under an executory contract, so long as he remains in possession with the acquiescence of the vendor. Love v. Watkins, 40 Cal. 547- See Appeal, 257 ; Attachment, 39 ; Certiorari, 23 ; Covenant, 4, 9 ; Ejectment, 80 ; Praud, 25 ; Homestead, 24, 26 ; Quieting Title, 10. LIS PENDENS. 1. Action to try title. The point not decided, whether a lis pendens filed by a plain- tiff, in an action to try the title to land, in which the defendants set up title in themselves and ask for affirmative relief, imparts notice to purchasers from such plaintiff, pending the action, of the pendency, of the same, and the possible result that his title might be adjudged invalid. Corwin 1;. Bensley, 43 Cal. 253. 2. Purchasers of land pending action. If such a lis pendens is filed in an action to try the title to land as imparts notice to pur- chasers from a party to the action, during its pendency, such purchasers must apply for leave to protect their interest in the suit. Id. 3. A person buying land, without notice of the pendency of an action to try its title, is not affected by a judgment in the action, and, therefore, cannot support a motion to set aside LOCAL TAXATION.— MALICIOUS PROSECUTION. 241 such judgment, under the sixty-eighth, section of the Practice Act.. Id. 4. If, during the pendency of an action to try the title to land, the plaintiff sells, and af- terwards stipulates to a, judgment in favor of the defendants, his grantees cannot support a motion to set aside the judgment, under the sixty-eighth section of the Practice Act. Id. 5. Enforcement of tax lien. In an ac- tion to enforce the lien of a tax by a sale of the property, it is not necessary to file a lis pendens. Reeve v. Kennedy, 43 Cal. 643. See Foreclosure, 6, 26, 27. LOCAL TAXATION. See Taxation, ioi-iii. LOST RECORDS. See Appeal, 368 ; Evidence, 8, 9. MALICE. See Criminal Law and Practice, 4, 5 ; Evi- dence, 10, 93, 130-132 ; Libel, II, 29. MALICIOUS PROSECUTION. 1. Existence of malice. If one person arrests another for the commission of a crime, under the belief that the person arrested has committed the crime, the person making the arrest cannot be said to act maliciously, although he may act unlawfully. Lyon v. Hancock, 35 Cal. 372. 2. Instructions. In an action to recover damages for a malicious prosecution, it is not error for the Court to instruct the jury, that when the plaintiff first rested his case the Court had decided as a matter of law that there was a want of probable cause, provided the testimony of the plaintiff and the admis- sions in the pleadings warrant it, and the tes- timony introduced by the defendant has not in any degree tended to obviate or avoid the want of probable cause made by the pleadings and the plaintiff's testimony. Kinsey v. Wal- lace, 36 Cal. 463. 3. Who liable for malicious prosecu- tion. If a person gives another a carte blanche to use his name as plaintiff in prosecuting suits CAL. DIG. SUP. 16. of the character of the one in question, without requiring to be informed as to the facts and circumstances of the suit, the two to share the compensation' between them, such person can- not, if a suit is commenced in his name malic- iously and without probable cause, shield him- self from damages on the ground of ignorance, or on the pretense that he might have suppos- ed there was a good cause of action. Id. 4. Dismissal of action. A dismissal of an action under the circumstances shown by the record in this case, by a stipulation signed by both parties, which provides that each party shall pay his own costs, is such a determina- tion of the action in favor of the defendant as will enable him to maintain an action for malicious prosecution. Kinsey v. Wallace, 36 Cal. 463. 5. Grounds of action. The gravamen of the action of malicious prosecution is that the defendant instituted the criminal prosecution without having such a knowledge or informa- tion of the circumstances as would superin- duce in the mind of a reasonable person a belief that the defendant was guilty. Hark- rader v. Moore, 44 Cal. 144. 6. Defense. The defense must be that the prosecutor did believe, and had reasonable grounds to believe at the time, that the accu- sation he made was well founded. Harkrader v. Moore, 44 Cal. 144. 7. It is not sufficient for the defense to prove that facts and circumstances existed which furnished reasonable grounds for the belief that the defendant in the criminal action was guilty ; but it must also be proved that the prosecutor had been informed of those facts and circumstances, and that he believed the facts amounted to the offense charged. Id. 8. It is not sufficient that the defendant in- an action for a malicious prosecution knew, or was informed, of the existence of facts suffi- cient to make a reasonable person believe that the party prosecuted was guilty ; but he must show that he believed he was guilty. Id. , 9. Burden of proof as to malice. In actions for. a malicious prosecution, actual malice must be proved as a fa'ct to the jury. Levy v. Brannan, 39 Cal. 485. „ 10. Malice must be shown, in order to sup- port the action for malicious prosecution ; but it is not necessarily to be inferred from want of probable cause. There may be want of probable cause and no malice ; but the jury may find the fact of malice from the circum- stances of the want of probable cause. Hark- rader v. Moore, 44 Cal. 144. 11. Evidence. In an action for a mali- cious prosecution, it is competent for the de- fendant to prove that he had received informa- tion from a reliable source which induced him to cause the arrest of the plaintiff, and what that information was, and in proving what the' information was the defendant may show de- 242 MANDAMUS. clarations made to him by others, and reports in circulation. Lamb v. Galland, 44 Cal. 609. 12. Advice of counsel. In such actions the defendant may rebut the evidence of the plaintiff touching the want of probable cause, by showing that he acted in good faith, under the advice of counsel, after a fair and full statement of the facts in the case. Levy v. Brannan, 39 Cal. 485, 13. Pleading. Such evidence is directly responsive to the evidence on the part of the plaintiff tending to show the want of probable cause, and does not constitute new matter within the sense of the Code. Id. 14. Sufficiency of evidence, to justify a verdict of damages for malicious prosecution, considered. Russell v. Dennison, 45 Cal. 337. 15. Measure of damages. In the case stated in the opinion, seven thousand dollars damages for malicious prosecution held not ex- cessive. Id. 16. Probable cause. The jury, in an action for malicious prosecution, are not to de- termine whether the facts amount to a prob- able cause ; but it is the province of the Court to determine that question. . When the facts are not controverted, the Court must instruct the - jury whether they amount to probable cause ; and when they are controverted, the Court must instruct, that if they find the facts in a designated way, then such facts do, or do not, amount to probable cause. Harkrader v. Moore, 44 Cal. 144. See Evidence, 10, 75 ; Instructions, 25 ; New Trial, 19 ; Pleading, 25. I. n. in. IV. v. VI. MANDAMUS. Jurisdiction. Nature and office of writ, to whom will issue. When writ will, lie. When will not lib. Proceedings on application. 1. Application and petition. 2. Issues and trial. I. JURISDICTION. 1. Transfer of cause from a State Court to a Federal Court. This Court has no jur- isdiction to grant a writ of mandate to compel the Judge of a District Court to proceed with the trial of an action commenced therein, in which an order has been made by said District Court directing the cause to be transferred to the Circuit Court of the United States for trial, for the alleged reason that the parties thereto are citizens of different States. Fran- cisco v. Manhattan Insurance Co., 36 Cal. 283. 2. Jurisdiction of Supreme Court. In such case the subject matter of said order of the District Court is within its jurisdiction, and is not void, even if erroneous. It cannot be reviewed by this Court on application for mandamus. Moreover, the party aggrieved thereby has a plain, speedy, and adequate remedy by the due course of law. Id. 3. Power of Supreme Court by man- damus. This Court has no jurisdiction by its writ of mandate, when directed to a person who acts in a judicial or deliberative capacity, except to compel a performance of his official duty by acting and deciding in the premises to the best of .his judgment. Id. 4. Not special cases. Writs of mandate are not " special cases" within the meaning of Section 8, Article VI, of the Constitution. People v. Kern Co., 45 Cal. 679. 5. County Courts cannot issue writs cf mandate. The Act which " attempts to confer power on the County Courts to issue writs of mandate is unconstitutional. Id. II. NATURE AND OFFICE OF WRIT. 6. Statutory construction. A statute declaring that a Board of Supervisors shall not be sued in any action whatever, but that it may be proceeded against by mandamus, does not change the essential nature or office of the writ itself. Tilden v. Board of Super- visors, 41 Cal. 68. 7. Nature and extent of remedy. The Legislature in establishing the remedy • by mandamus, had in view the nature and extent of the remedy as known at the common law, and as used in other States of the Union. The writ may issue in the cases mentioned in Sec- tion 467 of the Practice Act, but only when it is evident that the law has provided no other sufficient remedy. Kimball v. Union Water Co., 44 Cal. 173. HI. TO WHOM WELL ISSUE. 8. Inferior tribunal. Mandamus lies to compel an inferior tribunal to perform a duty enjoined by law, but if the duty is judicial, the writ cannot prescribe what the decision of the inferior tribunal shall be. Lewis v. Bar- day, 35 Oal. 213. 9. To Judge, to compel trial of cause. A writ of mandate will be issued to compel a Judge to proceed and try a cause, when here- fuses to do so. People v. De La Guerra, 43 Cal. 225. 10. To the Governor. Courts have no jurisdiction to issue writs of mandamus to the Governor. Harpendingi). Haight, 39 Cal. 189. 11. Courts having jurisdiction of the writ of mandamus, may issue the same to compel the Governor to perform a ministerial act re- MANDAMUS. 243 quired by law, and not included ■within the powers confided to his discretion by the Con- stitution. Id. 12. To Tax Collector. A Tax Collector who fails to pay money into the treasury at the time required by law, will be compelled to do so by writ of mandate. People v. Austin, 46 Cal. 520. 13. On Auditor. The Auditor may be eOmpelled, by writ of mandate, to enter on the assessment book the delinquent taxes of the preceding year, even after the duplicate copy of the same has been delivered to the Collector. People v. Ashbury, 46 Cal. 523. IV. WHEN WRIT WILL LIB. 14. County 'warrants. Mandamus is the proper remedy to compel a County Treasurer to satisfy warrants surrendered for redemption, as provided by law. Day v. Callow, 39 Cal. 593- 15. To levy a tax. When the Legisla- ture makes it the duty of the Supervisors of a •county to levy a tax sufficient to pay the in- terest on, and ultimately satisfy the principal of, outstanding bonds of the county, the Board must fairly exercise its judgment with a view to effect the end contemplated, and if it re- fuses to do so, may be compelled by the writ of mandate. Robinson v. Butte County, 43 Cal. 353- 16. If in such case the Board levies a tax which its members know will not produce a sufficient sum, it will be compelled by writ of mandate to levy the additional percentage re- quired. Robinson v. Butte Co., 43 Cal. 353. 17. To compel settlement of except- ions. ' The record on application for mandam- us to require a Judge of an inferior Court to settle a bill of exceptions, must enable the Su- preme Court to determine whether, if settled and signed, the bill of exceptions would tend to manifest error committed at the trial. Peo- ple v. Dickson, 46 Cal. 53. - 18. To compel the issuance of bonds. If a statute allows the Trustees of a township, when they deem it expedient, to expend more money than may be done under the road laws, in the improvement of any highway, or the purchase of any toll road, to submit to the vot- ers of the township the question of the issu- ance of bonds by the Supervisors, by » proc- lamation which shall state the specific object for which the money is to be expended, and if the Trustees submit the question by a proc- lamation which does not specify the particular road to be improved, or the particular toll road to be purchased, a writ of mandate will not be issued to compel the Supervisors to issue the bonds. McMahon v. Board of Supervisors, 46 Cal. 214: V. WHEN WRIT WILL NOT LIE. 19. Remedy exclusive. The writ of mandamus should not issue when there is another sufficient and adequate remedy. Har- pending v. Haight, 39 Cal. 189. 20. To reinstate cause. The County Court has jurisdiction to dismiss an appeal, and mandamus will not lie to compel such Court to reinstate a cause when the appeal has been dismissed, even if the Court acted erron- eously in dismissing it. Lewis v. Barclay, 35 Cal. 213. 21. In a matter in which the County Court has final jurisdiction, and acte, there is no remedy, even if it acts erroneously. Id. 22. To set aside order. If an action be tried by a District Court without a jury, and counsel for the plaintiff be instructed by the Court to draw a judgment in his favor, but before the judgment was finally passed, strang- ers claiming to have succeeded, to the title of the defendant move for a stay of proceedings and to be allowed to intervene, and the motion is allowed, this Court will not by mandamus compel the District Court to set aside the or- der, and enter a final judgment in the case. People v. Sexton, 37 Cal. 532. 23. To compel satisfaction of bonds. A mandamus will not be granted to compel the Loan Commissioners of the County of Santa Clara to satisfy, in gold coin, the bonds issued under the Act of April 9th, 1861, to author- ize the Board of Supervisors of said county to subscribe to the capital stock of the San Fran- cisco and San Jose Railroad, when the only fund under their charge applicable to the dis- charge of said bonds consists of legal tender notes. People v. Cook, 39 Cal. 658. 24. To compel issuance of execution. Where the Clerk of a Court refuses to issue an , execution upon a simple money judgment, the remedy is by motion in the proper Court, or by action against him, and not by application for a writ of mandamus. Fulton v. Hanna, 40 Cal. 278. 25. To review action of Board of Su- pervisors. When a Board of Supervisors have acted on a claim, either by allowing or disallowing it, a writ of mandate will not be issued to reverse or review its judgment. Til- den v. Sacramento Co., 41 Cal. 68. 26. Before such writ can be properly awarded, the Board must refuse to act upon the claim, after it has obtained jurisdiction of it. Id. 27. To compel transfer of stock. A party entitled to stock in a private corporation has a right of action for damages against the cor- poration for the refusal of its officers to trans- fer the stock to him upon the company books, and mandamus will not lie to compel the transfer. Kimball v. Union Water Co., 44 Cal. 173- 244 MANDAMUS. 28. To compel rendition of judgment. A writ of mandate will not be issued to com- pel a Court to render a judgment of acquittal in a criminal case. Ex parte Cage, 45 Cal. VI. PROCEEDINGS ON APPLICATION FOR. 1 . Application and petition. 29. Plaintiff in mandamus. An applica- tion for a writ of mandate to compel the per- formance of some act in which a large num- ber of individuals are interested, which is made in the name of the People, and is not signed by the Attorney General, but by an attorney of the relator, will not be dismissed because not made in the name of some one interested, if the Attorney General unites in the brief in support of the application. People v. Super- visors of San Erancisco, 36 Cal. 595. 30. Demand essential. If a county is compelled by law to subscribe to the stock of a corporation, the corporation must tender its books to the officers of the county and demand the subscription, before it can apply for a writ of mandate. O. & V. R. R. Co. v. Plumas County, 37 Cal. 354. 31. Interest in subject matter essen- tial. A private party applying for a writ of mandamus must have an interest in the subject matter of the action, which is distinguishable from the mass of the community. Linden v. Alameda County, 45 Cal. 6. 32. Where the petitioner has no vested or specific interest in the proceedings, he is not entitled to the relief afforded by a writ of man- damus. Harpending v. Haight, 39 Cal. 139. 33. A private person, whose only interest in the matter is the fact that he is an elector in the county, cannot apply in his own name as plaintiff for a writ of mandate, to compel a Board of Supervisors of a county to order an election for the people to vote on the question of the removal of the county seat. Linden v. Alameda Co., 45 Cal. 6. 34. Necessary parties. The Collector of taxes is not a necessary party in an applica- tion for a writ of mandate to compel an Au- ditor to enter on an assessment roll the delin- quent taxes of the preceding fiscal year. Peo- ple v. Ashbury, 46 Cal. 523. 35. Petition, when denied. A petition for a peremptory mandate to the Judge of a District Court, to enter the name of the peti- tioner, who was the District' Attorney of Santa Clara County, as an attorney of record in a cause pending in Baid Court, to which said county was a party, will be denied where it appears that, since the commencement of the proceeding therefor, the petitioner has ceased to be said District Attorney, and said action has been finally disposed of and is no longer pending in Baid Court. Herrington v. Sawyer, 36 Cal. 289. 36. On denials in answer. A motion for a peremptory writ of mandate based on the pleadings in an application for such writ to the Supreme Court,, to -compel the Board of Supervisors of a county to order an election for a county seat under Sections 3976 to 3985 of the Political Code, will be denied, if the answer denies that one-third of the voters who voted, and whose names were on the Great Register at the election preceding the pre- sentation of the petition to the Board of Su- pervisors, signed the petition. People v. Ala- meda County, 45 Cal. 395. 37 . If, in an application for a writ of man- date, made to the Supreme Court, the answer denies a material averment in the complaint, a peremptory writ will not be issued on the pleadings. People v. Alameda Co., 45 Cal. 395. 38. Flea of another action pending. The pendency of proceedings in quo warranto against the persons claiming to compose a cor- poration, to try their right to exercise corpo- rate powers, is no defense to an action for a writ of mandate brought by the corporation to compel a county to subscribe to its capital stock and issue its bonds therefor. Such pro- ceedings have no place in an answer, as grounds to procure a stay of proceedings of the man- date suit. O. & V. R. R. v. Plumas Co., 37 Cal. 354. 39. Denials on information and belief. The answer to a petition for a writ of mandate, presented to the Supreme Court, may deny the allegations of the petition, upon information and belief. People v. Alameda Co., 45 Cal. 395. 2. Issues and trial. 40. Intervention. A motion for leave to intervene in an action made at any stage of the proceedings presents a judicial question, the decision of which cannot be reviewed or controlled by this Court by mandamus, how- ever erroneous it may be. People v. Sexton, 37 Cal. 532. 41. Error of Court below not subject to review. When the Court below has enter- tained jurisdiction of an action, its proceed- ings, however erroneous, cannot be reviewed on an application for a mandamus. Beguel v. Swan, 39 Cal. 411. 42. But when the Court has refused to act in the case, the question whether it rightfully so refused may be entertained. Id. 43. Stay of proceedings. If, in an ap- plication for a writ of mandate, to compel a County Treasurer to pay money, such Treas- urer stipulates as to the facts, without the ad- vioe of counsel, and no attorney appears for him, the Court will order the proceedings to be stayed until a copy of the record is served on the District Attorney and Chairman of the Board of Supervisors. TJhler v. Boyd, 41 Cal. 60. MARRIAGE.— MECHANICS' LIEN. 245 44. Order to District Court on referring question of fact. Upon an application to the Supreme Court for a writ of mandate to a Board of Supervisors, to compel such Board to call an election to determine the location of a county seat, if an issue of fact, as to the num- ber of voters who signed the petition for the election, is referred to a District Court for trial, such District Court will be directed to cause to be brought before it, by appropriate order, the original petition to the Board, its "records, and the Great Register of the county. People v. Alameda Co., 45 Cal. 395. 45. Question of fact to be referred. If, on an application for a writ of mandate, to compel a Board of Supervisors to order an election to locate a county" seat, the answer de- nies that one third of the voters whose names were on the Great Register signed the peti- tion to the Board of Supervisors, the Supreme Court will_ order the question of fact as to whether the voters signed such petition to be referred to some District Court for trial, and the verdict upon the question to be certified to the Supreme Court. Id. 46. Payment of warrants out of spec- ial fund. A County Treasurer cannot be compelled by mandamus to pay on warrants, made payable out of a particular fund, more money than there is in that fund at the time the mandate issues, and a judgment which commands him to pay such warrants out of moneys that may thereafter come into the fund, is erroneous. Day v. Callow, 39 Cal. 593- See Appeal, 19, 137 ; Courts, 2 ; Eminent Domain, 7 ; Intervention, 2; New Trial, 133. MARRIAGE. See Probate Law and Practice, 13, 27. MARRIED WOMAN. See Homestead, 16, 17 ; Husband and Wife ; Judgment, 81 ; Mortgage, 9, 10 ; Sole Trader ; Specific Contract Act, 2. MASTER AND SERVANT. See Employer and Employee. MAXIM. See Equity, I ; Fraud, 15 i Sale and Delivery, 6-8. Injunction, 10 ; I. II. III. IV. V. MECHANICS' LIEN. In genekal. Who entitled to. What propekty liable to. Claim, notice and filing. Enforcement of. I. IN GENERAL. 1. Claim, what to state. A claim of a lien filed under the Mechanics' Lien Law of 1867-8 must state the name of the person by whom the claimant was employed. The lien can be maintained only by a substantial ob- servance of the provisions of the statute. Wood v. Wrede, 46 Cal. 637. 2. Priority of lien. The lien of a judg- ment rendered after labor is commenced or material is first delivered, is postponed to the lien of the material man, or laborer, although the labor is completed and the last of the ma- terial delivered after the, judgment is docket- ed. Barber v. Reynolds, 44 Cal. 519. 3. Lien filed for too much. A lien for labor or material under the Lien Act of 1862, will not be rejected because it was filed in the Recorder's office for too much, unless it ap- pears that it was a wilfully false claim. Id. 4. Day when lien takes effect. Under the Lien Act of 1862, when there is no written contract for the construction of the building, the several liens of the material men and laborers do not relate back to the day of the commencement of the building, but each lien relates back to and takes effect on the day the particular labor was commenced, or the ma- terial began to be furnished, for which the lien is sought to be enforced. Id. n. WHO ENTITLED TO. 5. Who original contractors. S, who, as the tenant of D, was in possession of D's house and lot in Sacramento City, being de- sirous, for his own benefit, of having said house raised to the high grade, agreed with D, the owner, to raise the house at his own cost, upon condition that D should extend the term of his lease for six years and advance three thousand dollars, S to pay thereafter fifty dol- lars per month more rent than he was then paying ; whereupon S contracted in writing with J to dp. said work for the sum of six thoiis- 246 MECHANICS' LIEN. and one hundred and eighty dollars ; -which being completed; J brought action against D and S, under the provisions of the Act of 1862, (Stats. 1862, p. 384) in relation to the liens of mechanics and others, to recover an unpaid balance of said contract price, and to enforce therefor a mechanic's lien on D's interest in said house and lot. Held, first, that in the sense of said statute, S "caused" said house to be raised, and that J and S were the persons who " contracted " therefor ; and second, that the only lien acquired by J under said Act was upon the interest of S as lessee of said house and lot. Johnson v. Dewey, 36 Cal. 623. 6. Liens where there is no contract in writing. When a person proceeds to construct a building by purchasing material and em- ploying labor, wjthout making any contract in writing for the' construction of the same, the parties thus furnishing material and perform- ing labor are entitled to liens under the seven- teenth section of the Act of 1862 concerning mechanics' liens, even though the amount of a claim exceeds two hundred dollars-; and the second section of said Act, requiring contracts to be , in writing, has no application to such claims. Barber v. Reynolds, 44 Cal. 519. 7. Lien- of sub-contractors and mate- rial men. The lien which may be secured to sub-contractors, laborers, and material men through the original contractor, by a compli- ance on their part with the provisions of the Act of 1862 in relation to liens of mechanics' and others,' (Stats. 1862, p. 384) must be de- termined and. controlled by the terms of the original contract between the owner of the property and the original contractor. Of the existence of such original contract, and its terms, said lienholders are presumed' to have notice, and to have taken sub-contracts, con- tributed labor, and furnished materials in fur- therance of the work in strict subordination to its terms, and their right to be secured there- for, by way of their said lien, to the extent of the money to become due the original con- tractor under such contract, cannot be divested or impaired by any subsequent agreement made between the owner and original contract- or, without their consent or timely notice there- of to them. Shaver v. Murdock; 36 Cal. 293. 8. Upon compliance with the terms of the statute, the right of a sub-contractor, laborer or material man to a lien must be determined and controlled by the terms of the original contract between the owner and the original contractor, of the existence of which contract, and of its terms, said persons are presumed to haveuotice. Henley v. Wadsworth, 38 Cal. 356- 9. Presumption of knowledge of con- tract. In the absence of fraud or misrepre- sentation by the owner, this presumption of full knowledge of the terms of the original contract is conclusive against all sub-contract- ors, laborers and material men, and they are bound by the terms of the original contract, so far as any claim upon the owner, or right of lien upon his premises under the statute, are concerned. Id. 10. When lien does not attach. Under the Act of March 30th, 1868, for securing liens of mechanics and others, a-person is not entitled to a lien on a reservoir for the value of his services rendered in cooking for the men employed in constructing the reservoir, not- withstanding the cooking was done on the ground as the work progressed. McCormic v. Los Angeles W. Co., 40 Cal. 185. 11. Effect of abandonment of contract. F agreed to furnish all the work and material, and to erect a building for W, for the sum of $ 1 2, 500, payable in installments, as the work progressed, except the sum of $3050, which was to be paid within thirty days after the completion and acceptance of the building. After proceeding with the work for some time, and receiving from W the sum of $10,854, which was $1404 more than the payments stipulated to be paid prior to the completion of the building, F abandoned the undertaking, when W finished the building, at an addi- tional expense of $4698. A month after the abandonment of F, the plaintiff, a sub-con- tractor, and others whom he represents, gave notice to W of their claims against F, as mechanics and material men, and by suit sought for the establishment of a lien against the building for the same. Held, that the pay- ment in excess of JS1404, by W to F, was not to the prejudice of the plaintiff, and that the facts of the case created no lien in favor of the plaintiff, upon the property of W. Henley v. Wadsworth, 38 Cal. 356. in. WHAT PROPERTY LIABLE TO. 13. Insufficient contract. It appeared at the trial of an action by W against H to foreclose a mechanic's lien under the Act con- cerning the liens of mechanics and others, (Stats. 1862, p. 384) that H entered into a con- tract with W, by which W agreed to build upon the lot of H a barn, "agreeable to the drafts, plan, and explanation hereto annexed, marked 'A,'" and H agreed to pay for the" same, three hundred and twenty dollars, "upon the completion of said barn, as per specifications " ; that, in fact, no draft, plan, or specifications were attached to the contract, but an unsigned paper was produced, and tes- timony received, under the objection of H, tending to prove that it contained the plans and specifications alluded to in the contract : held, first, that " the specifications " were an essential part of the contract ; second, that the reference made in the contract to " the specifi- cations " being false, cannot be helped out by oral evidence ; and third, that without " the specifications " there was not such " a contract - in writing, subscribed by the party to be MECHANICS' LIE NT. 247 charged thereby,," as is required by the second section of said Act to entitle the contractor to acquire the lien therein provided for. Warden v. Hammond, 37 Cal. 61. 14. To -what interest the lien attaches. Said Act provides only for the acquisition by , the contractor of a lien on the interest of the • employer in the property sought to be charged, whether that be a fee simple interest or less. Id. 15. T was the owner of a lot of land, of which H was in possession, under a contract/of sale from T ; W erected a building on the lot, under a contract made by him with H, and against T and H recovered judgment enforc- ing a lien for the contract price on the inter- ests of both T and H in the land. Meld, that. W's lien did not ' affect the interest of T, and that T was improperly made a, party to the action. Id. 16. As against holder of prior trust deed. Where an insurance company loaned the owner of a lot and uncompleted building money for the purpose of finishing the build- ing, and took from him, a deed of trust convey- ing the fee, defeasible on the payment of the debt, and afterwards knowingly permitted the building to go on without giving notice that it would not be responsible therefor: held, that under Section 4 of the Mechanics' Lien Law, (Stats. 1868, p. 589) the interest in the property held by the insurance company was subject to mechanics' liens for work done and materials furnished after the making of the trust deed. Puquay v. Stickney, 41 Cal. 583. 17. Legislative power. If the owner of land, or any one claiming an interest in it, knowingly permits buildings and improve- ments to be erected on it without giving notice that it is done without his consent, it is just that he should be held to have acquiesced therein, as provided in Section 4 of the Me- chanics' Lien Law, (Stats. 1868, p. 589) and the power of the Legislature to enact that pro- vision is clear. Id. XV. CLAIM, NOTICE, PILING. 18. Conflicting rights. In adjusting the conflicting rights of mortgagees, material men, laborers, etc., under the Act of 1868, " to se- cure the liens of mechanics and others," the rule laid down' by the statute is the familiar one in equity, that he has the better right who is first in point of time. Preston v. Sonora Lodge, 39 Cal. 116. 19. Construction of words " Pay- ments " and " Credits." The words "pay- ment and offsets" are substantially equivalent in meaning to the words " credits and offsets," as employed in the fifth section of the Act. Id. 20. Signing of claim. If the person who claims a mechanic's lien under the Act of 1868, signs the verification attached to the claim, this is a sufficient signing of the claim within the intent of the Act. Hicks v. Murray, 43 Cal. 515. 21. Name of owner to be stated. Un- der the Mechanics' Lien Law of 1868, it is ma- terial that the claim for the benefit of the lien shall state the name of the owner or reputed owner of the premises. Id. 22. Statement of the name of employer. The clause in the Act of 1868, concerning me- chanics' liens, which requires the person filing a claim for a lien to state therein the name of " the person by whom he was employ ed,_ is in- tended to require the statement of a mere fact, and not of a conclusion of law. McDonald v. Backus, 45 Cal. 262. 23. Constitutionality of statute. The Mechanics' Lien Law of 1868 is not open to the objection that it is unconstitutional on the ground that it attempts to appoint agents for private persons, nor that it confiscates property, nor as to the notice required of owners as to responsibility for improvements, nor that it attempts to take away vested rights or to ] clothe private persons with power to divest citizens of their property. Hicks v. Murray, 43 Cal. 515. 24. Lien on part of a railroad. A lien for work or materials cannot be acquired on a portion of a railroad, but must be filed on the entire road. The contractor who grades a section only of the road cannot file a lien on that section alone. Cox v. W. P. R. R. Co., 44 Cal. 18. 25. But one lien allowed under an en- tire contract. Neither a contractor nor a sub-contractor can, from time to time, as the work progresses, file successive liens for work done on an entire contract. In such case but one lien can be acquired, and that must be . filed within the time specified in the statute after the completion of the work. Id. 26. Mistake in -use of word. A mere mistake in the use of a word in a, claim filed to secure a mechanic's lien will not, vitiate it, but the Court will insert the word intended to be used. McDonald v. Backus, 45 Cal. 262. See Ante, 1. V. ENFORCEMENT OP. 27. Parties plaintiff in action. The several parties who furnish materials for or perform labor on a building constructed with- out any contract in writing for building the same, may unite in an action to enforce their several liens under the Act of April 20th, 1862, in relation to mechanics' liens. Barber v. Reynolds, 44 Cal. 519. 28. Defendants, members of firm. If a mechanic, in his claim filed under the Act of 1868 to obtain a lien, states the name of the person by whom he was employed, and it turns 248 MERGER.— MINES AND MINING. out that such person was a member of a firm, and employed him on behalf of the firm, the mechanic, in an action to enforce the lien, may and should make all the members of the firm defendants, notwithstanding the name only of the one by whom he was employed appears in the claim filed with the Recorder. McDonald v. Backus, 45 Cal. 262. 29. Allegation as to ownership. An allegation in the complaint, that in his claim filed under the mechanics' lien law, the plain- tiff described the premises as those purchased and occupied by M, is not a sufficient aver- ment of the ownership of M, because it is not an averment in the complaint that M owned the property, but an averment that the plain- tiff has stated in his claim that M owned the property, and does not aver who owned the premises at the commencement of the action. Hicks v. Murray, 43 Cal. 515. 30. Construction of building contract. A contract was entered into between M and S for the building of a house by M for S, accord- ing to specifications, in consideration of a gross sum in installments, all of which were to be paid as the work progressed, except the last, con- sisting of the sum of one thousand dollars, which was to be paid on the completion of the house. The contract contained certain pro- visions for deviations by M from the specifica- tions of the contract as the work progressed, to be made at the request of S, and among others, for "omissions from said contract," which " shall in no manner affect or make void the contract," but shall be deducted from said contract price by a fair and reasonable valua- tion. Held, first, that obviously said "omis- sions " were intended to be limited to things which, upon the conditions specified, might be entirely left out of the building, and did not extend to anything within said specifications which the owner might elect to take off the contractor's hands and perform or finish him- self ; second, that as against the plaintiff, who, as a material man, under the provisions of the Act of 1862 in relation to the liens of mechan- ics and others, (Stats. 1862, p. 384) was seeking to enforce a lien on said building for materials furnished in its construction, the Court erred in permitting S, for the purpose of defeating said lien, to introduce evidence of a subsequent agreement between M and S, which, as far as appears, was unknown to the plaintiff, by which S, in consideration of a deduction of two hundred dollars made by M from said con- tract price, agreed to perform certain of the specified work in the completion of the build- ing, and released M from his contract obliga- tion to perform the same ; and third, that said subsequent agreement was new and substant- ive in its character, and if made without no- tice to plaintiff before his interests as a mater- ial man could be affected thereby, was, as against him, fraudulent and void, under the tenth section of said Act. Shaver v. Murdock, 36 Cal. 293. 31. Personal judgment. In a judgment enforcing a mechanic's lien a personal judg- ment cannot be rendered against those defend: ants against whom no personal claim is estab- lished. Barber v. Reynolds, 44 Cal. 519. See Judgment, 36 ; Pleading, 54, 55, 209. MERGER. See Equity, 49 ; Foreclosure, 18 ; Corpora- tions, 86. MEXICAN GRANTS. See Land and Land Titles. MEXICAN LAW. 1. Sale of land under Spanish law. By the Spanish*law, the vendor of land was under the implied obligation to make his sale and conveyance effective, and a title afterwards ac- quired by him inured to the benefit of the vendee. Schmitt v. Giovanari, 43 Cal. 617. 2. Passing title to Mexican lands. The Spanish word " cedo " was the ordinary word used in Mexican conveyances to pass 'title to lands. Id. 3. Conveyance of land under Mexican law. By the Mexican law, before the acqui- sition of California by the United States, it was not necessary that an instrument convey- ing land should express a consideration in or- der to pass the title of the vendor. Id. See Conveyances, 25 ; Statute of Frauds, 25. MINES AND MINING. I. Mining claims. 1. Generally. 2. Abandonment and forfeiture. H. Mining. 1 . Local laws and customs. 2. Mining stock. III. MlNBKS' BIGHTS. I. MINING CLAIMS. 1. Generally. 1. Possession of mining claim. In such case, where it appeared that the boundary line MINES AND MINING. 249 between the plaintiff's and defendant's mining claims had been in dispute for several years — the locus in quo being embraced between the adverse lines claimed by the parties respective- ly — the Court refused the defendant's request to give the jury the following instruction, to wit: "Where two mining companies take up adjoining claims, and the one last taken up over- laps the other, and neither company is working that portion of the claim which overlaps the other, but are working in different portions of their respective claims, the fact that the locat- ors of the last claim located have been in pos- session of their claim for five years, does not divest the owners of ' the first claim of the right to their claim to the extent of the origi- nal boundaries, and such a possession by the locators of the last claim located is not adverse to the possession of those who located the first claim." Held, that the instruction correctly declared the law, and, in view of the fact that plaintiff's said instruction had been given, the Court erred in refusing it. Maine Boys T. Co. v. Boston T. Co., 37 Cal. 40. 2. Evidence of title to mining claim. The provision contained in the first section of the Act of April 13th, i860, (Stats, i860, p. 175) that " conveyances of mining claims may be evidenced by bills of sale or instruments in writing under seal," is mandatory, and it was intended that the method of conveying such property, therein prescribed should exclude transfers by verbal sale, even though accom- panied by a delivery of possession. Eelger v. Coward, 35 Cal. 650. 3. Remedy to recover. C agreed in writing to convey to E an undivided interest in a mining claim, upon the fulfillment of cer- tain specified conditions, to be thereafter per- formed by E, and let E into possession. Thereafter, on the failure of C to convey as stipulated, E, who was at the time out of pos- session, brought ejectment to recover the same, the complaint being in the usual form : held, that ejectment would not lie, but that the ap- propriate remedy of E was by action for spe- cific performance, and, as incidental thereto, a delivery of the possession. Id. 4. Right of owner to every portion of mining claim. Evidence that a portion of a mining claim is not valuable for mining pur- poses is not admissible, on general principles, to prove that the owner of the claim has no \ \ right to hold to such portion. Correa v. Frie- tas, 42 Cal. 339. 5. Character of possession of mining claim. The character of the possession neces- sary to work mining claims will vary with the the nature of the mines, the modes adopted in working them, and perhaps, with the char- acter of the country. Id. 6. Extent of right of possessor. The owner and possessor of a mining claim on pub- 1 lie land has a right to prevent any subsequent comer from erecting or constructing any super- structure, cut, or ditch on his claim, unless the right to construct the same is given by some mining custom or regulation. Id. 7. Presumption as to use of entire mining claim. If parties are allowed by mining regulations to include within theii claim land outside of that which they expect to work, it will be presumed, in the absence of proof to the contrary, that it is for the con- venience of working the claims, and that its possession is necessary. Id. ' See Arbitration, 7 ; Contract, 6 ; Equity, 34, 35, 73, "S, 126, 149 ; Judicial Sale, 23 ; Land and Land Titles, 9 ; Quieting Title, I . *. Abandonment and forfeiture. 8. Forfeiture of mining claim. The failure of a party to comply with a mining rule or regulation cannot work a forfeiture of his title thereto, unless the rule itself so pro- vides. Bell v. Bedrock T. & M. Co., 36 Cal. 214. 9. In charging the jury upon the question of such forfeiture, the Court should narrow its charge to such rules or regulations as ex- pressly provide that a noncompliance with their provisions shall be cause of forfeiture. Id. 10. Abandonment under mining laws. If the local mining laws of a district pro- vide that, on a failure to work and notice a claim as required by the mining laws, the claim shall be considered as abandoned, » failure to comply with such laws is an aban- donment of the claim, and it is open to ^loca- tion as vacant ground.. Strang v. Byan, 46 Cal. 33. 11. Relocation of mine lost by aban- donment. If several, as tenants in common, locate a mining claim on the public lands, and, by a failure to comply with' the local mining laws, forfeit the same, it may be relocated by a part of the first locators along with others who were strangers to the first location ; and the tenants in common, whose names are left out in the notice of relocation, cease to have any interest in the mine. Id. 12. Renewal of location. If the mining laws require a renewal of notice of location at stated periods, and a claim has been lost by reason of a failure to make such renewals, and one of the joint locators afterward renews the location, stating that it is a renewal and not a new location, the renewal will inure to the benefit of all the locators. Id. See Abandonment, 61, 62. II. MINING. 1. Local laws and customs. 13. Local mining law. The true inter- pretation of the mining usage in the County 250 MINES AND MINING. of Nevada is, that work to the value of one hundred dollars, or twenty days of faithful labor performed on a claim, or on any one of a set of adjoining and 6ontiguous claims, owned by the same party, is sufficient to hold the same for one year. Bradley v. Lee, 38 Cal. 362. 14. Extension of flume on one's own claim not a nuisance. Where defendants owned and possessed a hydraulic claim on Ihitch Ravine, into which their flume emptied, and plaintiff, being the owner of a claim be- low, dug a ditch, commencing on defendant's claim but below their flume, for the purpose of appropriating the water discharged therefrom, and thereupon defendants extended their flume further down on their own claim, but so as to prevent such appropriation by plaintiff : Held, that defendants had a right to such extension, though there might be a question as to wheth- er it served any useful purpose or not, and that it could not be abated by plaintiff as »■ nui- sance. Correal. Frietas, 42 Cal. 341. 15. " Mining customs " as against writ- ten "district mining laws." In an action for possession of a mining claim, where plain- tiff relied upon a location under certain writ- ten rules adopted by the miners of the district some five years before, which did not require the posting of notices upon the claim at the time of location ; and defendant offered to prove that there was a custom in the district requir- ing the posting of such notices ; and the Court excluded the evidence on the ground that the written rules superseded any custom : held, that the exclusion of such evidence was error. Harvey v. Ryan, 42 Cal. 627. 16. Observed "mining customs "pre- vail over disregarded " district mining laws." Section 621 of the Practice Act makes no distinction between the effect of a " custom ' ' or " usage, "• the proof of which must rest in parol, and a " regulation " which may be adopted at a miners' meeting and embodied in. a written local law ; and a custom reason- able in itself, and generally observed, will pre- vail as against a written raining law fallen into disuse. Id. 17. "District mining laws." — 'What gives them validity. The rules adopted by the miners of a district acquire validity not from their mere enactment, but from the cus- tomary obedience and acquiescence of the miners following the enactment. Id. 18. Existence of "District Mining Law " a question of fact. As the " min- ing law" of a district must not only be es- tablished, but in force, it is void whenever it falls into disuse or is generally disregarded ; and the question whether it is in force at a given time is one of fact for the jury. Id. 19. Working claims. Mining claims on the public lands must be held and worked in accordance with the local mining laws adopted and in force in the mining district where the same are located. Strang v. Ryan, 46 Cal. 33. 2. Mining stock. 20. Sale by bailee. Sale of mining stocks by bailee, and right of bailor to de- mand proceeds of. Atkins v. Gamble, 42 Cal. 86. 21. Sale by pledgee at auction. The question whether a sale of mining stock made in the Board of Brokers is not a sale at public auction, such as a pledgee is authorized to make upon default being made by the pledgor, not decided. Child v. Hugg, 41 Cal. 519. 22. Assessments on mining interests. The statute of 1865-6 in relation to levy- ing assessments against the owners of in- terests in mining claims for the purposes of working the same, applies only to copart- ners in the claim, and has no reference to those who are mere owners and shareholders, without the partnership relation. Brundage v. Adams, 41 Cal. 619. 23. To warrant such assessment, if the partnership relation does not exist, the joint owner must be notified that thenceforward he will be deemed a copartner for the purpose of working the claim, and the service of the. notice changes the relation of the parties, and creates a mining partnership. Id. 24. Constitutionality of the Act of April 2d, 1866, providing for assessments on interests in mining claims, not discussed nor decided. Id. 25. Bill of sale of mining claim. No precise form of words is necessary to work a conveyance in a bill of sale for ,a mining claim. If it be clear from the language of the instrument that the maker intended to pass thereby the title to the property, the law will, if possible, so construe the words used as to effectuate that intent. Meyers v. S'arquharson, 46 Cal. 191. 26. Gift of a mining claim. The owner of a mining claim may give away the same by a written bill of sale, and such bill of sale is not to be rejected as evidence because it was a gift. Id. See Bailment, 2 ; Contract, 6 ; Corporations, 75- in. MINERS' RIGHTS. 27. Right to the use of flume for tail- ings. A party mining upon a ravine which runs into another ravine is not clothed, by virtue of his right to use the ravine upon which he is mining as an outlet for his tail- ings, with the general right to break in, at any point he may select, upon the tailrace of another constructed upon the other ravine. Gregory v. Harris, 43 Cal. 38. 28. Prior rights. Although it appears MINING PARTNERSHIP.— MORTGAGE. 251 that the plaintiffs had the better title to the ground claimed by them, yet if the testimony establishes that the defendants had the prior right to mine, and that they could not mine ■without the dam, the plaintiffs cannot recover. Stone v. Bumpus, 40 Cal. 428. 29. An instruction to the effect, that if at the time plaintiffs took up and worked the ground in dispute, defendants or their grantors stood by and permitted plaintiffs to work and de- velop the same without objection or opposition, were matters, if true, to be taken into consid- eration in determining the conflicting claims of the parties to the premises, is erroneous. Id. 30. Working mining claim. It is not the . province of a Court to question the judgment of the owner of a mining claim as to the man- ner in which he shall work the claim, so that the working does not interfere with prior rights acquired by others. Stone v. Bumpus, 46 Cal. 218. 31. Right of oldest locator in work- ing mining claims. The owner of a mining claim comprising the bed of a caiion may erect dams across the canon for the purpose of enabling him to work the same, even if there- by mining claims on the banks of the canon belonging to others are flooded, provided the Claim in the bed of the canon is the oldest loca- tion, and in such case the injury sustained by the owner of the bank claim is damnum absque injuria. Id. 32. In such case, a declaration of the owner of the caiion claim, before building the dam, that he will put in a dam that will flood the claim on the bank of the canon, is consistent with the utility or necessity of the dam in working the canon. Id. 33. Right of way. The Act of 1870 providing for the condemnation of the right of way over or through a mining claim for ditches, tunnels, flumes, etc. , necessary for the convenient working of another mining claim, is merely cumulative, and does not' have the effect of excluding a party from the enforce- ment in Court of the right to construct such tunnels, ditches, flumes, etc., when that right exists independent of the statute, as by local customs. Bliss v. Kingdom, 46 Cal. 651. 34. Enjoining interference with mining right. If by the local customs the owner of one mining claim has a right to construct a tunnel through an adjoining claim, in order to enable him to work his own claim, a Court of equity may enjoin any interference with that right. Id. See Instructions, 7, 23, 24. MINING PARTNERSHIP. See Partnerships, 28-39. MINING USAGES. See Mines and Mining, 13-19. MISTAKE. See Amendments, 1 ; Appeal, 281, 365, 366 Attachment, 32 ; Contract, 19, 112, 113 ; Eject ment, 90 ; Equity, 2, 18-27, 3 2_ 39 > Fraud, 7 Insolvency, 7 ; Judgment, 26, 27, 66 ; Mechan ics' Liens, 26 ; Negotiable Instruments, 60 Pleading, 23 ; Specific Performance, 19. MOBS. , 21, 22. MONEY. 1. Money received under an invalid assignment. Money collected upon a judg- ment by the assignee, under an invalid assign- ment, may be recovered by a judgment creditor of the party who is rightfully entitled to it. Blood v. Marcuse, 38 Cal. 590. 2. County in which money at interest is to be taxed. Money at interest is to be taxed in the county in which the creditor re- sides. People v. Whartenby, 38 Cal. 461. See Taxation. 3. Money regarded as land. The pro- ceeds of a policy of insurance (effected by the trustees) for a loss happening to the property during the continuance of the trust estate, and not expended for the purposes of the trust, will, on the determination of the trust estate, be re- garded in equity as real property, and will belong to the owner of the reversion. Hawes v. Lathrop, 38 Cal. 493. See Attachment, 1 ; Bailment, 3 ; Contract, 44; Equity, 6; Evidence, 17; Fraud, 24; Parties, 13. I. n. m. rv. v. MORTGAGE. In general. Deed, when a mortgage, mortgage a mere security. Mortgagor, rights and liabilities. Mortgagee, rights of. 252 MORTGAGE. I. IN GENERAL. 1. No mortgage •without debt. The ex- istence of a debt — an obligation to pay money — is essential td the existence of a mortgage. Henley v. Hotaling, 41 Cal. 22. 2. Assignment of indebtedness. The assignment of an indebtedness transfers, like- wise, the security by -which its payment is protected. Hurt v. Wilson, 38 Cal. 263. 3. Mortgage to secure future advances not fraudulent. A note and mortgage given in good faith for a greater sum than is due by the mortgagor to the mortgagee, to secure both a present indebtedness and future ad- vances to be made by the mortgagee, is not fraudulent in law as to the creditors of the mortgagor, because given for a greater sum than is due, even though the mortgage does not express upon its face that the excess is for future advances. Tully v. Harloe, 35 Cal. 302. 4. A mortgage given in good faith, for the purpose of securing future advances expected to be made, is a good and valid security. Such mortgage need not express its object upon its face, although it is better it should. Id. 5. Fraudulent mortgage. A mortgage knowingly given for a sum greater than is due, and not in good faith, as a pretended se- . curity for future advances, is fraudulent in law as to the creditors of the mortgagor. Id. 6. On homestead. The execution of a new note and mortgage, by the husband alone, in place of a prior one given on the homestead before the declaration of homestead was filed, does not continue the old mortgage in life, as to the homestead interest, beyond the time when it would otherwise be barred by the Statute of Limitations. Barber v. Babel, 36 Cal. 11. 7. Mortgage in equity. — Offer to re- fund. Where P contracts with B to sell him his hotel, and, to effect the sale, executes to C a conveyance thereof, upon C advancing to P part of the purchase money, and C gives B a contract for a deed when the money he has advanced is repaid, and B gives P security for the balance, as between the parties, the sale and conveyance will be deemed, in equity, a mortgage to secure the payment by B to C of the Bum advanced ; and in such case a com- plaint, to set aside the contract for fraudulent representations of B, must aver an offer to re- fund C his money. Purdy v. Bullard, 41 Cal. 444. 8. Transaction constituting absolute sale, and not mortgage. Where Morris and Angle owned a lot of sheep, and Morris executed a bill of sale of his half to Angle, who was in possession, in consideration of the sur- render to him of his own note, previously giv- en to Angle, and the giving to him of Angle's note for the balance ; and Angle at the same time agreed in writing to sell back to Morris at a future time, on payment of the money re- presented by the notes : held, that the trans- action constituted/ an absolute sale, and not a mortgage. Morris v. Angle, 42 Cal. 236. 9. Avoiding mortgage given by wife. The execution and acknowledgment by the wife of a mortgage, under compulsion and un- due influence of the husband, do not render the mortgage void, but only voidable ; and if the mortgage is given to secure an antecedent debt, and the mortgagee has no notice of such compulsion and undue influence, the mortgage cannot be avoided on that ground. Conn. L. Ins. Co. v. McCormick, 45 Cal. 580. ' 10. Wife's mortgage given under com- pulsion of husband. If the wife executes a mortgage under the compulsion or undue in- fluence of her husband, she cannot avoid the mortgage because of this compulsion or undue influence, when the mortgagee has no notice of it, unless, at the time of the acknowledg- ment of the mortgage, she also acted under the fear, compulsion, or undue influence of her hus- band.. Id. 11. Evidence of actual notice. When the mortgage is recorded, so as to give, con- structive notice to a subsequent purchaser, there is no need of proof of actual notice in an action to enforce the mortgage. Christy v. Dana, 42 Cal. 175. 12. Word "conveyance" in Civil Code. The words " conveyance of real prop- erty," as used in Seotions 1213 and 1214 of the Civil Code, include mortgages. Odd Fel- lows' Savings Bank v. Ban ton, 46 Cal. 604. 13. Mortgage first recorded prevails. A mortgage of real property is void, as against a subsequent mortgage of the" same property which is first recorded, and is taken in good - faith and for a valuable consideration, and without actual notice of the preceding mort- gage. Id. 14. The above rule is not affected by Sec- tion 2937 of the Civil Code, which prescribes that the mortgagee is allowed one day for ev- ery twenty miles between his residence and the Recorder's office, and that during such time the mortgage, has the same effect as if re- corded. Id. 15. Conflict between two articles in Codes. The subject matter of recording mortgages comes more properly under the article in the Civil Code prescribing rules for " mortgages of real property " than under the Article prescribing rules for ' ' mortgages in general," and if there is a conflict between the two articles in relation to recording mort- gages, the former must prevail. Id. H. DEED, WHEN A MORTGAGE. 16. Converting a deed into a mortgage. When an attempt is made to convert a deed, MORTGAGE. 253 absolute in form, into a mortgage, the evidence ought to be so clear as to leave no doubt that the real intention of the parties was to execute a mortgage ; otherwise, the intention appear- ing on the face of the deed will prevail. Hen- ley v. Hotaling, 41 Cal. 22. 17. Parties may buy land in satisfaction of a debt, or for a consideration paid, and con- tract to reconvey upon the payment of a sum certain, without any intention that the trans- action should create a mortgage. Id. 18. Covenant to reconvey. A covenant to reconvey does not necessarily convert an absolute deed into a mortgage. It may be one among other facts showing that the parties in- tended the deed to operate as a mortgage. Id. 19. Reservation of right of repurchase. To convert an absolute deed into a mortgage, something more must be shown than a reserva- tion of the right to repurchase. Id. 20. Deed with defeasance back. When a deed absolute on itB face is given of a tract of land, and at the same time the grantee makes to the grantor a defeasance, agreeing to sell the grantor the land, if he pays a sum fixed by a certain time, the test by which to determine whether the transaction is a mort- gage or a defeasible sale is the fact whether or not, notwithstanding the conveyance, there is a subsisting, continuing debt from the grantor to the grantee. Farmer v. Grose, 42 Cal. 169. 21. Antecedent debt as consideration: If the consideration for the conveyance was an antecedent debt, and the property is to be re- conveyed on the payment of the debt, and nothing more appears, prima facie the trans- action constitutes a mortgage. Id. 22. In like manner, if there is no ante- cedent debt, but a loan of money to be repaid, with interest, it is a mortgage. Id. 23. Parol evidence to show deed a mortgage. Where there is a deed absolute on its face, and a defeasance back, parol evidence is admissible to show whether the transaction constitutes a mortgage. Id. 24. Legal title. An absolute deed, al- though shown by parol evidence to have been intended as a mortgage, conveys the legal title. Hughes v. Davis, 40 Cal. 117; Espinoaa v. Gregory," 40 Cal. 58. 25. When deed with agreement to sell back not a mortgage. Where Page conveyed land to Vilhac on December 12th, 1864, by deed absolute on its face, in consider- ation of Vilhac's satisfying » mortgage for two thousand five hundred and twenty-two dollars, which he held against Page upon the property, and paying off a previous mortgage for five thousand two hundred and fifty-five dollars, held by a third party on the same property, and at the same time Vilhac gave Page a contract, agreeing to sell back the whole or any part of the property, on pay- ment of eight thousand three hundred and seventy-seven dollars, or a proportional part thereof, on or before November 1st, 1865, at which time the agreement was to " cease to be^ in force and become entirely null and void,' and it appeared that the eight thousand three hundred and seventy-seven dollars to be paid represented moneys actually paid and to be paid by Vilhac, on the property, and no part of it to be made up of interest to accrue during the interim, and that the attorney who' drew the papers was directed by the parties to- draw a full deed and not a mortgage, but to give Page a privilege of buying back the whole or any part, if he was able to do so by November 1st, 1865, and that both parties so- understood the arrangement : held, that the transaction was one of sale and not of mort- gage, and that after November 1st, 1865, without anything having been done, Page had no right or equity in the property. Page v. Vilhac, 42 Cal. 75. 26. When absolute deed is a mort- gage in equity. If a deed, absolute on its face, is given as a security for an indebtedness, a Court of equity will declare it to be a mort- gage, and allow the grantor to redeem by pay- ment of the indebtedness, both as against the original grantee and parties who purchase from him with knowledge. Kuhn v. Rumpp, 46 Cal. 299. 27. Absolute deed as security for debt. A deed or an assignment of an inter- est in land, absolute on its face, may be shown by parol testimony to have been intended as a security for the payment of a debt. Raynor v. Lyons, 37 Cal. 452 ; Vance v. Lincoln, 38 Cal. 586. 28. Evidence that a deed is, in fact, a mortgage. In California, parol evidence is admissible at law, as well as in equity, to show that a deed, absolute on its face, was given as security for money, and is, in fact, a mortgage. Jackson v. Lodge, 36 Cal. 28 ; Vance v. Lin- coln, 38 Cal. 586. 29. In an ordinary action of ejectment, the plaintiff will be allowed to show by parol evi- dence that an older deed, absolute on its' face, made by the plaintiff's grantor to the defend- ant, and first recorded, was given as a mort- gage. ■ Jackson v. Lodge, 36 Cal. 28, limited by dissenting opinion of Rhoades, J. 'Id. See Ante, 23 ; Deed, 55-60. in. MORTGAGE, A MERE SECURITY. 30. No title passes by mortgage. No title passes to the grantee by a deed absolute in form, and without any defeasance, if the purpose of the deed was to secure a debt ; and in this respect conveyances absolute on their face stand on the same footing as conveyances with a defeasance. Jackson v. Lodge, 361 Cal. 28. ■ •* 31. A mortgage does not convey the legal 254 MORTGAGE. title for any purpose, either before or after con- dition broken. Mack v. Wetzlar, 39 Cal. 247. 32. A mortgage is a mere security for the payment of money, and passes no estate in land. Id. 33. A lien held under a mortgage will pass by a simple assignment of the debt, but -will not pass by a conveyance of the land alone. Id. See Ante, 2. 34. The opinion of the Court in Dutton v. Warschauer, 21 Cal. 609, in relation to mort- gages, accepted and approved. Mack v. "Wetz- lar, 39 Cal. 247. 35. It is definitely settled in this State that a mortgage does not convey the title to the mortgaged premises, but only creates a lien thereon for the security of the mortgage debt. Carpentier v. Brenham, 40 Cal. 22 1 . 36. A mortgage does not convey the title to the property mortgaged, but only creates a lien on the property. Harp v. Calahan, 46 Cal. 222. 37. O'R conveyed certain premises to C, as security against liability on a bail bond. The deed was duly recorded, but there was no evi- dence in writing of the purpose for which it was executed. O'R or his tenant continued in the possession of the premises. Tie bail was exonorated, and C reconveyed the premises to O'E. ; but before the last conveyance was re- corded, O'C attached the property for a debt due him by C. Meld, that the property was not liable for C's debt to O'C, and injunction lies to restrain the execution of O'C's judg- ment. O'Ronrke v. O'Connor, 39 Cal. 442. IV. MORTGAGOR, RIGHTS AND LIA- BILITIES. 38. Limitation of actions. Where an absolute conveyance is given as security, the mortgagor retains the right of redemption only, the legal title being in the mortgagee, and the rights of mortgagor and mortgagee are so far mutual, that when the debt is barred, the right to redeem is also barred. Espinosa v. Gregory, 40 Cal. 58 ; Hughes v. Davis, 40 Cal. 117. 39. Right of mortgagor to redeem. The right of the mortgagor to redeem is not affect- ed by the fact that he may have had no title to the mortgaged property, nor can the mort- gagee refuse the redemption money, if tender- ed, because the mortgagor had no title to mortgage. Lorenzana v. Camarillo, 45 Cal. 125. 40. Title acquired by mortgagor feeds his prior mortgage. If a mortgagor mort- gages public land upon which he is residing, and afterwards obtains a patent to the same from the United States, and then sells, the title acquired by the patent inures to the ben- efit of tne mortgagee, and the mortgage may be enforced against the subsequent purchaser. Christy v. Dana, 42 Cal. 175. 41. Mortgagor cannot affect subse- quent incumbrancer. As against subsequent incumbrancers or a subsequent holder of the equity of redemption, the mortgagor has no power by stipulation to prolong the time of payment, or in any manner to increase the burdens of the mortgaged premises. Wood v. Goodfellow, 43 Cal. 185, commenting on Lord v. Morris, 18 Cal. 482 ; McCarty v. White, 21 Cal. 495 ; Lent v. Morrill, 25 Cal. 500 ; Low v. Allen, 26 Cal. 141 ; Lent v. Shear, 26 Cal. 361 ; Barbsr v. Babel, 36 Cal. 11 ; Sichell v. Carillo, 42 Cal. 493. 42. Sale by grantee. Where property is conveyed to another by deed absolute in form, but under agreement that it shall be only a security by way of mortgage, and the grantee subsequently sells the property as his own, the grantor may, if he so elects, affirm the sale, and sue for the overplus after the payment of the mortgage debt. Wilber v. Sanderson, 43 Cal. 496. V. MORTGAGEE, RIGHTS OF. 43. Legal title and mortgagee's in- terest. Equity will keep the legal title and the mortgagee's interest, although held by the same person, separate, whenever necessary for the full protection of such person's just rights. Carpentier v. Brenham, 40 Cal. 22 1 . 44. Enforcement of mortgage. A mort- gagee may enforce his mortgage as against the land, notwithstanding the personal liability of the mortgagor, for the debt may be barred by a discharge in insolvency. Christy v. Dana, 42 Cal. 175. 45. Interest on claims against insolvent estate. Section 13: of the Probate Act, which provides that when the estate is insolvent a creditor can only recover interest at the rate of ten per cent, after the letters of administration issue, cannot be invoked by a purchaser of the mortgaged property who buys from the mort- gagor after the mortgage is given, and who is made a party in an action to enforce the mort- gage. Said section is intended only for the benefit of the estate, and if the complaint waives a judgment for a deficiency, the estate has no interest in the matter. Id. 46. Enforcing mortgage after death of mortgagor. If the mortgagor sells the land after he gives the mortgage, and then dies, . the mortgagee may enforce ' his mortgage as against the subsequent purchaser without pre- senting his claim to the administrator, for al- lowance. Id. 47. Junior mortgagee. A junior mort- gagee possesses the right to extinguish the senior incumbrance; and, by whatever mode he may elect to exercise this right, it operates as a satisfaction of the claim of the prior mort- MORTGAGE. 255 gagee, and a release from his lien. Carpentier v. Brenham, 40 Oal. 22 1 . 48. No decree in a proceeding to 'which he •was not made a party can deprive a' mortgagee of the right to relief^ by showing that an ap- parent prior incumbrance is fraudulent, or not supported by any consideration. Id. 49. Whenever a subsequent mortgagee files a bill to redeem the former mortgage, or to redeem the former and to foreclose his own, he may allege and show that the claim of the prior mortgagee has been exaggerated, or any other kindred fact which will increase the fund. Id. 50. Although a subsequent mortgagee may bring his action against the mortgagor with- out making the prior incumbrancer » party, no decree in the suit can affect the prior in- cumbrancer, whose rights are paramount. Id. 51. Relation between the mortgagee and successor of the mortgagor. When the mortgagor has parted with his title to the property and ceased to have any interest there- in, those who have succeeded to his rights stand in the same relation to the mortgagee as if they had originally made the mortgage on their own property to secure the debt of the mortgagor. Wood v. G-oodfellow, 43 Cal. 185. 52. Mortgagee of land in possession. If the owner of a mortgage on an undivided interest in land is also the owner of another undivided interest in the same tract of land, his entry into possession of the whole tract does not constitute him a, mortgagee in pos- session. Davenport v. Turpin, 41 Cal. 100. 53. Subsequent mortgagee. A subse- quent mortgagee has no estate in the land itself nor any lien upon the land, except sub- ject to the prior lien ; that is, he has a right to be paid out of the excess ; which is, in ef- fect, a right to redeem, and incidentally — if - made a party to a foreclosure suit — a right to defend by pleading the Statute of Limita- tions, or the invalidity in whole or in part of the plaintiff's claim, or that it is paid. ^Car- pentier v. Brenham, 40 Oal. 221. 54. Fraud, and effect of. A mortgage was executed by the husband upon certain real property situated in the City and "County of San Francisco, being the community property of the husband and wife, who were thereafter divorced from the bonds of matrimony, and one half the community property was award- ed to the wife by decree of said divorce. Thereafter the mortgage was duly foreclosed, and thereunder the mortgaged property sold to R ; from which sale a redemption was made by S, by the procurement of the husband and one C, the husband having for that purpose fraudulently confessed a judgment in favor of S, without being indebted to him, and C fur- nished the money with which said redemption was made. Subsequently, the wife procured a redemption to be made from S, through F, to whom, for that purpose, she made an assign- ment of her judgment for costs and alimony, rendered in the divorce suit, which had been rendered in another county, but without dock- eting said judgment in the City and County of Sati Francisco. Subsequently, one Cochran, as the secret agent of the husband and C,' and who had full knowledge of the foregoing facts, and to whom C had furnished, money to pur- chase another mortgage debt upon said property which had been contracted by the husband after the granting of said decree of divorce, redeemed from. F- Said first and third re- demptions were procured by the husband and C to be made for the fraudulent purpose of divesting the wife of her interest in said property, of which fact, and the particular means of its intended accomplishment, the wife was ignorant during said periods. Held, first, that in equity the redemption by S was a redemption by the husband, and extinguished the lien of said mortgage ; second, that the re- demption by F was nugatory, because of the failure to docket said judgment in the City and County of San Francisco ; third, that although Cochran was a legal redemptioner — he having become the legal holder of a mortgage which was a valid incumbrance upon the husband's moiety interest in said property — yet his re- demption was likewise nugatory as to the wife, because of the said extinguishment of said first mortgage lien thereon, of which he had notice ; and. fourth, that, as the result of said transaction, the title of the wife to her one half of said property remained in her, freed of the'lien of said first mortgage, sub- ject only to a contribution to be made by her as a tenant in common of said property with the husband, after said decree of divorce, for one half the expense of said redemption made by S. Perkins v. Center, 35 Cal. 713. 55. Rescission of sale of land. In such case, after the foreclosure of the mortgage to H, and the sale of the property thereunder to K, and whilst it was -subject to redemption, the wife, by her quitclaim deed, conveyed all her interest in it to S, for an inadequate con- sideration, and immediately thereafter S con- veyed it to C, who furnished, the money which was paid to the wife : held, that at the date of her deed the wife had sufficient notice of the prior transactions to put her upon inquiry, and is not entitled to rescind the contract of sale. Id. 56. Notice to mortgagee concerning title. If a person is about to make a loan and take a mortgage upon land as security, and employs an agent, an attorney, to make the negotiation, a declaration made by a tenantHn possession of the land to the agent that anoth- er person owns an interest in the land, is suf- ficient to put the mortgagee on inquiry, and if due diligence is not exercised in making such inquiry, the mortgage, even if the paper title appears to be in the mortgagor, is subject to the rights of such other person in the land. Bauer v. Pierson, 46 Cal. 293. 256 MOTIONS.— MUNICIPAL CORPORATIONS. 57. Mortgaging homestead. If the hus- band and wife own a tract of land, a part of which is claimed as a homestead, and both ex- ecute a mortgage on the whole tract to secure a debt, and the husband afterwards executes a mortgage upon the part not covered by the homestead to secure his debt, and the first mortgagee forecloses, making the other mort- gagees parties, the second mortgagees cannot insist that the homestead be sold, but the de- cree should direct the part not covered by the homestead to be first sold, and if the proceeds satisfy the first mortgage, that the homestead be reserved from sale. The second mortgagees must rely on the surplus, if any, arising from the sale of the part not covered by the mort- gage. McLaughlin v. Hart, 46 Oal. 638. See Acknowledgment, 3 ; Attachment, 4, 5 ; Chattel Mortgage ; Contract, 13 ; Equity, 23, 27 ; Evidence 76, 77 ; Foreclosure ; Fraud, 6, 8, 14 ; Growing Crops, 6 ; Homestead, 23 ; Legal Tender, 2 ; Limitations, 62-68 ; Probate Law and Practice, 39-43 ; Specific Contract Act, 1 ; Statute of Frauds, 22 ; Sureties, 2, 3 ; Taxation, 37-40, 43, 48, 51. MOTIONS. 1. When made in time. A motion to set set aside an order, entered at a term of the Court next preceding the passage of the Act of April 2d, 1866, amending the sixty- eighth section - of the Practice Act, and within five months after the adjournment of said term, was made in due time. Bensley v. Ellis, 39 Cal. 309. 1 2. To vacate order. A motion may be made to vacate an ex parte order granting a writ of assistance. City of San Jos6 v. Fulton, 45 Cal. 316. 3. Motion defined, and how made. A motion is an application for a rule or order made viva voce to a Court or Judge. Making out and filing a written application for such rule or order is not sufficient. The attention of the Court must be called to it,: and the Court moved to grant it. People v. Ah Sam, 41 Cal. 645. 4. Renewal of motion once denied. A motion made, in the usual course of practice, which has once been denied, may be renewed by leave of the Court ; and, unless there is an abuse of discretion in granting this leave, the order will not be disturbed by the Snpreme Court. Bowers v. Cherokee Bob, 46 Cal. 279. See Appeal, 358 ; Appearance, 5, 6, 10 ; At- torney and Client, 12 ; Criminal Law and Practice, 126-128 ; Default, 13 ; Estoppel, 20 ; Injunction, 30-33, 39 ; Judgment, 66 ; New Trial, 101-131 ; Nonsuit ; Order, 3; Pleading, 257-260 ; Trial, 17 ; Writ of Assistance, 5 ; "Writ of Restitution, 5. MUNICIPAL CORPORATIONS. 1. Municipal corporations subordinate subdivisions of State government. Munic- ipal corporations are but subordinate subdi- visions of the State government, which may be created, altered, or abolished, at the will of the Legislature, which may enlarge or restrict their powers, direct the mode and manner of their exercise, and define what acts they may or may not perform, subject, however, to the limitation that the Legislature cannot direct the performance of an act which will impair the obligations of a contract. San Francisco v. Canavan, 42 Cal. 541. 2. Incorporated cities are mere govern- mental instruments for purposes of internal administration, like counties created by law for the same purpose. Winbigler v. City of Los Angeles, 45 Cal. 36. 3. County of Sacramento. The county of Sacramento is subject to the provisions of the Code respecting the government of coun- ties. People v. Sacramento Co., 45 Cal. 692. 4. The Act of 1863, which declares that the Board of Supervisors of Sacramento* County shall be a body politic and corporate, does not make that county » municipal corporation within the meaning of that term as used in the nineteenth section of the Political Code. Id. 5. City Incorporation Act a public Act. A legislative Act by which a city is incor- porated is a public Act of which Courts are bound to take judicial notice. People ■»■ Pot- ter, 35 Cal. no. 8. Power of Legislature over muni- cipal corporations. The Legislature has the constitutional power to direct a sale of pue- blo lands owned by a municipal corporation, by Commissioners, and an application of the proceeds to the erection of public buildings. San Francisco v. Canavan, 42 Cal. 541. 7. Municipal funds. The power of the Legislature to appropriate the moneys of muni- cipal corporations in payment of claims, ascer- tained by it to be equitably due to individuals, though such claims be not enforcable in the Courts, depends largely upon the legislative conscience, and will not be interfered with by the judicial department, unless in exceptional cases. Creighton v. San Francisco, 42 Cal. 446. 8. Power of Legislature over affairs and property of municipal corporations. The Legislature has the constitutional power to direct and control the affairs and property of a municipal corporation for municipal pur- poses, and may, for such purposes, so control its affairs by appropriate legislation as ulti- mately to compel it, out of the funds, in its treasury, or by taxation, to pay a demand which in good conscience it ought to pay, though there be no legal liability to pay it. Sinton v. Ashbury, 41 Cal. 525. MORTGAGE.— NAVIGABLE STREAM. 25,7 9. Opening of streets a legislative mu- nicipal purpose. The opening of streets in a city is clearly a municipal purpose ; and ■whether the cost of such enterprises s,hould be borne by the contiguous property, or by all the property of the city, or a certain proportion of each, is a, matter for legislative discretion. Sinton v. Ashbury,i4i Cal. 525. 10. Act authorizing a city to convey its lands. An Act of the Legislature author- izing and empowering the Board in ■which the corporate authority of a city is vested, to con- vey to a railroad company " not to exceed five thousand acres of the land of the city, or such parcels thereof as they may deem advisable, and upon such terms and conditions as they may determine," even if mandatory, so far as the apt of conveyance is concerned, vests the Board with discretionary power as to the quan- tity to be conveyed, and the terms of the con- veyance. San Diego v. S. D. & L. A. R. R. Co., 44 Oal. 106. 11. Conveyance by officer of a city. If an Act of the Legislature, authorizing the Board exercising the corporate authority of a city to convey its lands to a corporation, vests the Board with any discretion in the matter, a member of such Board, who is a stockholder or Director in the corporation, cannot act offic- ially in the Board in relation to the matter, or in making the conveyance, and if he does, and his vote or signature to the deed was requisite to complete the conveyance, the deed will be set aside as a cloud on the title. San Diego v. S. D. & L. A. K. E,. Co., 44 Cal. 106. 12. Conveyance by Trustees. A recital in a conveyance by the Trustees of a town that it was made in obedience to a judgment of the County Court, which judgment was subse- quently decided to be void, does not invalidate the deed if it contain operative words of con- veyance sufficient to transfer the title. Kyan v. Tomlinson, 39 Cal. 639. 13. The recitals touching the void judg- ment may- be rejected as surplusage, and the deed remain a valid operative conveyance, which cannot be impeached by a stranger to the transaction, not in privity with any of the parties. Id. See Action, 27 ; Constitutional Law, 43, 46- 48 ; Conveyances, 28 ; Corporations, 3, 6 ; Ejectment, 54, 55 ; Eminent Domain, 6, 7 ; Jurisdiction, 52, 54 ; Land and Land Titles, 212 ; Principal and Agent, 10 ; Supervisors. 14. Power to contract. An Act author- izing a municipal corporation to' enter into a contract with a party to supply the city with water and machinery, and connecting pipes for supplying the water, does not authorize the municipal authorities to purchase a site upon which to erect the water works. People v. McClintock, 45 Cal. 11. 15. Ordinance against profane swear- ing. When the charter of a municipal cor- poration authorizes the municipal legislative CAL. DIG. SUP. 17. body to enact ordinances to prohibit practices which are against good morals, or contrary to public decency, and such body determine as a fact that a particular practice, such as the ut- tering of profane language, is against good morals, and prohibit it by ordinance, the de- cision of such body on this question is final , and the Court will not review it. Ex parte Delaney, 43 Cal. 478. 16. A municipal legislative body, if em- powered by law to prohibit or suppress prac- tices against good morals or public decency, may, by ordinance, punish the uttering of profane language, whether uttered frequently or only once by the same person. IS. 17. Void ordinance. If the charter of a city requires any sale or lease of the real estate of such city to be made at public auction to the highest bidder, an ordinance of the Coun- cil of the city making a lease of any portion of its realty to,a corporation, upon the pay- ment of a rent reserved, is void, and passes no title to the corporation. S. E. & O. R. B.. Co. v. Oakland, 43 Cal. 503. 18. Penalty for act amounts to prohi- bition of act. A city ordinance, duly au- thorized, imposing a penalty for feeding still slops to cows, and also for vending, the milk of cows so fed, "amounts to an authoritative pro- hibition in both respects ; and the prohibited act becomes thereby unlawful. Johnson v. Simonton, 43 Cal. 242. 19. Liability of cities. Incorporated cities are not liable for injuries sustained by. private individuals, caused by the neglect of the city officers in keeping its streets in repair, unless made so liable by the Acts under which they are incorporated. Winbigler v. City of Los Angeles, 45 Cal. 36. See Railroads, 5 ; San Francisco, 9, 12, 18, 19 ; Statutory Construction, 15 ; Supervisors, Taxation, 33, 34. MUNICIPAL ORDINANCE. See Statutory Construction, 15. MURDER. See Criminal Law and Practice, 7-12, 43, 79, 1 18-120, 187-202, 214; 276, 300, 306-310, 313' 3H; 391- NAVIGABLE STREAM. See Description of Land, 5. 258 NEGLIGENCE. NEGLIGENCE!. I. What constitutes. n. Liability foe. III. CONTRIBUTORY NEGLIGENCE. IV. Negligence a question op fact. I. WHAT CONSTITUTES. , 1. Defined. Negligence is not absolute or intrinsic, but always relative to some circum- stance of time, place or person. Needham v. S. F. & S. J. R. R. Co., 37 Cal. 409. 2. As to adults and children. That which would be but ordinary negligence as to a grown person, may be gross negligence as respects a child. Schierhold v. N. B. & Mis- sion R. R. Co., 40 Cal. 447. 3. - In time of danger. A person, in time of imminent danger, is not negligent because he does not take every precaution that a care- ful calculation afterward will show he might have taken. Karr v. Parks, 40 Cal. 188. 4. Of railroad company. Where an un- fenced line of railroad passes through a field, in which the live stock of the owner, or occu- pier of the field, are running, and the stock of the occupant stray into the road and are killed by the train, these facts unexplained make a prima facie case of negligence against the railroad company. McCoy v. Cal. P. R. R. Co., 40 Cal. 532. 5. Unavoidable accident. The ignition of combustible substance lying along the track of a railroad, by sparks dropped by a passing engine, is not an unavoidable accident. Flynn v. S. E. & S. J. R. R. Co., 40 Cal. 14. 6. It is not negligence, in a legal sense, for a farmer to leave the grass and stubble stand- ing on his pasture and grain field along the side of which, and separated therefrom by a fence, a railroad passes. Id. 7. The negligence, which was the proxi- mate cause of ( the injury, where a fire was communicated to an adjacent grain field by the falling of sparks from a passing engine, which ignited the dry grass' and weeds lying along the track, was the leaving the combusti- ble matter upon the railroad where it was liable to be so set on fire. Id. 8. Of -water ditch company. In an ac- tion to recover damages for an alleged injury to. the plaintiff's land, resulting from the care- less management of the defendant's water ditch, which traversed the land : field, that the defendant was bound to exercise no greater care to avoid the alleged injury to the adjoining lands than prudent persons would employ about their own affairs under similar circumstances. Campbell v. B. R.& A.W. &M. Co., 35 Cal. 679. 9. The true principle applicable to such cases is, that in order to avoid doing a damage to the property of another, a person is bound in law to such care in the use of his own property as a prudent man would employ under similar circumstances, if he were him- self the owner of the property exposed to damage. Id. 10. Richardson v. Kier, 34 Cal. 63, as to the liability of ditch owners for damages done by water discharged or sold from ditches, af- firmed. Richardson v. Kier, 37 Cal. 263. II. LIABILITY EOR INJURIES. 11. Justification for injuries. No more in law than in morals can one wrong be justi- fied or excused by another. Needham v. S. E. & S. J. R. R. Co., 37 Cal. 409. 12. Injury to -wrongdoer. A person is bound to conduct himself with reasonable care and prudence toward a wrongdoer, and if he can so conduct himself and does not, he is liable if injury is sustained by the latter. Id. 13. Of railroad. A railroad company which continues running its cars upon an open- track, undertakes, at its peril, that no harm shall come to the stock running in the field through which the road runs, for the want of a proper fence. McCoy v. Cal. P. R. R. Co., 40 Cal. 532. 14. The fact that the street is made for travel, does not justify a trespass upon the per- son of one who is there for other purposes. Schierhold v. N. B. & M. R. R. Co.", 40 Cal. 447. 15. Of contractor. When the owner of fixed property, requiring repairs, employs a contractor to do the entire work with his own means and by his own servants, he is not re- sponsible for personal injuries to third persons occurring through negligence in the perform- ance of the work. Du Pratt v. Lick, 38 Cal. 691. 16. Responsibility for injuries in such cases is upon him who has the contract and manage- ment of the work ; and unless the relation of master and servant exists between the owner and the person through whose negligence the plaintiff sustained his injury, the doctrine of respondeat superior does not apply. Id. 17. Of employer and employee. The question whether an employer is liable for an injury sustained by a servant through the neg- ligence or improper conduct of a fellow-servant, not decided. Conlin v. S. F. & S. J. R. R. Co., 36 Cal. 404. See Attorney and Client, 15-18; Common Carrier, 1-10 ; Damages, 15; Default, 11-12; Employer and. Employee 8, 9, 14 ; Evidence, 129, 133, 134, 150 ; Municipal Corporations, 19 ; Negotiable Instruments, 25 ; Office and Officer, 19-21; Parties, 12 ; Pleadings, 207 ; Principal and Agent, 6. m. CONTRIBUTORY NEGLIGENCE. 18. Where both parties are in wrong. NEGLIGENCE. 259 The rule that the plaintiff cannot recover damages if his own ■wrong, as well as that of the defendant, conduced to the injury, is con- fined to cases where the plaintiff's wrong or negligence has immediately or approximately contributed to the result. Kline 1). 0. P. R. R. Co., 37 Oal. 400. 19. Release from responsibility. The rule releasing a defendant from responsibility for damages because of the negligence of the plaintiff, is limited to cases where the act or omission of the plaintiff is the proximate cause of the injury. Flynn v. S. F. & S. J. R. R. Co., 40 Cal. 14; Kline v. C. P. R. R. Co., 37 Cal. 490. 20. The rule releasing the defendant from the responsibility for damages, in cases where the plaintiff by his negligence or wrong con- tributed to the result, is confined to cases where the act of the plaintiff is the proximate cause of the injury. Proximate cause means negli- gence at the time the injury happened. Need- ham v. S. F. & S. J. R. R. Co., 37 Cal. 409. 21. The reason why the law does not hold the defendant responsible for damages where the plaintiff has by his negligence or wrong- ful act contributed to the result complained of, is, not that the wrong of the plaintiff justifies or excuses the defendant, but because it is impos- sible to ^apportion damages between the parties ; and wherever this impossibility does not exist, .the defendant's exemption from liability does not exist. Needham v- S. F. & S. J. R. R. Co., 37 Cal. 409. 22. Proximate cause. Where the neg- ligence of the plaintiff has contributed proxi- mately to the injury complained of, the defend- ant cannot be held liable, unless the injury is the result of a wanton or willful act on his part. Maumus v. Champion, 40 Cal. 121. 23. Of parents and children. The neg- ligence of the parents in allowing their child to be alone in the street, does not relieve the defendant from liability, if the injury occurred through the gross negligence of its employee.- Schierhold v. N. B. &. M. R.' R. Co., 40 Cal. 447- 24. Unless there is some unusual exposure to danger, it is not negligence on the part of the parent to allow a child between ten and eleven years of age, 'ordinarily active and in- telligent, to be in the street. Karr v. Parks, 40 Cal. 188. 25. That a child, five years of age, was permitted to walk in the street, withm sixty feet of her father's house, where there was no particular reason to apprehend danger, and in a street almost entirely unused, would, not as a matter of law be held evidence of negligence on the part of the parent. Id. 26. Of owner of stock. The owner of the stock is not guilty of contributory negli- gence, from the fact that he knew the road was not fenced, when he turned his stock into the field. McCoy v. Cal. P. R. R. Co., 40 Cal. 532- 27. If the plaintiff is guilty of negligence or even of possible wrong in placing his ani- mals on a railroad track, yet the railroad com- pany are bound to exercise reasonable care and diligence in the use of their road ; and if for want of that care the animals are injured, the company is liable. In such case, the company is also bound to use reasonable care and dili- gence in removing the animals. Needham v. S. F. & S. J. R. R. Co., 37 Cal. 409. 28. Of passenger. The fact that plaintiff was standing on the rear platform of a street car, with his hand on the railing) when his hand was injured by defendant's dray, as it passed the rear of the car, is not, as a matter of law, such negligence as contributes to the injury. Seigel v. Eisen, 41 Cal. 109. IV. NEGLIGENCE A QUESTION OF FACT. 29. Negligence or unskillfulness not presumed. Negligence or want of skill in the grading of a street by a contractor, under a city contract, will not be presumed, nor in- ferred from the mere fact of damage, but must be proved. Shaw v. Crocker, 42 Cal. 435. 30. Burden of proof. In a suit against a contractor for damages occasioned to contig- uous property by raising the grade of a street under a city contract, it is incumbent upon the plaintiff to show that the work was performed in an improper or negligent manner, or that the damage resiilted from a want of care or skill on the part of the contractor or his serv- ants. Shaw v. Crocker, 42 Cal. 435. 31. Province of jury. Negligence is generally an inference from facts and circum- stances, which it is the- province of the jury to find, and in an action for damages for in- jury caused by negligence, a nonsuit upon the ground of contributory negligence, should only be granted, when, giving the plaintiff the benefit of all controverted questions, it is apparent to the Court that a verdict in his favor must necessarily be set aside. Schier- hold v. N. B. & M. R. R. Co., 40 Cal. 447. 32. Whether there is negligence on the part of the parents in allowing a child of seven years old to be in the streets unattend- ed, is a proper question to be submitted to the jury. Id. 33. Question for the jury. The ques- tion whether the collision by which the injury was caused could have been avoided by proper' care, is a question of fact for the jury. Siegel v. Eisen, 41 Cal. 109. 34. Collision. In an action to recover damages caused by defendant's dray running against a street car, the fact that the collision would not have occurred except for the slip- ping of the wheels of the dray on the iron 260 NEGOTIABLE INSTRUMENTS. track does not conclusively repel the imputa- tion of negligence. Siegel v. Eisen, 41 Cal. 109. 35. Forcible expulsion of passengers. In a suit brought by a boy sixteen years old for damages for injury sustained by being forcibly expelled from a railroad car, if the testimony tends to show that the plaintiff is told he cannot ride, and that he is ordered by the conductor, with, a show of force, to get off the car, a nonsuit should not be granted upon the ground that the carelessness and negligence of the plaintiff contributed to his injury. Kline v. C. P. R. R. Co., 37 Cal. 400. 36. If a boy, sixteen years of age only, leaps from a railroad car while in motion, in obedience to the command of the conductor, accompanied by a show of force, the Court cannot say judicially that the act of the boy was voluntary, bnt should leave it to the jury to say whether, under all the circumstances, the conduct of the conductor did not amount to compulsion. Id. 37. If, in such case, the conductor sees the person attempting to get on the car, he may use force to prevent him, and no liability will result from injury ; but if the person is once fairly on the car, care must be exercised in his removal. Id. See Trial, 76. NEGOTIABLE INSTRUMENTS. I. Construction. 1. Generally. 2. Promissory notes. 3. Checks. 4. Certificates of deposit. H. Indorsement. III. Demand. 1 . In general. 2. Grace. 3. Reasonable time. IV. Notice of dishonor. V. WaiVer op demand and notice. VI. Bona fide holders. VII. NONNEGOTIABLE INSTRUMENTS. I. CONSTRUCTION. 1. Generally. 1. Ambiguity. In a negotiable instru- ment, a patent ambiguity cannot be helped by averment, or evidence aliunde. Poorman u. Mills & Co., 39 Cal. 345. 2. Superscription in figures. The words written in the body of a certificate of deposit, bill or note, when plain, definite, and certain, must control, without regard to the superscrip- tion in figures. Id. See Equity, 46, 47 ; Evidence, 16 ; Pledge, 9 ; Revenue Stamp, 2 ; Specific Contract Act, 1. 2. Promissory notes. 3. Contingent promise. A written in- strument, containing a promise to pay a sum of money upon a contingency, and not ab- solutely, is not a promissory note. Gabb v. King, 38 Cal. 143^ 4. Admission of debt. The admission in writing of a balance due upon an accounting, not signed by the defendant, is not a promis- sory note, and needs no stamp under the pro- visions of the revenue laws. Jones v. Jones, 38 Cal. 584. 5. Consideration. A promise by A to B to give B further time to pay a debt he owes to A, is a good consideration for a promissory note, given by C to A, for the amount of B's debt to him. Guy v. Bibend, 41 Cal.- 322. 6. Of mining partnership signed by superintendent. A promissory note, pur- porting to have been executed for and on be- half of a mining partnership, and signed by the superintendent as such, is binding on the partnership, provided the superintendent had authority to execute it, or it ha3 been subse- quently ratified by the company. Jones v. Clark, 42 Cal. 181. 7. Of attorney in fact. Where one, as the attorney in fact of another, executes a note binding the principal to pay money, the attor- ney in fact is not liable on the note, even if he had. no authority from the pretended principal to make the note. Lander v. Castro, 43 Cal. 497- 8. One who represents himself as the attor- ney in fact of another, and borrows money, and gives the lender the note of such other, as his attorney in fact, if liable at all, can be held for legal interest only, on the sum borrowed. Id. 9. If such attorney in fact is liable, his obligation is created by the wrong he has done in procuring the money for which the note was given by false representations, and thus com- mitting a fraud ; or perhaps the tort may be waived, and he be held as for money loaned. Id. 10. Note made due -when interest is not paid. When a promissory note, payable at a future time, provides for the payment of interest quarterly, and contains a clause that if default be made in the payment of the in- terest quarterly, then the note shall immedi- ately become due at the option of the holder, a failure to pay the interest makes the whole amount of the note due absolutely, at the op- tion of the holder, if he so elect, without any notice from the holder to the payor. Whitcher v. Webb, 44 Cal. 127. 11. In such case, the holder has no duty to perform to the payor, and the latter has no ex- cuse to delay payment. Id. NEGOTIABLE INSTRUMENTS. 261 12. Note by trustees of a company. A promissory note signed by three persons,.in the body of whioh they, as trustees of a company, promise to pay to another a sum of money, and which has the same designation of " Trustees," etc., 'appended to their signatures, does not on its face purport to be the note of the persons signing it, and they are not personally liable in a suit on it. Blanchard v. Kaull, 44 Cal. 440. 13. The trustees of a corporation who make and sign notes, as such trustees, with the in- tention of not binding themselves personally, are not personally liable, even if they had no authority from the corporation to make the notes. Id. 14. If persons, as trustees of a corpora- tion, execute promissory notes with the inten- tion of binding the corporation, they are not personally liable on the notes, even if there is no such corporation. Blanchard v. Kaull, 44 Cal. 440. 15. For stock of corporation not yet formed. A promissory note executed for the purchase of a certain number of shares of a homestead association about to be formed, un- der a name and with a number of shares agreed upon when the note is given, does not fail for want of consideration, because the association when formed has a name or number of shares of stock different from that agreed on, pro- vided the land is the same and the lots are of the'same value as the promissor had reason to ' expect. Mahan 1;. "Wood, 44 Cal. 462. 16. The giver of the note in such case is, however, at liberty to stand on the terms of his contract, and if it is understood that the shares of stock he is to receive will not cost, in the aggregate, more than a certain sum per share, he is at liberty to refuse the stock if it will cost more than that sum, and the note is void for want of consideration. Id. 17. Note without consideration. If a person delivers to his agent a. promissory note, with the place for the name of the payee left blank, with directions to fill up the blank with the name of a bank, and have the note discounted at the bank, and with the money pay another note on which the principal is in- debted, and if the agent fills the blank with the name of the person holding such other note, and delivers him the same in payment of the other note, the agent violates his author- ity, and the note is without consideration and is void in.the hands of the payee. Beeman v. Lovett, 46 Cal. 387. 18. Note of mining corporation. A superintendent of a mining corporation cannot bind the corporation by a promissory note, un- less he has authority from the corporation to make it. Carpenter v. Biggs, 46 Cal. 91. 19. Assignment of promissory note. An assignment of the note of » mining corpo- ration, made by its superintendent, but void for want of the authority of the superintendent to«make it, does not carry with it the debt for which the note was given. Id. , See Assignment, 9 ; Chattel Mortgage, I ; Corporations, 56; Evidence, in, 112; EVaud, 18; Intervention, 3; Judgment, 55; Limita- tions, 70-74 ; Partnership, 32, 39 ; Pleading, 71-73; 174, 189-193; 213-217,262; Pledge, 8; Principal and Agent, 10, n ; Probate Law and Practice, 76 ; Trial, 5 1 . 3. Cheeks. 20. Presumption as to signature and handwriting. The drawee of a check is pre- sumed to be acquainted with the signature of the drawer, but not with the handwriting in the body of the check ; and the fact that the handwriting in the body of the check is not that of the drawer raises no presumption that it is not genuine. Redington v. Woods, 45 Cal. 406. 21. Laches in failing to return altered check. Where the drawee of an altered check fails to return or offer to return it to the party to whom he paid it, he is guilty of laches. Id. 22. Liability for payment of altered check. If the drawee pay, even to an inno- cent holder, a check which has been fraudu- lently altered in amount after it left the hands of the drawer, he will be entitled to recover back from the person to whom it was paid the excess over the true amount of the check, un- less the alteration is made in such a manner that on the face of the paper there appears enough to excite suspicion of fraud, or the drawee has information whioh would lead a prudent person to suspect that the check has been altered. Id. 23. Liability of drawee of check. The drawee of a check is bound, at his peril, to know the handwriting of the drawer ; and if he pay a check to which the signature of the drawer has been forged, he must suffer the loss as between himself and the drawer, or an in- nocent holder to whom he has made payment. Id. 24. Right to recover for money paid on an altered check. The right of the drawee to recover back the amount paid on an altered check rests upon the fact that the money was paid by the drawee without con- sideration under an innocent mistake, and not upon the indorsement of the holder, as import- ing a promise to refund the money in case it should afterwards appear the check had been fraudulently altered. Id. 25. Suspicious facts requiring inquiry. Where a party received from a stranger, in exchange for legal tender notes, what pur- ported to be a genuine check of a third person, the signature being genuine, and the writing in the body of the paper being in the usual form, though in a handwriting different from 262 NEGOTIABLE INSTRUMENTS. that usually employed, and on applying by an agent for payment of the check, informed, the drawee that the check had been presented by a stranger : held, that these facts were not of such a suspicious character as to put the drawee on inquiry as to the genuineness of the check, and that if there was any negligence in the case on either side, (the check having, after payment, been discovered to have been altered as to the amount) it was on the part of the holder in receiving the check. Id. , 4. Certificate of deposit. 26. A promissory note. A certificate issued by a bank or other depositary to the depositor of money on general deposit, stating the fact of the deposit and that it is payable to the depositor or order on demand, or on return of certificate properly indorsed, is a promissory note. Poorman v. Mills, 35 Cal. 118. H. INDORSEMENT. 27. Firm indorsement. Where one of Wo partners indorses a note in the name of the firm as an accommodation for a third person, without the authority or consent of the other partner, such other partner is not bound by the indorsement as to any party taking the note with notice that the indorsement was made in the character of surety; and in such case the bur- den of proving the authority or consent of the copartner rests on the person holding the note. Hendrie v. Berkowitz, 37 Cal. 113. 28. Notice of accommodation indorse-, ment. If a note is indorsed by a member of a firm, in the firm name, and a third person finds it in the hands of the maker, this is notice that the firm indorsement was for the accommoda- tion of the maker. Id. 29. Effect of indorsement in blank. Where a promissory note is indorsed in blank the title and right of action pass by delivery, and the note is payable to the bearer. Poor- man v. Mills, 35 Cal. 118. 30. Presumptions. The presumption is that the indorsee of a promissory note is a holder for value, and the burden of proof is on the party denying that it is so held. Id. 31. The general rule is, that the holder of negotiable paper is presumed to have taken it for value, and before its dishonor, and in the regular course of business, and the burden of proof to overthrow these presumptions lies on the maker. Sperry v. Spaulding, 45 Cal.' 544. 32. If, however, the note was fraudulent- ly put into circulation, it is incumbent on the indorsee to prove that he gave value for it. Id. 33. Rights of holder. The holder of a promissory note indorsed in blank, may write over the indorsement, " pay to the order of (the holder)," which has the effect of an in- dorsement of the note in full, in the hands of a bona fide holder. Poorman v. Mills, 35 Cal. 118. 34. How receivable in evidence. As the change from a blank to a full indorsement of a note is formal merely, it need not be made ; and so a note indorsed in blank is admissible in evidence in support of an allegation that the note was indorsed, to the plaintiff by the payee. Id. 35. Nonsuit. In an action on a promis- sory note by an indorsee, neither of the ques- tions, whether plaintiff is a holder as an agent, or for value, can be considered on a motion for nonsuit. Id. 36. Agent may maintain action. An agent who has received a promissory note by indorsement holds the title as against all par- ties thereto, except the principal, and may maintain action thereon in his own name. Poorman v. Mills, 35 Cal. 118. 37. Proof of indorsement. Proof of the indorsement of a promissory note is necessary to entitle it to admission in evidence, unless waived when the indorsement is offered in evi- dence. Id. 38. In an action by the indorsee of a prom- issory note against the maker, when the plead- ings are not verified, and the answer consists of a general denial, the due indorsement of the note is thereby put in issue, and the issue is a material one. Mahe v. Reynolds, 38 Cal. 560. 39. Undertaking of holder on present- ing check for payment. When the holder of a bank check or bill presents it for payment to the drawee, and indorses it, he undertakes with the drawee that the prior indorsements are genuine, and that he has a valid title and a right to receive the money ; but the indorse- ment of the holder does not of itself import an undertaking that the check has not been alter- ed in amount. Redington v. Woods,. 45 Cal. 406. 40. Assignment as security. Where a negotiable instrument is assigned as a collateral security for a debt, and no special contract is made, the contract, rights, liabilities' and du- ties of the parties are the same as in the case of the assignment of the same instrument for value, with the exception that the assignee un- dertakes to pay the assignor the overplus he may receive after the. satisfaction of the prin- cipal debt. Donohoe v. Gamble, 38 Cal. 340. 41. Act to prohibit gaming. The in- dorsement and transfer of a note or bill in rooms occupied for gambling purposes, and in a gambling transaction, is not void under the. "Act to prohibit gaming," unless the consid- eration for such indorsement and transfer was. money or other thing of value lost or won at any of the games prohibited by the statute.. Poorman v. Mills, 39 Cal. 345. 42. Who is a guarantor of note. One who writes on the back of a promissory note, over his signature subscribed by him : " I here- NEGOTIABLE INSTEUMENTS. 263 . by waive demand, notice of nonpayment and protest," is a guarantor of the note. Eord v. Hendricks, 34 Cal. 673. See Evidence, 15. IH. DEMAND. 1. In general. 43. Bank check.— Time of presentation. The holder of a hank check drawn upon a bank located in the same town or city in which the drawer resides, and delivered by him in the same place, is not bound to present it for pay- ment on the day of its delivery by the drawer ; but / a demand of payment on the next day, within the usual banking hours, will be equally, effectual for the purpose of fixing the liability of the drawer. Simpson v. Pacific M. L. Ins. Co., 44 Cal. 139. 44. Intent of holder implied. The pre- senting of a check for payment implies that the holder of it desires and is ready and will- ing to accept payment. Id. 45. What is not demand of payment of check. If the holder of a bank check pre- sents it for the sole purpose of ascertaining- whether the signature, is genuine, or whether the drawer had funds to his credit, or merely to be identified as the person entitled to pay- ment, and without intending to demand pay- ment, it is not such a demand of payment as will release the drawer. Id. 46. Effect of tender of payment. If the holder of a bank check demand payment of it in. due form, and within the proper time, ' and the bank being ready and willing, offers to pay the check, the holder is not at liberty afterwards to waive his demand, and decline to accept payment, without thereby releasing the drawer from further liability on the check. Id. 47. Guarantor. A person who writes his name in blank on the back of a note to which he is not a party, prior to delivery, stands in the same relation to'the parties to, and to the holder of the note, as an indorser, and is entitled to a like demand and notice, in or- der to fix his liability. Jones v. Goodwin, 39 Cal. 493. 2. Grace. 48. Days of grace. By provision of the statute, (Statutes of 1851, p. 523) promissory notes, payable on demand, are entitled to days of grace. Bell v. Sackett, 38 Cal. 407. " 49. Computation of time. In comput- ing the, time at which the Statute of Limita- tions begins to run on promissory notes, the day on which the note becomes due is excluded, in all cases, when days of, grace are allowed. Bell v. Sackett, 38 Cal. 407. 3. Seasonable time. 50. Sight bill or note. A sight bill or note, payable on demand, is presumed to be dishonored after a reasonable time shall have elapsed after its date. Poorman v. Mills, 39 Cal. 345. 51. Presumptive dishonor. A promis- sory note payable on demand, a bank check, or certificate of deposit, are not presumptively dishonored until the lapse of a reasonable time after payment thereof may be legally demand- ed. Himmelmann v. Hotaling, 40 Cal. III. 52. What such reasonable time is, depends upon the circumstances of each case, and is a question, of law to be determined by the Court. Poorman v. Mills, 39 Cal. 345 ; Himmelmann v. Hotaling, 40 Cal. in. 53. Note on demand. A note on de- mand, indorsed or transferred during the busi- ness hours of the next day after its date, is within a reasonable time, and the holder pro- tected as indorsee before maturity or presumpt- ive dishonor. Poorman v. Mills, 39 Cal. 345. 54. "What is within. Where the drawer and drawee of a bank check reside in the same city or town, a demand made during the busi- ness hours of the -day succeeding that on which payment might have been first legally demanded, has uniformly been considered within such reasonable, time. Himmelmann v. Hotaling, 40 Cal. in. 55. Laches in demanding payment. Whether, in such a case, a delay of nine days by the drawee in demanding repayment of the holder constitutes such laches on the part of the drawee as will defeat the action ? Query f Redington v. Woods, 45 Cal. 406. See Eacts. IV. NOTICE OE DISHONOR. 56. Dishonor. Although a check may be actually dishonored by a refusal to pay on a* proper demand being made before presumptive dishonor, yet, to charge the check with the in- firmity of dishonor in the hands of a third party, to whom it has been transferred for a valuable consideration before the expiration of the reasonable time which must elapse before presumptive dishonor, notice of the previous actual dishonor must be brought home to him, or he holds it free from the taint of dishonor. Himmelmann v. Hotaling, 40 Cal. in. See Ante, 10, 50, 51. V. WAIVER OE DEMAND AND NOTICE. 57. Need not be stamped. The waiver by an indorser of a promissory note, of pre- sentation, demand, notice of nonpayment, and protest, written upon the back of the note, 264 NEGOTIABLE SECURITY.— NEW TRIAL. need not be stamped in order to be valid. Pacific Bank v. De Ko, 37 Cal. 538. VI. BONA ITDE HOLDBBS, RIGHTS OF. 58. Assignee of promissory note overdue. Trie assignee of a promissory note, overdue, takes it subject to all the equities subsisting between the maker and payee, but free from all equities subsisting between the maker and any intermediate holder. Hay- ward & Co. v. Steams, 39 Cal. 58. 59. Holder when relieved of equities. A negotiable note or bill indorsed and trans- ferred to a bona fide holder for value, without notice, by the payee thereof before maturity or dishonor, actual or constructive, is relieved of all equities existing between the drawer or maker and the payee ; and any subsequent as- signee receives the same in like manner, re- lieved of all such equities. Poorman v. Mills, 39 Cal. 345. 60. Mistake and -want of considera- tion. An alleged mistake and want of con- sideration in a negotiable note or bill will not avail the makers in a suit against them by a bona fide indorsee for value before maturity or dishonor, actual or constructive, or by any subsequent holder through such original in- dorsee. Poorman v. Mills, 39 Cal. 345. 61. Holder -without notice. As a gen- eral rule, a bona fide holder of a negotiable in- strument for a valuable consideration, with- out any notice of facts which tend to impeach its validity, as between the antecedent parties thereto, if he takes it by transfer before the same is overdue or presumptively dishonored, holds the title unaffected by these facts, and may recover thereon, although as between s\ich antecedent parties, the legal validity of the instrument, or the title thereto, may be successfully, impeached. Himmelmann v. Ho- taling, 40 Cal. m. VH. NON-NEGOTIABLE INSTRUMENTS. 62. Pass-book -with bank. A by-law of a savings bank, assented to by its depositors, that the pass-book of each depositor containing his account shall be transferrable to order, does not render such pass-book a negotiable in- strument, and even if it did make it a negotia- ble instrument between the parties, it would not be so as to third parties. Witte v. Vinee- not, 43 Cal. 325. 63. A pass-book of a depositor in a bank in which his account is kept is not a negotiable instrument in a commercial sense, nor can the agreement of the parties make it so. Id. 64. A mere agreement between a bank and its depositors cannot impart the character of negotiability to a mere deposit account, not of itself a negotiable instrument under the law merchant. Id. 1 65. Agreement between parties to in- strument. An agreement between the parties to an instrument, that it may be transferred to order, is not an agreement that it shall become a negotiable instrument. Id. 66. Negotiable security. The character of a security, as being negotiable or other- wise, must appear, 1 not by force of the stipula- tion of the' parties that it shall be such, but must be implied by law as the result of the form and effect of the security itself. Id. NEGOTIABLE SECURITY. See Negotiable Instruments, 65. NEW MATTER. See Pleading, 156. NEW PROMISE. See Actions, 42, 43 ; Limitations, 26-39. H. m. IV. v. VI. NEW TRIAL. Grounds of motion. Surprise. Newly discovered evidence. Excessive damages. Insufficient evidence- Error in law. Notice of intention. Statement. What to contain. Filing and serving. Amendments. Settlement. • Engrossment. Motion. 1. Submission and hearing. 2. When granted. 3. When refused. Practice. Evidence on new trial. I. GROUNDS OP MOTION. 1. 2. 3- 4- 5- 1. 2. 3- 4- 5- 1. Surprise. 1. When available. In cases where the surprise is clearly established and the conse- NEW TRIAL. 265 quences can be avoided on another trial, and where it appears that the party was guilty of no laches, and acted in good faith in failing to apply for relief at an earlier stage of the pro- ceedings, the rule may properly be relaxed so as to enable the party to avail himself of the surprise as a ground for a new trial. Delmas v. Martin, 39 Cal. 555. 2. The general rule is, that the party sur- prised on the trial must apply for relief at the earliest practicable moment and in such method as will produce the least vexation, expense and delay. Id. 3. Finding. Where evidence tending in some degree to establish the value of plaintiff's services was admitted as competent, after ob- jection, the finding that there was no proof of the value of the services was calculated to operate a surprise on the plaintiff, and was therefore erroneous. Hartson v. Hardin, 40 Cal. 264. 4. Amendment during trial. Surprise resulting from an amendment to the'complaint, during the progress of the trial, in the presence * of defendant's attorneys, is not a sufficient ground for granting a new trial. Mendelsohn v. Anaheim Lighter Co., 40 Cal. 657. 5. What not sufficient. Where, in an action for goods sold and delivered, the defend- ant in his answer set up a promissory note as a counter claim, which purported on its face to have been made for value received, and the plaintiffs, in an answer to defendant's cross- complaint, alleged that the note was given without consideration : held, that testimony on the trial by the defendant, in support of the averments in his answer as to the making of the note and the consideration therefor, did not constitute such a surprise to the plaintiffs as to entitle them to a new trial. Armstrong v. Davis, 41 Cal. 494. 2. Newly discovered evidence. 6. Cumulative. A new trial, which was demanded on the grounds of newly discovered evidence which was cumulative, and that the findings of the Court were not supported by the evidence which was conflicting, was prop- erly" refused. Meyer v. Mowry, 34 Cal. 514. 7. "Newly discovered evidence, when cum- ulative merely, furnishes no ground for a new trial ; at least, unless it clearly appears that its production would have changed the result, and that the strictest diligence would not have en- abled the moving party to procure the same at the trial. Levitsky v. Johnson, 35 Cal. 41. 8. Newly discovered evidence, which is only cumulative, furnishes no ground for a new trial. Jones v. Jones, 38 Cal. 584. 9. What sufficient. Sufficient newly dis- covered evidence to support a motion for new trial considered. Armstrongs. Davis, 41 Cal. 494- 10. What insufficient. In an action for the recovery of real property sold under exe- cution, the mere fact that the purchaser — who was not called as a witness— omitted to disclose the fact that at the time of the sale he had no- tice of a, prior conveyance of the same prop- erty, is of itself no ground for a, new trial. Butler v. Vassault, 40 Cal. 74. 11. Diligence required. To entitle him to relief, he is held to a strict proof of dili- gence ; and a general averment is not suffi- cient. He must state particularly what acts he performed, in order that the Court may de- cide whether proper diligence was used. Id. ■ 12. In an action to review a former judg- ment and for a new trial therein, on the ground of newly discovered evidence, it is in- cumbent on the plaintiff to establish that he has been guilty of no laches, and that the fail- ure to produce the evidence on the former trial was imputable to no lack of diligence on his part. Id. 13. Sufficient grounds. When, in eject- ment, the parties claim title derived from a, common source, and the defendant, to show his title the oldest, relies on a purchase made, and a note given for part of the purchase money, and a bond for a conveyance, executed to him by the common grantor, which bond is claimed to be lost, and proves that it was the grantor's custom to give a bond when credit was given, and the plaintiff recovers judg- ment, a subsequent discovery of the note is sufficient ground on which to grant » new trial. Jones v. Singleton, ,45 Cal. 92. 14 . If the plaintiff in ejectment relies on a paper title, and recovers judgment, and after the trial the defendant discovers that prior to the commencement of the action the plaintifE ■ had conveyed the title to a third person, a new trial should be granted. Cranmer v. Porter, 41 Cal. 463. 15. Motions, how regarded. Motions for new trial on the ground of newly discov- ered evidence must be regarded with suspicion and disfavor. In such cases, the motion must be supported by the affidavit of the moving party that he did not know of the newly dis- covered evidence, and usually by the affidavits of the newly discovered witnesses, stating what they know and will testify. The affidavit of the party cannot be received in lieu of the affi- davits of such witnesses, unless for good cause shown it appears that the affidavits of the-lat- ter cannot be obtained in time, or in such fur- ther time as may have been granted for that purpose. Arnold v. Skaggs, 35 Cal. 684. 16. A party who relies on such ground must make a strong case by the best evidence obtainable, both in respect to diligence on his part in preparing for the trial, and as to the truth and materiality of the newly discovered evidence. Id. IV. In suoh a case the moving party must show by his own affidavit that the new evi- 266 NEW TEIAL. dence was not known to him at the time of the trial. • Upon that question, the affidavits of other persons are not sufficient. Id. 18. Diligence must be shown. To en- title a party to a new trial on the ground of newly discovered evidence, it must appear that he used reasonable diligence to discover and produce the evidence on a former trial, and that his failure to do so was not the result of his own laches ; that the newly discovered evi- dence is not simply cumulative, that it is not to impeach an adverse witness, that it is material, and is so important that it would probably have changed the verdict had it been in on the former trial. Stoakes v. Monroe, 36 Cal. 383. 3. Excessive damages. 19. Malicious prosecution. In an action for malicious prosecution, if the damages awarded by the jury are greatly disproportion- ate to the actual damages, the Court may re- gard it as sufficient evidence that the verdict was rendered under the influence of prejudice or passion, and direct a release of part of the damages, or award a new trial. Kinsey v. Wallace, 36 Cal. 462. 20. Objections to form of verdict and excessive damages. Objections to the form of a verdict, or that excessive damages were thereby awarded, can only be made available on motion for a new trial, or on appeal from an order denying a new trial. Campbell v. Jones, 41 Cal. 515. 21. Damages too small. A new trial may be granted to the party who obtained a verdict, when the damages awarded to him are less than he was entitled to. Marianiu. Dougherty, 46 Cal. 26. 22. A verdict for two hundred dollars damages is not a just and fair compensation for the damages sustained, caused by the care- less and reckless taking of human life, and such verdict justifies the Court in granting the plaintiff a new trial. Id. 23. Verdict for excessive damages. If the verdict is excessive the Supreme Court will award a new trial, unless after the remit- titur goes down, the party in whose favor it was rendered files with the Clerk a written consent that the judgment be modified. Ather- ton v. Fowler, 46 Cal. 323. See Appeal, 166, 351 ; Damages, 5, 23. 4. Insufficient evidence. 24. Insufficiency of evidence. If on any material fact the Court finds contrary to, or without sufficient evidence, it is ground for a new trial. Hathaway v. Ryan, 35 Cal. 188. 25. If a verdict be wholly unsupported by the evidence, as to the quantity, quality, and value of the property sued for, it should not be allowed to stand. Campbell v. Jones, 38 Cal. 5°7- 26. Judgment too broad. That the judg- ment is broader than the facts alleged and found will justify, is no ground for a new trial. The remedy is by an appeal from the judgment on the judgment roll. Shepard v. McNeil, 38 CaL 72. 27. Finding contrary to stipulation. If the finding of a fact on a material point is contrary to a stipulation of the parties made in the course of the trial as a substitnte for evidence, a new trial will be granted, on the ground that the finding is contrary to the fact as stipulated, and therefore unsupported by the evidence. Carpentier v. Small, 35 Cal. 346. 28. Disobedience of instructions. A verdict of a jury, in disobedience to the in- structions of the Court, although the instruc- tion itself was not correct in point of law, is a verdict "against law," under Subdivision 7, Section 193, Practice Act. Emerson v. County of Santa Clara, 40 Cal. 543. 29. When not granted. When, there is some competent evidence to support the verdict of a jury, a new trial will not be granted on the ground that it is not supported by the evi- dence. Deffeliz v. Pico, 46 Cal. 289. 30. When granted. If the Court below is of the opinion that the evidence* prepon- derates against the verdict, it is its duty to grant a new trial. Mason v. Austin, 46 Cal. 385- 31. Verdict against evidence. The rule, that where there is a substantial conflict in the evidence, the Supreme Court will not grant a new trial because the verdict is against the weight of evidence, does not apply" to the Court below in which the trial was had. There, if the Judge is satisfied that the verdict is against the weight of evidence, he should grant a new trial, even if there is a conflict in the evidence. Sherman v. Mitchell, 46 Cal. 576. 5. Error in law. 32. Reception of testimony. Objection to the reception of testimony, whether parol, or in the form of depositions, must be made at the trial, and cannot for the first time be raised on motion for a new trial. The absence of the party against whom the evidence is offered makes no difference in the rule. Clark v. Gridley, 35 Cal. 398. 33. When error not ground for new- trial. If the Court erroneously allows res- pondent to introduce evidence upon a matter not denied in the answer, but the appellant is not prejudiced thereby, a new trial will not be granted. Tully v. Harloe, 35 Cal. 302. 34. Erroneous instructions. When it is apparent that the instruction, disregarded by the jury, was.erroneous, and the verdict is in other respects proper, and no injury has NEW TRIAL. 267 been done the party, or can result from the error complained of, the verdict should not be set aside as "against law." Per Crockett, J., dissenting. Emerson v. County of Santa Clara, 40 Cal. 543. 35. It is error for the Cour> to instruct the jury to find upon a question of fact in relation to -which there is no evidence before them. Whitman u. Steiger, 46 Cal. 256. On Misconduct of Jury, see Criminal La-w- and Praotice, 3SD V II. NOTICE OP INTENTION. 36. Reasons to be stated. The reasons for which a motion for a new trial will be made may be stated generally in the notice that such motion will be made. Butterfield v. C. P. P. E. Co., 37 Cal. 381. 37. When to be given. If , in an action to obtain the specific performance of a contract, and to have an account taken, the principles upon which the account is to be taken are not raised as issues in the pleadings, but an issue is made only on the plaintiff's right to have the account taken, and. the Court enters an in- terlocutory judgment, that the plaintiff is en- titled to a specific performance, and to have an account taken, and orders a reference to take the account on principles fixed in the order, a notice of motion for a new trial need not be given until ten days after the confirmation of the report of the referee. Harris v. S. P. S. E,., 41 Cal. 393. 38. Order extending time. An order ex- tending time to prepare and file motion for a new trial, extends the time to prepare and file a notice of motion for a new trial. Cot- tle.u. Leitch, 43 Cal. 321. 39. Extending time to give notice. If an order is made extending the time in which to give notice of a motion to move for a new trial, and the party gives such notice before the statutory time expires, he derives no bene- fit from the order. Id.. 40. Notice of filing findings. If, after the findings of fact are filed, a notice of mo- tion for a new trial is given, before the serv- ice of notice of filing such findings, notice of, such filing is rendered unnecessary. Id. 41. Time to move for new trial when no findings asked. When written findings are not requested, and none are filed at the time of the decision of a cause tried by the Court, the time within which a party intend- ing to move for a new trial shall file and serve his notice will commence running from the time of service of written notice of the decis- ion. Polhemusa. Carpenter, 42 Cal. 377. 42. Time to move for new trial when findings duly requested. When written findings are duly requested, as provided in Sec- tion 180 of the Practice Act, as amended in 1866, the Court is bound, and on proper pro- ceedings will be required to file them ; and a party will have ten days after written notice of the filing to move for a new trial. Id. 43. Right, when lost. The right to give notice of intention is lost when the right to move for a new trial is lost, and the right can- not be restored by an order of the Court. Thompson v. Lynch, 43 Cal. 482. 44. Failure to serve notice. A failure to serve a notice of intention to move for a new trial is immaterial, when it appears from the record that the appeal was from the judgment and not from the order denying the new trial. Young v. Kosenbaum, 39 Cal. 646. 45. Order, when not reviewable. Where notice of intention to move for a new trial is not given to the adverse party, nor waived by appearance or otherwise, an order denying the new trial cannot be reviewed on appeal. Wright v.. Snowball, 45 Cal. 654. 46. Notice of motion for new trial. An order extending time to prepare and file motion for a new trial, extends the time to prepare and file notice of motion for new trial. Cottle v. Leitch, 43 Cal. 320. See Appeal, 53. m. STATEMENT. 1. What to contain. 47. Specification of errors relied on. It is not enough that in the history of a case exceptions appear scattered here and there through a statement made on motion for- a new trial ; but it is necessary in the statement , to specify the particular errors upon which a party will rely. Beans v. Emanuelli, 36 Cal. 117. 48. Statement of grounds. If, at the close of a statement on motion for new trial, the moving party says that he " will rely on the argument 'of the motion for new trial in this cause upon the following grounds,' ' and then enumerates his grounds, he will be con- ' sidered as abandoning all the grounds not enumerated. Id. 49. Of errors. On appeal from an order denying a new trial, this Court will not re- view the action of the Court below in refusing an instruction asked by the appellant to be given to the jury, although at the time duly excepted to, where the appellant failed to in- clude it in his specification of errors on motion for a new trial. Richardson 11. Kier, 37 Cal. 263. 50. An assignment of errors at common law, even if included in a statement on motion - for a new trial, is not such a specification of the errors upon which a party will rely as is required by our Practice Act. Butterfield u. C..P. B..E. Co., 37 Cal. 381. 268 NEW TRIAL. 51. An assignment of errors appended to the end of a transcript, but not included in the statement on motion for a new trial, is not a specification of the particular errors upon which the party will rely, even if sufficient in form as such specification. The specification must be in the statement itself. M. 52. Grounds of motion. The grounds of a motion for a new trial are indispensable to the statement. They constitute its basis, and if they are wanting, the statement should be disregarded. Spencer v. Long, 39 Cal. 700. 53. When a motion for anew trial is made on a statement, no point will be considered by the Court, and no alleged error will be noticed, unless it is specified under one of the grounds of the motion. Hawkins v. Abbott, 40 Oal. 639- 54. Particular specification required. The specification of reasons why a new trial should be granted, to be made in the state- ment, is not a general one of errors, in admit- ting or excluding the evidence, as set forth in the foregoing statement, but a particular spec- ification, and a pointing out and reference to each alleged error. Peoples. C. P. R. R. Co., 43 Cal. 398. 55. The appellant from an order denying. a new trial cannot avail himself of an error ap- pearing in the statement, unless he mentions it in his specification of reasons why a new trial should be granted. Himmelmann v. Hoad- ley, 44 Cal. 213. 56. Error in granting nonsuit. When a nonsuit is granted, and the plaintiff makes a statement on motion for a new trial, in the specification of reasons why a new trial should be granted, he must insert the alleged error of granting a nonsuit. McCreery v. Everding, 44 Cal. 284. 57. Sufficient specification. It is suffi- cient in the specification made in the state- ment on motion for a new trial, of reasons why a new trial should be granted, to assign errors in law occurring by " giving of each of the instructions asked* by the defendants." Such specification sufficiently points out the particular errors in the instructions relied on. McCreery v. Everding, 44 Cal. 246. 58. Erroneous findings. When the find- ings of fact are defective, the remedy is by motion in the statutory mode, in the first in- stance, for their correction ; while, if made contrary to the evidence, the remedy is by specifying the erroneous findings on motion for new trial. Pralus v. Jefferson G-. & S. M. Co., 34 Cal. 558. 59. Finding contrary to evidence. If the moving party, on motion for new trial, intends to rely on the point that a finding of fact is contrary to the evidence, he should specify in his Statement wherein such finding is not justified by the evidence. It is not sufficient for him to state generally that the evidence is insufficient to justify the findings,'" Beans v. Emanuelli, 36 Cal. 117. 60. Verdict against law. The allega- tion in the statement, on a motion for a new trial, that the verdict is against law, is not sustained by showing that it is not justified by the evidence. Brumagim v. Bradshaw, 39 Cal. 24: 61. Judgment against evidence. A statement on motion for a new trial must con- tain the specifications particularly pointing out wherein the judgment is not warranted by the evidence, or wherein the facts found are contrary to the evidence, or what the errors in law were, if the new trial is asked on said grounds, or it will be disregarded. Kusel u. Sharkey, 46 Cal. 3. 62. Insufficiency of evidence. Where, notwithstanding written findings have been filed, the judgment rendered therein rests upon other findings of fact not expressed, but which will be implied, it is competent for the losing party, without excepting for the want of express findings, to move for a new trial on the ground, among others, that the evidence is insufficient to sustain the findings of the Court — under which specification he may avail himself of the insufficiency of, the evidence to sustain the implied, as well as the expressed findings of fact. Morrill v. Chapman, 35 Cal. 85. 63. Where the statement on motion for new trial fails to state the particulars in which the evidence is claimed to be insufficient to sustain the verdict, the point will be disre- garded on appeal. Reamer v. Nesmith, 34 Cal. 624. 64. Where a statement on motion for new trial fails to " specify the particulars " wherein the evidence is insufficient to justify, or is contrary to the findings of fact, such findings will not be reviewed on appeal as to their suffi- v v ciency in those respects. Pralus v. Pacific G-. & S. M. Co., 35 Cal. 30. .-,- 65. Where a statement on motion for a new trial fails to specify wherein the evidence is ,, insufficient to justify the decision, such insuffi- ciency as a ground of the motion will be disre- garded. Sanchez v. McMahon, 35 Cal. 218. 66. To show proofs. Where the state- ment on motion for a new trial did not contain that part of the evidence upon which the sufficiency of which the truth of said implied findings of fact depended, bat showed merely ( that the moving party, at the trial, "intro- - duced evidence tending to prove' ' a state of facts adverse to those thus impliedly found, and the express findings were clearly sustained by the evidence set out in the statement : held, that the statement was insufficient to show the moving party entitled to a new trial, because it did not appear that said evidence which "tended to prove," amounted, in fact, to proof of said state of facts. Morrill v. Chap- man, 35 Cal. 85. NEW TRIAL. 269 67. Particulars to be specified. A statement on motion for a new trial must con- tain a specification of the particular errors upon which the party moving for a new trial will rely ; and if one of the grounds is that the evidence is insufficient to justify the verdict, it must specify the particular in which the evi- dence is sufficient, or it will be disregarded by the Court. Butterfield v. C. P. R. R. Co., 37 Oal. 381. 68. Under Section 195 of the Practice Act, this Court cannot review the action of the Court below in refusing a new trial, if the statement upon which the motion is founded fails to specify the particulars in which the evidence is insufficient to justify the decision, and there be no errors of law, except on the assumption that the decision was contrary to the evidenee. Green v. Killey, 38 Cal. 201. 69. The appellate Court will not review any finding of fact by the Court below, un- less the statement on motion for a new trial specifies the particulars in which the evidence is alleged to be insufficient to justify the find- ings. Spanagel v. Dellinger, 38 Cal. 278. 70. If the statement on motion for a new trial fails to specify wherein the evidence was insufficient to justify the verdict, the appel- late Court is precluded, by the statute, from all inquiry upon that subject, notwithstanding the statement purports to contain all the evi- dence given on the trial. Brumagim v. Brad- shaw, 39 Cal. 24. 71. A statement on a motion for a new trial, which does not specify particularly wherein the evidence is insufficient to sustain the judgment, nor any error alleged to have occurred at the trial,'is insufficient. Harding v. Vandewater, 40 Cal. 77. • 72. Points as to sufficiency of evidence ■waived, if not presented, below. The points that the evidence failed to establish a compliance with the conditions precedent of a deed under which the prevailing party claimed, and that the evidence failed to show that the property in controversy was within the calls of such deed, cannot be urged bi the' Supreme Court; if not specified as grounds of a motion for a new trial. Foote v. Richmond, 42 Cal. 439- 73. On a motion for new trial the general ground of insufficiency of the evidence to jus- tify the findings is of no avail, unless there are proper specifications of particulars wherein it is insufficient. Id. * 74. Presumptions. The presumption is that all the testimony is included in a state- ment on motion for new trial, unless the con- trary appears. Clark v. Gridley, 35 Cal. 398. 75. What need not be inserted in statement. Newly discovered evidence re- lied on to obtain a new trial has no place in a statement. It should be presented in affida- vits. Beans v. Emanuelli, 26 Cal. 117. 76. The judgment roll need not be inserted in a statement on motion for a new trial. But- terfield v. C. P. R. R. Co., 37 Cal. 381. 2. Filing and serving statement. 77. Waiver of motion for new trial by failure to file statement. A failure to file a statement, on motion for new trialj within time, amounts to a waiver of the motion. Campbell v. Jones, 41 Cal. 515. 78. A failure to file a statement, on motion for a new trial, within the time fixed by stip- ulation, is a waiver of the right to make the motion. Thompson v. Lynch, 43 Cal. 482. 79. Extending time to file. Under Sec- tion 195 of the Practice Act, either the Court or a Court Commissioner may extend the time for filing a statement on motion for a new trial twenty days beyond the five or ten days given by statute. Carrillo v. Smith, 37 Cal. 337.. 80. Judge's promise of order not enough. Where a Judge, on being asked to extend the time for filing a statement on mo- tion for new trial, said that he would have an order to that effect entered of record at the meeting of the Court, but failed, by oversight, to have it done : held, that the time was not extended. Campbell v. Jones, 41 Cal. 515. 81. Order extending time to file state- ment. An order extending the time for filing statement, on motion for new trial, should in all cases be in writing, and either entered on the minutes of the Court, in open session, or signed by the Judge, and filed within the time prescribed by Section 195 of the Practice Act. Campbell v. Jones, 41 Cal. 515. 82. An order extending the time in which to file a statement on motion for a new trial, thirty days beyond the time allowed by law, can only have the force of extending such time twenty days. Cottle v. Leitch, 43 Cal. 320. 83. Service of statement. A statement on motion for a new trial need not be served unless there is a rule of Court requiring service. The statute only requires such statement to be filed. Brundage v. Adams, 41 Cal. 619. 84. Order striking new trial statement from files. "Where a statement on motion for new trial was filed in time, but nolj served on the opposite party, and for this reason the Court, on motion, struck it from the files : held, that such striking from the files was error. Calderwood v. Peyser, 42 Cal. in. 85. Statement on motion for new trial never to be stricken out. While a motion for a new trial may be denied, for failure to serve the statement on the opposite party, an order striking such statement from the files cannot be properly made under any circum- stances. Such statement need not be served on the opposite party. Id. 270 NEW TRIAL. 3. Amendments to statement. 86. Waiver of notice. Proposing amend- ments to a statement on motion for a new trial is a waiver of a failure to serve a notice of the motion, unless the party proposing the amend- ments makes the objection, or reserves his right •to make it, when he proposes his amendments. Brundage v. Adams, 41 Cal. 619. 87. Stipulations. If a statement on mo- tion for a new trial is prepared, which omits a •specification of the points upon which the moving party will rely, and both parties stipulate that it is correct, and it is filed, the moving party may afterwards, and within the time allowed to file the statement, amend, by adding such specifications, and it is fhe duty of the Court to settle the same, and allow the other party to suggest amendments to make it conform to the truth. Lucas v. City of Marys- ville, 44 Cal. 210. 88. After a proposed statement on motion for a new trial has been made, and amendments have been proposed and allowed by the Court, a stipulation of counsel, that the engrossed statement may be made by writing in the pro- posed statement the amendments, and when so engrossed, the same shall be the statement, and that the exhibits and documents referred to in the statement may be used on the argument, without being copied into the statement, but shall be inserted in the transeript on appeal, and a stipulation added to the engrossed state- ment, that it is the engrossed statement, as set- tled by the Judge, and engrossed according to the former .stipulation, are equivalent to the certificate, as provided in the statute. Me- Creery u.,-Everding, 44 Cal. 246. 89. Waiver of notice of motion for new trial. If a party who does not give no- tice of motion for a new trial files a statement, and the opposite party settles the statement, or files amendments, and the statement is set- tled without reserving his right to object for want of notice, he waives 'the notice. Hobbs v. Duff, 43 Cal. 485. 90. Filing amendments to statement. Proposing amendments to a statement is not a waiver of the objection that the statement was not filed in time, if such objection is reserved, and no particular form of reserving the objec- tion is required. Cottle v. Leitch, 43 Cal. 321. 4. Settlement of statement. 91. Practice as to settling statements. The practice which prevails in some of the low- er Courts, of submitting a motion for a new trial and not preparing the statement until after the motion has been denied, is irregular and not to be tolerated. Waggenheim v. Hook, 35 Cal. 216. 92. Such statement should be settled by the Judge, and certified by him before the motion is decided. Id. 93. A paper containing the grounds of a motion for a new trial, if unsigned, constitutes no part of the statement. Spencer v. Long, 39 Cal. 700. 94. Settlement of statement. It is the duty of the Court to settle a proposed state- ment in all cases where the attorneys are un- able to agree to it as filed, no matter what rea- sons exist which render them unable to agree to it. Lucas v. City of Marysville, 44 Cal, 210. 95. New trial in County Court. New trials may be granted by the County Court in cases of appeal from the judgment of a Jus- tice of the Peace, and it is the duty of the County Judge to settle a statement or motion for a new trial which has been duly filed and presented to him for settlement. Cummings v. Irwin, 40 Cal. 354. 5. Engrossment. 96. Statement to be engrossed.. The Court should not decide a motion for a new trial before the statement, as settled, has been engrossed and certified as correct. Morris v. DeCelis, 41 Cal! 331. 97. Duty of Clerk. It.is not the duty of the Clerk of the District Court to engross the statement either on new trial or appeal ; nor is it his duty when a copy of a statement is re- quired, to insert any document which is merely referred to and directed to be inserted. Peo- ple v. Bartlett, 40 Cal. 142. 98. Exhibits. Exhibits referred to in a statement on motion for a new trial, but which are not copied into the statement, will be deemed to have been considered on the hear- ing of the motion. People v. Bartlett, 40 Cal. 142. 99. A copy of the statement on motion for a new trial which is made a part of the state- ment on appeal from the order granting a new trial, and in which certain exhibits are referred to and directed to be incorporated therein but are not inserted, does not tend to show that such exhibits were not considered on the hear- ing of the motion for a new trial. Id. 100. New trial statement treated as such, though called statement on appeal. Where a transeript on appeal showed that a notice of motion for new trial was given and argued in due time, and that the points made on such motion could not properly be consider- ed without a statement on such motion, and that no objection was made on such motion for want of such statement ; and the transcript contained a statement manifestly intended as a statement on new trial, but headed " State- ment on Appeal" : held, that such statement should be treated as a statement on motion for a new trial. Morris v. Angle, 42 Cal. 236. NEW TKIAL. 271 IV. MOTION, i. Submission and hearing. 101. Review. The only regular way for the Court to review its former action is on a motion for a new trial. Prinoe v. Lynch, 38 Oal. 528. 102. Evidence. The question whether the evidence is sufficient to sustain the verdict, or finding, or decision, can be presented only on a motion for a new trial. Yates v. Smith, 40 Cal. 66a. 103. Submission of motion. Even if the statement has been settled, engrossed and certified, and filed as correct, the Court should not pass on the motion for a new trial, until it has been submitted for decision, and the par- ties afforded an opportunity to be heard if de- sired. Morris v. De Celis, 41 Cal. 331. 104. Granting motion, -when error. Where a motion for a new trial, made by de- fendant, was granted by the Court without any formal or actual submission of the motion, and. without any notice, so as to give the plain- tiff an opportunity to be heard : held) error. De Gaze v. Lynch, 42 Cal. 363. 105. What questions considered. On a motion for a new trial no questions can be entertained except those which affect the verdict or finding on the issues. Per Saw- yer, C. J., Crockett, J., concurring. Span- agel v. Dellinger, 38 Cal. 279. 106. No question as to the sufficiency of a complaint can be entertained in any proceed- ing to obtain a new trial. Id. 107. Laches. A failure to prosecute a motion for a new trial for the space of three months, does not constitute such laches as will warrant an interference with the discretion, which, in such cases, is properly exercised by the Court below. Chabot v. Tucker, 39 Cal. 434- 108. Dismissal of, for want of pros- ecution. An order denying and dismissing a motion for a new trial for want of due dili- gence in bringing the. same to a hearing, as required by the Practice Act, (Section 196) rests in the sound discretion of the Court. Boggs v. Clark,. 37 Cal. 236. 109. Discretion of the Court or Judge. An order made upon a motion to dismiss an ap- plication for a new trial, on the ground that the same has not" been prosecuted, with due diligence, is very much in the discretion of the Court or Judge making it ; and unless it is apparent that such discretion has been abused, the- order will not be reversed. Hopkins v. W. P. R. P. Co., 44 Cal. 389. 110. In an action by B against C, pending in the Seventh District Court for Napa County, in which B recovered judgment, in said county, on the eighth of June, 1867, an order of Court was entered on the same day, by consent, that C have sixty days in which to prepare and file statement on motion for new trial. On the nineteenth of June, notice of said motion was duly filed and served, and on the sixth day of August following, C filed his statement on said motion, and gave plaintiff's attorney notice thereof. 'On the first of October following, B's attorney duly filed notice, and served the same on C's attorney, that, on the seventh of Octo- ber, he would move the Court to dismiss said motion, on the ground that C had not pre- sented the same within a reasonable time after the filing of said statement. On the day fol- 1 lowing, (October, 2d) C's attorney served. 'B's attorney with notice that he would proceed with his motion for a new trial on said seventh day of October. On the eighth day of Octo- ber, (both of said motions having ' been con- tinued from the previous day) the Court granted B's said motion to dismiss. The term of said Court commenced in Solano County, which is in the same Judicial District and ad- joins Napa County, on the sixteenth day of September, 1867 : held, that the Court did not so abuse its discretion in making said order as to justify its reversal. Boggs v. Clark, 37 Cal. 236. 111. Diligence in prosecuting motion 1 for new trial. If a judicial district is com- posed of several counties, and a, ^statement on motion for a new trial is made and settled in one of these at the same term the judgment was rendered, the motion is prosecuted with diligence if brought to a hearing at the next term held in the county where judgment was rendered, although two terms may have inter- vened in other counties in the same district. Simmons v. Goin, 45 Cal. 669. 112. Diligence, or the want of it, in dis- covering testimony in a particular case, de- pends in so great a degree upon the various circumstances surrounding the parties, and the conduct of the cause, which are peculiarly within the knowledge of the trial Court, that its determination on the -matter of grantiiig^a new trial, made in view of them, will rarely be disturbed. Jones v. Singleton, 45 Cal. 92. 113. , Where there has been no service. If a defendant, against whom judgment by de- fault has been rendered, moves, on affidavits, for a new trial, because the Court has ac- quired no jurisdiction over his person, and the Court finds that there has been no service on him, and grants a, new trial, plaintiff, on his appeal from the order, cannot complain of the > order because it grants the defendant relief less advantageous to him than that to which he was entitled. Carpentier v. Small, 35 Cal. 346. 114. What affidavits must show. The affidavits in support of a motion for a new trial, on the ground of newly discovered evi- dence in a criminal case, must set forth such evidence as would be received on the trial. People v. Voll, 43 Cal. 166. 115. Must be identified. When an ap- 272 NEW TRIAL. plication for a new trial is made on affidavits, the affidavits used in the hearing of the motion must be identified, by the indorsement of the Judge or Clerk, made at the time of the hear- ing, as having been read or referred to on the argument. The ordinary indorsement of filing by the Clerk is not sufficient. Johnson v. Muir, 43 Cal. 542. 116. Must be made a part of the record. Affidavits used on a motion for a new trial will not be considered on appeal, unless they are made a part of the record, by being identified as having been used on the hearing of the motion, or are made a part of the state- ment. Leszinsky v. White, 45 Cal. 278. 2. , When granted. 117. Finding contrary to stipulation. If the finding of a fact on a material point is contrary to a stipulation of the parties made in the course of the trial as a substitute for evi- dence, a new trial will be granted, on the ground that the finding is contrary to the fact as stipulated, and therefore unsupported by the evidence. Carpentier v. Small, 35 Cal. 346. 118. New trial unconditionally. If the statement shows that too high a rate of inter- est was allowed by the jury, upon an account sued on for a part of the time, a new trial will be granted unconditionally, unless it appears that plaintiff had not kept his account for the residue of the time upon the erroneous basis of interest, and he will consent to remit the ex- cess. Clark v. Gridley, 35 Cal. 398. 119. Reception of improper evidence. It is error for the Court which tried a cause without a jury, to deny a motion for a new trial, when it admits that improper evidence was received on the trial, even though, in its opinion, the finding and judgment would have been the same if the improper testimony had not been received. Spanagel v. Dellinger, 38 Cal. 278. 120. Findings unsupported by evidence. When findings are wholly unsupported by the evidence, it is the duty of the Court to set them aside and grant a new trial. Moss v. Atkinson, 44 Cal. 3. 121. Verdict against admissions. The granting of a new trial on the ground that the verdict of the jury was against the admissions of the defendant, who was called as a witness, is a decision of the Court that the evidence was insufficient to justify the verdict. Lorenz- ana v. Camarillo, 41 Cal. 467. 122. Trial defined. Although the Court excludes all evidence on the part of the plain- tiff, and renders a judgment for the defendant, yet a trial is had, in the sense in which the Court may grant a new trial, on application of the plaintiff. Moore v. Bates, 46 Cal. 29. 3. When not granted. 123. Error which does no harm. A new trial will not he granted by reason of an error committed during the trial, which does- the moving party no harm. Gambert v. Hart, 44 Cal. 542. 124. Evidence to justify verdict. Where the verdict is a general one, and there is sufficient evidence to justify the verdict on one of the issues, the verdict will not be set aside. Crossett v. Whelan, 44 Cal. 200. 125. Newly discovered evidence. A new trial will not be granted on account of newly discovered evidence, if the same was cumulative, or if with proper diligence it might have been procured on the former trial. Russell v. Dennison, 45 Cal. 337. 126. Conflicting evidence. The Court will not grant a new trial on the ground that the verdict was not warranted by the evidence, if there was a substantial conflict in the evi- dence. Scholes v. Universal Life Ins. Co., 42 Cal. 523. 127. A verdict will not be disturbed as against evidence, where there is a substantial conflict of evidence. Livermore v. Stine, 43 Cal. 275. 128. A new trial will not be granted on the ground of the insufficiency of the evi- dence to justify the judgment, if there is a substantial conflict in the evidence. Price v. Sturgis, 44 Cal. 591. 129. A new trial will not be granted on the ground of newly discovered- evidence which is in conflict with the evidence given on the trial. People v. McCauley, 45 Cal. 146. 130. Excessive damages. The verdiot will not be disturbed, on motion for new trial unless the amount is so large as to induce a reasonable person, upon hearing the circum- stances, to declare it outrageously excessive, or as to suggest at the first blush, passion, or prejudice, or corruption on the part of the jury. Wheaton v. N. B. & M. R. R. Co., 36 Cal. 590. 131. "When not necessary. A new trial is not necessary where all the necessary facts are found upon which to base a judgment, and a mere computation is required to ascertain the amount for which judgment shall be entered. People v. S. B. Q. M. Co., 39 Cal. 511. V. PRACTICE. 132. In proceedings to condemn land. The provisions of the Practice Act in relation to new trials have no application to a motion to set aside the report of Commissioners ap- pointed to assess damages for taking land for public uses. Central P. R. R. v. Pearson, 35 Cal. 247. 133. Mandamus. In a suit for manda- NEW TRIAL. 273 mus brought in the Supreme Court, where questions of fact are referred to a District Court, a motion for a new trial must he made in the Supreme Court. People v. Holloway, 41 Cal. 409. 134. Partition. An action for a partition of real estate is as completely within the opera- tion of the Practice Act as any other civil action for the conduct of which rules of pro- cedure are therein prescribed. Sections 193 and 195 of that Act apply to a motion for a new trial in proceedings on partition. Tormey u. Allen, 45 Cal. 119. 135. Provisions directory. The one hundred and ninety-sixth section of the Code, providing that " the Court or Judge granting or refusing a new trial shall state, in writing, the grounds upon which the same is granted or refused," is directory only, and his failure to comply with it does not render his order void. Borkheim v. Fireman's Fund Ins. Co., 38 Cal. 505. 136. Right of parties to be heard. Where, upon defendant's motion for new trial, the statement was settled, (though not en- grossed) and defendant gave notice of hearing, .but nothing further was done until afterward, ■upon the overruling of a like motion in a similar case, plaintiff asked that this motion, also, should be overruled, to which defendants objected, and insisted upon being heard ; after- ward, the Court, without notice to either party, or any formal or actual submission of the motion, granted a new trial : held, that the order was prematurely and improvidently made. DeGaze v. Lynch, 42 Cal. 363. 137. Stipulation as to hearing motion. Parties may stipulate that the Court pass on a motion for a new trial before the statement is engrossed, and the engrossed statement agreed to or certified as correct. Thompson v. Con- nolly, 43 Cal. 436. 138. Setting aside order made on mo- tion for new trial. If a motion for a new trial is decided by the Court beforeit has been submitted, the order denying or granting the new trial should be set aside as improvidently made, if application is made therefor. Morris v. DeCelis, 41 Cal. 331. 139. Duty of Court to vacate order in- advertently made. Where a Court, through its own inadvertence, has prematurely made an order granting a motion for a new trial before the final submission of the motion, it is the duty of the Court, upon its own motion, to vacate the order so made. Hall v. Polack, 42 Cal. 219. 140. Vacating order denying new trial. When an application for a new trial has been made in due form, upon a settled statement, and the Court has passed on the motion, the order made is conclusive, so far as the Court making it is concerned. The Court cannot afterwards vacate the order and decide again CAL. BIG. SUP. 18. on the motion. Coombs v. Hibbard, 43 Cal. 4S2v 141. Compliance with conditional order granting new trial. When an order is made granting a new trial to several defend- ants, on condition that the defendants pay the costs of the action up to date, a payment by the defendants to the plaintiff of the costs of the action made prior to the date of the order, is a compliance with the condition, and a pay- ment made by one of the defendants, and not by all, is also a compliance. Sherman v, Mitchell, 46 Cal. 576. 142. If an order is made granting a new trial to the defendants, on the compliance by them with certain conditions, and the con- , ditions are complied with, the Court cannot, 1 on a motion to vacate the order, look beyond the question as to whether the conditions have been complied with, and undertake to investi- gate arrangements concerning the action made between the defendants themselves. Id. See Appeal ; Eminent Domain, 45-47 ; Crim- inal Law and Practice, 341-359 ; Equity, 43-45 > Findings, 29-31 ; Partition, 21, 22 ; Reference, 7-9 ; Trial, 72, 73 ; Verdict, 7. ' VI. EVIDENCE ON NEW TRIAL. 143. Action for partition. On a new trial of an action for the partition of lands or- dered by this Court on appeal, the parties are entitled to use the documentary evidence, maps, exhibits, etc., used at the former trial ' and remaining on file in the Court below, in- cluding the report of the testimony as taken by the referees before whom such trial was had, subject, however, to objection as when first offered. Gates v. Salmon, 35 Cal. 576. 144. After appeal. Parties to an action on a new trial are not precluded by the decis- ion of this Court on a former appeal from prov- ing facts which were not before the Court, and upon whose legal effect there was no adjudica- tion on that appeal, nor from introducing new proofs in support of the complaint or defense, as the case may be. Ryan v. Tomlinson, 39 Cal. 639. 145. Testimony of a party may be used as evidence. On the second trial of a cause the plaintiff may introduce the testimo- ny of the defendant given on a former trial, even if the defendant is present in court. Lo- renzana v. Camarillo, 45 Cal. 125. 146. Testimony of deceased witness. The prosecution, on a second trial for a crime, may prove what a witness, since deceased, testi- fied to on a former trial. People v. Murphy, 45 Cal. 137. 274 NONNEGOTIABLE INSTRUMENTS.— NUISANCE. NONNEGOTIABLE INSTRUMENTS. See Negotiable Instruments, 62-66. NONSUIT. 1. Right to move for. The defendant is not precluded from moving for a nonsuit, be- cause he permitted the testimony to be intro- duced without objection, when the testimony of the plaintiff proves a contract different from that declared on. Johnson v. Moss, 45 Cal. < 2. Motion for. If the defendant in eject- ment moves for a nonsuit, and intends to rely on the point, that a deed offered in evidence by the plaintiff, and which was admitted with- out objection, does not include the demanded premises, he. should distinctly so state in his motion. Sanchez v. Neary, 41 Cal. 485. 3. What considered on. In an action on a promissory note by an indorsee, neither of the questions, whether plaintiff is a holder as an agent, or for value, can be considered on a motion for nonsuit. Poorman v. Mills, 35 Cal. 118. 4. When may be granted. A Court is justified in granting defendant's motion for nonsuit, after the evidence on both sides had been heard, in a case where, if the motion had been denied and a verdict found for plaintiff, it would have been set aside as not supported by, but contrary to, the evidence. Geary v. Simmons, 39 Cal. 224. 5. On opening statement. A defendant moving for a nonsuit on the plaintiff's opening statement, upon a specified ground, on which ground alone the motion is granted, will not be allowed to raise the point for the first time in the Supreme Court that the statement was otherwise insufficient. Eaimond v. Eldridge, 43 Cal. 506. 6. Action for the recovery of land. In an action for the recovery of land, possession gives tbe better right against a mere intruder, and when the possession is shown in the plain- tiff, a nonsuit should not be ordered. Wolfs- kin v. Malajowich, 39 Cal. 276. 7. For variance. "When the plaintiff proves a contract essentially different from the one declared on, the defendant is entitled to a non- suit on the ground of variance. Johnson v. Moss, 45 OaL 515. 8. Damages for negligence. In an ac- tion for damages for injury caused by negli- genoe, a nonsuit upon the ground of contribu- tory negligence should only be granted when, giving the plaintiff the benefit of all contro- verted questions, it is apparent to the Court that a verdict in his favor must necessarily be set aside. Schierhold v. N. B. & M. E. E. Co., 40 Cal. 447. 9. A dismissal of action. A nonsuit granted on motion of the defendant is equiva- lent in its operation on the action to a dismis- sal with the consent of the defendant, even if the defendant has set up new matter and asked for affirmative relief in his answer. Wood v. Eamond, 42 Cal. 643. 10. May be waived and judgment taken on merits. A defendant, conceiving that the plaintiff has failed to prove his case, may waive a motion for a nonsuit, and pro- ceed to prove his own case, and have judg- ment on the merits. Wood v. Eamond, 42 Cal. 643. 11. Judgment on merits not to be taken after nonsuit. If a defendant move for a nonsuit, and it be granted, he cannot have judgment on the merits. Wood v. Eamond,, 42 Cal. 643. See Appeal, 81, 127 ; Ejectment, 42 ; Nego- tiable Instruments, 35 ; New Trial, 56. NOTARY. See Acknowledgment, 1, 5 ; Witness, 6. NOTICE. See Appeal, 55-70; Common Carrier, 13; Contract, I ; Conveyances, 6, 8, 1 1 ; Land and Land Titles, 64, 285, 286, 316, 317; Landlord and Tenant, 10, 11, 14-17 ; Lis Pendens, I,; Me- chanics' Lien, 18; Mortgage, 11, 56; Nego- tiable Instruments, 25, 28; New Trial, 36-46; Orders, 1 ; Powers, 1 ; Principal and Agent, 1 ; Probate Law and Practice, 5 ; Eight of Way, 1 ; Eoads and Highways, 2, 5-7 ; Streets and Street Assessments, 32, 33 ; Writ of Assist- ance, 4. NUISANCE. I. What is. n. Jurisdiction. III. Actions to abate. I. WHAT IS A NUISANCE. 1. Diversion of water. The diversion of the waters of navigable stream may be both a public and a private nuisance. Tolo County v. City of Sacramento, 36 Cal. 193. 2. Wingdam. In so far as a wingdam in a navigable river obstructs the navigation, it is a public nuisance ; but if it obstructs the rec- lamation of swamp lands, it is a private nuis- ance. Id. NUISANCE.— OFFICE AND OFFICER. 275 3. Obstruction of a highway. The ob- struction of a public highway is a common nuisance. L. T. Co. ».' S. & W. W. R. Co., 41 Cal. 562. See Railroads, 11 ; Mines and Mining, 14. H. JURISDICTION. 4. District Courts. District Courts have jurisdiction in actions to prevent or abate a nuisance. Yolo County v. City of Sacramento, 36 Cal. 193. 5. County Court. In an action to abate a nuisance and to recover damages, the County Court has no jurisdiction of the action for damages, except as an incident to its power to abate the nuisance. Grigsby v. The Clear Lake Water Co., 40 Cal. 396. 6. If the nuisance had been abated prior to the commencement of the action, the County Court has no jurisdiction for any purpose. Id. IT!. ACTIONS TO ABATE. 7. Continuance of. — Notice. A party who continues a nuisance, but is not the original creator of it, is entitled to notice that it is a nuisance, and a request must be made that it may be abated before an action will lie for that 1 purpose, unless it appear that he had knowledge of its hurtful character ; where the extent of the nuisance is increased by such party, the rule is otherwise. Grigsby v. Clear Lake W. Co., 40 Cal. 396. 8. Person injured may sue. A pub- lic nuisance may also be a private nuisance, and if so, the person thereby injured may have his action. Yolo County v. City of Sacra- mento, 36 Cal. 193. 9. Damages. The plaintiff, in an action < for nuisance, cannot recover damages for in- juries which affect the public generally ; but if he has suffered damages peculiar to himself, it becomes, to that extent, a private nuisance for which he may recover. Grigsby v. Clear Lake Water Co., 40 Cal. 396. 10. A party cannot have an action to abate a public nuisance. The remedy is by indictment, or, if this is too tardy, equity may interpose upon the information of the Attorney General. Yolo County v. Sacra- mento, 36 Cal. 193. 11. Obstruction to public road. A private individual cannot maintain an action to prevent or abate a nuisance, caused by ob- structing a public highway, unless he shows some special damage to him, in addition to that received by the public. Aram v. Shallen- berger, 41 Cal. 449. 12. Action by private person. A pri- vate person has no cause of action by reason of such obstruction, unless he has suffered some special damage. In order to maintain an action for such damage, it must be such as might legitimately flow from the nuisance. L. T. Co. v. S. W. W. R. Co., 41 Cal. 562. 13. Who may sue for obstructing pub- lic road. The facts that the parties who bring an action to prevent or abate a nuisance, caused by obstructing a public road, own land fronting on the road, and have no other means of access to their lands except over and along the road, do not show such special damage to the plaintiffs, in addition to that sustained by the public, as enables them to maintain the ac- tion. Aram v. Shallenberger, 41 Cal. 449. 14. Remedy by action for damages. Where the acts complained of amount to nuis- ance, for which the person injured may have his action to abate the nuisance, he is not lim- ited to that remedy, but may sue to recover damages sustained by the wrongful acts of the defendant. Will v. Sinkwitz, 41 Cal. 588. 15. Damages by overflow of water. A party is not liable for damages done to an- other's land, by an overflow of water from his own land, if the overflow is caused by a heavy fall of rain, increased by the additional mo- mentum given to the water before it reaches the defendant's land by ditches dug by a third person. Mathews v. Kinsell, 41 Cal. 512. 16. Flowing water on laud. Where a person has no control over the property lying on a declivity above and adjoining his lot, nor over the persons who occupy it, and without any fault of his offensive water thrown upon the upper lot flows naturally across his premi- ses on to a lot lying below, he is not amenable • to the owner of such lower lot for the damage which enWes. Brown v. McAllister, 39 Cal. 573- ' See Actions, 44-46 ; Evidence, 12, 26, 135 ; Pleading, 24, 67-70, 208 ; Trial, 77. OATH. 1. Before what officers to be taken. When a statute does not designate the particu- lar officer by whom a required oath may be administered and certified, it may be taken before any officer having general authority to administer and certify oaths. Dunn v. Ketch- um, 38 Cal. 93. II. OFFICE AND OFFICER. Office. 1. In general. 2. Vacancy in. Officer. ' 1. Powers of. 2. Liabilities of. 276 . OFFICE AND OFFICER. I. OFFICE, i. In general. 1. Constitutional law. "When the Con- stitution declares an office to be elective, it cannot be filled in any other mode. Christy -U. Board of Supervisors Sacramento County, 39 Cal. 3. 2. Term of office. But when the office has been filled by an election, the Legislature may extend the term of the incumbent ; pro- vided the whole term, when extended, does not exceed the time limited by the Constitution. Id. 3. Office created by the Legislature. The Legislature can abolish or change an office created by it, and it may extend or abridge the terms of its incumbents at pleasure. In re Bulger, In re Merrill, 45 Cal. 553. 4. Sheriff and Tax Collector. The of- fices of Sheriff and Tax Collector, although held by the same person, are separate and dis- tinct offices. People v. Boss, 38 Cal. 76. 5. Office revived by repealing Act. If a general Act creates an office in all the coun- ties of the State, to be filled by election once in two years, and a special Act, passed after- wards, takes one county away from the pro- visions of the Act, and this special Act is after- wards repealed by an Act which restores the office as to that county, the provisions of the general Act are revived as to the office. Trout v. Gardiner, 39 Cal. 386, affirmed People v. Hunt, 41 Cal. 435. 6. When Governor may appoint to an office. When there is a person in possession of an office who is expressly authorized by the statute or Constitution to discharge its duties temporarily, till the power upon whom the duty of election or appointment is devolved can regularly act, the Governor has no power to appoint, because no vacancy exists within the meaning of Section 8, Article V, of the Constitution. People v. Tilton, 37 Cal. 614. 7. Appointment to office. The Legisla- ture may confer the power of electing a Fire Commissioner in a city upon a Board of Fire Underwriters, which is a voluntary association of persons, and not a corporation, In re Bul- ger, In. re Merrill, 45 Cal. 553. , 8. A change in the membership of such asso- ciation does not take away its power of appoint- ment, and the appointment may be made by a majority vote. Id. 9. Power of appointment to office. The Constitution does not prohibit the Legislature from conferring on a voluntary association of persons who are not citizens of the United States or electors of the city, the power to elect a person to fill an office created by the Legisla- ture. Id. See Insurance Commissioner; Land Titles, 14 ; Sheriff, 1. Land and 2. Vacancy in office- 10. By failure to elect. Whether a fail- ure to elect a successor leaves an office vacant at the expiration of the term, in the sense of the eighth section of the fifth Article of the • Constitution, which provides that "when any office shall, from any cause, become vacant, and no mode is provided by the Constitution and laws for filling such vacancy, the Governor shall have power to fill such vacancy by grant- ing a commission, which shall expire at the end of the next session of the Legislature, or at the next election of the people, ' ' considered but not fully decided. People v. Parker, 37 Cal. 639- 11. Director of the insane asylum. Un- der the Statute of 1866, creating a Board of Directors of the Insane Asylum, which pro- vides that "in case of a vacancy in said Board occurring when the Legislature is not in ses- sion, said Board may fill said vacancy until the next assembling of the Legislature, and then the Legislature shall proceed to fill said vacancy for the unexpired, term only," the filling of vacancies is provided for in the sense of the eighth section of the fifth Article of the Constitution, and the Governor has no power to fill them by appointment, whether tne-va- cancy be for a full or an unexpired term. Sprague, J., and Crockett, J., dissenting. Id. 12. When Governor can fill vacancy in office. When the Act creating an office and fixing the duration of the term provides that the officer shall be elected by the Legislature, and hold his office until his successor is elected and qualified, the failure of the Legislature to elect at the expiration of the term does not create such a vacancy as the Governor is au- thorized to fill by appointment, but the incum- bent holds until his successor is elected by the Legislature. Peoples. Tilton, 37 Cal. 6i\. 13. When officer may hold over. When the term of an officer expires, and the law or the Constitution authorizes him to hold over until his successor is elected and qualified, the old incumbent is authorized to discharge the duties of the office until a qualified successor presents himself, who has been elected by the body upon which the power of election is de- volved ; and the Governor has no power to appoint a successor. People v. Tilton, 37 Cal. 614. 14. If a Director of the Insane Asylum resigns, and the Board of Directors fill the vacancy, the new incumbent will hold until the assembling of the Legislature, and thereafter* until the Legislature fills the vacancy ; and if the Legislature adjourn without filling the va- cancy,he will still hold until a successor appears who has been appointed by the Board or elected by the Legislature. Sprague, J., and Crockett, J., dissenting. People v. Parker, 37 Cal. 639. See Constitutional Law, 65, 66. OFFICE AND OFFICER.— OFFICIAL BONDS. 277 n. OFFICER. i. Powers of. 13. Of ministerial officers to act by- deputy. The general rule of the common law is, that officers who exercise judicial func- tions cannot act by deputy, but those who ex- ercise merely ministerial functions may, with- out express authority to that effect. Jobson v. Fennell, 35 Cal. 711. 16. Sheriffs and Constables. In the ab- sence of statutory provisions as to the appoint- ment of deputy Constables, the common law rule applies, and Constables may act by deputy in the exercise of their ministerial functions. Id. ' 17 . Proceedings of officers under spec- ial statutes. When a statute prescribes the particular method in which » public officer, acting under a special authority, shall per- form his duties, the mode is the measure of power. Cowellu. Martin, 43 Cal. 605. 18. Stipulation by officer without legal advice. An officer, either of the State or of a county or city, having public funds under his control, ought not to enter into a stipulation in,respect to the facts in a suit af- fecting such funds, without acting under the advice of counsel. TJhler v. Boyd, 41 Cal. 60. See Acknowledgment, 4 ; Attorney and Client 1 , 3 ; Coroners, 1 ; Corporations, 89-108 ; Courts, S ; Fees and Salaries, 7-12 ; Funds, 10; Land and Land Titles, 205 ; Oath, 1 ; Taxa- tion,^. 2. Liabilities of. 19. Of public officers. Although public officers should be made to answer in damages to all persons who may have been injured through their malfeasance, omission, or neg- lect, but if the damages would have been sus- tained notwithstanding the malconduct of the officer, or if the injured party has by his fault or neglect contributed to the result, the officer cannot be held responsible. Lick v. Madden, 36 Cal. 208. 20. Act to prevent extortion or neg- lect in official duties. The Act entitled " an Act to prevent extortion in office and to en- force official duty," approved March 14th, 1853, was designed to afford a remedy of a summary character against office-holders who were guilty of extortion or of neglect ii. the performance of official duties. Matter of John J. Marks, 45 Cal. 199. It has not been re- pealed. Id. 21. Neglect of official duty. A State Harbor Commissioner who corruptly consents to leasing wharves belonging to the State for less than the real value of their rental, and who, in consideration thereof, receives from the lessee a sum of money, or who directs the em- ployees of the Board of Harbor Commissioners to neglect to keep accounts of money collected by them from rent of wharves, and to pay a portion thereof over to him, or»to buy silver plate for him with the same, or who appoints wharfingers on the recommendation of a third person, on an agreement that such third person will recommend customers to trade at the Commissioner's store, or who votes to contract with a person to dredge the harbor without advertising for bids, in consideration of re- ceiving a portion of the money paid for dredg- ing from the person who performs the same, or who favors employing persons to perform any work on the, wharves in consideration of receiving from such persons a portion of the money paid them therefor, or who instructs wharfingers to collect from vessels the full sum for dockage, but to retain and pay over to him a portion thereof and not account to the State therefor, is guilty of neglect in the perform- ance of official duty, within the meaning of the Act approved March 14th, 1853, entitled " An Act to prevent extortion in office and to enforce official duty." Id. See Criminal Law and Practice, 33, 34, 40, 94; Evidence, 23 ; Pleading, 21. OFFICIAL BONDS. 1. Statutory construction. If a stat- ute providing for the organization of a new county contains no provision in relation to official bonds, they must be given in conform- ity to the general law upon that subject. Peo- ple v. Boss, 38 Cal. 76. 2. Official bonds of person holding two offices. In the absence of a statute to the contrary expressly, a person holding two sepa- rate offices must give two separate official bonds. People v. Ross, 38 Cal. 76. 3. Liability of sureties on official bond. The sureties of a County Treasurer are liable for public money received by him as Treasurer after the expiration of his term, so long as he remains in possession of the office, and until he delivers it over to his successor. Id. 4. Receipts of principal on official bond. The receipts of a County Treasurer given to a Tax Collector for public money, after the expiration of his term, but before he has delivered possession of the office to his suc- cessor, are prima facie evidence to charge the sureties on his official bond. Placer Co. a. Dickerson, 45 Cal. 12. See Limitations, 69 ; Sheriff, 2 ; Statutory Construction, 17. 278 OFFICIAL MISCONDUCT.— PARTIES. OFFICIAL MISCONDUCT. See Criminal Law and Practice, 33 ; Office and Officer, 19, 20. OFFICIAL SIGNATURES. See Evidence, 23. ORDERS. 1. Made without, notice. An order made without notice to the other party may be set aside without notice to the party who pro- cured it. Coburn v. Pacific L. & M. Co., 46 Cal. 31. 2. Time of entering. The entry of an order in a criminal case in vacation, instead of term time, even if irregular, does not work any injustice. People v. Cougleton, 44 Cal. 92. 3. Motion to set aside. A motion to set aside an order entered at a term of the Court next preceding the passage of the Act of April 2d, 1866, amending the sixty-eighth section of the Practice Act, and within five months after the adjournment of said term, was made in due time. Bensley v. Ellis, 39 Cal. 309. 4. The Act of April 2d, 1866, amending the sixty-eighth section of the Practice Act, was retrospective in its operation. Id. See Action, 10, 13 ; Appeal, 7, 10, 21-41, 49- 54, 173-206, 240, 298, 300, 303, 304 ; Courts, 4, 23 ; Divorce, 3, 4 ; Execution, 42-44 ; Injunc- tion, 41 ; New Trial, 38, 81, 84, 108, 136, 138- 140 ; Party, 19 ; Probate Law and Practice, 51-52, 99-107 ; Trial, 4, II, 52 ; Witness, 7, 9. PARDON. 1. Power defined. The pardoning power, .whether exercised under the Pederal or State "Constitution, is the same in its nature and ef- fect as that exercised by the representatives of the English crown in this country in colonial times. People v. Bowen, 43 Cal. 439. 2. Pardon removes disability to testify. One of the consequences of an executive par- don is to remove from the offender the disabil- ity which follows conviction of a felony. . Id. 3. Pardon after punishment. An of- fender may be pardoned after he has suffered the punishment adjudged for his crime. Id. See Witness, 3. PARENT AND CHTLD. See Contract, 9 ; Deed, 61-65 ; Divorce, 8 ; Estoppel, 33 ; Guardian and Ward, 4, 5 ; Neg- ligence, 2, 23-25, 32. PAROL EVLDENCE. ! Evidence, 37-57, 125-157. PARTIES. In general. Plaintiffs. III. Defendants. IV. Substitution. I. n. I. IN GENERAL. 1. Power of Court. The omission of the defendant to demur for want of parties, does not affect the power of the Court, under the seventeenth section of the Code, from directing other parties to he brought in, if it finds that it cannot completely determine the case in their absence. Grain v. Aldrich, 38 Cal. 514. 2. Necessary parties. P & H entered into a contract, whereby it was agreed that H should pay certain obligations of L to S, on the confirmation of P's title to certain lands, then pending before the proper tribunals, and which he had sold to H ; in consideration whereof, and for other considerations, S agreed with L that he would not sue on his demands against L until the decision of the question of the title to the land. P's title was rejected. , Held, that in an action by S against L, on those demands, P & H were not necessary parties. Smith v. Lawrence, 38 Cal. 24. 3. To suit in equity. If A makes a verbal contract with B to sell him a tract of land, and puts him in possession, B is » necessary party to an action commenced by the judgment creditors against A to be subrogated to B's, rights in the land. Logan v. Hale, 42 Cal. 645. 4. Administrator as a party to real action. An administrator who is a party to an action involving the title of his intestate to real estate, represents the title which the de- ceased had at the time of his death. Cunning- ham v. Ashley, 45 Cal. 485. See Ejectment, 12, 13 ; Witness, 1 ; Writ of Restitution, 2 ; Orders, 1. PARTIES. 279 II. PLAINTIFFS. 5. Tenant in common. One tenant in common of real property, in the actual posses- sion thereof, may maintain an action, under the two hundred and fifty-fpurth section of the Practice Act, to determine the validity of an adverse claim of'title thereto by a cotenant. Boss v. Heintzen, 36 Cal. 313. 6. Tenants in common'may join as plaintiffs • in an action for damages for the sale of land under an erroneous judgment, •which is after- wards reversed, and if one of the tenants in common is dead, his executor or administrator may join as plaintiff with the other tenants. Reynolds v. Hosmer, 45 Cal. 617. 7. Wife may sue husband. A wife may maintain an action against the husband to re- cover money due upon a promissory note exe- cuted by the husband to the wife before mar- riage, and which is the separate property of the wife. Wilson v. Wilson, 36 Cal. 447. 8. There is no statutory limitation as to the kind of actions that may be maintained by the wife, when they concern her separate prop- erty or are against her husband. Id. 9. On covenants in a deed. AH the grantees should join as plaintiffs in an action upon either a direct or implied covenant in a deed that the grantor has not sold or incum- bered the land, or that he is seized of and has a right to convey the same. A deed of the land by one of the grantees to another does not con- vey to him the cause of action upon such cov- enant. Lawrence v. Montgomery, 37 Cal. 183. 10. For deceit. An action for deceit in the sale of land to which the grantor had no title, ' should be brought by all the grantees jointly, unless there has been a conveyance of the cause of action to the plaintiff. A conveyance by one of the grantees to the others, of his inter- est in the land, does not assign the cause of ac- tion for deceit, so as to enable the assignees to sue for the deceit in their names. Lawrence v. Montgomery, 37 Cal. 183. 11. Assignee of part of demand. In this State the assignee of part of an entire de- mand may recover in his own name, without making the holders of the remainder of the de- mand parties, if the assignment was made with the knowledge and consent of the debtor ; but if not, then the other holders should be made parties, and if they are not, the complaint will be bad on demurrer, for want of parties. Grain v. Aldrich, 38 Cal. 514. 12. For extortion in, or neglect of of- fice. Any private citizen may make complaint to the District Court against an officer for ex- tortion in or neglect of official duties, under the Act approved March 14th, 1853. (Stats. 1853, p. 40.) Matter of J., J. Marks, 45 Cal. 199. 13. Principal and not agent must sue. When S, as the agent of R, loans the money of R, an action against the borrower to recover it must be brought in the name of R. S cannot sue for the money. Swift v. Swift, 46 Cal. 267. See Assignment, 12 ; Admiralty, 3 ; Eject- ment, 6-19 ; Mechanic's Lien, 27 ; Negotiable Instruments, 61. HE. DEFENDANTS. 14. Purchasers at Sheriff's sale. There is no error in permitting the purchasers of the defendant's title at a Sheriff's sale to defend the action, if they rely wholly on defendant's title, and do not deny his possession. McFad- den v. Wallace, 38 Cal. 51. 15. In action to enforce lien. In an action to enforce a lien on property in the ad- verse possession of a third person, the person in possession must be made a party defendant ; otherwise the judgment, as to him, is void. Wingard v. Banning, 39 Cal. 543. 16. In equity. Where several persons have been jointly concerned in a series of fraud - ulent acts, they may be united as defendants in a suit to annul the fraudulent acts, although the gains they realize by such acts are several. Andrews v. Pratt, 44 Cal. 309. See Mechanic's Lien, 28. IV. SUBSTITUTION. 17. Plaintiff in supplemental bill. Nei- ther a purchaser at Sheriff's sale, as such, nor a redemptioner, either before or after redemp- tion, nor an assignee of the Sheriff's certificate of sale, upon his own ex parte motion, made in his own name, is entitled to have the judgment upon which the execution or order of sale is- sued vacated, and himself substituted as plain- tiff, in order that he may file a supplemental complaint to bring in other parties. Abadie v. Lobero, 36 Cal. 390. 18. On transferor cause. The substitu- tion of one person as plaintiff in place of anoth- er, in case of a transfer of a cause of action, is a matter which the defendant cannot move. It concerns only the plaintiff or the person to whom the transfer is made. If the defend- ant desires to take advantage of the transfer for any cause, he must do so by supplemental answer. As against a defendant, a plaintiff has a right to stay in Court till his case has been tried. Hestres v. Brennan, 37 Cal. 385, 19. Substitution of plaintiff by ex parte . order. On the death of the plaintiff, the Court may, by an ex parte order, substitute his repre- sentative as plaintiff. Taylor v. Western Pac. R. R. Co., 45 Cal. 323. 20. Suggestion of death. It is regular and proper to suggest the death of a party to an action, in any Court, and at any stage of the proceedings. And the death of a party occur- ring before an appeal taken may be shown in 280 PARTITION. the Supreme Court by affidavit of the fact. Judson v. Love, 35 Cal. 494. 21. The death of a party pendente lite should be made known by suggestion of that fact to the Court, and the action continued by ' order of the Court against the representative of the party deceased, of which he must be duly notified before he can be affected by fur- ther proceedings in the action. Id. 22. Where a party to an action dies after verdict or other decision therein, judgment in pursuance % of such verdict or decision may nevertheless be rendered as provided in Section 202 of the Practice Act, but in no other such case can judgment be rendered so as to affect the interests of the representatives or success- ors of the party deceased, -without the proper substitution of such representatives or succes- sors. Id. See Appeal, 1-15, 133-219; Assignment, 10, 12 ; Attorney and Client, 10 ; Certiorari, 20, 21 ; Conveyances, 22 ; Foreclosure, 1,2, 3, 15, 22 ; Husband and "Wife, 24-26 ; Injunc- tion, 26, 27 ; Injunction Bond, 2 ; Interven- tion ; Judgment, 31, 63-66; Lis Pendens, 2 ; Mandamus, 28, 29, 32, 33-35 ; Mortgage, 48 ; Negotiable Instruments, 36, 58, 59 ; Nuisance, 8, 10, 12, 13 ; Partition, 10-13 > Partners, 15, 16, 26 ; Roads and Highways, 1 ; Specific Per- formance, 29 ; Stipulations, 8 ; Streets and Street Assessments, 103 ; Tenants in Common, 5, 7 ; Trial, 6 ; Vendor and Vendee, 1 ; "Wit- nesses, 1,4; "Writ of Assistance, 8. PARTITION. I. In general. H. Actions fob. 1. Parties. 2. Judgment. 3. Nev) trial. 4. Appeal. I. IN GENERAL. 1. Among tenants in common. A par- tition among tenants in common should be made of the entire tract. One tenant in com- mon cannot have partition of a part only of the entire common property, and nave his entire interest located in this part. Sutter v. San Francisco, 36 Cal. 112. 2. Of land on -which there is a home- stead. On a partition of land held by ten- ants in common, if one of them has a home- stead claim on it, his undivided interest will "be set apart to satisfy the homestead claim, not to exceed five thousand dollars in value. Hig- gins v. Higgins, 46 Cal. 259. 3. Parol agreement for partition. A parol agreement for a partition of land does not constitute a legal title. It is only an equity, of which a party cannot have the bene- fit in an action of partition without pleading it. Gates v. Salmon, 46 Cal. 362. 4. Notice of parol agreement for parti- tion. Parties who buy undivided interests in land held by tenants in common, are not bound by a parol agreement for a partition of the same, made by all the tenants in common be- fore the purchase, and of which agreement the purchasers had no notice when they bought. Id. 5. If a purchaser of a specific parcel of land from one of several tenants in common who own it, takes possession of the parcel thus conveyed to him, this possession does not im- part notice to subsequent purchasers from the grantor, of a parol agreement for a partition, made by the tenants in common before the sale of the specific parcel. Id. 6. Contract for partition. A contract entered into by several parties owning land in common, for a partition of the same, must bind all the tenants in common, or it binds none. Id. 7. Wife's parol agreement to partition her separate property. A parol agreement to partition land, made by the tenants in com- mon who own it, does not bind the tenants in common who are married women, and own their undivided interests as separate property. The above rule has its origin under the statute of 1856, requiring the wife's'sale of her separ- ate property to be in writing, signed by both her and her husband. Id. 8. Such agreement will not be enforced in equity against the tenants in common who are not married women ; for the consideration for the undertaking on their part was the under- taking on the part of all the parties, and the agreement ought not to be enforced against one unless it can be enforced against all. Id. 9. In making a partition, the conveyance of such specific tract may be disregarded, if it be found necessary to do so in order to make a , just allotment of the lands among those who own undivided interests and did not' join in the deed. Gates v. Salmon. 46 Cal. 362. See Attorney and Client, 23 ; Ejectment, 90; Equity, 20 ; Probate Law and Practice, 83-98 ; Reference, I, 2 ; Tenants in Common, 8, 13; Trial, 66. II. ACTION FOR 1. Parties. 10. Statutory construction. A proper construction of the provisions of Section 264, taken in connection with Sections 268, 278, and 293 of the Act, requires that the holder of such special tract, as well as the cotenants of his grantor, should be made a party to such action. Gates v. Salmon, 35 Cal. 576. 11. Parties. In partition, all the tenants PARTITION. 281 in common should be made parties. One tenant 4n common who owns an undivided interest consisting of a certain quantity, cannot have partition by making the original holder of the whole tract sole defendant, when he (has sold divers parts thereof to various persons, but retains more than the quantity to whioh the plaintiff in the partition suit is entitled. All the grantees of the original owner should be joined as parties. Sutter v. San Irancisco, 36 Cal. 112. 1 12. Parties plaintiff. Section 4 of the Practice Act, which requires that actions should be brought in the name of the real party in interest, applies to actions for parti- tion; and a proper construction of the pro- visions of Section 264, taken in connection with Sections 268, 278, and 293 of the Act, re- quires that the holder of such special tract, as well as the cotenants of his grantor, should be made a party to such action. Gates v. Salmon, 35 Cal. 576. 14. Their relation to each other. The parties to a partition suit are all actors, or plaintiffs, each against each and all others. Senter v. Bernal, 38 Cal. 637. See Actions, 33. 2. Judgment- 14. Rule for partition in respect to improvements thereon. In an action for partition by one tenant in common of lands granted his cotenants, where the tenants have severally made valuable improvements on dis- tinct portions of the lands sought to be par- titioned, the Court, by way of interlocutory decree, ordered " that there be set off to the several "parties such portions of the premises as will include their respective improvements ; provided always, that the rights or interests of neither of the other parties be prejudiced thereby." Held, that the order declared the proper rule to govern in such cases, and that the judgment would not be disturbed unless the rule had been departed from. Seale v. Soto, 35 C,al. 102. 15. Judgment. If tenants in common own, some in fee, others a life estate, and the deed creating the life estate gives the re- mainder to such children, and the lawful issue of deceased children; of the person owning the life estate, as shall be living when the life es- tate terminates, a judgment of partition, made before the life estate terminates, should not fix the quantity of interest of those claiming the remainder. Such judgment sufficiently pro- tects those claiming the remainder, if it allots the life estate, subject to the right of those holding in remainder. Regan v. McMahon, 41 Cal. 679. 16. When it is uncertain to whom, and in what proportions, a remainder may descend, after the termination of a life esta'te, a judg- ment in partition, made before the life estate terminates, should not ascertain the interest of those holding in remainder. Id. 17. Erroneous judgment in partition. In partition it is erroneous to adjudge that persons who have been made partieB to the action ©wn interests in the land, in the ab- sence of any allegations in the pleadings show- ing such ownership. Gates v. Salmon, 46 Cal. 362. 18. Such error can be remedied on the re- turn of the cause to the Court below, by per- mitting answers to be filed by such parties, set- ting up their interests, but the answers must set up only the interests the Court found they owned. Id. 19. Judgment in partition. A deed of a specific tract of land described by metes and bounds, parcel of a larger tract owned by sev- eral as tenants in common, which is executed , by one of the tenants who owns an undivided interest in the whole, conveys only his un- divided interest in the tract described, and, in partition, the grantee of such specific tract is entitled to have his undivided interest in the specific tract set off to him, if it can be done .. without injury to the original tenants in com- mon who did not unite in the deed. The heirs and assigns of such grantee are entitled to the same relief. Id. 20. A judgment in partition is final and conclusive on all persons interested in the property, or any part of it, of whom the Court could acquire jurisdiction. Gates v. Salmon, 35 Cal. 576. ' See Description of Land, 7. 3. New trial. 21. Motion for. A motion for a new trial may be resorted to for the purpose of correct- ing the errors in a preliminary decree of par- tition ; but it must be made within the proper time. Regan v. McMahon, 43 Cal. 625. 22. Errors in an interlocutory decree must be corrected by motion for new trial, or by an appeal. Tormey v. Allen, 45 Cal. 119. See New Trial, 134. 23. Order not a final judgment. The order of a Court for a partition of lands, or for a sale in case a partition cannot, properly be made, is not a final judgment in an action for partition. They are to be succeeded by a judgment con- firming the partition or sale. Hastings v. Cunningham, 35 Cal. 549. 24. From an interlocutory judgment. Appeals may be taken from it by the parties aggrieved without notice to anybody except those who were parties to the particular issue which they seek to have reviewed. Senter v. ■Bernal, 38 Cal. 637. 282 PARTNERSHIP. 25. Prom interlocutory decree. An appeal from a preliminary decree in. partition • must tie taken within sixty days from the entry of the decree in the minutes of the Court. Re- gan v. McMahon, 43 Cal. 625. 26. On an appeal from an interlocutory de- cree in partition, the Court will not anticipate difficulties that may present themselves to the Commissioners in making the partition, and lay down rules for their guidance, until the contingencies of the case require it. Gates v. Salmon, 46 Cal. 362. 27. Errors of preliminary decree. Sup- posed errors in the preliminary decree in parti- tion cannot be reviewed through an appeal taken from the final decree. Regan v. McMa- hon, 43 Cal. 625. See Appeals, 57-61. 28. Review of errors in partition. Parties to a partition suit who appeal, and who claim under one of several tenants in com- mon, are not injured by an error in the find- ings or judgment alleged to have been made in respect to the ownership of the interests of other tenants in common under whom they claim no interest, and therefore are not en- titled to have the judgment disturbed as to such .alleged error. Gates v. Salmon, 46 Cal. 362. 29. Error -without prejudice. A judg- ment in partition will not be disturbed on ap- peal, by reason of an error which does not prej- udice the party appealing. Gates v. Salmon, 46 Cal. 362. PARTNERSHIP. I. Formation of. IT. Rights, obligations, and powers of PARTNERS. TH. Dissolution and settlement. IV. Mining partnership. I. FORMATION OF. 1. Contract. In consideration of the right granted him by plaintiff, to manage, use, and vend at his (the defendant's) own expense, and on his own account, within the British Dominions, certain machines of which the plaintiff was the inventor, and to sell the right to others to make, use and vend the same, the defendant undertook and agreed to procure from the British authorities letters patent to the plaintiff for said machines, and to pay over, quarterly, to the plaintiff one half the proceeds of all sales made by him. Held, not a contract of partnership. Wheeler v. Banner, 38 Cal. 203. 2. Actual intention is necessary to consti- tute a partnership inter se. Id. 3. Where there is no community of interest in capital, stock', profit or loss, there is no part- nership. Id. 4. Bailor and bailee. A contract be- tween A and B, by which A transfers to B the possession of a flock of sheep, upon the terms that B should herd and take care of them for three years, at the end of which time he was to return to A the original number of sheep entrusted to him, and the increase be equally divided between them, does not constitute a partnership between A and B in the sheep. Robinson v. Haas, 40 Cal. 474. 5. Contract establishing. A joint con- tract in writing, entered into by several per- sons with another, in which they agree to fur- nish certain materials and perform certain labor for such other, and which does not fix or define the relations of such persons among themselves, or as to the third persons, and which does not show any community of inter- est between them in the profits to be realized nor the losses to be sustained, does not of it- self, by legal intendment, establish a partner- ship between them in reference to the work undertaken. Smith u. Moynihan, 44 Cal. 53. 6. Proof of partnership. It is the busi- ness of one who alleges a partnership to show it affirmatively. The burden of proof is on him. Id. 7. Joint contract. If two persons enter into a joint contract, in writing, to perform certain labor and furnish certain materials for another, which contract does not define the relations of such persons between themselves ; and if, by the understanding between them- selves, one is to perform one part of the labor and the other another, and each is to receive a proportional sum of the money paid .for the whole, the relation of partners does not exist between them. Smith v. Moynihan, 44 Cal. 53. 8. A partnership or a joint stock company is not necessarily the result of an abortive at- tempt to organize a corporation.- Blanchard v. Kaull, 44 Cal. 440. See Actions, 19 ; Attachment, 2, 3, 39 ; Con- tract, 99 ; Debt, 4 ; Deed, 3 ; Evidence, 45 ;' Execution, 8 ; Franchise, 7, 8 ; Fraud, 23 ; Negotiable Instruments, 27 ; Probate Law and Practice, 22, 59, 60 ; Tenants in Common, ' II. RIGHTS, OBLIGATIONS AND POW- ERS OF PARTNERS. 9. Right of one partner to purchase judgment against another. There is no principle of equity which forbids a partner from purchasing, with his own funds, and out- side of the partnership business, a judgment, or other evidence of indebtedness against his copartner, or prohibits him from enforcing its collection by a levy upon, and sale of, the in- terest of the other in the firm assets. McKen- zie v. Dickinson, 43 Cal. 119. PARTNERSHIP. 283 10. Obligations of partners " inter f sese " confined to firm business. The ob- ligations of copartners inter sese, whatever may be their nature and extent, refer only to the conduct of the business in which the firm is engaged ; beyond and outside of such busi- ness there is no restraint upon the right of either partner to traffic for his own profit. Id. 11. Power of one partner to convey. A copartner has authority to convey the co- partnership property in any transaction, within the scope of the partnership, and each copartner has an unlimited power of disposal of his share of the partnership property, sub- ject only to the claims of creditors of the firm, and of the other copartners on a settlement of the partnership affairs, unless he be restrained from so doing by the terms of the copartner- ship ; but the claims of such creditors, and co- partners, being only in the nature of an equit- able lien on the partnership property, can only be enforced in a Court of equity. Stokes v. Stevens, 40 Cal. 391. 12. Incompetence of Court of law to adjust affairs of. A Court of law is not com- petent to administer redress, in adjusting the affairs of a partnership, and to ascertain and enforce the equitable liens of creditors, and of the several copartners. Id. 13. Effect of conveyance of one part- ner's interest. Where one partner, without the consent of his copartner, conveys his in- terest in the partnership property to another, the latter becomes a tenant, in common with the copartner, and the claim of a creditor of the firm can only be, asserted to the property as against the third party in possession, in a Court of equity. Id. 14. Replevin by purchaser of partner- ship property attached by creditor of the firm. Where one partner bona fide sold the partnership property to satisfy his individual indebtedness, and in an action of replevin by the purchaser against a creditor of the firm who has attached the property, after the sale and delivery as the firm property, and for a firm debt ; the Court properly rendered a judgment for the purchaser ; and it will be presumed in support of the judgment, that the Court below found it as a fact that the other partner con- sented to and authorized the sale. Id. 15. Action against surviving partner. An action lies against a surviving partner for work and labor performed for the firm during the life of the deceased partner, and after his death while the surviving partner is winding up the business of the firm. Friermuth v. Eriermuth, 46 Cal. ,42. 16. What necessary, for partner to sue copartner at law. It may not be necessary, in order to enable a partner to main- tain an action at law against a copartner, or one who has been such, to show an express promise to pay a sum ascertained as a balance due, but the balance itself must be one which has been ascertained by the act of all the part- ners, and agreed to as constituting such bal- ance. Ross v. Cornell, 45 Cal. 133. , HE. DISSOLUTION AND SETTLEMENT. 17. When partner entitled to. Where one partner has the management of the part- nership affairs, and makes false entries in the books, and defrauds his copartner of a portion of the partnership receipts, and retains the same to his own use, the partner thus de- frauded is entitled to a dissolution of the part- nership and an accounting, even if the part- nership was by agreement to continue for a fixed term, and the term has not expired. Cot- tle v. LeitoE, 35 Cal. 434. 18. If in such a case there has been an ac- counting between the partners, and the part- ner defrauded does not discover the fraud until after the accounting, he may sue for an ac- counting and dissolution, and on the trial may surcharge and falsify the account, without de- manding a reaccounting prior to the com- mencement of the action. Id. 19. Accounting between partners. Whenever a partner is entitled to a dissolu- tion, the taking of an account is necessary, and follows as a matter of course. Id. 20. Old partner not entitled to ac- count of profits since dissolution. Where McKenzie and Dickinson, bag manufacturers, dissolved partnership, leaving certain assets of the firm in McKenzie's hands, and afterwards McKenzie purchased, for much less than its face, a judgment against Dickinson, and had it levied upon Dickinson's interest in the assets, and on the execution .sale bought them in on his own account : held, that Dickinson was not entitled to an account of the profits made by McKenzie in the transaction, nor could he attack the sale made to McKenzie. McKenzie v. Dickinson, 43 Cal. 119. 21. Effect of one of several partners retiring from the firm. If, in a case where there are several members of a partnership, one of them , even by consent, retires from the firm, this dissolution necessarily severs the copartnership relations of each of its members. Ross v. Cornell, 45 Cal., 133. 22. In such case, if there are two or more members who remain in the firm, they cannot maintain a joint action at ' law against the member who retired from the firm. Id. 23. Partnership accounts. Where the complaint, in an, action for the dissolution of a partnership and a settlement of the accounts, avers a loss in the transactions of the firm, borne exclusively by the plaintiff, and asks for a judgment against the defendant for his pro- portion of such loss, the plaintiff may prove a loss resulting from his own act done in vio- lation of the partnership agreement. Clark v. Gridley, 41 Cal. 119. 284 PARTNERSHIP. 24. In such case, the plaintiff is entitled to a settlement of the partnership accounts, on such terms as may be equitable ; and the de- fendant may show, as a matter of defense, that lie suffered loss by such violation of the con- tract, and may charge the plaintiff with it. Id. 25. The plaintiff in such action need not aver in his complaint that the act from which the loss resulted was in violation of the part- nership agreement, in order to let in the testi- mony as to the loss. Id. 26. Suit at law by one partner against another. If a cppartner, even by consent, retires from the firm of which he is a member, a suit at law cannot be maintained against him by the members who remain in the firm, for money alleged to be due from him to them in the copartnership transactions, unless there has been a final settlement of all the firm ac- counts and a balance has been struck. Ross v. Cornell, 45 Cal. 133. 27. Question of settlement of partner- ship affairs. If a partner sells his interest in the partnership property to his copartner, but there is a dispute whether the sale included a settlement of the partnership accounts, and in an action brought for their settlement, the issue as to whether such sale included such settlement is submitted to a jury, the jury, in determining it, cannot take into consideration the amount which the purchasing partner paid lis copartner, or the amount which he sold the purchased property for. Warden v. Marcus, 45 Cal. 594. See Interest, 20 ; Judgment, 41 ; Water, 10- 17 ; Writ of Assistance, 8. IV. MINING PARTNERSHIPS. 28. Purchase of interest in mining partnership makes purchaser a partner. As a sale of an interest in a mining partner- ship by a partner to a stranger does not dis- solve the partnership, such stranger by his purchase presumptively becomes a partner, though he takes no part in the management of the partnership affairs, and does not hold him- self out to the world as a partner. Taylor v. Castle, 42 Cal. 369. 29. Contract of mining partnership, -where no regulations or by-laws. — Usage. Where a contract in writing purported to have been made by a mining partnership in its firm name through its secretary, and it appeared that such contract had been authorized by a vote of a majority of the shares at a meeting of the company, and after being signed by the secretary had. been ratified and approved in same manner, and it further appeared that though there were no written regulations or by-laws, the company usually did business in this way : held, that the recognized and es- tablished usage on the part of the firm should be taken as a part of the contract of partner- ship. Id. 30. Power of superintendent to bind mining partnership. A managing superin- tendent cannot bind a mining partnership, ex- cept upon such contracts as are usual and nec- essary in the ordinary prosecution of the work, unless specially authorized. Jones v. Clark, 42 Cal. 181. 31. Difference between mining part- nerships and ordinary partnerships. Mining partnerships, where there 1 are no part- nership articles, are governed by the law of ordinary partnerships, except so- far as the gen- eral usage of persons engaged in similar pursuits or the established practice of the particular company has established a different rule — the only differences generally existing being such as flow from the fact that in such partnerships there is no delectus persona,. Id. 32. Liability of mining partners on note by superintendent. — Estoppel. Where a promissory note, purporting to be executed for and on behalf of a mining part- nership, and signed by the superintendent as such, was given in payment for property which the partnership was using, and such use was a beneficial one, and all the members - knew soon after the execution of the note of its existence, and believed it to be a company note, and acquiesced in paying interest upon it until long after the original debt would have been barred if the note were held invalid : held, that the. members of the partnership should be estopped from disputing its validity. Id. 33. Liability of new mining partner- ship on old partnership debt. If a promis- sory note is binding upon a mining partner- ship as a valid contract, such partnership con- tinues liable, at least, to the extent of the partnership assets, though some members of the company may have parted with their in- terests — the new members having purchased with knowledge, and subject to the payment of partnership debts. Id. 34. Action for dissolution of mining partnership. If, in the ease of a mining partnership, a retiring partner still continues bound for a partnership debt, he, nevertheless, parts with his equity to have the partnership debts paid out of the partnership property ; and in a suit to dissolve the partnership as among the partners, though he may be a proper, he is not a necessary party. Id. 35. Death of partner. — No control by survivor. A mining partnership is not disr solved by the death of a partner, nor has a surviving partner any right to take control of the property as survivor — this right only ap- plying where the delectus persona', exists. Id. 36. No delectus personse. It is well established that in mining partnerships there is usually no delectus personc.11, and as a con- sequence, that such a partnership is not dis- PATENT.— PAYMENT. 285 solved by the death of a partner, or a sale of an interest by a partner to "a stranger. Taylor v. Castle, 42 Cal. 369. 37. Strict partnership in mines as dis- tinguished from "mining partnership," so called. Where two persons entered into an agreement to engage together in a mining ad- venture, under a firm name, and to share the profits and losses equally, and as a firm they purchased a mine, and paid a note given in the firm name for a portion of the price : held, that the contract was one of partnership, in the ordinary sense, as distinguished from what is known as a " mining partnership," and that - either partner had the same authority to bind the firm as if it were an ordinary trading partnership. Decker v. Howell, 42 Cal. 636. 38. Exceptional rule as to " mining partnerships' ' ceases when reason therefor ceases. The rule that in "mining partner- ships " one partner has no authority to bind the firm by a promissory note, is based upon the reason that in such partnership there is no delectus personce, and that, consequently, the membership is continually subject to changes beyond the control of the partners ; but there is nothing in the nature of mining which for- bids a contract of strict partnership ; and when it appears that the confidential relations of an ordinary partnership are established, and the firm not subject to the intrusion of other part- ners at will, the reason of the rule fails, and with the reason the rule itself. Id, 39. Promissory note of strict mining partnership. Where Howell and Haynes en- tered into a strict partnership for the purpose of purchasing, holding, and working a mine, and while such partner, Howell gave a firm note for money borrowed in the name and for the use of the firm, arid afteward conveyed all his interest to Haynes : held, that the note was valid as a firm note, and could be collected by Haynes. Id. See Contract, 6 ; Corporations, 75 ; Mines and Mining, 20 ; Negotiable Instruments, 6, 18. PATENT. See Description of Land, 1, 3; Injunction, 13 ; Homestead, 30 ; Land and Land Titles, 39) 97, 142, 144. MS- PAYMENT. 1 1. Payment of debt by one not le- gally responsible. The payment of a debt by a person not legally responsible for it is a satisfaction of the debt, if the money is ac- cepted for that purpose. Martin v. Quinn, 37 Cal, 55. 2. Action to recover overpayment made by Sheriff to judgment creditor. In 1861, Q, recovered a money judgment in Justice's Court against K and C, from which, in 1862, K and C appealed to the County Court, and procured M and S as sureties to ex- ecute an undertaking in the sum of five hun- dred dollars, in the usual form on appeal, to stay execution. The undertaking was not ex- ecuted by K and C. Thereafter, judgment was rendered by the County Court in said action against K and C, for a sum greater than five hundred dollars. Thereupon, Q, demanded of M and S said five hundred dollars expressed in their undertaking, to be applied in satisfaction of the last named judgment, which they paid. Q,, however, failed to enter satisfaction of said judgment pro tanto, but, on an execution is- sued thereon, collected, under a Sheriff's sale of K and C's property, the whole amount of his judgment recovered in the County Court. K! and C then assigned their demand against Q, for the money received by him in excess of the unpaid balance due on his judgment, after de- ducting said five hundred dollars, to M and S, who brought action therefor, setting up said facts, and recovered judgment. The only de- fense was by way of demurrer to the com- plaint, which was overruled. Held, that said last named judgment was properly rendered. Id. ■ ■ ^ 3. Application of payments. If a party who is indebted on several promissory notes, all held by the same person, makes a payment of money to the holder and directs it to be ap- plied on one of the notes, but the holder ap- plies it on other notes than the one directed, and the payor afterwards acquiesces, and takes the notes ' upon which the application was made, this is a ratification of the application made by the creditor. Cardinell v. O'Dowd, 43 Cal. 586. 4. Right of debtor to direct. The debtor, who owes the same person on several promissory notes, has the right to direct ver- bally on which notes any payments he may make shall be applied. Clarke v. Scott, 45 Cal. 86. 5. Evidence of choice of debtor as to application. In an action upon a promissory note against the debtor and one who signed as surety, where the defense is that other notes were given by the debtor at the same time as the one in suit, with a verbal agreement with the plaintiff that the first payments made by the debtor should be applied, on the note signed, by the surety until it was paid, and that pay- • ments had been made and had been wrongfully indorsed on the notes not signed by the surety, the defendants have a right to give such ver- bal agreement in evidence, as tending to show that the debtor, when he made the payments, had not changed his first intention as to how 286 PERJURY.— PLANK ROAD COMPANY. the payments were to be applied. Clarke v. Seott, 45 Cal. 86. 6. Extension of time of payment. The giving of a mortgage to secure a debt, and an agreement to pay the same in gold coin, form, a sufficient consideration for an extension of the time of payment. Kinsey v. Wallace, 36 Cal. 463. , See Attachment, 40; Contract, 13, 14,98; Debt,, 5 ; Evidence, 68, 159, 160; Fraud, 22; Land and Land Titles, 124-128 ; Landlord and Tenant, 22, 23 ; Limitations, 2 1 ; Manda- mus, 46 ; Negotiable Instruments, 46 ; Plead- ing, 184 ; Probate Law and Practice, 50 ; Re- lease, 3 ; San Francisco, 11 ; Tender, 1, 3. PERJURY. See Criminal Law and Practice, 42. PHONOGRAPHIC REPORTER. 1. Notes of. The notes of evidence taken by the Phonographic Reporter of a Court are frima facie evidence only in the Court below, nd cannot be considered in the Supreme Court. People v. Woods,, 43 Cal. 176. 2. The notes of evidence taken by the Phonographic Reporter at the trial, and tran- scribed into long hand, even if verified by his affidavit, do not constitute a part of the record on appeal for any purpose. People v. Arm- strong, 44 Cal. 326. See Criminal Law and Practice, 399-411 ; District Court Reporter, 1,2. PERSONAL PROPERTY. See Attachment, 24, 28 ; Bailment, 1 ; Chattel Mortgage ; Lien, 1 ; Pledge ; Sale and Delivery; Taxation, 52-56, 75. PERSONAL RIGHTS. See Constitutional Law, 18-23 > Criminal Law and Practice, 206-207 i Negligence, 35- 37- PLACE OF TRIAL. 1. Probate Judge interested in an es- tate. A Probate Judge who has a power of attorney from any of the persons claiming to be heirs of the deceased, authorizing him to receive for them any money or property to . which they might be entitled from the estate, and also letters offering him a percentage upon said proceeds coming to said alleged heir, is in- terested in the estate, and cannot act as Judge in any matter pertaining to such estate, except to arrange the calendar or change the venue. Estate of White, 37 Cal. 190. 2. Change of venue. When the Probate Judge is interested in an estate, or in money coming to the heirs therefrom, he has no juris- diction to act as Judge therein, and should grant a. change of venue. It is no excuse for refusing a change of venue in such case to say that the Judge decided correctly upon the, matter before him, after refusing such change of venue. Id. 3. Change of place of trial. The right to move for a change of place of trial is not waived, if the notice of the motion is given at the same time at which the answer and de- murrer are filed and served. Mahe v. Reynolds. 38 Cal. 560. 4. . Change of venue by Probate Court. The Probate Court of a county has jurisdic- tion to change the place of trial of an issue of fact to the Probate Court of another county. People v. Almy, 46 Cal. 245. 5. Practice. When the place of trial of an issue of fact in the Probate Court is changed to another county, the Clerk of the Court to which the case is sent can certify a transcript of the proceedings and result of the trial back, and the Court from which the case was sent can enter the appropriate judgment. Id. 6. When an issue of fact is joined in a Probate Court as to the competency of a testa- tor to make a will, and three trials had at great expense, in which the juries disagreed, have shown that an impartial jury cannot be obtained, it is not error to change the venue. Id. See Criminal Law and Practice, 215, 216 ; Witness, 8. PLANK ROAD COMPANY. See Corporations, 20-23, 55- PLEADINGS. 287 PLEADINGS. , I. In general. IT. Construction. m. Complaint, i. In general. 2. Prayer. 3. In particular actions. IV. Objections waived by failure TO DEMUR. V. Demurrer. VI. Answer. 1. In general. 2. Denials. 3. Insufficient denials. 4. Admissions by failure to deny. 5. Defenses. A. Generally. B. In abatement. C. In bar. 6. Counter claim. — Set off. 7. Cross complaint. 8. In particular actions. VH. Replication. VIII. Variance between pleadings AND PROOF. IX. Amendments. X. Practice on striking out. XI. Judgment on pleadings. I. IN GENERAL. 1. Material allegations. Material alle- gations must be distinctly stated in pleadings, and are not to be inferred from doubtful or ob- scure language. Campbell v. Jones, 38 Cal. 5°7- 2. Pacts to be stated. In pleading, the essential facts upon which the legal points in the controversy depend should be stated with clearness and precision, so that nothing is left for the Court to surmise. Gates v. Lane, 44 Cal. 392. 3. Essential facts to be alleged. Unless the facts essential to the support of the case be alleged in the pleadings, evidence upon such omitted facts cannot be heard or con- sidered. Hicks v. Murray, 43 Cal. 515. 4. Evidence of facts, or stipulations as to *the facts of the case, cannot make a case broader than it appears by the allegations of the pleadings, nor do they entitle a party to any relief beyond what the averments entitle him to. Id. 5. Corporate existence. The mere alle- gation in a pleading that a party is a corpora- tion, does not put its existence as a corporation beyond the reach of inquiry. O. & V. E. E. Co. v. Plumas Co., 37 Gal. 354. 6. Fraud. When a party relies Upon fraud, either to support his cause of action or in defense, he must set up the facts which constitute the fraud. Capuro v. Builders' Ins. Co., 39 Cal. 123; O.&V. E. B. Co. v. Plumas Co., 37 Cal. 354. So in pleading mistake. Douglass v. Brooks, 38 Cal. 670. 7. Pleading a judgment. In pleading a judgment of the Probate Court, it is not neces- sary to allege the facts conferring jurisdiction, but the judgment may be stated to have been duly rendered. Beans v. Emanuelli, 36 Cal. 117. 8. Statutes divesting rights to prop- erty. A party claiming a title to property by , virtue of such a statute (relating to condemna- tion of lands) as against the original owner, must allege and prove that all the provisions of the statute for the acquisition of such title have been strictly complied with. Trumpler v. Bemerly, 39 Cal. 490. 9. Different causes of action in same pleading. In pleading, each cause of action or ground of defense should be separately stat- ed, and not so mingled together as to render it impossible to determine the precise nature and ' limits of each. White v. Cox, 46 Cal. 169. 10. Pleading rules or customs. If a Board of Brokers have rules which are not rules or usages of trade and commerce that would be recognized without their adoption by the Board, the Court will not take ju- dicial notice of them unless they are pleaded. Goldsmith v. Sawyer, 46 Cal. 209. See Appeal, 128, 211, 317-320; Contract, 11, 63, 65 ; Corporations, 17 ; Elections, 9 ; Forcible Entry and Detainer, 9, 1 1, 45 ; Foreclosure, 10 ; Eminent Domain, 10 ; Insurance, 13, 14 ; Land and Land Titles, 138 ; Negotiable instruments, 1, 62 ; Quieting Title, 13 ; Quo Warranto, 2 ; Specific Performance, 3 1 ; Taxation, 129-132. II. CONSTEUCTION. 11. Assignment of part of a demand. An averment in a complaint in an action upon an assignment of part of an entire demand in these words', "of which said assignment the defendants have had due notice," is not an- averment that the defendants assented to the assignment. Grain v. Aldrieh, 38 Cal. 514. 12. Rule of. In construing a pleading, it is not permissible to take an isolated sentence, separated from its context, and give effect to it as an independent averment, unless upon the whole pleading it appears to have been so in- tended. Farish v. Coon, 40 Cal. 33. 13. The whole pleading must be construed together ; and it is not proper to eliminate a single paragraph from an answer, and give ef- fect to it as a denial, when it appears from the context, and other portions of it, that the denial was intended to be hypothetical . Ale- many v. Petaluma, 38 Cal. 553. 14. Equivalent averments. An allega- tion in complaint ' ' that said defendant executed to this plaintiff a promissory note," is equiva- lent to an allegation " that defendant made his note payable to plaintiff ' ' ; and an aver- 288 PLEADINGS. merit that defendant executed to plaintiff his note in writing, includes and imports a deliv- ery of the same to the plaintiff. Hook v. White, 36 Cal. 299. 15. Seizin in fee. The allegation in a complaint that, the plaintiff " is the owner " of the land sued for, is in substance an alle- gation of seizin in fee, in " ordinary," instead of in technical language. Garwood v. Hast- ings, 38 Cal. 216. 16. Specifications as to time. In an action on account for services rendered, where the complaint alleges the services were render- ed between two specified days, items occurring on the two days mentioned are not within the allegations of the complaint. Todd v. Myers, 40 Cal. 355. 17. Allegation of law in complaint. An allegation in a complaint in equity to set aside a judgment for a tax, that no notice was given of the proceedings or any of them which re- sulted in the judgment for the tax, is an alle- gation of law and not of fact. Stokes v. Gred- des, 46 Cal. 17. 18. Allegation of possession of land in pleading. An allegation in a complaint, that the plaintiff " assumed to and did exercise acts of control over and possession of portions ' ' of a tract of land, is not equivalent to an aver- ment that the plaintiff had actual possession of the tract of land, or any part of it. Bren- nan v. Ford, 46 Cal. 7. HI. COMPLAINT. 1. In general. 19. Administrator. Where a party is sued as administrator, the complaint must al- lege the appointment of an administrator, and th at the party sued was acting in that capacity, otherwise the judgment would not be binding on the estate of the intestate. Barfield v. Price, 40 Cal. 535. 20. Executor. When a party sues as ex- ecutor, the complaint must contain the pro- per allegations to show that he is entitled to sue in that capacity. Barfield v. Price, 40 Cal. 535. 21. Public officer. In an action against an officer for a trespass committed through his deputy, it is not necessary to state the official character of the defendant in the complaint, or to charge the trespass as having been commit- ted through a deputy. Hirsch v. Band, 39 Cal. 315. 22. Cause of action. The complaint must show a subsisting cause of action ; and when the original cause has been barred by the stat- ute, or a discharge in insolvency, and a new promise is relied on, the new promise must be pleaded. Chabot v. Tucker, 39 Cal. 434. 23. Mistake. In an action to set aside a former judgment between the same parties on the ground of mistake, if the complaint fails to make explanation of the mistake, or the causes which produced it, it fails to set forth facts sufficient to constitute a cause of action. Douglas v. Brooks, 38 Cal. '670. 24. Distinct causes of action. The abatement of a nuisance, and the recovery of damages therefor, are not distinct causes of action, which cannot be united in the same complaint, but merely different kinds of relief to which the plaintiff may be entitled where a nuisance is the cause of action. Yolo County v. City of Sacramento, 36 Cal. 193. 25. Statement cf several causes of ac- tion in complaint. If the damages for which the plaintiff demands satisfaction in his com- plaint, resulted partly from a. successful con- spiracy to expel him from a, church, partly from libelous publications in charges preferred to the church, and partly from the malicious prosecution of those charges before the church, each of these causes of action should be separ- ately stated, so that the defendant may plead to them separately. White v. Cox, 46 Cal. 169. 26. Distinct causes of action. An en- try upon and ouster from a dam site and dam in process of construction, and a canal site and canal in process of construction, and a diver- sion of water claimed by means of the dam and canal, are two distinct causes of action, which cannot be united in the same statement ' of cause of action in a complaint, but should 1 be separately stated. N. C. & S. C. Co. v. Kidd, 37 Cal. 282. 27. The several causes of action upon which a party relies must be set out with di- rectness and precision, the amount due upon each cause of action being separately stated. Watson v. S. P. & H. B. B. B. Co., 41 Cal. 17. 28. Uniting several causes of action in one count. A complaint setting up in one and the same count ownership in, and ouster from, a certain water right, and also a site for a dam, and the land on which a dam is built, and praying for restitution, is demurrable, for improperly uniting several causes of action. Nev. & Sac. Canal Co. v. Kidd, 43 Cal. 180. 29. Damages. In an action for damages the plaintiff must allege in his complaint that he has sustained damages, in order to sustain a judgment for damages. Bohall v. Diller, 41 Cal. 532. 30. Damages, in excess of its value, for the destruction of a book, containing a sub- scription list, cannot be recovered, when the complaint does not allege special damage. Nunan v. San Francisco, 38 Cal. 689. 31. There is no necessary connection be- tween the destruction of an account book, and the loss of a debt therein charged. Id. 32. Presumption as to complaint. As against the plaintiff, the presumption is that his complaint correctly states the contract' which was the cause of action. Johnson v. , 45 Cal. 515. PLEADINGS. 289 33. Tenancy in common. An averment in a complaint, -where there- are several plain- tiffs, that the plaintiffs own seven tenths of cer- tain real estate, raises the legal presumption that they own it as tenants in common. Rey- nolds v. Hosmer, 45 Cal. 616. 34. By husband and -wife. A com- plaint drawn in the name of a, husband and wife, to recover on a note given to the female plaintiff, if it contain no averment that the plaintiffs were husband and wife at the time the note was given, is not bad on demurrer on the ground of a misjoinder of parties plaintiff. Frost v. Harford, 40 Cal. 165. 35. Specific performance. In an action to compel a conveyance of land under an agree- ment of sale, an averment that the plaintiff has been ready and willing, and has offered to accept a conveyance according to the agree- ment, and to pay the balance of the purchase money, is not an averment that he tendered the purchase money. Englander v. Rogers, 41 Oal. 220. 36. In the face of such an agreement, the vendor will not be permitted to aver, if he brings an action to recover possession from the party holding under the contract, that he sold less than the whole title to the land, unless he can also aver that the written contract, by reason of fraud, mistake, or the like, does not show the real contract. Marshall v. Caldwell, 41 Cal. 611. 37. Demand and refusal to deliver property. The allegation that the defendant " has failed, refused and neglected so to re- turn" the property sued for, is not an aver- ment of the special and formal demand and re- fusal to deliver, required in actions of this kind. Campbell v. Jones, 38 Cal. 507. 38. Failure to return execution. In an action against a sheriff for damages for a failure to return an execution, if the com- plaint avers only its receipt by him, and that he Eas collected the money, and has failed to return the execution, this Court will not as- sume, upon a failure to deny the allegations of the complaint, that the Sheriff has failed to pay the money to the plaintiff. Hoag v. Warden, 37 Cal. 522. 39. In an action for damages caused by the sale of the plaintiff's real estate under an exe- cution issued, on an erroneous judgment, after- wards reversed, it is not necessary in the com- plaint to make a direct averment of the exist- ence of the property, if that fact . appears by necessary inference drawn from the facts stat- ed. Reynolds v. Hosmer, 45 Cal. 616. 40. New facts. "Where the alleged new fact existed at the commencement of a former action in which the point in issue was the . same, and the plaintiff neglected to avail him- self of it, he is not entitled to set it up in a subsequent action. Sullivan v. Triunfo Min- ing Company, 39 Cal. 459. CAL. DIG. SUP. 19. 41. Second count in complaint. If the second count in a complaint is in part a copy of the first, but the additional allegations it contains do not present any new or additional ground of relief, the second count is redundant, and the judgment will not be reversed because a demurrer to such second count was sustained, for no injury was sustained thereby. N. S. & S. C. Co. v. Kidd, 37 Cal. 282. 42. Surplus allegation in complaint. An'allegation in a complaint, that B executed an instrument in writing, purporting to con- vey to T a tract of land which is recorded, (stating where) is a mere allegation of evir dence, and may be disregarded as surplusage. Gates v. Salmon, 46 Cal. 362. See Assignment, 5 ; Bill of Particulars, I ; Corporations, 100-104 \ District Attorney, 5 ; New Trial, 12; Sheriff, 10; Trust and Trus- tee, 24 ; Verdict, 16. 2. Prayer in complaint. 43. Demand for relief. Section 39 of the Practice Act requires the complaint to con- tain " a demand of the relief which the plain- tiff claims." The policy is to require, the plaintiff to apprise the party of the extent of the judgment he demands. For this purpose the prayer is sometimes significant. N. C. & S. C. Co. v. Kidd, 37 Cal. 282. 44. Different counts in complaint. If the complaint contains two independent counts, each complete within itself, and concluding with its own appropriate prayer for relief, and separately signed by counsel, the prayer to the second count will not be deemed to have any reference to the first, and on a verdict on the first count only, the relief granted will follow the prayer of that count. Id. 45. The prayer of a complaint is not sub- ject of demurrer. Althof v. Conheim, 38 Cal. 230. See Post, 234-237. 3. In particular actions. 46. Agreement to sell land. An aver- ment in a complaint, that an agreement was made to sell land, is sufficient, without alleg- ing that it was in writing and signed. If denied, the proof must show that it was in writing and signed. Vassault v. Edwards, 43 Cal. 458. 47. Bail bond. In an action upon a bail bond, given by a person held on a criminal charge, the complaint must allege that the person bailed was released from custody upon the execution and delivery of the bond. Los Angeles Co. a. Babcock, 45 Cal. 252. 48. Breach of contract to purchase land. In such a case, the complaint must al- lege a tender of a conveyance. Bohall v. Dil- ler, 41 Cal. 532. 290 PLEADINGS. 49. Damages for personal injury. In an action for damages, for injury caused by defendant's street cars, an allegation by plain- tiff that defendant had no lawful right to lay its track, or run its cars on that portion of the street •where the injury was done, is not irrele- vant, or immaterial. Schierhold v. N. B. & M. R. R. Co., 40 Gal. 447. 50. Dissolution of partnership. If the complaint, in an action to dissolve a partner- ship and settle its accounts, avers a loss, borne exclusively by plaintiff, and asks for judgment for defendant's proportion, and the evidence shows a profit realized by plaintiff in one trans- action, as well as a loss borne by him in another, the account taken should credit the defendant with his part of the profit realized, as well as charge him with his proportion of loss sustained. Clark v. Gridley, 41 Cal. 119. 51. In such case, if the plaintiff has settled with the defendant for his part of the profit realized, it is incumbent on the plaintiff to show that fact on the trial, dark v. Gridley, 41 Cal. 119. 52. To enforce mortgage. A complaint in an action against an administrator, to en- force the lien of a mortgage, need not aver that notice to creditors has been published, but must aver the presentation of the mortgage claim for allowance. Harp v. Calahan, 46 Cal. 222. 53. An allegation in a complaint, in an action brought against an administrator to en- force a mortgage given by the intestate, that the administrator waived the presentation of the mortgage claim for allowance, is irrelevant. Id. 54. To enforce laborer's lien. If the complaint, in an action to enforce a lien on a mining claim for work and labor, avers that the plaintiff performed labor on the mine at the request of the defendant, an answer deny- ing that the labor was performed at the request of" the defendant is not a denial that the work was performed on the mine. Bradbury v. Cronise, 46 Cal. 287. 55. In such action, a denial in the answer that the plaintiff has a lien on the mine is only a conclusion of law and not a denial of a fact. Id. 56. To set aside execution sale. In a complaint to set aside an execution sale, made under a judgment, on account of matters ex- trinsic to the judgment, at which the purchaser was not a party to the judgment, if there is no averment that the purchaser had notice of such extrinsic facts, he will be deemed a pur- chaser without notice. Reeve v. Kennedy, 43 Cal. 643. 57. To set aside conveyance. In an action to set aside, as fraudulent, a conveyance of land, so much of the complaint as sets out in detail the inceptive steps which culminated in the alleged fraudulent conveyance, is not irrelevant or redundant matter. Perkins v. Center, 35 Cal. 713. 58. Insurance. In an action on an insur- ance policy, by the terms of which the loss is to be estimated, and paid sixty days after due notice and proof of the same made by the as- sured, an allegation in the complaint, that the plaintiff performed all the conditions on his part in the policy to be performed, and gave the defendant due notice and proof of the fire and loss, and demanded payment, does not show, that sixty days had elapsed after proof and notice before bringing suit, and the com- plaint does not state a cause of action. Doyle v. Phoenix Ins. Co., 44 Cal. 264. 59. A complaint that alleges an uncondi- tional contract on the part of the defendant for a consideration specified, to insure the hotel and furniture of the plaintiff against loss by fire for a stated period of time, and a loss by fire within the life of the contract, which the defendant has failed to pay, notwithstanding the request of the plaintiff, states a cause of action, and will be held good on demurrer. Clark v. Phoenix Ins. Co., 36 Cal. 168. 60. Judgment. In a complaint, in an ac- tion brought on a judgment, it is unnecessary to aver that an execution has been issued on the judgment, and an unsuccessful effort made to collect it. King v. Blood, 41 Cal. 314. 61. Libel. If it is intended to charge in a complaint that such words were used in an of- fensive sense, such as engaging in a riot to un- lawfully invade the possessions of another, and were so understood by those who read them, there must be a colloquium in the complaint to show in what sense the words were libelous. Clarke v. Pitch, 41 Cal. 472. 62. A colloquium in a complaint for a libel cannot be supplied by an innuendo. The colloquium states the extrinsic facts to show the libelous meaning of the words, and the in- nuendo applies the words to these facts. Clarke 0. Fitch, 41 Cal. 472. 63. Misappropriation of funds. In an action by a stockholder on the refusal of trustees to institute action, it is necessary to aver a demand and refusal, without which the action will not be sustained. Cogswell v. Buell, 39 Cal. 320. 64. Money due on contract. In an action to recover money alleged to be due on a contract, an allegation that the sum sued for is now due, is a mere conclusion of law. Doyle v. Phoenix Insurance Co., 44 Cal. 264. 65. If a party pay a sum as part of the purchase money for land, under an agreement that the sum paid shall be retained by the vendor in case he shall convey a good title to the vendee, the latter, in order to maintain an action to recover the amount paid, must aver in his complaint a tender of the unpaid portion of the purchase money, or give some sufficient excuse for the omission to tender it. Eng- lander v. Rogers, 41 Cal. 420. PLEADINGS. 291 66. Services. A party employed to per- form work at a place distant from that at ■which he was -when employed, cannot recover his passage money to such place if the com- plaint fails to allege any consideration for the promise to pay such passage money. McFad- den v. Crawford, 39 Cal. 662. 67. Nuisance. In an action to abate a nuisance and for damages, founded on Section 249 of the Practice Aot, plaintiffs charged in their complaint that the alleged nuisance was caused by the erection and maintenance by de- fendants of a dam across a canon, on which plaintiffs' mining claim was situated, and be- low their claim, by which the outlet for the water and tailings from their claim was ob- structed to such an extent as to render its working impracticable. To which the defend- ants replied, admitting in effect the erection of the dam and its effect upon the work of the plaintiffs, but denying plaintiffs' title to the mjning ground or their right to work the same, and alleging that the ground worked by plaintiffs is in fact a part of their claim, and that the dam was erected for the purpose of working their claim, which could not be worked without it; Held, by the Court, that to enable the plaintiffs to recover they must show : 1st. That they owned the ground claimed by them. 2d. That the dam pre- vented their working it to advantage. 3d. Alternatively, that defendants had no title to the bed of the canon ; or, if they had, that their right was acquired subsequent to that of the plaintiffs, or, if prior, that the dam was not needed, to enable defendants to work to ad- vantage. Stone v. Bumpus, 40 Cal. 428. 68. In an action to abate a nuisance, a complaint which fails to allege that the plain- tiff possessed the right to use the canon, the obstruction of which constituted the nuisance, is radically defective. Stone v. Bumpus, 40 Cal. 428. 69. Special damages to private person, from nuisance in obstructing a public highway, must be particularly stated in the complaint. The means by which the damages were caused must be alleged in the complaint. L. T. Co. v. S. & W. W. E. Co., 41 Cal. 562. 70. In an action by the owner of a toll road against another for damages caused by obstructing the public highway leading to his road, the plaintiff must allege that his right to. collect tolls has been disturbed, or it will be presumed that he has received no injury by reason of the obstruction. Id. 71. Promissory note. In an action on a promissory note by an indorsee, the fact of the indorsement only need be pleaded to show title in the plaintiff, and an averment in the answer that the plaintiff is not the legal owner or holder of the note is but a legal con- clusion, and raises no issue of fact ; and so an averment in the complaint that plaintiff is the owner and holder of the note and entitled to receive the money due thereon, presents no issuable fact, and will be treated as surplusage. Poorman v. Mills, 35 Cal. 118. 72. An averment in a complaint on a promissory note " that the plaintiff is still the owner and holder of the note," etc., is sur- plusage. Hook v. White, 36 Cal. 299 ; Poor- man v. Mills, 35 Cal. 118. 73. A complaint on » ( promissory note should allege that the note remains due and unpaid. Without such allegation it does not state facts sufficient to constitute a cause of action. Davanay v. Eggenhoff, 43 Cal. 395. 74. Quieting title. A complaint, in an action to quiet title under the two hundred and fifty-fourth section of the Practice Act, which fails to aver possession of the property in plaintiff at the commencement of the action, is defnurrable. ' Pralus v. Jefferson Gr. & S. M. Co., 34 Cal. 558. 75. Where plaintiffs alleged that by reason of defendants' adverse claim, " they were greatly embarrassed in the use and disposition of their mining claims," and "that thereby their value was greatly depreciated": held, a sufficient averment of injury. Pralus v. P. . a. & S. M. Co., 35 Cal. 30. 76. Cloud on title. In an action to re- move a cloud upon title, the facts which show , the apparent validity of the instrument which is said to constitute the cloud, and also the facts showing its invalidity, should be stated in the complaint. Hibernia Savings and Loan Society v. Ordway, 38 Cal. 679. 77. But when the instrument which con- stitutes the cloud is a tax deed, which, under the statutes of this State, is declared to be prima facie evidence of title, the name of the instrument is sufficient for the purpose of showing an apparent validity. Hibernia S. & L. S. v. Ordway, 38 Cal. 679. 78. Recognizance. Where a complaint on a forfeited recognizance sets forth that the name of the accused for whose appearance to answer it was given, and the name by which he was indicted, was Antonio Martini, but that it was given in the recognizance as An- tonio Martinez, and that the same person was intended : held, that a demurrer on the ground of ambiguity and uncertainty as to the person accused was properly overruled. People I?.- ,Baton, 41 Cal. 657. 79. In an action on a recognizance, where it appeared that the accused was named Mar- tini in the indictment and Martinez in the recognizance, and there was testimony that the same person who was held to answer by the name of Martinez was indicted by the name of Martini : held, that a motion for nonsuit on the ground of the variance of names was properly overruled, and that a finding that the person^indicted was identical with the person held to answer, was justified. Id. 80. For rents and profits. The aver- ment in a complaint,, by a purchaser at a Sheriff's sale of a tract of land, against the 292 PLEADINGS. tenant in possession, for rents accruing during the period allowed for redemption, that " the money paid and agreed to be paid by the de- fendant to the defendant in the execution, as the rental of the premises, was $150 per month, payable monthly," and that "pay- ment had been demanded and refused," is a sufficient allegation that rent is due. Webster v. Cook, 38 Cal. 423. 81. The allegation that the rent was "payable monthly," is not an averment that it was payable in advance. Id. 82. Redemption. Whenever a subse- quent mortgagee files a bill to redeem the former mortgage, or to redeem the former and to foreclose his own, he may allege and show that the claim of the prior mortgagee has been exaggerated, or any other kindred fact which will increase the fund. Carpentier v. Bren- ham, 40 Cal. 221. 83. Rescission of contract. In an action to rescind a sale of real estate, on the ground of fraudulent representations, security, averred in the complaint to have been given for the purchase money, will be presumed to be adequate unless the contrary is expressly averred. Purdy v. Bullard, 41 Cal. 444. 84. In order to recover possession of premises on the ground of rescission of con- tract, the plaintiff must allege a repayment or tender of the amount paid by the defendant at the execution of the contract. Bohall v. Dil- ler, 41 Cal. 532. 85. Undertaking given on appeal. In an action upon an undertaking given on ap- peal from the judgment of a District Court for the possession of real estate, for costs and dam- ages, and for the value of the use and occupa- tion of the premises, it is not necessary to aver in the complaint that the District Court had jurisdiction to render the judgment appealed from. Murdock v. Brooks, 38 Cal. 596. 86. Nor is it necessary tq allege that the undertaking had the effect to stay the execu- tion of the judgment, if it appears therein that proceedings for the execution of the judgment were never taken, and that the appellant has full benefit of a stay pending his appeal. Id. 87. If a copy of the undertaking be set out in the body of the complaint it will be taken and considered as a part thereof. Id. 88. A complaint, in such a case, is not de- fective, because it contains no averment that an execution had been issued, and returned unsatisfied, 'or because no demand for payment is alleged to have been made on the principal. Id. 89. Nor is it necessary to allege that the plaintiff in the judgment was entitled to the possession of the premises pending the appeal. Id. 90. Written contract. A contract in writing may be declared on according to its legal effect, or in hcec verba. Where the con- tract is made part of the complaint, it must show upon its face, in direct terms, and not by implication, all the facts which the ' pleader would have to allege in the mode of pleading by averment, and where the contract is of such character it is more consistent with the mode of pleading prescribed in the Practice Act to declare on it in hcec verba. Joseph v. Holt, 37 Cal. 250. See Claim and Delivery, 5-7 ; Ejectment, 5, 12, 13, 20, 52, 125 ; Election, 10; Forcible En- try and Detainer, 45, 47 ; Injunction, 28 ; Land and Land Titles, 42, 43, 147; Mortgage, 7 ; Mechanic's Lien, 29 ; Streets and Street Assessments, 105-112; Taxation, 126-128. IV. OBJECTIONS WAIVED BY FAILURE TO DEMUR. 91. Defect in manner. When a com- plaint is defective in manner rather than in matter, if no objection is taken by demurrer, it will be held sufficient to support a judgment. Russell v. Mixer, 42 Cal. 475. 92. In a suit for partition, if the complaint fails sufficiently to state the origin, nature or extent of the interest of the plaintiff, objection should be presented by demurrer. If not taken in that mode, it is waived. Broad v. Broad, 40 Cal. 493. 93. Defect of parties. If all the parties interested in the demand, where there has been an assignment of «. part of it, are not made parties to the action, the objection, under the Code, to the complaint, is not that it lacks facts, but that it lacks parties, and will be waived unless the complaint is demurred to on that ' » ground. Grain v. Aldrich, 38 Cal. 514. 94. Misjoinder of parties plaintiff in complaint. When it appears on the face of the complaint that there is a misjoinder of par- ties plaintiff, the objection must be taken by demurrer, and cannot be taken by answer. Tennant v. Pflster, 45 Cal. 270. 95. Misjoinder of causes. If a complaint improperly unites two causes of action, or is ambiguous and uncertain, the defect must be taken advantage of by demurrer, or it is waiv- ed. Lawrence v. Montgomery, 37 Cal. 183 ; Shelby v. Houston, 38 Cal. 410. 96. 'Waiver. Unless the objection of a misjoinder of parties or causes of action is taken by demurrer, it is considered waived. Hibernia S. & L. Society v. Ordway, 38 Cal. 679. 97. And if a demurrer on these grounds has been interposed, but not prosecuted, and be overruled by the Court below, because it was not prosecuted, the objection will be held to be waived. Id. 98. Objection that an account is unin- telligible. If an account on which the plain- tiff seeks to recover is attached to and made a part of the complaint, an objection that it is unintelligible cannot be raised unless taken by PLEADINGS. 293 demurrer. Goldsmith v. Sawyer, 46 Oal. 209. See Forcible Entry and Detainer, 48. V. DEMURRER. 99. Statute of Limitations. On demur- rer to a complaint, founded upon, the Statute of Limitations, if the complaint fails to show whether the contract in suit was verbal or in writing, it will be presumed to have been in writing for all the purposes of the demurrer. Miles v. Thome, 38 Cal. 335. 100. Ambiguity. A demurrer, on the ground.of ambiguity, should be overruled, if enough appears to render the pleading demur- red to easy of comprehension and free from reasonable doubt. Salmon v. Wilson, 41 Cal. 595- 101. A complaint is ambiguous, unintelli- gible, and uncertain, which avers that the plaintiff delivered a horse to the defendant of the value of three hundred dollars, on an agreement that the latter would sell him and account for the proceeds ; and that the defend- ant accepted the horse at the price of three hundred dollars, and promised to sell him at that price and account for the proceeds, and that the defendant sold the horse without stating at what price. Tomlinson v. Monroe, 41 Cal. 94. 102. Such a complaint is founded on con- tract and not "upon tort. Id. 103. A complaint which in one part avers a covenant for a lease, and in another part states matter which constitutes the contract a present lease, is bad on demurrer for ambiguity. Crow v. Hildreth, 39 Cal. 618. 104. A complaint which leaves it in doubt whether the plaintiff sues for a trespass upon and ouster from his dam site and dam in pro- cess of construction, or for a diversion of the water claimed by the plaintiff, is ambiguous, and a demurrer for that reason should be sus- stained. N. S. & S. C. Co. v. Kidd, 37 Cal. 282. 105. What must specify. A demurrer to a complaint on the ground that it is ambig- uous, unintelligible, and uncertain, must specifically state in what the ambiguity or un- certainty consists, or it will be disregarded. Yolo County v. City of Sacramento, 36 Cal. 193- - 106. Uniting several causes of action. Where a complaint set forth a contract by de- fendants to build a dam, and their failure to comply therewith ; alleged damages to plain- tiffs on account of loss of profits which they would have made by their ditch if the dam had been built, and demanded a judgment for damages : field, that a demurrer on the ground that it united two causes of action would not lie. Reedy v- Smith, 42 Cal. 245. 107. In an action to compel the convey- ance of land in pursuance of an agreement, the complaint did not clearly set forth whether the title which the defendant agreed to ob- tain, and did obtain, was a title to the land as lieu land or a title under the pre-emption laws of the United States : held, that the complaint was ambiguous and uncertain. Hudson v- Johnson, 45 Cal. 21. 108. Demurrer for ambiguity, what must state. A demurrer to a complaint for ambiguity must state wherein the com- plaint is ambiguous, or it will be disregarded. Lorenzana v. Camarillo, 45 Cal. 125. 109. Uncertainty in complaint. A de- fect in a complaint for uncertainty must be taken advantage of by special demurrer. It is not reached by a general demurrer. Rey- nolds v. Hosmer, 45 Cal. 616. 110. In an action by J, a vendor of real estate, against H, his vendee, to compel, first, a specific performance, and, second, if from any cause such performance should be impossible, then to recover judgment for the purchase money, etc., the complaint showed that at the date of the alleged contract the plaintiff was the owner in fee of the land in question, and that, being desirous of selling, and the defendant minded to buy, the parties entered into and signed the following agreement: "I have this day purchased of J his brick building and lot * * * for the sum of ten thousand dollars, to be paid in the following, viz : To give two promissory notes of S and G for two thousand dollars each, dated 13th July, 1867 ; * * * * also, one note for two thous- and seven hundred and seventy-five dol- lars, dated July 13th, 1867; * * * * *• and my note for three thousand dollars, payable at ten years from date. * * * I also agree to release J from paying the taxes on the property herein described due for the years 1867 and 1868. Abstract of title must be satisfactory. Signed, H and J," and dated at San Erancisco, September 26th, 1867. The complaint further alleged that upon due performance of the contract by the defend- ant, the plaintiff was ready and wiliing to convey the premises by good and sufficient deed and let the defendant into possession. That the defendant, upon demand duly made, refused to perform the contract, and expressly waived a tender of said deed by the plaintiff. The Court below sustained a demurrer to the complaint, on the ground that it did not state facts sufficient to constitute a cause of action. Held, that while said agreement in writing is valid under the Statute of Frauds, it is never- theless insufficient as a pleading of the con- tract of sale sought to be enforced, and that the demurrer was properly sustained. Joseph v. Holt, 37 Cal. 250. '111. Insufficient facts. A complaint is not demurrable on the score of a want of facts, if upon the facts stated the plaintiff is entitled to any relief, either at law or in equity. Grain ' v. Aldrich, 38 Cal. 514. 294 PLEADINGS. 112. G & M sued A "W & Co. upon an as- signment of part of an entire demand against them, but did not aver that the assignment had been assented to by A W & Co., tor did they make the holders of the remainder of the demand parties to the action. A W & Co. demurred to the complaint for want of facts, but not for want of parties. Held, that the demurrer, under the Code, was bad. Id. 113. Defects in form. When a com- plaint is defective in form, but not in sub- stance, such defect can only be reached by de- murrer, on the ground that the complaint is unintelligible or uncertain. Merrit v. Glid- den, 39 Cal. 559. 114. In an action to obtain a reconveyance of one or two tracts of land, described in the same deed, which it is alleged was conveyed by mistake, and the complaint failed to show sufficiently that a mistake was committed, or to explain why the plaintiff included in the conveyance the second tract after having de- scribed the one intended to be conveyed : held, that a demurrer to the complaint was properly sustained. Barfield v. Price, 40 Cal. 535. 115. Complaint either legal or equit- able not demurrable. If a complaint states facts which entitle the plaintiff to relief, either legal or equitable, it is not demurrable on the ground that it does not state facts sufficient to constitute a cause of action. White v. Lyons, 42 Cal. 279. 116. Equitable complaint setting out legal cause of action. Though a complaint purporting to be a bill in equity is insufficient as such, yet if the facts alleged are cognizable in a Court of law, the proper relief will be ad- ministered ; and a demurrer for want of facts sufficient to constitute a cause of action will not lie. Id. 117. Question of ambiguity not raised on general demurrer for want of facts. Under a general demurrer that a complaint does not state facts sufficient to constitute a cause of action, an objection cannot be taken that it is merely ambiguous. Slattery v. Hall, 43 Cal. 191. 118. Sufficiency of statement of facts. Objections which go to the sufficiency of the statement of facts contained in the complaint, but not to the sufficiency of the facts themselves, cannot be entertained, unless presented by special demurrer. Hlmmelmann v. Spanagel, 39 Cal. 401. 119. Grounds of special demurrer. Grounds of special demurrer which were not presented in the Court below, will not be con- sidered in the Supreme Court. Gale v. T. C. Water Co., 44 Cal. 43. 120. Office of a demurrer. It is not the office of a demurrer to set out facts. All the facts devolved in a demurrer are those alleged in the pleading demurred to, and the demurrer merely raises a question of law as to the suf- ficiency of those facts. Brennan v. Ford, 46 Cal. 7. 121. Form of demurrer. An allegation in a demurrer, " that it appears by the com- plaint that the cause of action is barred by the Statute of Limitations," is sufficient in form to raise the question of law as to whether the al- leged cause of action is barred by the statute. Id. 122. Allegation of an agreement in pleading. When a pleading alleges an agree- ment to have been entered into by parties, but does not aver whether it was verbal or in writ- ing, the presumption, on demurrer, is that it was in writing. Brennan v. Ford, 46 Cal. 7. See Appeal, 32-34, 129, 130, 236, 273, 276, 321, 323; Forcible Entry and Detainer, 49; Parties, 1 ; Trial, 68, 69. VI. ANSWER. 1. In general. 123. Immaterial averments. Immate- rial averments in a pleading need not be an- swered, and if it be done, both the complaint and answer, so far as they relate thereto, will be disregarded when the sufficiency of the pleadings and issues are brought in question. Jones v. City of Petaluma, 36 Cal. 230. 124. Verification of answer. If the plaintiff goes to trial on the merits, without objection to the verification of an answer, he will not be allowed to raise the point in the ap- pellate Court that it was not properly verified. ' McCullough v. Clark, 41 Cal. 298. See Corporations, 105-106 ; Ejectment, 62, 69. 7°, 91, 93- 2. Denials. 125. On information and belief. In a verified answer, a denial ' ' upon' ' information and belief, is sufficient. Kirstein v. Madden, 38 Cal. 158. 126. An answer that denies a material averment of a complaint ' 'upon information and belief " is a sufficient denial to raise an issue thereon. (Vassault v. Austin, 32 Cal. 597, and Roussin v. Stewart, 33 Cal. 208, affirmed.) Jones v. City of Petaluma, 36 Cal. 230. 127. Form of answer. An answer which commences by stating that the defendant for answer says he denies, etc. , is in form of ex- pression unexceptional, and the Court will not call in question the fact of denial. Espinosa v. Gregory, 40 Cal. 58. 128. Denial of allegation of complaint. If the complaint, in an action to enjoin the diversion of water, alleges that the plaintiff has appropriated and used the water for more than five years, and the answer denies that the plaintiff ever at any time used or took up or PLEADINGS. 295 appropriated the water, the denial is sufficient. Wilkins v. MoCue, 46 Cal. 656. 129. If the complaint in such action avers that from the spring there ran and flowed im- memorially upon the plaintiff's premises a con- stant and never-failing stream of pure fresh water„ and the answer denies that the water flowing from the spring ever at any time ran or flowed to or upon the plaintiff's premises, the denial is sufficient. Id. 130. Where defendant alleges that he owns the ground in dispute, or denies that the plain- tiff is the owner, without alleging title in, him- self, it is competent to him to overcome the plaintiff's evidence of title by showing title in himself. Stone v. Bumpus, 40 Cal. 428. 131. A denial in the answer that the rela- tion of trustee and cestui que trust exists be- tween the parties, dispenses with the necessity of averring in the complaint, or proving a prior demand and refusal. Barrett v. Byers, 40 Cal. 614. 132. Evidence admissible under gen- eral denial. Proof of abandonment of min- ing claim is admissible under the general denial of title. Bell v. Bedrock T. & M. Co., 36 Cal. 214. See Corporation, 7-9 ; Evidence, 20 ; Execu- tion, 39 ; Eorcible Entry and Detainer, 50 ; Injunction, 29, 35-37 ; Mandamus, 37-39, 45. 3. Insufficient denials. 133. Admissions by failure to deny. The rules of pleading, under our system, are intended to prevent evasion, and 'to require a denial of every averment in a sworn com- plaint, in substance and in spirit, and not merely a denial of its literal truth : and when the defendant fails to make such denials he admits the averment. Doll v. Good, 38 Cal. 287. 134. Conjunctive denials. If several material facts are stated conjunctively in a verified, complaint, an answer which under- takes to deny these averments as a, whole, conjunctively stated, is evasive, and an admis- sion of the allegation thus attempted to be denied. Id. 135. The allegation of a complaint, that M, at the time of his death, owned and was in possession of twenty-two head of work oxen, each worth $75, is not put in issue by a denial "that M, at the time of his death, was in the possession of, or the owner of, twenty-two head of work oxen, worth $75 per head." On the contrary, it is evasive, and equivalent to an admission of the allegation. Id. 136. Evasive denials. To a complaint seeking to enforce the lien of an assessment for street improvements in San Francisco, an an- swer which denies that the Superintendent of Streets " originally " made the assessment in his official capacity, is evasive, and tenders an immaterial issue. Shepard v. McNeil, 38 Cal. 72. 137. The .complaint alleged that "East street, in the city of Stockton, had been laid out and dedicated as a public highway, and has been used as a public thoroughfare, for six- teen years. ' ' The answer denies that there is such a street in Stockton. Held, that the an- swer is evasive. Euhn v. Weber, 38 Cal. 636. 138. Insufficient denial. In an action for damages, a denial in the answer that the plaintiff has suffered damage in the exact sum claimed in the complaint, is insufficient. Huston v. T. & C. C. T. K. Co., 45 Cal. 550. 139. One of the allegations of the com- plaint was that "the defendant fraudulently transported plaintiff into Kern County, for the purpose of having her served with a copy of the summons and complaint." The answer to which was as follows: "Defendant denies, and it is not true, that he fraudulently trans- ported plaintiff into Kern County for the pur- pose of having her served with a copy of the complaint and summons in said aforesaid ac- tion. ' ' Held, to be a palpable evasion of the substance of the charge which it pretended to answer. De Godey v. Godey, 39 Cal. 157. 140. Ambiguity and uncertainty in pleading. An answer, in an action against a tenant for unlawful detainer, which avers that a person, not a party to the suit, had formerly brought an action to quiet title, to the de- manded premises, and that such person was at the time in the actual possession of the prem- ises, claiming title in fee thereto, is not ambig- uous nor uncertain. Douglas v. Dakin, 46 Cal. 49- 141. Denial of legal conclusions. If the complaint avers the sale and delivery to defendant of goods, and the value of the same, an answer which denies the indebtedness, but does not deny the facts — the sale and delivery, and amount of goods — does not raise an issue, as it only denies the legal conclusion resulting from the facts. Lightner v. Menzell, 35 Cal. 452. 142. An averment in an answer that the plaintiff's debt is barred by a discharge in in- solvency, is only .a conclusion of law, and not the statement of a fact. Christy v. Dana, 42 Cal. 175. 143. If the complaint alleges that an act was wrongfully and maliciously done, a denial in the answer that it was wrongfully and maliciously done does not put in issue the doing of the act. Kinsey v. Wallace, 36 Cal. 463- 144. If the complaint avers that the de- fendant wrongfully broke down the plaintiff's flume for carrying water, and the answer de- nies that the defendant wrongfully broke down the flume, it is an admission that the defendant broke down the flume, and only a denial of its wrongful character. Eeely v. Shirley, 43 Cal. 369. 296 PLEADINGS. 145. If a complaint avers the commission of a -wrongful act by the defendant, and the answer merely denies the wrongful nature of the act, and the plaintiff owns the property upon which the injury was done, the plaintiff is entitled to nominal damages without proof that the defendant committed the act. Feely v. Shirley, 43 Cal. 370. 146. A defense by the payer of a note, that the plaintiff is not the lawful owner or holder of the instrument sued on, when upon its face it runs to him, and which discloses no issuable fact to support it, is merely frivolous. Feloh v. Beaudry, 40 Cal. 439 ; Poorman v. Mills, 35 Cal. 118. 147. If the complaint avers a judgment, and the issuing of an execution thereon, and a sale thereunder of land, and the answer denies the validity of the judgment, and avers that it was void for want of jurisdiction, and denies that the plaintiff acquired any title by the pre- tended, sale by the Sheriff, the execution and sale thereunder are not sufficiently denied to require the execution to be put in evidence. Leec. Figg, 37 Cal. 328. 148. Value. When a complaint alleges the value of all the property destroyed, for which suit is brought in gross — for some items of which no recovery can be had — an answer, which contains no denial of the averment of value, will not be held as admitting the value of the property for which a recovery may be had. Nunan v. San Francisco, 38 Cal. 689. 149. Admission binds party. When it is admitted by the pleadings that a promissory note in suit given to a married woman was as- signed by the payee to the plaintiffs, the ques- tion cannot be raised on the trial whether the assignment was made in such form as to pass the interest of a married woman. Hellman v. Howard, 44 Cal. 101. 150. Facts admitted in pleadings. The question as to what facts are admitted by the pleadings is one for the Court and not for the jury, and the Court should not submit such a question to a jury. Tevis v. Hicks, 41 Cal. 123. 151. K acquired the legal title to land under such a state of facts as made his purchase fraudulent, and made him the trustee of S. U bought from K. S commenced an action against U, to have him declared his trustee, and to compel him to convey the land. In his complaint he averred the facts, showing K's fraud, and which, in law, made him theplain- tiff's trustee. S, in his answer, admitted these facts and his knowledge of them , but denied that he became the trustee of S, or that there was any- thing unfair or fraudulent in the facts alleged. Held, that the answer admitted the trust. Scott v. TJmbarger, 41 Cal. 410. 152. Facts admitted in answer. A de- fendant on the trial cannot controvert a fact admitted by the pleadings. Bradbury v. Cronise, 46 Cal. 287. See Ejectment, 118; Evidence, 143- 1 46; In- structions, 9 ; Judgment, 49-54. 5. Defenses. A. Generally. 153. Bad faith in entry cannot be set up by one tenant in common against another. In an action of ejectment by one tenant in common against another, the latter cannot invoke the maxim, Ex dolo malo non oritur actio, nor defend upon the ground that he and plaintiff entered upon the premises wrongfully in the first instance. Bornheimer v. Baldwin, 42 Cal. 27. 154. Neither of two inconsistent de- fenses to be disregarded. Though two de- fenses, separately pleaded under Section 49 of the Practice Act, may be inconsistent, the plaintiff cannot disregard them, or either of them, on the trial. Buhne v. Corbett, 43 Cal. 264. 155. Separate defenses may be incon- sistent if answer is not under oath. A separate plea or defense should not contain matters repugnant or inconsistent in them- selves ; but a defense regarded as an entirety is not to be defeated or disregarded merely be- cause it is inconsistent with some other plea or defense pleaded ; and there is no distinction in this respect between verified and unverified pleadings. Id. 156. What is new matter in an answer. If a judgment entered by confession is prima facie fraudulent because the statement upon which it was entered fails to set out the facts upon which the indebtedness accrued, and a bill is filed by a creditor of the judgment debtor to set aside the judgment, allegations in the answer of the facts out of which the indebted- ness arose are matters in avoidance of the prima faciefraudulent judgment, and are new matter. Pond v. Davenport, 45 Cal. 225. 157. Equitable defense in an action at law. In setting up an equitable defense in an action at law the defendant becomes an actor and the defense interposes a pleading in equity, the sufficiency of which — in matters of sub- stance, though not in point of mere form — is to be determined by the application of the rules of pleading observed in Courts of equity, when relief is sought there in cases of like character. Bruck v. Tucker, 42 Cal. 346. See Appeal, 123 ; Claim and Delivery, 8-10 ; Criminal Law and Practice, 135-146 ; Eject- ment, 53-90 ; Equity, 37 ; Forcible Entry and Detainer, 52-55 ; Funds, 10 ; Judicial Sale, 14, 15 ; Libel, 9 ; Malicious Prosecution, 6-8 ; Ne- gotiable Instruments, 60 ; Streets and Street Assessments, 1 13-120 ; Sureties, 6; Taxation, 129-133, 153. PLEADINGS. 297 B. In Abatement. 158. Answers in abatement. Answers in abatement of an action are to be strictly con- strued. Larco v. Clements, 36 Cal. 132. 159. Another action pending. In an ac- tion to recover land, an answer of another ac- tion pending for the same cause must show that the same title, the same injury, and the. same subject matter are in controversy in both actions. Larco v. Clements, 36 Cal. 132. 160. Where the pendency of another suit is pleaded in bar of action, the same jperson must appear to be the plaintiff in both actions. Felon v. Beaudry, 40 Cal. 439. 161. The defense that there is another ac- tion pending between the same parties for the same cause must be pleaded, otherwise evidence cannot be introduced to support it. Walsworth v. Johnson, 41 Cal. 61. 162. A defendant who interposes a defense of another action pending between the same parties for the same cause, must support it by the record of an action in which he is also a defendant and the present plaintiff is plaintiff. If the party who interposes such defense is a plaintiff in such other action, it is no defense, although for the same cause. Id. 163. Non-joinder. A plea in abatement by the defendants sued, of the nonjoinder of other parties who are alleged to be necessary defendants, if proved on the trial, must pre- vail, even if the plaintiff was ignorant of the fact' that such other parties were necessary defendants. McDonald v. Backus, 45 Cal. 262. 164. Misjoinder of parties. Where a misjoinder of parties plaintiff does not appear upon the face of the complaint, and the objec- tion is not taken by answer, it is deemed waived. Hastings v. Stark, 36 Cal. 122. 165. If an answer in abatement is found true, the judgment should not be a bar, but that the suit abate. Larco v. Clements, 36 Cal. 132. C. In bar. 166. Agreement as discharge of debt. An agreement between the parties which is to operate as a discharge of a debt in suit must be pleaded in defense of the pending action. Sweet v. Burdett, 40 Cal. 97. 167. Pleading an estoppel. An estoppel which is of equitable cognizance must be pleaded, or it will not be considered on the trial. Etcheborne v. Auzerais, 45 Cal. 121. 168. Estoppel by matter of record. Estoppel by matter of record must be pleaded. Blood v. Marcuse, 38 Cal. 590. 169. Estoppel. A previous adjudication, in which the same rights were put in issue, may be properly pleaded by way of estoppel in a subsequent proceeding in equity, between the same parties. San Francisco v. S. V. W. W., 39 Cal. 473. 170. The defendant is entitled to plead his discharge in insolvency in bar of Such action, by supplemental answer. Bahn v. Minis, 40 Cal. 422. 171. Where a discharge in insolvency is pleaded in bar of an action commenced before the proceedings in insolvency were instituted, . a judgment in favor of plaintiff is conclusive that he was entitled to his judgment, not- withstanding the alleged discharge in insol- vency. Id. 172. Where such plea is omitted, the judg- ment is as conclusive upon the defendant as it would be had his defense been accord and satis- faction, payment, etc., which he had neglected to plead. Id. 173. If the record of, the proceedings in insolvency neither names the plaintiff, nor the contract in suit, nor states that the defend- ant has described all his debts and liabilities to the best of his knowledge and recollection, the discharge constitutes no defense to the action. Bourke 1;. McLaughlin, 38 Cal. 196. 174. Failure of consideration. A failure of consideration, in whole or in part, after a bona fide assignment of a promissory note, is no defense to a suit by the assignee against the maker, even though the assignee had full knowledge of the original consideration for which the note was given. Splivalo v. Patten, 38 Cal. 138. 175. Want of consideration. If McL and'wife convey to B for the sum of one thous- and dollars, and on the same day, and as a part of the same transaction, B gives McL and wife a contract for the sale of the same land, for the same price, payable by installments, and for a good and lawful deed upon the pay- ment of the purchase money, in an action by B to recover an installment, McL and wife can- not rely upon an alleged want of title to the land in B, as a defense to the action. Bourke v. McLaughlin, 38 Cal. 196. 176. Fraud. In an action to recover dam- ages for taking personal property, the defend- ant, who has taken the property from the plaintiff, will not be permitted to show in de- fense that the former owner made a fraudu- lent sale of the property to the plaintiff, un- less in his answer he makes himself the repre- sentative of the former owner, and alleges he he was defrauded by the sale. Leszinsky v. White, 45 Cal. 278., 177. Answer, when the wife seeks to avoid her mortgage. If the wife seeks to avoid her mortgage on the ground of the same having been executed or acknowledged under the compulsion or undue influence of her hus- band, she must allege such to be the fact in her answer. An allegation that she did, not . acknowledge it freely and voluntarily is not sufficient. Conn. Life Ins. Co. v. McCormick, 45 Cal. 580. 298 PLEADINGS. 178. Forfeiture and abandonment. Where the defendant to an action to quiet ti- tle to a mining claim on the public lands set up in a supplemental answer both abandonment and forfeiture by plaintiffs of their asserted title and possession to said claim after suit commenced, but failed to set up any subse- quently acquired rights therein by defendants : held, that said matters were unavailing to de- fendant as defenses to the action ; and a failure of the Court to make special findings of fact thereon was immaterial. Pralus v. Pacific Gr. & S.- M. Co., 35 Cal. 30. 179. Prescription must be pleaded. A defendant, in an action for the diversion of water, cannot have the benefit of an adverse user or prescription as a defense, unless it is set up in the answer. Mathews v. Ferrea, 45 Cal. 51. ■ 180. Prescription as against a pur- chaser from the United States. Prescrip- tion will not avail as a defense as against one who purchased from the United States, unless the user has been adverse for the requisite period after the title passed from the United States. Id. 181. Former judgment. A judgment in a former action is well pleaded as a bar in a second action, provided the cause of action is the same, though the form of action had been "changed. Taylor v. Castle, 42 Cal. 367. 182. Whatis "same cause of action." A cause of action is said to be the same as that in a former suit, where the same evidence 'will support both actions ; and a. judgment in such former action will be a bar, provided the evidence necessary to sustain a judgment for plaintiff in the second would have authorized a judgment for plaintiff in such former one. Id. 183. Statute of Limitations. In an action for the value of services rendered, a plea which does not aver that the cause of action accrued more than two years before the commencement of the action, but only that the services con- tracted to be rendered by the plaintiff were rendered more than two years before action brought, is insufficient as a plea of the Statute of Limitations. Hartson v. Hardin, 40 Cal. 264. 184. Parol license must be pleaded. In order to justify the excavation of a ditch on the land of another under a. parol license, the license must be pleaded. Alford v> Bar- num, 45 Cal. 482. See Estoppel. 6. Counter claim. 185. Damage for libel not a counter claim. In an action for damages for an as- sault and battery, a libel published by the plaintiff of and concerning the defendant does not constitute a counter claim within the mean- ing of Section 47 of the Practice Act. Mac- dougall v. Maguire, 35 Cal. 274. 186. When a libel is set up in the answer as a counter claim in an action for an assault and battery, the objection to such counter claim is not waived by a failure to demur, and evidence to support it is inadmissible. Id. 187. Set-off or counterclaim. An an- swer which asserts a set-off, or counter claim, is not a cross complaint within the meaning of the Practice Act, and no denial thereof, by the plaintiff, is required. Jones v. Jones, 38 Cal. 584. 188. Pleading .must show its exist- ence at commencement of action. Where an answer, in setting up counter claims in the nature of a promissory note and work and labor, failed to show when the note was due or the work and labor performed : held, that it did not appear that the counter claims relied on existed in favor of defendant at the com- mencement of the action, and that a demurrer on the ground of not staging facts sufficient to constitute counter claims was properly sus- tained. Gannon v. Dougherty, 41 Cal. 661. 189. In an action against the maker and indorser of a promissory note, brought by one to whom it was indorsed after it fell due, must not a counter claim set up in the answer be confined to some matter connected with the note, such as payment, want or failure of con- sideration, etc., or can a collateral demand be set up as such counter claim ? Query ? Curtis v. Sprague, 41 Cal. 55. 190. In such action, if the counter claim exceeds the amount due on the note, can judg- ment be rendered against the plaintiff for the balance ? Query f Id. 191. In an action against the maker and indorser of »■ promissory note, must not a counter claim, to be available at law, be one existing in favor of the defendants jointly. Query f Id. 192. In an action on a promissory note by the payee against one of two joint and several obligors, the defendant pleaded a demand, as a counter claim for damages for the unskillful construction of a mill by the plaintiff for the defendant, his co-obligor, and T, for the con- struction of which the note in suit was given in part payment : held, that said counter claim being for unliquidated damages, and in part a demand in favor of a stranger to the note and suit, it was unavailable as a defense to the action. Hooki;. White, 36 Cal. 299. 193. Recoupment of damages. A claim of A and B to recoup damages from C, by way of set-off against the promissory note of A, B and D, held by C, cannot be sustained, nor can such claim for damages be set off against an aliquot part of the sum due on the note. King v. Wise, 43 Cal. 628. 194. Judgment. A judgment for costs, in an action for the recov ery of real property against the tenants in possession, which was de- PLEADINGS. 299 fended by the landlord in the name of the ten- ants, cannot as such be enforced against the landlord, or be made the ground of a counter claim against him. Murdock v. Brooks, 38 Cal. 596. 195. A person, may receive the money due on a judgment rendered in favor of himself and several others, coplaintiffs, but he . cannot without authority from his coplaintiffs set off a judgment due to him and them jointly against another judgment held by the defend- ant, in such joint judgment against himself alone. CWen v: "Ward, 35 Cal. 195. 196. Executions, parties must be the same. An execution in favor of Peyser and against Calderwood cannot be set off against an execution in favor of Calderwood and Doug- lass (his former wife) against. Peyser — the ap- parent fact being that the parties to the two executions are not the same. Calderwood v. Peyser, 42 Cal. in. See Post, 247 ; Appeal, 213 ; Forcible Entry and Detainer, 51 ; Ejectment, 91 ; Malicious Prosecution, 13 ; Trust and Trustee, 7. 7. Cross complaint. 197. Pacts relied on. A party who seeks relief must himself state the facts upon which he relies ; failing in this, he cannot derive ben- efit from a cross bill which states another and different cause of action in his behalf. Mercier v. Lewis, 39 Cal. 532. 198. Contract. Mere naked trespasses, having no relation to or connection with the plaintiff's cause of action, nor with any con- tract between the parties, cannot be the found- ation for a cross complaint in an action to re- cover a money demand founded on contract. Waugenheim v. Graham, 39 Cal. 169. 199. But where the plaintiff has unjustifi- ably and illegally sued out a writ of attach- ment in the case, and thereby inflicted a great injury on the defendant, the damages arising therefrom furnish the ground for a cross com- plaint in the action. Id. 200. Matters of defense. Where proper matters of defense are pleaded as such, they should only be regarded as matters of defense, notwithstanding a prayer for affirmative relief at the conclusion of the anRwer ; matters of ■ the cause of complaint must be separately stated as a cause of action against the plain- tiff, and not as a defense to the plaintiff's cause of action. Doyle v. Eranklin, 40 Cal. 106. 201. Agreed statement. Neither an agreed statement of facts nor a finding of facts can add a material fact to a cross complaint, for it must fall unless it can stand on its own allegations of facts. Collins v. Bartlett, 44 Cal. 372. 8. In particular actions. 202. Breach of contract to be averred. In an action against the owner of a building to enforce a mechanic's lien thereon, brought by a party who has furnished materials to the contractor for the construction of the building, the defendant, in order to avail himself of a breach of the contract by the contractor, must make it a part of his defense by proper aver- ments in his answer. Blethen v. Blake, 44 Cal. 117. 203. Breach of promise of marriage. In an action for breach of promise of marriage, the interposition of a defense that the character of the plaintiff is unchaste, even if unsuccess- ful, ought not, per se, to aggravate the dam- ages, unless it is interposed in bad faith, from malice, wantonness, or recklessness. Powers v. Wheatley, 45 Cal. 113. 204. Contract for the sale of land. The fact that the vendor of land is not within the jurisdiction of the Gourt, is no ' defense to an action, in his name, for the purchase money, although the vendee has not yet received his deed, and is not entitled to it by the terms of the sale, until all the purchase money is paid. Rourke v. McLaughlin, 38 Cal. 196. 205. Internal revenue stamp on writ- ten instruments. — Omission of. The omis- sion of a United States revenue stamp cannot, under any circumstances, be set up as a de- fense in a State Court, to an action upon a con- tract. The case of Hallock v. Jaudin, 34 Cal. 172, overruled on this point. Duffy v. Hobson, 40 Cal. 240. 206. On the point that the omission of a United States internal revenue stamp cannoj; be set up as a defense in a State Court to an action or contract. Thomasson v. Wood, 42 Cal. 416. Affirming Duffy v. Hobson, 40 Cal. 240. 207. Injuries caused by negligence. If, in an action brought by a laborer against his employer to recover damages for an injury sus- tained by the employer's carelessness, the em- ployer relies for a defense upon the fact that such injuries were caused by the negligence or improper conduct of a fellow servant, an aver- ment to that effect should be made in the an- swer. An averment that the plaintiff's injury was caused by his own negligence does not raise such issue. Conlin v. S. F. & S. J. R. R. Co., 36 Cal. 404. 208. Overflowing land. If the plaintiff sues to recover damages for flowing sand and sediment upon land averred in the complaint to be his, and the answer denies that plaintiff owns the land, and that , defendant wrongfully flowed the sand and sediment upon the land, without denying that he caused the same to flow upon the land, it does not admit that de- fendant caused such material to flow upon the plaintiff's land. In such case the plaintiff's 300 PLEADINGS. ownership of the land is put in issue. Wood v. Richardson, 35 Cal. 149. 209. Mechanic's lien. In an action to enforce a mechanic's lien for seventy-six dol- lars, where the answer averred that the value of the labor " was not over the sum of fifteen dollars or twenty dollars ": held, that it was a denial that the value of the labor was seventy- six dollars, and that the answer should not be stricken out. Way v. Oglesby, 45 Cal. 655. 210. Foreign judgment. To constitute a valid defense to such an action, it must be shown that the appeal had the effect to suspend the judgment appealed from, or of staying the ex- ecution thereof . Taylor v. Shew, 39 Cal. 536. 211. . Statute of Limitations. When the complaint states a cause of action for goods sold and delivered, and a bill of items is annex- ed, to the same as an exhibit, with the date of each item, an answer, which refers to the ex- hibit, and avers that the last item only is within two years previous to the commence- ment of the action, and that, except as to the last item, "no action has accrued to said plain- tiff by reason of the matter mentioned and set forth in said complaint, at any time within two years next preceding the commencement of this action," is a good answer to the Statute of Limitations to all the items except the last. Adams v. Patterson, 35 Cal. 122. 212. The words " preceding the commence- ment of this action " in such answer are equiv- alent to the words preceding the filing of the complaint. Id. 213. Promissory note. The complaint in an action on a promissory note set out in Ucec verba and averred " that said note had ,not been paid, nor any part thereof, etc."; the answer thereto denied that said note had not been paid, and further denied ' ' that there is due to the plaintiff on said note any sum of money or anything": held,* that said denials were of immaterial averments only, that said answer raised no issue, and might properly have been stricken out on motion as sham and irrelevant. Hook v. White, 36 Cal. 299. 214. The fact that one of two obligors of a joint and several promissory note delivered to the payee, at the time of its execution, certain property, with instructions to sell it and apply the proceeds to the payment of the note, which property was received, by the payee upon the terms specified, does not operate as payment of the note, or work a suspension of the right of the payee to enforce its payment by suit against the other obligor, according to its terms ; and where to such action by the payee the defendant, by way of defense, setup in an- swer said facts, and, in addition, that the plaintiff had never returned said property nor accounted for the same or the proceeds of the sale thereof: held, that said matters consti- tuted no defense. Hook v. White, 36 Cal. 299. 215. Separate defenses. Where as a, separate defense, and disconnected with any averment that the money was her separate property, it is averred that before the com- mencement of the action defendant had fully paid and discharged the note by payment thereof to the wife of the payee, the averment is as insufficient to bar the action, as a plea that the defendant had paid the money to any other stranger who had no authority to receive it. Eelch v. Beaudry, 40 Cal. 439. 216. Where the payor of a note is not the trustee of the wife of the payee nor charged with the care of her estate, it is no defense in an action to recover on the note, that the con- sideration mentioned therein was a, convey- ance of the separate property of the wife, and that her husband was endeavoring to defraud her out of it by recovering for himself in such action. Id. x 217. Parol agreement. The fact that, contemporaneously with a promissory note, a parol agreement was made, that the note should be payable only out of the surplus arising from the sale of goods assigned to the payor, as security for a debt due him, it ap- pearing no such surplus has arisen, is no defense in a suit on the note. Guy v. Bibend, 41 Cal. 322. VII. REPLICATION. 218. When hot required. A plaintiff need not reply to any affirmative matter set up in defense, or by way of avoidance or counter claim. Doyle v. Franklin, 40 Cal. 106. 219. A pleading by a defendant in an ac- tion of replevin which admits the taking com- plained of, but justifies under legal process, and prays judgment for a restitution of the property replevined, or for its value, contains only matter of confession and avoidance, and under the fifty-sixth section of the Practice Act, is deemed controverted by plaintiff. Stringer v. Davis, 35 Cal. 25. 220. 'Objections to an answer. Objec- tions to the form in which denials or defenses in an answer are couched should be presented first in the trial Court, where amendments may be allowed in furtherance of substantial justice. Green v. L. S. & P. E. Co., 46 Cal. 408. 221. When answer may be attacked. When a case has been tried as though at issue upon all the material points, the plaintiff will not be permitted, for the first time, in the ap- pellate Court, to assume the insufficiency of the answer. Id. See Post, 248. Vm. VARIANCE BETWEEN PLEADING AND PROOF. 222. Actions ex contractu. The alle- gata and probata must agree. Hathaway v. Ryan, 35 Cal. 188. PLEADINGS. 301 223. Proof necessary. If the answer denies the contract as alleged in the complaint, •the plaintiff must prove it substantially as alleged. Tomlinson v. Monroe, 41 Cal. 94. 224. If the complaint avers that the de- fendant accepted a horse, with an agreement to sell him and account for the proceeds, proof that the price of sale was limited to three hun- dred dollars is also a variance. Id". 225. If the complaint alleges that the defend- ant accepted a horse, upon an agreement to sell him for a price not less than three hundred dol- lars, testimony that the horse was left with the defendant with authority to sell him at not less than three hundred dollars is no proof that the defendant bound himself to sell at not less than three hundred dollars, and there is a, variance. Id. 226. Ground of nonsuit. A material variance between the contract as alleged and proved, is a ground of nonsuit, unless the plaintiff obtains leave to amend his complaint, so as to make it conform to the proofs. Id. 227 . It is sufficient, where the complaint alleged an express promise to pay a debt which was barred by the statute, to prove an acknowl- edgment of the debt from which a promise to pay is implied. Earrell v. Palmer, 36 Cal. 187. 228. Fraud. An allegation of actual fraud is not sustained by proof of a mistake. Mer- cier v. Lewis, 39 Cal. 532. 229. An objection that there is a variance between the evidence and the cause of action stated in the complaint, cannot be made for the first time on motion for new trial, or in the Supreme Court. Bell v. Knowles, 45 Cal. 193. See Evidence, 58, 59. IX. AMENDMENTS. 230. Allowance of. If evidence is ob- jected to because the defense under which it is offered is defectively pleaded, the Court should allow the pleading to be amended. Carpentier v. Small, 35 Cal. 346; Clark v. Phoenix Ins. Cp., 36 Cal. 168. 231. Amendments should be allowed with great liberality in all stages of the proceedings, unless the opposite party would thereby lose an opportunity to fairly present his whole case. Kirstein v. Madden, 38 Cal. 158. 232. For variance. When it appears on the trial that there is a variance between the proof and the complaint, and an objection to the evidence on that ground is made by the defendant, the Court will,' if an application is made, allow the complaint to be amended. Bell v. Knowles,- 45 Cal. 193. 233. Transfer of cause. Where an ac- tion to recover a personal judgment for a tax, commenced in a Justice's Court, is transferred to a District Court, an amended complaint may be filed in the District Court to enforce a lien on real estate for the tax. People v. Nelson, 36 Cal. 375. 234. Prayer of complaint. The Court should not allow the prayer for relief to be amended after verdict, so as to ask for further relief, unless the facts averred and issues joined justify it, and all those issues to which the further relief demanded relate have been fully litigated and fairly determined, and the additional relief has been asked in proper time. N. C. & S. C. Co. v. Kidd, 37 Cal. 282. 235. The granting, after verdict, of great- er relief than that prayed for in the complaint, either with or without an amendment of the prayer, is a matter resting in the sound dis- cretion of the District Court, and the appel- late Court will not interfere with that discre- tion, unless it is made to appear that it has been unsoundly exercised. Id. 236. If the Court below refuses to allow the prayer of the complaint to be amended after a verdict for the plaintiff and judgment entered, the presumption is that it acted correctly, and that there were no facts proved to warrant a different judgment than that prayed for. The party asking the amendment should show af- firmatively that the facts proved within the issues made will justify a different judgment than that prayed for and given. Id. 237 . If the relief prayed for is appropriate to the facts alleged, the defendant has a right to assume that the case will be tried in accord- ance with the theory of the prayer ; and where the case is so tried, it would work in- justice to allow the prayer for relief to be amended after verdict, by inserting a prayer for other and different relief, that 'might be brought within some of the issues, without re- gard to the question as to whether such issues were actually tried and determined. Id. 238. Refusal of amendment. It is not an abuse of discretion for the Court to refuse to allow the defendant to file an amended answer to a verified complaint, which is evasive — which tenders only an immaterial issue — and which he does not verify, nor propose to verify. Shepardu. McNeil, 38Cal. 72. 239. A denial by the Court, on the objec- tion of the defendant, of a motion to amend the complaint by substituting a proper party for one improperly sued, will be considered as made at defendant's instance and with his consent, and he cannot subsequently complain of a misjoinder or nonjoinder ofparties. Eulton v. Cox, 40 Cal. 101. 240. Fictitious names. Where persons are sued by fictitious names, judgment against, them will not he binding unless the complaint be amended, as provided by Section 69 of the Practice Act, by inserting their true names, so as to allege that they are the persons charged. McKinlay v. Tuttle, 42 Cal. 571. 241. Answer by persons sued under fic- titious names not a waiver of amendment of complaint. Where persons Bued and served 302 PLEADINGS. under fictitious names appear and answer the complaint, such answer is not a waiver of an amendment of the complaint describing them by their true names. Bohannan v. Hammond, 42 Cal. 227. 242. Fictitious names. — Ignorance of true name must be real, not willful. When a party is sued by a fictitious name, upon the ground, that the plaintiff was ignorant of the name of the defendant, under the sixty-ninth section of the Practice Act, the ignorance of the name must be real, and not willful ignorance, or such as might be removed by mere inquiry, or a resort to means of information easily accessible. Rosenerantz v. Rogers, 40 Cal. 489. 243. If the Court, during the trial, grants leave to file an amendment to the complaint, and it is filed before the argument is concluded, and there is nothing in the record to show the other party was not present and consenting, the amendment will not be disregarded in the Supreme Court. Reynolds v. Hosmer, 45 Cal. 616. 244. Courts should be liberal in allowing amendments to pleadings, to the end that cases may be fully and fairly presented upon their merits. Motions to amend are not, however, to be granted as matter of course, but only when good cause is shown therefor. Hayden v. Hayden, 46 Cal. 333. See Forcible Entry and Detainer, 75 ; Trial, 25, 26. X. PRACTICE ON STRIKING OUT. 245. Waiver by admissions. Where certain material averments of the plaintiff's complaint were so defectively denied that, upon motion, such denials might properly have been stricken out as sham and irrelevant, yet with- out such objection made thereto the plaintiff introduced proof at the trial in their support : held, that by introducing said proof the plain- tiff waived all objections to the sufficiency of said denials, and the Court properly refused an instruction to the jury, asked by the plaintiff, to the effect that the facts so averred were ad- mitted to be true for all the purposes of said trial. Tynan v. Walker, 35 Cal. 634. 246. If the plaintiff had regarded said de- nials as insufficient, and desired to take advan- tage of the fact, he should have moved to strike them out on the ground that they were sham and irrelevant. "Under tjie provisions of Section 50 of the Practice Act, denials contain- ed in an answer, which do not explicitly trav- erse the material allegations of the complaint, may be stricken out, on motion, as sham and irrelevant. Id. 247. Counter claim. It is error in the Court to strike out a counter claim in an an- swer, without a motion being made for that purpose. Curtis v. Sprague,*4i Cal. 55. 248. A replication, setting up the Statute of Limitations to a counter claim" contained in an answer, does not authorize the Court to strike out the counter claim. Id. 249. A demurrer to a replication, filed to a counter claim set up in an answer, is not equivalent to a motion to strike out the counter claim. Id. 250. A motion to strike out portions of a pleading admits only those averments con- tained in said portions which are well pleaded. O. & V. R. R. Co. v. Plumas County, 37 Cal. 354- See Appeal, 40, 88-91. XI. JUDGMENT ON THE PLEADINGS. 251. Issue in abatement. If an an- swer in abatement is found true, the judg- ment should not be in bar, but that the suit abate. Laroe v, Clements, 36 Cal. 132. 252. Failure to deny. Whenever the an- swer fails to deny any of the material allega- tions of the complaint in such form as to put the same in issue, the plaintiff is entitled to judgment upon the pleadings. Doll v. Good, 38 Cal. 287. 253. Facts admitted. In a suit on an undertaking as a substitute for property or- dered to be levied upon by virtue of a writ of attachment, where the complaint states all the facts necessary to constitute a cause of action, and such facts are substantially admitted or not sufficiently denied in the answer, the plain- tiff is entitled to judgment on the pleadings. Fitzgibbon v. Calvert, 39 Cal. 261. 254. Action to quiet title. In an ac- tion to quiet title, where the answer admits that the plaintiff is in possession of a portion of the premises sued for, and denies his posses- sion of the remainder, the plaintiff cannot re- cover judgment upon the pleadings for that portion of the premises not admitted to be in his possession. Espinosa- v. Gregory, 40 Cal. 58. 255. When denied. Where facts show- ing the illegality of a contract sued upon are sufficiently alleged in the answer, the plaintiff cannot recover upon the pleadings, although such facts are not pleaded or insisted upon as a defense. Prost v. More, 40 Cal. 347. 256. When granted. If the complaint be sufficient, judgment may be rendered on the pleadings where the answer expressly ad- mits the material facts stated in the complaint, or leaves them undenied, or merely sets up new matter in defense which is found, substan- tially insufficient to debar or defeat the action. Eelch v. Beaudry, 40 Cal. 439. 257. Motion to file amended answer. Where a motion is made by the plaintiff for judgment on the pleadings, if the defendant intends to abandon his answer and substitute another one in its stead, he must make his ap- plication for leave before judgment is ordered ; PLEADINGS.— PLEDGE. 303 if lie wait till after the time, a denial of the application involves no abuse of the discretion of the Court. Id. 258. Where the original answer presents no defense, and judgment is rendered on the pleadings on motion of the plaintiff, it is an abuse of its discretion for the Court to re- fuse leave to the defendant to file a sufficient amended answer. Id. 259. The ground upon which a motion made by plaintiff for judgment on the plead- ings proceeds in any case, is that his complaint is sufficient to warrant it, and that the answer presents nothing, either by way of denial or of new matter, to bar or defeat the action. Id. 260. Motion for. If the allegations of the complaint are not denied in the answer, the plaintiff, if he desires judgment on the pleadings, should move for it before introduc- ing evidence to support the complaint. Tevis v. Hicks, 41 Cal. 123. 261. Injunction. If, in an action to en- join the destruction of a ditch, the complaint avers the ownership by plaintiffs of the ditch for the conveyance of water, and that the ground over which it passes was vacant and unoccupied when it was dug, and that plain- tiffs have used it for years for mining purposes, and the answer does not deny these allegations, nor set up any prior right of the defendants to the ground over which it passes, nor any claim or right of defendants to destroy it by reason of any custom, the Court should not, by its judgment, limit or restrain the right of plain- tiffs in the use of its ditch, but on the plead- ing should enjoin the defendants from destroy- ing or interfering with the same, regardless of the testimony. Gregory v. Nelson, 41 Cal. 278. 262. Promissory note. If the com- plaint on a promissory note, without being verified, contains a copy of the note, and avers that it has not been paid, a general denial in the answer puts in issue the fact of pay- ment, and the plaintiff is not entitled to judg- ment on the pleadings. Davauay v. Eg- genhoff, 43 Cal. 395. 263. Stipulation as to taking judg- ment. If the answer contains new matter, which, if true, would entitle the defendant to judgment, and the parties stipulate that " all, if any, new matter pleaded in avoidance * * * shall be taken as proven, ' ' the stipulation entitles the defendant to a, judgment. Pond v. Davenport, 45 Cal. 225. See Appeal, 195; Default, 2. PLEDGE. 1. What constitutes a pledge and ownership of pledge. If a corporation is in- debted to A for money advanced, and as secur- ity for the same issues to B, as trustee for A, shares of the capital stock of the corporation, to be retransferred to the corporation upon payment of the indebtedness, the transaction constitutes a pledge of the stock. Brewster v. Hartley, 37 Cal. 15. 2. The fact that in such case B is the trus- tee of A, and that the stock is issued to B, does not prevent the transaction from" being a pledge of the stock as between the creditor and the corporation. Id. 3. The general property of the stock in such case is in the pledgor — the corporation. Id. 4. Title. A pledge does not vest the title in the pledgee. He has only a special property in or lien on the chattel pledged, and if the pledge is not redeemed by the time limited, it retains the character of a pledge still. Hey- land v. Badger, 35 Cal. 404. 5. In a pledge, the title, after condition broken, does not pass to the pledgee, who has only a lien on the property ; and in all cases the possession must accompany the pledge. Wright v. Boss, 36 Cal. 414. 6. "Rights of pledgor in case of pledge. In case of a pledge, the title remains in the pledgor after condition broken, with right to redeem at any time before a sale of the prop- 4 erty ; and if the property is sold by the pledgee in satisfaction of his demand, he can- not become the purchaser at his own sale. Id. 7. Pledge and chattel mortgage. The distinction between a pledge and chattel mortgage, whilst well defined in theory, is sometimes difficult of application to the facts of the transaction. Id. 8. Note may be pledged. A note secured by mortgage may become the subject of either a pledge or mortgage, but to make such pledge available to the pledgee, there must accompany the pledge a power to assign the note and mortgage in case of a sale of it, and to release the property in case of a satis- faction of it. Id. 1 9. Bills of exchange and promissory notes held as collateral security. Wheth- er negotiable paper endorsed over to and held by the creditor as security for the payment of a debt, without any other express agreement between the parties, is a mortgage or a pledge ? Query? Donohoe v. Gamble, 38 Cal. 340. 10. Sale by pledgee at auction. The question whether a sale of mining stock made in the Board of Brokers is not a sale at public auction, such as a pledgee is authorized to make upon default being made by the pledgor, not decided. Child v. Hugg, 41 Cal. 519. 11. Ratification of a sale made by a pledgee. If a sale of mining Btock, pledged as security for money, is made without notify- ing the pledgor to make his margin good, and without sufficient notice of time and place, still, if the pledgor knew of the time and 304 POLICE COURT.— PRACTICE ACT. place of sale, and made no objection, and after the sale approved of it, and promised to pay a balance claimed by the pledgee, he by these acts ratifies the sale. Child v. Hugg, 41 Oal. 519. See Attachment, 4 ; Corporations, 59, 72 ; Equity, 46 ; Judicial Sale, 34. POLICE COURT. See Jurisdiction, 61. POLICE JUDGE. See Courts, 2 1 . POLICE POWERS. See Constitutional Law, 3, 4, 6. POSTPONEMENT. See Criminal Law and Practice, 208-216 ; Trial, 12-18. POSSESSION OP LAND. See Land and Land Titles, 250-286 ; Eject- ment, 54-59 ; Forcible Entry and Detainer ; Limitations, 16, 24, 50-61 ; Mines and Min- ing, 1. POSSESSORY ACT. See Land and Land Titles, 59-68. POWERS. 1. Execution of a power. If the notice required is not given in the execution of a power, the proceeding is a nullity. Ellis v. Eastman, 38 Cal. 195. 2. Power to sell on credit when time of credit not specified. "Where Brown and wife authorized Taylor to sell their land on credit, without specifying the time of such credit, and Taylor sold on a credit of seven years : held, that Taylor could only sell upon a reasonable credit, and that the question of the reasonableness of the credit was to be determined only after testimony heard. Brown v. Central Land Co., 42 Cal. 257. 3. Of attorney to sell land. A power of attorney which authorizes the attorney in fact to sell " the one half " of a lot of land, without saying which half, or whether the agent is to sell one half in severalty, or an undivided^ one half, empowers the agent to sell one half of the lot in severalty, exercising his own discre- tion as to which half. Alemany v. Daly, 36 Cal. 90. 4. Claim of land. One in possession of public land sufficiently describes the same in a power of attorney by calling it his claim of land. Henley v. Hotaling, 41 Cal. 22. 5. A power of attorney, giving to the at* torney in fact full authority to represent the person of the principal in all that concerns his interest in the State of California, and to annul any other power previously granted, and let-, ters afterwards written by the principal to the attorney, speaking generally of the propriety of the sale of land in California belonging to the principal, and of the price and terms, and telling the attorney he can give a provisional writing of sale, and to make a sale and it will be approved, do not confer authority upon the attorney to bind the principal by a contract of sale. Treat v. DeCelis, 41 Cal. 202. See Corporations, 35-45 ; Deed, 19 ; Equity, 14-16; Land, 44; Office and Officer, 15-18; Trust and Trustee, 27. PRACTICE ACT. 1. Construction. The Practice Act is en- tirely remedial. It does not affect the rights of the parties as to the subject matter of the controversy, but prescribes the mode in which redress may be had when these rights have been invaded. Hastings v. Cunningham, 39 Cal. 137. 2. Effect of Code as to proceedings in pending actions. When, in pending actions, proceedings have been taken prior to the taking effect of the Code, the sufficiency of such pro- ceedings must be determined by the laws in force at the time, and by no other rule. Caul- field v. Doe, 45 Cal. 221. 3. Such proceedings will on appeal be de- cided in accordance with the former Practice Act. Hancock v. Thom, 46 Cal. 643. See Appeal ; Arbitration, 4 ; Arrest and Bail, 1 ; Attachment, 20 ; Certiorari, 24 ; Eminent PEE-EMPTION.— PRINCIPAL AND AGENT. 305 Dom&in, 45 ; Titles, ,46. Findings, 6 ; Land and Land PRE-EMPTION. See Land and Land Titles, 10-58* 208 ; Rail- roads, 3 ; Right of Way, 2, 4. PRESCRIPTION. 1. Right to overflow land. To acquire a prescriptive right to overflow the lands of an- other, there must have been an uninterrupted enjoyment, under claim of right, for aperiodof five years ; there muBt have been an actual oc- cupation by the flow of water, to the knowledge of the owner, and such as to occasion damage and give him a right of action; and there must have been such a use of premises and such damage, as will raise a presumption that the owner would not have submitted to it unless the other party had acquired a right so to use it. Gtrigsby v. Clear Lake Water Co., 40 Cal. 396. 2. As against the United States. Pre- scription or adverse user cannot mature into a title as against the United States. Mathews v. Ferrea, 45 Cal. 5!. 3. Ditch company. If the owners of a ditch constructed for conveying water use the same peaceably, openly, and exclusively, un- der a claim of right, with the knowledge of the owners of the land, for a continuous period of five years, they acquire, by prescription, the right to an easement over the land for the same. Campbell v. West, 44 Cal. 646. 4. Right acquired by prescription. An owner of land cannot acquire a prescriptive right to flood with water laud higher than his own belonging to the United States, and the purchaser of such higher land from the United States may commence an action for the injury at any time within the statutory period after he buys from the United States, notwithstand- ing the fact that it may have been flooded while the United States owned it. Ogburn v. Con- nor, 46 Cal. 347. 5. Title by prescription. No right by prescription can be acquired to the use of water as against the Government of the United States. Wilkins v. McCue, 46 Cal. 656. 6. Prescriptive right to use of water. If a grant of land by Mexico or Spain was im- perfect, no prescriptive right to the use of water flowing from it can be acquired without an adverse user for five years from the time of a final survey, or the issuing of a, patent to the grantee. Id. See Pleading, 179, 180 ; Right of Way, 2, 3. CAL. DIG. SUP. 20. PRESUMPTIONS. See Appeal, 6, 230-272 ; Appearance, 7, 10 ; Contract, 10; Courts, 16, 18; Criminal Law and Practice, 59, 70 ; Death, 2, 3 ; Easement, 7, 8; Ejectment, 106, 150, 151; Error, 1-4; Evidence, 11, 12,. 15, 25; Findings, 8, 20; Husband and Wife, 6, 7 ; Identity, 1 ; Land and Land Titles, 23, 205 ; Limitations, 262 ; Mines and Mining, 7 ; Negligence, 29 ; Ne- gotiable Instruments, 20, 30, 31 ; Pleading, 32, 33; Quieting Title, 24; Summons, 17; Water and Water Rights, 2 ; Writ of Posses- sion, 3. PRETERMITTED CHILD. See Ejectment, 1 1 ; Probate Law and Prac- tice, 96-98. PRINCIPAL AND ACCESSORY. See Criminal Law and Practice, 1-3, 183, 264. PRINCIPAL AND AGENT. 1. Notice of termination of agency. Notice by the principal of the contents of a written agreement with his agent, which ter- minates the agency, is sufficient notice of the termination of the agency. Van Dusen v. StarQ. M. Co., 36 Cal. 571. 2. Act of agent after agency ceases. If the principal has for a long time recognized the act of his agent in buying goods for him, and paid for them, he is liable for goods ordered by the agent for them from the same parties, .. after the agency ceases, if they have no notice that the agency has ceased. This liability of the principal is the same to the assignee of the demand, even if the assignee had notice before the goods were sold that the agency had ceased. Id. 3. Liability of principal for act of agent. If V sells goods to S, ordered by W, the agent of S, and S recognizes the agency and pays for the same for several years, and V is then notified by S that the agency of Whas ceased, he cannot hold S for goods afterwards fur- nished on W's order, and on the declaration of W that S was to pay for them. When the agency of W ceased, it required the consent of S to render him liable afterwards. Id. 4. Liability of company for act of rail- road conductor. It is within the scope of 306 PRINCIPAL AND AGENT.— PROBATE LAW AND PRACTICE. the general authority of a railroad "conductor to remove persons from the cars who get on wrongfully ; but if, in so doing, he does not exercise care and caution, but acts maliciously, and injury results, the company is liable. Kline v. 0. P. R. R. Co., 37 Cal. 400. 5. Company liable for act of railroad conductor. A railroad conductor is not act- ing outside of his authority in admitting on its cars all persons properly seeking admission as passengers, or in excluding all who do not come as passengers, or are not fit to be ad- mitted, and the company is liable for his wrongful performance of either. Id. 6. Liability of railroad company for negligence of agent. If a railroad company, whose road forms a junction with another road, entrusts a person employed and paid by such other road with the business of attending to its trains at such junction, the fact that he was employed by the other company does not release it for damages caused by his negli- gence. Taylor v. W. P. R. R. Co., 45 Cal. 323. 7. If a railroad company is sued for dam- ages alleged to have been caused by the incom- petency of its agent, the question should be left to the jury whether the company used all reasonable precautions to ascertain the agent's competency before employing him, but were, nevertheless, deceived by the fraudulent prac- tices of the agent. Taylor v. W. P. R. R. Co., 45 Cal. 323. 8. When act of agent binds principal. If the act of the agent is within the general scope of his authority, or is specially approved hy the principal, the principal is liable for all damages sustained thereby. Id. 9. Revocation. An agency to sell land is revocable at any time before sale, unless coupled with an interest, or given for a valu- able consideration. Brown v. Pforr, 38 Cal. 55°- 10. Authority of secretary of a mining corporation. The secretary of a mining com- pany has not authority, by virtue of his office, to make assignment of the promissory notes of the company. Blood v. Mareuse, 38 Cal. 590. 11. Such assignment is not a corporate act, unless it is shown that the Secretary was not only authorized to make the transfer, but to make it in his official capacity. Id. 12. Power of agent. — Contract of sale. A verbal authority to an agent to sell real estate is not sufficient to authorize the agent to execute a contract of sale in the name of his principal, or to sign the name of the latter to such contract. Duffy v. Hobbs, 40 Cal. 240. 13. Verbal authority to execute. A power to sign the name of a principal to a con- tract of sale may be given verbally ; but tfie words used for that purpose must be so distinct and clear in their meaning and import as to manifest with the requisite degree of certainty the intention of the principal. Id. 14. Damages. A principal is liable 1 for the actual damage caused by the act of" his agent done in the usual course of his employ- ment, but is not responsible for wanton and malicious damage, done by the agent without the consent, approval, or subsequent ratifica- tion of the principal. Mendelsohn v. The Anaheim Lighter Co., 40 Cal. 657. 15. Broker's commission. If theowner of land employs another person to sell for him his land, at an agreed rate of commission, and the broker finds a purchaser who is willing to take the land at the price fixed, the owner cannot, by a refusal to sell to him, or by a sale to another, avoid the contract, and escape the payment of the commission. Phelan v. Gard- ner, 43 Cal. 306. See Common Carrier, 5, 13, 14; Conveyances, 3 ; Corporations, 52, 56 ; Deed, 2 ; Insurance, 8; Negotiable Instruments, 36; Parties, 13; Sheriff, 8, 9 ; Water and Water Rights, 11, 13. PRIVILEGED COMMUNICATIONS. See Libel, 19, 20 ; Trial, 56, 57, 61, 62. PROBABLE CAUSE. See Malicious Prosecution, 2, 3, 16. PROBATE LAW AND PRACTICE. I. Jurisdiction. n. Probate of wills. III. Letters of administration. IV. Setting apart homestead. V. Claims against estate. VI. Sale and conveyance of property. VII. Executors and administrators. 1. Powers and duties. 2. Accounting and settlement ■ VIII. Partition and distribution. IX. Orders and decrees. X. Guardian and ward. I. JURISDICTION OF PROBATE COURT. 1. Sale by Probate Court. A sale by the Probate Court to satisfy a claim against the estate secured by a mortgage made by the testator, is not in effect a foreclosure, of the mortgage. Myers v. Parquharson, 46 Cal. 191. 2. Foreclosure. A Probate Court is not a Court of equity and has no power to foreclose a mortgage. la. PROBATE LAW AND PEACTICE. 307 3.' Trial of issues. Since the adoption of the constitutional amendments of 1862, Dis- trict Courts have no jurisdiction to try issues framed in Probate Courts, and Sections 20 and 294 of the Probate Act have become in- operative. Estate of Tomlinson, 35 Cal, 509 ; Will of Bowen, 34 Cal. 862. 4. Where the contestants to the probate of the will of T raised as an issue in the Probate Court, among others, that T was not of a sound and disposing mind at the time the will was made, which being certified to the District Court, in conformity w,ith Sections 20 and 294 of the Probate Act, for trial, was returned to the Probate Court, coupled with the evidence taken at the trial in the District Court, but it ap- peared that the jury did not find upon the issue either way, whereupon the Probate Court, upon said evidence, assumed to determine the issue against contestants, and admitted the will to probate. Held, first, that the District Court had no jurisdiction to try said issue ; second, that the Probate Court had no author- ity to determine the same upon evidence which had been taken at a trial in the Dis- trict Court-; and third, that said issue was material and it was error to admit the will to probate without a lawful determination of the same. Estate of Tomlinson, 35 Cal. 509. See Post, 10, 61, 88, 113, 114; Appearance, 4 ; Constitutional Law, 52, 57 ; Guardian and Ward, 8 ; Jurisdiction, 42-46 ; Place of Trial, I, 2, 4. II. PROBATE OF WILLS. 5. Publication of notice. Notice of an application to admit to probate an alleged will under Section 13, or a copy of such will, with an authenticated probate thereof, under Section 28 of the Probate Law, is not " a summons, notice or advertisement" required to be pub- lished in the " State Paper" under the Act of March 29th, 1870. 'Estate of Daniel Miller, 39 Cal. 550. 6. Stamp on probate of -wills. It is im- material whether the stamp required on pro- bate of wills is affixed to the will upon its be- ing admitted to probate, or to the certificate of proof thereof attached, or to the letters testa- _ mentary with the will annexed. Satterlee v. Bliss, 36 Cal. 489. 7. When the papers in the matter of an es- tate are offered in evidence in a collateral ac- tion, the Court in which they are offered can- not review the action of the Probate Court upon the question whether the stamp affixed upon the probate of the will was such as the value of the estate required. The presumption is that the Probate Court passed upon the question of the value of the estate, and its de- cision is final. Id. 8. Evidence/ of death. The record of a Probate Court, admitting a will to probate, is admissible as evidence to show the death of the testator, if it contains all the necessary recitals to show that the Court acquired ju- risdiction. If, however, it is made to appear that there were minor heirs living in the coun- ty who were not served with citations to ap- pear, the Court does not acquire jurisdiction and the record does not prove the death. Ran- dolph v. Bayue, 44 Cal. 366. HI. LETTERS OP ADMINISTRATION. 9. Appointment of administrator. The order for the appointment, as provided in Sec- tion 62 of the Probate Act, the qualification of the appointee, and the issuing of letters to him thereon, are ali necessary proceedings to invest such appointee with the office of admin- istrator of an estate. The appointment is in fieri until the appointee has qualified* and re- ceived his letters. Estate of Hamilton, 34 Cal. 464. 10. While one administrator of an estate is in office, there is no power in the Probate Judge or Court to appoint a new one. Id. 11. With will annexed. If the Probate Court refuses to admit a will to probate, and this Court, on appeal, directs the will to be so admitted, it will not direct the Probate Court to issue letters of administration with the will annexed to the petitioner, unless the Pro- bate Court has found, as a fact, that the peti- tioner is a proper person to receive letters. Estate of Wood, 36 Cal. 75. 12. Stale demand. The plaintiff was appointed administrator of the estate of P seventeen years after P's death, and shortly thereafter brought action against B and others to recover possession of a lot in San Erancisco, and alleged in his complaint that P died seized and possessed of said lot; that in Eebruary, 1867, after appropriate proceedings therefor, plaintiff had been appointed administrator of the estate of P ; that by virtue of said ap- pointment the plaintiff, on the 1st day of ' March, 1867, became, and from thenceforth was and still is, entitled to the possession of said lot ; that whilst plaintiff was so seized and entitled to the possession, the defendants, B and others, on the 2d day of March, 1867, wrongfully entered and expelled plaintiff there- from, and have ever since wrongfully withheld the possession. The defendants demurred to the complaint on the ground, amongst others, that it did not state facts sufficient to consti- tute a cause of action, or to show that plain- tiff is entitled to maintain the action. The demurrer was sustained and judgment passed for defendants. Held, first, that, considering the facts of the entry of defendants, without tjtle, so late as March, 1867, and after plaintiff became administrator, as disclosed in the com- plaint, the cause of action declared on was not stale ; second, that there is no statute which limits the time within which letters of admin- istration on the estate of deceased persons may 308 PROBATE LAW AND PRACTICE. be granted ; third, that in such a case no pre- sumption of law arises that there had been a prior administration and that the estate had been closed ; and fourth, that the demurrer was improperly sustained. Healy v. Buchanan, 34 Cal. 567. 13. Vacancy in administration. Where a widow, who was both devisee and executrix, married, and she and her husband .then deeded the land devised : held, that though the mar- riage may have operated as a revocation of the letters testamentary, yet there was an unclosed administration, and the grantee was not enti- tled to possession. Chapman v. Hollister, 42 Cal. 462. 14. Public Administrator. If there is a contest in the Probate Court between the Pub- lic Administrator and a creditor of an estate as to which shall administer, and other creditors request the Court to appoint the Public Admin- istrator, it is within the discretionary power of the Court to appoint the Public Administrator. Estate of Doak, 46 Cal. 573. 15. Who entitled to administer. Is a person who purchases a claim against an estate after the death of the decedent a creditor who is entitled to be preferred to the Public Admin- istrator as administrator of the estate ? Query t Id. TV. SETTING APART HOMESTEAD. 16. Homestead, -when not subject to administration. Under the provisions of Sec- tion 121 of the Probate Act, as amended in 1866, the widow (where there are no minor children) or a minor child or children of the deceased, are entitled to have a homestead set apart by the Probate Court for her or their use, even though such homestead had not been occupied by the de- ceased, or selected and recorded as a homestead by him before his death. Such homestead, when thus set apart, is not subject to adminis- tration. Estate of Busse, 35 Cal. 310. 17. Homestead to be set apart to widow. Upon the death of the husband, leaving surviving him a widow and child, or children, it is the duty of the Probate Court to set aside the homestead to the use of the widow. Estate of Wixom, 35 Cal. 320. 18. Widow inherits homestead. Upon the death of the husband, leaving a surviving widow, the homestead vests absolutely in the widow, even if there are surviving children. Id. 19. The surviving wife inherits the actual homestead, that is, the dwelling house and suf- ficient land to be worth five thousand dollars. This value is that which the land bore at the time of the husband's death, and not what it bore at the time the declaration was filed, or at any previous time. Estate of Delaney, 37 Cal. 176. 20. Petition for. When the surviving wife petitions to have the homestead set off to her, she must show to the Probate Court what was the homestead at the time of the husband's death, and what was its value at that time, and the Court should restrict the quantity of land set off to her to an amount worth five thous- and dollars or less, regardless of the quantity described in the declaration of homestead. Id. 21. In such proceeding, it is not sufficient for the wife to prove that at the time the dec- laration was filed, several years before the husband's death, the homestead described in the declaration was worth less than five thous- and dollars. Id. 22. Partnership property. Property held as partnership assets, and aiter the death of one of the partners, assigned to his estate on the partition of the real estate of the firm, can- not be set apart by the Probate Court as a homestead, to the widow of the deceased mem- ber of the firm. Kingsley v. Kingsley, 39 Cal. 665. 23. Title to. The Probate Court, in setting apart for the use of the family of the deceased husband or wife property which had been ded- icated as a homestead under the Homestead Act, does not change or transfer the title ; nor does it adjudicate the question of title. Richfl. Tubbs, 41 Cal. 34. 24. Order setting apart. The purpose and effect of an order of the Probate Court, setting apart such homestead, is that the prop- erty be relieved from administration, and that it does not constitute assets of the estate of the deceased. Id. 25. If there has been no homestead created during the existence of the community, by a compliance with the Homestead Act, the - widow can acquire no homestead interest in the property, under Sections 121, 124, and 125 of the Probate Act, until an order of the Probate Court or Judge has been made setting it apart to her. Estate of Boland, 43 Cal. 640. 26. Patent. Upon the death of a husband, who has taken up and entered a, homestead, under the Act of Congress of May 20th, 1862, if the five years have not expired for a patent to issue, the widow, upon performing the re- maining conditions, is entitled to a patent, and acquires a title in fee, free from all trust in favor of the children, whether adults or minors. Jarvis v. Hoffman, 43 Cal. 314. 27. Effect of marriage of widow. If a widow, who is entitled to a homestead, un- der Sections 121, 124, and 125 of the Probate Act, again marries before an order of the Pro- bate Court is made setting apart such home- stead, she loses, by her marriage, the right to such homestead. Estate of Boland, 43 Cal. 641. 28. Estoppel arising from acceptance of a devise. If, in his will, the testator de- vises to his wife a portion of his property, pro- vided she elects to accept the bequest in lieu of what the law may set aside to her, and the wife accepts the devise, she and her grantees PROBATE LAW AND, PRACTICE. 309 are estopped from setting up title to a home- stead which the law would have set aside to her. Etohebome v. Auzerais, 45 Cal. 122. 29. Setting apart homestead for fam- ily use. When, after the death of the hus- band, the premises constituting the family residence are set apart by the Probate Court for the use of the "widow and family, they cease to be a part of the assets of the estate, and are no longer subject to the control of the administrator or Probate Court. Schadt v. Heppe, 45 Cal. 433. 30. The Probate Court must set apart, for the use of the widow or minor child or children of the deceased, a homestead, if an application is made therefor, and if none had been selected before his death. The Court has no discretion to deny the application. Estate of Ballentine, 45 Cal. 696. 31. Word " may" in laws. The word "may," as used in the one hundred and twenty-first section of the Act concerning the estates of deceased persons, is to be construed as " shall." Estate of Ballentine, 45 Cal. 6,96. See Foreclosure, 4 ; Homestead, 1 1 . V. CLAIMS AGAINST ESTATE. 32. Wife's interest in community prop- erty. The wife's interest in community property is subject to the jpayment of the debts of the estate, and is an asset for that purpose in the hands of the administrator. Harp v. Calahan, 46 Cal. 222. 33. To be presented. No. action can be maintained to charge the estate of a deceased person upon a money demand, unless the claim has been previously presented to the adminis- trator for his allowance. Eustace v. Jahns, 38 Cal. 3. 34. Contingent claim. If the wife, to secure the debt of the husband, mortgages her -separ- ate property, and Hie husband dies, and the holder fails to present the claim to the admin- istrator for allowance, and the mortgage is afterwards enforced ; whether the widow has a contingent claim which she may afterwards enforce against the estate, spoken of, but not decided. Sichel v. Carrillo, 42 Cal. 497. 35. Taxes on estates. Taxes assessed against the property of an estate, pending ad- - ministration, and while the property is in the possession and under the control of an admin- istrator, are not claims against the estate, which must be presented to the administrator for allowance, under the provisions of Sections 130 and 131 of the Probate Act. The admin- istrator - must pay such taxes, as expenses in the care and management of the estate. Peo- ple v. Olvera, 43 Cal. 492. 36. Piling claims. The sections of the Probate Act requiring judgments against ad- ministrators, and claims against the estate which have been allowed, to be filed in the Probate Court, are merely directory. Estate of Schroeder, 46 Cal. 304. 37. Judgment against administrator as evidence. In an application to the Probate Court to sell real estate to pay the debts of the - estate, a judgment recovered against the ad- ministrator is prima facie evidence of the in- debtedness of the estate, as against the devisee of the real estate, or his grantee. Id. ' 38. Judgment against executors. If a party dies during the pendency of an action, and his executors are substituted, a personal judgment cannot be rendered against them ; but the judgment must be made payable in the due course of administration. Atherton v. Powler, 46 Cal. 323. 39. Mortgage claim. When the family residence, the common property of the husband and wife, is mortgaged, and the husband afterward dies and the premises are then set apart by the Probate Court for the use of the widow and family, it is not necessary to pre- sent the mortgage claim to the administrator for allowance, before suit to enforce it, provided no claim is made against the assets of the es- tate for a deficiency. Schadt v. Heppe, 45 Cal. 433. 40. A mortgage given by the deceased upon property which, after his death, becomes general assets of the estate, must be presented for allowance to the executor or administrator and Probate Judge, within the time fixed for the presentation of claims against the estate, and if not so presented, cannot be enforced in equity, even if no claim is made against the estate for a deficiency. Pitte v. Shipley, 46 Cal. 154. 41. Verbal allowance. A verbal allow- ance of a claim against an estate by an execu- tor or administrator, gives the claimant no cause of action. Id. 42. Mortgage claim must be presented. A mortgage debt which is a lien on property, the title to which is in the estate or in which the estate has a residuary interest, which con- stitutes a fund for the payment of debts, and is or may be subject to distribution, must be presented to the executor or administrator and Probate Judge for allowance within the time required by the Probate Act, or it cannot be enforced in equity, even if no claim is made against the estate for a deficiency. Harp v. Calahan, 46 Cal. 26. 43. Presenting mortgage claim against estate. The cases heretofore decided by the Supreme Court, in relation to the presentation of a mortgage claim for allowance by the ad- ministrator or executor (except Pitte v. Shipley, ante, 154) refer to mortgages which were a lien on property which did not belong to the assets of the estate. Id. 44. Waiver of presentation of claim. An administrator cannot waive the necessity of presenting a claim for allowance. Id. 310 PROBATE LAW AND PRACTICE. Sees Guardian and Ward, II ; Limitations, 14, 15; Mortgage, 45, 46. VI. SALE AND CONVEYANCE OF PROP- ERTY OE DECEDENT. 45. Act authorizing administrator to sell real property. An Act of the Legisla- ture authorizing an administrator to sell real property belonging to the estate of his deced- ent, except in satisfaction of the lien of credit- ors, for the support of the family, or to pay the expenses of administration, is unconstitutional. Brenham v. Story, 39 Cal. 179. 46. Sale of real estate. The Probate Gourt may order a sale of real estate left by the deceased, upon petition of the administrator, to pay the expenses of administration, even if there are no debts, and there has been no fam- ily allo-wance. Estate of Bentz, 36 Oal. 687. 47. Petition of administrator to sell. A petition for the sale of real estate by an admin- istrator is sufficient, if it shows that the per- sonal estate is insufficient to >pay the expenses of administration, etc., and for that purpose it may refer to and make the inventory a part of the petition. Id. 48. Purchase by an administrator at his own sale. If a person procures himself to be appointed administrator of an estate, and at a sale of the property of the estate purchases the same through a third person, who pays no money, and agrees to hold the title for the ad- ministrator; the sale is a fraud on the heirs, and such third person, and all who buy from him with notice, hold the property in trust for the heirs. Scott v. Umbarger, 41 Cal. 410. 49. Title acquired under probate sales. If a claim secured by a mortgage made by the decedent during his life, is allowed by his ex- ecutors, and the mortgaged property is sold by them, and the proceeds are applied on the claim, and the sale is approved by the Probate Court, the purchaser does not take by relation the title which the mortgagor had at the date of the mortgage, but only such title as the mortgagor had at the time of his death, and such as the. estate may have subsequently ac- quired. Meyers v. Farquharson, 46 Cal. 191. 50. Payment of purchase money. Where a mortgage creditor of an estate — there being no other debts — purchases the land mortgaged at an administrator's sale, and credits the mort- gage debt with the amount of his bid, less ten per cent, which was paid to the administrator, it was held to be full payment in discharge of his purchase. Estate of Lewis, 39 Cal. 306. 51. Contesting probate sale. One who does not claim any interest in real estate can- not contest an order of the Probate Court, directing it to be sold to pay the debts of the estate. Estate of Schroeder, 46 Cal. 304. 52. The question not decided whether a person who, after the death of the testator, has bought real estate left by him from the devisee, can contest an order of the Probate Court directing the sale of the same to pay the debts of the estate, so long as he holds possession of it adversely to the administrator, and refuses to account for the rents and profits. Id. 53. Execution of conveyance. The Probate Court has the power to compel the ex- ecution of the conveyance of land by an administrator, in conformity with a sale made under its order, and duly confirmed. Estate of Lewis, 39 Cal. 306. 54. Reconveyance by executor of land held as security. A Probate Court has no authority, on the petition of an exec- utor, to order him, on the receipt of money loaned, to reconvey real estate, conveyed to his testator by deed absolute on its face, but in- tended only as security for the re-payment of such money. Anderson v. Fisk, 41 Cal. 308. See Guardian and Ward, 9, 10. VII. EXECUTORS AND ADMINISTRA- TORS. 1. Povjers and duties. 55. Settlement of estate. An adminis- trator must prosecute the settlement of an es- tate with all reasonable diligence. Walls v. Walker, 37 Cal. 424. 56. Administrator.— Duty of. It is no part of the duty or authority of the adminis- trator to manage the estate for the benefit of the estate or of the heirs ; so far as they are concerned, it is his duty, simply, to preserve the estate until distribution. Brenham v. Story, 39 Cal. 179. 57. Application of funds. When an ad- ministrator has funds in his hands over the ex- penses of the funeral and last sickness of the intestate, and the allowance to his family, he should obtain an order at his next annual set- tlement to apply the same to the payment of debts. Walls v. Walker, 37 Cal. 424. 58. Authority of exeecutors to sell. If, in a devise to executors in trust for heirs, the testator expresses a desire that his homestead shall not be sold unless necessary, and that the same shall be used by his wife and children as a home, the executors have authority to sell the homestead if it becomes necessary. Etehe- bome v. Auzerais, 45 Cal. 122. 59. Surviving partner in real property. The surviving' member of a partnership own- ing real property is something more than a mere tenant in common with the representa- tive of the estate of the deceased partner. He is a trustee for the purpose of winding up the affairs of the firm, and is accountable for the value of the use and occupation of the landed estate of the partnership. Smith v- Walker, 38 Cal. 385. PROBATE LAW AND PRACTIOB. 311 60. Surviving partner and administra- tor of deceased partner. The surviving partner is bound to account and pay over to the administrator of the deceased partner all the profits of the realty, as well as that of the personalty, that rightfully belong to the estate, notwithstanding he may have purchased the interest of the heirs in the estate, or of the community interest of the surviving wife of the deceased partner ; and it is for .the Probate Court to distribute the estate to the parties entitled. Smith v. Walker, 38 Cal. 385. 2. Accounting and, settlement. 61. Citation. The Probate Court has no authority to cite the administrator of an admin- istrator to settle the account of his intestate with ■ the estate of which he was the adminis- trator. Bush v. Lindsey, 44 Cal. 121. 62. Settlement by legal tender. When executors or administrators have sold the prop- erty of the estate for, and received pay in, legal tender notes, for the payment of creditors, it is error for the Probate Court to order pay- ment to be made in gold coin. Estate of Nicholas A. Den, 39 Cal. ")o.' 63. Administrator to account for use of land. If an administrator occupies and uses the real estate of his intestate, he becomes the tenant of the estate, and must not only ac- count to the estate for the rental value of the land, but must, if he makes a profit, account to the estate for that also. If he sustains a loss, the loss is his ; he must at all events pay the rental value of the land. Id. 64. An administrator cannot be charged with the rental value of land of the estate, after it has been sold by the Sheriff under a foreclosure sale. From that time the purchas- er at the sale is entitled to the value of the use and occupation. Walls v. Walker, 37 Cal. 424. 65. Administrator's account. If, in an, annual account of an administrator, certain charges are rejected because the necessary vouchers are not produced, the administrator may include them in a subsequent account, and by producing vouchers have them allowed. Walls v. Walker, 37 Cal. 424. 66. An account of an administrator is not conclusive, even as against the heirs and cred- itors, except as to such items as are included in it and actually passed upon by the Probate Court. Id. 67. Section 237 of the Probate Act pre- scribes the effect of a settlement of an adminis: trator's account as against " all persons any way -interested in the estate," viz : heirs, lega- tees and creditors. Id. 68. When settlement of account in Probate Court is a bar. The presentation of an account of the affairs of a partnership, and of a claim against the estate, by the sur- viving partner of a deceased person, made to the administrator r and an allowance of the same, and a final settlement of the administra- tor's account by the Probate Court, are a bar to an action afterwards brought against the surviving partner to settle the copartnership affairs, under the claim that the account ren- dered was fraudulent. Kingsley v. Miller, 45 Cal. 95. 69. Expenses of administration. Serv- ices rendered and money advanced, at the re- quest of an administrator, for the benefit of an estate, are " expenses of administration"; and the Probate Court has exclusive original juris- diction to adjust and enforce such demands. Gurnee v. Maloney, 38 Cal. 85. 70. Employment of attorney to pro- cure letters of administration. The em- ployment of an attorney for the mere purpose of procuring letters of administration is a con- tract made in advance of any authority on the part of the client to deal with the assets of the estate in anywise ; and whether the applica- tion be successful or not, the estate is not to be charged with the fees of the attorney for the applicant. Estate of Simmons, 43 Cal. 543-v 71. Employment of counsel by ad- ministrator. The administrator, after he has become such, has the right, and it is ordi- narily his duty, to employ competent counsel to aid him in the management of adversary suits in which the estate may be involved while under his care, and fees for such services may be allowed from the assets of the estate. Id. 72. Allowance of attorney's fees. A ruling of a. Probate Court, in fixing the amount of compensation to be allowed an ad- ministrator in payment of counsel in the set- tlement of an estate, will not be disturbed, unless there is a plain abuse of discretion. Estate of Gasq, 42 Cal. 289. 73. Administrator may charge fees paid counsel. An administrator acting in good faith, is entitled to the aid of counsel in all litigation touching the estate, and to be allowed, in his account, the reasonable com- pensation paid such counsel. Estate of Minor, 46 Cal. 565. 74. Settlement of administrator's ac- count. If an administrator, acting in good faith and for what he believes the best interest of the estate, forecloses a mortgage given to the intestate, he is entitled, in the settlement of his account, to be allowed, the costs paid out by him on the foreclosure. Id. 75. If an administrator forecloses a mort- gage given to his intestate upon land on which there is a prior mortgage, and at the Sheriff's sale becomes the purchaser, at a sum too small to satisfy costs and both mortgages, the Court on the settlement of his account should not charge him with the amount of the mortgage debt and stipulated interest, but with the amount of his bid, less the sum paid by him 312 PROBATE LAW AND PRACTICE. for costs and to satisfy the former mortgage, and ■with legal interest thereon. Id. ' 76. In the settlement of an administrator's annual account he should be charged with the amount of his own note to the deceased, if there is one, and the interest therein stipulated to be paid. Id. 77. An administrator's commissions. An administrator's commissions should not be allowed to him in the settlement of his annual account, but such commissions are to be ascer- tained and allowed him when he has rendered his final account, and the estate is ready for distribution. Id. 78. An administrator cannot set off his commissions on the settlement of his annual account, against a sum due by him to the in- testate, and with which he is charged. Id. 79. Allowance of administrator's ac- count. If the intestate in his lifetime had contracted for the services of another for one year, at stipulated wages per month, and died soon after, and the employee continues to per- form the services for the year with the assent of Jhe administrator, and his services are nec- essary for the protection of the estate, the ad- ministrator should be allowed the wages paid him in the settlement of his account. Id. 80. Administrator's commissions. As affording a basis for the allowance of an ad- ministrator's commissions, the value of the estate which has been taken into possession, and having been in possession has been ac- counted for, is alone to be regarded. Instate of Simmons, 43 Cal. 543. 81. The Probate Court should not allow an administrator fees or commissions for prop- erty which does not come into his hands, but which is in the possession of other parties, who claim title to it adversely to the estate, even though it is appraised and included in the inventory. Id. 82. If expenses are incurred in attempting to administer, the administrator should be al- lowed them, so far as they are necessary. Id. 83. Charging administrator with inter- est. Where an administrator uses the funds of the estate in his private business, or retains them in his hands for an unreasonable length of time, to the prejudice of the heirs and creditors, he will be charged interest on the same in his settlement. Walls v. Walker, 37 Cal. 424. 84. If the heirs or creditors seek to charge the administrator with interest on funds in his hands, they must show affirmatively that he kept the funds an unreasonable length of time, or used the same in his private business, or derived profit therefrom. Id. 85. Liability of executor for interest on funds belonging to the estate. Where an executor is directed by the will to loan out moneys belonging to the estate, and he con- verts the same and invests it in his own busi- ness, he may, at the election of the legatee or other party interested, be held to account either for the interest which he might, with ordinary diligence, have obtained upon a loan of the fund, or for the profit realized from such in- vestment. Estate of Holbert, 39 Cal. 597. 86. Using estate funds chargeable with interest. Where an administrator did not keep the funds of the estate separate from his own money, but used them for his own purpose : held, that he was properly charge- able with interest. Estate of Gasq, 42 Cal. 289. 87. 'Withdrawing funds from bank. An administrator who withdraws money be- longing to the estate from a solvent bank, where vit had been drawing, and would have continued to draw, interest, when he had suffi- cient money to pay the debts of the estate and expenses of administration without drawing it, does not thereby become chargeable with inter- est on the sum thus withdrawn, provided he does not mingle it with his own, or use it for his own profit, or deposit in a bank in his own name, or neglect to settle his account for a long time. Estate of McQueen, 44 Cal. 584. See Appeal, 310. VHI. PARTITION AND DISTRIBUTION. 88. Power of Probate Court. The Pro- bate Court can do no more than pay the claims against the estate, and distribute the re- mainder among the heirs and devisees. It has no power to appropriate the share of an heir or devisee to the payment of his debts, even if the debt is in judgment, and the devisee is in the State Prison under a conviction for a fel- ony. Estate of Nerac, 35 Cal. 392. 89. Heir. Upon the death of the ancestor, the heir becomes vested at once with the fuli property, and his estate is indefeasible, except in satisfaction of the liens above mentioned, and the temporary right of possession of the admin- istrator ; and the Legislature has no more right to order a sale of his vested interest in his in- heritance than it has to direct the sale of the property of any other person acquired in any other way. Brenham v. Story, 39 Cal. 179. 90. Estate by inheritance. An estate acquired by inheritance is one that descends upon the heir, and is cast upon him by the sin- gle operation of law. A devisee does not in- herit, in the technical sense of the term, he takes by purchase. Estate of Donohue, 36 Cal. 329. 91. Inheritance. The inheritance is reg- ulated by the law in force at the time of the death. Rich v. Tubbs, 41 Cal. 34. 92. Descents and distributions. The word children, where it occurs in the third sub- division of Section I of the Statute of Descents and Distributions, does not include the grand- children, but is confined to the immediate off- PROBATE LAW AND PRACTICE. 313 spring of the deceased brother or sister. Estate of William Curry, 39 Gal. 529. 93. Where a person dies intestate, leaving property -which was devised to him, and leaves no issue, nor husband, nor wife, nor father, his estate goes in equal shares to his surviving brothers and sisters and mother, and to the children of any deceased brother or sister by right of representation. If the property of such intestate was acquired by inheritance, the , surviving mother will not inherit, but the estate goes to the brothers and sisters, and children of a deceased brother or sister. Estate of Donahue, 36 Cal. 329. 94. Common property. Where a hus- band dies, one half of the common property vests in the surviving wife, unaffected by any testamentary disposition he may have attempt- ed to make of it. Estate of Silvey, 42 Cal. 210. 95. Possessory right in pueblo lands. The right or interest which a person held in the pueblo lands of San Eraneisco, by virtue of possession alone, prior to the passage of the Van Ness Ordinance, if not devised by him, descended to his heirs, and could be distributed by the Probate Court. McLeran v. Benton, 43 Cal. 467. 96. Inheritance by pretermitted child. If a testator leaves no wife, nor any issue ex- cept a child, for whom he failed to provide in his will, without showing that this failure was intentional, the pretermitted child will take the whole estate in the same manner as though the testator had died intestate. Pearson v. Pearson, 46 Cal. 609. 97 . In such case, the pretermitted child will take by descent, and not by purchase. Id. 98. Title held by pretermitted heir. If the testator fails to- make provision for a child in his will without showing that it was intentional, the pretermitted child will take the same share in the estate, and hold by the same title, as though the testator had died in- testate ; and if the testator leaves a surviving wife and other children who are devisees, the pretermitted child takes the title by descent, and becomes a tenant in common with the 'de^ Id. See Equity, 42 ; Homestead, 27-29 ; Hus- band and Wife; 1 1 • IX. ORDERS AND DECREES. 99. Effect of final decree of distribu- tion. A final decree of the Probate Court making distribution of an entire estate is, un- til reversed or modified on appeal, an investi- ture of the absolute right and title to the same in the distributees ; and a further order of the Court making a different disposition of a portion of the estate, made pending an ap- peal which was perfected from said final de- cree, is void. Estate of Garraud, 36 Cal. 277. 100. Money in hands of administrator. After the decree of distribution, money in the hands of the administrator, distributed to an heir or devisee, may be garnisheed by a credi- tor of the distributee, or may be reached by proceedings supplementary to execution. Es- tate of Nerac, 35 Cal. 392. 101. Order to pay money to heirs. When the estate of infants is in the hands of executors, and an order is made by the Probate Court' for the executors to pay to the mother, (who is also the guardian of the infants) in her own right, and also as guardian, a sum of money, the order is an appropriation of a sum of money for the immediate use of the heirs, and the guardian may assign the same, with- out leave of the Probate Court, and the assignee may maintain an action against the executors to recover the money. Schmidt v. Wieland, 35 Cal. 343- 102. Appointment of attorney for heirs not represented. In proceedings to obtain an order for the sale of real estate belonging to the estate of a deceased person, it is the duty of the Probate Court to appoint an attorney for heirs not represented ; and an attorney's fee of fifty dollars for such services is not un- usual or excessive. Estate of Simmons, 43 Cal. 543. 103. Appointment of attorney for mi- nor heirs. The appointment by the Probate Court of an attorney to represent minor heirs who reside in the county and were not served with citations to appear, and the appearance of the attorney for such minor heirs, are nul- lities, and do not give the Court jurisdiction. Randolph u. Bayue, 44 Cal. 366. 104. Right of appeal. The heirs and devisees or legatees of an estate are made par- ties to the proceedings for a distribution, and any one of them feeling aggrieved may appeal from the final order. Bates v. Ryberg, 40 Cal. 463. 105. The executor of an estate cannot maintain an appeal from a final order of dis- tribution, upon the grounds that the property was improperly divided between the legatees. Bates v. Ryberg, 40 Cal. 463. 106. Order of distribution of estate. An order of a Probate Court distributing an estate is void, unless the order to show cause why a decree of distribution should not be made is published at least four successive weeks, or personally served on all persons inter- ested in the estate, or all persons so interested shall signify, in writing, their assent to the distribution. Pearson v. Pearson, 46 Cal. 610. 107. When decree of distribution void. Where, in the proceedings for the dis- tribution of. an estate, jurisdiction of the per- son is acquired by publication of notice, and the order for publication is made May 8th, and it directs persons interested to appear June 314 PROBATE LAW AND PRACTICE.— QUANTUM MERUIT. 4th and show cause, and the facts appear on the face of the decree, the decree is void as to the persons interested in the estate who do not appear, and may he attacked in a collat- eral action. Id. See Appeal, 39, 56, 396. X. GUARDIAN AND WARD. 108. Guardians by statute. Under the statute of this State the power to appoint guardians is vested : first, in the father ; sec- ond, in the mother ; and third, in the Probate Court. Lord v. Hough, 37 Cal. 657. 109. Under the statute of this State, a test- amentary guardian has only the power's of a probate guardian, and cannot, therefore, take the personal custody of the ward so long as there is a mother who is competent, willing, and worthy to have the custody and tuition of her child. Id. 110. The only effect of the tenth section of the Act concerning guardians is to give the appointment of a guardian, first to the father, second to the mother, and lastly to the Probate Court. Id. 111. Guardian for insane person. The power of the Probate Court to appoint a guardian for an insane person is not defeated by the fact that such insane person is a married person. Guardianship of Eliza Fegan, 45 Cal. 176. 112. Husband and wife. When an in- sane person is a wife, there is no rule of law which prefers the husband as such guardian, if he be unfit to discharge the duties of guardian. Matter of Guardianship of Eliza Fegan, 45 Cal. 176. 113. Discharge of guardian. By the stat- ute concerning guardians, (Stats, of 1850, p. 272) as amended by the sixteenth section of the Act of 1 86 1, the power to discharge a guardian at chambers is conferred upon the Probate Judge, and as the act of the Probate Court. Warder v. Elkins, 38 Cal. 439. 114. This power includes and implies the power to perform at chambers any act prelim- inary to this ultimate act, and the same be- comes the act of the Probate Court. Id. 115. Decree on discharge of guardian. The Probate Court may make a final decree discharging a guardian and his sureties from all liabilities already incurred, or to be there- after incurred, except as to liability to those persons laboring under some legal disability. The rights of such persons are preserved until two years after their disability ceases, whether so expressed in the decree or not. Racouillat v. Requena, 36 CaL 651. See Guardian and Ward, 8. PROFANE SWEARING. See Criminal Law and Practice, 20 ; Munic- ipal Corporations, 15, 16. PROMISSORY NOTES. See Negotiable Instruments. PUBLIC ADMINISTRATOR. See Probate Law and Practice, 14. PUBLIC DOMAIN. See Land and Land Titles, 1-9 ; Mines and Mining, I. PUBLIC POLICY. See Contracts, 34-44, 109 ; Franchise, 9. PUBLIC USE. See Constitutional Law, 22 ; Dedication ; Eminent Domain ; Streets and Street Assess- ments. PUEBLO LANDS. See Ejectment, 4, 98 ; Land and Land Titles, 207-214 ; Trust and Trustee, 17, 18. ■ QUANTUM MERUIT. See Evidence, 136. QUIETING TITLE. 315 QUIETING TITLE. 1. Possessory title to public lands. In am action brought under the two hundred and fifty-fourth section of the Practice Act, to quiet title to a quartz mining claim, located on the public lands of the United States, a possessory title thereto is sufficient to maintain the ac- tion by a party in possession, as against one out of possession. Pralus v. Pacific G. & S. M. Co., 35 Cal. 30. 2. Possession necessary. In an action to determine an adverse claim to land, under Section 254 of the Practice Act, the plaintiff cannot prevail -without proof of possession at the time of commencing the action, if the al- legation of possession is denied by the answer. Brooks v. Calderwood, 34 Cal. 563. 3. The possession necessary to maintain an action, under Section 254 of the Practice Act, must be such as would enable the plaintiff, without the aid of any other title, to maintain an action to eject a mere intruder therefrom. Sepulveda v. Sepulveda, 39 Cal. 13. 4. If adverse possession to a part of the land should be shown in a third person, the suit would be considered as brought to determ- ine the adverse claim of the defendant only, to the land remaining in the possession of the plaintiff. Id. 5. Possession at common law. At common law the owner after a mere entry is deemed in the actual possession until ousted by an actual adverse possession. Dissenting opinion of Temple, J. Sepulveda v. Sepulve- da, 39 Cal. 13. 6. If the owner has full dominion and con- trol of his property, (which he has if not held adversely) he may well be said to be in posses- sion, in every sense of the word. Sepulveda v. Sepulveda, 39 Cal. 13. 7. I think the true rule under the statute is, that whenever the owner has a possession, whether actual or constructive, which may be intruded upon, he may bring suit to determine an adverse claim, and thus prevent an intru- sion under claim of title. Id. 8. Possession, actual or constructive. To maintain an action to quiet title to min- ing claims on the public domain, under Sec- tion 254 of the Practice Act, the plaintiff must establish an actual or constructive pos- session in him at the time of commencing the action. Pralus v. Jefferson G. & S. M. Co., 34 Cal. 558. 9. A possessory title thereto is sufficient to maintain the action by a party in possession, as against one out of possession. Pralus v. Pacific G. & S. M. Co., 35 Cal. 30. 10. Purchase of adverse claim of title. The purchase of an outstanding adverse claim to land by one in possession claiming adversely to all others, for the purpose of quieting his title, does not estop him from setting up the Statute of Limitations against a third party also claiming under an adverse title. Cannon v. Stockmon, 36 Cal. 535. 11. Collusive possession. One who, by collusion with a tenant, acquires possession of the leased premises, has such a possession as enables him to maintain an action under the two hundred and fifty-fourth section of the Practice Act, to quiet title to the same. Cal- derwood v. Brooks, 45 Cal. 519. 12. Constructive possession. In such case, constructive possession can only be estab- lished by the proof of three facts, to wit : first, that there were local mining customs, rules and regulations in force in the district embrap- ing the claims; second, that particular acts were required by such mining laws or customs to be performed in the location and working of claims, as authorized by such laws ; and third, that plaintiff has substantially complied with these requirements. Pralus v. Jefferson G. & S.M. Co., 34 Cal. 558. 13. Averment of injury, what sufficient. Where, in such action, plaintiffs alleged that by reason of defendant's adverse claim, "they were greatly embarrassed in the use and dispo- sition of their mining claims," and "that thereby their value was greatly depreciated" : held, that this was a sufficient averment of injury to sustain the action. Pralus v. Pacific G, & S. M. Co., 35 Cal. 30. 14. Costs on disclaimer. In such ac- tion, the defendant will not be exonerated from payment of costs, under Section 255, by disclaiming any title or interest in himself, when, if at the same time he answers, denying the allegation of possession contained in the complaint, thereby compelling the plaintiff to prove that issue, and the plaintiff finally suc- ceeds on the issue. Brooks v. Calderwood, 34 Cal. 563. 15. Costs on partial success. When, in such action, the plaintiff succeeds in part and fails in part as to some of the defendants, the judgment will not be reversed because the District Court awards costs against such de- fendants. Id. 16. Judgment in. In such action, if the Court finds and adjudges that a defendant has no just claim or title, legal or equitable, tlie judgment will not be reversed because it also contains a clause perpetually restraining the defendant from further setting up the claim so adjudged to be invalid. Id. 17. Action to remove "cloud upon title." Where Lick held a Sheriff's deed to certain property under a judgment and execu- tion, in an attachment suit against James H. Ray, and James Ray held another Sheriff 's deed to the same property, under another judgment and execution, against James H. Ray, the lat- ter judgment and deed being earlier in date than the former, but not so early as the attach- ment lien in the former suit, and it appeared by averment that James Ray held his deed in 316 QUIETING TITLE.— RAILROADS. trust for his father, James H. Ray, and it was conceded that Lick's was the superior title, but Ray claimed that his deed did not amount to a cloud : held, that the apparent title held by Ray under his deed was a cloud, and that Lick was entitled to relief in equity to remove it. Lick v. Ray, 43 Cal. 83. 18. What constitutes a "cloud upon title." If a title against which relief is prayed as a cloud be of such a character that, if asserted by action and put in evidence, it would drive the other party to the production of his own title in Crder to establish a defense, it consti- tutes a cloud, which the latter has a right to 340, 354, 360, 383. 388 ;' Damages, 2; Death, 1 ; Debtor, 3 ; Default, 4 ; District Court Reporter, 1 ; Ejectment, 23, 38 ; Elec- tions, 4, 5, 8, 9 ; Eminent Domain, 1, 7, 9, 11, 15. l8 > 32-34; Execution, 2, 3, 4, 5, 19, 44; Eees and Salaries, 1, 3, 10 ; Perries and Fer- riage, I ; Findings, 1, 2, 5-7, 24 ; Forcible Entry and Detainer, 1-6, 35, 57, 62, 82, 83 ; Foreclosure, 10, 21 ; Homestead, 16, 19, 27, 28 ; Husband and Wife, 1, 4, 11, 27; Injunction, 23, 27 ; Insolvency ; Insurance Commissioner ; Interest; Joint Tenancy; Judgment, 10-12, 38, 66, 98-101 ; Judicial Sale, 2 ; Labor ; Land and Land Titles, 59-66, 80-^90, 122, 129, 211 ; Legislature, 1,2; Limitations ; Mandamus, 6, 7 ; Mechanic's Lien ; Mines and Mining, z, 22, 24, 33 ; Municipal Corporations, 2, 10 ; Nego- tiable Instruments, 41 , 48 ; New Trial, 68, 79, 81, 135 ; Office and Officer, 5, '20 ; Orders, 34 ; Parties, 22 ; Partition, 12 ; Practice Act, 1 ; Pleadings, 43, 246 ; Probate Law and Practice, S, 16, 25, 31, 36, 45, 67, 69, 108, 109, 113 ; Quiet- ing Title, 7 ; Roads and Highways, 4 ; San Francisco; Sheep; Sole Trader, I, 4; Statute of Frauds ; Streets and Street Assessments ; Summons ; Supervisors ; Taxation ; Trespass, 2 : Trade Mark, 2-5 ; Wills, 1,9; Yosemite, 2. STATUTORY RIGHTS. See Waiver, 1 . STIPULATIONS. 1. Stipulations not binding. A stipula- tion not in writing and filed with the Clerk, STIPULATIONS.— STREETS AND STREET ASSESSMENTS. 335 nor entered in the minutes of the Court at the time it was made, is not binding upon the par- ties, and cannot be enforced by the Court. Borkheim v. North British and Mercantile In- surance Company, 38 Cal. 623. 2, B had several actions against different parties turning upon the same issues, and prosecuted and defen4ed by the same attorneys respectively. Counsel, with consent of B, stipulated, verbally, in open Court, that but one case should be tried, and the others should abide the result ; but the stipulation was not reduced to writing and filed with the Clerk, nor entered in the minutes of the Court. Held, that the stipulation was void, and could not be afterwards enforced by a nunc pro tunc or- der, directing it to be entered in the minutes of the Court. Id. 3. When binding. A party who has procured a judgment to be entered in his favor by means of one part of a verbal stipulation, is not , at liberty to repudiate the other part ; but, having received the benefit of the stipula- tion, must bear the burdens which it imposes on him. Himmelmann v. Sullivan, 40 Cal. 125- 5. Stipulation to place cause on cal- endar. When a motion is made to place a cause on the calendar of the Supreme Court, in accordance with a stipulation of the parties, it must be shown that the transcript, and the briefs or points and authorities of both parties, have been filed, or the motion will be denied. Plant v. Smythe, 43 Cal. 42. 6. Stipulation of attorneys. The Court cannot alter or vartv the terms of a written stipulation made by attorneys, or relieve them from its obvious consequences. Keys v. War- ner, 45 Cal. 60. 7. As to location of line of survey. A stipulation , as to the location of one 6f the lines of a Mexican grant as surveyed, under a decree confirming the grant, will not be con- strued as admitting that the line was correctly surveyed unless from the whole reading of the same it appears to have been the intention of the parties. City of San Jose' v. Uridias, 37 Cal. 339. 8. Parties. — Interest of. A stipulation that the petitioner has such an interest in the proceedings as to make him a proper party thereto, does not preclude inquiry into the facts going to show the existence of such in- terest. Harpending v. Haight, 39 Cal. 189. See Appeal, 99, 113, 133, 138, 201, 226; Courts, 11 ; Decree, I ; Divorce, 13 ; Ejectment, 100 ; Findings, 5 ; Judgment, 25 ; Labor, 2 ; Lis Pendens, 4 ; New Trial, 27, 87, 88, 137 ; Of- fice and Officer, 18 ; Pleading, 263 ; Reference, 8 ; Trial, 16, 67 ; Trust and Trustee, 7 ; Ver- dict, 2. STOPPAGE IN\,TRANSITTJ. 1. Notice to carrier of vendor's inten- tion to retake the goods. An express de- mand for the goods is not required in order to charge the carrier. If he is clearly informed that it is the desire of the vendor to retake the goods, the notice is sufficient. Jones v. Earl, 37 Cal. 630. 2. Lien of vendor. The vendor of goods upon credit may retake them, upon the discov- ery of the insolvency of the vendee, at any time before they have been delivered, to the vendee, or before any third party has acquired bona fide rights in the goods. Id. See Common Carrier, 11-14. STREETS AND STREET ASSESS- MENTS. I. Dedication. II. Street improvements. 1 . Generally. 2. Change of grades. 3. Construction of statute. 4. Notice of intention. 5. Publication of notice. 6.- Advertising for proposals. 7. Award of work. 8. Contracts, reletting. HI. Assessment and warrants. rV r Authentication oe records of Street Superintendent. V. Demand and return. VI. Lten. VTI. Remedy by appeal, to board. Vni. Action. 1. Generally. 2. Complaint. 3. Defenses. 4. Evidence. 5. Judgment. I. DEDICATION. 1. What constitutes a public street in San Francisco. Under an Act of 1862, re- lating to the City of San Francisco, (Stats. 1862, 391, Sec. 1) the mere dedication of land by the owner to public use, as public streets, lanes, alleys, or other public places, 'converts it into public streets, lanes, alleys or other public places, for the purposes of said Act, without any formal acceptance of the same as such by the Board of Supervisors, who may thereafter improve them in the manner pro- vided by law, although until this is done there may not be any obligation to keep them in a safe or passable condition for public use. Stone v. Brooks, 35 Cal. 490. 336 STREETS AND STREET ASSESSMENTS. 2. What constitutes a dedication. M, who was the owner of the middle one of three adjoining one hundred vara lots, which filled the space between Second and Third streets, in the City of San Francisco, offered it for sale, and sold portions of it at public auc- tion in parcels or subdivided lots, each having a width of twenty-five feet, and fronting on either side on an extension of Perry Btreet, which at that time, so far as actually opened, was but a cul de sac, extending at a right an- gle from Third street midway through the ad- joining one hundred vara lot lying on Third street, and terminating at M's said lot. But at said sale, M had represented on a large map, by which the sale was made, said subdivided lots as each fronting on an extension of Perry street, made midway through her said lot, and terminating at the other adjoining one hun- dred vara lot lying on Second street. The sales were made to the highest bidder, and were absolute. Held, that in law this consti- tuted a dedication by M of that portion of her lot which was represented on said map, as an extension of Perry street to public use as a street, and as such was thereafter subject to the jurisdiction of the Board of Supervisors for all purposes of its improvement ; which, when made, operates as a complete acceptance of the dedication, and perfects the right of the pub- lic to its use as a public highway for all pur- poses. Id. 3. 'What may be dedicated as a pub- lic street. A street or court which is a mere cul de sac may be dedicated to public use in like manner as a thoroughfare. Id. 4. Repairs to streets or highways. The owner of land bordering upon public streets or highways is not bound to keep them in re- pair. Eustace v. Jahns, 38 Cal. 3. See Railroads, 7, 13 ; Specific Performance, 29 ; Dedication. II. STREET IMPROVEMENTS. 1 . Generally. 5. Streets and other thoroughfares in San Francisco. The legislative charter of the City and County of San Francisco confers the entire control, supervision and manage- ment of all the public streets, thoroughfares, etc., within its corporate limits, upon the Board of Supervisors and Superintendent of Public Streets and Highways. Eustace v. Jahns, 38 Cal. 3. 6. Duty of repairing. The law does not impose upon the owner of a lot fronting upon a public street in San Francisco, the duty of repairing defects in the portions of the street upon which his lot abuts. Eustace v. Jahns, 38 Cal. 3. ■ 7. Authority of Board of Supervisors to make street improvements. Under the provisions of Sections 3 and 8 of the Act of 1862, (Stats. 1863, p. 391) the jurisdiction is vested in the Board of Supervisors to determine whether the whole or a portion, and if a portion, what portion, of a street improvement shall be done as a single improvement. It is necessary to a proper execution of this important power, and to protect the interests of property owners, that such determination should be distinctly and clearly expressed, so as to enable those in- terested to act intelligently. When so ex- pressed, the subsequent proceedings of the Board must be in strict pursuance thereof as their sole authority, and if not so pursued, such subsequent proceedings will be void. Per Mr. Chief Justice Sawyer. Dougherty v. Hitch- cock, 35 Cal. 512. 8. Power of Board of Supervisors. The Board of Supervisors of the City and County of San Francisco, in respect to street improvements, have whatever power is con- ferred by the statutes on that subject, and no other. The power which they possess must be exercised in the mode prescribed by said statutes, and in no other. " The mode in such cases constitutes the measure .of the power." Nicolson Pavement Co. v. Painter, 35 Cal. 699. 9 . The Board of Supervisors have no power, in making street improvements, so far as con- ferred by said statutes of 1862 and 1863, to do any kind, of work which, for any cause, can- not be let or contracted for in the mode pre- scribed by said statutes, or which the owners of the frontage are legally prohibited from performing. Nicolson Pavement Co. v. Painter, 35 Cal. 699. 10. Jurisdiction under Consolidation Act. It was the intention of the statute authorizing street improvements in the City and County of San Francisco, to leave open for judicial inquiry all questions of a juris- dictional character, and to submit all other questions to the decision of the Board of Su- pervisors. Chambers v. Satterlee, 40 Cal. 498. See Eminent Domain, 31-34 ; Municipal Corporations, 9. 2. Change of grades. 11. Act to change the street grades. Under the Act of ".larch 28th, 1868, (concerning the change of street grades in San Francisco) it was the purpose of the Legislature to con- fine the award of damages to those who should petition for their allowance as provided by said Act. Matter of Beale Street, 39 Cal. 495. 12. The Commissioners under the above Act have no authority to award damages irk. excess of the amount claimed in the petition. Id. 13. Right of city to raise grade of street. A city has the right to raise the grade of a street ; and if the contractor performs the work with proper care and skill, he is not re- sponsible for any damage which may result to STREETS AND STREET ASSESSMENTS. 337 the contiguous property. Shaw v. Crocker, 42 Oal. 435. 14. Duty of Commissioners. It is the duty of Commissioners appointed under that Act to ascertain and report the damages to the owner of each specific parcel of land affected by the proposed work, which should include the value of lands taken for the street. Jaco- bus v. Oakland, 42 Cal. 21. 15. The Legislature did intend that the aggregate damages to private property, includ- ing the value of land taken for the street, and the expenses of the Commissioners, should be paid for in money by assessment upon the sev- eral parcels of land benefited by the proposed improvement, in proportion to the benefits to accrue to each. Jacobus v. Oakland,, 42 Cal. 21. 16. Remedy for damages. The only remedy for property owners who have suffered damage under the Acts of 1868 and 1870, rel- ative to modifying grades of streets in San Francisco, is by application to the. Legislature for relief. Appeal of S. O. Houghton, 42 Cal. 35- See San Francisco, 9, 12,. 17. 3. Construction of statutes. 17. - Liability of San Francisco for street ■work under the Patrick Creighton Relief Act. The circumstances that the contract under which Patrick Creighton did certain street work in San Francisco expressly pro- vided that the city should in no event be lia- ble for any portion of the expenses thereof, held, not to affect or in any manner invalidate the special Act subsequently passed by the Legislature, (Stats, 1869-70, p. 309) requiring the city to pay him. Creighton v. San Fran- cisco, 42 Cal. 446. 18. " Second street cut " in San Fran- cisco.— Defects in proceedings cured. The amendatory Act of February 1st, 1870, ratify- ing and confirming all the orders and resolu- tions of the Board of Supervisors in reference to the "Second street cut" in San Francisco, and the proceedings of the Superintendent of Streets, and the contract, and all the acts and doings of the contractor under it, (Stats. 1869- 70, p. 41), cured an omission of the Supervisors to publish notice as required by the original Act authorizing the improvement. (Stats. 1867-8, p. 595.) San Francisco v. Certain Real Estate, 42 Cal.. 517." 19. Power of Legislature to cure de- fects in proceedings. In reference to pro- ceedings of statutory creation for the improve- ment of certain streets in San Francisco : held, that it was competent for the Legislature, by subsequent enactment, to cure any defects or omissions in the proceedings of the Board of Supervisors or Superintendent of Streets. San Francisco v. Certain Real Estate, 42 Cal. 517. CAL. DIG. SUP. 22. 20. Effect of "acceptance" of street in San Francisco. The only obligation im- posed upon the City and County of San Fran- cisco, by Section 21 of the street law of 1862, (Stats. 1862, p. 391) if there be any, is to keep open and improved that portion of the street constructed and " accepted " in accordance therewith ; and there is no obligation on the part of the city and county to pay assessments upon property for benefits derived from the opening and improvement of other portions of the same street. San Francisco u. Certain Real Estate, 42 Cal. 517. 21. Final disposition of objections to Commissioners' report on " Second street cut." The Act of February 1st, 1870, in ref- erence to the "Second street cut" in 1 San Francisco, (Stats. 1869-70, p. 41) in providing that the judgment of the County Court, either confirming or setting aside the report of the Commissioners, should be ' ' final and con- clusive," obviously contemplated that all ob- jections to the report founded upon the errors, misconduct, irregularities or omissions of the Commissioners, should be heard and deter- mined by the County Court, and that it should not thereafter be open to attack in a collateral action. San Francisco v. Certain Real Estate, 42 Cal. 515. 22. Act as mandatory. If an Act com- mands a municipal body to proceed and grade a certain street, prescribing the way and man- ner of doing the same, and the grade to be adopted, and leaving nothing to the discretion of the municipal body, except certain inci- dents to the main work, Courts will not con- _ strue the Act as not mandatory because these incidents are left to the discretion of the body. People v. Supervisors, 36 Cal. 595. 23. Construction of Acts of 1868 and 1870 relative to streets in San Fran- cisco. The Acts of 1868 and 1870, to modify the grades of streets in San Francisco, in de- claring that the judgment of the County Court on the second report of the Commission- ers shall be "final and conclusive," means that there shall be no appeal from the judg- ment, and that it shall not be reviewed by the County Court, except by motion for a new trial. Appeal of Houghton, 42 Cal. 35. 24. Jurisdiction to order street im- provement in San Francisco. The Board of Supervisors of the City and County of San Francisco has jurisdiction to order a street to be graded in any part of the city, without a petition first presented for that purpose, except when it is proposed to partially improve or grade a street west of Larkin street, without reference to its official width or grade. Dyer v. North, 44 Cal. 157. 25 . Streets in Oakland. The Legislature did not intend by the Act of Janury 31st, 1870, relative to the opening of streets in Oakland, to authorize the City Council to proceed to open, extend, straighten, or widen any street, 338 STREETS AND STREET ASSESSMENTS. except in cases where the Council were satis- fied that the benefits to lands affected thereby, and to be assessed therefor, would exceed the damages to private property necessarily occa- sioned, and the expenses of the proceeding and work. Jacobus v. City of Oakland, 42 Cal. 21. 26. Board cannot delegate its powers. The Board of Supervisors of San Francisco cannot by resolution transfer its appropriate functions to its Clerk. Meuser v. Risdon, 36 Cal. 239. 27 . Power to establish grade of streets. The power conferred on a Board of Supervisors to lay out, open, and grade streets in a, city, carries with it, by necessary implication, the power to establish the grade of such streets. Himmelmann v. Hoadley, 44 Cal. 213. 28. Confirmation of void order fixing grade of streets. An order of a Board of Supervisors, establishing the location, width, and grade of streets, if passed without author- ity, is rendered valid by being subsequently confirmed by the Legislature. Id. 29. When the change of grade is estab- lished. Where the proceedings are free from fraud, and have been regularly conducted, the change of grade is absolutely fixed by the act of the Board of Supervisors in adopting the report of the Commissioners. Matter of Beale street, 39 Cal. 495. 30. Ratification by a city. So far as the lot owner is concerned, the City of San Fran- cisco cannot by its act ratify proceedings taken to grade a street, and impose an assess- ment on the lot for the same, so as to make the same valid, when they were invalid in the first instance. The power of ratification, if it ex- ists, is in the Legislature. Meuser v. Risdon, 36 Cal. 239. 31. Policy of general law. The evident policy of the general law upon the subject of street improvements in San Francisco, as pass- ed in 1862 and amended in 1863, (Stats. 1862, p. 391 ; 1863, p. 525) is to secure and protect the persons who are made to pay the cost of the improvement from official mismanagement and wanton or reckless exercise of power, by advising them of what is proposed to be done, by enabling them to do the work themselves, if they so elect, and especially by securing the performance of the work by responsible persons, and upon the lowest terms. This policy can- not be defeated by the Board of Supervisors, , by setting aside the measures which have been provided for its enforcement. Nicholson Pave- ment Co. v. Painter, 35 Cal. 669. See Constitutional Law, 49, 72 ; Eminent Domain, 12, 21, 31-34' 4. Notice of intention. 32. Jurisdiction how acquired. The Board of Supervisors of the City and County of San Francisco acquire jurisdiction of the subject matter of improving a street in the City and County of San Francisco, after the expiration of the notice of intention to im- prove. Dougherty v. Miller, 36 Cal. 83. 33. Place, how determined. The place where work is to be done in improving a street in San Francisco, must be determined by the judgment of the Board of Supervisors in the resolution of intention. The Board cannot leave the selection of the place where work is to be performed between any two points to the Superintendent of Streets, or any other person. Richardson t\ Heydenfeldt, 46 Cal. 68. 5. Publication of notice. 34. Intention to order street -work. A resolution of the Board of Supervisors, di- recting a publication of a notice of intention for street work, for ten days from and after a particular date, the publication of which was not in fact commenced until two days after the time fixed in the resolution, but was then made for the legal period of ten days, was a substantial compliance with the provisions of the law. Chambers v. Satterlee, 40 Gal. 498. 35. Of notice to improve street. The question reserved, whether the Board of Super- visors of San Francisco should order the publi- cation of a resolution of intention to improve a street, or whether it may be published with- out such order. Dyer v. North, 44 Cal. 157. 36. The provisions of the statute which authorizes the Board of Supervisors to order street work to be done after notice of their in- tention to order the work has been published for ten days, requires the notice to be given by the Board itself, and the publication required can only be made by their authority. Per Temple J. , concurring. Chambers v. Satterlee, 40 Cal. 497. 37. Exercise of power by the Board of Supervisors. After the Board has acquired jurisdiction to act, by due publication of the resolution of intention, they must still exer- cise their power in the mode prescribed by law. Per Temple J., concurring. Chambers's. Sat- terlee, 40 Cal. 497. 38. Sufficient publication. Where a statute requires a notice to be published in a daily newspaper, but does not specify a partic- ular language in which it must be published, a publication in a German newspaper, but in the English language, is sufficient. Richardson v. Tobin, 45 Cal. 30. 39. Daily newspaper. A newspaper which is published six days in each week is a daily newspaper. Id. 6. Advertising for jiroposals. 40. Order of Board. An order of the Board of Supervisors of the City and County of San Francisco authorizing the Clerk of the STREETS AND STREET ASSESSMENTS. 339 Board to advertise for proposals to do street work is sufficient, although it do not mention sealed proposals nor specify the time or place of giving notice. Himmelmann v. Byrne, 41 Cal. 500. 41. Five days. A resolution of the Board of Supervisors of San Francisco, author- izing their Clerk to advertise for proposals to do certain work mentioned in the resolution, on a street therein named, is sufficient author- ity to said Clerk to advertise five days for pro- posals in the mode provided by law, as well as to post notices in the office of the Superin- tendent of Streets. Shepard v. Colton, 44 Cal. 628. 42. Posting of notice inviting pro- posals. The posting of the notice, inviting proposals for the execution of work, in the office of the Superintendent of Streets, for a period of three days instead of five, as required by law, is a violation of the statute in a mat- ter affecting the substantial rights of persons interested, and is such a defect as renders all the subsequent proceedings void. Hughes v. Reis, 40 Cal. 255. 7. Award of work. 43. Proof in action for street assess- ment. In an action for the recovery of an assessment for the improvement of a street in San Francisco, it is necessary for the plaintiff to prove, if the same is denied, that notice of the award of the contract to the plaintiff for the improvement was published for five days, pursuant to an order of the Board of Super- •visors. Shepard v. Colton, 44 Cal. 628. 8. Contracts, reletting. 44. Contracts and assessments for street improvements. Under the statute regulating street improvements in San Fran- cisco, the Board of Supervisors adopted a res- olution of intention to grade Clay street from Taylor to Jones and from Jones to Leaven- worth streets, and the crossing of Clay and Jones streets, and subsequently ordered, said work to be done, and the Clerk advertised for proposals for its performance, notifying bidders to put in separate bids for each block and said crossing. The Board awarded a contract for the whole work. The only contract entered into by the Superintendent of Streets, etc., with the successful bidder, was for the grad- ing of one block only — that from Jones to Leavenworth streets. Held, first, that the res- olution of intention and its publication con- stituted the sole authority of the Board to pro- ceed, in the statute mode, to order said work to be done, and that thereby no authority was conferred to act upon any other or different work ; second, that the work designated in the resolution of intention constituted one distinot and entire subject matter ; third, that the resolution of award constituted the sole authority to the Superintendent, who acted ministerially only in making a contract under it, and that the contract, by reason of vari- ance between its terms and the resolution of award, was unauthorized and void ; and fourth, that a contract duly authorized under said Act, and executed according to its require- ments, is indispensable to the validity of any assessment upon property to pay for street im- provements. Dougherty v. Hitchcok, 35 Cal. 512. 45. Contract void. Proposals for bids to make certain street improvements in the City of San Francisco, consisting of more than one kind of work, were made by the Board of Su- pervisors, and let to K, who was the sole bid- der therefor, as one -job. One of said kinds of work was to put down the Nicolson pave- ment, the exclusive right to construct which in said city was at the time owned by the plaintiff, It's assignee, under letters patent of the United States. Held, that because this course had the effect to preclude all persons other than the owner of said patent right from bidding, and the property owners from taking the contract for any portion of Baid work, the contract as let was void. Nicolson Pavement Co. v. Fay, 35 Cal. 695. 46. Power of the Board of Super- visors to contract for Nicolson pave- ment. Whatever power said Board of Super- visors has in relation to the Nicolson pave- ment is derived from the statute relating 1 thereto, (Stats. 1865-6, p. 720) under which the power can be exercised only upon the peti- tion therefor of a majority of the owners, or their agents, in frontage, and upon the con- dition that the pavement shall not cost to ex- ceed twenty-eight cents in coin per square foot. Where the Board advertised for propos- als and awarded a. contract for the construc- tion of said pavement in said city, without having received said petition : held, that the contract was void. Nicolson Pavement Co. v. Painter, 35 Cal. 699. 47 . Where said Board, while assuming to act under said statutes of 1862 and 1863, ad- vertised for proposals to put down on a street in said city the Nicolson pavement, which had been patented under the laws of the United States, and awarded a contract therefor to B, who owned the exclusive right to put down said pavement in said city, and who alone put in a bid for said contract : held, that the Board exeeeded its authority, and the contract was void. Id. 48. Contract for grading streets. When the person who has contracted to grade a street in the City of San Francisco fails to perform the work, and it becomes necessary or expedient to relet the job, the same course must be pursued in reletting which is pre- scribed in the first instance by the sixth sec- tion of the statute in relation to the improve- 340 STREETS AND STEEET ASSESSMENTS. ment of streets in San Francisco. Meuser v. Risdon, 36 Cal. 239. 49. Reletting. In case of such reletting, the Clerk of the Board of Supervisors, as such', has no power to give the notice inviting pro- posals for the work, nor does the original reso- lution of the Board inviting proposals confer such authority, nor can the Board confer such authority on him by a general resolution, directing him in all cases where contractors fail to perform to readvertise for proposals. Id. 50. Each proceeding to improve a street in San Francisco, whether in relation to the first . contract or a reletting on the failure of the first contractor to perform, is a separate and in- dependent proceeding, and. must stand or fall by itself. Meuser v. Risdon, 36 Cal. 239. 51. Superintendent of Public Streets and High-ways in the City of San Fran- cisco. Although contracts are made on behalf of the City and County of San Francisco in the name of the Superintendent of Streets, he is but the agent of the corporation in that be- half ; and, pro liar, vice, his act is the act of the corporation. Drew v. Smith, 38 Cal. 326. 52. Contract for street -work. — Special agency. In entering into a written contract for the performance of street work, ordered by resolution of the Board of Supervisors, the Superintendent of Streets becomes pro haa vice the special agent of the Board, with authority to execute the contract which has been award- ed, and no other or different contract. Per Crockett, J., concurring. Chambers v. Satter- 40 Cal. 497. 53. Special agent.— Act of, in excess of authority. An act performed by a special agent in excess of his authority, which is divis- ible in its nature, so that the part which he was authorized to perform can be separated from the rest, without injury to the principal ; the latter will be bound by it so far as he authorized it, and it will be void only for the excess. Id. 54. Contract for street •work. A con- tract entered into by the Superintendent of Streets, under a resolution of the Board of Su- pervisors, ordering a street to be graded to the official grade, but which provided, in addition, that the roadway should be graded one foot below the official grade, is divisible in its na- ture, and "is valid to the extent that it is authorized by the resolution of the Board. Id. 55. What it carries. If the Street Su- perintendent of a city enters into a written contract with a party to improve the streets of a city, Tvhich is void for want of authority to make it, and the other contracting party makes a written assignment on the back thereof _ of " the articles of agreement on the other side thereof written, and all moneys hereafter due, payable, or to be paid therefrom, and the full benefit, profit, and advantage thereof," it is not a mere assignment of the written contract, but transfers to the assignee the right to col- lect, demand, and receive all moneys due or to become due for the work specified in the con- tract, even if recovered on a quantum meruit, or for work and .labor. Wetmore v. San Fran- cisco, 44 Cal. 294. 56. Bid for grading a street in a city. If an ordinance of a city, providing for grading a street containing several blocks, requires that bidders shall bid on each block separately, a, bid to grade the entire street at so much per cubic yard is an error which enables a lot own- er to defeat the collection of an assessment. City of Stockton v. Creanor, 45 Cal. 643. 57. Bids and contracts for grading streets. If the charter of a city authorizes the Council to cause the streets to be graded and to let contracts for that purpose, and pro- vides that the Council may reject all bids, a committee of the Council cannot accept a bid or award a contract to grade a street. Id. See Labor, I . m. ASSESSMENT AND WARRANTS. 58. A municipal tax. An assessment for the improvement of streets is a municipal tax, levied by the corporation upon the property adjacent to the. street, to defray the expenses of the improvement, and no demand can be made a set-off against it unless expressly so authorized by statute. Himmelmann v. Spana- gel, 39 Cal. 389. 59. Sense in which not taxation. An assessment for street work in the City and County of San Francisco, under the Consol- - idation Act, is not "taxation," within the meaning of the thirteenth section of Article XI of the Constitution. Chambers v. Satterlee, 40 Cal. 497. 60. Duty of Superintendent of Streets. It is the duty of the Superintendent of Streets in San Francisco, after the fulfillment of a contract to improve the same, to make an as- sessment on the lots to cover the sum due for the work, and then to issue a warrant thereon. No time is limited within which the assess- ment must be made, nor is the fact that a void assessment has already been made an excuse for not making a valid one. Himmelmann v. Cofran, 36 Cal-H"- 61. Writ of mandate to Superintend- ent. An abortive attempt to make a valid street assessment does not exhaust the power of the Superintendent, nor does it constitute a good defense to an application for a mandate to require the Superintendent to make an assess- ment in the mode prescribed by law. Him- melmann v. Danos, 36 Cal. 411. 62. How to be made. Assessments on lots for street improvements, in the City of San Francisco, to he valid, must be made to the true owner, if known : and if not, to " owners STREETS AND STREET ASSESSMENTS. 341 unknown." Himmelmann v. Steiner, 38 Cal. 175- 63. >It is the duty of the Superintendent of Streets, if, upon reasonable inquiry, he en- tertains doubts about the ownership of property to be affected by the assessment, to assess it to "owners unknown." Id. 64. The statute prescribing the mode of making assessments does not require the Super- intendent to act upon presumption or probabil- ities, nor upon implied or express notice of the existence of facts, in his determination of the question of ownership ; neither does \t require that he shall undertake to determine the ques- tion of ownership as between different parties or claimants. When, from any cause, a ra- tional doubt may exist as to the fact of own- ership, he cannot, in the sense of the statute, beheld, to know the fact ; and then he is author- ized, and required, to assess the premises to owner " unknown," and to leave the risk and responsibility of ascertaining the party who holds the legal title to the party interested in collecting the assessment by an enforcement of the lien^ Id. 65. The decision in the case of Taylor v. Palmer, 31 Cal. 240, in effect nullifies the en- tire seventeenth section of the Street Law for San Francisco. . Taylor v. Donner, 31 Cal. 482 ; Smith v. Davis, 30 Cal. 537 ; and Smith v. Cofran, 34 Cal. 31!}, approved. Id. 66. Unknown owners. The word "un- known " written in the assessment opposite the number of the lot, is sufficient to show that the name of the owner was unknown to the Superintendent of Streets, and is an exact compliance with the statute in that respect. Hughes v. Eeis, 40 Cal. 255. 67. Assessment to "unknown own- ers." An assessment on property for street work, made by the Superintendent of Streets, to " unknown owners," amounts to an official certificate by the proper officer that the owner of the particular lot designated was unknown to him. The certificate is conclusive of the truth of the fact so certified, and cannot be collaterally called in question in an action brought upon the assessment. Chambers v. Satterlee, 40 Cal. 498. ' 68. The .Superintendent of Streets in San Francisco, unless he is satisfied beyond all doubt as to the ownership of a lot, may assess it to " unknown owner," (and it is almost im- possible to show that he did know the owner) and when the assessment is made to " un- known owner," payment of an assessment on it for improving the street may be demanded publicly on the premises. Himmelmann v. Hoadley, 44 Cal. 213. 69. Description of property. An as- sessment for grading a street in San Francisco, which gives the numbers of the lots to be as- sessed, as shown upon a diagram attached to the assessment, and the frontage of each lot, and refers to the diagram for further descrip? tion, sufficiently describes the property to be assessed. Hughes v. Reis, 40 Cal. 255. 70. Liability for street improvement. Unless all the provisions of the statute prior to the award of a contract for a street improve- ment in San Francisco are complied with, the defendant is not liable for the assessment. Himmelmann v. Danos, 35 Cal. 441. 71. Power to levy tax. Where the stat- ute requires a series of acts to be performed before the owners of the property are properly chargeable with the tax, such acts are condi- tions precedent to the exercise of the power to levy the tax, and all the requirements of the statute must be complied with, or the tax can- not be collected. Hughes v. Reis, 40 Cal. 255. 72. Adding five per cent, to an assess- ment. The Tax Collector of the "City and County of San Francisco has no authority to add five per cent, to an assessment for widen- ing Kearny street, on failure of the owner to , pay the assessment when due. "Bucknall v. Story, 36 Cal. 67. . 73. In case of subsequent division of lots. If, at the time the Board of Supervis- ors of San Francisco acquire jurisdiction to improve a street, and when the contract is en- tered into, any part of the land fronting on the street to be improved constitutes one lot, the contractor is entitled to have the cost of the improvement made opposite the lot assessed on the whole of the same, in one assessment ; and no subsequent change in cutting up the lot by selling parts of the same can defeat that right. Dougherty v. Miller, 36 Cal. 83. 74. Lots added to streets. When a con- tract is let for improving a street in San Fran- cisco, and the length of the street is afterwards increased, and lots fronting on that portion added to the street are assessed for the im- provement, the question arises as to whether the assessment is not void for want of juris- diction. Himmelmann «;. Hoadley, 44 Cal 276. See Equity, 30 ; Constitutional Law, 72. 75. Void assessment. An assessment for widening a street, void on its face, creates no lien on the property, and a purchaser at the sale does not acquire even a color of title which will operate as a cloud on the true title. Bucknall v. Story, 46 Cal. 589. 76. Payment of money levied on void assessment. If property is assessed for the widening of a street, not to the true owner but to a stranger, and the owner pays the money to prevent a sale by the Tax Collector, he will be deemed to have known when he paid it that a sale by the Tax Collector would be a nullity, and would not invest the pur- chaser with even a colorable title, and in such case the payment will be deemed voluntary. Id. 77 . Recovery of money on void assess- ment. When an assessment is void upon its face, because made to one who does not own 342 STREETS AND STREET ASSESSMENTS. the property, and the true owner, -with a knowledge of the fact, but under a misappre- hension of or in ignorance of the law, pays the tax under protest, and to avoid a threatened sale of the property by the Tax Collector, it ii to be deemed a voluntary payment, and he cannot recover back the money in a suit against the Tax Collector. Id. 78. Collateral attack on legal proceed- ings. One who is a party to and bound by legal proceedings in relation to an assessment for widening a street, cannot attack these pro- ceedings for mere error, in a collateral action. His remedy is by appeal. Id. IV. AUTHENTICATION OF RECORDS OP STREET SUPERINTENDENT. 79. Mode of authentication. An assess- ment made by the Superintendent of Streets of San Prancisco, to cover the sum due for the improvement of a street, is an official act, and must be attested by his official signature. Dougherty v. Hitchcock, 35 Cal. 512. 80. As evidence. An assessment not thus officially attested, though attached to the diagram and the Superintendent's warrant, which were in due form and properly attested, does not constitute a valid assessment, and is not admissible in evidence, either by itself or in connection with the warrant and diagram. Id. 81. Certificate to record of street as- sessment. When the assessment, diagram and warrant, and sworn return of demand of payment for a street improvement in San Fran- . cisco are recorded in the office of the Superin- tendent of Streets, a certificate of their record- ing should be attached to the same, signed by the Superintendent. Without such certificate, the record is valueless. Whether such certifi- cate should be affixed to the separate record of the assessment, diagram, and warrant, not de- cided. Himmelmann v. Danos, 35 Cal. 441. 82. Street Superintendent. — Duty of in making assessments. If the Superintendent "originally" fails to authenticate his record by his ■ official signature, it is his duty after- wards to make a valid assessment. Shepard v. McNeil, 38 Cal. 73. 83. Mode of authentication. The proper mode for authenticating the record of the assessment, diagram and warrant, in cases of a tax on lots for improving or grading a street in San Francisco, is to append thereto the official certificate of the officer whose duty it is to make the record. The assessment need not have a separate certificate. Himmelmann v. Hoadley, 44 Cal. 213. 84. Certificate. Such certificate need not specify the pages upon which the assessment, diagram and. warrant are copied, but if it does it will be limited to the pages specified, unless the record itself shows that the reference to the pages is a clerical error. Himmelmann u. Hoadley, 44 Cal. 213. 85. When such record is copied upon six pages, ending with page seventy-nine, and the certificate states that " the foregoing on pages No. 79 ia a true and correct record of the assess- ment, diagram and warrant," it is apparent that the omission of the five preceding pages was a mere clerical error. Himmelmann v. Hoadley, 44 Cal. 213. 86. Certificate of deputy in name of principal. The certificate authenticating the record of the assessment, diagram and war- rant in case of tax on a street for improving the same in San Prancisco, may be signed by a deputy of the Street Superintendent, in the- name of his principal, and such deputy need not affix the word " deputy " to his signature if the certificate purports in the body of it to be the official signature of the principal. Id. V. DEMAND AND RETURN. 87. Demand for street assessment. When more than one person, either by the original contract, or by assignment from the contractor, is interested in a contract for im- proving a street in San Francisco, the demand required by the statute for the payment of the assessment on a lot for improving the street, before the lot can be charged with a lien for the same, is sufficient, if made by one alone of the persons interested in the contract. ' G-affney v. Gough, 36 Cal. 104. ' 88. Record of affidavit. The statute does not prescribe any time within which the affidavit of demand shall be recorded by the Superintendent of Streets. Himmelmann v. Reay, 38 Cal. 163. 89. Demand of payment. In an action by a contractor to recover an assessment on a lot in San Prancisco for improving the street, the return of an agent of the plaintiff, in- dorsed on the warrant for the collection of the assessment, showing- a demand of payment of the assessment, is evidence of such demand. Himmelmann v. Hoadley, 44 Cal. 213. 90. When, in such case, the -Superintend- ent includes in the asssessment on the lot- fronting on the old street the expenses of the work on that part added to the street, it is an error only, but it must be corrected by appeal to the Board of Supervisors, and it is not a de- fense in an action to recover the assessment. Himmelmann v. Hoadley, 44 Cal. 276. 91. Demand and return. An agent of an assignee of a street contractor is competent to make the demand of payment of the assess- ment, and to make return of such demand on the warrant. Himmelmann v. Woolrich, 45 Cal. 249. VI. UEN. 92. Lien on lot for street improve- ment. Until the assessment, diagram and STREETS AND STREET ASSESSMENTS. 343 warrant are recorded in the office of the Su- perintendent of Streets, in San Francisco, the contractor does not acquire a lien, on a lot for work on the street. Himmelmann v. Danos, 35Cal. 441. 93. If at the time a contract in San Fran- cisco is regularly let to improve a street, a lot fronting on the same is owned as one lot, the owner cannot, by selling a part of it before the assessment is made, prevent the whole of it from being assessed as one lot to pay the cost, and cannot, by such sale, prevent the contract- or from having a lien on the whole lot for such assessment, even if the part sold extends along the entire front next to the street. Such lien attaches to the whole lot, into whosesoever hands it may go. Dougherty v. Miller, 36 - Cal. 83. 94. Liability of lot for street improve- ment. The jurisdiction of the Board of Super- visors of San Francisco to improve a street and render a lot fronting on the same liable for an assessment for the costs of such improvement ,■ when it once attaches, extends to the whole lot through all the subsequent proceedings, although it may afterwards, and before the as- sessment is made, be divided by sales to differ- ent parties. Dougherty v. Miller, 36 Cal. 83. 95. Street Contractor's lien. A con- tractor for the improvement of a street does not lose his lien on lots fronting on the same, for the assessments made thereon, by the mere lapse of two years before the entry of judgment, from the date of recording the assessment, dia- gram, and warrant, provided his action to en- force the lien is commenced within that time. Randolph v. Bayue, 44 Cal. 366. VH. REMEDY BY APPEAL TO BOARD. 96. Defect in contract. In such a case the defect in the contract is not cured by the failure of the lot owners to appeal for its cor- rection to the Board of Supervisors, because, had an appeal been taken, the defect could not have been remedied by the Board. Dougherty v. Hitchcock, 35 Cal. 512. 97. Right to hear appeal includes pow- er to determine it. In case of an appeal to Supervisors, provided for by law , where the pro- ceedings are sufficient to give them a right to hear it, such right necessarily includes £he power to determine it. / Barber v. San Fran- cisco, 42 Cal. 631. 98. Remedy of aggrieved party. Where a contract for street work, entered into by the Superintendent of Streets, is not in compliance with the resolution of the Board of Supervis- ors by which it is authorized, the remedy for the aggrieved party is by appeal to the Board, and failing to avail himself of that remedy, he cannot afterward set up such irregularity as a defense to an action to recover the amount of the assessment. Chambers v. Satterlee, 40 Cal. 498. 99. Petition on appeal to Supervisors. Where a petition on appeal to the Supervisors of San Francisco, from a street assessment, based upon the ground that petitioners did the work in front of their premises in time, and were not allowed therefor, omitted to show that petitioners had obtained the certificate from the Surveyor required by law, (Stats. 1867-8, p. 361, Sec. 8, Subd. 11): held, that such petition was not bad on account of such omission, or insufficient to give the Board ju- risdiction. Barber v. San Francisco, 42 Cal. 63 '■ 100. Statement of objections to street assessment on appeal to Supervisors. The San Francisco street law of 1863, in pro- viding for an appeal to the Board of Supervis- ors, (Stats. 1863, p. 530, Sec. 12) does no;t ex-' act from persons objecting to an assessment the same strictness and precision, in stating their objections, which would be required in a plead- ing at common law. Barber v. San Francisco, 42 Cal. 631. 101. Acceptance of work. In an ac- tion for street assessments in San Francisco, the admission ' ' that after the completion of the work the same was accepted by the Super- intendent, and no appeal from the decision of the Superintendent in reference thereto was taken to the Board of Supervisors, ' ' is conclu- sive of the case, and judgment should be taken for plaintiff without further proof. Shepard v. McNeil, 38 Cal. 72. VIII. ACTION. 1 . Generally. 102. Right to sue. The assessment, dia- gram, and warrant, for improvements on a street in San Francisco must be recorded before the demand of payment and return of the same by affidavit, or a failure to pay the assessment confers no right of action on the contractor. Himmelmann v. Danos, 35 Cal. 441. 103. Plaintiff in action. An action to recover an assessment for improving a street in San Francisco should be brought in, the name of the contractor, and- not in the name of the city. Dyer v. North, 44 Cal. 157. 104. Actions on street contracts in San Francisco. The Act of April 4th, 1870, requiring actions to recover street assessments in San Francisco to be brought in the name of the City and County of San Francisco, instead of being brought in the name of ,the contractor, * l as was required by law before that time, does not apply to contracts for improving streets, entered into before April 4th, 1870. Dyer v. Pixley, 44 Cal. 153. *. Complaint. 105. What must be shown. A com- plaint to recover the amount assessed on a lot 344 STREETS AND STREET ASSESSMENTS. in the City of San Francisco, for an improve- ment of the street on which the lot fronts, should show either by general or special aver- ments a compliance by the Board of Super- visors with all the steps prescribed by law, to confer jurisdiction on the Board. Himmel- mann v. Danos, 35 Cal. 441. 106. Sufficient averment. An aver- ment in a complaint in an action to recover ujlon a street assessment in San Francisco, that " the said Superintendent duly made an assessment to cover the sum due for the work performed and specified in said contract, in- cluding the expenses thereof," is a sufficient averment of the assessment. Himmelmann o. Woolrich, 45 Cal. 249. 107. Unnecessary averments. It is not necessary to aver in such complaint that the Board of Supervisors ordered their Clerk to sign the resolution of intention to grade a street. Himmelmann v. Woolrich, 45 Cal. .249. 108. It is not necessary in such action to aver that notice of the intention of the Board was given in the resolution, nor to give the name of the official newspaper ; and it is suf- ficient to aver that the contract " was in the form and contained the notices, matters and conditions prescribed by law," and to aver that the work was completed within the time fixed by the Superintendent. Himmelmann v. "Woolrich, 45 Cal. 249. 109. Requirements of complaint. The power of the Legislature to prescribe the re- quirements of a complaint in actions relative to assessments for street work, admitted by counsel. Richardson v. Tobin, 45 Cal. 30. 110. Sufficient averments. In an action to recover a street assessment in San Francisco, an averment that a resolution to do the work was passed by the Board of Supervisors, and that the resolution was signed by the Clerk, and published ten days, (Sundays excepted) in the official newspaper, is sufficient to support a judgment by default, or to authorize proof that the Board directed the resolution to be pub- lished. Dyer v. North, 44 Cal. 157. 111. In a complaint to recover an assess- ment for improving a street in San Francisco, it is sufficient to aver that notice of the award of the contract to the contractor, and the par- ticulars thereof, was published for five days, without alleging that the Board of Supervisors passed a resolution directing notice of the award, etc., to be published. Himmelmann v. Haskell, 46 Cal. 66. 112. Material averment. The fact that an assessment was made and issued is a mater- ial averment in a complaint to enforce the col- lection of street assessment in San Francisco. San Francisco v. Eaton, 46 Cal. ioo. 3. Defenses. 113. Interest of parties. In an action to recover an assessment for street improve- ments against the owners of thelot and certain persons who "have or claim to have" an inter- est or claim in or to the premises, the nature and extent of such interest or claim must be set up before they 1 can be admitted to defend the action. Himmelmann v. Spanagel, 39 Cal. 389- 114. Construction of statute concern- ing pleadings. The law of 1869-70, concern- ing street assessments in San Francisco, which prohibits any defense, except that the Board did not acquire jurisdiction to order the work, or payment, or fraud in the assessment, was not intended to prevent the defendant from denying material averments in a complaint, but was merely intended to _ restrict affirmative defenses to those mentioned. San Francisco v. Eaton, 46 Cal. 100. 115. Counter claim. Damages for injury to the property against which the assessment was issued cannot be set up as a counter claim in an 'action to recover an assessment for the improvement of the street. Himmelmann v- Spanagel, 39 Cal. 389. 116. Fraudulent side contracts with owners of lots. If the contractor to improve streets in San Francisco makes a private fraud- ulent contract with a part of the owners, it is no defense in an action brought by the con- tractor against another lot owner to recover his assessment. If such fraud is not discovered in time to appeal to the Board of Supervisors, relief can only be obtained by a direct attack on the contract. Himmelmann v. Hoadley, 44 Cal. 213. 117. Defense. In an action to recover an assessment levied on a lot for grading a street in a city, the lot owner may show and rely on, as a defense, any substantial error in the proceed- ings which could not have been remedied by an appeal to the Council. City of Stockton v. Creanor, 45 Cal. 643. 118. H, a, contractor to make certain street improvements, agreed with B, whose property was assessed for the improvement, and to whom H was indebted, that H's debt might be credited by the amount of B's assess- ment. Before any work was done by H, he assigned his contract for making the improve- ment to D, who did the work, and afterwards assigned his claim for the improvements to the' plaintiff. Neither D or plaintiff had any no- tice of the agreement between H and B. In an action by plaintiff against B, for the amount of his assessment, it was held, that the indebtedness from H to B furnished no ground for a counter claim. Himmelmann v. Beay, 38 Cal. 163. STOCKHOLDERS.— SUMMONS. 345 4. Evidence, 119. Pleading and evidence. The thir- teenth section of the statute in' relation to street improvements in San Francisco, to the effect that the assesement, warrant, and dia- gram, with the affidavit of demand and non- payment, shall be prima facie evidence of the defendant's indebtedness, does not establish a rule of pleading, but a rule of evidence only. Himmelmann v. Danos, 35 Cal. 441. 120. A provision in a city charter which declares that the delinquent tax list on an assessment for grading a street shall be evi- dence to prove, " that all the forms of law in relation to the levy, and assessment had been complied with,'' does not make , it conclusive evidence, but the lot owner may go behind the same and show a substantial error in the pro- ceedings. City of Stockton v. Creanor, 45 Cal. 643. 5. Judgment. 121. Personal judgment for street as- sessment. A personal judgment cannot be rendered against the owner of a lot in San Francisco for ,a street assessment. The lot may be charged with a lien for the assessment. Gaffney v. Gough, 36 Cal. 104 ; Coniff v. Has- tings, 36 Cal. 292, affirming Taylor v. Palmer, 31 Cal. 241. 122. In favor of street contractor. Aeon- tractor, who improves a street in a city, under a contract with the city authorities, for which improvement an assessment is made on lots fronting on the street, is not entitled to a per- sonal judgment against the lot owner for the amount assessed against the lot. Randolph v. Bayue, 44 Cal. 366. STOCKHOLDERS. See Corporation, 68-88. _ SUBFCENA. See Action 12 ; Witness, 6. SUBSTITUTION. See Party, 17, 22. SUMMONS. I. Issuance of. 1. Waived by appearance. 2. Must issue within one year. II. Requisites of. 1 . Generally. 2. Time within which to answer. m. Service of. 1 . Generally. 2. Proof of service. I. ISSUANCE OP. 1. Waived by appearance. 1. Defects waived. The only purpose of a summons is to bring the defendant into Court, and if he appears and answers, he waives any defect in. the summons. Randall v. Falk- ner, 41 Cal. 242. 2. Judgment against one of two joint debtors. The party not served with process, in an action against defendants jointly in- debted (under the thirty-second section of the Practice Act) is not a proper party defendant in action upon the judgment against the party on whom service of process was made. Tay v. Hawley, 39 Cal. 93. 3. The validity of the thirty-second section of the Practice Act, so far as it authorizes a judgment or an execution against any of the property of the party not served, commented on, and questioned. Id. 4. Waiver of summons. A notice sign- ed by attorneys, and filed with the Clerk after a complaint has been filed, stating that " we have been retained by, and hereby appear for, the above named defendant, in the above en- titled action, " is a sufficient appearance of the defendant, and is a waiver of summons, and judgment by default may be entered, if pleadr ings are not filed in the proper time. Dyer v. North, 44 Cal. 157. See Appearance, 5-9. 2. Must issue within one year. 5. Issuing of summons within one year. A summons is not issued within one year after filing the complaint, within the meaning of the twenty-third section of the Practice Act, unless, within one year after filing the com- plaint, both a summons and a certified copy of the complaint, properly prepared and certified, are placed at the disposal of the party for serv- ice. Reynolds v. Page, 35 Cal. 296. 6. Failure to issue summons. Unless the summons and a certified copy of the com- plaint, duly attested and in a condition to serve, are placed at the disposal of plaintiff for 346 SUMMONS. service, within one year from the filing of the complaint, the action should be dismissed. Id. See Actions, 5-7. II. REQUISITES OF. 1 . Generally. 7 . Statement in summons. A statement in a summons, that " the said action is brought to recover judgment against the defendants for the sum of five thousand three hundred and seventy-one dollars and twelve cents, and in- terest at three per cent, per month from Nov- ember 14th, 1 863, and the further sum of eleven dollars and twenty cents, and the costs of this action," is sufficient to answer the twenty- ' fourth section of the Practice Act, as 'a copy of the complaint is served with the summons. King v. Blood, 41-Cal. 314. 8. What summons must be. The pro- visions in the twenty-fourth section of the Practice Act as to what the summons shall state, are not merely directory, but are mandatory. Lyman v. Milton, 44 Oal. 630. 9. Summons must name defendants. A summons must state the names of all the parties to the action. Where there are several parties defendant, it is not sufficient to give the name of one in the summons, followed by the words " et al." Lyman v. Milton, 34 Cal. 630. 10. Amendment of summons. The question of the right to amend a summons by inserting the names of defendants after motion to dismiss, spoken of. Lyman v. Milton, 44 Cal. 630. 2. Time within which to answer. 11. Summons out of Superior Court of San Francisco. A summons issued out of the Superior Court of the City of San Francisco, was ■ not defective if it omitted to notify the defend- ant to appear within twenty days, if served out of the county, but in the district in which the action was brought. McCauley v. Fulton, 44 Cal. 356. 12. The second subdivision of the twenty- fifth section of the Practice Act, requiring the defendant to appear within twenty days after the service of a summons, had no application to the Superior Court of the City of San Fran- cisco, because its jurisdiction was confined to the County of San Francisco. McCauley v. Fulton, 44 Cal. 356. HI. SERVICE OF. 1. Generally. 13. Service of summons and copy of complaint. When there are several defend- ants, and all are served with summons in one county, the presumption is that all resided in the county where served, and a service of a copy of the complaint on one is deemed a serv- ice on all. King v. Blood, 41 Cal. 314. 14. Word "district" in twenty-fifth section of Practice Act. The "district" mentioned in the second subdivision of the twenty-fifth section of the Practice Act, which speaks of the service of summons in the dis- trict in which the action is brought, is the dis- trict or territory over which the Court exercises jurisdiction. McCauley v. Fulton, 44 Cal. 356. 15. Service of summons on attorney in fact of defendant. A summons cannot be served by delivering a copy to the attorney in fact of the defendant. Drake v. Duvenick, 45 Cal. 455- 16. Redelivery and service after re- turn. After a summons has been served on some of the defendants, and returned, it is competent to the Court to order it delivered to the plaintiff for further service on other de- fendants in the same or another county. Han- cock v. Pruess, 40 Cal. 572. 17. Presumption. When the summons is served after having been once returned, and the Court thereupon assumes jurisdiction of the defendants, and renders judgment against them, it will be presumed in a collateral attack on the judgment, that the Court made the requisite order, permitting the summons to be withdrawn for further service. Id. 18. A redelivery of the summons without an order of the Court, is an irregularity, of which the opposite party may avail himself by direct attack ; but such irregularity will not render the service of the summons void. Han- cock v. Pruess, 40 Cal. 572. 19. Upon corporations. — President de jure. In an action against a corporation, where the summons was served upon Bristol, who had been duly elected its President and presided at several meetings of its Board of Trustees, and who had never resigned, or been removed, or his office declared vacant, or a permanent President chosen in his place- though he had left the county and no longer took any part in the management of the cor- poration affairs, and at the meeting of the Board after his so leaving the county, another person was elected President pro tern, for that meeting, and was regarded by the stockholders as the President : held, that Bristol was still President de jure, and the service upon the corporation valid. Eel River Navigation Co. v. Struver, 41 Cal. 616. See Appeal, 109, 235 ; Costs, 12, 13 ; Taxa- tion, 1 16-125. 2 . Proof of service. 20. Jurisdiction of the person. Where S and B admitted "due service" of the sum- mons in an action against them and others, SUMMONS.— SUPERVISORS. 347 the Court thereby acquired jurisdiction of them, and as to them the judgment was valid. Sharp v. Brunnings, 35 Cal. 528. 21. Return as evidence. The return of service by the Sheriff, on the party in posses- sion, where no appearance is made, is prima facie evidence that the person served was the person iu possession within the meaning of the statute. People v. Fox, 39 Cal. 621. 22. Return sufficient. When the return on a summons states that a copy of the sum- mons was personally served on the defendant in the action, giving the time and place, this return, although informal, is yet sufficient to give the Court jurisdiction of the person, so that the judgment is not void for want of jurisdiction, when collaterally attacked. Drake v. Duvenick, 45 Cal. 455. 23. Such return does not show that a copy of the summons was not delivered to the de- fendant personally, and it has at least some legal tendency to prove that it was so delivered. Id. 24. If in such case there is more than one defendant, the fact that the return does not state that a copy of the complaint was served with the summons, does not render the judg- ment void in a collateral attack. Id. 25. Affidavit of publication. Where the affidavit of the publication of a summons, made by one who therein styles himself " the proprietor" of the newspaper in which the publication was made, instead of ' ' the printer," as required by the Practice Act: held, that the terms "printer" and " proprie- tor" are, in the sense of the statute, synomy- mous. Quivey v. Porter, 37 Cal. 458. 26. Statute requirements. In making service of a summons, and in the return of such service, the provisions of the statute must be, and must be shown to have been, sub- stantially observed and followed by the officer, otherwise the proceedings cannot be supported upon a direct appeal taken. People v. Bernal, 43 Cal. 385. 27. Irregular service. Mere irregularity in the service of a summons does not render a judgment void for want of jurisdiction. Drake v. Duvenick, 45 Cal. 455. See Judgment, 74, 75, go, 91. SUPERIOR COURT OF SAN FRAN- CISCO. See Jurisdiction, 6-20,47-51 ; Summons, II. SUPERVISORS. 1. Powers of Boards of Supervisors; Boards of Supervisors possess the power, as in- cidental to that of buying, selling, and leasing of property, and the management, care, and preservation thereof, as conferred by statute, (Stats. 1855, See. 9, p. 51) to take all legal measures .necessary to that end, by suit or otherwise, and therein are vested with large discretionary powers. Hornblower v. Duden, 35 Cal. 664. 2. Exercise of discretion. If, in the ex- ercise of their judgment and discretion, the Board of Supervisors conceive that the inter- ests of the county are involved in a certain question, and thereupon take legal measures, by suit or otherwise, to advance or protect those interests, the expense thus incurred be- comes a legal charge against the county, not- withstanding the Courts might ultimately hold that the Board had adopted the wrong remedy, or were entitled to no remedy what- ever. Id. 3. Exercise of judicial functions. It is true, as a matter of law, that a Board of Super- visors in laying out a public road, exercises judicial functions. Damrell ii.B. S. S. J. Co., 40 Cal. 154. See Roads and Highways, 7, 8. 4. A Board of Supervisors of a county, in allowing or disallowing a claim, exercise ju- dicial functions. Tilden v. Board of Super- visors of Sacramento, 41 Cal. 68. See Witness, 9. 5. The Board of Supervisors of a county have no authority to allow an unaudited claim against a county, except it be done within one year after the claim shall accrue and become due. Carroll v. Dieben thaler, 37 Cal.' 193. 6. Management of railroad stock own- ed by a county. A county owning stock in a railroad company is directly interested, like any other stockholder, iuthe conduct and man- agement of its affairs, and, as a consequence, in the selection of its officers. The county would have a right, through her Board of Supervisors, to contest the election of such officers, if deemed to have been illegal, and to that end to adopt any remedy she might be advised was legal, and the expense thus incur- red would become a legal charge against the county. Courts can exercise no control over the judgment and discretion possessed by Boards of Supervisors in such cases. Horn- blower v. Duden, 35 Cal. 664. 7 . If a Board of Supervisors sell the stock owned by the county in a railroad corporation, in pursuance of a law authorizing such Board to do so, its individual members are not enti- tled to any extra pay for the services thus ren- dered, Andrews v. Pratt, 44 Cal. 309. 348 SUPERVISORS. 8. Guardians of county property. Boards of Supervisors are the guardians of the property interests of their respective counties, and in that relation occupy a position of trust, and' are bound to the same measure of good faith toward the county which is required of an ordinary trustee towards his cestui que trust, or an agent toward his principal. Andrews v. Pratt, 44 Cal. 309. 9. Pay of a Supervisor. 1 A Supervisor is not entitled to any remuneration for services rendered the county as a Supervisor, except his per diem and mileage, as fixed by law. Id. 10. Duty as to trust property. The Board in which the corporate authority of a city is vested, is intrusted with its property in a fiduciary capacity, and its members cannot bargain with reference to it, with a corporation in which they hold stock. San Diego v. S. D. & L. A. E. R. Co., 44 Cal. 106. 11. Employment of counsel. Boards of Supervisors have power to employ other coun- sel than the District Attorney to assist in or to conduct the prosecution or defense of any suit to which the county is a party, which power extends equally to suits to which she is a party upon the record, and to those in the prosecution or defense of which she has or is supposed to have some interest. The judgment and dis- cretion of the Board in the exercise of this power are not open to review by the Courts. Hornblower v. Duden, 35 Cal. 664. 12. Resolution of Board of Supervisors revocable. A resolution of a Board of Su- pervisors, after it has disallowed a claim, recit- ing that the services on which it is based have been performed by the claimant, but that the Board has doubts as to its legality, and direct- ing the District Attorney to enter the appear- ance of the Board in any Court in which, the claimant may commence an action to require the Board to allow the claim, which resolu- tion is not agreed to or accepted by the claim- ant, is revocable at the pleasure of the Board. Tilden v. Supervisors of Sacramento Co., 41 Cal. 68. 13. Power over tolls. When an Act is passed authorizing the building of a toll bridge across a river, and the collection of such tolls as the Board of Supervisors of the county shall fix, with a proviso that the Legislature may modify or change the rates, the power of the Board of Supervisors in the premises is not exhausted when they once fix the tolls, but the Board may change the same from time to time, subject to the supervisory control of the Legis- lature. Stanislaus Bridge Co. v. Horsley, 46 Cal. 108. 14. Unauthorized order of Supervisors. No order made by the Board of Supervisors is valid or binding unless it is authorized by law. Linden v. Case, 46 Cal. 171. 15. Claims against a county. No claim against a county can be allowed unless it be legally chargeable to the county ; and if claims not legally chargeable to the county are al- lowed, neither the allowance nor the warrants drawn therefor create any legal liabilities. Linden v. Case, 46 Cal. 171. 16. Duty of Auditor and Treasurer. If illegal claims are allowed by a Board of Supervisors against the county, it is the duty of the Auditor to refuse to draw warrants therefor ; and when the warrants are drawn, it is the duty of the Treasurer to refuse to pay them. Id. 17. Verification of claims against counties. The verification of claims or ac- counts against counties, contemplated by the " Act to limit the time for presentation of claims against counties and for receiving pay- ment for the same," (Stats. 1857, See. 1, p. 167) is a verification by oath annexed to the account. McCormick v. Tuolumne County, 37 Cal. 257. 18. Auditor not to draw warrant for illegal claim. If the Board of Supervisors allow a claim against a county more than one year after it falls due, its action is void, and the Auditor should refuse to draw his war- rant for the same. Carroll ». Siebenthaler, 37 Cal. 193. 19. Action on judgment against county. If an action could be maintained in any case on a money judgment against a county, it certainly cannot be without first presenting such judgment to the Board of Supervisors for allowance. Alden v. County of Alameda, 43 Cal. 270. 20. Status of a money judgment against county. The statute relating to Boards of Supervisors, and providing for the disposition of claims against counties, (Stats. 1855, p. 51, Sec. 24) contemplates that when a judgment is obtained against a county it shall have the force and effect of an audited demand, in so far that it is no longer open to contestation, and makes it the duty of the Supervisors to allow it as an audited claim, if presented within the proper time. Id. 21. Enforcement of money judgment. When a money judgment is recovered against a county, no execution can issue on it, and the only remedy is to present it to the Board of Supervisors for allowance as an audited claim within the time prescribed by law, (Stats. 1855, p. 51) and if the Board refuse to perform its duty by allowing it as such, it may be com- pelled to do so by mandamus. Id. 22. Money judgment against county must be presented. The language of the statute of March 20th, 1855, providing that no person shall sue a county in any case, or for any demand, without first presenting the claim to the Board of Supervisors, (Stats. i85S> p. 51, Sec. 24) is sufficiently comprehensive to include a cause of action or demand founded on a judgment, which is itself but an adjudicated claim against the county. Id. SUPPLEMENTARY PROCEEDINGS.— SURVIVING PARTNER. 349 See Certiorari, 7, 12, 25, 26 ; Conveyances, 28 ; District Attorney, 2-5; Elections, 13; Evidence, 159; Injunction, 20; Libel, 8; Mandamus, 6, 15, 16, 25; Municipal Corporations, io, 17 ; Statutory Construction, 23-25 ; Streets and Street Assessments ; Taxation. SUPPLEMENTARY PROCEEDINGS. See Execution. . SURETIES. 1. Creditor's rights in debtor's prop- erty in hands of sureties. If a surety has a counter bond or security from the principal debtor, the creditor -will be entitled to the ben- efit of it, and may in equity subject such secur- ity to the satisfaction of his debt, so far as it can be done without trenching upon the rights of the surety himself. Van Orden v. Durham, 35 Cal. 136. 2. Right of surety by mortgage, with- out personal liability; to indemnify him- self. "Where D, as surety for H, executed a mortgage on his lands to secure the payment of notes executed by H alone, the mortgage containing no covenant on the part of D to pay said notes, but on the contrary expressly providing that D should not incur any personal cost or liability, and afterwards took a mort- gage or conveyance of other property from H, the principal, to indemnify himself against any loss he might sustain by reason of his mortgage to secure said notes of H: held, firstly, that the holders of the notes might subject the premises mortgaged by D to the payment of the notes ; or, secondly, that they might abandon the mortgage and subject the said property of the principal in the hands of D to the payment of the notes ; or, thirdly, that they might have the property mortgaged to secure the notes sold, the proceeds applied to their satisfaction, and if any balance re- mained, subject the surplus of any property of H, the principal, in the hands of D, that might remain after fully compensating D for any loss or damage resulting to him by reason of the appropriation of the property mortgaged by him to the satisfaction of the notes of H ; but, fourthly, that the holders of the notes are not entitled to appropriate both the property mort- gaged to secure the notes, and that conveyed or mortgaged by the principal H to the surety D, for the indemnity of the latter. Id. 3. The limit of the liability of D, in the case stated, is his own property mortgaged, together with any surplus remaining in his hands from the securities received by him for his own indemnity, after fully indemnifying himself out of the latter for the damages re- sulting from the mortgage of his own property to secure the notes of H. Id. 4. Costs. D should not be personally charged with costs in this action to foreclose the mortgage, and subject the securities in his hands to the payment of the notes, unless he either made an unsuccessful defense against the foreclosure of his own mortgage, or unless some surplus of the securities beyond the prop- erty mortgaged is found in his hands subject to be applied to the payment of the notes ; nor should the mortgaged lands be charged with the costs of any unsuccessful attempt to obtain more than the rights of the notehold- ers justified under D's mortgage. Id. 5. Sureties on -written contract. The sureties of a party who covenants, in writing, to purchase meat of another party, for a fixed time at a fixed price, and pay him during the time a fixed rent for a slaughter house, and to pay him liquidated damages for failure to ful- fill the contract, are liable with the princi- pal upon all the covenants of the principal contained in the contract. The clause with regard to damages has no reference to the rent of the building, and meat sold and delivered. Lightner v. Menzell, 35 Cal. 452. 6. Liabilities of sureties on recogni- zance. It is no defense to an action on a for- feited recognizance, that after it was given the bail was raised, and. a new order of arrest is- sued without notice to the , sureties, and that the officers were so negligent in their proceed- ings that the accused heard of them and ab- sconded before he could be rearrested. People v. Eaton, 41 Cal. 657. See Corporation, 78, 83 ; Criminal Law and Practice, 51; Injunction Bond, 4; Official Bonds, 3, 4. SURPRISE. See New Trial, 1-5 ; SURVEY. See Description of Land, 5, 6 ; San Eraneis- co, 2, 3 ; Land and Land Titles. SURVIVING PARTNER. See Partnership ; Probate Law and Practice,, 68. 350 SWAMP AND OVERFLOWED LAND.— TAXATION. SWAMP AND OVERFLOWED LAND. See Land and Land Titles. TAXATION. I. Power of Legislature. n. Statutes. i. Validity of . 2. Construction of. HI. Taxable property. IV. Double taxation. V. Property, when taxable. VI. Assessment. VII. Assessment roll. vm. Invalid assessments. IX. Lien of tax. X. Equalization. XI. Local taxation. XII. Action for delinquent taxf.s i. Jurisdiction. 2. Process. 3. Complaint. 4. Defenses. 5. Evidence. 6. Judgment and decree. XIII. Tax titles. I. POWEK OP LEGISLATURE. 1. Restrictions on power of taxation. The only restriction imposed upon legislative discretion in the matter of taxation by our Constitution is, that it shall be equal and uni- form, and in proportion to the property taxed. This is not a restriction of the absolute power to impose taxation, but affects the mode of its exercise only. In every case where the legis- lative Act imposing taxes conforms to and is not in conflict with constitutional restrictions, it is binding and obligatory, and beyond the control of the judicial department of the State Government. Beals v. Amador Co., 35 Cal 624. 2. Legislative discretion. The principle upon which taxation is to be imposed by the State Government is pointed out by the Consti- tution ; but the extent to whioh it may be car- ried is left unlimited, except by legislative discretion. S. & V. K. R. Co. v. Stockton, 41 Cal. 148. 3. The Legislature may, in strict conform- ity with its constitutional powers and duties, recognize a moral obligation as the sole basis for the imposition of taxes. Beals v. Amador Co., 35 Cal. 624. 4. Where, by a prior statute for the ascer- tainment of a debt due from one county to another, and to provide for its payment by a tax which was thereby imposed, without allowing or making provision for the payment of interest thereon, under which enactment the debt was fully paid, it is competent for the Legislature, by subsequent enactment, to pro- vide for the payment of interest on such debt by the imposition of a further tax for that purpose. Id. 5. Where, in such case, said debt has been assigned to and was exclusively owned by a private individual before said past enactment, the tax thereby imposed was no less for that reason for a public benefit. Beals v. Amador Co., 35 Cal. 624. 6. Curative power of Legislature. The Legislature has power to pass curative Acts by which the various acts and proceedings of the officers and Board charged with the levying and assessing of taxes are rendered valid and legal, notwithstanding that errors and irregu- larities have intervened. But where the officer or tribunal had no power or jurisdiction, the Act is void, and subsequent legislation cannot cure the defect. People v. Goldtree, 44 Cal. 323. 7. Tax Collector. Although the Legis- lature cannot by law transfer the duties of the office of Tax Collector from a person elected as such to one who was not so elected, yet it may provide for the election of a person as Tax Col- lector who may enter upon the discharge of his duties before the expiration of the term of a Tax Collector elected under the law as it previously existed. Mills v. Sargent, 36" Cal. 379- 8. Poll taxes. The collection of poll taxes or of license taxes, or of any taxes other than taxes upon property, may be transferred from one to another class of officers at the will of the Legislature, although those duties may have pertained to one of those officers when the incumbents were elected. Mitchell 0. Crosby, 46 Cal. 97. See Constitutional Law, 67-82 ; Eminent Domain, 5, 7 ; Streets and Street Assess- ments, 58, 59, 71. II. STATUTES. 1 . Validity of. 9. Law exempting debts unconstitu- tional. Where the general revenue law sub- jects all solvent debts to taxation, any other law which singles out a class of such debts and exempts them from taxation is repugnant to the clause of the Constitution which pro- vides that taxation shall be equal and uniform throughout the State. People u. McCreery, 34 Cal. 433 ; People v. Gerke, 35 Cal. 677 ; People v. Black Diamond C. M. Co., 37 Cal. 54 ; People v. Whartenby, 38 Cal. 461 ; Ap- proved in People v. Eddy, 43 Cal. 331. 10. No property to be exempt from taxation. It was not intended by the fram- TAXATION. 351 era of the Constitution that the Legislature should have the power to exempt any kind of property from taxation. People v. Eddy, 43 Cal. 333. 11. Possessory claims. So much of the General Revenue Act as exempts possessory claims and improvements upon the public lands from taxation is unconstitutional and void. People v. McCreery, 34 Cal. 433, and People v. Gerke, 37 Cal. 677, affirmed in People v. B. D. CoalM. Co., 37 Cal. 54. See Post, 25. 12. Uniform operation of laws. A State revenue law is not unconstitutional be- cause there is a want of uniformity between the particular laws prevailing in the several counties, with regard to the enforcement of the payment of delinquent taxes. People v. C. P. R. R. Co., 43 Cal. 399. 13. Remission of tax. A clause in an Act imposing a tax, which allows the Board of Supervisors to remit the tax upon such property as they may deem just, does not ren- der the whole Act unconstitutional. People v. Whyler, 41 Cal. 351. 14. Deduction by Assessor. Is the statute allowing the Assessor to deduct from solvent debts due the taxpayer, the amount of his indebtedness, constitutional ? Query ? Lick v. Austin, 43 Cal. 590. See Constitutional Law, 79-82. 2. Construction of. 15. Debts defined. The word "debts," as used in the Revenue Laws of this State, in- cludes not only debts due and payable on or before the first Monday of December of the year for which an assessment is made, but debts to become due and payable at any time thereafter. People v. Arguello, 37 Cal. 524. 16. Revenue Act in Political Code applies to San Francisco. The general revenue system provided in the Political Code, which went into effect in 1872, applies to the City and County of San Francisco. S. & L. So. v. Austin, 46 Cal. 415. 17. Poll tax blanks. By Section 3891 of the Political Code, it is made the duty of the Auditor to deliver the poll tax blanks to the Assessor. Mitchell v. Crosby, 46 Cal. 97. 18. Salaries of Tax Collectors. Where by a statute it was required that a certain sum ' should be annually divided by the Board of Supervisors among the Collectors of taxes of a county, for their salaries, and the only rule of division prescribed was that " the due propor- tion " of each Collector should be paid to him : held, that by " the due proportion" was in- tended such portion of the sum as the Board of Supervisors should determine, in view of the services required of each Collector. Eaughnan u. Tuolumne County, 35 Cal. 133. 19. Taxes levied under Act subse- quently repealed. Where taxes are levied under a law which is repealed by a subsequent Act, unless it be made apparent by clear and unequivocal language that the repealing Act Was intended to have a retrospective operation, it will be inferred that the intent of the Legis- lature was that the taxes should be collected in accordance with the law in force at the time they were levied. City of Oakland v. Whip- ple, 44 Cal. 303. 20. Revenue system of the Codes gen- eral. It was the intention of the Legislature in adopting the Codes to establish one revenue system, which should be applicable alike to all the counties. Mitchell v. Crosby, 46 Cal. 97- 21. District Asessors. — Construction of Code. When the Code mentions Assessors, it means District Assessors as well as County Assessors, so long as the present District As- sessors remain in office. Id. in. TAXABLE PROPERTY. 22. Tax must be levied on all private property. An Act taxing the property of a district for a local improvement, which, ex- empts personal property from its operation, is unconstitutional, because not levied on all the property in the district. People v. Whyler, 41 Cal. 351. 23. Growing crops. Growing crops are private property, and subj ect to taxation, 'the provision of said statute exempting them not- withstanding. People v. Gerke, 35 Cal. 677. 24. Possession. Possession, with a claim of ownership, is a subject of taxation, and im- poses on the occupant the duty of paying the tax levied on the property. Reily v. Lancas- ter, 39 Cal. 354. 25. Possessory claim to public land taxable. A possession of and claim to public land of the United States is property, and as such is taxable to the claimant, without vio- lating the Act of Congress by which this State was admitted into the Union. People v. Black Diamond Coal Mining Co., 37 Cal. 54- 26. If a party be in possession, " having the possession, charge, or custody thereof," claiming the iand, he has an interest subject to taxation as real estate. Barrett v. Amerein, 36 Cal. 327. See Ante, 1 1 . 27. 'What subject to. The provisions of the Constitution and Revenue Laws upon the subject of taxing property are to be under- stood as referring to private property and per- sons only, and not as including public property and the State, or any subordinate part of the State Government, such as counties, towns, and municipal corporations. People v. Doe G., 36 Cal. 220. 352 TAXATION. 28. State does not tax or sue itself. The State has in no manner provided for tax- ing itself or its own property, nor has the State authorized suits to be instituted by itself against itself or its property for the collection of any tax. Id. 29. Sacramento City cemetery. A tax suit in rem was brought in the name of the People against a tract of land situated in the City of Sacramento. In due course a judg- ment as demanded was rendered therein, and the property sold, and the proceeds of sale ap- plied to the satisfaction of the judgment. M, who, as purchaser, had in due course received a Sheriff's deed, applied for a writ of assist- ance \o be let into possession, when, it being shown at the hearing that a part of said tract was, at the time the tax was levied and said suit was commenced, the property of said city, and constituted a part of the City cemetery, the application, as to such part, was denied : held, that said application was properly denied, and that said suit, so far as it related to said city and its said property, was coram non ju- dice. People v. Doe, G., 36 Cal. 220. 30. Tax on Central Pacific Railroad and telegraph line by State. The State of California has authority to impose taxation for State purposes upon that portion of the Central Pacific Railroad, and the telegraph line in connection therewith, lying within its limits. People v. C. P. R. R. Co. 43 Cal. 399. 31. Taxation by State on property of corporation. A railroad corporation, organ- ized under the laws of a State, cannot claim an exemption of its property, lying within the limits of a State, from State taxation, because the corporation thus created has been subse- quently adopted by the Federal Government, and is employed in the service of the General Government, in the carriage of mails, muni- tions of war, etc. People v. C. P. R. R. Co., 43 Cal. 399. 32. Exemption from State taxation. The principle upon which the business of a corporation, created by the Federal Government as an agent in the execution of its powers, is exempt from State taxation, does not apply to the real property of the corporation lying with- in the limits of a State. Id. 33. Tax on property of municipal corporation. The property of a municipal corporation is not liable 'to taxation for munic- ipal purposes. Low v. Lewis, 46 Cal. 549. 34. A municipal corporation cannot tax its own property. Id. 35. Taxation of solvent debts. Solvent debts are "property " within the meaning of that word as used in the Constitution, and are liable to taxation. Savings and Loan Society v. Austin, 46 Cal. 415. 36. Solvent debts are liable to taxation. People v. Ashbury, 46 Cal. 523. See Probate Law and Practice, 35. IV. DOUBLE TAXATION. 37. Choses in action are property subject to taxation, even when secured by mortgage. Lick v. Austin, 43 Cal. 590. 38. Money at interest. The levying a tax upon money at interest, as well as upon the property mortaged to secure it, does not present a case of double taxation as against the mortgagee. People v. Whartenby, 38 Cal. 461. 39. Covenant by the mortgagor to pay the taxes on the debt. The State is not bound by the stipulation between the mort- gagor and the mortgagee that the former shall pay all the taxes levied on the mortgaged debt. Id. 40. Money secured by mortgage. By the provisions of the Revenue Act it is the "money at interest" which is subject to be taxed, and not the mortgage, as such. Money at interest is to be taxed in the county in which the creditor resides. Id. 41. Tax on savings bank. When money is deposited in a savings bank to be loaned out for the benefit of the depositor, if it is taxed to the depositor, and the bank has loaned the money and is taxed upon the note and mort- gage, it is double taxation. Per Beleher, J. S. &. L. Society-!). Austin, 46 Cal. 415. 42. Double taxation. The Courts have no authority to declare that solvent debts are not taxable, because to tax them might amount to double taxation. The mode and manner of assessing solvent debts is a matter of legislat- ive discretion. Per Wallace, C.J. , and Rhodes, J. Id. 43. If a debt for money lent, which is se- cured by mortgage, is taxed, and the mort- gaged property is also taxed, it is double taxa- tion, and a violation of the Constitution. Per Crockett, J., Niles, J. concurring. Id. 44. Relief in case of double taxation. In a case of double taxation, to entitle a party to relief in the Courts, it must appear that the tax has once been paid or tendered. S. &. L. Society v. Austin, 46 Cal. 415. 45. One tax must be paid in case of double taxation. Because the same subject matter has been twice taxed, it by no means follows that both taxes are void, and that it must escape taxation. Id. 46. Purpose of the Act to prevent double taxation. It was the purpose of the first section of the Acts of April 1st and April 4th, 1870, (Stats^. 1869-70, pp. 584, 710) to exempt from taxation solvent debts secured by mortgage upon real estate, and not merely to regulate the duties of Assessors. People v. Eddy, 43 Cal. 331. 47. Power of Legislature as to assess- ing and exempting property. It is within the power and is the duty of the Legislature to prescribe the mode in which all property TAXATION. 353 shall be assessed ; but the Legislature cannot, under the pretense of regulating the duties of Assessors, exempt property from taxation which the Constitution requires to be taxed. Id. 48. If land subject to a mortgage is taxed, and the debt secured by the mortgage is also taxed, and the tax on the debt is pgid by the mortgagee, the mortgagor cannot complain of double taxation. Lick v. Austin, 43 Oal. 590- 49. Outside lands in San Francisco. Order Number Eight Hundred of the Board of Supervisors of the City and County of San Francisco, prescribing the payment of taxes and assessments as a condition upon ■which persons in possession of outside lands in said city should be entitled to the benefit of the Act of Congress of March 8th, 1866, did not contem- plate the payment of taxes and assessments twice on the same land. -Randall v. Austin, 46 Cal. 54. 50. It was the intention of said order, that such taxes and assessments should be paid by the person, or his predecessor in interest, who was in possession March 8th, 1866, or had been wrongfully deprived of the possession, and was entitled to recover it. The Act of , March 14th, 1870, prescribing the method of proceeding for the possessors to obtain from said city a conveyance of said land entitled to record, which requires contesting claimants each of them to pay to the Tax Collector the taxes and assessments on the land, was in- tended to enforce a mere deposit of the taxes and assessments, and the unsuccessful party to the litigation has a right to withdraw his de- posit. Randall 13. Austin, 46 Cal. 54. 51. Tax on mortgage. The owner of land who had been assessed with the same, and had paid the taxes thereon, and who, during the same year, had sold the land and taken a note and mortgage, payable at a future day, for the purchase money thereof, was not liable to reassessment with the amount of such . mortgage for the same fiscal year. People v. Kohl, 40 Cal. 127. V. PROPERTY, WHERE TAXABLE. 52. Personal property. Personal prop- erty is to be assessed and taxed in the county in which it is situated, except money and gold dust, which may, at the option of the owner, be taxed in the county in which he resides. , People v. Niles, 35 Cal. 282. 53. To authorize the taxing of personal property in any other county than that in which the owner resides, it must appear that such property is kept or maintained in such county, and is not there casually or in transitu, or temporarily, in the ordinary course of busi- ness or commerce. Id. 54. Situs of personal property. Per- sonal property, transiently within a county, CAL. DIG. SUP. 23. cannot be there taxed, but should be taxed in the county in which the owner resides. City of Oakland v. Whipple, 39 Cal. 112. 55. Vessel. A vessel sailing from the port in which the owner resides, is not liable to taxation in another county because it is temporarily in such other county for the pur- pose of being freighted. People v. Niles, 35 Cal. 282. 56. Duty of Assessors. The Asseasor is required to transmit to ( the Assessor of the proper county, where the property is situated, lists of property, both real and personal, owned in such county, and the Assessor receiv- ing such lists is required to assess the property therein contained, unless he has already done so. , People v. Niles, 35 Cal. 286. See Money, 2. VL ASSESSMENT. 57. Who to make. A tax, to be valid, must rest upon an assessment made by an As- sessor elected by the qualified voters of the district, county or town in which the property is taxed for State, county or town purposes. Reily v. Lancaster, 39 Cal. 354. 58. An assessment made by an Assessor elected by the qualified electors of the City and County of Sacramento is not a sufficient basis for the levy of a- tax in the City of Sac- ramento for city purposes. Id. 59. Revenue districts and/ Assessors of property. The Legislature is not prohib- ited by the Constitution from creating more than one revenue district in a county, and providing for the election of Assessors and Collectors of revenue in each district. People v. C. P. R. R. Co., 43 Cal. 399. 60. Of land as an entirety. Thi San- Pablo rancho was assessed as an entirety to a large number of owners ; some of the owners individually paid taxes upon thirteen thousand five hundred and ninety-eight acres, leaving four thousand three hundred and thirty-eight acres, owned by numerous persons, upon which the taxes were unpaid. Judgment was ren- dered against certain persons who were assessed,, for delinquent taxes, ordering the sale of a cer- tain number of acres undivided, without designating the interests of the judgment debtors in the land. Meld, to be erroneous. People v. Shimmins, 42 Cal. 123. 61. To copartners, etc. Where land is assessed as an entirety to numerous persons, without designating the interest of any one of them, it is an assessment to them as copartners, joint tenants, or tenants in common, and not as owners in severalty. Id. 62. Duty of Court to exonerate owners not delinquent. If such an assessment be legal, it would be the duty of the Court, in giving judgment for delinquent taxes upon the land, to ascertain by its judgment what 354 TAXATION. particular undivided interests in the land were delinquent, and to exonerate from the lien for the delinquent tax the interests of those who had already paid their proportion of the gen- eral burden. Id. 63. How should be made. It is the better practice to assess each particular person who claims an interest in a tract of land ac- cording to his interest or claim of title, and lipt to assess the whole tract in solido to all those who claim an interest in it. People ti. Shimmins, 42 Cal. 123. 64. Right to be assessed in severalty. When a person holds an interest in a tract of land in severalty, he is entitled .to be assessed for his particular tract only. Id. 65. Of blocks in a city. Blocks of land in a city may be assessed for taxation by blocks, when they are assessed to the owner, even if they have been subdivided into lots. People v. Culverwell, 44 Cal. 620. 66. Duty of Assessors. An Assessor may assess and place a valuation on a block in a city, as a, whole, when one man owns it, without placing a separate valuation on the several lots into which it is divided. People v. Morse, 43 Cal. 534. 67. In assessing land for taxation, the As- sessor cannot deduct from its value the amount due on mortgages by which it is incumbered,, and call the remainder its assessed value. Lick v. Austin, 43 Cal. 590. See ' Constitutional Law, 76, 77; Evidence, 64. ' VII. ASSESSMENT ROLL. 68. Arrangement of columns and head- 1 ings. An assessment roll in which the col- umns are arranged in a different order, or under different headings, from the form given in Section 20 of the Revenue Act of 1 861, may, nevertheless, be a substantial compliance with all the requirements of that section, and valid. People v. Sierra Buttes Quartz Mining Com- pany, 39 0al. 511. 69. Name of tax-payer. An assessment roll, in which the name appears in the proper place and column, is not invalid because the name extends beyond the line of that column, nor because there is a slight discrepancy in the name — the name given being sufficiently ac- curate to indicate the person intended. Id. 70. Amendment of. Said Act of April 2d, 1866, so far as it pro vides for amendments of assessment rolls, is ineffectual for any purpose, because if the roll, without amendment, con- tains substance 1 sufficient to make it valid as an assessment of property, the curative effect of the statute is not needed, and if it does not, no legislative enactment can either make the as- sessment, or empower any other officer except the Assessor to make it. Id. 71. Suggestion as to curative Acts. The only mode in which defective assessments may be authorized by the Legislature to be corrected, is to empower the Assessor who made the assessment to make the needed corrections, or authorize it to be done by others in his presence, and upon his testimony showing what was intended .by the defective matter re- quiring correction. Per Sawyer, C. J. Id. 72. Description of property. A de- scription of property in an assessment roll which is so vague, indefinite, and uncertain, as to render it impossible to determine whether the whole or a part, or if a part-, what part, of the land was intended to be assessed to the per- son named therein, is insufficient. People v. Elint, 39 Cal. 670. ' 73. Dollar marks. Where, in an assess- ment roll, there was neither a dollar mark pre- fixed to the figures inserted in the column head- ed "Valuation of lands," nor at the head of such column, and nothing appeared elsewhere in the roll to explain the intended meaning of said figures ; held, that there was no assessed valuation of certain lands described for assess- ment in the roll, and such assessment was void. People v. Hastings, 34 Cal. 571. 74. In such case, the provisions of the curative Act, passed April 2d, 1866, (Stats. 1865-6, p. 831) do not authorize the supplying of 'the defects in the duplicate assessment roll, so as to give it validity. Id. 75. Valuation of personal property and improvements on real estate. An assess- ment of personal property and improvements on real estate, assessed to a person other than the owner of the real estate, which does npt separately value and set down in separate col- umns the values of the different parcels and descriptions of property, is not in compliance with the revenue laws, and is, therefore invalid. People v. Sierra B. Q. M. Co., 39 Cal. 511. An assessment is void if there be no valuation. Garwood v. Hastings, 38 Cal. 217. 76. Assessing land and improvements thereon. Although, under the Revenue Act of 1 86 1, the Assessor need not place the value of the land and the improvements thereon in separate columns, where both are assessed to the same person, yet if he does so, the assess- ment is not radically defective, and does not show that the improvements were twice as- sessed. People v . Culverwell, 44 Cal. 620. See Mandamus, 12, 15. Vni. INVALID ASSESSMENT. 77. Illegal assessment creates no lia- bility or lien. An illegal assessment of real property imposes no obligation on the owner to pay the tax for which it was levied, nor does it create a lien therefor on the property assessed. People u. Pearis, 37 Cal. 259. 78. Property to be assessed by an As- sessor of a district. An Act of the Legisla- TAXATION. 355 ture authorized a tax for road purposes upon, property along a road in a portion of Santa Clara County, and provided that it might be assessed by the County Assessor, and it was so assessed : Held, that the assessment was void, because not made by an Assessor elected by the electors of the district. "Williams v. Cor- coran, 46 Cal. 553. 79. Void assessment. If an assessment for "debts" be too high, it is not therefore void, upon the ground that if legal taxes are blended in the same assessment with illegal, the whole is invalid ; but it is merely an over valuation, which the Board of Equalization will correct upon proper application. People v. Arguello, 37 Cal. 524. IX. LIEN OF TAX. 80. Extends back to assessment. The lien of a tax extends back to the assessment, and the assessment creates a lien which is not extinguished until the tax is paid. Reeve v. Kennedy, 43 Cal. 643. 81. Taxes matters of public record. The assessment of taxes and the lien which it creates, are matters of public record, of which all purchasers are bound to take notice, and the purchaser of land is bound at his peril to see that taxes have been paid. Id. 82. In the fiscal year 1868-9, no liability for assessment and taxation could accrue upon a bond and mortgage which was not in exist- ence on the first Monday in March preceding ; ■ that being the time fixed by the statute when the lien for taxes attached. Per Wallace, J., Rhodes, C J. concurring. People v. Kohl, 40 Cal. 127. See Foreclosure, 32 ; Lis Pendens, 5. X. EQUALIZATION. 83. Complaint. A complaint of a Dis- trict Attorney filed with the Board of Equali- zation which " complains of the assessment set opposite each name on the assessment list, and prays the Board to hear evidence in each and every case, and every name on said assessment list, as to the value of the property therein assessed, and to change the value as to them may seem just, and that the valuation may be reduced or raised as 1 to them shall seem just and equitable," states no facts, and is nugatory and insufficient to give the Board jurisdiction to increase the assessment. People v. Flint, 39 Cal. 670. 84. Complaint necessary. In order to give the Board of Equalization jurisdiction to increase the valuation of property beyond the amount at which it has been assessed, the filing of a complaint is necessary. People v. Goldtree, 44 Cal. 323. 85. Complaint not 'waived by appear- ance. Where the Board of Equalization makes an order increasing an assessment, with- out a complaint having been filed, and the party assessed appears and moves to set aside the order, such appearance does not confer jurisdiction by relation, and a refusal to set aside the order does not make it valid. Id. 86. Judicial act of Board of Equali- zation. The Board of Equalization, in pass- ing on the question whether an assessment is too high or too low, acts in a judicial capac- ity, and its decision is an adjudication. Peo- ple v. Goldtree, 44 Cal. 323. 87. Cancellation of tax assessment. The Board of Supervisors, sitting as a Board of Equalization, has no power to cancel an assessment for taxes placed by the Assessor upon the assessment roll. People v. Board of Supervisors, 44 Cal. 613. 88. Making copy of assessment book by Auditor. The Auditor, in making a dupli- cate of the assessment book for the Tax Col- lector, must observe and follow such altera- tions as have been made by the Board of Super- visors in the exercise of their power in equaliz- ing the assessed value of property, but he must disregard an order of the Board cancelling an assessment, or any order of the Board by which it assumes an authority not conferred upon it by law. People v. Ashbury, 44 Cal. 616. 89. While the Auditor, in making a copy of the assessment book for the Tax Colleetor, cannot review or correct the errors of the Board of Supervisors while aeting within the sphere of their authority, still he must disre- gard any order of the Board which it had no jurisdiction to make. Id. 90. Power of Supervisors to cancel assessment. A Board of Supervisors has no authority to cancel an assessment of property made by the Assessor and placed by him on the assessment book, and if the Board make such order it is a nullity. People ;;. Ashbury, 44 Cal. 616. 91. Writ of mandate to Auditor. The Auditor will be compelled, by writ of man- , date, to deliver to the Tax Collector a correct duplicate of the assessment book, as made by the Assessor, with such alterations only as have' been made by the Board of Supervisors while acting within the sphere of their author-. ity. Id. 92. Duty of Auditor in relation to de- linquent taxes. When any of the taxes of one fiscal year are returned as delinquent, it is the duty of the Auditor to enter the same on the assessment roll of the next fiscal year, and then to enter the same upon the duplicate assessment book, unless they have been can- celed by the Board of Supervisors under the affidavit of the Collector required by Section 3800 of the Political Code. People v. Ashbury, 46 Cal. 523. 356 TAXATION. 93. Power of Board of Supervisors to cancel taxes. The Board of Supervisors have no power to cancel any taxes, or the assessment for any taxes, except such as are oontained in the list by the Auditor and taken by him from the delinquent list, and as to which the Collector has made affidavit that " he has not been able to discover any property belong- ing to or in the possession of the person liable to pay the same [taxes] whereof to collect them." Id. 94. Without such affidavit of the Collector, that a delinquent tax cannot be collected, and without the concurrence of the Board of Super- visors with the Collector in the opinion that it is not collectable, said Board cannot cancel . a tax. Id. 95. Cancellation of delinquent tax. A resolution or order of a Board of Supervisors canceling a delinquent taix, because it is not collectable, ought properly to specify each par- ticular fax which is canceled. Id. 96. A resolution of a Board of Supervisors canceling a tax, without the affidavit of the Collector indorsed on the delinquent list, that it is not collectable, is void, and the Auditor should proceed with his duty in' regard to such tax, in entire disregard of such resolution. Id. 97. Duty of Auditor as to delinquent tax. The statute does not expressly prescribe the time at which the Auditor shall enter the delinquent taxes on the next assessment roll, but the implication is that it should be done before the duplicate assessment book is deliv- ered to the Collector. Id. 98. Power of Board of Equalization. A refusal of a Board of Equalization to reduce the assessed value of property, made on a. complaint by the party assessed, does not pre- clude the Board from afterwards raising the assessed value of the same property, upon com- plaint made that it has been assessed too low. 0. P. R. R. Co. v. Placer County, 46 Cal. 668. 99. The action of a Board of Equalization, on an application to change the assessed valu- ation of property, is not res adjudicata. Id. 100. The Court is not prepared to say that a Board of Equalization is limited to one ap- plication, either to reduce or raise the assessed value of property. Id. See Constitutional Law, 69-71, 79-82. XI. LOCAL TAXATION. 101. For school purposes. A special tax for school purposes can only be levied after the question has been submitted to the qualified electors of the district, in the manner pointed out by the statute. People v. Castro, 39 Cal. 65. 102. For local improvement.) A tax levied on the property of a given district, to pay for a local improvement, which is assessed upon the parcels of property in the district, in proportion, to the benefits each parcel derives from the work, is unconstitutional. Such tax must be levied on all property according to its value. People v. Whyler, 41 Cal. 351. 103. Uniformity. If the property of a district is taxed to build levees to protect it from overflow, the fact that land which is in- ' jured by the levee is "assessed at its former value, and land benefited by the levee is also assessed at its fomer value, do not render the tax liable to the objection of want of equality and uniformity. People v. Whyler, 41 Cal. 35i- 104. A charge imposed on all the property of a district, to be used in constructing levees to protect the district from overflow, is a tax, and not an assessment. Id. 105. The fact that levees built to protect the land of a district from overflow injure some of the land instead of benefiting it, does not render the tax unequal or void for want of uniformity. Id. 106. Township Assessor. A tax on the property in a township for a Township road fund, must be assessed by an Assessor elected by the electors of the township. Peo- ple v. Sargent, 44 Cal. 430. 107. Power of County Assessor. A County Assessor cannot assess the property of a township for a tax levied on the township property, to raise a fund for township pur- poses. Id. 108. City of Placerville. — Construc- tion of its Act of Incorporation. The Act incorporating the City of Placerville granted to the Common Council the right to levy and collect certain taxes, and constituted the City Marshal ex officio Collector of Taxes, and made it his duty to receive and collect all taxes due the city, authorized the sale of the property of delinquents for taxes due the city, and further enacted, that the man- ner of assessing and collecting taxes, and proceedings for the sale of property in cases of delinquency, should be regulated by or- dinance. The Common Council enacted by ~ ordinance a mode of collecting delinquent taxes remaining unpaid after a certain date, whereby the entire duty was devolved upon the City Attorney, and the services of the City Marshal dispensed with : held, that the ordinance prescribing such mode was void, be- cause in conflict with said Incorporation Act. Placerville v. Wilcox, 35 Cal. 21. 109. Tehama County. — Statutory con- struction. Prior to February, 1866, by div- ers general and special legislative Acts, the Board of Supervisors of Tehama County were authorized and required to levy upon the taj- able property of the county, in addition to the State tax, divers rates of taxes "for County Expenditures, " " for Interest Eund, " " Wagon. Road Eund," "Contingent Eund," "School Eund," and "for Boad Eund." On the 26th of February, 1866, the Legislature passed a TAXATION. 357 special Act, which did not in terms repeal any- former Act, but directed said Board "to levy, at the same time that other State and county taxes are levied, eighty cents upon each one hundred dollars worth of the taxable property of said county, which tax * * * shall con- stitute the entire tax in said county for county purposes." Held, that, except said Act pro- viding for the levy of a tax " for county pur- poses," which was by implication repealed, said former legislative Acts were unaffected by the passage of said special Act of February 26th, 1866. People v. Gerke, 37 Cal. 228. 110. Interest tax fund in San Diego County. The "Interest Tax Fund " men- tioned in the Act of March 18th, 1868, "to provide for the government of the County of San Diego," was intended to take the place of the "interest tax," required to be levied by the Act of May 4th, 1855, " to fund the debt «f said county and provide for the payment of the same, ' ' and was also intended to pay the interest on the old bonds of the county in case the holders should not choose to accept the terms of payment offered by the said Act of 1868. People v. Morse, 43 Cal. 534. 111. Tax for local improvement. A charge imposed by law upon the assessed value of all property, real and personal, in a district, is a tax, and not an assessment, although the purpose be to make a local improvement on a road. Williams v. Corcoran, 46 Cal. 553. See Ferries and Ferriage, 3 ; San Francisco, 10. XH. ACTION FOE. COLLECTION OF. 1. Jurisdiction. 112. District Courts. District Courts have jurisdiction of actions for collection of delinquent taxes, when the tax amounts to more than three hundred dollars, and also re- gardless of amount, when it is sought to en- force the lien of the tax. People v. Olvera, 43 Cal. 492. 113. Personal liability. If a tax has been duly assessed, the owner of the property be- comes personally liable for it, and the remedy is not confined to a seizure and sale of it, nor to the enforcement of a lien on it by action. Oakland v. Whipple, 39 Cal. 112. 114. Construction of the Oakland char- ter. The twenty-second section of the Act in- corporating the City of Oakland does not •abridge the ordinary remedy by suit for the collection of delinquent taxes, but was intend- ed to afford an additional, summary, and effect- ual remedy for its collection. Id. 115. Suit by District Attorney to re- cover delinquent taxes. The Constitution of the State allows the Legislature to pass a law directing the District Attorney of a county to bring actions in the name of the people to recover delinquent taxes, and such law does pot interfere with the constitutional duties of the Tax Collector. People v. C. P. R. R. Co., 43 Cal. 399. 2. Process. 116. How served. In suits for the re- covery of taxes, to obtain a valid judgment in rem against the real estate, it is necessary that the process should be served in the manner di- rected by the statute, viz : by posting a copy in some public place thereon. Gillis v. Bar- nett, 38 Cal. 393. 117 . If there be, however, sufficient serv- ice of process upon the owneV, a personal judgment against him is valid under an execu- tion upon which the land may be sold. Id. 118. Service of summons. In an action to recover judgment for taxes, in which real estate is made a party, the summons on the real estate may be served by delivering a copy thereof to the person or persons in possession, or by posting a copy in some public place thereon* as provided, in the Revenue Act of 1 86 1, or by publishing the summons for eight weeks, as provided in the Act of 1862. Tru- man v. Robinson, 44 Cal. 623. 119. The provisions of the Revenue Acts of 1862 and 1864, as to service of summons on real estate in tax cases, do not repeal the pro- visions in the Revenue Act of 186 1 upon the same subject, but are merely cumulative. Id. 120. On real estate. In an action to col- lect delinquent taxes, service by posting a copy of the summons on the real estate and im- provements described therein, in compliance ,with Section 41 of the Revenue Act of May 17, 1861, is sufficient to authorize a judgment against the land and improvements so served. People v. Fox, 39 Cal. 621. 121. The statute under which such service was made is not superseded by the Act of May 12th, 1862. People v. Fox, 39 Cal. 621. 122. When there is no appearance of per- sonal defendant, a judgment against him is erroneous, unless it is shown that he was per- sonally served with the summons. Id. 123. If the statute for the collection of a tax and the enforcement of its lien on real es- tate provides that a summons may be served by delivering a copy to each defendant, but if ' the personal defendant cannot be found, by posting a copy for twenty days at the Court House door, and that no personal judgment shall be rendered unless the person against whom it is rendered shall have been personally served, a personal judgment rendered on a serv- ice made by posting a copy at the Court House door is erroneous, and will be reversed if attacked by direct appeal. People v. Bernal, 43031.385. 124. Whether such judgment is void, so that it may be attacked collaterally, not de- cided. Id. 358 TAXATION. 125. If in such case the statute requires the services of summons on the real estate to be made by delivering a copy to the person in possession thereof, and by posting a copy in some public place thereon, a return by the Sheriff that he posted a copy on the premises, without stating that it was posted in a public place on the premises, will not support a judg- ment if attacked by direct appeal. In like manner, the judgment will be reversed, unless the return fails to show that a copy was deliv- ered to a person in possession of the premises, or that there was no person in possession. Peo- ple v. Bernal, 43 Oal. 385. 3. Complaint. 126. Insufficient facts. In a suit for taxes on real estate, levied, as was alleged, in El Dorado County, the complaint failed to show that said property was within said county, or the Revenue District thereof within which it was assessed, or that said Revenue District was within said county : held, that the com- plaint did not state facts sufficient to constitute a cause of action. People v. Pearis, 37 Cal. 259. 127 . A complaint in a tax suit which shows only that the property taxed was assessed as the estate of R, deceased, and that the defend- ants, at the time of the assessment, owned and possessed it, does not state facts sufficient to constitute a cause of action, because not show- ing that the property was assessed to any par- ticular party whose duty it was to pay the taxes, or that it was made to unknown owners. ^People v. De Carrillo, 35 Cal. 37. 128. Jurisdictional facts. The holding of such an election is a jurisdictional fact, and it is, therefore, necessary to aver it with pre- cision, and in such manner as to admit of a direct issue upon the facts averred. People v. Castro, 39 Cal. 65. See Appeal, 354; Pleading 233. 4. Defenses. 129. Answer. Under the statute of 1863, which provides what a defendant may answer in a suit to recover a tax, an answer which avers that the tax was fraudulently levied for an amount in excess of that authorized by law is good. People d. Nelson, 36 Cal. 375. 1130. The general statute in relation to fil- ing answers in cases for the collection of taxes applies to suits for the collection of taxes lev- ied by school districts. Id. 131. An answer to a sufficient complaint in a suit for taxes on real property, brought against the property and the alleged owner assessed therewith, which denies only that the personal defendant was, at the time of the assessment, the owner of the property or any part thereof, without further denying in him all claim, title, or interest therein, is not such a denial as, by the Revenue Act, (Section 42) is permitted to be made, and it raises no issue as to the liability, as sought in the action, of either defendant. Peoples. Pearis, 37 Cal. 259. 132. Nonsuit. When the answer denies that any election to authorize the tax was ever held, and upon the trial there was no attempt to prove the holding of an election, a nonsuit should be granted. People v. Castro, -39 Cal. 65. 133. ' Insufficient. The payment of a tax cannot be resisted on the ground that the prop- erty on which it was levied was not assessed at its true value. One whose property is not as- sessed according to its true value must apply to the Board of Equalization. People v. Why- ler, 41 Cal. 351. 5. Evidence. 134. Assessment roll. In any case, the duplicate assessment roll can only be corrected from data contained in the original roll, as made by the Assessor ; and when not so fur- nished, parol evidence is not admissible to sup- ply its place. People v. Hastings, 34 Cal. 571. 135. Fraud. If it be shown that the land on which the tax was assessed did not belong to the defendant, but to other persons in the actual occupation thereof, holding the title un- der recorded deeds, the fact establishes a legal fraud, which vitiates the entire assessment. People v. Castro, 39 Cal. 65. 136. Defective assessment roll. A de- fective assessment roll may be introduced in the trial of a tax suit to show that the taxes were not legally assessed, but cannot avail in a collateral attack on the judgment. Eitel v. Eoote, 39 Cal. 439. 6. Judgment and decree. 137. Recital in decree. In a tax suit, a recital in the decree " that all the owners and claimants of the property have been duly sum- moned to answer the complaint herein, and have made default in that behalf," there being nothing contradictory to it in the record, is conclusive, in a collateral proceeding, that the Court acquired jurisdiction of the owner of the premises. Eitel v. Eoote, 39 Cal. 439. 138. Validity of judgment. The valid- ity of a judgment in a tax suit must be tested by the same rules, and is subject to attack in the same mode, and by the same means, as a judgment in an action of any other class. Eitel v. Eoote, 39 Cal. 439. 139. Judgment for tax. A judgment, regular on its face, enforcing a lien for a tax, and whioh the Court had jurisdiction to ren- der, will not be set aside in equity at the suit of the owner of the land taxed for irregular- ities in levying and assessing the tax of which the purchaser had no notice. Stokes v. Geddes, 46 Cal. 17. TAXATION. 359 140. The same rule applies to the Sheriff's certificate of sale made under a sale for the tax. Id. 141. Recital in judgment. A recital in a judgment rendered for a tax on real estate, that all owners and claimants of the property have been duly summoned to answer the com- plaint, and have made default, is proof of those facts. Truman v. Robinson, 44 Cal. 623. See Default, 2. XIII. TAX TITLES. 142. Sale of land under execution. At a sale of land under execution of a .judgment for taxes, it is competent for the Sheriff to sell the same to the purchaser who will take the smallest quantity to pay the judgment and costs. Gillis v. Barnett, 38 Cal 393. 143. Title by purchase at tax sale. If a person is in possession of land, olaiming the Bame as his own, it is his duty to pay the taxes, although he has no paper title, and is a tres- passer ; and under such circumstances, he can- not acquire an outstanding title by neglect- ing to pay the taxes and allowing the land to be sold for the same, and purchasing at the sale.' The rule is the same if the, possession is Buch that it would give the possessor title by the Statute of Limitations. Barrett v. Amer- ein, 36 Cal. 322. % 144. A party against whom a tax is levied oannot obtain any title to property, by pur- chase of it at a sale for the payment of the taxes which he should have discharged. Gar- wood v. Hastings, 38 Cal. 217. 145. A party in possession, whose duty it is to pay the tax, can derive no advantage from a sale for the tax which he ought to have paid without a sale. Reily v. Lancaster, 39 Cal. 354- 146. Tax sale.— When void. A pur- chase of land at a sale of the same for taxes, by the agent of one who was in possession thereof, either by himself or his tenants, does not pass or otherwise affect the title to such land. Bernal v. Lynch, 36 Cal. 135. 147. Property sold for taxes must at the time of sale be liable for the entire amount of tax for which it is sold, or the sale will be void. Bucknall v. Story, 36 Cal. 67. 148. Evidence to recover under tax sale. A purchaser under a tax sale for widen- ing Kearny street, in San Francisco, in order to recover the land, must introduce in evidence, not only his deed, but the assessment, and must show the regularity of all the proceedings. Id. 149. Equity. — Practice of, in setting aside a tax deed. When the tax is valid, but the sale irregular, equity will not cancel the tax deed at the suit of the owner of the land, without a tender of the taxes to the pur- chaser. Hibernia Sayings and Loan Society v. Ordway, 38 Cal. 679. 150. But where the purchaser of the tax title has made the purchase by collusion with the owner, with the view of defrauding a mort- gage creditor of the owner, a tender of the amount of the taxes is not necessary. Id. 151. Sale of undivided interest in land for taxes. Whether, under an assessment to several persons of a tract of land in solido and as an entirety, an undivided interest can, in any case, be sold for a delinquent tax ? Query t People v. Shimmins, 42 Cal. 123. 152. Purchaser at tax sale. A pur- chaser of land at a tax sale, made under a judg- ment enforcing a lien for a tax, which judg- ment is regular on its face, is not affected by any matters outside the judgment of which he had no actual notice. Stokes v. G-eddes, 46 Cal. 17. 153. So long as the Tax Collector retains such taxes and assessments, it is his duty to pay the same to the unsuccessful litigant ; and he will not be allowed to set up as a de- fense that the City and County of San Fran- cisco is the proper party to be sued. Randall v. Austin, 46 Cal. 54. 154. Such deed is not void because the purchase money at the tax sale was not paid to the Sheriff until some time after the sale, provided the Sheriff accepted of it. Anderson v. Rider, 46 Cal. 135. 155. Deed for latest tax the best. A title acquired by a Sheriff's deed, in pursuance of a sale for a delinquent tax, will prevail over a title acquired by a similar deed for the tax of the previous year, even if the sale for the oldest, tax was made after the sale for the later tax. Id. 156. Sheriff's deed for taxes. A Sher- iff's deed made under a sale for a tax, in pur- suance of a judgment enforoing the lien of the tax, is not void because the property sold, be- ing severallots inacity, was assessed in solido, and not each lot separately. Id. 157. Defense in ejectment on Sheriff's deed. The defendant cannot, in ejectment, for the purpose of defeating title acquired by a Sheriff's deed executed under a sale made on a judgment foreclosing a lien for taxes, avail himself of defects in the assessment roll, of which the purchaser had no notice when he purchased, and which, if they had been shown in the tax suit, would have defeated a recov- ery. Jones v. Grilles, 45 Cal. 541. 158. Tax Collector cannot withhold money from the treasury. If a tax is not illegal and void, the facts that the person taxed paid it to the Tax Collector under pro- test and to avoid a threatened sale of his prop- erty for the same, and that such person has commenced, or is about to commence, a suit against the Tax Collector to recover it back, are no sufficient reasons why the Tax Collector should fail to pay the money into the public treasury at the time required bylaw. People v. Axistin, 46 Cal. 521. t 360 TAX COLLECTOR.— TENANTS IN COMMON. 159. Point not decided as to Tax Col- lector. The Court does not intimate an opin- ion on the point whether a Tax Collector can in any case -withhold from the treasury taxes collected by him, on the ground that they were paid under protest, even though actions have been commenced to recover them back. Id. 160. "When tax deed is void. If a tax is illegal and void, a sale under it iB a nullity and a deed of property sold for such a tax con- veys no title. Low v. Lewis, 46 Cal. 549. See Injunction, 16, 17 ; Judgment, 80 ; Ju- dicial Sale, 4, S, 25 ; Limitations, 25 ; Plead- ing, 77 ; Quieting Title, 23 ; Writ of Assist- ance, 2, 3. TAX COLLECTOR. See Constitutional Law, 78 ; Fees and Sal- aries, 2, 4 ; Mandamus, 1 1 ; Office and Officer, 4 ; Sheriff, 1 ; Streets and Street Assessments, 72 ; Taxation. TAX TITLES. See Taxation. TENANTS IN COMMON. 1. Grantee. The grantee of a specific quantity in a larger tract, thereafter to be segregated, becomes a tenant in common with his grantor of the entire tract, and may main- tain ejectment against his cotenants. Law- rence v. Ballou, 37 Cal. 518. 2. Purchaser under execution sale. The purchaser, under execution sale, of the interest of one partner in the real estate of a partnership, acquires the legal title, and not a mere equity, and is entitled to be let into pos- session as a tenant in common with the other owners. McCauley v. Fulton, 44 Cal. 356. 3. Tenure by. Tenants in common hold their lands by unity of possession, and each and every one of them has the right to enter and occupy the whole of the common lands, and every. part thereof. Tevis v. Hicks, 38 Cal. 234. 4. Possession of one tenant in com- mon. One tenant in common has no share, except that which is undivided, and has no right to exclude his cotenant from any por- tion of the lands. Id. 5. Ejectment by. One tenant in com- mon can recover possession of the entire prem- ises, as against a mere trespasser, without joining his cotenants as plaintiffs. Treat «. Reilly, 35 Cal. 129. 6. Effect of judgment " quare clausum f regit " against one tenant. Where Woods, being the owner of a lot in San Francisco, con- veyed an undivided quarter which passed to Williams, and a quarter to Hastings, and a quarter to Haskell ; and afterwards Sutton, claiming title under a Colton grant, brought trespass quare clausum fregit against Woods, Hastings, and Haskell for alleged interference with his possession, and recovered judgment, and also obtained an injunction against their interference with his possession : held, in eject- ment by Williams against Sutton, that the effect of the judgment was merely to estop Woods, Hastings, and Haskell from asserting title as against Sutton, not to transfer their title to him or make him a tenant in common with Williams ; and that such judgment could not prevent Williams from recovering the whole property. ' Williams v. Sutton, 43 Cal. 65. 7. Right of tenant in common to re- cover entire estate. A tenant in common is seized per mi et per tout, and has an interest in the whole, which entitles him to the enjoy- ment of the entire estate as against every one except his cotenant. Id. 8. Partition among tenants in common. One tenant in common cannot have partition of a part only of the entire common property, and have his entire interest located in this part. Sutter v. San Francisco, 36 Cal. 112. 9. Effect of sale by less than all the owners. A conveyance by one tenant in com- mon, or any number of them less than the whole, of a specific portion of the common lands is not void, but cannot be made to the prejudice of the tenants not uniting in the conveyance. Gates v. Salmon, 35 Cal. 576. 10. Title acquired by the purchaser. The grantee at such sale acquires all the inter- est of his grantor in such special tract, which interest is a tenancy in the special tract with the cotenants of his grantor. Id. 11. Conveyance by part of tenants In common. A conveyance by one or more of several tenants in common less than all, of a specific parcel described by metes and bounds of the land owned in common, makes the grantee a tenant in common to the extent of the interest of his grantors in the specific parcel of land described in the conveyance. Grates v. Salmon, 46 Cal. 362. 12. Such grantee occupies the precise posi- tion, so far as title is concerned, which his grantor or grantors held in the land described in the deed, and becomes a tenant in common, so far as the land conveyed is conoerned, with, those tenants in common who did not unite in the deed. Id. 13. Effect of such sale on partition. Such conveyance does not sever the special tract from the general tract of which it is » TENDER.— TITLE. 361 part, so far as the cotenants of • the grantor are concerned, and the whole- tract is subject to partition, so far as the cotenants of the grantor are concerned, as it would be had the conveyance of the special tract not been made. Gates v. Salmon, 35 Cal. 576. 14. Confirmation under Van Ness Ordi- nance. A confirmation by the Van Ness Or- dinance of the title to a lot granted by an Alcalde, inures alike to the benefit of all the tenants in\ common of the lot. Broad 1). Brload, 40 Cal. 493. 15. Purchase of outstanding indebted- ness. Equity does not deny to one tenant in common the right"to purchase in an outstand- ing or an adverse title to the common prop- erty ; but it will not permit him to acquire such a title solely for his own benefit, or to the ab- solute exclusion of the other. Mandeville v. Solomon, 39 Cal. 125. 16. But the cotenant must exercise rea- sonable diligence in making his election to participate in the benefit of the new acquisi- tion. Id: 17. Unless he make his election to partici- pate in a reasonable time, and contribute, or offer to contribute, his proportion of the con- sideration actually paid, he will be deemed to have repudiated the transaction and abandoned its benefits. Id. 18. Cannot assail the common title. A tenant in common, entering and remaining in possession as such, cannot, as against his co- tenant, assail the common title, or call its val- idity in question. Bornheimer v. Baldwin, 42 Cal. 27. See Action, 2 1 ; Deed, 5 ! Ejectment, 6, 7, 33-36, '51, 84, 104, 105, 123, 129, 138; Estop- pel, 29; Execution, 16; Forcible Entry and Detainer, 7, 8 ; Foreclosure, 30 ; Homestead, 12 ; Judicial Sale, 23 ; Land and Land Titles, 295 ; Mortgage, 52 ; Parties, 5, 6 ; Partition ; Pleading, 33; Specific Performance, 19 ; Water and Water Bights, 10 ; Writ of Assistance, 6. TENDER. 1. Effect of. A tender, as far as the com- putation of interest is concerned, must be con- sidered as a payment. Hidden v. Jordan, 39 Cal. 61. 2. Interest. A tender of the principal sum due, with the stipulated interest up to the time of the tender, puts a stop to the accruing of interest from the date of the tender. Pat- terson v. Sharp, 41 Cal. 133. 3. Valid tender of purchase • money. To constitute a valid tender, the party must have the money at hand, immediately under hiB control, and must then and ,there not only be ready and willing, but produce and offer to pay it to the other parjty, on the performance- by him of the requisite condition. Englander v. Rogers, 41 Cal. 420. See Contracts, 61-65 ! Forcible Entry and Detainer, 55 ; Foreclosure, 8 ; Negotiable In- struments, 46 ; Pleading, 35, 65 ; Specific Per- formance, 32-35. TERM OF COURT. See Adjournment ; Courts of Justice. TESTIMONY. See Criminal Law and Practice, 265^273 ; Evidence ; Trial. THREATS. See Criminal Law and Practice, 146, 198- 200. TEOE LANDS. See Land and Land Titles, 1 14-136 ; Statu- tory Construction, 16. TDME, COMPUTATION OF. See Appeal, 45 ; Constitutional Law, 35 ; Limitations, 7, 73 ; Negotiable Instruments, 49- TITLE. 1. Obligation of owner as to hostile title. The owner of property is justified in relying upon his title, and he is under no obli- gations to proceed against all persons who may assert a hostile title, although another person might be deceived by the apparent genuineness of such hostile title. Meley v. Collins, 41 Cal. 663. See Abandonment, 10, 11; Arbitration, 7; Chattel Mortgage, 3, 4 ; Conveyances ; Corpo- 362 TORT.— TRADE MARK. rations, 46-50, 64 ; Deed, 9, 48-54 ; Eminent Domain, 10, 44; Evidence, 66, 122, 138, 139; Ejectment ; Foreclosure, 5, 10 ; Homestead, 7, 8 ; Judicial Sale, 6, 20-23, 26-32 ; Land and Land Titles ; Lien, 4 ; Mexican Law, 2 ; Mines and Mining, 2 ; Mortgage, 24, 30-37 ; Pledge ; Probate Law and Practice, 23, 98 ,- Bight of Way, 3 ; Stare Decisis ; Tenants in Common, 14-18 ; Trespass, 8 ; Trust and Trustee, 1 1 ; "Water and Water Rights, 3, 4. TORT. 1. "Waiver of tort. When the goods of one are -wrongfully taken and used by another, the owner may waive the tort, and sue in as- sumpsit for their value, as for goods sold and delivered. Roberts v. Evans, 43 Cal. 381. See Damages, 13. TRADE MARK. 1. At common la-w. By the common law, the manufacturer of goods, or the vendor of goods for whom they have been manufactured , has a right to designate them by some peculiar name, symbol, figure, letter, form, or device, whereby they may be known in the market as. his own and be distinguished from other like goods manufactured or sold by other persons ; and when original with him, the owner of such mark will be protected by the Courts in its ex- clusive use, but only so far as it serves to in- dicate the origin and ownership of the goods to which it is attached, to the exclusion of such symbols, figures and combination of words which may be interblended witb. it, indicating their name, kind, or quality. Ealkinburg v. Ducy, 35 Cal. 52. 2. As regulated by statute. By the terms "peculiar name, letters, marks, devices, figures, or other trade mark or name," as used in the statute concerning trade marks, (Hittel's Laws, Art. 7134)13 not meant the established and proper means by which the " articles " to which they are attached and by which they are known in the market, nor something indi- cating their actual kind, character, or quality, but by them is meant, as the subject of protec- tion against infringement, something new, not before in use — something of the manufacturer's own invention, or first put to use by him — something peculiar to him, and not common to him and others — something which is intrinsi- cally foreign to the "articles" themselves, and only serves to designate them because it has been fancifully put to that use, in disre- gard of all natural relations. Id. 3. The statute does not vest in the manu- facturer or vendor, as the case may be, any exclusive property in the "articles" manu- factured or sold, nor in their names or the words which most aptly and properly describe them ; and even if such were the proper construc- tion of the statute, it would be void for want of power in, the Legislature to enact it. Id. 4. If the statute goes beypnd the common law, and embraces within its protection matter which relates to kind, character, or quality of "articles," it is not perceived why it does not trench upon the law of copy and patent rights, and is therefore void. Id. 5. Statute construction. It is suggests ed, but not decided, that the terms used in the .statute, to wit : " to designate it as an article of peculiar kind, character, or quality," were inadvertently incorporated in it under a mis- taken notion of the functions of a trade'mark, and that in respect of those terms the statute can have no intelligible operation. Id. 6. Infringement of. In an action to re- cover damages for an alleged invasion, by imi- tation, of the plaintiff's trade mark for the sale of a certain washing powder, which con- sisted of a highly colored picture representing a wash-room, with tubs, baskets, clothes lines, etc., also the following legend interblended with it: "Standard Soap Company, Erasive Washing Powder," followed by directions for the use of the "washing powder," and the place of manufacture, the alleged imitation by defendants consisted of a picture and label which were the same as in plaintiff's alleged trade mark, only in the use of the words ' 'wash- ing powder," the directions for the use of the powders, and in use of paper of the same color as that used by plaintiff : held, that this did not constitute an infringement of plaintiff's trade mark. Id. 7. Defined. A trade mark is a word or device adopted or devised and used by the manufacturer or vendor of goods, to designate the origin or ownership of his goods. Burke v. Cassin, 45 Cal. 467. 8. Label on goods. A label, at common law, is not a trade mark, but when a manufac- turer or seller of goods adopts a label to distin- guish his goods from those of another, he is entitled to be protected in its use, and others will be enjoined from using the same, or a colorable imitation thereof. Id. 9. Imitation of label. An imitation of a label used on goods is such a colorable repre- sentation thereof as is calculated to produce in the mind of the purchaser of goods the im- pression that they were manufactured or sold , by the person whose label has been imitated. Id. 10. What cannot be appropriated. A word, figure, etc., in common use, which indi- cates the name, nature, kind, quality or char- acter of the article, cannot be appropriated as a trade mark. Burke v. Cassen, 45 Cal. 467. TOLL BRIDGES AND TOLL ROADS.— TRESPASS. 363 11. Terms in common use to designate a trade or occupation in connection with other words indicating that a particular class of merchandise of the same general description is specially dealt in, cannot be exclusively appro- priated by any one as a trade mark. Choynski v. Cohen, 39 Cal. 501. 12. The word " aromatic, " when employ- ed to express one of the qualities of liquor, can- not be protected as a trade mark. Burke v. Caasin, 45 Cal. 467. 13. The word "Scheidam" cannot be adopted as a trade mark, because it has long been used to denote quality or kind. Id. 14. The word " Schnapps," which has long been in use to designate gin manufactured at Scheidam, cannot be appropriated as a trade mark for gin, in the United States, even if its former use had been confined to Europe. Id. 15. Piracy of a trade mark. The name of the manufacturer or seller of goods may be used as a trade mark, and the adoption of the same name, as a trade mark for goods of the same kind, by a person of a different name, is " piracy of a trade mark." Id. 16. A slight change in the name, such as cutting off the final letter, or prefixing ' ' Von' ' or "Van" to it, so long as it is an evident imitation, does not prevent ,its use from being .piracy of the trade mark. Id. 17. Damages for violation of. In an action to recover damages for a violation of plaintiff's trade mark, the profit actually real- ized by defendants from the sales of the spu- rious article under the simulated trade mark, is a proper measure of damages, but the recov- ery of the plaintiff is not limited to the amount of such profits. Graham v. Plate, 40 Cal. 593. TOLL BRIDGES AND TOLL ROADS. See Franchise, 1-3 ; Supervisors, 13. town Lands. See Cities and Towns ; Land and Land Ti- tles. TREATY. 1. Of Guadalupe Hidalgo. — Citizenship. The treaty of Guadalupe Hidalgo had the ef- fect, directly and of itself, to fix the status of the inhabitants of the ceded territories, in then- relation as citizens to the respective Govern- ments of Mexico and the United States. Peo- ple v. De La Guerra, 40 Cal 311. 2. The only way in which it was possible for Congress to admit the Mexicans in the ter- ritory ceded by the treaty of Guadalupe Hi- dalgo to the enjoyment of all the rights of citizens of the United States, was by incorpo- rating the ceded territory into the Union as States. Id. 3. Admission of a State. After admis- sion into the Union, no Act of Congress was necessary to define the rights of the inhabit- ants who were recognized as members of the community organized into a State. Id. 4. It was no violation of the ninth article of the treaty of Guadalupe Hidalgo, that the qualifications of electors, as prescribed in the Constitution of California, were such as to ex- clude some of the inhabitants from certain po- litical rights. Id. TRESPASS. 1. Real estate. In consequence of the stable and permanent nature of real estate, the rule of the common law which is in force in this State is, that an injury to it is not indict- able, and therefore to steal anything adhering to the 1 soil is not indictable. People v. Wil- liams, 35 Cal. 671. 2. Facts insufficient to show trespass. In replevin for hogs distrained under the Act of March 26th, 1857, the Court found that the " defendant had caught the said hogs in traps on his land, and had hauled them in wagons to the pen," and that certain persons, selected by the Constable without notice to the plain- tiff, and in his absence, and who were not sworn nor acting on the testimony of sworn witnesses, appraised the damages " committed by said hogs in destroying fifteen acres of grain, which defendant claimed was destroyed by said hogs": held, that such facts do xtoi tend to prove the trespass. Kusel v. Sharkey, 46 Cal. 3. 3. Trespass for entry upon land. One who enters wrongfully upon the land of another is a trespasser, and he does not cease to be such so that an action will not lie against him for a trespass, because he is allowed for one month after his entry to remain in the un- disturbed possession. Meyers v. Farquharson, 46 Cal. 191 . 4. Seizure by Sheriff, at direction of judgment creditor, when joint trespass. Where a Sheriff under an execution against McGrane, and at the direction of the judg- ment creditor, Williston, seized upon certain property, including wheat and barley, in pos-; ssssion of Goodyear, who had purchased in good faith and for value of McGrane after the* 364 TRIAL. crop was out and stacked ; and at the same time, the Sheriff, having in his hands a mort- gage given by McGrane to Williston upon the crop -while growing, took possession of the wheat and barley also under such mortgage, and placed all the property seized in possession of Casey, as his keeper, as agent of Williston : held, that these facts established a joint tak- ing by the Sheriff and judgment creditor, which, if wrongful, would sustain an action against them jointly as trespassers. Goodyear v. Williston, 42 Cal. 11. 5. Injury to trespasser. Although a person gets upon a railroad car wrongfully and as a trespasser, for the purpose of riding with- out paying his fare, yet the conductor, if he resolves to exercise his right to remove him, must do so prudently, and in such a manner as not to endanger his personal safety. If he do not exercise this prudence, and injury re- sult, the company cannot absolve itself from liability on the ground that the wrong was mutual. Kline v. C. P. R. R. Co. 37 Cal. 400. 6. Injunction to restrain trespasses. The Court will not interfere, by injunction, to restrain the commission of naked trespasses, where there is no waste committed. N. C. & 'S. C. Co. v. Kidd, 37 Cal. 282. 7. Proof of several trespasses in same action. The plaintiff in an action quare clau- sumfregit, may prove several distinct trespas- ses committed at various times, if in his com- plaint he alleges the time of one trespass and that others were afterwards committed. Brady v. Bronson, 45 Cal. 640. 8. Trespass " quare clausum fregit " no transfer of defendant's title. A plaintiff, who recovers in trespass quare clausum fregit, does not thereby become invested with the title, or succeed to the interest, which the de- fendant in such action may have had in the property. Williams v. Sutton, 43 Cal. 65. See Damages, 7, 8, 23; Equity, 34; Injunc- tion, 18, 19 ; Injunction Bond, 4 ; Negligence, 11, 12, 14, 35-37 ; Pleadings, 26-28 ; Sheriff, 5, 8, 9 ; Sheep, 1 ; Verdict, 1 ; Water and Water Eights, 8. TRIAL. I. GrENBRAIXY. n. Juror and jury. m. Continuance. TV. Conduct op the trial. 1. Practice on admission of evidence. 2. Order of introduction of evidence. 3. Examination of vjitnesses. 4. Privileged communications. 5. Cross examination. V. MlSCEIiLANEOUS. I. GENERALLY. 1. Disposal of issues. When a case, in- volving questions of law and of equity, is brought before the Court for trial without a jury, the more regular and orderly practice is, first, to dispose of the equitable branch of the case. Martin 1;. Zellerbach, 3a Cal. 300. 2. In such case, it should distinctly appear from the record, that the issues on the equity side of the Court were first tried and disposed of ; or, if the whole action and all the issues were tried and submitted together, that fact should appear. 3. Separate trials -where there are many defendants. In an action for recovery of land, brought against many defendants - holding separate portions thereof, and having no common interest, and who rely upon differ- ent sources of title, it is the duty of the Court, on the motion of defendants, to order separate trials. It is likewise the duty of the Court, without any motion therefor, to order separate trials, whenever, to the satisfaction of the Court, it appears that the parcels of land in controversy are separate and distinct, and the several classes of defendants rely on dif- ferent sources of title. Judson v. Malloy, 40 Cal. 299. 4. Erroneous rulings. The responsibil- ity of an erroneous order or decision, made on motion, or at the request of one of many de- fendants, will attach alike to all the defend- ants, unless it appears that the order or decision was clearly restricted, or would nec- essarily apply only to particular defendants or parcels of property. Id. 5. Change in position of cause on cal- endar. The position of a cause on the cal- endar will not be changed to a different day from that on which it is set by the Clerk, whether upon stipulation or motion, except for good cause shown. Wetmore v. San Fran- cisco, 43 Cal. 37. 6. Right of a party to have a cause tried. When two actions are pending at the same time, and between the same parties, to recover possession of the same tract of land, and in the absence of the plaintiff one is tried and judgment rendered for the defendant, and the defendant then pleads the judgment as a bar in the other action, the plaintiff is still en- titled to have the other action tried. People v. De La Guerra, 43 Cal. 225. See Action, 16 ; Appeal, 37, 214 ; Constitu- tional Law, 52 ; Forcible Entry and. Detainer, , 76 ; Habeas Corpus, 2, 4, 7-10 ; Judgment, 20— 22 ; Mandamus, 9, 40-46 ; New Trial, 122 ; Parties, 18. H. JUROR AND JURY. 7. Qualification of. One who declares that he knows the defendants, and, if the tes- TEIAL. 365 timony was evenly balanced, he would incline to their side, but would decide against them if the testimony was against them, and that he would do his duty as a juror, under the in- structions of the Court, is a competent juror. McFadden v. Wallace, 38 Cal. 51. 8. Competency of. Under the Jury Act, (Stats. 1863. p. 630, Sec. I, Sub. 3) » person otherwise qualified is not a competent juror unless he has been " assessed on the last assess- ment roll of his township or county, on real or personal property, or both, belonging to him, if a resident at the time of the assess- ment." People v. Thompson, 34 Cal.t67i. 9. Challenge for implied bias. The mere formation of hypothetical opinions as to the guilt or innocence of the prisoner, founded on hearsay or information, and unaccom- panied with malice or ill-will, is not sufficient ' to support a challenge for implied bias. Peo- ple v. Murphy, 45 Cal. 137. 10. Peremptory challenge. In a civil action, a party is not bound to exercise his right of peremptory challenge to jurors, until there are in the jury box twelve persons whom the Court has adjudged to be competent jurors. Taylor v. Western Pac. K. E,. Co., 45 Cal. 323. 11. Summoning additional jurors. If the trial jurors, although legally drawn, have not been legally summoned, the Court may, by an order, direct additional jurors to be sum- moned. People v. Devine, 46 Cal. 46. in. CONTINUANCE. 12. When granted. If a party has stated his case to his attorney, and is advised that he has a good defense on the merits, and his attorney is unable to attend the trial by reason of the illness of his family, and the party first ascertains this on the morning of the day of trial, and is unable to try his own case or procure other counsel who understand the facts, a continuance should be granted, at least until other counsel can familiarize them- selves with the facts. Thompson v. Thorn- ton, 41 Cal. 626. 13. Sufficient grounds. There is no error in refusing a continuance, under the ' circum- stances of this case, on the ground that the applicant was informed by his attorneys sev- eral weeks before the term that the case could not be tried at that term, and that such at- torneys reside at a great distance, and are not present, and their attendance cannot be pro- cured. Lightner v. Menzell, 35 Cal. 452. 14. It is no ground for a continuance that a material witness for the applicant is in another county in this State, where the ap- plicant has taken no steps to procure his depo- sition, because he saw the witness several weeks before, and the witness promised to be present at the trial. Id. 15. Waiver of right to delay. Where the plaintiff to an action, with full knowledge of his right to proceed to trial only at his own option against the defendants served, and of v the fact that no service had been made upon one of the defendants, who had left the State, and that no issue had been joined as to him, first agreed with the defendants served, with- out reservation, that the issue between him and them should be set for trial at a particular day, then asked and obtained a continuance for the reason solely that his witnesses were not pres- ent, and in consideration of such continuance by consent agreed of record that the case should be set for trial and tried on a particular day : held, that this state of facts clearly constituted a waiver by plaintiff of his right to delay the trial until said other defendant had been serv-' ed or issue joined in respect to him. Meagher v. Gagliardo, 35 Cal. 602. 16. In such case, the agreements between the parties are not only agreements between the parties, but between them and the Court, which the latter is bound to enforce, not only for the benefit of the party interested in their performance, but for the protection of its own honor and dignity. Id. 17. Insufficient admission on motion. Lovett and Adams were partners, under the firm name of W. E. Lovett & Co. Adams sold his interest to Flint, who received in part pay- ment a promissory note signed by the firm name, and. afterwards transferred it to other par- ties who, at maturity,, sued for payment. On the trial, the parties defendant moved for a continuance, to procure the attendance of Flint as a witness, and. in support of the motion, an affidavit was filed, stating that if present, Flint would testify that he had nothing to do either with the execution or delivery of the note, or with the direction of the business of the firm. The plaintiffs admitted that, if pres- ent, Flint would testify that, he did not sign the note nor authorize any one to sign it for him. On this, the Court denied the motion for a oontinuance, and proceeding with the trial found, that as the note had been signed by Lovett in the firm name, in the presence of Flint, the latter held himself out to the world, by the transaction, as a partner. Held, first, that the testimony of Flint, as stated in the ' affidavit, was competent and material upon the question involved in the finding ; Becond, that the admission of the plaintiffs was not broad enough to cover all the material facts to which defendants expected Flint would testify. Turner v. Lovett, 41 Cal. 521. 18. Affidavits for. A continuance will not be granted because of the absence of a witness, unless the affidavits in support of it show that diligence has been used to procure the attendance of the witness, or to obtain his deposition. Leszinsky v. White, 45 Cal. 278. See Action, 9 ; Appeal, 38. 366 TRIAL. IV. CONDUCT OF THE TRIAL. I. Practice on admission of evidence. 19. Decision as to admissibility of evi- dence reserved. When, in the , progress of a trial, evidence is reserved, subject to fur- ther consideration and future decision as to its admissibility, it is the duty of the Judge, ■when the decision is made, to distinctly and expressly rule upon it, one way or the other. Such reservations should not be made without the consent of parties, in cases where the con- sequences of the ruling might be obviated by other evidence by the party against whom the ruling is finally made. Sharp v. Lumley, 34 Cal. 611. 20. Objection to evidence, when ■waived. A party cannot for the first time in this Court object, on any ground, to evidence .which was introduced by the adverse party at the trial in the Court below without objection made thereto. Bliss v. Ellsworth, 36 Cal. 310. 21. Objection to testimony. A general objection to all the testimony a witness may give, made on the ground that he was the at- torney of defendant, is not sufficiently specific to be available on appeal. Satterlee v. Bliss, 36 Cal. 489. 22. A party offering testimony objected to by the other party is entitled to have the par- ticular portion of the testimony objected to pointed out, and the specific ground of objec- tion stated. Id. 23. Objection to evidence of contract. If a party claiming under a contract, required by the Statute of Frauds to be in writing, be permitted without objection to prove a con- tract by parol, and a motion be afterwards made to strike out the testimony on the ground that the contract was not in writing, the fact that the evidence is already before the jury, without objection, is a sufficient answer to such motion. Livermore v. Stine, 43 Cal. 274. 24. Incompetent evidence. Where in- competent evidence was admitted by the Court below, against objection, the inference is that the evidence was considered entitled to some weight in the determination of the issue of fact which was being tried, and it was equally inadmissible whether the case was tried by the Court or before a jury. Mason v. Wolf, 40 Cal. 246. ■ 25. Amendment of pleading. Where the plaintiff offered in evidence, in support of the cause of action stated in such complaint, a policy of insurance, which by its terms limited the responsibility of the defendant to losses other than those by theft, at or after a fire, loss or damage by fire caused by means of or during an invasion, insurrection, riot, civil commotion, or military or usurped power : held, first, that an objection thereto on the ground of variance between pleading and proofs, was well taken ; but second, that the Court did not err in allowing the plaintiff during the trial to so amend his complaint as to obviate such objection. Clark u. Phoenix Ins. Co., 36 Cal. 168. 26. Evidence under the pleadings. When the pleadings aver a contract to be ful- filled at a specified time, and a written agree- ment of contract, to be fulfilled at another time, is offered in evidence, the offer is obnox- ious to no objection but that of ".variance"; and if this objection be not taken, and it he shown that the time of performing the written agreement had been extended by a subsequent oral agreement, so as to correspond with the pleading, all objections are thereby cured. Waugenheim v. Graham, 39 Cal. 169. 27. Practice on admission of evidence. It is the better practice to decide on the admis- sibility of evidenoe when it is offered ; but if the rule be departed from, it is the duty of the Court, at a subsequent stage of the case, to rule upon the point distinctly, and if the evidence be excluded, to state on what ground. Mayo v. Mazeaux, 38 Cal. 442. 28. Objection to testimony. If the plaintiff offers competent testimony to prove certain facts, and it is rejected by the Court on the objection of the defendant, the defendant will not afterwards be permitted to allege that the plaintiff failed to prove the facts embraced in the offer. Thompson v. McKay, 41 Cal. 221. 29. Motion to strike out. The practice, whether in civil or' criminal cases, of delib- erately permitting evidence to be given with- out objection in the first instance, and then moving to strike it out, on grounds which might readily have been availed of, to exclude it when pffered, is not to be tolerated. People v. Long, 43 Cal - 445- 30. Objection to testimony. If an ac- tion is brought on a contract the performance of which was guaranteed, and the contracting party and guarantor are joint defendants, and testimony is offered which is relevant as to the contractor, but not admissible as against the guarantor, a general objection to the testimony is insufficient, but the objection must point out why the testimony ought not to be received. Voorman v. Voight, 46 Cal. 392. 31. Evidence in action on contract. In an action on a contract to deliver spirits in good packages, where the only issue made is, whether the packages were good, the plaintiff, being the party to deliver the spirits, may prove that the defendant assigned other reasons than the defect in the packages for not paying for the spirits, and that he did not offer to re- turn the packages. Id. 32. Sufficiency of objection to deed. At the trial, as shown by the settled state- ment on motion for new trial, plaintiffs intro- duced in evidenoe a deed from G to the ' ' Gua- tamala Mining Company," of an interest in the water right in litigation, to which the defend- TRfAL. 367 ants objected, and stated as grounds of objec- tion ' ' that it was void as a conveyance of title to such property as a ditch or water right be- cause it was not under seal, because it was not acknowledged as required by law, because no foundation had been laid, for its introduction in evidence as a conveyance of title from G, and because the Guatamala Company, as a com- pany, could not take title by bill of sale, even if it was free from legal objection. ' ' The title of the complaint names the plaintiffs as com- posing the Guatamala company, which is rec- ognized as true by the answer. The Court below set aside a judgment which had passed for plaintiffs, and granted a new trial on the defendants' motion therefor, and based its de- cision on the ground that the deed was void for want of a grantee.capable of taking under it. Held, first, that the objection as stated failed to state sufficiently the point on which it rest- ed ; second, that, as stated, the objection seems to be that the instrument is void as a. convey- ance of title to the G-uatamala Company be- cause it is a bill of sale, and not for want of a grantee named therein capable of taking ; third, that the deed upon its fane is not void for the want of a grantee named therein, and said ob- jections do not point to any defect of parties to the instrument. Cochran v. O'Keefe, 34 Cal. 554- 33. Objection to deed. The objection to a deed offered in evidence in an action of eject- ment, that it does not embrace the premises in controversy, is not well taken, unless the deed shows on its face that it does not embrace such premises. "Walbridge i\ Ellsworth, 44 Cal. 353. 34. When bill of particulars is de- manded. If the complaint contains several counts, on one of which a bill of particulars cannot be required, and the defendant demands a bill of particulars, which is not given, the Court should not, on the trial, exclude evi- dence on the count on which a bill of particu- lars was not required. Moore v. Bates, 46 Cal. 29. 35. Waiver of objection to testimony. If one party offer himself as «, witness, and the other object, because the objector is the representative of a deceased person, and the Court decides to take the evidence with leave to the other party to move to strike it out, the motion to strike out must be made 'when the direct examination is closed. By cross exam- ining the witness generally, the other party waives the motion to strike put. King v. Haney, 46 Cal. 560. 36. Objection to a. deposition. Objec- tion to a deposition cannot be made, unless taken when it is offered in evidence. Hobbs v. Duff, 43 Cal. 485. 37. It is no objection to a deposition, taken in this State, where only the party taking the same appears, that it is in a narrative form, and is not taken by question and answer. Pralus v. P. G. & S. M>. Co., 35 Cal. 30. 38. Certificate of. There is no necessity for ihe statutory certificate to be appended to the deposition of each witness, when two or more give their depositions for the same party at the same time and before the same officer ; but one certificate, in due form, to aty such ' depositions, when securely attached together, is sufficient. Pralus v. Pacific G. & S. M. Co., 35 Cal. 30. 39. Objections, when to be made. Ob- jections to the reception of testimony, whether parol or in the form of depositions, must be made at the trial, and cannot for the first time be raised on motion for new trial. The ab- sence of the party against whom the evidence is offered makes no difference in the rule. Clark v. Gridley, 35 Cal. 398. 40. When an exhibit to a deposition is ob- jected to when produced by the witness, and ■the objection noted in the deposition, but there is nothing in the records to show that the ob- jection was renewed at the trial, or passed upon by the Court below, it cannot be raised for the first time on appeal. Parrott v. Byers, 40 Cal. 614. 41. Right of counsel to inspect. After deeds or other documents have been admitted in evidence, the opposite counsel have a right to inspect them at any time during the progress of the trial. Pope v. Dalton, 40 Cal. 638. 42 . Putting a paper in evidence. If the plaintiff's counsel, at the close of the testi- mony, states that he desires to have an original will', a copy of which is in the answer, go with the papers in evidence, in order that the Court may inspect it, and defendants' counsel assents to it, saying he too wants it to go in evidence, this is putting the will in evidence for every purpose for which it is legitimate. Pearson v. Pearson, 46 Cal. 610. See Appeal, 114, 202, 241, 274-280, 285-290, 326, 327 ; Criminal Law and Practice, 241- 269 ; Evidence, 44 ; New Trial, 32, 33. 2. Order of introduction of evidence. 43. Offer to prove several facts. If an offer is made to prove several facts, consec- utively stated, and it does not distinctly ap- pear that the offer was to prove all the facts as a whole or none of them, the presumption is that it was an offer to prove each fact seriatim. Lick v. Diaz, 37 Cal. 437. 44. Receiving testimony out of its or- der. The reception of testimony out of its proper order is a matter in the discretion of the Court which tries the case ; and except in a case of manifest abuse of that discretion, the appellate Court will not disturb the ruling of the lower Court in that respect. Id. 45. If one party reads a portion of a writ- ten document in evidence in his behalf, the other party is entitled to the reading of the re- maining portions thereof, before the interven- 368 TRIAL. tion of other testimony. Spanagel v. Dellan- ger, 38 Cal. 279. 46. Rejecting testimony. There is no error in rejecting testimony which in no way can be of benefit to the party who seeks to in- troduce it. , Brumagim v. Bradshaw, 39 Cal. 24. 47. Rebutting testimony. Where a plaintiff in rebuttal introduces evidence in contradiction of the witnesses of the defend- ants, it is competent to the latter, after the plaintiff has rested, to support their credibility by the introduction of additional testimony. "Wade v. Thayer, 40 Cal. 578. 48. Recalling -witness to contradict testimony. It is no error to refuse to allow a plaintiff to recall a witness in rebuttal, for the sole purpose of contradicting a witness for de- fendant on a point upon which plaintiff's wit- ness has already testified. Phelps v. McGloan, 42 Cal. 298. See Appeal, 206. 49. Admission of testimony after close in chief. — Discretion. Where a defective power of attorney, offered by plaintiff, was admitted under objection, and after plaintiff's evidence in chief was closed, the Court al- lowed him to produce a sufficient power : held, that, its admission at that time was a matter of discretion, not to be disturbed in the absence of a showing of abuse. Foote v. Richmond, 42 Cal. 439. 50. Order of introducing evidence. A party is at liberty to introduce his evidence in whatever order he prefers, subject to the con- trol of the Court, in the exercise of a sound discretion. Crosett v. Whelan, 44 Cal. 200. 51. Discretion of Court. In an action' upon a promissory note, where the defendants, being guarantors, set up an agreement with the maker, under which they indorsed the note upon a certain condition which was afterwards violated, and on the trial offered evidence in Bupport of the agreement, against objections by the plaintiff that the testimony was irrel- evant until after it had been shown either that the plaintiff took the note with notice or acquired it after maturity, the Court deciding that the defendants might introduce their evi- dence in whatever order they preferred, sub- ject to be ruled out afterwards unless its rel- evancy could be tihown, there was no abuse of the discretion of the Court. Crosett v. Whelan, 44 Cal. 200. 52. Setting aside submission of order. After a motion for an order has been argued and submitted, the Court may, at its discretion, set aside the order of submission, and allow more evidence to be introduced. Keys v. War- ner, 45 Cal. 60. 53. Rule of examination of a party. Where, in a civil action, a party becomes a wit- ness in his own behalf, he thereby subjects himself to all the rules regulating the direct and cross examination of witnesses. Clark v. Beese, 35 Cal. 89. 3. Examination of witness. 54. In such a case, where the matter to which the question related was one of the facts in issued * ne ^ ac * that the witness's reply would disgrace or degrade him does not shield him from answering the question. Id. 55. Discretion of Court. There is no abuse of the discretion of the Court in refusing to permit a witness, on re-examination, to be further interrogated on a point concerning which he had already fully testified. Bruma- gim v. Bradshaw, 39 Cal. 24. 56. Compelling witness to answer questions. A party to an action cannot avail himself of the alleged error of the Court in compelling his witness to answer a pertinent question proposed by the opposite party, where the witness had refused to answer on the ground that his reply would disgrace and degrade him. The privilege not to answer being personal to the witness, it is not in any sense the privilege of the party calling him. But as to a party demanding an answer, the rule is otherwise if the Court allows the priv- ilege in a case where the witness fails to bring himself within the rule. Clark v. Beese, 35 Cal. 89. 57. Penalty for refusing to answer. On the trial of an action for a breach of prom- ise of marriage, the character of plaintiff for chastity, as well as the fact of the promise al- leged, being among the issues tried, the de- fendant — who testified as a witness in his own behalf — to plaintiff's question on cross exami- nation, if he had ever called plaintiff his " dear Carrie," or his " dear child," replied, "I decline to answer the questions; when a man takes personal liberties with a woman he should not come on the stand and swear to it," Plaintiff then asked him the further question, " Did you ever take improper liberties with plaintiff?" to which, on defendant's declining to answer, the Court enforced an answer, under penalty of committing defendant for contempt ; also, of striking out his answer and allowing plaintiff to take judgment as prayed in her complaint : held, first, that defendant's response to the first question clearly implied that he had taken personal liberties with plaintiff ; second, that plaintiff's last question was proper, and she was entitled to demand an explicit answer ; and third, that under Section 409 of the Practice Act, the Court did not err in the mode of enforcing suoh answer. Clark v. Beese, 35 Cal. 89. 58. Contempt of Court. The Treas- urer cannot be punished for contempt for not obeying an order of Court directing him to pay money to a witness for expenses, without some proceeding to which the Treasurer is. made a party. Sargent v. Cavis, 36 Cal. 552. TRIAL. 369 59. Testimony as to account. It is permissible for a witness to testify as to the re- sult of the items of an account rather than to the items and facts from which the result arises, unless objected to. Clark v. Gridley, 35 Cal. 398. 60. Evidence in chief must be confin- ed to matters in issue. In an action for damages the plaintiff should be restricted in his examination of his witnesses in chief to the principal matter in dispute, and it is error to extend it to res inter alios acta. Martinez t>. Planel, 36 Cal. 578. 4. Privileged communications. 61. Of attorney. The rule not permit- ting an attorney to testify to communications made to him by his client, as such, does not extend so far as to prohibit the attorney from stating by whom he was employed; neither does the rule prevent the attorney from testify- ing to communications made to him by his client, unless they are confidential communica- tions made by the client in the course and for the purposes of the employment of the attorney. Satterlee v. Bliss, 36 Cal. 489. 62. The rule excluding the testimony of an attorney as to confidential commuications made to him by his client, must be strictly construed, as it has a tendency to prevent a full disclosure of the truth. Satterlee v. Bliss, 36 Cal. 489. 5. Cross examination. 63. Discretion of Court. When both sides of a case are founded upon the same or cognate facts, the cross examination must be left to the discretion of the Judge, and his rul- ing cannot be regarded as erroneous. Thornton v. Hook, 36 Cal. 223. 64. Evidence in forcible entry. Where the plaintiff in forcible entry and detainer is forcibly ousted by several persons, and the defendant claims that, although present, he took no part in the expulsion, he should, be allowed to cross examine witnesses who testify to seeing weapons, as to whose hands they were in. Boss v. Roadhouse, 36 Cal. 580. 65. Rules of. It is not always easy to determine the precise point beyond which a cross examination should not be allowed to proceed. The general rules are, that a witness cannot be cross examined except as to facts and circumstances connected with matters tes- tified to by him on his direct examination, and that a party who has not yet opened his own case cannot do so by a ~ cross examination of his adversary's witness. Thornton v. Hook, 36 Cal. 223. 66. Contradiction of 'witness. On cross examination, the map of a survey made for the purpose of a partition of lands purchased by a witness and others, is admissible in evi- CAL. DIG. SUP. 24. dence, for the purpose of contradicting the witness. Judson v. Malloy, 40 CaL 299. See Criminal Law and Practice, 248-251. V. MISCELLANEOUS. 67. Submission of facts. If a case is submitted upon stipulated facts, without re- serving the question of the competency, rel- evancy, or admissibility of evidence to prove such facts, the question cannot be raised that such facts are not properly before the Court. Brewster v. Hartley, 37 Cal. 15. 68. Objection to complaint. When a demurrer to the complaint, on the ground of a misjoinder of parties plaintiff, (or other ground which would be waived if not taken in time) has been overruled, the objection cannot be again taken on the trial, but the case must proceed on its merits, so far as such objection is concerned. Tennant v. Pfister, 45 Cal. 270. 69. On the trial no objection to the com- plaint is open to inquiry, except the want of jurisdiction, or that it does not state facts suf- ficient to constitute a cause of action. Id. 70. Objection to question put to 'wit- ness. A party cannot abandon the ground of objection taken to a question put to a witness on the trial below and assume another on the trial of an appeal in the Supreme Court. Peo- ple v. McCauley, 45 Cal. 146. 71. Argument at chambers. After a cause has been submitted in the Court, it is not error to hear argument at /chambers, and thereupon to decide the case. City of San Jose" v. Shaw, 45 Cal. 178. See Attorney and Client, 14. 72. Findings of fact. After trial by the Court, when it has filed its findings and ren- dered judgment, it is irregular for it, upon motion of one of the parties, to re-examine the evidence and reverse its former action, or sub- stitute different findings of facts. Prince v. Lynch, 38 Cal. 528. 73. The only regular way for the Court to review its former action is on a motion for a new trial. Id. 74. Province of jury. To weigh the evi- dence and find the facts is, in this State, the exclusive province of the jury. People v. Dick, 34 Cal. 641. 75. It is the province of the jury to de- termine whether the letters were written and received by the respective parties, and the' terms of the contract therein contained com- plied with, and of the Court to determine the construction and legal effect of such contract. Ellis v. Crawford, 39 Cal. 523. 76. Question for the jury. The ques- tion whether the collision by which the injury was caused could have been avoided by proper care, is a question of fact for the jury. Siegel v. Eisen, 41 Cal. 109. 370 TROVER.— TRUST AND TRUSTEE. _77. Whether or not the overflowing of sewerage is injurious to health or otherwise offensive, is a question of fact. Requena v. City of Los Angeles, 45 Cal. 55. 78. Facts admitted in pleadings. The question as to what facts are admitted by the pleadings, is one for the Court and not for the jury ; and the Court should not submit such a question to a jury. Tevis v. Hicks, 41 Cal. 123. 79. Credibility of witness. The ques- tion of the credibility of a witness is for the Court below, and not for the appellate Court to determine. Walsworth v. Johnson, 41 Cal. 61 ; Putnam v. Lamphier, 36 Cal. 151. 80. Question of Statute of Limitations. When the facts are agreed upon or ascertained, it is a question of law whether the case is brought within the bar of the Statute of Lim- itations ; and in such case it is error ,to sub- mit to the jury the question whether a demand is barred by the statute. Reed v. Swift, 45 Cal. 255. See Conveyances, 21 ; Criminal Law and Practice, 245, 252-261 ; Evidence, 14, 161-166; Negligence, 33 ; Powers, 2. TROVER. See Conversion. TRUST AND TRUSTEE. I. Express trust. II. CONSTRUCTIVE TRUST. m. Resulting trust. TV. Power of trustee. V. Sale by trustee. VI. Breach op trust. I. EXPRESS TRUST. 1. What constitutes. T agreed with M that if they could obtain a road franchise from the Legislature in T's name, and M would draw a bill to that effect, and would construct half the road, T constructing the other half, they should be equal owners and divide the tolls. M drew the bill, which became a law, and constructed his half of the road ; then, by express agreement, T took possession of the road and collected the tolls on mutual account. Held, to be an express trust. Miles v. Thome, 38 Cal. 335. 2. Transfer of property. A transfer of property by a debtor to a creditor, who under- takes to sell the same and apply the proceeds to the discharge of his own debt and those of certain other creditors, with the assent of the latter, clothes such creditor with a power, coupled with a trust for the benefit of those others, which he cannot relinquish until those debts are discharged. Handley v. Pfister, 39 Cal. 283. 3. By deed absolute. If A makes an abso- lute deed of his land to B, with the under- standing between him and B and C that B is to sell the land and use the proceeds to pay the debt of A to C, C can compel B to account to him and pay over the proceeds. Raynor v. Lyons, 37 Cal. 452. 4. Interest conveyed by trust deed. A trust deed of real estate, taken by a person who loans money to the owner ,defeasible on payment of the debt, is something more than a mort- gage. It conveys the legal title and an in- terest in the land. Euguay v. Stickney, 41 Cal. 583. 5. Conveyance of land. If A conveys to B a tract of land, to be by B afterwards recon- veyed to himself, he thereby creates an express trust, which B may accept by accepting the deed. Hearst v. Pujol, 44 Cal. 230. 6. When .attorney holds money in trust. When_ the attorneys for the parties withdraw from a Sheriff money deposited with him as security for a judgment that may be rendered in an action, they hold the money in trust for both parties to the action, the same as it was held by the Sheriff. Hathaway v. Pat- terson, 45 Cal. 294. 7. Right of set-off when property is held in trust. When money deposited by a defendant with a Sheriff, as security for prop- erty released on attachment, is withdrawn by the attorneys of the parties, and divided be- tween them, and each gives his note to the other for one half of it, with a stipulation that it was tp be held in like manner as if it re- mained in the Sheriff's hands ; after the plaintiff recovers judgment, the defendants' attorneys may be sued on the note given by them, and they cannot set off, either the note of plaintiff's attorney to them, or what is due to them by their client, for their services in the action. Id. 8. Land held in trust. If an attorney contracts with a party who claims land, to commence a suit to recover the land and to pay the expenses, and receive for his services and expenses one undivided half of what may be recovered, and the undivided one-half of the result of a settlement or compromise of the matter, and the party compromises by having money paid to a third person, who, in consider- ation of the money, deeds to a fourth person land in trust for the party, such fourth person holds an undivided one half of the 'land in trust for the attorney. Hoffman v. Vallejo, 45 Cal. 564. 9. Statute of Limitations. v The Statute of Limitations does not run in favor of a trus- tee, as against the cestui que trust, while the latter is in the possession of his estate, and TRUST AND TRUSTEE. 371 there has been no adverse holding on the part of the trustee. Love v. "Watkins, 40 Cal. 547. See Attorney and Client, 21 ; Bankruptcy, 11, 12 ; Corporations, 35, 64, 65, 72, 88, 91-94 ; Deed, 58 ; Ejectment, 89, 107 ; Estate in Re- version, 2 ; Guardian and Ward, 6 ; Land and Land.Titles, 28, 39, 40,212 ; Limitations, 75- 77 ; Negotiable Instruments, 12 ; Specific Con- tract Act, 3 ; Supervisors, 8-10. II. CONSTRUCTIVE TRUST. 10. Public lands. The purchaser of par- cels of the land granted by Congress to the State for internal improvements, who, before the entire purchase is made, sells portions thereof by quit claim deeds to others, by whom the remainder of the purchase money is paid, and who thereupon receives a patent from the State, becomes, constructively, the trustee of his vendees, and holds the title for their bene- fit. Wasley v. Foreman, 38 Cal. 90. 11. Title to land. If a party who is in possession of land, without right, legal or equitable, is fraudulently deprived of the pos- session by one who does not deprive him of any right at laVw resulting from his prior posses- sion, and the one who thus obtains possession then purchases the title from the true owner, he does not hold this title in trust for the prior possessor, and cannot be compelled to convey it to him. Scott v. Umbarger, 41 Cal. 410. 12. Contract establishing trust rela- tion. If one party agrees to unite with two others in the purchase of land, each to furnish one third the purchase money, and such party to conduct the negotiations and buy the land for the least possible price, he assumes a posi- tion, of trust towards his associates, and is bound to exercise the utmost good faith to- wards them, and share with them all the profits of the bargain. King v. Wise, 43 Cal. 629. 13. Fraud of one joint purchaser of land towards his associates. If A agrees to unite with B and in the joint purchase of a tract of land, each to furnish one third the price, and A to conduct the negotiations, and buy the land at the least possible price, and A represents to them that the land costs six hun- dred and fifty dollars per acre, when it only costs five hundred dollars per acre, and a pur- chase is made at the former sum, and A pockets the difference between the two prices, B and C are entitled to recover from A the full sum they paid beyond what they would have paid at five hundred dollars per acre. Id. 14. Before bringing an action to recover such difference, B and C need not offer to re- scind the contract of purchase, and an affirm- ance of the contract by them, after they dis- cover the fraud practised on them by A, does not destroy their right of action for the dam- age sustained. Id. 15. When purchaser of land is not a trustee for another. The facts that two par- ties purchase separate tracts of land from one who had located school land warrants on the same before the land was surveyed by the United States, and which location was conse- quently void, and that said parties acquired possession of said tracts by virtue of said pur- chase, do , not create the relation of trust or confidence between them, so as to make a Bub- sequent purchase from the United States, of all the land, by one of the parties, as a pre-empt- ioner, inure to the benefit of the other party in equity. Collins v. Bartlett, 44 Cal. 371. 16. When two or more persons separately purchase distinct parcels of land from a com- mon grantor, who possesses the same under an invalid title, and one of them afterwards ac- quires the true title to the whole, he does not hold the true title as trustee for the other, nor is he estopped from denying that the pur- chase from the holder of the invalid title was void. Hi. 17. "Pueblo lands in San Francisco. The tenure by which the pueblo lands are held by San Francisco is of a fiduciary nature, and cannot be alienated except in accordance with the trust. San Francisca v. Canavan, 42 Cal. 545. San Diego v. S. D. & L. A. R. R. Co., 44 Cal. 106. 18. Power of Legislature as to trust. It is for the Legislature to decide how the trust, for which San Francisco holds the title to the pueblo lands, shall be performed. San Francisco v. Canavan, 42 Cal. 545. 19. If there is no beneficiary the trust is discharged. Where land is granted by Congress to a city, in trust, to dispose of and to convey the same to parties in possession thereof, on such conditions as the Legislature shall prescribe, and a condition prescribed is the payment of previous taxes before a certain time, and the person in possession does not make such payment, there is no beneficiary' of the trust, and the city acquires the legal title divested of the trust, and may convey the same to any party. Dupond v. Barstow, 45 Cal. 446. 20. Facts tending to show a trust. In an action by the wife against the husband to obtain a divorce, and to have property which the husband has deeded to a third person de- creed to be held in trust for the husband, and adjudged to be community property, and awarded to her, the facts that such third per- son is a brother of the husband, that the latter held a letter of attorney from the former, who lived in the Atlantic States, that the husband managed the property as he pleased, and the brother took little or no interest 5n it, that the brother was a man of small means at his own home, while the property here was valuable, and that the brother was not present at the trial in which his title was involved, are some evidence tending to show that the husband is the true owner, and that the sale to the brother 372 TRUST AND TRUSTEE. was fraudulent. Brown v. Brown, 41 Cal. 88. See Evidence, 70. m. RESULTING TRUST. 21. When it arises. If one party pays the purchase money of land to which another party takes the title, a resulting trust arises in his favor who paid the consideration. If one pays only a part of the consideration, a trust is thereby created in his favor pro tanto. Case v. Codding, 38 Cal. 191. 22. Purchase at Sheriff's sale. "Where A agrees with B that he will purchase a Sher- iff's certificate of sale of a raining claim, and take an assignment in his own name for the joint benefit of both, and A makes the pur- chase, B furnishing his proportion of the money, and takes a Sheriff's deed in his own name, a resulting trust arises, and A holds a. part of the property in trust for B. Such re- sulting trust cannot be defeated by the fraud of A in making this agreement and taking B's money, when, in fact, he had already, un- known to B, made the purchase. , Dikeman v. Norrie, 36 Cal. 94. 23. Assignment of collateral securi- ties. When the lender of money has assigned to him, as collateral security, a note and mort- gage for a much larger sum on a third person, and afterwards agrees with the horrowers that at the foreclosure sale of the mortgaged premises he would purchase the property in the name of the borrowers, and would hold the same for their benefit, subject only to a lien for the money loaned, upon faith in which promise the borrowers take no further interest in the sale, but the lender, in his own name, purchases, and for a sum much less than the amount called for in the note, and makes the payment of the purchase by crediting the amount of his bid, less the costs, on the judg- ment, a trust is thereby created in favor of the borrowers, and equity will decree them a con- veyance, if it is in the power of the lender to make a title unencumbered by any acts of his own. Price v. Beeves, 38 Cal. 457. 24. How established. A resulting trust can- not be established in favor of a plaintiff upon a mere allegation of a verbal agreement, to the effect that he was to be jointly interested with defendant in the purchase of the property, and in the absence of any averment that he paid a portion of the purchase money at the time of the purchase. Boberts v. Ware, 40 Cal. 634. 25. The party claiming the benefit of the trust must show that the money was paid be- fore or at the time of the execution of the con- veyance. Case v. Codding, 38 Cal. 191. 26. In favor of settlers in possession. Where a number of settlers on a Mexican grant deeded their claims and contributed money to trustees, under an agreement that the trustees were to buy up the grant title, and afterwards deed to each settler the land in his possession, and there was a dispute between two of the settlers as.to the right to a deed of a particular piece : held, that though the extent of one's possession would generally be indicated by his fences, it was the fact of actual possession, with or without a fence, which would entitle the possessor to a deed. Slattery ■». Hall, 43 Cal. 191. See Fraud, 3 ; Statute of Frauds, 24. IV. POWER OF TRUSTEE. 27. Discretionary power. Discretionary power in the execution of a trust cannot be delegated to a stranger by assignment. Saun- ders v. Webber, 39 Cal. 287. V. SALE BY TRUSTEE. 28. Sale by trustee. A conveyance to one in trust, to rent or sell the property and apply the proceeds towards the payment of a debt of the grantor, conveys the fee, and the trustee has power to convey the legal title. Thompson v. McKay, 41 Cal. 221. 29. Deed by trustee. Where the deed creating the trust conveys the trust estate to two trustees, and empowers them, or the survi-. vor of them, to sell and dispose of the trust estate or any part of it, a conveyance by one of the trustees, while the other is acting as such, does not convey the legal title. Learned v. Wilson, 40 Cal. 349. 30. Deed with assent of cestui que trust. Where the deed creating the trust empowers the trustees or the survivor of them, " with the approbation or at the request of " the cestui que trust " expressed in writing, to sell and dispose of the trust estate or any part of it," such approbation is manifested by join- ing in the execution and acknowledgment of a deed by which the trustee effects the sale and conveyance of the estate. Welton v. Palmer, 39 Cal. 456. 31. Effect of. A deed so executed and acknowledged vests in the grantee the entire estate in the lands therein described, as fully as it was held by the grantors under the trust deed. Id. 32. Consideration. Where the cestui que trust assented to the deed in compliance with the terms of the trust, she could not thereafter complain that there was no consid- eration, and her heirs have, in this respect, no greater rights than she possessed. Id. 33. Purchaser of trust property. A party who purchases trust property, with a knowledge of the trust, occupies the same po- sition with the original trustee. Price v. Reeves, 38 Cal. 457. 34. Purchaser at trustee sale. When property is conveyed to a trustee to rent and TURNPIKE ROADS.— VENDOR AND VENDEE. 373 sell, and apply the proceeds to the payment of a debt of the grantor, a bona fide purchaser at the trust sale acquires a good title, even if the trustee, before the sale, had received sufficient money from the rents to pay the trust debt. Thompson v. McKay, 41 Cal. 221. 35. One -who purchases land from another who acquired the title fraudulently, and there- by became a trustee, in order to protect him- self in his. purchase must have been ignorant of any of the facts constituting the fraud, not only at the time of his purchase, but when he paid the purchase money and obtained his deed. Scott v. XJmbarger, 41 Cal. 410. 36. Of property held in trust for charitable or religious purposes. A Court of equity has jurisdiction to decree a sale of property held in trust for charitable or reli- gious purposes when, in its opinion, the objects of the trust would be more effectually carried out by such sale. Alemany v. "Wensinger, 40 Cal. 288. 37. Bond of trustee. A decree of sale of property held in trust for religious or chari- table purposes should require from the trustee a bond, with sufficient security to be approved by the Court, for the proper application of the proceeds of the sale to the purposes of the trust, according to the directions of the decree, and reserving the authority of the Court upon proper showing to require additional security, or to appoint another trustee if circumstances make it necessary. Id. See Conveyance, 30 ; Joint Tenancy, 1 ; Writ of Assistance, 9, 10. VH. BBEACH OP TRUST. 38. Action for loss. In case the execu- tion of a valid conveyance cannot be decreed, the beneficiaries of the trust are entitled to re- cover its value from those by whose wrongful acts it was lost. Price v. Reeves, 38 Cal. 457. 39. Measure of damages. In such case the value of the property at the time of the commencement of the suit is the measure of Id. See Action, 29 ; Damages, 33. TURNPIKE ROADS. See Corporations, 19-22 ; Franchise, 4, 5. ULTRA VIRES. See Corporations, 27-33. UNDERTAKINGS. See Appeal, 71-74 ; Assignment, 10 ; Attach- ment, 15, 29-32 ; Damages, 32 ; Estoppel, 4 ; Pleading, 85, 89, 253. UNLAWFUL ENTRY. See Appeal, 245 ; Forcible Entry and De- tainer. UNLAWFUL DETAINER. See Appeal, 54 ; Forcible Entry and De- tainer. USE AND OCCUPATION. SeeAction, 36 ; Estoppel, 4. VACANCY IN OFFICE. See Office and Officer. VAN NESS ORDINANCE. 1 Land and Land Titles, 225-239. VARIANCE. See Appeal, 209 ; Nonsuit, 7 ; Pleading, 222- 229. VENDOR AND VENDEE. 1. Against whom it may be enforced. A vendor's lien for the unpaid purchase price of land may be enforced against the vendee and his grantees who have notice of the vend- or's equities. Pell v. McElroy, 36 Cal. 268. 2. Not transferable. The equitable lien held by the vendor of real estate after ab- solute conveyance thereof, is not subject to levy and sale on execution, nor is it the sub- 374 VICIOUS ANIMALS.— VERIFICATION. jeot of private transfer. Ross v. Heintzen, 36 Cal. 313. See Assignment, 11 ; Attachment, II, iz ; 3. Warranty. Where a tenant in pos- session by deed of bargain and sale conveys the premises occupied by him, for a valuable consideration, and his vendee is subsequently ejected by the landlord, in the absence of war- ranty or with only special warranty against the acts of the vendor, the vendee is not enti- tled to relief, either in law or equity, against his vendor. Hastings v. O'Donnell, 40 Cal. 148. 4. Statute of Limitations. The statute does not run. against a vendee in possession under an executory contract, so long as he re- mains in possession with the acquiescence of the vendor. Love v. "Watkins, 40 Cal. 547. 5. Rights of second vendee. It is a general rule, applicable alike to conditional and absolute sales, that a second vendee is not entitled to stand in any better situation than his vendor in regard to the title of personal property, other than negotiable instruments, and whatever comes under the general denomi- nation of currency. Whether a further excep- tion to the- rule exists in favor of bona fide purchasers from the purchaser at a conditional sale, is not decided. Putnam v. Lamphier, 36 Gal. 151. See Contracts, 56-74, 90 ; Ejectment, 82, 83 ; Estoppel, 43-49 ; Land and Land Titles, 312 ; Landlord and Tenant, 5 ; Parties, 9 ; Sale and Delivery, 15 ; Specific Performance, 31-33, 35 ; Stoppage in Transitu, 2. VICIOUS ANIMALS. 1. Vicious dog. The owner of a ferocious dog, knowing the vicious propensities of the animal, keeps it at his own risk, and is respon- sible for any injury inflicted by it upon a per- son who is free from fault. Laverone v. Man- gianti, 41 Cal. 138. , See Action, 24, 25, 26 ; Damages ; Employ- er and Employee, 5. VERDICT. 1. What verdict for plaintiff finds. Where the complaint alleges a trespass on a dam site and dam in the process of erection, and on the site for a canal and the canal there- on surveyed and commenced, that the defend- ant, with force and arms, expelled the plain- tiff from said property, and has since kept him thus expelled, and demands a judgment for damages only, a verdict for the plaintiff for damages does not necessarily find all the facts averred in the complaint. Such verdict does not necessarily find a continual withholding of possession, or other facts entitling plaintiff to an injunction. N. C. & S. C. Co. v. Kidd, 37 Cal. 282. 2. Stipulation as to form of. Where the form of the verdict agreed upon in Open Court, by the respective counsel, was a general verdict as to the whole property, after the jury has found such a verdict for the defendant, it is too late for the plaintiff to insist upon a ver- dict in a different form, or to assert a right to a portion of the property upon principles not applicable alike to all the property. Sexey v. Adkispn, 40 Cal. 408. 3. Uncertainty. The verdict of a jury which finds the plaintiff to be entitled to a cer- tain amount of money, is not void for uncer- tainty : it is equivalent to saying that they find the issues in favor of the plaintiff and as- sess his damages at that sum. Mendelsohn v. Anaheim Lighter Co., 40 Cal. 657. 4. Waiver of defects in. If a verdict be so defective that it cannot serve as the basis of a judgment, the waiver of the defect, by the other party, and consent that a certain con- struction thereof should be taken as the ver- dict, is as irregular and ineffectual as the ver- dict itself. Campbell v. Jones, 38 Cal. 507. 5. Waiver of informality in. If a ver- dict be fatally informal, but before the jury are discharged the party against whom it was given agreed to such an interpretation thereof as would sustain a judgment, such agreement should be held to cure the defects in the ver- dict. Campbell v. Jones, 38 Cal. 507. 6. Verdict inconsistent •with plead- ings. The jury have no right to find a verdict in favor of a party which is contrary to or incon- sistent with the pleadings. Tevis v. Hicks, 41 Cal. 123. 7. Where a case is tried by a jury, if the Judge is not satisfied with the verdict, and is convinced that it is clearly against the weight of the evidence, it is his duty to set it aside, even though there may have been some con- flict in the testimony. Dickey v. Davis, 39 Cal. 565. See Appeal, 293, 297 ; Claim and Delivery, 13 ; Criminal Law and Practice, 313-322 ; Eorcible Entry and Detainer, 83 ; Malicious Prosecution, 14 ; New Trial ; Reference, 4, 5. VERD7ICATION. See Pleading, 124; Supervisors, 17. VESSELS.— WARRANTY. 375 VESSELS. 1. Liability of charterer. If a vessel is chartered in the usual way, either for a par- ticular voyage or for a period of time, the char- terer having authority to appoint the master, and undertaking to victual, man, and navi- gate her at his own expense, he will be deem- ed the owner pro hac vice, and the general owner will not be personally liable on con- tracts of affreightment or for supplies. Oak- land C. M. Co. v. Jennings, 46 Cal. 175. 2. Liability of owner. If the owner charters the hold of his vessel, l)ut appoints her master and sails her at his own expense, he will be liable on contracts of affreightment made by the master with shippers who have no notice of the charter party. Id. 3. Liability of owner for contracts of master. If the registered owner of a vessel appoints her master, with an agreement that the master is to have the entire control of the vessel, and victual and man her, and make contracts of affreightment, and divide the gross earnings with the owner, the owner is liable on contracts of affreightment made by the master with shippers who have no notice of the arrangement between the master and owner. Id.- See Common Carrier, 6 ; Contract, 75, 76, 105, 106, 117. WAGERS. 1. 'Wagers. At common law, wagers made in respect to matters not affecting the feelings, interest, or character of third persons, or the public peace or good morals, or public policy, are legal contracts, which may be enforced by- action. Johnston v. Russell, 37 Cal. 670. 2. Wagers upon elections. Wagers upon the result of elections are against public policy, and are therefore void ; and hence money put up in the hands of a stakeholder may be. recov- ered, if the wager be repudiated and a return of the money be demanded at any time before the election has taken place, and the result has become generally known, but not thereafter. Id. 3. J made a wager with IT that Seymour would receive a majority of the votes cast in this State at the presidential election in 1868, and F made a wager with J that Grant would receive a majority of said votes. The money was put in the hands of R as stakeholder. After the election had taken place and the re- sult had become known, J, having lost his wager, notified R that he repudiated the wager, and demanded his money, but R notwithstand- ing paid the money to F, according to the terms of the wager. In an action by J against R to recover his stake, it was held that a re- covery could not be had. Id. 4. Bets on elections. Wagers upon the result of public elections are illegal and void, upon grounds of public policy. Hill v. Kidd, 43 Cal. 615. 5. Action on contract of wager. An action to obtain affirmative relief, upon a con- tract of wager made upon the result of a pub- lic election, cannot be maintained. Id. WAIVER. 1. Waiver of statutory right. A party may waive a right created by the statute for his benefit. People v. Robinson, 46 Cal. 94. See Appeal, 132, 139, 142 ; Contract, 70, 92; Covenants, 6-10 ; Criminal Law and Practice, 48, 81, 247, 335, 379 ; Ejectment, 81 ; Error, 9 ; Estoppel, 12 ; Land and Land Titles, 131 ; Limitations, 6; Negotiable Instruments, 46, 57; New Trial, 77, 86, 89; Nonsuit, 10 ; Place of Trial, 3 ; Pleadings, 186, 245 ; Probate Law and Practice, 44 ; Revenue Stamps, 2 ; Roads and Highways, 8; Sale and Delivery, 14; Summons, 1-4; Tort, 1; Trial, 15, 20, 35; Verdict, 4, 5. WARRANTY. 1. Express warranty of title to chattels. There is no breach of an express warranty of title to chattels sold until the vendee's posses- sion is disturbed by the true owner. Gross v. Kierski, 41 Cal. 11 1. 2. Implied, warranty. When goods are in possession of a vendor, who, dealing with them as owner, sells and delivers them to the purchaser, nothing being said as to the title, the law implies that he warrants the title to the property sold. Id. 3. Of goods sold. No particular words are necessary to constitute a warranty as to the character,condition or quality of goods sold, but if the vendor, at the time of sale, affirms a fact as to the essential qualities of his goods, and the purchaser buys on the faith of such affirmation, it is an express warranty. Polhe- mus v. Herman, 45 Cal. 573. 4. In executory contract. There may be an express or implied warranty when the contract for the sale of goods is executory, as well as when it is executed. Id. 5. Damages for breach of. If the ven- dee accepts the goods sold when delivered by the vendor, and renders the vendor an account, it dftes not prevent the vendee from recovering damages for a breach of » warranty made by 376 WASTE.— WATER AND WATER RIGHTS. the vendor as to their quality, if the vendee thus accepted and rendered the account in ignorance of the true condition of the goods. Id. 6. Remedy of vendee for breach of. If the vendor warrants the goods sold, and the vendee discovers after they are delivered that there has been a breach of the warranty, he is not compelled to return the goods, although he may do so and rescind the contract, but he is at liberty to retain them and bring an ac- tion for the breach of the warranty, or he may plead the breach in reduction of damages in an action brought by the vendor for the pur- chase money. Id. See Limitations, 44; Sale and Delivery, 6-8 ; Vendor and Vendee, 3. ■WASTE. See Equity, 34-35. WATER AND "WATER RIGHTS. I. TrTLE TO WATER. H. Title by appropriation. m. Water companies. I. TITLE TO WATER. 1. Law of underground currents. Where underground currents of water, flowing in de- fined channels, are shown to exist, the rules of law which govern the use of similar streams flowing upon the surface of the earth are ap- plicable to them. Hanson v. McCue, 42 Cal. 3°3- 2. Springs presumed to be supplied by percolation. In a controversy respecting the use of the waters of a spring, where there was nothing to show that it was supplied by any defined flowjng stream : held, that it must be presumed to be formed by the ordinary percola- tions of water in the soil. Id. 3. Percolating -waters belong to own- er of soil. Waters filtrating or percolating in the soil belong to the owner of the freehold — like the rocks and minerals found there ; and he may use them as he chooses, free from any usufructuary rights of others. Id. 4. Rights of owners of springs. Where the owner of a spring of living water, sup- plied by percolation only, and having no nat- ural channel or outlet, constructed an artificial channel, by means of which he conducted the water over certain intermediate vacant lands to his residence, and a subsequent occupant of a portion of the intermediate land enjoyed the use of water flowing through the channel for fifteen years : held, that such occupant ac- quired no rights as against the owner of the spring, and could not prevent him from tap- ping such spring and using all its waters for his own profit. Id. See Easement, 7, 8 ; Prescription, 1-6. I. TITLE BY APPROPRIATION. 5. Appropriation of water. If the first appropriator of water takes only a part of the quantity flowing in a stream, another may afterward appropriate the remainder, and if the first appropriates the water only during certain days in the week, another may after- ward take during the remaining days of the week. Smith v. O'Hara, 43 Cal. 371. 6. Prior appropriation of water. One who enters into the possession of a ditch used for appropriating water, under a verbal sale made to him of the same, does not succeed to the rights of the seller, so as to claim the ben- efit of the seller's prior appropriation of the water flowing in the same, but must date his appropriation from the time he enters into pos- session. Id. 7. While the dam and canal of the party claiming the water are in process of construc- tion, but are not yet in a condition to appro- priate the water, the use of the water by other parties is no injury, and such use affords no ground for relief, legal or equitable. N. C. & S. 0. Co. v. Kidd, 37 Cal. 282. 8. Remedy of party claiming water. If a party claiming water is constructing his dam and canal, but has not yet diverted the water, an action for damages and to recover the possession of the dam site and dam, and of the canal site and canal, will afford an adequate remedy for the trespass upon the ouster from their possession. Id. See Action, 31, 32 ; Evidence, 26, 28, 29, 73, 152; Injunction, 5, 10-12. 9. Judgment consistent with verdict. H constructed a water ditch, by which he ap- propriated three hundred inches of water from a running stream, but not all of the stream. B appropriated the remainder of the water. Subsequently H made - new ditch, appropri- ating water from the same stream. In a suit to enjoin B from interfering with H in the use of the water, H obtained a verdict that the second ditch did not diminish the quantity , , appropriated by B, and judgment was rendered enjoining B from disturbing H in the use of three hundred inches of water. Held, that the judgment was consistent with the verdict and with justice. Higgins v. Barker, 42 Cal. 233. See Easement, 7-9 ; Mines and Mining, 14, 27. 31. 32- WATER AND WATER RIGHTS.— WILLS. 377 in. WATER COMPANIES. 10. Ditch companies for sale of water. Unincorporated ditch companies, organized for the sale of water to miners and others, the stock in which is bought and sold at the pleas- ure of the owners, without consulting the co-owners, differ from ordinary commercial partnerships. Some of the incidents of a partnership pertain to such companies, and some of mere tenancies in common likewise pertain to them. McConnell v. Denver, 35 Cal. 365. 11. Power of superintendent. The superintendent or managing agent of such company has no authority to bind the company by a promissory note, given for materials used by the company, unless the authority to give such note is expressjy conferred upon him by the company, or such authority may be im- plied from his acts recognized by the company', with full knowledge of the acts at the time of the recognition. McConnell v. Denver, 35 CaL 365. 12. Power of member. A member of such a company has no general authority by virtue of such membership to bind 'the com- pany" by his contracts. McConnell v. Denver, 35 Cal. 365. 13. Note of ditch company. If an un- incorporated ditch company duly authorizes its superintendent to give the company note for materials before then purchased by the com- pany, all the members are bound by the note, ' whether they were such members when the materials were purchased or not. McConnell v. Denver, 35 Cal. 365. • 14. Liability of owner. Where the bed of a water course, extending through the farming lands of R, is used by K as a channel to convey the waters discharged into it from his ditoh, of which it forms a connecting link, such water course will be considered as part of K's ditch ; and where It's lands were injured by a deposit of sediment thereon, resulting from an overflow of the watercourse, which was caused either by the failure of K to have it properly cleared of impediments, or by turn- ing into it a quantity of water which, added to the natural waters flowing therein, exceeded its capacity to carry the same, K is liable in damages to R for such injury. Richardson v. Kier, 37 Cal. 263. 15. As to the liability of ditch owners for damages done by water discharged or sold from ditches, Richardson v. Kier, 34 Cal. 63, is affirmed. 16. Whether ditch property in the mineral regions of this State, although conceded to be real estate, is to be regarded by Courts of equity with the same measure of favor which is bestowed by them upon land which is held and cherished by the owner for itself, and not put to use for an ulterior object, is doubted, but not finally decided. Clark v. Willett, 35 Cal. 534- 17. Power of Court of equity. If a plain- tiff owns a ditch and right of way for same, by priority of location, a Court of equity has no power by its judgment to allow the same to be washed away for mining purposes, provided an aqueduct of sufficient capacity to carry the water is previously built in its place. Gregory v. Nelson, 41 Cal. 278. 18. A Court of equity should not license a trespass upon ditch property, nor compel the owner to exchange the same for another means of conveyance for the water flowing therein. Id. 19. Sale of a ditch. The sale of a ditch used for appropriating water cannot be proved by parol evidence. Smith v. O'Hara, 43 Cal. 371- See Eminent Domain, 15-20; Mines and Mining, 33; Negligence, 8-10 ; Nuisance, 1,2. WHARF. See Contract, 22 ; Ferries and Ferriage, 3 ; Injunction, 3, 4. ■WILLS. 1. Parol evidence to explain. Under the provisions of Section 17 of the "Act con- cerning Wills," parol evidence is not admis- sible to show that a testator, who by his will devised his whole estate to his wife without mentioning his children therein, intentionally omitted to make any provision for his children ; but' to render an exclusion of the latter effec- tual, the evidence that the testator intended to do so by the will itself. Estate of G-arraud, 35 Cal. 336., 2. Construction of. If a word in a will is repugnant to the clear intention manifested in other parts of the instrument, it may be re- garded as surplusage, or restricted in its ap- plication. Estate of Wood, 36 Cal. 75. 3. "What is. The following instrument : " I wish five thousand dollars to go to John C. Cole, in the event of my dying intestate, and the balance of my property to go to Robert Beatie, to be disposed of by him as his judgment may dictate," if properly executed and wit- nessed, is testamentary in its character, and is a will. Estate of Wood, 36 Cal. 75. 4. Support of minor child. The testa- tor charged the bequest of his estate with the "support and education " of a minor illegiti- mate child, without naming any amount therefor. It was held, that, in determining 378 WILLS.— WITNESS. what should be the style and manner of educa- tion and support, the conclusion must be ar- rived at by reference to the will, and on a fair and just interpretation of its provisions, con- sidering all the circumstances which sur- rounded the testator, and the motives which probably actuated him. William v. McDou- gall, 39 Cal. 80. 5. Construction of will a question of law. The construction of a devise, like that of a contract in writing, is always a matter of law, and is, therefore, never to be submitted to a jury. Brack v. Tucker, 42 Cal. 346. 6. Devise construed. Where a devisor, having but one flour mill, made a devise in these words: " To my daughter, Lolita, the flour mill with the land appertaining thereto — a half league, more or less": held, that the language was sufficiently accurate in expres- sion and certain in its application to the sub- ject of the devise. Brack v. Tucker, 42 Cal. 34°- 7. Devises affecting wife's half of com- mon property. A purpose by a husband to attempt the disposition by will of the wife's half of the common property is not to be read- ily inferred, and especially not where the words employed may have their fair and natu- ral import by applying them only to that moiety of which he has the testamentary dis- position. Estate of Silvey, 42 Cal. 210. 8. Widow's rights. Where a husband, having only common property, left a will de- vising all his estate to his wife for life, and after her death to be equally divided between the children : held, that she was entitled to one half of the property absolutely in her own right, and to a life estate in the other half under the will. Id. 9. Omission to mention children of deceased child. Where a testator, in dis- posing of his property, used the expression, "to my children," and proceeded to name them, and the portion devised to each, but omitted any special mention of a devise to the children of a deceased daughter : held, that the use of the word " children " did not indi- cate a deliberate purpose to exclude the child- ren of his deceased daughter, and that, under Section 1 7 of the Statute of Wills, they were entitled to a full share of the estate, as if the deceased had 'died intestate. Estate of Utz, 43 Cal. 200. 10. Omission to provide for children. If the testator, in his will, devise his property to his grandson, the son of his deceased son, and the testator has children living, it does not show as matter of construction of the will that his children were brought to his recollection, and that his omission to provide for them in his will was intentional. Bush v. Lindsey, 44 Cal. 121. 11. Devise "to my daughter and to her children " gives estate in common. Where a devise was made, "to my youngest daughter, Margaret Utz, and to her children" : held, that Margaret's children became devisees as well as herself, and that the devise passed an estate in common to all. Estate of Utz, 43 Cal. 201. 12. Rule in Shelly 's case not applica- ble to devise to a mother and her children. The " rule in Shelly' s Case," when applied to wills, is confined to cases in which, after a free- hold is devised to one, the remainder is to go in terms to the "heirs " of the first taker, and does not apply to a devise to a mother and to her ' ' children . " Id. 13. Devise on condition. Where » devise was made " to Margaret Utz and to her children," on condition that Margaret would take care of the testator during his lifetime, which she did : held, that there was nothing in the condition .to show an intention on the part of the testator that Margaret alone should have the benefit of the devise. Id. 14. Devise. — What it includes. A de- vise in a will made to executors in trust for heirs, of all the testator's property, real and personal, wheresoever situated, includes the homestead of the testator and his family. Etcheborneu. Auzerais, 45 Cal. 121. 15. Construction of -will. A will which declares that the testator's lands are for the benefit and property of the testator's daughter, Dolores, and of the sons of a deceased son, * Domingo, and then declares, that whereas the widow of a deceased son, Jose Maria, has a house on a portion of the land called " Chino," that it is the will of the testator that she be permitted to remain in permanency in her house, with liberty to raise her cattle and cul- tivate it, passes the fee to Dolores and the sons of Domingo, subject to an estate for life in the widow of Jose" Maria, to the part called " Chino." Bernal v. Wade, 46 Cal. 663. See Evidence, 78, 79; Probate Law and Practice ; Trial, 42. WITNESS. 1. Testimony of party when other party represents one deceased. The stat- ute prohibiting a party from being a witness "where the adverse party, or the party for whose immediate benefit the action is prose- cuted, or defended, is the representative of a deceased person," etc., extends to all cases, even where there was no privity or connection between him and the plaintiff, or those through whom he claims. Satterlee v. Bliss, 36 Cal. 489. 2. Power of State Legislature. The State Legislature has the power to declare who shall be competent to testify, and to regulate the production of evidence in the Courts of the State. People v. Brady, 40 Cal. 198. WRIT OF ASSISTANCE. 379 3. Restoration to citizenship not a par- don. An executive act restoring a convicted criminal to the rights of citizenship is not a pardon— does not remove the legal infamy. " So long as the judgment of guilt remains, the disability to testify necessarily continues. Peo- ple v. Bowen, 43 Cal. 440. 4. Evidence of a party to an action. Before a party in interest can be prevented from testifying to matters which occurred prior to the death of another, on the ground that the opposite party claims under or is the repre- sentative of such deceased person, it must be shown clearly that the opposite party occupies such position. Marquart v. Bradford, 43 Cal. 526. 9. Testimony of Mongolian or Chinese. The testimony of a Chinese or Mongolian wit- ness is not admissible under existing law against a white person. After the 1st of Jan- uary, 1873, when the Codes take effect, no witness will be excluded in any case on account of nationality or color. People v. McG-uire, 45 Cal. 56. 6. Failure to obey subpoena. If a sub- poena issued by a Notary for a witness to ap- pear before him and give his deposition fails to specify the precise locality where the Notary will take the deposition, the witness will not be excused for nonatfcendance, if he is not misled thereby. Keisker v. Ayres, 46 Cal. 82. 7. Expense of witness on behalf of people. The District Court has jurisdiction when a witness is poor, or has come from a place out of the county, and has attended as a witness on behalf of the people, to make an order directing the County Treasurer to pay the witness a sum to be named in the order, for his expenses. Sargent v. Cavis, 36 Cal. 552. 8. If the venue of such action is changed, the order should direct the sum allowed to be paid by the Treasurer of the county where the indictment was found. Id. 9. Order of Court to pay witness. The question whether an order made by the Court for a County Treasurer to pay the witness his expenses should be presented to the Board of Supervisors, to have the sum therein allow- ed audited by them, before the Treasurer is compelled to pay the same, not decided. Id. See Action, 12; Civil Rights Bill, 3,4; Constitutional Law, 11-14 ; Costs, 8 ; Criminal Law and Practice, 162J, 242, 243 ; Trial, 79. WRIT OP ASSISTANCE. 1. Second writ. If the return to the first writ does not clearly declare that it has been fully exeedted, and it is made to appear by affidavits that it has not been , it is compe- tent for the Court to issue another writ. Te- vis . Chely, 43 Cal. 304. Brummagim v. Tallant 29 Cal. 503. Cited, Negotiable Instruments, certificate of deposit a promissory note, Poorman v. Mills, 35 Cal. 120. Brusie v. Griffith 34 Cal. 302. Cited, Execution, exemption, Act con- strued, Robert t>. Adams, 38 Cal. 384'. Bryant v. Mead 1 Cal. 441. Distinguished, Money, staked on wagers not recoverable, Johnston v. Russell, 37 Cal. 675. Buckingham v. Waters 14 Cal. 146. Cited, Pleading, complaint, insufficient statement of several causes of action, Wat- son v. S. F. & H. B. R. R. Co., 41 Cal. 19- Buckman v. Whitney . . .24 Cal. 267 ; same case, 28 Cal. 555. Approved, Unlawful Entry defined, Shel- by v. Houston, 38 Cal. 422 ; cited, Appeal, record not amendable in Supreme Court, Satterlee v. Bliss, 36 Cal. 522. Bucknall v. Story 36 Cal. 67. Cited, Tax Sale, when void, Low v. Lewis, 46 Cal. 552 ; Bucknall v. Story, Id., 600. Bucknall v. Story 46 Cal. 589. Cited, Involuntary Payment, what consti- tutes coercion, Williams v. Corcoran, 46 Cal. 556. Burk v. Carruthers 31 Cal. 467. Approved, Interest, on judgment, Dough- erty v. Miller, 38 Cal. 549. Burnett v. Mayor of Sacramento, 12 Cal. 76. Approved, Street Assessments, what prop- erty assessable, Chambers v. Satterlee, 40 Cal. 514. Burnett v. Pacheco 27 Cal. 408. Cited, New Trial, statement on, Beans v'. Emanuelli, 36 Cal. 120. Burnett v. Steams 33 Cal. 468. Cited, Findings, to be confined to issues, Gregory v. Nelson, 41 Cal. 284. Burr v. Hunt 18 Cal. 303. Cited, Cloud on Title, void proceedings create no cloud, as applied to tax deeds, Bucknall v. Story, 36 Cal. 71. Butterfield v. C. P. R. R. Co. . .37 CaL 381. Cited, New Trial, grounds of motion must be specified, People v. C. P. R. R. Co., 43 Cal. 424. Cadiz v. Majors 33 Cal. 288. Cited, Deed, quit-claim, what passes by, McDonald v. Edmonds, 44 Cal. 330 ; Eject- ment, equitable defense to be specially pleaded, McCauley v. Fulton, 44 Cal. 362. Cahoon v. Marshall 25 Cal. 197. Cited, Evidence, declarations of vendor made before sale, Jones v. Morse, 36 Cal. 207 ; made after sale, Spanagel v. Dellih- ger, 38 Cal. 282, 284 ; Instructions, jury the exclusive judges of the facts, Bradley v. Lee, 38 Cal. 370. Calderwood v. Brooks 28 Cal. 151. Cited, Ejectment, defense by landlord, who to conduct action, Valentine v. Maho- ney, 37 Cal. 394 ; Summons, presumption as to service of, Kingu. Blood, 41 Cal. 317. Calderwood v. Pyser 31 Cal. 333. Cited, Ejectment, parties not affected by judgment, Ford v. Doyle, 37 : Cal. 348 ; New Trial, remedy exclusive for review of former action, Prince v. Lynch, 38 Cal. 531 ; alteration of judgment on review, Sichel v. Carrillo, 42 Cal. 507 ; referred to, on second appeal, Calderwood v. Peyser, 42 Cal. 112. Calderwood v. Tevis 23 Cal. 335. Commenced on, Homestead, title not nec- essary, Brooks v. Hyde, 37 Cal. 373. Call v. Hastings 3 Cal. 179. Cited, Conveyances, prior deed must be first recorded, Anderson v. Fisk, 36 Cal. 634- Camden v. Mullen 29 Cal. 564. Cited, Pleading, effect of insufficient de- nials, Doll v. Good, 38 Cal. 290. Caney v. Silverthorne 9 Cal. 67. Cited, New Trial, failure to give notice a waiver of motion, Campbell v. Jones, 41 Cal. 518. 392 TABLE OF OASES. Cannon v. Stookmon 3*6 Cal. 535. Cited, Statute of Limitations, effect on title, San Francisco v. Fulde, 37 Cal. 352 ; approved, right of party in possession to purchase outstanding title, Lovell v. Frost, 44 Cal. 474. Cannon v. Union L. Co 38 Cal. 672. Approved, modification of doctrine as to constructive possession, Wolfskill v. Mal- ajowich, 39 Cal. 280. Caperton v. Schmidt 26 Cal. 479. Approved, Estoppel, former recovery when a bar, Jackson v. Lodge, 36 Cal. 38 ; Sat- ' terlee v. Bliss, Id., 514. Carder v. Baxter 28 Cal. 99. Cited, Patent, not subject to collateral at- tack, Durfee v. Plaisted, 38 Cal. 83 ; New Trial, laches, practice, Chabot v. Tucker, 39 Cal. 435. Carey v. P. & C. Petroleum Co., 33 Cal. 694. Cited, Account, stated, effect of on original indebtedness, Taylor v. Castle, 42 Cal. 372- Cariaga v. Dryden 29 Cal. 307. Cited, Mandamus, when will not lie, to correct error of Court, Lewis v. Barclay, 35 Cal. 214 ; Beguhl v. Swan, 39 Cal. 411. Carleton v. Townsend 28 Cal. 219. Cited, New Trial, what evidence to be in statement, Beans v. Emanuelli, 36 Cal. 120 ; particulars to be alleged in statement, Spanagel-u. Dellinger, 38 Cal. 280 ; Pueblo Lands, title of San Francisco, San Fran- cisco v. Canavan, 42 Cal. 557. Carpentier v. Atherton 25 Cal. 564. Cited, Judgment, for damages in currency value, Carpentier v. Small, 35 Cal. 357. Carpentier v. Gardiner 29 Cal. 160. Cited, Appeal, new findings cannot be substituted in Supreme Court, Carpentier v. Small, 35 Cal. 359 ; New Trial, exclu- sive remedy for correction of errors of fact, Prince v. Lynch, 38 Cal. 531 ; Power, of Court to vacate findings and render dif- ferent judgment, Sichelu. Carrillo, 42 Cal. 507 ; Ejectment, sufficient proof of ouster, Salmon v. Wilson, 41 Cal. 610. Carpentier v. Mendenhall 28 Cal. 484. Approved, Ejectment, effect of purchase pendente lite, Carpentier v. Small, 35 Cal. 35<5- Carpentier v. Oakland 30 Cal. 439. Approved, Jurisdiction, presumptions, as to records of Superior Courts, Drake v. Duvenick, 45 Cal. 464; Judgments, not subject to impeachment, on collateral attack, Hobbs v. Duff, 43 Cal. 490 ; cited, Pleading, equitable rights, Jackson v. Lodge, 36 Cal. 55. Carpentier v. Small 35 Cal. 346. Commented on, Pleadings, admissions in, Mecham v. McKay, 37 Cal. 165; cited, Variance, Waugenheim v. Graham, 39 Cal. 175; Surprise, when findings operate as, Hartson v. Hardin, 40 Cal. 267 ; Ap- peal, findings to support judgment pre- sumed, Shelby v. Houston, 38 Cal. 421. Carpentier v. Webster 27 Cal. 524. Commented on, Tenants in Common, right of entry upon lands, Tevis v. Hicks, 38 Cal. 239. Carpentier v. Williamson 25 Cal. 154. Cited, Appeal, injury presumed from error, Rice ■». Heath, 39 Cal. 612 ; Foreclosure Sale, legal title not divested by, Daven- port v. Turpin, 43 Cal. 601 ; Ejectment, title under quit-claim deed sufficient, Lawrence v. Ballou, 37 Cal. 521. Cary v. Tice ..6 Cal. 625. Approved, Homestead, actual occupancy necessary, Gambette v. Brock, 41 Cal. 83. Case v. Codding 38 Cal. 191. Cited, Resulting Trust, when it arises how proved, P»oberts v. Ware, 40 Cal. 637. Casgrave v. Howland. .,....-.. .24 Cal. 457. Cited, Appeal, when statement on new trial not considered, Thompson v. Connol- ly, 43-Cal. 638. Castro v. Bailey Cal. Sup. Ct., Oct. T. 1869, (not reported). Cited, Easement, and servitude on lands, Ogburn v. Connor, 46 Cal. 352. Castro v. Richardson 25 Cal. 49. Cited, Jurisdiction, power of Court to cor- rect clerical errors, Estate of Schroeder, 46 Cal. 316. Castro v. Tennent 44 Cal. 253. Referred to, Rogers v. Tennant, 45 Cal. 186. Castro v. Wetmore 16 Cal. 379. Cited, Pleading, insufficient denials, Doll v. Good, 38 Cal. 290. Caulfield v. Sanders 17 Cal. 569. • Cited, Pleading, defense of, Statute of Limitations, Brennan v. Ford, 46 Cal. 12 ; distinguished, Action, commencement of defined, Adams v. Patterson, 35 Cal. 126. TABLE OP OASES. 393 Caulfield v. Stevens 28 Cal. 1 18. Approved, Jurisdiction, of County Court in forcible entry and detainer, Mecham v. : McKay, 37 Cal. 162 ; Johnson v. Chely, 43 Cal. 304 ; Forcible Entry and Detainer, construction of term, Norblett v. Farwell, 38 Cal. 157. C. P. R. R. Co. v. Pearson 35 Cal. 247. Cited, Evidence, opinion of witnesses, Clark v. Willett, 35 Cal. 544 ; Evidence, in chief, how confined, Martinez v. Planel, 36 Cal. 580 ; approved, New Trial, pro- ceedings not applicable to " special cases, " W. P. E,. B,. Co. v. Reed, 35 Cal. 622 ; cited, Appeal, in special cases, Appeal of S. 0. Houghton, 42 Cal. 68. C. P. R. R. Co. v. Placer Co... .43 Cal. 365. Cited, Certiorari, when it lies, Andrews v. Pratt, 44 Cal. 318. Chambers v. Satterlee 40 Cal. 497. Cited, Street Assessments, Himmelmannt). Byrne, 40 Cal. 531 ; Question, publica- tion of order by board, Dyer u. North, 44 Cal. 160. Chapin v. Thompson 20 Cal. 681 . Distinguished, Judgment, by confession, Lee v. Eigg, 37 Cal. 337. Chipman v. Bowman 14 Cal. 157. Cited, Judgment, remedy when void, Murdock v. DeVries, 37 Cal. 529 ; Superior Court, character of jurisdiction, McCau- ley v. Eulton, 44 Cal. 360. Chipman v. Emeric 3 Cal. 273. Cited,»Landlord and Tenant,demand neces- sary to work forfeiture of lease, Gage v. Bates, 40 Cal. 385. Chipman v. Hibbard 8 Cal. 268. Cited, Injunction, judgment of co-ordinate Court cannot be enjoined, exoept, Crowley u. ( Davis, 37 Cal. 269 ; DeGodey v. Godey, 39 Cal. 162. Chipman v. Morrill 20 Cal. 130. Cited, Sureties, right to contribution, Sichel v. Carrillo, 42 Cal. 506. Christy v. Dana, 34 Cal. 548 ; same case, 42 Cal. 174. Cited, Mortgage, enforcement of, after death of mortgagor, when claim need but be presented, Sichel v. Carrillo, 42 Cal. 505 ; Schadt v. Heppe, 45 Cal. 437 ; Ad- ministrator, when not a necessary party, Schadt v. Heppe, 45 Cal. 437 ; distinguish- ed, Pitte v. Shipley, 46 Cal. 159; Harp v. Calahan, 46 Cal. 230. Clark v Baker, 14 Cal. 612. Cited, Mortgage, a mere security, Christy v. Dana, 42" Cal. 179 ; Conveyance, with- out warranty does not pass after-acquired title, Montgomery v. Whiting, 40 Cal. 299. „ Clark v. Look-wood 21 Cal. 220. Cited, Mexican Grant, legal title vests in confirmee and inures to benefit of his grantees, Schmitt v. Giovanari, 43 Cal. 622 ; Hartley v. Brown, 46 Cal. 204 ; Judic- ial Sale, title under Sheriff's deed on what depends, Moore v. Martin, 38 Cal. 438 ; Blood v. Light, 38 Cal. 654. Clark v. MoElvy 11 Cal. 161. ' Cited, Appeal, reversal for contradictory instructions, Brown v. McAllister, 39 Cal. 577- Clark v. Reese ' 35 Cal. 89. Explained, Witness, privilege of party as, People v. Reinhart, 39 Cal. 449 ; distin- guished, Powers v. Wheatley, 45 Cal. 115. Clark v. Troy 20 Cal. 219. Cited, Conveyances, prior deed to be first recorded, Anderson v. Eisk, 36 Cal. 634, 636 ; Graff v. Middleton, 43 Cal. 343 ; Val- uable Consideration, what may be, Frey v. Clifford, 44 Cal. 341. Clark v. Willett 35 Cal. 534. Cited, Evidence, to be confined to issues, People v. Taylor, 36 Cal. 265 ; Martinez v. Planel, 36 Cal. 580 ; approved, attorney's license as prima facie evidence, People v. Mariposa Co., 39 Cal. 684. , Clarke v. Perry 5 Cal. 58^ Commented on, Probate, accounting by ad- ministrators, Walls •u.Walker, 37 Cal. 426. Cloud v. El Dorado Co 12 Cal. 128. Cited, Judicial Sale, title under Sheriff's deed, on what depends, Moore v. Martin, 38 Cal. 438 ; Blood v. Light, 38 Cal. 654 ; Judgment, by confession not subject to col- lateral attack, Lee v. Eigg, 37 Cal. 336. Coghill v. Marks 29 Cal. 673. Cited, New trial, discretion of Court in granting or refusing, Borkheim v. F. E. Ins. Co,. 38 Cal. 506. Cogswell v. Bull 39 Cal. 390. Distinguished, Corporation, pleading in action by stockholders against trustees, Parrott v. Byers, 40 Cal. 622. Cohen v. Barrett 5 Cal. 196. Cited, Courts of Justice, power of, when 394 TABLE OP CASES. jurisdiction attaches, Sanborn v. His Cred- itors, 37 Gal. 613. Cohen, Ex parte 6 Cal. 318. Cited, Contempt of Court, when party guilty of, Gallandu. Galland, 44 Cal. 478. Conn v. Mulford 15 Cal. 50. Approved, Evidence, statements by vendor after sale not admissible, Jones v. Morse, 36 Cal. 207. Cole v. Swanston 1 Cal. 51. Cited, Pleading, special damages must be specially pleaded, L. T. Co. v. S. & W. R. Co., 41 Cal. 565. Coleman v. Woodworth 28 Cal. 567. Cited, Pleading, objection of nonpresenta- tion of claim must be taken in Court below, Bank of Stockton v. Howland, 42 Cal. 134. Coles v. Soulsby 21 Cal. 47. Approved, Evidence, parol to explain con- sideration in conveyance, Rhine v. Ellen, 36 Cal. 369, 370. Comerford v. Dupuy 17 Cal. 308. Cited, Trespass, injuries by cattle breaking close, statutory remedy exclusive, Logan v. Gedney, 38 Cal. 581. Comstock v. Clemens 19 Cal. 77. Cited, Jurisdiction, power of Court to con- trol its judgment, Ketchum v. Crippen, 37 Cal. 228. Conant v. Conant 10 Cal. 249. Commented on, Appeal, in special cases, Appeal of S. O. Houghton, 42 Cal. 64 ; ap- proved, in dissenting opinion of Rhodes, C. J., Id., 68. Comff v. Hastings 36 Cal. 292. Approved, Street Assessment, personal judgment cannot be rendered, Gaffhey v. Gough, 36 Cal. 105. Contra Costa C. M. R. R. Co. v. Moss, 23 Cal. 323. Cited, Eminent Domain, judicial powers in condemnation for railroad purposes, S. E. & A. W. Co. v. A. W. Co., 36 Cal. 645 ; Appeal, jurisdiction in special cases, dis- senting opinion of Rhodes, C. J., Appeal of S. O. Houghton, 42 Cal. 68. Cook v. Frink 44 Cal. 331. Cited, Conveyance, under Mexican law, Hall v. Toell, 45 Cal. 587. Cooper v. Pena 21 Cal. 403. Cited, Specific Performance, when equity will not enforce contract for sale of lands, Hall v. Center, 40 Cal. 68; of contract signed by vendor alone, Vassault v. Ed- wards, 43 Cal. 465 ; disaproved, that con- tract must be mutual, Id. , 466. Coppinger v. Rice 33 Cal. 408. Cited, Tax Title, purchase by agent of one in possession does not pass the title, Bernal v. Lynch, 36 Cal. 146 ; party in possession cannot acquire title by purchase, Barrett v. Amerein, 36 Cal. 326' ) Garwood v. Hastings, 38 Cal. 223 ; Reily v. Lancas- ter, 39 Cal. 357 ; explained, probate prac- tice unknown under Mexican system, Ry- der v. Cohn, 37 Cal. 89; doubted, liability of heirs for debt of ancestor under Mexican law, Id., 90, but approved, dissenting opin- ion of Rhodes, J., Id., 91. Corcoran v. Doll 32 Cal. 82. Cited, Pleading, demand for relief, power of Court to grant, N. C. & S. C. Co. v. Kidd, 37 Cal. 324. Cordier v. Schloss, 12 Cal. 143 ; same case, 18 Cal. 576. Cited, Judgment, by confession, when fraudulent, Lee v. Eigg, 37 Cal. 336 ; Pond v. Davenport, 44 Cal. 487. Coryell v. Cain 16 Cal. 567. Cited, Actual Possession defined, Bruma- , gim v. Bradshaw, 39 Cal. 44 ; cited, Pleading, evidence must not be set forth, Jones v. City of Petaluma, 36 Cal. 233 ; Appeal, orders and judgment entered by consent not reviewable, Mechan v. McKay, 37 Cal. 158 ; San Francisco v. Certain Real Estate, 42 Cal. 518. Courtwright v. B. R. & A. W. & M. Co., 30 Cal. 573. Approved, Jurisdiction, of District Courts to prevent or abate nuisance, Yolo Co. v. Sacramento City, 36 Cal. 195 ; of County Court for recovery of possession of premises „ held over by tenants, Stoppelkamp v. Mangeot, 42 Cal. 325. Cowing v. Rogers 34 Cal. 648. Cited, Specific Performance, decree may prescribe terms, Meyer v. Mowry, 34 Cal. 517 ; Findings, practice, Prince v. Lynch, 38 Cal. S3 1 ; New Trial, practice on defect- ive findings, Id. , 536. Coye v. Palmer 16 Cal. 158. Cited, Negotiable Instruments, certificate of deposit a promissory note, Poorman e. Mills, 35 Cal. 120. Crandall v. Amador County 20 Cal. 72. TABLE OF CASES. 395 Approved, Mandamus, what must be shown to ' authorize writ to Board of Su- pervisors, 0. & V. R. R. Co. v. Plumas County, 37 Cal. 363. Crandall v. Blen 13 Cal. 15. Cited, Execution, levy and sale of chose in action, Davis v. Mitchell, 34 Cal. 89. Creanor v. Nelson 23 Cal. 464. Cited, Supervisors, jurisdiction of Board, over roads, ferries and bridges, Kimball v. Supervisors, 46 Cal. 24. Creighton v. Manson 27 Cal. 613. Cited, Street Assessments, resolutions of intention to be presented for approval, Creighton v. San Francisco, 42 Cal. 448. Crowell v. Sonoma County 25 Cal 313. Cited, County, not liable for injuries from defective highways, Winbigler v. Los An- geles, 45 Cal. 38. Crowther v. Rowlandson 27 Cal. 376. Cited, New Trial, after reference, when .motion to be made, Harris v. S. T. S. R. Co., 41 Cal. 406. Cunningham 1;. Hawkins 24 Cal. 403. Explained, Mortgage, right to redeem and right to foreclose, reciprocal, Wright v. Ross, 36 Cal. 434 ; Arrington v. Liscom, 34 Cal. 372. Cunningham v. Hawkins 27 Cal. 603. Cited, Deed as mortgage, parol evidence to prove, Raynor v. Lyons, 37 Cal. 454 ; ap- proved, Jackson v. Lodge, 36 Cal. 48 ; ex- plained, Mortgage, right of mortgagor to redeem, Id., 63 ; mortgage does not pass title to grantee, Id., 49. Curiae v. Abadie 25 Cal. 502. Approved, Legal Tender Act, constitu- tional, Belloc v. Davis, 38 Cal. 254, Curran v. Shattuck 24 Cal. 427. Cited, Statutes, divesting title to be strictly pursued, Trumpler v. Bemerly, 39 Cal. 491 ; Easement, right of way, when vests in public, Brady v. Bronson, 45 Cal. 643- Currey v. Allen 34 Cal. 254. Approved, Resulting Trust, what must be shown on enforcement of, Case v. Cod- ding, 38 Cal. 193 ; referred to, Allen v. Currey, 41 Cal. 320.. Curtis v. Richards , 9 Cal. 33. Approved, Appeal, undertaking, liability of sureties, Murdock v. Brooks, 38 Cal. 604. Curtis v. Sutter 15 Cal. 259. Cited, Quieting Title, title by possession sufficient, Pralus v. Pacific Or. & S. M. Co. 35 Cal. 34 ; possession in plaintiff essential, N. C. & S. C. Co. v. Kidd, 37 Cal. 307 \ cited, where adverse possession to a part is shown in a third person, Sepulveda v. Se- pulveda, 39 Cal. 19 ; criticized, dissenting opinion of Temple, J., Id., 21. Damrell v. Meyer 40 Cal. 166. Cited, Pre-emption Laws, agreements void under, Hudson v. Johnson, 45 Cal. 25. Dana v. Stanfords 10 Cal. 269. Approved, Insolvency, conveyance giving preference to creditor not fraudulent, Lawrence v. Neff, 41 Cal. 569. Dane v. Corduan 24 Cal. 157. Cited, Surety, on joint note, remedy of, Sichel v. Carrillo, 42 Cal. 507 ; not dis- charged by nonaction of holder, Id., 50b. Dannebroge G. Q. M. Co. v. Aliment , 26 Cal. 286. Cited, Corporations, irregularities in for- mation of immaterial, on collateral ques- tion, O. & V. R R. Co. v. Plumas Co., 37 Cal. 361 ; Pacific Bank v. De Ro, 37 Cah 541. Davanay v. Eggenhoff 43 Cal. 395. Cited, Pleading, payment may be proved under general denial, Wetmore v. San Erancisco, 44 Cal. 300. Davidson's;. Rankin 34 Cal. 503. Cited, Corporation, liability of stockhold- ers, Young v. Rosenbaum, 39 Cal. 654 ; limitations of action against, Stilphen v. Ware, 45 Cal. ill. Davis v. Davis 26 Cal. 23. Cited, Estoppel, doctrine of equitable es- toppel, Maine Boys T. Co. v. Boston T. Co., 37_ Cal. 50; Martin v. Zellerbach, 38 Cal. 316 ; facts essential to operation of, v Smith v. Penny, 44 Cal. 166 ; who not sub- ject to, Marquartii. Bradford, 43 Cal. 530 ; Mexican Grant, Statute of Limitations run's from date of patent, Sabichi v. Aguilar, 43 Cal. 291, 294 ; approved, Witnesses, when representatives of de- ceased, incompetent, Satterlee v. Bliss, 36 Cal. 512 ; King v. Haney, 46 Cal. 562. Davis v. Eppinger t8 Cal. 378. Cited, Negotiable Instruments, days of grace, computation of time for payment, Bell v. Sackett, 38 Cal. 410. Davis v. Livingston 29 Cal. 290. Cited, Mechanic's Lien, rights of subcon- 396 TABLE OF CASES. tractors, Shaver v. Murdock, 36 Cal. 298 ; sufficiency of statement of claim, Hicks v. Murray, 43 Cal. 522, 523. Davis v. Mitchell 34 Cal. 81. Cited, Execution, partnership notes liable to seizure and sale, Donohoe v. Gamble, 38 "Cal. 352 ; Robinson v. Tevis, 38 Cal. 614. Davis v. Perley 30 Cal. 630. Cited, Land, actual possession, what con- stitutes, under Statute of Limitations, Le Hoy v. Cunningham, 44 Cal 606 ; Con- structive Possession, under deed, "Walsh v. Hill, 38 Cal. 487 ; Title, under Van Ness Ordinance, Judson v. Malloy,' 40 Cal. 309. Davis v. Robinson 10 Cal. 411. Cited, Arrest and Bail, showing required) to authorize arrest for fraud, Stewart v. Levy, 36 Cal. 166 ; commented on and approved, Practice, Id., 167. Day v. Jones 31 Cal. 261. Doubted, Appeal, jurisdiction in special oases, Appeal of S. O. Houghton, 42 Cal. 64. De Arguello v. Greer 26 Cal. 627. Cited, Mexican Grant, "third persons" not concluded by patent, who are, Miller v. Dale, 44 Cal. 577. De Castro v. Richardson. See Castro u. Richabdson. , Deck's Estate v. Gherke 6 Cal. 666. Cited, Probate, claim for expenditures, allowance when conclusive, Gurnee v. Maloney, 38 Cal. 88. Deidesheimer v. Brown 8 Cal. 339. Cited, Appearance, 'rights not waived by, Lyman v. Milton, 44 Cal. 635. De La Guerra v. Packard 17 Cal. 182. Explained, Probate, Mexican system, Ry- der v. Cohn, 37 Cal. 89; responsibility of heirs and devisees for debts of testator, dissenting opinion of Rhodes, J., Id. , 91. Delaney, Estate of 37 Cal. 1 76. Cited, Probate, homestead to be set apart to widow, Rich v. Tubbs, 41 Cal. 36. Deputy v. Stapleford 19 Cal. 302. Cited, Equity, duress, effect of, Connecti- cut Life Ins. Co. v. McCormick, 45 Cal. 583- De Rutte v. Muldrow 16 Cal. 505. Cited, Lease, with privilege to purchase; specific enforcement of, Halli). Center, 40 Cal. 68. De Uprey v. De Uprey 27 Cal. 329. Approved, Partition, what, may be tried in action for, Gates v. Salmon, 35 Cal. 597 ; cited, Grantees, necessary parties, Sutter v. San Erancisco, 36 Cal. 116. Dewey v. Bowman 8 Cal. 145. Cited, Pledge and Chattel Mortgage, dis- tinguished, Heyland v. Badger, 35 Cal. 414 ; explained, title in pledgee, Brewster v. Hartley, 37 Cal. 25. De "Witt v. Hays 2 Cal. 463. Cited, Injunction, not granted where there is a remedy at law, Bucknall v. Story, 36 Cal. 71. Dickey v. Davis 39 Cal. 569. Distinguished, Verdict and Einding, set- ting aside where evidence is conflicting, Sherman v. Mitchell, 46 Cal. 579. Dickinson v. Maguire 19 Cal. 46. Cited, Unlawful Entry, what constitutes, Shelby v. Houston, 38 Cal. 422. Dimick v. Campbell 31 Cal. 238. Cited, Judgment Roll, motions and orders to strike out are no part of, Sutter v. San Francisco, 36 Cal. 114 ;rulings forming no part of judgment roll not reviewable on appeal, Eeely v. Shirley, 43 Cal. 370. Dimick v. Deringer 32 Cal. 488. Cited, Ejectment, defense and conduct of action by landlord, Valentines. Mahoney.i 37 Cal. 394 ; Action, lies only against per- son in possession, Mahoney v. Middleton, 41 Cal. S3 ; Judgment, by default, who may move to set aside, Corwin v. Bensley, 43 Cal. 262. Doble v. Wood. .Cal. Sup. C't, Jan T. 1871. (not reported). Explained, Streets, may be ordered graded without petition, Dyer v. North, 44 Cal. 161. Dodge v. Walley 22 Cal. 224. Cited, Execution, 'title under Sheriff's deed, Blood v. Light, 38 Cal. 658. Doe v. Vallejo 29 Cal. 385. Cited, Appeal, rule of decision where evi- dence is conflicting, Pralus v. Pacific G. & S. M. Co., 35 Cal. 37. Doll v. Meador , 16 Cal. 295. Approved, Public Lands, donation vests a present interest in State, Sherman v. Bu- ick, 45 Cal. 668 ; Mexican Grant, patent, TABLE OF CASES. 397 conclusiveness of, Durfee v. Plaisted, 38 Cal. 83. Doll v. Smith 32 Cal. 475 Cited, Appeal, affidavit of service of no tice, what must be shown, Moore v. " 35 Cal. 187. Domingues v. Domingues. . . : . . .4 Cal. 186. Cited, Adjournment, must be to a term pursuant to Statute, Bates v. Gage, 40 Cal, 185. Donahue v. McNulty 24 Cal. 41 1 Cited, Estoppel, by recitals in Sheriff's deed, Blood v. Light, 38 Cal. 658 ; Inger- soll v. Truebody, 40 Cal. 611. - Dormer v. Palmer 31 Cal. 500. Commented on, Alcalde Grants, title under when it vests, Lick v. Diaz, 37 Cal. 442 ; cited, entry in Alcalde's records, Id., 447 ; distinguished, Garwood v. Hastings, 38 Gal.' 226', acceptance of grant by infant, DeLevillain v. Evans, 39 Cal. 123. Dooly v. Norton .- 41 Cal. 439. Cited, Appeal, review of special orders after final judgment, Calderwood v. Pey- ser, 42 Cal. 118. Dore v. Covey -. i3Cal. 502. Commented on, Undertaking on Appeal, validity of, Murdock v. Brooks, 38 Cal. 602. Dore v. Sellers 27 Cal, 588. Cited, Mechanic's Lien, rights of subcon- tractors, Sbaver v. Murdock, 36 Cal. 298. Dorente v. Sullivan 7 ... 7 Cal. 279. Cited, Judgment, not subject to collateral attack for irregularities in return of sum- mons, Drake v. Duvenick, 45 Cal. 466. Dorsey v. Barry 24 Cal. 449. Cited, Appeal, in special cases, dissenting opinion of Rhodes, 0. J., Appeal of S. 0. Houghton, 42 Cal. 68. Dougherty v. Foley 32 Cal. 402. Cited, Street Assessments, readvertising for bids, Himmelmann v. Oliver, 34 Cal. 247 ; power of Board to relet contract, Chambers v Satterlee, 40 Cal. 519. Dougherty v. Hitchcock 35 Cal. 512. Approved, Street Assessment, must be of- ficially attested, Himmelmann v. Coffran, 36 Cal. 412 ; commented on, remedy by ap- peal to Board, Chambers v.' Satterlee, 40 Cal. 524^ distinguished, Contract, when divisible, Id., 530. ' Douglass v. Kraft 9 Cal. 562. Approved, Conversion, measure of dam- ages, Page v. Eowler, 39 Cal. 420, 421 ; cited, Appeal, objections to form of ver- dict, when to be taken, Campbell v. Jones, 41 Cal. 519;. Dow v. Gould & Curry S. M. Co 31 Cal. 629. Cited, Husband and Wife, gift from hus- band to wife, Woods v. Whitney, 42 Cal. 361 ; Higgins v. Higgins, 46 Cal. 263. Downer v. Smith 24 Cal. ii4„ Cited, Ejectment, equitable defenses may be interposed to title, Bruck v. Tucker, 42 Cal. 352 ; Title, under quit claim deed suf- ficient to maintain action, Lawrence v. Ballou, 37 Cal. 521 ; approved, Probate, rule under Mexican system, Ryder v. Cohn, 37 Cal. 89, 91. Duff v. Fisher 15 Cal. 375. Cited, Appeal, objections to form of ver- dict or for excessive damages, when and how taken, Campbell v. Jones, 41 Cal. 519 ; 1 ' Specific Performance, of contract for sale of chattel when decreed, Senter v. Davis, 38 Cal. 453- Duffy v. Hobson 40 Cal. 240. Cited, Evidence, rules of, power of State Legislature to regulate, People v. Brady, 40 Cal. an; Revenue Stamp, omission of not a defense to action on contract, Thomasson v. Wood, 42 Cal. 417. Dunn v. Ketchum , 38 Cal. 93. Cited, State Lands, application* for school lands, how made, Hogan v. Winslow, 45 Cal. 591. Dupond v. Barstow 45 Cal. 446. Cited, Taxation, ordinance as to outside lands construed, Randall v. Austin, 46 Cal. 62. Du Pratt v. Lick 38 Cal. 691. Cited, Master and Servant, master when liable for acts of servant, Baker v. Kinsey, 38 Cal. 634. Dupuy v. Leavenworth 17 Gal. 262. Cited, Partnership Property, title of pur- chaser of interest in, McCauley v. Pulton, 44 Cal. 362. Dupuy v. Shear 29 Cal. 238. Cited, Action, how commenced, Adams v. . Patterson, 35 Cal. 125 ; distinguished, dis- missal, for want of prosecution, dissenting opinion of Rhodes, J., Reynolds v. Page, 35 Cal. 301, 302 ; cited, Carpentier v. Min- turn, 39 Cal. 451. 398 TABLE OF CASES. Durfee v. Plaisted 38 Cal. 80. Compared, Pre-emption Bights, patent to purchasers of Suscol Ranch, Erisbie v. Marques, 39 Cal. 452, 455 ; official acts not subject to collateral attack, T. & T. T. Road Co. v. Campbell, 44 Cal. 92. Duryea v. Burt 28 Cal. 569. Cited, Mining Partnership, in the nature of a tenancy in common, McConnell v. Denver, 35 Cal. 369 ; purchaser of part- ner's interest, holds subject to lien of firm debts, Jones v. Clark, 42 Cal. 194 ; strict partnership may exist between min- ers, Decker v. Howell, 42 Cal. 642. Dutertreu. Driard 7 Cal. 549. Distinguished, Execution, effeot of surren- der of property by Sheriff after levy, Haw- kins v. Roberts, 45 Cal. 41. Dutton v. Warschauer 21 Cal. 609. Approved, Mortgage, a mere security, Heyland v. Badger, 35 Cal. 413 ; Mack v. Wetzlar, 39 Cal. 255, 256 ; cited, Eject- ment, landlord may defend and conduct action, Valentine v. Mahoney, 37 Cal. 394 ; Land, possession as notice of title, Pell v. McEIroy, 36 Cal. 272 ; O'Rourke v. O'Connor, 39 Cal. 447 ; Thompson v. Pio- che, 44 Cal. 516. Dwinelle v. Henriquez 1 Cal. 387. Cited, Administrator, personal liability on contract, Gurnee v. Maloney, 38 Cal. 88. Dye v. Dye 11 Cal. 103. Cited, Pleading, conditions prescribed by- statute must be specially pleaded, Himmel- mann v. Danos, 35 Cal. 448. Dyer v. North ..44 Cal. 157. Cited, Street Assessment, sufficient aver- ment of notice of award, Himmelmann v. Haskell, 46 Cal. 67. Dyer v. Pbdey 44 Cal. 153. Approved, Street Assessmenent, action by * whom brought, Dyer v. North, 44 Cal. ' 157- Easterby v. Larco 24 Cal 179. Cited, Waiver, of motion by failure to file statement, Campbell v. Jones, 41 Cal. 518. Eddy v. Simpson 3 Cal. 249. Approved, Water Rights, how acquired, N. C. & S. C. Co. v. Eidd, 37 Cal. 310 ; oited, interest acquired by appropriation, Id. Ellis v. Hull 23 Cal. 160. Referred to, Writ of Restitution, Long v. Neville, 36 Cal. 457. Ellis v. Jeans 26 Cal. 272. Cited, Appeal, rule of decision on conflict- ing testimony, Pralus v. P. G. & S. M. Co., 35 Cal. 37 ; Ellis v. Polhemus, 27 Gal. 350; approved, Probate, what "claim" includes, Pitte v. Shipley, 46 Cal. 160 ; Mortgage, claim to be presented, Id., 161. Emeric v. Gilman 10 Cal. 404. Cited, County, effect of judgment against, Sharp v. Contra Costa Co., ^34 Cal. 29I ; payment of county warrants, what to be applied to, Rose v. Estudillo, 39 Cal. 275. Emeric v. Penniman 26 Cal. 119. Cited, Mexican Grant, legal title in con- firmee and his assigns, Hartley v. Brown, 46 Cal. 204. Emery v. Bradford 29 Cal. 75. Cited, Street Improvement, constitutional - power of Legislature to provide for, Cham- bers v. Satterlee, 40 Cal. 514; delegation of powers, People v. Provines, 34 Cal. 541 ; Street Assessment, property holder not a party to contract, Meuser v. Risdon, 36 Cal. 244; Himmelmann v. Spanagel, 39 Cal. 392 ; Chambers v. Satterlee, 40 Cal. 526 ; approved, Contracts, when void, Dougherty v. Hitchcock, 35 Cal. 526; Remedy, by appeal to board, exclusive, Chambers v. Satterlee, 40 Cal. 520 ; Him- melmann v. Hoadley, 44 Cal. 279 ; cited, Assessment, Smith v. Cofran, 34 Cal. 320 ; Shepard v. McNeil, 38 Cal. 75. Emery v. San Francisco ....'... 28 Cal. 345. Approved, Street Improvements, power of Legislature to provide for, Chambers v. Satterlee, 40 Cal. 514; Street Assessment, property holders not parties to the con- tract, Meuser v. Risdon, 36 Cal. 244 ; Him- melmann v. Spanagel, 39 Cal. 392. Emmal v. Webb 36 Cal. 197. Cited, Appeal, findings presumed, in sup- port of judgment, Smith v. Cushing, 41 Cal. 99. English v. Johnson 17 Cal. 107. Cited, Land, constructive possession, un- der deed, Walsh v. Hill, 38 Cal 487 ; Ap- peal, technical exceptions will not be sus- tained, King v. Blood, 41 Cal. 317. Estrada v. Murphy 19 Cal. 248. Cited, Mexican Grants, title under before confirmation, Morenhout v. Barron, 42 Cal. 603 ; approved, claims to be presented for confirmation, Stevenson 1;. Bennett, 35 Cal. 431, 434 ; cited, Pueblo Lands, to be segregated, Bernal v. Lynch, 36 Cal. 145, legal title, exclusive in confirmee and his assigns, Banks v. Moreno, 39 Cal. 246 ; Schmitt v. Giovanari, 43 Cal. 622 ; Hart- TABLE OF OASES. 399 ley v. Brown, 46 Gal. 204; Ejectment, equitable defenses may be set up in action, MoCauley v. Fulton, 44 Cal. 362 ; approv- ed, Bruck v. Tucker, 42 Cal. 352. Evoy v. Tewksbury 5 Cal. 285. Approved, Statute of Frauds, promise of guarantor not within, Howland v. Aitch, 38 Cal. 135. Ewald v. Corbett 32 Cal. 493. Approved, Conveyance, by married woman void from defective acknowledgment, McLeran v. Benton, 43 Cal. 472, 473. Pair v. Stevenot 29 Cal. 486. Cited, Land, possession as notice of title, Pell v. HcELroy,. 36 Cal. 272 ; approved, of tenant as notice of landlord's title, Thompson v. Pioche, 44 Cal. 516 ; cited, Appeal, separate appeals, practice, Gates u. Walker, 35 Cal: 291 ; when new trial will be ordered, Carpentier v. Small, 35 Cal. 359. Falkinburg v. Lucy 35 Cal. 52. Approved, Appropriation, of words not pro- tected, Choynski v. Cohen, 39 Cal. 504 ; modified, Label, may be protected, Burke 1;. Cassin, 45 Cal. 481 ; cited, Injunction, 1 practice on motion to dissolve, Delger v. Johnson, 44 Cal. 184. Falkner v. Hunt 16 Cal. 167. Explained, Involuntary payment, what constitutes, Bucknall-u. Story, 46 Cal. 597 ; cited, Double Taxation, People v. Whar- tenby, 38 Cal. 467. Fall v. Marysville 19 Cal. 391 . Cited, Taxation, municipal property not subject to, Low v. Lewis, 46 Cal. 552. Fallon v. Butler 21 Cal. 24. Distinguished, Probate, presentation of mortgage claims, Pitte v. Shipley, 46 Cal. 158 ; commented on, Sichel v. Carrillo, 42 Cal. 505. Fanjoy v. Seales 29 CaL 243. Cited, Negligence, master, when liable for acts of employee, Baker v. Kinsey, 38 Cal. 634 ; Du Pratt v. Li6k, 38 Cal. 692. Farley v. Vaughn n Cal. 227. Cited, Specific Performance, delay as a waiver of forfeiture, Steele v. Branch, 40 Cal. 13. Farmer v. Grose 42 CaL 169. Commented on, Conveyance, and agree- ment for reconveyance, when not a mort- gage, Page v. Vilhao, 42 Cal. 83. Ficken v. Jones - 28 Cal. 618. Denied, Vicious Animal, liability of own- er for injuries by, dissenting opinion of Crockett, J., in Leverone v. Mangianti, 41 Cal. 141 ; Negligence, prima facie proof of, Teomans v. Contra Gosta S. N. Co., 44 Cal. 84. Flagley v. Hubbard 22 Cal. 35. Cited, Mandamus, does not lie to review judicial action, People v. Sexton, 37 Cal. 534- Flandreau u. Downey 23 Cal. 354. Cited, Pleading, estoppel, when' not waiv- ed, Jackson v. Lodge, 36 Cal. 38. Fogarty v. Sawyer 17 Cal. 589. Cited, Mortgage, a mere security, Heyland v. Badger, 35 Cal. 413 ; Jackson v. Lodge, 36 Cal. 39 ; construed, statutory provis- ions in relation to mortgages, Jackson v. Lodge, 36 Cal. 52, 59 ; power of sale in mortgage, Id., 60. Folsom v. Bartlett 2 Cal. 163. Cited, Contract, to convey, payment by installments, covenants independent, Hill v. Grisby, 35 Cal. 662 ; Kourke ■». Mc- Laughlin, 38 Cal. 200. Forbes v. Hyde 31 Cal. 342. Overruled, Appeal, that affidavit of publi- cation is part of judgment roll, Ilahn v. Kelly, 34 Cal. 404; commented on, Id., 421. Ford v. Doyle 44 Cal. 635. Cited, Res Adjudicata, doctrine not to apply to orders, Bowers v. Cherokee Bob, 46 Cal. 285. Ford v. Hendricks 34 Cal. 673. Approved, Guarantor, of note, promise of when not within the Statute of Frauds, Howland v. Aitch, 38 Cal. 135. Fowler v. Harbin 23 Cal. 630. Explained, Judicial Sale, relief of pur- chaser at foreclosure sale, Abadieu. Lobero, 36 Cal. 399 ; cited, Judgment, when not an estoppel, Boggs v. Clark, 37 Cal. 238. Fowler v. Peirce 2 Cal. 165 Approved, Statute, motive of legislators not subject of judicial inquiry, flarpend- ing v. Haight, 39 Cal. 202 ; cited, Manda- > mus, when may issue to inferior tribu- nals, Tilden v. Sacramento Co., 41 Cal. 77- Fowler v. Smith, 2 Cal. 39, same case, Id., 568. Cited, International Law,laws of ceded ter- 400 TABLE OP CASES. ritory, dissenting opinion of Rhodes, J., Ryder v. Cohn, 37 Cat. 92 ; commented on, Covenants in Lease, what constitutes evic- tion, McGary v. Hastings, 39 Oal. 364. Pox v. Minor 32 Cal. 1 1 1 . Cited, Parties, infant to sue by guardian, Wilson v. Wilson, 36 Cal. 451 ; Minor, as real party in interest, Karr v. Parks, 44 Cal. 48. Pox v. W. P. R. R. Co 31 Cal. 538. Cited, Eminent Domain, right of way when it vests, Brady v. Bronson, 45 Cal. °43- Franklin i). Dorland 28 Cal. 178. Cited, Deed, evidence explanatory of, Sat- terlee v. Bliss, 36 Cal. 505. Pratt v. Clark 12 Cal. 89. Approved, Election, of remedy, waiver of tort in conversion, Roberts v. Evans, 43 Cal. 382. French v. Teschemacher 24 Cal. 518. Explained and adopted, Constitutional • Law, general laws to have uniform opera- tion, Brooks v. Hyde, 37 Cal. 375 ; Ex parte Smith & Keating, 38 Cal. 710 ; ap- plied to statutory liabilities of stockhold- ers, Larrabee v. Baldwin, 35 Cal. 166 ; to taxation of costs in certain locality, Cor- win v. Ward, 35 Cal. 199; to taxation by dockage and wharfage charges, People v. S. E. & A. R. R. Co., 35 Cal. 616 ; cited, Statutory Construction, when statute is mandatory, People v. San Francisco, 36 Cal. 604 ; Appointment, to vacancy in office, People v. Tilton, 37 Cal. 627. Prey v. Clifford 44 Cal. 335. Approved, Mortgage, for antecedent debt valid, Connecticut Life Ins. Co. v. McCor- mick, 45 Cal. 583. Frischu. Caler 21 Cal. 71. Cited, Pleading, payment may be proved under general denial, Wetmore v. San Erancisco, 44 Cal. 300 ; commented on, Davanay v. Eggenhoff, 43 CaJ. 397. Frost v. Harford 40 Cal. 165. Cited, Pleading, frivolous defenses, Eelch v. Beaudry, 40 Cal. 444. Fuller v. Fuller 17 Cal. 605. Cited, Witness, competency of, not de- pendent on religious belief, People v. San- ford, 43 Cal. 34. Fulton v. Hanlow 20 Cal. 450. Cited, Pueblo Lands, interest of city not subject to execution, San Erancisco v. Canavan, 42 Cal. 556. Gageu. Bates 40 Cal. 384. Approved, Lease, demand for rent neces- sary to work forfeiture, 0' Connor v. Kelly, 4r'Cal. 434. Gahan v. Neville 2 Cal. 81. Cited, Contract, money staked on a wager, Johnston v. Russell, 37 Cal. 675. Galland v. Galland 38 Cal. 265. Commented on, Husband and Wife, rights of wife in community property after separ- ation, DeGodey v. Godey, 39 Cal. 164 ; cited, Alimony without divorce, Galland v. Galland, 44 Cal. 477. Garner v. Marshall 9 Cal. 268. Cited, Ejectment, must be brought against parties in possession, Valentine v. Mahoney, 37 Cal. 393. Garwood v. Garwood 29 Cal. 514. Cited, Judgment, when a bar to subse- quent action, Jackson v. Lodge, 36 Cal. 3»- Gashwiler v. Willis 33 Cal. 11. Approved, Corporation, deed of trustee when void for want of authority, Miner's Ditch Co. v. Zellerbaeh, 37 Cal. 596, 597 ; cited, Assignment, by officer when void, Blood v. Marcuse, 38 Cal. 594. Gaskill v. Trainer 3 Cal. 334. Cited, Lease, demand for rent necessary to work forfeiture, Gage v. Bates, 40 Cal. 385- Gates v. Salmon 28 Cal. 320. Explained, Appeal, from interlocutory or- der in partition, Bensley v. Ellis, 39 Cal. 314 ; approved, Regan v. McMahon, 43 Cal. 627, Gates v. Salmon 35 Cal. 576. Cited, Partition, necessary parties, Sutter v. San Erancisco, 36 Cal. 1 16. Gay v. Hamilton 33 Cal. 686. . Cited, Deed as mortgage, parol evidence to prove, Raynqr v. Lyons, 37 Cal. 454. Gay v. Winter 34 Cal. 153. Cited, Negligence, contributory negli- gence to defeat action, Needham v. S. F. "&S. J. R. R. Co., 37 Cal. 419; Pleading, sham answers, Tynan v. Walker, 35 Cal. 646 ; special damages must be particularly stated, L. T. Co. v. S. & W. W. R. Co., 41 Cal. 565. TABLE OP CASES. 401 Gee v. Moore 14 Cal. 472. Cited, Homestead, alienation of, right of grantee in abeyance, Brooks v. Hyde, 37 Cal. 374 ; Deed, quit claim not an estop- pel as to after-acquired title, McDonald v. Edmonds, 44 Cal. 330. Genella v. Relyea 32 Cal. 159. Cited, Appeal, time within which to ap- peal, Wetherbee v. Dunn, 36 Cal. 252. Gibson, Ex parte 31 Cal. 619. Cited, Habeas Corpus, remedy by, Ex parte McCullough, 35 Cal. 101 ; Judgment, in criminal case, People v. Burgess, 35 Cal. 118. Gibson v. Puchta 33 Cal. 310. Cited, Water Rights, ditch property, how regarded, Clark v. Willett, 35 Cal. 549. Gillam v. Sigman 29 Cal. 637. Cited, Pleading, misjoinder of parties, how waived, Hastings v. Stark, 36 Cal. 126. Gilmer v. Lime Point '. 18 Cal. 229. Instanced, Appeal, in "special cases," Ap- peal of Houghton, 42 Cal. 68. Girdn. Ray 17 Cal. 352. Cited, Possessory Action, x actual residence alone gives right of action, Wolfskill v. Malajowicn, 39 Cal. 279. Godey v. Godey 39 Cal. 157. Cited, Injunction, when not dissolved on denial in answer, McCreery v. Brown, 42 Cal. 462. Goller v. Pett ' 30 Cal. 481. Cited, Mining Claims, verbal sale no evi- dence of title, Felger v. Coward, 35 Cal. 652. Goodenow v. Ewer 16 Cal. 461. Cited, Mortgage, a mere security, Jackson v. Lodge, 36 Cal. 39. Goodwin v. Glazer 10 Cal. 333. Cited, Mandamus, will not lie for refusal to issue execution, Eulton v. Hanna, 40 Cal. 281. Gorham v. Toomey 9 Cal. 77. Approved, Injunction, when will not is- sue, Crowley v. Davis, 37 Cal. 269 ; cited, De Godey v. Godey, 39 CaL 162. Grady v. Early 18 Cal. 108. Cited, Ejectment, prior possession suffic- ient to maintain, Toland v. Mandell, 38 Cal. 43. CAL DIG. SUP. 26. Graff 1;. Middleton 43 Cal. 341. Approved, Conveyances, construction of Registry Act, Erey v. Clifford, 44 Cal. 343. Grant v. Moore 29 Cal. 644. Approved, Appeal, reasons for order for new trial not reviewable, Borkheim v . E. E . Ins. Co., 38 Cal. 506. Grant v. 'Wfhite 6 Cal. 55. Cited, Appeal, notice to be served on at- torney, Abrahms v. Stokes, 39 Cal. 151. Gray v. Dougherty 25 Cal. 266. Cited, -Ejectment, judgment how far con- clusive, Jackson v. Lodge, 36 Cal. 38 ; Bar- num v. Reynolds, 38 Cal. 647 ; immaterial averments in pleadings, Jones v. City of Petaluma, 36 Cal. 233 ; Costs, in equity, indiscretion, Williams v. McDougall, 39 Cal. 85. Grayu. Hawes 8 Cal. 569. Cited, Appearance, what -not waived by, Lyman v. Milton, 44 Cal. 635. Gray v. Palmer 28 Cal. 416. Approved, Appeal, finality of judgment, Wetherbee v. Dunn, 36 Cal. 252 ; Harris v. S. E. S. R. Co., 41 Cal. 407. Greeley v. Townsend 25 Cal. 604. Cited, San Erancisco, tenure of Pueblo Lands, San Erancisco v. Canavan, 42 Cal. 556. Green v. Covillaud 10 Cal. 317. Cited, Specific Performance, time when not of essence of contract, Steele v. Branch, 40 Cal. 1 1 ; Pleading, allegata and probata must agree, Clark v. Phoenix Ins. Co., 36 Cal. 179. Green v. Palmer 15 Cal. 411. Approved, Pleading, facts and not evi- dence to be set forth, Jones v. City of Pet- aluma, 36 Cal. 233 ; Joseph v. Holt, 37 Cal. 255 ; Bruck v. Tucker, 42 Cal. 351. Gregg v. Bostwick 33 Cal. 220. Approved, Homestead, aotual occupation necessary to constitute, Mann v. Rogers, 35 Cal. 319; Estate of Delaney, 37 Cal. 179; Gambette v. Brock, 4.1 Cal. 83; Prescott v. Prescott, 45 Cal. 59. Gregory u.Ford 14 Cal. 138. Cited, Equity, showing required on appli- cation for relief from judgment, Ketchum v. Crippen, 37 Cal. 228. Gregory v. Haynes. . . 13 Cal 591; same case, 21 Cal. 446. 402 TABLE OF OASES. Distinguished, Judgment, in favor of de- ceased, a nullity, McCreery v. Everding, 44 Cal. 286. Grigsby v. Burtnett 31 Cal. 406. Cited, Easement, when right of way vests in public, Brady v. Bronson, 45 Cal. 643. Grigsby v. Napa Co 36 Cal. 585. Cited, Action, dismissal for want of pros- ecution, in discretion, Carpentier v. Min- turn, 39 Cal. 451. Grimes's Estate v. Norris 6 Cal. 621 . Approved, Probate, law of descents previous to passage of Probate Act, Ryder v. Cohn, 37 Cal. 89, 91. Grogan v. Knight 27 Cal. 515. Approved, Land, selection of lieu lands before survey conveys no title, Smith v. Athern, 34 Cal. 512 ; Toland v. Mandell, 38 Cal. 31, 33 ; Hastings v. Devlin, 40 Cal.' 363, 370 ; Hastings v. Jackson, 46 Cal. 243 ; commented on, Toland v. Man- dell, 38 Cal. 43. Grogan v. San Francisco 18 Cal. 590. Cited, San Francisco, tenure of lands in trust and mode of alienation, San Fran- cisco v. Canavan, 42 Cal. 556. Gronfier «. Puymirol 19 Cal. 629. Cited, Guardian and Ward, general guar- dian may appear and defend action, Smith v. McDonald, 42 Cal. 486 ; com- mented on, Id., 491. Gross v. Fowler 21 Cal. 392. Cited, Judicial Sale, Sheriff's deed when void, Moore v. Martin, 38 Cal. 438 ; Hall v. Toell, 45 Cal. 588. Gunn v. Bates 6 Cal. 263. Cited, Land, constructive possession under Mexican Grant, Walsh v. Hill, 38 Cal. 487. Gurnee v. Maloney 38 Cal. 87. Explained, Probate Court, jurisdiction of, Bush v. Lindsey, 44 Cal. 125. Guy v. Washburn 23 Cal. 113. Modified, Payment, when deemed volun- tary, Bucknallu. Story, 46 Cal. 598. Haffley v. Maier 13 Cal. 13. Cited, Mortgage, a mere security, Jaokson v. Lodge, 36 Cal. 39. Hagar v. Lucas 29 Cal. 309. Cited, Land, patent as conclusive evidence, Durfee i\ Plaisted, 38 Cal. 83. Hagar v. Mead 25 Cal. 598. Cited, Appeal, motion to restore, what must be shown, Dorland v. McGlynn, 45 Cal. 18. Hager v. Shindler 29 Cal. 47. Cited, Cloud on Title, when action lies to prevent 6r remove, Lick v. Ray, 43' Cal. Haggin v. Clark 28 Cal. 162. Cited, Appeal, statement when necessary, People v. Doe, 45 Cal. 44 ; Cross v. Zane, 45 Cal. 90 ; insufficient specification of errors, Wilson v. Wilson, 45 Cal. 405. Halm v. Kelly 34 Cal. 391 . Approved, Judicial Proceedings, when void for want of jurisdiction, Hastings v. Cunningham, 39 Cal. 142, 143 ; Jurisdic- tion, intendments in favor of jurisdiction of Courts of Record, Ryder v. Cohn, 37 Cal. 89 ; Quivey v. Porter, 37 Cal. 462, 463, 464 ; Eitel v. Foote, 39 Cal. 44O; Ma- honey v. Middleton, 41 CaJ. 51 ; distin- guished, Smith <:. McDonald, 42 Cal. 492 ; recitals in judgment conclusive, Reeve v. Kennedy, 43 Cal. 652 ; approved, McCau- ley v. Fulton, 44 Cal. 361 ; presumptions arising from record, Drake v. Duvenick, 45 Cal. 464 ; Pearson v. Pearson, 46 Cal. 636 ; Record, imports verity, recitals in conclusive, Sharp v. Brunnings, 35 Cal. 534 ; Vassault v. Austin, 36 Cal. 696 ; Moore v. Martin, 38 Cal. 437; Reily v. Lancaster, 39 Cal. 356; McCauley v.' Ful- ton, 44 Cah 361 ; referred to, Gambert v. Hart, 44 Cal. 551 ; cited, County Courts, are Courts of superior jurisdiction, Tena- wine v. Richter, 43 Cal. 314. Hale v. Trout 35 Cal. 229. Commented on, Contract, for services, damages on breach of, Utter v. Chapman, 38 Cal. 664. Hall v. Bark Emily Banning 33 Cal. 522. Cited, Appeal, orders on motion for new trial, when not reviewable, Phelps D.Union C. M. Co., 39 Cal. 410; New Trial, lies for insufficient damages, Strang v. Ryan, 46 Cal. 28. Hall v. Crandall 29 Cal. 568. Approved, Principal, when liable on note made by agent, Lander v. Castro, 43 Cal. 501 ; cited, as to liability of trustees of corporation, Blanchard v. Kaull, 44 Cal. 450. Halleck v. Mixer 16 Cal. 574. Explained, Replevin, lies for timber out and severed from realty, Page v. Fowler, TABLE OF OASES. 403 37 Cal. 107-109 ; qualified, Title, cannot be tried in action, Page 1;. Fowler, 39 Cal. 417. Hallock v. Jaudin 34 Cal. 167. Cited, Revenue Stamp, no part of written instrument, People v. Tomlinson, 35 Cal. 507; overruled, that want of stamp will defeat a recovery, Duffy v. Hobson, 40 Cal. 243, 244; referred to, Thomasson v. Wood, 42 Cal. 417 ; Pleading, sufficiency of complaint on written instrument, Mur- dock v. Brooks, 38 Cal. 603 ; Hibernia S. & L. So. v. Ordway, 38 Cal. 682. Hamer v. Hathaway 33 Cal. 117. Cited, Replevin, measure of damages, Hisler v. Carr, 34 Cal. 645 ; commented on, Page v. Fowler, 39 Cal. 420, 421. Hanscom v. Tower 17 Cal. 518. Distinguished, Appeal, what reviewable on, Bornheimer v. Baldwin, 42 Cal. 31. Hanson v. McCue 43 Cal. 178. Approved, Appeal, recalling remittitur, Bernal v. "Wade, 46 Cal. 641. Hardenbergh v. Bacon 33 Cal. 356. Cited, Mining Stock, similar stocks of equivalent value, Atkins v. Gamble, 42 Cal. 100. ' Hardenburghu. Kidd 10 Cal. 402. Cited, Injunction, will not issue to restrain void proceedings, Bucknall v. Story, 36 Cal. 71 ; Tax Deed, what essential to va- lidity of, Id., 73. Harding v. Jasper 14 Cal. 642. Cited, Dedication, to public use, accept- ance, how established, San Francisco v. Canavan, 42 Cal. 554. Hardy v. Hunt 11 Cat 343. Cited, Wagers, on elections, Johnston v. Russell, 37 Cal. 675. V Harper v. Minor 27 Cal. 107. Cited, Appeal, motions and orders to strike out, no part of judgment roll, Sutter v. San Francisco, 36 Cal. 114 ; how made part of judgment roll, Gates v. Walker, 35 Cal. 290 ; New Trial, construction of order extending time to file statement, Cottle v. Leitch, 43 Cal. 321 ; construction of statutory provisions, Id., 322. Harris v. McGregor 29 Cal. 124. Cited, Corporations, scope of statute pro- hibiting inquiry into right to act, Pacific Bank v. De Ro, 37 Cal. 542. Harris v. Reynolds 13 Cal. 514 Cited, Foreclosure, purchaser at sale en- titled to rents and profits, Walls v. Walker, 37 Cal. 432 ; Websteru. Cook, 38 Cal. 425. Harris y. S. F. S. R 41 Cal. 393. Cited, Reference, report of referee on special fact, Jones v, Clark, 42 Cal. 196. Hart v. Burnett 15 Cal. 530. Clted r Pueblo Lands, right and tenure, Stevenson v. Bennett, 35 Cal. 432 ; Title, vests without special grant, Id., 433 ; approved, legislative control of, San Fran- cisco v. Canavan, 42 Cal. 559 ; San Fran- cisco, tenure of pueblo lands, Id., 556, 559. Haskell v. Bartlett 34 Cal. 281. Approved, Street Assessments do not draw interest, Himmelmann v. Oliver, 34 Cal. 247. Hassie v. G. I. W. TJ. Cong 35 Cal. 378. Cited, Attachment, equitable demands not subject to garnishment, Grain v. Aldrich, 38 Cal. 520. Hastings v. Devlin 40 Cal. 358. Cited, State Lands, location on'unsurveyed lands void, Hastings v. Jackson^ 46 Cal. 239 ; Validity of location of warrant, Hastings v. Jackson, Id., 244. Hastings^. Halleck 13 Cal. 203. Cited, Appeal, effect of stipulation, Car- dinell v. O'Dowd, 43 Cal. 588. Hastings v. McGoogin 27 Cal. 84/. Approved, Preemption, right of, on Suscol Ranch, Hutton v. Frisbie, 37 Cal. 490, 491, S°2, 5°3- Hathaway u.lBrady 26 Cal. 581. Referred to, Hathaway v. Patterson, 45 Cal. 298 ; Set-off, right of, when property held in trust, Id., 300. Hathaway v. Davis 33 Cal. 161 . Cited, Attachment, when may issue, Wheeler v. Farmer, 38 Cal. 215 ; Judg- ment, conclusive on sureties on attach- ment bond, Murdock v. BrookB, 38 Cal. 601. Hathaway k>. De Soto. .' 21 Cal. 192. Cited, Partition, necessary ^parties to ac- tion, Sutter v. San Francisco, 36 Cal. 116. Havens v. Dale 18 Cal.' 359. Cited, Conveyance, sufficiency of, Schmitt v. Giovanari, 43 Cal. 624. Havens v. Dale 30 Cal. 547. Approved, Costs, in ejectment, Lawton v. Gordon, 37 Cal. 207. 404 TABLE OF CASES. Hawkins v. Reichert 28 Cal. 534. Approved, Ejectment, to be brought only against party in possession, Mahoney 0. Middleton, 41 Cal. 53 ; against employer, ■when employee in possession, Polaok v. Mansfield, 44 Cal. 39. Hawley v. Brumagim 33 Cal. 394. Cited, Corporate Stock, similar shares of same value, Atkins v. Gamble, 42 Cal. 100. Hayesu. Josephi 26 Cal. 535. Cited, Mortgage, tender of debt after law day, Ketchum v. Crippen, 37 Cal. 226. Hays v. Hogan 5 Cal. 241. Commented on and distinguished, Com- pulsory Payment, what constitutes, Buck- nail v. Story, 46 Cal. 596. Hazeltine v. Larco 7 Cal. 32. Approved, Guaranty, by indorsement on negotiable instrument, Howland v. Aitch, 38 Cal. 135, 136. Head v. Fordyce 17 Cal. 149. Cited, Quieting Title, to mining claim, Pralus v. Pacific G. & S. M. Co., 35 Cal. 34- Hegeler v. Henckell 27 Cal. 491. Cited, New Trial, right to move, how waived, Campbell v. Jones, 41 Cal. 518 ; Amendment, power of Court over clerical errors in record, Estate of Schroeder, 46 Cal. 316. Hendrick v. Crowley 31 Cal. 471. Cited, Street Assessment, liability of lot qwner, on what depends, Meuser v. Ris- don, 36 Cal. 244, 245 ; Evidence, proof of consideration in written instrument, Rhine v. Ellen, 36 Cal. 369. Henry v. Everts, 29 Cal. 610 ; same case, 30 Cal. 425. Cited, Appeal, findings to support judg- ment, impliedj Morrill v. Chapman, 35 Cal. 87 ; Shelby v. Houston, 38 Cal. 421 ; Smith v. Cushing, 41 Cal. 99 ; Judicial Sale, rights of purchaser to rents and prof- its, Webster v. Cook, 38 Cal. 425. Hentsch v. Porter 10 Cal. 555. Approved, Pleading, objections to cannot be taken for first time on appeal, Bank of Stockton v. Howland, 42 Cal. 134. Herold v. Smith 34 Cal. 122. Cited, Pleading, counter claim in answer need not be replied to, Jones v. Jones, 38 Cal. 585. Herrfter v. Porter 23 Cal. 385. Cited, Assignment, of part of entire de- mand, when void, Grain v. Aldrich, 38 Cal. 519. Heston v. Martin 11 Cal. 41 . Cited, Mechanic's Lien, sufficiency of de- scription in notice, dissenting opinion of Crockett, J., in Hicks v. Murray, 43 Cal. 522. Hewes v. Reis 40 Cal. 255. Approved, Street Assessment, certificate of Superintendent as to " unknown own- er" conclusive, Chambers v. Satterlee, 40 Cal. 518 ; Right of Appeal, not a remedy for illegal acts of Supervisors, Id., 526 ; cited, failure to post notice for five days fatal, Hixon v. Brodie, 45 Cal. 277. Hickman v. O'Neal 10 Cal. 292. ■ Approved, Superior Court of San Fran- cisco, constitutionality of statute creat- ing, Vassault v. Austin, 36 Cal. 696 ; Ex parte Stratman, 39 CaL 519 ; cited, char- acter of jurisdiction, McCauley v. Eulton, 44 Cal. 360. Hicks v. Coleman 25 Cal. 122. Cited, Lands, constructive possession un- der deed, Russell v. Harris, 38 Cal. 428 ; Judson v. Malloy, 40 Cal. 308 ; Donahue v. Gallavan, 43 Cal. 575 ; Russell v. Har- ris, 44 Cal. 493 ; doctrine explained, Walsh, v. Hill, 38 Cal. 487 ; rule limited, Cannon v. Union Lumber Co., 38 Cal. 676 ; Modified, Wolfskill v. Malajowich, 39 Cal. 280 ; cited, Deed,description in, by reference to other instrument, Neuval v. Cowell, 36 Cal. 651 ; Evidence, secondary of lost deed, practice, Mayo v. Mazeaux, 38 Cal. 449. Hicks v. Herring 17 Cal. 566. Approved, Forcible Entry and Detainer, damages for waste recoverable in separate action, Warburton v. Doble, 38 Cal. 622. Hicks v. Michael 15 Cal. 107. Cited, Injunction, discretion of Court in granting or dissolving, De Godey v. Godey, 39 Cal. 167. Hicks v. Whitesides, 18 Cal. 700 ; same case, 23 Cal. 404. Referred to on third appeal, same case, 35 Cal. 152; approved, Possessory Action, strict compliance with statute required, Crowell v. Lan Franco, 42 Cal. 656. Hidden v. Jordan, 21 Cal. 92 ; same case, 28 Cal. 301 ; 32 Cal. 397. Approved, Findings, manner of finding facts, MoClory v. McClory, 38 Cal. 577 j of supplying defects and omissions, Prince TABLE OP OASES. 405 v. Lynch, 38 Cal. S31 ; proceedings to cor- rect, Id., 536; Appeal, findings necessary to sustain judgment presumed, Poppe v. Athearn, 42 Cal. 617 ; Trust, -when result- ing trust arises, Case v. Codding, 38 Cal. 193 ; enforcement of parol trust, Pujol v. McKinlay, 42 Cal. 568 ; cited, Statute of Frauds will not protect a fraud, Sandfoss v. Jones, 35 Cal. 488, 489 ; Appeal, pre- sumption that record contains all the evi- dence pertinent, Smith v. Athern, 34 Cal. 511 ; Clark v. Gridley, 35 Cal. 403. Higgins v. Bear River & A. W. & M. Co. 27 Cal. 153. Cited, Legal Tender, statute constitu- tional, Belloc v. Davis, 38 Cal. 254; doubted, distinction made as to contracts, Id., 255. Higgins v. Houghton 25 Cal. 252. Approved, State Lands, title in school lands when it vests, Sherman v. Buick, 45 Cal. 667. Higgins v. Wortell 18 Cal. 330. Cited, Pleading, insufficient denial equiv- alent to an admission, Doll v. Good, 38 Cal. 290 ; Huston v. T. & C. C. T. R. Co., 45 Cal. 553. Hihn v. Peck 30 Cal. 280. Cited, Execution Sale, Sheriff's deed, on whom conclusive, Blood v. Light, 38 Cal. 658 ; cited, objections to deed as evidence, when to be taken, Gates v. Salmon, 35 Cal. 598. Hildebrand v. Stewart 41 Cal. 387. Cited, State Lands, application to pur- chase, Woods v. Sawtelle, 46 Cal. 391. Hill v. Grigsby 32 Cal. 55. Distinguished, Vendor's Lien, when not a bar to the remedy by attachment, Porter v. Brooks, 35 Cal. 202, 208. Hill v. Grigsby 35 Cal. 656. Cited, Specific Performance, contract for sale of land, payment by installments, Rourke v. McLaughlin, 38 CaL 200 ; tender of deed requisite, Kelly v. Mack, 45 Gal. 304 ; construction of contract, rights of purchaser, Brennan v. Ford, 46 Cal. 16. Himmelmann v. Cofran 36 Cal. 411. Cited, Street Assessment, duty of Super- intendent to authenticate record, Shepard v. McNeil, 38 Cal. 75. Himmelmann v. Danos 35 Cal. 441 . Approved, Street Assessment, Superinten- dent to authenticate record, Dougherty v. Hitchcock, 35 Cal. 521, 522 ; cited, Record, how authenticated, Himmelmann v. Hoad- ley, 44 Cal. 225. Himmelmann v. Hotaling 40 Cal. 1 1 1 . Cited, Bank Check, presentment, when in time, Simpson v. Pacific M. L. Ins. Co., 44 Cal. 142. Himmelmann v. Oliver 34 Cal. Z46. Cited, Street Assessment, judgment bears interest from its rendition, Dougherty v. Miller, 38 Cal. 549. Himmelmann v. Reay, Cal. Supreme Court, July Term, 1869 (not reported). Referred to, Street Assessment, same case, 38 Cal. 164. Himmelmann v. Steiner 38 Cal. 175. Cited, Street Assessment, validity, as to "unknown" owners, Hewes v. Reis, 40 Cal. 261 ; lot owners not parties to the contract, Himmelmann v. Spanagel, 39 Cal. 392 ; referred to, Practice, on stipula- tions, Himmelmann v. Sullivan, 40 Cal. 126. Himmelmann v. Sullivan 40 Cal. 125. Followed, same term, Street Assessment, judgment on stipulation, practice, Him- melmann v. Goetjen ; Himmelmann v. King ; Himmelmann v- Johnson (not re- ported). \ Hoagu. Pierce 28 Cal. 187. Cited, Land, constructive possession under deed, Walsh v. Hill, 38 Cal. 487 ; evidence of, Bowers v. Cherokee Bob, 45 Cal. 508. Hobart v. Butte Co 17 Cal. 23. Approved, Constitutional Law, legislative power, how far controlled, S. & V. R. R. Co. v. City of Stockton, 41 Cal. 160; Id., 186. Hobbs v. Duff 23 Cal. 596. Referred to, and law of case announced, Hobbs v. Duff, 43 Cal. 488. Hockstacker v. Levy 11 Cal. 76. Cited, Injunction, will not lie to restrain proceedings of Court of co-ordinate juris- diction, Crowley v. Davis, 37 Cal. 269. Hodgkins v. Jordan 29 Cal. 577. Cited, Nonsuit, when may be ordered, Buel v. Frazier, 38 Cal. 697. Hoffman v. Stone 7 Cal. 46. Cited, Water Rights, separate appropria- tions, N. C. & S. C. Co. v. Kidd, 37 Cal. 315- Hoffman v. Tuolumne W. Co. . 10 Cal. 413. 406 TABLE OF CASES. Cited, Negligence, liability for injuries by breakage of dam, Campbell v. B. B. & A. W. & M. Co., 35 Cal. 683. Holden v. Pinney 6 Cal. 234. Cited, Homestead, actual, residence, as prima facie evidence of intent to create. Brooks v. Hyde, 37 Cal. 372. Holiaday v. Frisbie 15 Cal. 630. Cited, San Francisco, tenure of pueblo lands, San Francisco v. Canavan, 42 Cal. 557- Holman v. Taylor 31 Cal. 338. Criticised, Constitutional Construction, jurisdiction of Justices' Courts, Pollock v. 1 CnmmingB, 38 Cal. 684, 685. Hook v. White 36 Cal. 300. Commented on, Pleading, insufficient de- nials, Davanay v. Kggenhoff, 43 Cal. 397. Hope v. Jones 24 CaL 89. Cited, Executor and Administrator, appor- tionment of commissions between, jurisdic- tion, Gurnee v. Maloney, 38 Cal. 88. Hopkins v. Cheeseman 28 Cal. 180. Cited, as not in point, jurisdiction on ap- peal, Winter v. Fitzpatrick, 35 Cal. 273. Hopper v. Jones 29 Cal. 18. Cited, Deed, as a mortgage, parol proof of, Jackson v. Lodge, 36 Cal. 49 ; Baynor v. Lyons, 37 Cal. 454. ' Horn v. Volcano "Wat. Co 13 Cal. 62. Approved, Parties, intervention, when au- thorized, Stich v.' Dickinson, 38 Cal. 611. Howe v. Independence Co 29 Cal. 72. Cited, Default, costs to be imposed as a condition for setting aside, Leet v. Grants, 36 Cal. -289. Hubbard v. Barry 21 Cal. 321. Cited, Ejectment, action maintainable on right of entry and possession, Toland v. Mandell, 38 Cal. 43 ; when defendant can- not show title outstanding in a stranger, Bradley v. Lee, 38 Cal. 370. Hubbard v. Sullivan 18 Cal. 508. Cited, San Francisco, tenure of pueblo lands in trust, San Francisco v. Canavan, 42 Cal. 557. Huffman v. San Joaquin Co. . . .21 Cal. 426. Cited, County, not liable for injuries from defective bridge or highway, Winbigler v. Los Angeles, 45 Cal. 38, Hughes v. Davis 40 Cal. 117. Approved, Deed, absolute, conveys legal title, though shown to be intended as a mortgage, Espinosa v. Gregory, 40 Cal. 63 ; Davenport u. Turpin, 43 Cal. 604. Hughes v. Devlin 23 Cal. 501. / Commented on, Public Domain, vested rights of miners in mineral lands, Spencer v. Winselman, 42 Cal. 483. Humphreys v. McCall 9 Cal. 59. Cited, Pleading, insufficient denials, Da- vanay v. Eggenhoff, 43 Cal. 397. Huusacker v. Borden 5 Cal. 288. Cited, County, rights of creditors of, Rose v. Estudillo, 39 Cal. 275. Hunter v. Watson 12 Cal. 363. Cited, Lands, possession as notice of title, Pell v. McElroy, 36 Cal. 271. Hurlbutt v. Butenop 27 Cal. 50. Cited, Evidence, when certified copy of in- strument admissible, Mayo v. Mazeaux, 38 Cal. 449. Hutton v. Frisbie 37 Cal. 475. Followed, Knowles v. Greenwood, True v. Tormey, Fowler v. Frisbie, True v. Thomas, Dixon v. Brownlie, Martin v. Frisbie, Brown v. Frisbie, and Whitney v. Thomas, decided" by California Supreme Court, July Term, 1869, (not reported ) j cited, Pre-emption Bights, after execution sale of prior possessory rights, Montgom- ery v. Whiting, 40 Cal. 298 ; Kenyon v. Quinn, 41 Cal. 329 ; pre-emption of lands included in Suscol ranch, Marquez v. Frisbie, 41 Cal. 625 ; approved, Power, of Congress to withdraw land from pre-empr tion, W. P. B. B. Co. v. Tevis, 41 Cal. 493; Marquez, v. Frisbie, Id., 626; Loire. Hutchings, Id. , 638. Hutton v. Reed 25 Cal. 478. Approved, New Trial, statement to contain grounds of" error relied on, Beanss.Eman- uelli, 36 Cal. 120 ; Butterfield v. C. P. B. B. Co., 37 Cal. 385 ; Spanagel v. Dellinger, 38 Cal. 280; Wilson v. Wilson, 45 Cal. 405 ; Appeal, statement when not re- quired, Jones v. City of Petaluma, 36 Cal. 232. Imlay v. Carpentier 14 Cal. 173. Cited, Judgment, remedy by motion on void judgment, Ketchum v. Crippen, 37 Cal. 228. Imley v. Beard 6 Cal. 666. Approved, Appeal, does not lie from order entered by consent, San Francisco v. Cer- tain Real Estate, 42 Cal. 518. TABLE OF OASES. 407 Ingersoll v. Truebody 40 Cal. 603. Cited, Husband and Wife, presumptions as to conveyance to wife, Woods v. Whit- ney, 42 Cal. 361 ; conveyance a gift, Hig- gins t>. Higgins, 46 Cal. 263. Ingoldsby v. Juan 12 Cal. 564. Cited, Conveyances, validity of record of, Emmal i>. Webb, 36 Cal. 203. Iron Mountain Co. v. Haight. . . 39 Cal. 540. Followed, Mandamus, Garnett v. Post, 39 Cal. 662. Irwin v. Batekus.' 25 Cal. 214. Applied, Undertaking, on appeal, who con- cluded by judgment, Murdock v. Brooks, 38 Cal. 601. Isaac v. Swift 10 Cal. 71. Approved, Judgment, lien not extended by execution, Bagley v. Ward, 37 Cal. I33.I4L Jackson v. Feather River Water Co. 14 Cal. 18. Approved, Appeal, injury presumed from error, Rice v. Heath, 39 Cal. 612. Jackson v. Lodge 36 Cal. 28. Approved, Deed, as mortgage may be shown by parol, Raynor v. Lyons, 37 Cal. 454 ; dissenting opinion of Rhodes, J., Crockett, J., concurring; Deed, absolute conveys legal title, though intended as a mortgage, Hughes v. Davis, 40 Cal. 120; Leading Opinion denied, Higgins v. Hig- gins, 46 Cal. 264. Jackson v. Shawl 29 Cal. 267. Cited, Municipal Corporation, city ordi- nance construed, Johnson v. Simonton, 43 Cal. 249. James, Estate of 23 Cal. 415. Cited, Homestead, jurisdiction as to ques- tion of title, Rich v. Tubbs, 41 Cal. 36. James v. Williams 31 Cal. 211. Cited, Findings, opinions no part of, McClory v. McClory, 38 Cal. 577 ; Appeal, findings to support judgment presumed, Smith v. Cushing, 41 Cal. 99 ; Poppe v. Athearn, 42 Cal. 617. Jansen v. Brooks 29 Cal. 214. Approved, Unlawful Entry, what consti- tutes, Shelby v. Houston, 38 Cal. 422. Jenkins v. Frink 27 Cal. 337. Cited, New Trial, motion waived by fail- ure to file statement, Campbell v. Jones, 41 Cal. 518. Jenny Lind Co. v. Bower 11 Cal. 194. Cited, New Trial, on ground of newly discovered evidence, Arnold v. Skaggs, 35 CaL 688 ; Case v. Codding, 38 Cal. 194. Johnson v. Lamping 34 Cal. 293. Cited, Execution Sale, validity of title of purchaser, Hunt v. Loucks, 38 Cal. 377 ; remedy of owner on sale under judgment reversed, Reynolds v. Hosmer, 45 Cal. 629. Johnson v. Reynolds, Cal. Supreme Court, Jan. Term, 1857 (not reported). Doubted, Execution, levy on and sale of choses in action, Crandall v. Blen, 13 Cal. 22 ; Davis v. Mitchell, 34 Cal. 88. Johnson v. Sherman, 15 Cal. 287, Supreme Court, July Term, 1858 (not reported). Approved, Mortgage, a mere lien or secur- ity, Jackson v. Lodge, 36 Cal. 39 ; Pos- session, by mortgagee does not affect its nature, Id., 43 ; Deed may be proved by parol to be intended as a mortgage, Id., 42, 47, 48 ; Raynor v. Lyons, 37 Cal. 454 ; commented on, Assignment, of lease as a mortgage, Jackson v. Lodge, 36 Cal. 64. Johnson v. Van Dyke 20 Cal. 225. Approved, Mexican Grant, final confirma- tion, what constitutes, Sabichi v. Aguilar, 43 Cal. 291 ; when Statute of Limitations begins to run, Id., 291, 294. Johnston v. Russell 37 Cal. 670. Explained, Contract, illegal, no remedies on, Hill v. Kidd, 43 Cal. 616. Jones v. Block 30 Cal. 227. Cited, Eindings, of what should consist, McClory v. McClory, 38 Cal. 577. Jones v. Martin 16 Cal. 165. Cited, Conveyances, record of official seal, Emmal v. Webb, 36 Cal. 203. Jones v. Petaluma 36 Cal. 230. Approved, Pleading, denial, "upon "in- formation and belief, sufficient, Kirstein v. Madden, 38 Cal. 163 ; approved, TownB, construction of town lands, Act of Con- gress, Alemany v. Petaluma, 38 Cal. 558 ; cited, Estoppel, by judgment, Thompson v. McKay, 41 Cal. 227. Jones v. Post 6 Cal. 102. Cited, Guaranty, when not within Statute of Frauds, Howland v. Aitch, 38 Cal. 13 5. Jones v. Thompson 12 Cal. 191. Cited, Execution, on partner's interest in partnership property, Robinson v. Tevis, 38 Cal. 615. 408 TABLE OF OASES. Judson v. Love 35 Cal. 463. Cited, Appeal, dismissal on death of party, Shartzer v. Love, 40 Cal. 96 ; Judgment, in favor of one deceased is a nullity, Mc- Creery li. Everding, 44 Cal. 286. Keaneu. Cannovan 21 Cal. 291. Cited, Land, constructive possession un- der color of title, Walsh v. Hill, 38 Cal. 487 ; Evidence, admissibility of deed to prove possession, Id., 488 ; approved, Aban- donment, a question of intention, Moon v. Rollins, 36 Cal. 339, 340 ; cited, descrip- tion of land, sufficiency of, Garwood v. Hastings, 38 Cal. 224. Kearsing v. Kilian 18 Cal. 491. Cited, Conveyance, redelivery of deed does not revest title, Lawton v. Gordon, 37 Cal. 207. Keeran v. Griffith. See Kernan v. Griffith. Kelly v. Natoma Wat. Co 6 Cal. 105. ' Commented on, Water Rights, test of priority of right, N. C. & S. C. Co. v. Kidd, 37 Cal. 312. Kelsey v. Abbott 13 Cal. 609. Approved, Tax Title, party in possession cannot acquire title at tax sale, Bernal v. Lynch, 36 Cal. 146; Barrett u. Amerein, 36 Cal. 326 ; Garwood v. Hastings, 38 Cal. 223 ; Reily v. Lancaster, 39 Cal. 356. Kendall v. Clark 10 Cal. 17. Cited, Execution, levy and sale of home- stead void, Deffeliz v. Pico, 46 Cal. 292. Kendall v. Miller 9 Cal. 591 . Approved, Guardian and Ward, sale of property by guardian invalid, De La Mon- gnie v. Union Ins. Co., 42 Cal. 293. Kent v. Snyder 30 Cal. 666. Cited, Pleading, facts constituting fraud must be specially stated, Capuro v. Build- ers Ins. Co., 39 Cal. 125 ; Demurrer, Stat- ute of Limitations must be specially set up, Brennan v. Ford, 46 Cal. 12. Kernan v. Griffith, 27 Cal. 87 ; same case sub nom. Keeran v. Griffith, 31 Cal. 461. Affirmed, Keeran v. Griffith, 34 Cal. 580, 584; cited, State Lands, validity of legislative grant, Megerlev. Ashe, 27 Cal. 327; oral testimony admissible to prove lands to be swamp and E overflowed, Thorn- ton v. Thompson, 28 Cal. 603 ; Robinson v. Forrest, 29 Cal. 319; approved, Id., 322 ; cited, Swamp Lands, what consti- tute, Keeran v. Allen, 33 Cal. 547 ; ap- proved, State Patent as evidence, Id., 548 : title of State, when it vests, Sherman v. Buick, 45 Cal. 668. Ketchum v. Crippen 31 Cal. 365. , Overruled, Appeal, that order after final judgment to be appealable must be in the line of the proceedings, Calderwood v. Peyser, 42 Cal. 113, 117. Kidd v. Laird. 1 15 Cal. 161. Cited, Water Rights, title by appropria- tion construed, N. C. & S. C. Co. v. Kidd, 37 Cal. 311. Kierski v. Matthews 25 Cal. 591. Cited, Legal Tender Act, constitutional, Belloc v. Davis, 38 Cal. 254. Kile v. Tubba, 23 Cal. 43 1 ; same case, 28 Cal. 402; 32 Cal. 332. Cited, Ejectment, evidence of title in, Page v. O'Brien, 36 Cal. 562 ; land, con- structive possession under color of title, Walsh v. Hill, 38 Cal. 487 ; who not enti- tled to benefit of rule, Id., 489. Killey v. Wilson. 33 Cal. 690. Cited, Conveyance, redelivery of deed does not revest title, Lawton v. Gordon, 37 Cal. 207 ; Possession, as notice of title, Pell v. McElroy, 36 Cal. 272 ; as notice of equita- ble rights, Moss v. Atkinson, 44 Cal. 17. Kimball v. Gearhart 12 Cal. 27. Approved, Water Rights, diligence re- quired in appropriation, N. C. & S. C. Co. v. Kidd, 37 Cal. 311, 312, 314. Kimball v. Lohmas 31 Cal. 154. Approved, Land, adverse possession, what constitutes, Garrison v. McGlockley, 38 Cal. 80 ; cited, Constructive Possession, underdeed, Cannon v. Union Lumber Co., 38 Cal. 673 ; commented on, Replevin, for timber severed from realty, Page v. Fowl- er, 39 Cal. 417. Kimball v. Semple 25 Cal. 440. Cited, Ejectment, patent as evidence, Yates v. Smith, 40 Cal. 667 ; Evidence, of prior grant of land, Id., 668. Kimball v. Semple _ 31 Cal. 657. Cited, New Trial, exhibits referred to in statement, presumptions on appeal, People v. Bartlett, 40 Cal. 147. Kimball v. Semple Cal. Sup. Ct., Jan. T., 1870, (not reported). Commented on, Appeal from Orders, juris- diction on, Calderwood v. Peyser, 42 Cal. 114, 115. King v. Davis 34 Cal. 100. TABLE OP CASES. 409 Cited, Pleading, objection to defects, ■when to be taken, Lee v. Figg, 37 Cal. 336. King v. Randlett 33 Cal. 318. Cited, Mining Claim, title to cannot be passed by parol, Felger v. Coward, 35 Cal. 653- Kirkaldie v. Larrabee 31 Cal. 455. Approved, Mortgage, of public lands, ti- tle subsequently acquired by mortgagor, Christy v. Dana, 42 Cal. 179. Kirkham v. Dupont 14 Cal. 559. Cited, Foreclosure, subsequent incum- brancers proper though not necessary par- ties, Carpentier v. Brenham, 40 Cal. 235 ; effect of decree, Id., 238. Kisling v. Shaw 33 Cal. 425. Cited, Witness, incompetency of party as representative of deceased, Satterleev. Bliss, 36 Cal. 512; San Francisco, tenure of pueblo lands, San Francisco u. Cana- van, 42 Cal. 557. Kittle v. Pfeiffer 22 Cal. 484. Cited, Dedication, to public use, by sale of lots on plat, Stone v. Brooks, 35 Cal. S" 1 - Kline v. C. P. R. R. Co. . . 37 Cal. 400 ; same case, 39 Cal. 587. Cited, Respondeat Superior, when act of agent binds principal, Baker v. Kinsey, 38 Cal. 634; approved, Negligence, limita- tion of doctrine of contributory negli- gence, Flynn v. S. F. & S. J. R. R., 40 Cal. 19. Kline v. Chase ,. . 17 Cal. 596. Cited, Judicial Sale, rights of purchaser to rents and profits, Walls v. Walker, 37 Cal. 432. KHnk v. Cohen 13 Cal. 623. Approved, Pleading, inconsistent defenses in answer, practice, Buhne v. Corbett, 43 Cal. 269. Knight, Estate of 12 Cal. 200. Cited, Executors' and Administrators' du- ties and liabilities in use of funds, Bren- ham v. Story, 39 Cal. 188. Knight u.Truett 18 Cal. 113. Cited, Judicial Sale, purchaser entitled to rents and profits, Walls v. Walker, 37 Cal. 432- Knowles, Ex parte 5 Cal. 300. Denied, Naturalization, power of Court to issue papers, Matter of Connor, 39 Cal. 101. Knowles v. Yeates 31 Cal. 82. Disapproved, Appeal, in special cases, Ap- peal of S. O. Houghton, 42 Cal. 64 ; ap- proved in dissenting opinion of Rhodes, C. J., Id., 68. Koppikus v. State Capitol Com'rs 16 Cal. 248. Cited, Appeal, in special cases, dissenting opinion of Rhodes, C. J., Appeal of S. O. Houghton, 42 Cal. 68. Lake Merced "Water. Co v. Cowles 31 Cal. 215. Denied, Condemnation, of land, jurisdiction on conflicting claims of rival corporations, S. F. & A. W. Co. v. A. W. Co., 36 Cal. 646. Lamping v. Hyatt. . . .' 27 Cal. 99. Referred to, Johnson v . Lamping, 34 Cal. 298 ; cited, Judicial Sale, validity of title of purchaser, Hunt v. Loucks, 38 Cal. 377. Landecker v. Houghtaling 7 Cal. 391. Cited, Evidence, declarations of vendor as evidence of fraud, Jones v. Morse, 36 Cal. 207. Lander v . Castro 43 Cal. 497. Cited, Attorney in Fact, liability for note drawn in name of principal, Blanchard v. Kaull, 44 Cal. 450. Landers v. Bolton 26 Cal. 393. Cited, Pleading, denials to sworn com- plaint must be specific, Doll v. Good, 38 Cal. 290 ; Conveyance, possession as notice of title, Pell v. McElroy, 36 Cal. 272 ; Possession, of tenant as notice, Thompson v. Pioche, 44 Cal. 516. Lane v. Gluckauf 28 Cal. 288. Cited, Judgment, power of court to grant relief, N. C. & S. C. Co. v. Kidd, 37 Cal. 3 2 4- Langenour v. French 34 Cal. 92. Cited, Insolvency, validity of discharge, Flint v. Wilson, 36 Cal. 27. Larco v. Casaneuava 30 Cal. 560. Cited, Jurisdiction, power of Judge at chambers, Bennett v. Southard, 35 Cal. 691 ; Pleading, averments of matters of evidence, Jones v. Petaluma, 36 Cal. 233. Larrabee v. Baldwin 35 Cal. 155. Cited, Corporations, liability of stock- holder, Prince v. Lynch, 38 Cal. 534 ; Limitation of action on, Stilphen v. Ware, 45 Cal. III. Lasky v. Davis 33 Cal. 677. Overruled, Appeal, review of order on 410 TABLE OF CASES. motion to retax costs, Dooly v. Norton, 41 Cal. 441 ; cited in dissenting opinion of Rhodes, 0. J., Id., 443. Lathrop v. Brittain 30 Cal. 680. Cited, Offices, of Sheriff and Tax Collector distinct, People v. Ross, 38 Cal 77. Lathrop v. Mills 19 Cal. 513. Approved, Constitutionality of Statute, " Settlers Act," Anderson v. Pisk, 36 Cal. °33- Lawrence v. Ballou 27 Cal. 520. Cited, Conveyance, grantee, when takes as tenant in common, Grogan U. Vache, 45 Cal. 612. Lawrence v. Fulton 19 Cal. 683. Approved, Abandonment, lapse of time as an element of, Moon v. Rollins, 36 Cal. 338. Lawrence v. Montgomery 37 Cal. 183. Cited, Covenant, of seizin, a personal cov- enant, Salmon v. Vallejo, 41 Cal. 484, 485. Lawton v. Gordon 34 Cal. 36. Affirmed, Conveyance, redelivery of deed does not revest title, Lawton v. Gordon, 37 Cal. 207. Leach v. Day 27 Cal. 643. Cited, Injunction, to restrain trespass, when granted, N. C. & S. C. Co., v. Kidd, 37 Cal. 307. Learned v. Welton 40 Cal. 349. Affirmed and followed, Deed, by trustee, Taylor v. Welton, and Butler v. Welton, same term, (not reported). Ledley v. Hayes 1 Cal. 160. Approved, Trespass, demand not necessary in action against Sheriff, Wellmanu. Eng- lish, 38 Cal. 584. Leese v. Clark , 3 Cal. 17 ; same case, 18 Cal. 535 ; 20 Cal. 387. Cited, Mexican Grant, what essential to vest perfect title, Yates v. Smith, 38 Cal. 66 ; Patent, takes effect by relation, Morrill v. Chapman, 35 Cal. 88; approved, Yates v. Smith, 38 Cal. 71 ; confirmed, Survey, takes effect by relation, Morrill v. Chap- man, 35 Cal. 88 ; Third Persons, not con- cluded by patent, who are, Miller v. Dale, 44 Cal. 577 ; Patent, not subject to collat- eral attack, Id., 578 ; Chipley v. Parris, 45 Cal. 539 ; San Prancisco, tenure of pueblo lands, San Prancisco v. Canavan, 42 Cal. 556. Leese v. Clark 29 Cal. 664. Approved, Ejectment, who should be re- moved under writ of restitution, Weth- erbee v. Dunn, 36 Cal. 150. Lefevre, Appeal of 32 Cal. 565. Instanced, Appeal, in special cases, dissent- ing opinion of Rhodes, C. J., Appeal of S. O. Houghton, 42 Cal. 68. LefHngwell v. Griffing 29 Cal. 192. Cited, Appeal, from order when it lies Calderwoodu. Peyser, 42 Cal. 117. Lent v. Morrill 25 Cal. 492. Cited, Mortgage, effect of conveyance by mortgagor, Barker v. Babel, 36 Cal. 20 ; approved, burdens cannot be increased as against junior mortgagees, Wood v. Good- fellow, 43 Cal. 188. Lent v. Shear .'. 26 Cal. 361. Cited, Foreclosure, action when barred, Sichel v. Carrillo, 42 Cal. 503 ; Mortgage, conveyance of premises by mortgagor, effect of, Barber v. Babel, 36 Cal. 20 : ap- proved, burdens cannot be increased as against junior mortgagees, Wood v. Good- fellow, 43 Cal. 188. LeRoy v. Rassette 32 Cal. 171. Cited, New Trial, right, how waived, Campbell v. Jones, 41 Cal. 518 ; approved, Bornheimer v. Baldwin, 42 Cal. 33. Lestrade v. Barth 19 Cal. 660. Cited, Land, adverse possession as notice of title, Pell v. McElroy, 36 Cal. 271 ; approved, Ejectment, equitable defenses may be set up, Bruck v. Tucker, 42 Cal. 352 ; must be specially pleaded, McCauley v. Pulton, 44 Cal. 362. Levy v. Getleson 27 Cal. 685. Approved, Order, on motion to retax costs, when appealable, Dooly v. Norton, 41 Cal. 441 ; cited, Id., 443- Lewis v. Clarkin 18 Cal. 399. Cited, Judgment, against joint debtors, change of common law rule, Tay v. Haw- ley, 39 Cal. 95. Lewis v. Covillaud 21 Cal. 178. Cited, Vendor's Lien, not assignable, Ross v. Heintzen, 36 Cal. 321. Lick v. Austin 43 Cal. 590. Approved, Taxation, double, what consti- tutes, Savings & L. S. v. Austin, 46 Cal. 483, 485 ; cited, solvent debts taxable, Id., 492. Lick v. Diaz 30 Cal. 65. TABLE OF CASES. 411 Referred to on second appeal, Action, to quiet title, Lick v. Diaz, 37 Cal. 440. Lick v. Faulkner 25 Cal. 404. Approved, Legal Tender Act, constitution- al, Belloo v. Davis, 38 Cal. 254. 1 Lick v. O'Donnell 3 Cal. 59. Cited, Deed, -when grantee becomes ten- ant in common, Lawrence v . Ballou, 37 Cal. 520. Lincoln v. Colusa County 28 Cal. 662. Cited, Roads and Highways, powers of Supervisors, Kimtjall v. Board of Super- visors, 46 Cal. 23. Lisman v. Early. 15 Cal. 199. Approved, Evidence, practice on admis- sion of, Foote v. Richmond, 42 Cal. 442. Livennore v. Stine 43 Cal. 274. Referred to, Attachment, duty of outgo- ing Sheriff, Sagely v. Livermore, 45 Cal. 614. Lodge v. Turman 24 Cal. 385. Cited, Deed, as mortgage, parol evidence,to prove, Jackson v. Lodge, 36 Cal. 62 . Logan v. Hillegass 16 Cal. 200. Approved, Judgment, remedy by motion against void judgment, exclusive, Ketch- um v. Crippen, 37 Cal. 228 ; Murdook v. De Vries, 37 Cal. 529. Long v. Dollarhide 24 Cal. 218. Approved, Deed, declarations of grantor, when not admissible to impeach title, Spanagel v. Dellinger, 38 Cal. 282,284; cited, Conveyances, by parol under Mexi- can law, valid, Cook v. Frink, 44 Cal. 332 ; Hall v. Yoell, 45 Cal. 587. Long v. Neville 29 Cal. 131 ; same case, 36 Cal. 455. Cited, Ejectment, who not liable to dispos- session, Rogers v. Parish, 35 Cal. 129; af- firmed, same case, 36 Cal. 460 ; cited, Ford v. Doyle, 37 Cal. 348. Lord v. Allen 26 Cal. 141. Approved, Mortgage, burdens cannot be increased as against junior mortgagees, Wood v. Goodfellow, 43 Cal. 188. Lord v. Morris 18 Cal. 482. Approved, Mortgage, burdens cannot be increased as against junior mortgagees, Wood v. Goodfellow, 43 Cal. 188 ; effect of conveyance by mortgagor, Barber v. Babel, 36 Cal. 20 ; Foreclosure, action, when barred, Sichelv. Carrillo, 42 Cal. 501, 503. Loveu. Sierra Nev. L. W. & M. Co 3 2 0al - 639- Cited, Equity*, when will relieve from de- fective execution of power, Gerdes v. Moody, 41 Cal. 349. Love v. Watkins 40 Cal. 547. Approved, Ejectment, will not lie against vendee in possession on conditions per- formed, Gerdes v. Moody, 41 Cal. 350, 351 ; Talbertu. Singleton, 42 Cal. 396 ; Brennan v. Ford, 46 Cal. 14 ; Statute of Limitations, does not run against equitable defense of vendee, same cases. Low v. Allen 26 Cal. 141. Approved, Mortgage, burdens cannot be increased by mortgagor, Barber v. Babel, 36 Cal. 20 ; Wood v. Goodfellow, 43 Cal. 188 ; Cause of Action, when barred, Sichel v. Carrillo, 42 Cal. 503. Low v. Henry 9 Cal. 538. Approved, Pleading, pleader held to his assumptions, Clark v. Phoenix Ins. Co., 36 Cal. 178. • Lowe v. Alexander 15 Cal. 296. Approved, Judgments, of inferior tribunals, what essential to validity of, Jolley v. Foltz, 34 Cal. 326 ; disapproved, Parol Ev- idence, admissible, of facts not appearing in docket, Id., 328; cited, in dissenting opinion of Sanderson, J., and Currey, C. J. ; Certiorari, what certified record, should show, C. P. R. R. Co. v. Placer Co., 34 Cal. 362 ; Partnership, property, title of purchase of interest in, McCauley v. Ful- ton, 44 Cal. 362. Lucas v. San Francisco, 7 Cal. 463 ; same case, 28 Cal. 591. Cited, Appeal, findings presumed in sup- port of judgment, Poppe v.. Athearn, 42 Cal. 617; referred to, Judgment, for as- signee conclusive on assignor, Wetmore v. San Francisco, 44 Cal. 298. Luckhart v. Ogden 30 Cal. 547. Approved, Contract, time for performance may be waived by parol, Waugenheim v.. Graham, 39 Cal. 175. Lyle v. Rollins. 25 Cal. 437. Cited, Action, to quiet title, possession by- plaintiff essential, N. C. & S. C. Co. v. Kidd, 37 Cal. 307 ; Sepulveda v. Sepulve- da, 39 Cal. 18 ; commented on, dissenting opinion of Temple, J., Id., 21 ; Appeal, Judgment, not disturbed where there is a conflict of evidence, Pralus v. Pacific G. & S. M. Co., 35 Cal. 37. Lyon v. Hancock. .35 Cal. 372. 412 TABLE OF OASES. Approved, Evidence, proof of threats ad- missible, People v. Scoggins, 37 Cal. 702 ; of declarations of party in action for ma- licious prosecution, Lamb v. Galland, 44 Cal. 612. Lyons v. Leimback 29 Cal. 139. Cited, Appeal, findings presumed in sup- port of judgment, Poppe v. Athearn, 42 Cal. 617. Maclay v. Love 25 Cal. 367; same case, 35 Cal. 398. Cited, Married Woman, incapable of con- tracting, Belloc v. Davis, 38 Cal. 256 ; ap- proved, Love v. Watkins, 40 Cal. 558 ; charging separate estate of, Althof v. Con- heim, 38 Cal. 233. Maeris v. Bicknell ,. 7 Cal. 261. Approved, Water Rights, by appropria- tion, how secured, N. C. & S. C. Co. v. Kidd, 37 Cal. 312. Magraw v. McGlynn 26 Cal. 420. Cited, Decree, against executors in gold coin when erroneous, Estate of Den, 39 Cal. 70. 'Mahler v. Newbauer 32 Cal. 168. Cited, Mortgage, tender of debt after law day, effect of, Ketchum v. Crippen, 37 Cal. 226. Mahlstadt v. Blanc 34 Cal. 577. Approved, Pleadings, amended complaint takes -the place of the original, People v. Nelson, 36 Cal. 377. Mahoney v. Van Winkle, 21 Cal. 552 ; same case, 33 Cal. 448. Cited, Mexican Grant, right of survey and segregation in government, Yates v. Smith, 38 Cal. 66 ; commented on, when Statute of Limitations begins to run, Sa- bichi v. Aguilar, 43 Cal. 292. Mahoney v. Wilson 15 Cal. 42. Bef erred to, Ejectment, on prior possession, Valentine v. Mahoney, 37 Cal. 392-399- Main v. Tappener 43 Cal. 206. Approved, Attachment, lien, how created, Sharp v. Baird, 43 Cal. 580. Manni;.B.ogers 35 Cal. 316. Approved, Judgment, in ejectment, of what conclusive, Larco v. Clements, 36 Cal. 134 ; cited, Homestead, actual resi- dence necessary, Gambette v. Brock, 41 Cal. 83. Markwall v. His Creditors 7 Cal. 213. Cited, Common Carrier, liability, under right of stoppage in transitu, Jones v. Earl, 37 Cal. 632. Marquez v. Prisbie 41 Cal. 624. Approved, Public Lands, withdrawal of from right of pre-emption, Low v. Hutch- ings, Id., 638. Marshall v. Ferguson 23 Cal. 65. Cited, Growing Crops, contract for sale of, not within Statute of Frauds, Davis v. McEarlane, 37 Cal. 636 ; distinguished, Nonsuit, grounds for, Johnson v. Moss, 45 Cal. 518. Marshall v. Shafter 32 Cal. 1 76. Cited, Judgment, in ejectment when an estoppel, Satterlee v. Bliss, 36 Cal. 514 ; Thompson v. McKay, 41 Cal. 227 ; Defini- tions, " claim " as applied to title to pub- lic land construed, Henley v. Hotaling, 41 Cal. 29 ; Pleading, in ejectment, plea of title after general issue, may be omitted, Brack v. Tucker, 42 Cal. 349 ; Evidence, sufficient proof of ouster, Salmon v. Wil- son, 41 Cal. 610. Martin v. Wade 37 Cal. 168. Approved, Contract, in violation of statute void, and without remedy, Hill v. Kidd, 43 Cal. 616. Marziou v. Fioche 8 Cal. 522. Cited, Assignment, of debt in parcels, - Grain v. Aldrich, 38 Cal. 519. Matthews v. Perrea 45 Cal. 51. Cited, Prescription, does not operate against the Government, Wilkins v. Mc- Cue, 46 Cal. 661. Mathewson v. Fitch 22 Cal. 86. Cited, Contract, with attorney, not against public policy, Hoffman v. Vallejo, 45 Cal. 572- Matoon v. Eder 6 Cal. 57 Commented on, Arrest and Bail, when writ of arrest will issue, Stewart v. Levy, 36 Cal. 167. Mauge v. Heringhi 26 Cal. 577. Cited, Pledge, sale of property in satisfac- tion of debt, Wright v. Boss, 36 Cal. 429. Mayne v. Jones 34 Cal. 483. Cited, Writ of Possession, execution of, Wetherbee v. Dunn, 36 Cal. 150. Mayou. Ah Loy 32 Cal. 477. Cited, Judgment, in tax suit, conclusive- ness of, People v. Doe G., 36 Cal. 222 ; com- TABLE OF OASES. 413 merited on, not subject to collateral attack, Eitel v. Foote, 39 Cal. 440. Mayo v. Foley 40 Oal. 281. Cited, Judicial Sale, title of purchaser, Jones v. Gillis, 45 Cal. 543 ; approved, Anderson v. Ryder, 46 Cal. 137. Mayo v. Mazeaux 38 Cal. 442. Approved, Sacramento City, deed includ- ing site of, Sanchez v. Neary, 41 Cal. 487 ; Talbert v. Singleton, 42 Cal. 392 ; Poor- man v. Miller, 44 Cal. 274. McCarthy v. 'White 21 Cal. 495. Cited, Mortgage, burdens cannot be in- creased as against junior mortgagees, Wood v. Goodfellow, 43 Cal. 188. McCauley t>. Brooks 16 Cal. 11. Approved, Mandamus, to executive officer, when it lies, Harpending v. Haight, 39 Cal. 210 ; Tilden v. Sacramento County, 41 Cal. 77 ; cited, State Indebtedness, rights of creditors under contracts ■with State, Rose v. Estudillo, 39 Cal. 274 ; dis- approved, Appropriations, authority of Controller to draw warrants, Stratton v. Green, 45 Cal. 151. McCauley v. Pulton 44 Cal. 355. Cited, Judgment, presumptions on collate- ral attack, Drake v. Duvenick, 45 Cal. 462. McConnell v. Denver 35 Cal. 365. Distinguished, Corporation, ratification of contract made by agent, Jones v. Clark, 42 Cal. 194. McCormick v. Brown 36 Cal. 180. Approved, New Promise, sufficiency of ac- knowledgment, Farrell v. Palmer, 36 Cal. 192 ; nature of contract arising from, Chabot v. Tucker, 39 Cal. 438. McCourtney v. Fortune 42 Cal. 387. Approved, Appeal, orders not reviewable from final judgment, Regan v. McMahon, 43 Cal. 627. McCracken v. San Francisco. .16 Cal. 591. Approved, Adverse Possession, what con- stitutes, Garrison v. McGlockley, 38 Cal. 80 ; Estoppel, in pais, what essential to, Martinu. Zellerbach, 38 Cal. 315 ; cited, San Erancisco, tenure of pueblo lands, San Francisco v. Canavan, 42 Cal. 557- McCreery v. Everding 44 Cal. 246. Followed, New Trial, when granted, Mc- Creery v. Everding, 44 Cal. 288. McCullough, Ex parte 35 Cal. 97. Cited, Habeas Corpus, office of writ, Ex parte McLaughlin, 41 Cal. 220 ; does not lie to correct erroneous order, Ex parte Hartman, 44 Cal. 35. McDevitt v. Sullivan 8 Cal. 592. Cited, Judicial Sale, purchaser entitled to rents and profits, Walls u.Walker, 37 Cal. 431 • McDonald v. Askew 29 Cal. 200. Cited, Water Rights, denned, N. C. & S. C. Co. v. Kidd, 37 Cal. 311. McDonalds. Badger 23 Cal. 393. * Cited, Sheriff's Deed, validity of, Blood v. Light, 38 Cal. 658. McDonald v. Katz 31 Cal. 167. Cited, Insolvency, necessary steps in pro- ceedings, Hastings v. Cunningham, 39 Cal. 142. McEwen v. Johnson 7 Cal. 258. Distinguished, Findings, conclusiveness of, Pralus v. Pacific G. & S. M. Co. 35 Cal. 35. McGarrity v. Byington 12 Cal. 426. Cited, Mines and Mining, forfeiture de- pends on local rules, Bell v. Bedrock T. & M. Co., 36 Cal. 219. McKay v. Fetaluma Lodge . . . Cal. Supreme Court, Apl. T., 1866, (not reported). Referred to, Estoppel, by judgment, Thompson v. McKay, 41 Cal. 226. McKenty v. Gladwin 10 Cal. 227. Applied, Fraudulent Contract, Tully v. Harloe, 35 Cal. 308. McKinley v. Tuttle 34 Cal. 235. Referred to on second appeal, McKinlay v. Tuttle, 42 Cal. 576. McKinney v. Smith .21 Cal. 374. Cited, Water, rights of prior appropria- tor, N. C. &. S. C. Co. v. Kidd, 37 Cal. 3I3- McLaughlin, Ex parte 41 Cal. 211. Cited, Habeas Corpus, not the remedy for an erroneous order, Ex parte Hartman, 44 Cal. 35. McLaughlin v. Fiatti 27 Cal. 451. Cited, Specific Performance, contract for personal property enforceable, Senter u. Davis, 38 Cal. 454. McMillan v. Reynolds 11 Cal. 372. Cited, Judgment, invalid, by failure to 414 TABLE OP OASES. serve copy of complaint, Reynolds v. Page, 35 Oal. 300. McMillan v. Richards 9 Oal. 365. Approved, Certificates, of deposit are nego- tiable instruments, Poorman v. Hills, 35 Cal. 120 ; Mortgage, a mere security, legal title remains in mortgagor, Heyland v. Badger, 35 Cal. 413 ; Jackson v. Lodge, 36 Cal. 39, 42, 58, 59 ; Mack v. Wetzlar, 39 Cal. 254, 255 ; Involuntary Payment, what constitutes coercion, Bucknall v. Story, 46 Cal. 597. McMinn v. Bliss 31 Cal. 122. Cited, Statutory Construction, correlative Statutes, how construed, Nicolson Pave- ment Company v. Painter, 35 Cal. 708. McMinn v. O'Connor 27 Cal. 238. Approved, Evidence, secondary, when ad- missible, Mayo v. Mazeaux, 38 Cal. 449 ; cited, Pleadings, title acquired pendente lite to he set tip in supplemental answer, Bagley v. Ward, 37 Cal. 129, 153 ; or by amendment, Reily v. Lancaster, 39 Cal. 35°- McMinn v. Wheelan 27 Cal. 300. Cited, Tax Title, cannot be acquired by party whose duty it is to pay the tax, Ber- nal v. Lynch, 36 Cal. 146; Barrett v. Amerein, 36 Cal. 326 ; Garwood v. Has- tings, 38 Cal. 222 ; Reily v. Lancaster, 39 Cal. 356. McNallyu. Mott 3 Cal. 235. Cited, Judgment, against party not named in record, void, Ford v. Doyle, 37 Cal. 348- McQuade v. Whaley 29 Cal. 612. Cited, Appeal, summary of proceedings, if agreed to is sufficient in transcript, Todd v. Winants, 36 Cal. 130. McQueen, Estate of 44 Cal. 584. Approved; Probate, administrator when chargeable with interest, Estate of Miner, 46 Cal. 571. Mead v. Elmore, Cal. Supreme Court, July Term, 1868 (not reported.) Approved, Corporation, transfer of stock of, Parrott v. Byers, 40 Cal. 625. Meagher v. Gagliardo 35 Cal. 602. Distinguished, Stipulations, binding effect of, Borkheim v. N. B. & M. Ins. Co., 38 Cal. 629. Mecham v. McKay 37 Cal. 154. Approved, Jurisdiction, of County Courts in actions for unlawful detainer, Johnson v. Chely, 43 Cal. 304. Meeks v. Hahn 20 Cal. 620. Cited, Probate, title vests in heir, subject to right of possession of administrator, for payment of debts, Chapman*u. Hollis- ter, 42 Cal. 463. Megerle v. Ashe 27 Cal. 322. Cited, State Lands, selection and location, when valid, Hastings v. Jackson, 46 Cal. 243 ; cited, Ejectment, evidence of title of defendant, Hestres v. Brennan, 37 Cal. 389; Pre-emption, time of filing claim, Damrell v. Meyer, 40 Cal. 170 ; Poppe v. Athearn, 42 Cal. 618 ; proof requisite, Burrell v. Haw, 40 Cal. 377 ; indorsement on declaration, as evidence, Poppe v. Ath- earn, 42 Cal. 608 ; explained, Estoppel, waiver of, San Francisco v. S. V. W. W., 39 Cal. 481. Merced Mining Co. v. Fremont, 7 Cal. 130 ; same case, Id., 317. Approved, Mining Claim, who may bring action to quiet title, Pralus v. Pacific Gr. & S. M. Co., 35 Cal. 34. Merle v. Mathews 26 Cal. 455. Cited, Conveyance, sufficiency of, under Mexican law, Schmitt v. Giovanari, 43 Cal. 624. Merrill v. Gorham 6 Cal. 41. Cited, Statutory Construction, repeal by implication not favored, statutes to be con- strued together, Nicolson Pavement Co. v. Painter, 35 Cal. 708. Merritt v. Judd 14 Cal. 59. Commented on, Public Domain, claim to mining land as property, Spencer v. Win- selman, 42 Cal. 482. Meuser v. Risdon 36 Oal. 239. Approved, Street Assessments, order for' street work sufficient, Himmelmann v. Byrne, 41 Cal. 501. Meyer c. Kalkman 6 Cal. 582. Commented on, Superior Court of San Francisco, Ex parte Stratman, 39 CaJL 519. Middleton v. Findla 25 Cal. 76. Cited, Conveyance, may be executed by grantor in any name, Fallon v. Kehoe, 38 Cal. 49. Middleton v. Low 30 Cal. 596. Cited, Mandamus, when will issue to ex- ecutive officer, Harpending v. Haight, 39 Cal. 210, 219. TABLE OF OASES. 415 Miles v. Thorne 38 Gal. 335. Commented on and rule restricted, Trust, enforcement of agreement on procurement of franchise, Powell v. Maguire, 43 Oal. 20, 21 ; cited, Pleading, presumption on demurrer that contract was in writing, Brennan v. Ford, 46 Cal. '3. Miliken v. Huber 21 Cal. 166. Approved, Certiorari, when it lies, Bennett v. Wallace, 43 Cal. 27. Millard v. Hathaway 27 Cal. 119. Cited, Resulting Trust, how created, Sand- foss v. Jones, 35 Cal. 487 ; distinguished, Roberts v. Ware, 40 Cal. 637 ; cited, en- forcement of, what must be shown, Case v. Codding, 38 Cal. 193. Miller v. Miller 33 Cal. 353. Cited, Default, purpose of entry of, Drake v. Duvenick, 45 Cal. 463. Miller v. Sacramento Co 25 Cal. 93. Cited, Office and Officers, constitutional powers and duties of, People v. Provines, 34 Cal. 541 ; Supervisors, powers of, Kim- ball v. Board, of Supervisors, 46 Cal. 24. Miller v. Steen, 30 Cal. 402 ; same case, 34 Cal. 138. Cited, New Trial, motion for is exclusive remedy for review of findings, Prince v. Lynch, 38 Cal. 531, 536; Speoific Per- formance, time not of essence of contract, Steele v. Branch, 40 Cal: II. Miller v. Van Tassel 24 Cal. 458. Approved, Warranty, implied on sale of chattels, Gross v. Kierski, 41 Cal. 113. Miner's Ditch Co. v. Zellerbacli, 37 Cal. 543. Commented on, Corporations, power over corporate property, People v. P. & T. C. of C, 38 Cal. 171 ; distinguished, Martin 1;. Zellerbach, Id., 316. Minor d. Kidder 43 Cal. 229. Cited, Parties, who may sue for extortion in office, or neglect of official duty, Matter of Marks, 45 Cal. 216. Mintum v. Baylis 33 Cal. 129. Cited, Specific Performance, vague and un- certain contracts not enforceable, Agard v. Valencia, 39 Cal. 301. Minturn v. Brower 24 Cal. 644. Approved, Mexican Grants, perfect titles need not be presented for confirmation, Stevenson v. Bennett, 35 Cal. 431 ; com- mented on, perfect title what constitutes, Banks v. Moreno, 39 Cal. 236, 237; Schmidt v, Giovanari, 43 Cal. 622 ; cited, third persons not concluded by patent, who are, Miller v. Dale, 44 Cal. 577. Minturn v. Burr, 16 Cal. 107 ; same case, 20 Cal. 48. Approved, Land, actual possession, what constitutes, Shelby v. Houston, 38 Cal. 423- Mokelumne Hill Co. v. 'Woodbury, 14 Cal. 265 ; same case, 10 Cal. 185. Cited, Corporations, stockholders? liability for debts, Young v. Bosenbaum, 39 Cal. 654 ; substantial compliance with statute in formation of, sufficient, People v. S. & V. B. B. Co., 45 Cal. 313. Montgomery v. Tutt, 11 Cal. 190; same case 11 Cal. 307. Cited, Foreclosure, subsequent incum- brancers not necessary parties, Carpentier v. Brenham, 40 Cal. 235 ; effect of failure to make them parties, Id., 238. Moore v. Martin 38 Cal. 428. Cited, Judgment, conclusiveness of recitals in, McCauley v. Fulton, 44 Cal. 361. Moore v. Wilkinson 13 Cal. 478 . Cited, Mexican Grant, title under patent takes effect by relation, Merrill v. Chap- man, 34 Cal. 253 ; Morrill v. Chapman, 35 Cal. 88 ; Survey, of grant, a political right, Yates v. Smith, 38 Cal. 66. More v. Bonnet 40 Cal. 251. Cited, Contract, when entire, if void in part is void in toto, Prost v. More, 40 Cal. 348 ; Contract, in restraint of trade, when void, Callahan v. Donnolly, 45 Cal. 153. More v. Del Valle 28 Cal. 170. Cited, Appeal, rulings, when not review- able, Feely v. Shirley, 43 Cal. 370. More v. Massini 37 Cal. 432. Referred to, on second appeal, in Moore v. Massini, 43 Cal. 390. Morenhout v. Higuera 32 Cal. 289. Cited, Partition, what should be tried and determined in action of, Gates v. Salmon, 35 Cal. 598 ; Grantees, necessary parties, Sutter v. San Francisco, 36 Cal. 116 ; com- mented on, relation of parties, and right of appeal, Senter v. De Bernal, 38 Cal. 642. Morley v. Elkins 37 Cal. 454. Cited, Appeal, to County Court, practice, People v. Elkins, 40 Cal. 647 ; Certiorari, what reviewable on, C. P. B- R. Co. v. Placer County, 46 Cal. 670. Morrill v. Chapman 35 Cal. 85 . 416 TABLE OF CASES. Cited, Appeal, findings in support of judg- ment, implied, Shelby v. Houston, 38 Cal. 421. Morrill v. Morrill 26 Cal. 288. Cited, Pleading, insufficient denials equiv- alent to admissions, Doll v. Good, 38 Cal. 290. Morris v. De Celis 41 Cal. 331. Cited, Appeal, from order striking out statement on new trial, Calderwood v. Peyser, 42 Cal. 118; parties entitled to hearing on motion, De Gaze u. Lynch, 42 Cal. 367 ; distinguished, New Trial, va- cating order granting, Coombs v. Hibberd, 43 Cal. 454- Morrison v. Bowman 29 Cal. 337. Commented on, N. C. & S. C. Co. v. Kidd, 37 Cal. 304. Morrison v. Rossignol 5 Cal. 64. Cited, Specific Performance, vague and in- definite contracts not enforceable, Agard v. Valencia, 39 Cal. 301. Morrison v. "Wilson, 13 Cal. 494 ; same case, 30 Cal. 344. Commented on, and explained, Love v. Watkins, 40 Cal. 566 ; Deed, quit-claim deed does not pass after-acquired title, Mc- Donald v. Edmonds, 44 Cal. 330. Moss v. Shear, 30 Cal. 467 ; same case, 25 Cal. 38. Cited, Tax Title, party whose duty it is to pay tax cannot acquire title, Bernal v. Lynch, 36 Cal. 146 ; Barrett v. Amerein, ' Id:, 326 ; Garwood v. Hastings, 38 Cal. 223 ; Reily v. Lancaster, 39 Cal. 356 ; Ejectment, title acquired pendente lite must be set up by supplemental answer, Bagley v. Ward, 37 Cal. 129, 153 ; Hes- tres v. Brennan, 37 Cal. 389 ; Reily v. Lancaster, 39 Cal. 356 ; Deed, sufficiency of calls in, Walsh v. Hill, 38 Cal. 486. Moss v. Warner 10 Cal. 296. Cited, Homestead, residence of family prima facie impresses character of estate, Brooks v. Hyde, 37 Cal. 372. Moulton v. Ellmaker 30 Cal. 527. Cited, Appeal, from order sustaining de- murrer, Daniels 1;. Landsdale, 38 Cal. 567. Mowry v. Starbuck 4 Cal. 274. Cited, Evidence, admission of, after close of evidence in chief, in discretion of Court, Eoote v. Richmond, 42 Cal. 442. Mulford v. Estudillo 17 Cal. 618 ; same case, 23 Cal. 94; 32 Cal. 131. Cited, Evidence, Contrary to admissions in pleadings not admissible, Hall v. Polack, 42 Cal. 225. Mulford v. Le Franc 26 Cal. 88. Approved, Conveyance, construction of term "cedo," Schmitt v. Giovanari, 43 Cal. 624. Muller v. Boggs 25 Cal. 175. Approved, Officer, power of deputy to take acknowledgement of homestead declara- tion, Emmal v. Webb, 36 Cal 203 ; cited, Deed, construction of, Piper v. True, 36 Cal. 617. Munch v. Williamson 24 Cal. 167. Cited, New Trial, waiver of motion by failure to file statement, Campbell v. Jones, 41 Cal. 518. Munroe v. Thomas 5 Cal. 470. Approved, Franchise, not assignable with- out consent of grantor, People v. Duncan, 41 Cal. 510. Murdock v. De Vries 37 Cal. 527. Referred to in note, Judgment, collateral attack, Chase v. Christianson, 41 Cal. 256 ; cited, erroneous judgment not void, Reeve v. Kennedy, 43 Cal. 653 ; Query as to in- junction on void judgment, of Justice, Gates v. Lane, 44 Cal. 396. Murdock v. Murdock 7 Cal. 511. Commented on, Contract, for services, when right to recover vests, on implied promise, Barstow v. City ,R. R. Co., 42 Cal. 468. Murphy v. De Groot 44 Cal. 51. Cited, Easement, when right of way vests in public, Brady v. Bronson, 45 Cal.£o43. Myers v. Mott 29 Cal. 359. Cited, Attachment, death of defendant destroys lien, Bank of Stockton v. How- land, 42 Cal. 133 ; followed, Hensley v. Morgan, Cal. Supreme Court January Term, 1874, (not reported). Hensley v. Morgan, Cal. Supreme Court, January Term, 1874 (not reported.) Nagle v. Macy 9 Cal. 426. Cited, Mortgage, a mere security, Jackson v. Lodge, 36 Cal. 39, 42. Naglee v. Lyman 14 Cal. 450. Cited, Consideration, pre-existing debt a valuable consideration, Prey v. Clifford, 44 Cal. 342. Naglee v. Pacific Wharf Co 20 Cal. 529. TABLE OF OASES. 417 Affirmed, on principal of stare decisis, Corporations, validity of transfer of stock of, People v. Elmore, 35 Cal. 655 ; Parrott v. Byers, 40 Cal. 625. Naglee v. Wilson, Cal. Supreme Court, Octo- ber Term, 1867 (not reported). Approved, Insolvency, validity of dis- charge, Flint v. Wilson, 36 Cal. 27. Napa Valley R. R. Co. v. Napa Co., 30 Cal. 435- Cited, Legislature, power over local taxa- tion and appropriation, Beals v. Amador Co., 35 Cal. 633 ; approved, Action of Leg- islature empowering counties to subscribe for railroad stock not open to judicial re- view, S. & V. R. R. Co. v. Stockton, 41 Cal. 169, 178 ; cited, Construction, of term " authorized and empowered' ' in statute, San Diego v. S. D. &. L, A. R. R. Co., 44 Cal. 112; Mandamus, lies to com- pel execution of powers by Board of Super- visors, People v. San Francisco, 36 Cal. 604. Needbam v. S. F. & S. J. R. R. Co. .37 Cal. 409. Approved, Negligence, limitation of rule as to contributory negligence, Kline v. C. P. R. R. Co., 37 Cal. 406 ; Flynn v. S. F. & S. J. R. R. Co., 40 Cal. 19 ; Schierhold v. N. B. & M. R. R. Co., 40 Cal. 453. Nevada Co. & S. C. Co. v. Kidd. . .28 Cal. 673 ; same case, 37 Cal. 282. Approved, Pleading, causes of action which cannot be united, Nevada & S. Canal Co. v. Kidd, 43 Cal. 184. Nickerson v. Chatterton 7 Cal. 568. Cited, Pleading, in action on undertaking, Murdock v. Brooks, 38 Cal. 604. Nicolson Pavement Co. v. Painter... 35 Cal. 699. Followed, Street Assessment, letting con- tract, Nicolson Pavement Co. v. Fay, 35 Cal. 695. N°e v. Card 14 Cal. 576. Cited, Ejectment, possession of defendant need not be actual, Crane v. Ghirardelli, 45 Cal. 236. Nolan v. Reese 32 Cal. 484. Approved, Street Assessment, owners not parties to contract, Himmelmann v. Span- agel, 39 Cal. 392 ; Fraud, cannot be shown in defense of action for, Chambers v. Sat- terlee, 40 Cal. 520 ; Himmelmann v. Hoad- ley, 44 Cal. 227; remedy by appeal to Board, Id., 279. , CAL. DIG. SUP. 27. N. B. & M. R. R. Co., Appeal of. . .32 Cal. 499. Cited, Appeal, in special cases, dissenting opinion of Rhodes, C. J., Appeal of S. 0. Houghton, 42 Cal. 68. Norton v. Jackson 5 Cal. 262. Denied, "Warranty, that there must be an eviction by process of law to sustain action on breach of, MeGary v. Hastings, 39 Cal. ,365- Norton v. Larco 30 Cal. 134. Cited, Accounts, mutual, what consti- tute, Adams v. Patterson, 35 Cal. 126. Norwood v. Kenfield, 30 Cal. 393 ; same case, 34 Cal. 329. Approved, Appeal, injury presumed from error, Rice v. Heath, 39 Cal. 612 ; cited, Jurisdiction, lost on expiration of term, consent cannot confer, Bates v. Cage, 40 Cal. 185. O'Connell v. Dougherty 32 Cal. 462. Cited, Mexican Grant, legal title in con- firmee, Hartley v. Brown, 46 Cal. 204. O'Connor v. Blake 29 Cal. 312. Cited, Pleadings, defense in action of re- plevin, Bolander v. Gentry, 36 Cal. noj Justice of Peace, cannot vacate judgment except on motion for new trial, Winter v. Fitzpatrick, 35 Cal. 273. O'Keiffe v. Cunningham 9 Cal.--.590. Cited, Water Rights, defined rights not exclusive, N. C. & S. C. Co. v. Kidd, 37 Cal. 315. Oliverez, Matter of 21 Cal. 415. Approved, Constitutional Law, jurisdic- tion not affected by amendments organiz- ing new courts and counties till organiza- tion is perfected, Gillis v. Barnett, 38 Cal.' 395- Orosco v. Gagliardo 22 Cal. 83. Doubted, Mandamus, when it lies, Fran- cisco v. M. J. Co., 36 Cal. 288. Orr, Estate of 29 Cal. 101. Cited, Homestead, directing course of title under Probate Act, Matter of Estate of Wixom, 35 Gal. 324 ; question of title where determined, Rich v. Tubbs, 41 Cal. 36 ; setting apart to widow, Schadt_ v. Heppe, 45 Cal. 437. Ortman v. Dixon 13 Cal. 33. Approved, Water Rights, appropriation limited to purpose indicated, N. C. & S. C. Co., v. Kidd, 37 Cal. 313; Smith v. O'Hara, 43 Cal. 375, 376. 418 TABLE OF CASES. Osborne v. Elliott i Cal. 337'. Approved, Pleadings, conditions precedent in action on dependent promises, Hill v. Grigsby, 35 Cal. 662 ; on independent promises, need not be averred, Rourke v. McLaughlin, 38 Cal. 200. Otis v. Hazeltine 27 Cal. 80. Approved, Guaranty, promise of guaran- tor, when not within Statute of Frauds, Howland v. Aitch, 38 Cal. 135, 136. Owen v. Fowler 24 Cal. 192. Approved, Ejectment, what plaintiff re- quired to allege and prove, Hestres v. - Brennan, 37 Cal. 389. Owen v. Morton 24 Cal. 373. Cited, Evidence, sufficient proof of ouster, "Salmon v. "Wilson, 41 Cal. 610. Owens v. Jackson 9 Cal. 322. Approved, State Lands, when title vests in swamp lands, Sherman v. Buick, 45 Cal. - 668. Pacbeco v. Hunsacker 14 Cal. 120. Cited, Statute of Frauds, sufficiency of de- livery, on what depends, Davis v. McFar- lane, 37 Cal. 638. Page v. Fowler 28 Cal. 605 ; same case, 37 Id., 100 ; 39 Id., 412 ; cited, law of case, rule announced, same case, 37 Cal. 105. ■ Approved, Land, power of Congress to withdraw lands from right of pre-emp^ tion.Hutton v. Frisbie, 37 Cal. 490, 491, 502, 503 ; referred, to, Atherton v. Fowler, 46 Cal. 320, 321 ; commented on, Re- plevin, for hay cut, when action will not lie, Page v. Fowler, 39 Cal. 4*15, 418 - T 'measure of damages in conversion, Atherton v. Fowler, 46 Cal. 322. Page v. Hobbs 27 Cal. 483. Cited, State Lands, conclusiveness of State patent, Durfee v. Plaisted, 38 Cal. 83 ; what must be proved by party impeaching its validity, Quinn ii. Eenyon, 38 Cal. 501 ; Burrell v. Haw, 40 Cal. 377 ; ap- proved, Public Lands, withdrawal of, from right of pre-emption, Hutton v. Frisbie, 37 Cal. 490 ; Power, of Congress to with- draw lands, Id., 491, 502 ; affirmed on principle of stare decisis, Id., 503. Page v. Rogers 31 Cal 293. Cited, Execution Sale, title of purchaser , before redemption, Abadie v. Lobero, 36 Cal. 39? ; Purchaser, entitled to rents and profits, Webster v. Cook, 38 Cal. 425. Paige v. O'Neal 12 Cal. 483. Cited, Evidenoe, declarations of vendor when not admissible to impeach validity of sale, Jones v. Morse, 36 Cal. 207 ; Sum- mons, defects in, when disregarded, King v. Blood, 41 Cal. 317. Palmer v. Boling 8 Cal. 384. Distinguished, Tax Title, tax deed as evi- dence, Bucknall v. Story, 36 Cal. 73. Palmer v. Goodwin r . . . 5 Cal. 458. Cited, Negotiable Instruments, presump- tion as to bona fides of holder, Himmel- mann v. Hotaling, 40 Cal. 116. Palmer v. Shaw 16 Cal. 93. Cited, Limitations, actions accruing dur- ing absence of defendant, Rogers 'o. Hatch, 44 Cal. 282. Parsons v. Tuolumne W. Co 5 Cal. 43. Cited, Jurisdiction, special cases defined, Appeal of Houghton, 42 Cal. 61, 62, 68. Patterson v. Keystone Min. Co 30 Cal. 360 ; same case, 23 Cal. 575. Approved, Conveyance, of mining claim must be by written instrument, since the Act of i860, Felger v. Coward, 36 Cal. 652 ; cited, Pleading, allegations of evi- dence do not bind the pleader, Bruck v. Tucker, 42 Cal. 351. Pattison v. Yuba Co. & S. F. & M. R. R. Co 13 Cal. 175. Approved, Constitutionality of Statute, 1 how determined, S. & V. E. R. Co. v. Stockton, 41 Cal. 162 ; affirmed, on princi- ple of stare decisis, power of Legislature to authorize county subscription to rail- road stock, Id., 201. Patton v. Placer Co 30 Cal. 175. Cited, County, fees in hands of public offic- ers, for use of, Eeam v. Siskiyou Co., 36 Cal. 622. Paxson v. Hale Cal. Sup. Court, Oct. Term, 1867 (not reported). Cited, Fees and Salaries, demand for, when to be presented, Paxson v. Holt, 40 Cal. 470. Payne v. Bensley 8 Cal. 260. Cited, Consideration, pre-existing debt a valuable consideration, Frey v. Clifford, 44 Cal. 342. Payne v. Treadwell 16 Cal. 220. Approved, Ejectment, sufficiency of com- plaint, Garwood v. Hastings, 38 Cal. 218 ; Garwood v. Hastings, 38 Cal. 224; Mc- Carthy v. Tale, 39 Cal. 586 ; Eight, of entry and possession sufficient to main- tain action, Toland v. Maridell, 38 Cal . TABLE OP CASES. 419 43 ; San Francisco, tenure of pueblo lands, San^ Francisco v. Canavan, 42 Oal. 556 ; commented on, Authority, of Legislature over municipal lands, Id., 558- Peck v. Brummagim 31 Oal. 440. Approved, Deed, to wife may be proved to be a gift, Ingersoll v. Truebody, 40 Cal. 61 1,612; Husband, may make donation to wife from common property, Woods v. v Whitney, 42 Cal. 361 ; Lord v. Hough, 43 Cal. 585 ; Higginsi;. Higgins, 46 Cal. 263. Pecki;. Courtis 31 Cal. 207. Cited, Appeal, time within which to ap- peal from judgment, Wetherbee v. Dunn, 36 Cal. 252. Peck v. Strauss 33 Cal. 678. Cited, Judgment, not subject to collateral attack, Drake v. Duvenick, 45 Cal. 466. Peck v. Vandenburg. 30 Cal. 1 1 . Approved, Deed, parol evidence admissible to show true consideration, Rhine v. El- len, 36 Cal. 369 ; Salmon v. Wilson, 41 Cal. 604. Pelli;. McElroy 36 Cal. 268. Cited, Land, notice of landlord's title im- parted by possession of tenant, O'Rourke v. O'Connor, 39 Cal. 447. Pendegast v. Knox 32 Cal. 73. Overruled, Appeal, review of special order made after final judgment, that order must be in direct line of the proceedings ; Cal- derwood v. Peyser, 42 Cal. 113, 117. People v. Abbott 16 Cal. 358.' Approved, Statutory Construction, title of Act, People v. San Francisco, 36 Cal. 602. People v. Addison 10 Cal. 1. Commented on, Office, when Governor may fill vacancy, People v. Tilton, 37 Cal. 619. People v. Ah Pong 12 Cal. 345. Cited, Criminal Procedure, charge of Court, must be in writing, unless by consent, People u. Trim, 37 Cal. 276 ; People v. Sanford, 43 Cal. 35. People v. Ah Ki 20 Cal. 177. Approved, Criminal Trial, proof of guilty possession a circumstance to be considered by jury, People v. Gill, 45 Cal. 286 ; dis- tinguished, confessions of guilt, People v. Ab. How, 34 Cal. 224. People v. Ah Sing 19 Cal. 598. Commented on, Indictment, allegation of ownership in larceny, People v. Hughes, ' 4* Oal. 237. People v. Ah Woo 28 Cal. 205. Approved, Indictment, conjunctive allega- tions in cases of forgery, People v. Tomlin- son, 35 Cal. 508. People v. Alameda Co 26 Cal. 642. Cited, Legislature, power of over appro- priations, Beals v. Amador Co., 35 Cal. 633 ; Sinton v. Ashbury, 41 Cal. 530. People v. Alameda T. R. Co 30 Cal. 182. Cited, Service, by mail, strict compliance with the statute must be shown, Moore v. Besse, 35 Cal. 187. People v. Ames 39 Cal. 403. Approved, Criminal Trial, testimony of accomplice requires corroboration, People v. Melvane, 39 Cal. 615; followed, People v. Warren, 39 Cal. 661. People v. Applegate 5 Cal. 295. Cited, Appeal, jurisdiction confined to cases of felony, People v. Apgar, 35 Cal. 39°- People v. Arnold 15 Cal. 476. Commented on, Criminal Trial, facts ex- planatory of defendant's conduct admis- sible, People v. Scoggins, 37 Cal. 684, 700 ; instructions to be given with reference to facts proved, People v. Best, 39 Oil. 691. People v. Ashe .44 Cal. 288. Approved, Criminal Procedure, evidence of good character admissible, People v. Fen wick, 45 Cal. 288 ; People v. Raina, 45 Cal. 293. People v. Backus. . ; 5 Oal. 278. Approved, Criminal Procedure, conviction for lesser offense an acquittal of the higher, People v. Apgar, 35 Cal. 391 ; cited, Dis- charge, of jury as an acquittal, People v. Webb, 38 Cal. 478. People 1). Baine 6 Cal. 510. Commented on, Office, when Governor may fill vacancy, People v. Tilton, 37 Cal. 618. People v. Beatty 14 Cal. 566. Cited, Indictment, sufficiency of state- ment of offense, People v. Phippe, 39 Cal. 33 1 - People v. Beeler 6 Cal. 246. Approved, Criminal Trial, oral charge, without consent of defendant, illegal, People -u. Trim, 37 Cal. 276 ; People v. Sanford, 43 Oal. 35. 420 TABLE OP OASES. People v. Belencia 21 Cal. 544. Approved, Criminal Trial, intoxication as a subject of consideration, People v. Wil- liams, 43 Oal. 352. People v. Bell 4 Cal. 177. Approved, Mandamus, lies to enforce pure- ly ministerial duties, Tilden v. Sacramen- to Co., 41 Cal. 77. Peoples. Benson 6 Cal. 221. Approved, Criminal Procedure, evidence in cases of rape, People v. Hamilton, 46 Cal. 543, 544. People v. Bigler 5 Cal. 23. Cited, Statute, validity of, motive of Leg- islature not subject to judicial inquiry, Harpending v. Haight, 39 Cal. 202. People v. Bircham 12 Cal. 50. Doubted, Offieers,restrictive limit to powers of, People v. Provines, 34 Cal. 528 ; cited, Supervisors, powers of, Kimball v. Board of Supervisors, 46 Cal. 24. People v. Black Diamond C. M. Co -37 Cal. 54. Approved, Taxation, solvent debts cannot be exempted, People v. Eddy, 43 Cal. 336. People v. Blake 19 Cal. 579. Cited, Appeal, in special cases provided by statute, dissenting opinion of Rhodes, C. J., 42 Cal. 68. People v. Board of Del. S. F. P. Depart- ment 14 Cal. 479. Cited, Certiorari, return of writ, dissent- ing opinion of Sanderson, J., and Currey, C. J., C. P. P. P. Co. v. Placer Co., 34 Cal. 362 ; what reviewable on, C. P. E. P. Co. v. Placer Co., 46 Cal. 670. People v. Board of Supervisors, 44 Cal. 613. Approved, Taxation, Poard cannot cancel an assessment, People v. Ash-bury, 44 Cal. 619. People v. Bond 10 Cal. 563. Cited, Funding Acts, rights of creditors cannot be impaired, Rose v. Estudillo, 39 Cal. 274. People v. Bonilla 38 Cal. 699. Approved, Criminal Procedure, judgment for death, not to name day of execution, People v. Murphy, 45 Cal. 141. People v. Brady 40 Cal. 198. Cited, Witness, incompetency of, under statute, People v. McGuire, 45 Cal. 57. People v. Brannigan 21 Cal. 337. Approved, New Trial) when presumptions against purity of verdict, People v. Turner, 39 Cal. 375. People v. BroadwayWharf Co.. 31 Cal. 33. Cited, Street Improvements, construction of Consolidation Act, Nicolson P. Co. v. Painter, 35 Cal. 708. People v. Brooks. See McCatjuet v. Bbooks. People v. Brotherton 43 Cal. 530. Cited, Trial, challenge for implied bias, when sustained, People v. Murphy, 4J Cal. 142. People v. Burbank 12 Cal. 378. Cited, Constitutionality of Statute, judic- ial power to determine, S. & V. K. P. Co. v. Stockton, 41 Cal. 160. People v. Bumey , 29 Cal. 459. Cited, Certiorari, when it lies, Morley v. Elkins, 37 Cal. 457 ; what reviewable on, C. P. P. P. Co. v. Placer County, 46 Cal. 670. People v. r Burr. See Blanding v. Bdkk. People v. Burt 43 Cal. 560. Cited, Statutory Construction, repeal by implication, People v. Sargent, 44 Cal. 432. People v. Byrnes 30 Cal. 206. Cited, Instructions, to correspond with evidence, People v. Taylor, 36 Cal. 265'; People v. Best, 39 Cal. 691. People v. Campbell 2 Cal. 135. Cited, Statutory Construction, time of ex- ercise of power directory, Jacobs v. Mur- ray, 15 Cal. 223. People v: Campbell 30 Cal. 312. Cited, New Trial, for contradictory in- structions, People v. Anderson, 44 Cal. 69. People v. Campbell 40 Cal. 129. Cited, Indictment, against accessory, what to state, People v. MoGungill, 41 Cal. 431 ; for murder, sufficiency of, People v. Valen- cia, 43 Cal. 555. People v. Carman 18 Cal. 693. Disapproved, Jurisdiction, on appeal, amount in controversy, Winter v. Eitz- patrick, 35 Cal. 273. People v. Carpenter 7 Cal. 402. Approved, Recognizance, want of justi- TABLE OF CASES. 421 fioation, no defense in action against sureties, Murdock v. Brooks, 38 Cal. 603. People v. Chambers 42 Cal. 201 . Commented on, Railroad Corporations, payment of percentage on formation of, People v. S. & V. P*. K. Co., 45 Cal. 314. People v. Chares 26 Cal. 78. Commented on, Criminal Trial, charge to jury to be in writing, People v. San- ford, 43 Cal. 36. ' People v. Clarke 42 Cal. 622. Cited, Appeal, ■will not lie from interme- diate orders, People v. Ah Kim, 44 Cal. 384. People v. Coffman 24 Cal. 230. Cited, Criminal Procedure, instructions as to sanity, People v. Best, 39 Cal. 692. People v. Cohen 31 Cal. 210. Approved, Taxation, possessory claim to public lands taxable, People v. Black Diamond C. M. Co., 37 Cal. 54. People v. Coleman 4 Cal. 46. Cited, Constitutional Construction, inter- pretation of provisions^. People v. Webb, 38 Cal. 477 ; S. & V. B. R. Co. v. City of Stockton, 41 Cal. 162 ; disapproved, con- struction of clause as to uniformity of tax- ation, People v. McCreery, 34 Cal. 448, '461. People v. Congleton 44 Cal. 92. Cited, Indictment, averment of weapon used, People v. Murat, 45 Cal. 284. People v. Coon .*. .... 25 Cal. 635. Cited, Mandamus, lies to compel issuance of municipal bonds, People v. San Fran- cisco, 36 Cal. 604 ; legislative power over municipal property and appropriations, San Francisco v. Ganavan, 42 Cal, 557. People v. Corbett 28 Cal. 330. Distinguished, Verdict, validity of, Peo- ple v. Bodundo, 44 Cal. 542. People v. Cornell 16 Cal. 187. Approved, Appeal, in criminal case con- fined to cases of felony, People v. Apgar, 35 Cal. 390, 392. People v. Cottle 6 Cal. 227. Approved, Trial, grounds of challenge of juror, for cause, People v. Brotherton, 43 Cal. 531, 532; People v. Edwards, 42 Cal. 642 ; People v. Murphy, 45 Cal. 142. People v. County Court of El Dorado, 10 Cal. 19. Approved, Appeal, order of dismissal in County Court not reviewable, Lewis v. Barclay, 35 Cal. 214. People v. County Judge of Placer County, 27 Cal. 151. Cited, Appeal, to County Court, power of Court as to dismissal and costs, Blair v. Curomings, 39 Cal. 670. People v. County Judge of San Francisco, 40 Cal. 479. Approved, Certiorari, when will issue, Aberding v. Macham, 40 Cal. 656. People v. Cronin 34 Cal. 191. Cited, Indictment, sufficiency of, People v. Bogart, 36 Cal. 247 ; People v. Sanford, 43 Cal. 31 ; approved, People v. Murphy, 39 Cal. 56; cited, Circumstantial Evidence, degree of necessary to convict, People v. Murray, 41 Cal. 67 ; approved, People v. Padillia, 42 Cal. 539. People v. Davidson 5 Cal. 134. Cited, Verdict, for crime necessarily in- cluded in indictment, People v. Congle- ton, 44 Cal. 94 ; distinguished, Indict- ment, for assault to commit murder, People v. Murat, 45 Cal. 283. People v. Davidson 30 Cal. 379. Cited, Nuisance, a question of fact, Re- quena v. Los Angeles, 45 Cal. 55. People v. Day 15 Cal. 91. Cited, Special Cases, what are, Appeal of S. O. Houghton, 42 Cal. 62. People v. De Lacey 28 Cal. 589. Cited, New Trial, on ground of newly discovered evidence, Arnold v. Skaggs, 35 Cal. 688. People v. Demint 8 Cal. 423. Cited, Criminal Trial, oral instructions without consent of defendant illegal, Peo- ple v. Trim, 37 Cal. 276 ; People v. San- ford, 43 Cal. 35. People v. Dick, 32 Cal. 213 ; same case, 37 Cal. 277. Cited, Criminal Trial, circumstantial evi- dence, degree of certainty required, Peo- ple v. Murray, 41 Cal. 67 ; challenge for implied bias, what must state, People v. McGungill, 41 Cal. 430. People v. Dodge 28 Cal. 445. Cited, Criminal Procedure, deposition of absent witnesses, practice, People v. Fran- cis, 38 Cal. 187 ; continuance of trial, ground for, People v. Brown, 46 Cal. 103, 422 TABLE OF CASES. People v. Doe 36 Cal. 220. Cited, Taxation, municipal property not subject to, San Francisco v. Canavan, 42 Cal. 557. People v. Donahue 45 Cal. 321 . Cited, Appeal, when judgment not revers- ed for erroneous instructions, People v. Strong, 46 Cal. 303. People v. Doss .39 Cal. 428. Followed, Indictment, against officer, suf- ficiency of, description of office, People v. Doss, 39 Cal. 433 ; Nos. 2173 and 2174. People ii. Dwinelle 29 Cal. 035. Cited, Certiorari, what reviewable on, C. P. R. R. v. Placer Co., 46 Cal. 670. People v. Eastman 25 Cal. 601 . Cited, Taxation, money at interest, where to be assessed, People v. Whartenby, 38 Cal. 467. People u.'Eckert 16 Cal. no. Cited, Criminal Trial, corroborating evi- dence, what required, People v. Ames, 39 Cal. 405. People v. Eddy 43 Cal. 331. Approved, Taxation, solvent debts liable to, S. & L. Society v. Austin, 46 Cal. 492 ; Revenue Laws, generally, Id., 500. People v. Edwards 9 Cal. 286. Approved, Office, district offices may be held by same person, People v. Ross, 38 Cal. 77- People v. Edwards 40 Cal. 640. Approved, Juror and Jury, grounds of challenge, People v. Brotherton, 43 Cal. 531- People v. El Dorado Co 8 Cal. 58 ; same case, II Cal. 170. Cited, Supervisors, powers of a judicial nature, Kimball v. Board of Supervisors, 46 Cal. 23 ; allowance of claims against county, Linden u. Case, 46 Cal. 174. People v. Elkins 40 CaL 642. Cited, Certiorari, what reviewable on, C. P. R. R. Co. v. Placer County, 46 Cal. 670. People v. Elmore 35 Cal. 653. Cited, Corporations, transfer of stock valid, Parrottu. Byers, 40 Cal. 625. People v. English 30 Cal. 214. Approved, Criminal Procedure, sufficiency of verdict for assault with deadly weapon^ Ex parte Ah Cha, 40 Cal. 427 ; Ex parte Max, 44 Cal. 581; distinguished, People v. Murat, 45 Cal. 283. People v. Pair 43 Cal. 137. Cited, New Trial, in criminal action, in- sufficient grounds, People v. Voll, 43 Cal. 167 ; Trial, argument of counsel, People v. Haun, 44 Cal. 100 ; People v. Mortimer, 46 Cal. 116. Peoples. Parrell 31 Cal. 576. Cited, Criminal Procedure, defendant as witness in his own behalf, People v. Tyler, 36 Cal. 529 ; presumptions as to insanity, People v. Francis, 38 Cal. 189. People v. Ferguson 34 Cal. 309. Cited, Exceptions, settlement of, practice, , People v. Trim, 37 Cal. 275 ; People v. Pa- dillia, 42 Cal. 538. People v. Fisher 6 Cal. 155. Cited, Change of Place of Trial, granting motion, when discretionary, People v. Con- gleton, 44 Cal. 95. People v. Flint 39 Cal. 670. Cited, Taxation, when jurisdiction of Board of Equalization attaches, People v. Goldtree, 44 Cal. 324. People v. Foren 25 Cal. 361. Cited, Murder, degrees of, People v. Long, 39 Cal. 697. People v. Francis 38 Cal. 183. Cited, Continuance, grounds Tor, what Bhowing required, People v. Brown, 46 Cal. 103. People v. Frank 28 Cal. 507. Cited, Indictment, for forgery, sufficiency of, People v. Tomliuson, 35 Cal. 507, 508 ; of charge as to corporation, People v. Ah Sam, 41 Cal. 652. People v.- Frisbie 18 Cal. 402. Cited, Judgment, on joint contract, abro- gation of common law rule, Tay v. Haw- ley, 39 Cal. 95. People v. Frisbie 31 Cal. 146. Approved, Taxation, possessory claim to public land taxable, People v. Black D. C. ". •*>-, 37 Cal. 54. People v. Gamett 29 Cal. 622. Cited, Indictment, objections waived by failure to demur, People v. Burgess, 35 Cal. 118. Peoples. Gerke.. 35 Cal. 677. Approved, Taxation, exemption of private TABLE OF CASES. 423 .property from taxation unconstitutional, People v. Black D. C. M. Co., 37 Cal. 55 ; ■solvent debts cannot be exempted, People v. Eddy, 43 Cal. 336. People v. Gillespie 1 Cal. 343. Commented on, Superior Court of San Francisco, Ex parte Stratman, 39 Cal. 518. People v. Gilmore 4 Cal. 376. Approved, Criminal Procedure, conviction for lesser offense is acquittal of greater, Peoples. Apgar, 35 Cal. 391 ; cited, acquit- tal by discharge of jury, People v. Webb, 38 Cal. 478. People v. Glenn 10 Cal. 32. . Approved, Evidence, dying declarations, how proved, People v. Vernon, 35 Cal. 52. People v. Grant 45 Cal. 97. Cited, "Writ of Assistance, in whose favor may issue, San Jose" v. Fulton, 45 Cal. 320 ; notice- of application for, Id., 321. People v. Hardin 37 Cal. 258! Cited, Trial, challenge for bias what to state, People v., Dick, 37 Cal. 279. People v. Hastings zg Cal. 449. Cited, Taxation, authority of Assessor limited to district for which elected, Wil- liams v. Corcoran, 46 Cal. 556 ; approved, Reily v. Lancaster, 39 Cal. 358, 359 ; Peo- ple v. Sargent, 44 Cal. 434 ; S. & L. So- ciety v. Austin, 46 Cal. 512 ; Office, elec- tion necessary to constitutional office, Christy v. Sacramento Co., 39 Cal. 11. People v. Hays 4 Cal. 127. Dissenting opinion of Heydenfeldt, J., approved, Judicial Sales, power of Legisla- ture to provide for redemption from, Moore v. Martin, 38 Cal. 439 ; cited, Constitu- tional Law, relative powers of Federal and State Governments, S. & V. R. R. Co. v. Stockton, 41 Cal. 162. People v. Hidden 32 Cal. 445. Cited, Criminal Procedure, presumptions as to regularity in formation of Grand Jury, People v. Millsaps, 35 Cal. 48. People v. Hodges 27 Cal. 340. Commented on, Accessory, in larceny, People v. Stakem, 40 Cal. 602. People v. Holden 28 Cal. 123. Commented on, Elections, residence of voter while in TJ. S. service, Devlin v. Anderson, 38 Cal. 93. People v. Holladay 25 Cal. 300. Cited, Taxation, assessment on personal property, where to be made, People v. Niles, 35 Cal. 288; on money loaned, People v. Whartenby, 38 Cal. 467. People v. Hood 6 Cal. 236. Cited, Pleading, disjunctive allegations insufficient, People v. Tomlinson, 35 Cal. 5°9- People v. Hughes 29 Cal. 257. Cited, Criminal Procedure, insufficient grounds for arrest of judgment, People v. Burgess, 35 Cal. 118. People v. Jackson 24 Cal. 630. Cited, Pleading, insufficient averments, Himmelmann v. Danos, 35 Cal. 448 ; ap- proved, Appeal, no reversal to follow amendment, Sutter v. San Francisco, 36' Cal. 117; Contesting Patent, what must be shown by contestant, Burrell v. Haw, 40 Cal. 377. People v. Jacobs 29 Cal. 579. Cited, Indictment, deadly weapon, how averred, People v. Congleton, 44 Cal. 94. People v. Jenks .24 Cal. n. Cited, Criminal Procedure, challenge per- emptory, when may be imposed, People v. Scoggins, 37 Cal. 690. People v. Jim Ti.. .,,... 32 Cal. 61; Commented on, Indictment, description of money in cases of larceny, People v. Cox, 40 Cal. 277. People 1;. Jones. . .31 Cal. 565 ; same case, 32 Cal. 81. Cited, Criminal Trial, evidence to be con- fined to issues, People u.Tyler, 36 Cal. 526 ; rule of admission of testimony of defend- ant, Id., 529. People v. Judge of 12th District. . . 17 Cal. 547- Cited, Constitutional Law, relative powers of Federal and State Governments, S. & V. R. R. Co. v. Stockton, 4 1 Cal. 162 ; ap- proved, Construction, as to uniform opera- tion of laws, Brooks v. Hyde, 37 Cal. 376 ; Ex parte Smith & Keating, 38 Cal. 710 ; General Laws, may be local and special, Brooks v. Hyde, 37 Cal. 379 ; Power, of judiciary to determine constitutionality of statute, S. & V. B. B. Co. u. Stockton, 41 Cal. 160. People v. Kahl 18 Cal. 432. Cited, Mandamus, what record must con- tain, People v. Dickson, 46 Cal. 54. People v. Keenan 13 Cal. 581 . Cited, Appeal, what subject to review in 424 TABLE OP OASES. „ criminal case, People i>. Harrington, 42 Cal. 167. People v. Kelly 6 Cal. 210. Cited, Criminal Procedure, indictment by- wrong name, practice, People v. Dick, 37 Cal. 280. People v. Kelsey 34 Cal. 470. Cited, Office, constitutional term of, Chris- ty v. Sacramento Co., 39 Cal. II. People v. King 27 Cal. 507. Approved, Criminal Procedure, indict- ment, test of, sufficiency of, Peopje v. Dick, 37 Cal. 280 ; instructions to be given with reference to facts proved, People y. Best, 39 Cal. 691 ; charge under the com- mon law, People v. Taylor, 36 Cal. 266 ; instructions as to intoxication, People v. Williams, 43 Cal. 352 ; Appeal, review of instructions, People v. Torres, 38 Cal. 143 ; People v. Williams, 43 Cal. 352 ; Appeal, review of instructions, People v. Torres, 38 Cal. 143. People v. Kohl 40 Cal. 127. Distinguished, Taxation, choses in action as property, Lick'u. Austin, 43 Cal. 596; cited, Assessment, when void, S. & L. So- ciety v. Austin, 46 Cal. 485. People v. Lake Co 33 Cal. 487. Cited, Supervisors, discretionary power under special statute, People v. San Fran- cisco, 36 Cal. 604. People v. Langdon _ 8 Cal. 1 . Disapproved, Office, vacancy and power of appointment, People v. Tilton, 37 Cal. 617, 621, 625 ; cited, power of appointment to be strictly construed, People v. Parker, 37 Cal. 650. People u. Lawrence : 21 Cal. 368. Cited, Criminal Procedure, objections to • indictment waived by plea, People v. Sta- cey, 34 Cal. 308. People v. Lee 14 Cal. 510. Cited, Criminal Procedure, evidence, proof of dying declarations, People u. Vernon, 35 Cal. 52 ; Mandamus, what muBt appear in record, People v. Dickson, 46 Cal. 53. People v. Levison 16 Cal. 98. Cited, Criminal Procedure, review of er- rors on appeal, People v. Torres, 38 Cal. 143- Peopfe u.Lewis 36 Cal. 531. Approved, Evidence, admissions of deceas- tions as to insanity, People v. Williams, 43 Cal. 352. People v. Love 25 Cal. 520. Cited, Official Bonds, separate bonds re- quired for distinct offices held by same per- son, People v. Boss, 38 Cal. 77. People v. Maguire 26 Cal. 635. Cited, Appeal, in criminal case, statement, when required, Morley v. Elkins, 37 Cal. 457- / People v. Manahan 32 Cal. 68. Cited, Grand Jury, challenge to panel of, People v. Southwell, 46 Cal. 153. People v. Mariposa Co 31 Cal. 196. Cited, Taxation, insufficient description in assessment, People v. Flint, 39 Cal. 673. People v. Martin 32 Cal. 91. Cited, Appeal, in criminal case, assignment of errors, practice, People v. Tetherow, 40 Cal. 287 ; report of evidence no part of bill of exceptions, People v. Padillia, 42 Cal. 53». People v. Mayhew 26 Cal. 655. Cited, Legal Tender Act, constitutional, Belloc v. Davis, 38 Cal. 254. People v. Mc Auslan 43 Cal. 55. Approved, Appeal, when order for new trial will not be disturbed, People v. Woods, 43 Cal. 177. People v. McCauley 1 Cal. 379. Cited, Instructions, to be given with ref- erence to facts proved, People v. Best, 39 Cal. 691. People v. McCreery 34 Cal. 432. Approved, Taxation, statute exempting private property unconstitutional , People v. Gerke, 35 Cal. 678 ; S. &. L. Society v. Austin, 46 Cal. 492 ; so as to solvent debts, Id., 492, 500, 515 ; Lick 1;. Austin, 43 Cal. 594 ; People v. Eddy, 43 Cal. 336 ; S. & L. Society v. Austin, 46 Cal. 492 ; so as to possessory claims to public lands, People ■u.lB. D. C. M. Co., 37 Cal. 55 ; State, prop- erty not taxable, People v. Doe, 36 Cal. 222 ; commented on, Double Taxation, People v. Whartenby, 38 Cal." 464; ap- proved, who may complain of, S. & L. Society v. Austin, 46 Cal. 483 ; General Pvevenue Laws, Id., 500 ; Tax Deed, when void, Hibernia S. & L. S. v. Ordway, 38 Cal. 682 ; Power, of Legislature, over local taxation and appropriation, Sinton v. Ashbury, 41 Cal. 530. People v. McCrea 32 Cal. 100. TABLE OF CASES. 425 ApproVed, Criminal Procedure, instruc- ed when not admissible, People v. Mc- Laughlin, 44 Cal. 439. People v. McNealy 17 Cal. 332. Commented on, Indictment, when misno- mer is fatal, People v. Potter, 35 Cal. 114. People v. Mier 24 Cal. 6|. Approved, Jurisdiction, concurrent in action : to collect taxes, People v. Olvera, 43 Cal. 494 ; distinguished, Gillis v. Barnett, 38 • * Cal. 394, 395 ; cited, Pleading, when prayer in complaint is significant, N. C. & S. C. Co. v. Kidd, 37 Cal. 304. People v. Mizner 7-Cal. 519. Commented on, Office, constitutional re- striction on power of Go.vernor to fill va- cancy, People v. Tilton, 37 Cal. 618, 619, 621, 622, 625 ; People v, Parker, 37 Cal. 642, 647, 649. t People v. Morrill 26 Cal. 336. Cited, State Lands, Act for reclamation of swamp lands, construed, Kimball ■u.Mac- pherson, 46 , Cal. 107 ; what lands are swamp and overflowed, Taylor v. Under- bill, 40 Cal. 473 ; Pleading, demurrrer does not lie to prayer of complaint, Althof v. Conheim, 38 Cal. 234. People v. Morse 43 Cal. 534. Cited, Taxation, assessment of land in City by blocks, when proper, People v. Culverwell, 44 Cal. 622. People v. Mott 3 Cal. 502. Distinguished, Office, power of Governor to fill vacancy, People v. Tilton, 37 Cal. 620. People v. Murray 8 Cal. 519. Statutes distinguished, Crimes and Pun- ishments, burglary, People v. Stickman, 34 Cal. 245. People v. Murray 10 Cal. 309. Commented on, Criminal Procedure, evi- dence of reputation of deceased, People v. Edwards, 41 Cal. 644. People v. Murray 41 Cal. 66. Cited, Criminal Procedure, evidence neces- sary for conviction, People v. Padillia, 42 Cal. 540. People v. Myers 20 Cal. 76. Approved, Indictment, allegation of own- ership of property essential, People v. Hughes, 41 Cal. 237. People D.Nichol 34 Cal. 211. , Cited, Criminal Trial, charge as to degrees of murder, People v. Long, 39 Cal. 697 ; instructions as to deliberation, People v Williams, 43 Cal. 352. * People v. Niles 35 Cal. 282 Approved, Taxation, money at interest, where assessable, People v. Whartenby, 38 Cal. 467 ; personal property transiently in county, Oakland v. Whipple, 39 Cal. 115. People v. O'Connell 23 Cal. 281. Cited, Appeal, orders setting aside judg- ment by default, when will be reversed, Watson v. S. P. & H. B. R. R. Co., 41 Cal. 21. People v. Oulton 28 Cal. 44. Commented on, Salary, of office, an inci- dent to the title, Carroll v. Siebenthaler, 37 Cal. 195 ; cited.. Office, right of incum- bent to hold over, People v. Tilton, ^fOal. 623 ; commented on, Vacancy, when it ex- ists, People v. Tilton, 37 Cal. 643, 646. People v. Pacheoo 29 Cal. 210. 1 Limited, Mandamus, party to action, Peo- ple v. San Prancisco, 36 Cal. 605, 606; cited, Certiorari, when people not proper party, People v. County Judge, 40 Cal. 480. People v. Park 23 Cal. 138 Cited, Taxation, choses in action, where assessable, People v. Whartenby, 38 Cal. 467. People v. Parker 37 Cal. 639. Cited, Office, constitutional restriction on power of Governor to appoint, People v. Tilton, 37 Cal. 621 ; approved, in dissent- ing opinion of Crockett, J., Id., 627, 630. People v. Payne 8 Cal. 340. Approved, Criminal Trial, oral instruc- tions, without defendant's consent, illegal, People v. Trim, 37 Cal. 276 ; People v. Sanford, 43 Cal. 35. People v. Pico. . 20 Cal. 595. Cited, Taxation, insufficient description of real estate in assessment roll, People v. Plint, 39 Cal. 673. People v. P. & S. V. E. R. Co. .34 Cal. 656. Cited, Taxation, assessment void for want of legal qualification of Assessor, Keily v. Lancaster, 39 Cal. 359. People v. Plummer 9 Cal. 298. Disapproved, Criminal Procedure, objec- tions to juror taken after verdict, no ground for new trial, People v. Fair, 43 Cal. 146, 147. People v. Potter 35 Cal. 1 10. 426 TABLE OP CASES. Cited, Corporation, irregularities in form- ation not to invalidate acta, People v. S. B. Q. M. Co., 39 Cal. 514. People v. Pratt 28 Cal. 166. Cited, Mandamus, what writ will direct, Lewis v. Barclay, 35 Cal. 214; People v. Sexton, 37 Cal. 534 ; judicial discretion not reviewable, Beguhl v. Swan, 39 Cal. 411. People v. Frovines 34 Cal. 520. Cited, Officers, judicial officers may be em- powered to perform ministerial duties, People v. Bush, 40 Cal. 346. People v. Raymond 34 Cal. 495. Statute distinguished, constitutionality of statute regulating commerce, State v. S. S. Constitution, 42 Cal. 585. People v. Reid 6 Cal. 289. Disapproved, Office, constitutional con- struction as to provision for holding over, People v. Tilton, 37 Cal. 616-627 ; com- mented on, vacancy, power to fill, People v. Parker, 37 Cal. 642. People v. Reinhart 39 Cal. 449. Approved, Witness, oral evidence not com- petent to prove previous conviction to dis- credit witness, People v. Melvane, 39 Cal. 617 ; People v. McDonald, 39 Cal. 698. People v. Renfrow 41 Cal. 37. Cited, Criminal Procedure, insufficient challenge to juror, People v. Walsh, 43 Cal. 448. People v. Reynolds 16 Cal. 128. Approved, Criminal Trial, practice on challenge of juror for bias, People v. Har- din, 37 Cal. 259 ; People v. Renfrow, 41 Cal. 38 ; People v. Walsh, 43 Cal. 448 ; People i). Johnston, 46 Cal. 79; as to im- panneling jury, People v. Scoggins, 37 Cal. 690. People v. Reynolds 28 Cal. in. Approved, Taxation, jurisdiction of Board of Equalization when it attaches, People v. Flint, 39 Cal. 673 ; People v. Goldtree, 44 Cal. 324. People v. Roberts 6 Cal. 214. Approved, Instructions, to be framed with reference to the evidence, ' People v. Wil- liams, 43 Cal. 351 ; cited, People v. Best, 39 Cal. 691. People v. Romero 18 Cal. 89. Cited, Mandamus, conditions precedent to be averred, O. & V. R. R. Co. v. Plumas Co., 37 Cal. 363. Peoples. Sanchez 24 Cal. 17. Cited, Instructions, to be given with ref- erence to the facts proved, People v. Best, 39 Cal. 691 ; commented on, matters of law as to degrees of murder, People v. Taylor, 36 Cal. 265 ; cited, People v. Long) 39 Cal. 697. People v. Sanford 43 Cal. 29. ' Approved, Criminal Trial, oral instruc- tions without defendant's consent illegal, People v. Kearney, 43 Cal. 384 ; People v. Prospero, 44 Cal. 187 ; People v. Max, 45 Cal. 255. People v. San Francisco n Cal. 206. Cited, Corporations, power of Legislature over affairs and property of, Sinton v. Ash- bury, 41 Cal. 530. People v. San Francisco 21 Cal. 668. Cited, Mandamus, to Supervisors to en- force official duty, People v. San Francis- co, 36 Cal. 605 ; Tilden v. Sacramento Co., 41 Cal. 77. People v. San Francisco 27 Cal. 655. Cited, Estoppel, by judgment, doctrine of res adjudicata, Jackson v. Lodge, 36 Cal. 38. People v. San Francisco 28 Cal. 429. Cited, Mandamus, to Supervisors to en- force official duty, Tilden v. Sacramento Co., 41 Cal. 77. People v. San Francisco 36 Cal. 595. Cited, Municipal Corporations, power of Legislature over affairs and property of, San Francisco v. Canavan, 42 Cal. 557, 558. People v. S. F. Savings Union. .31 Cal. 132. Cited, Taxation, assessment void for want of valuation, Garwood v. Hastings, 38 Cal. 224. People v. San Joaquin Co 28 Cal. 228. Cited, Mandamus, to Supervisors to enforce official duty, People v. San Francisco, 36 Cal. 604. People v. Sargent 44 Cal. 430. Cited, Taxation, validity of tax, on what depends, S. & L. Society v. Austin, 46 Cal. 512 ; Assessment, when void, Williams v. Corcoran, 46 Cal. 556. People v. Sassovich 29 Cal. 480. Approved, Office, title to cannot be col- laterally questioned, People v. Mellon, 40 Cal. 656. People v. Schwartz 32 Cal. 160. Cited, Indictment, corporation name in, TABLE OP OASES. 427 People v. Bogart, 36 Cal. 248 ; approved, statement of acts as against accessory, People v. Campbell, 40 Cal. 142 ; People v. Valencia, 43 Cal. 555. People v. Scoggins 37 Cal. 676. Commented on, Trial, challenges in civil and criminal actions, Taylor v. W. P. P.. R. Co., 45 Cal. 330; approved, mode of impanneling jury, People v. Russell, 46 Cal. 122. People v. Senter 28 Cal. 502. Construed, Jurisdiction, over estates of decedents prior to passage of Probate Act, Ryder v. Cohn, 37 Oal. 89. People v. Seymour 16 Cal. 331. Cited, Taxation, personal liability in ac- tion for delinquent tax, Oakland v. Whip- ple, 39 Cal. 115. People n. Shear 7 Cal. 139. Cited, Appeal, jurisdiction of Supreme Court in criminal cases, People v. Apgar, 35 Cal. 390. People v. Shearer 30 Cal. 645. Approved, Taxation, pre-emption claim to public lands taxable, People v. B. D. C. M. Co., 37 Cal. 54 ; commented on, Pre- emption Rights, lands reserved from sale, Hutton v. Prisbie, 37 Cal. 490, 491, 495, S°2» 5°4- People v. Shirley 18 Cal. 121. Cited, Surety, on bond, justification no part of contract, People ti. Penniman, 37 Oal. 273 ; approved, Murdock v. Brooks, 38 Cal. 603. People v. Shotwell 27 Cal. 394. Approved, Pleading, objections waived by failure to demur, People v. Burgess, 35 Cal. 118. People v. Shuler 28 Cal. 490. Cited, Appeal, error must be affirmatively shown, People v. Wright, 45 Cal. 261. People v. Sierra B. Q. M. Co., 39 Oal. 514. Cited, Corporation, use of abbreviated cor- porate name not a usurpation, People v. Bogart, 45 Cal. 74. People v. Smith 1 Cal. 9. Cited, Judicial Notice, taken of geograph- ical divisions, Brumagim v. Bradshaw, 39 Cal. 40. People v. Smyth 28 Oal. 21. Cited, Salary, an incident to title to office, Carroll v. Siebenthaler, 37 Cal. 195. People v. Snellie Cal. Sup. Ct. Ap'l T., 1872, (not reported). Cited, Appeal, party cannot change ground of objection, People v. McCauley, 45 Cal. 148. People b. Squires 14 Cal. 12. Cited, Supervisors, power over collection of taxes, Mitchell v. Crosby, 46 Cal. 100. I People v. Stewart 7 Cal. 140. Cited, Exceptions, allowance and disal- lowance of challenge distinguished, People v. Murphy, 45 Cal. 142. People v. Stewart 28 Cal. 396. Denied, Criminal Procedure, instructions as to evidence of good character of defend- ant, People v. Ashe, 44 Cal. 291. People v. Stonecifer 6 Cal. 405. Cited, Trial, acceptance of juror a waiver of objection to qualifications, People v. Sanford, 43 Cal. 32. People v. Stratton 25 Cal. 242. Approved, State Lands, patent, when sub- ject to collateral attack, Durfee v. Plaisted, 38 Cal. 83. People v. Stratton 28 Cal. 382. Gited, Office, vacancy in, when it ensues, People v. Parker, 37 Cal. 643, right to hold over, Id., 646. Peoples. Stuart 4 Cal. 218. Approved, Trial, insufficient ground of challenge to panel of jury, People v. Williams, 43 Cal. 349. People v. Swift 31 Cal. 26. Distinguished, Contract, ratification by corporation, Meuser v. Risdon, 36 Cal. 245. People v. Taylor 36 Oal. 255. Cited, Trial, evidence on collateral issues not admissible, Martinez v. Planel, 36 Cal. 580. People v. Tetherow 40 Cal. 286. Approved, Appeal, report of evidence not a part of bill of exceptions, People v. Pa- dillia, 42 Cal. 539. People v. Thompson 4 Cal. 238. Cited, Trial, showing required on applica- tion for continuance, People v. Francis, 38 Cal. 188. People v. Thompson 28 Cal. 214. Cited, Indictment, containing 1 several counts, People v. Ah Sam, 41 Cal. 648 ; Appeal, in criminal cases, record how 428 TABLE OP CASES. made up, People v. Padillia, 42 Cal. 538 ; settlement of bill of exceptions, People v. Trim, 37 Cal. 275 ; People v. Tetherow, 40 Cal. 287. People v. Townsley 39 Cal. 405. Followed, Indictment, for larceny, People v. Townsley, Id., 407. People v. Trim 37 Cal. 274 ; same case, 39 Cal. 75- Approved, Indictment, of accessory, Peo- ple v. Campbell, 40 Cal. 141 ; cited, People v.. McGungill, 41 Cal. 431 ; People v. Val- encia, 43 Cal. 555 ; Appeal, report of evi- dence forms no part of bill of exceptions, People v- Padillia, 42 Cal. 539. People v. Tyler 35 Cal. 553 ; same case, 36 Cal. 522. Cited, Trial, examination of party as wit- ness in criminal cases, People v. McGun- gill, 41 Cal. 431. People v. Valencia 43 Cal. 552. Cited, Appeal, reversal and new trial, on ground of contradictory instructions, Peo- ple v. Anderson, 44 Cal. 69. People v. Vanard 6 Cal. 562. Approved, Verdict, of assault to commit a felony construed, Ex parte Ah Cha, 40 Cal. 427 ; Ex parte Max, 44 Cal. 581 ; People v. Murat, 45 Cal. 283. People v. Vance 21 Cal. 400. Approved, Criminal Trial, validity of or- der to summon jury during term, People v. Williams, 43 Cal. 349. People v. Vice 21 Cal. 344. Cited, Indictment, allegation of owner- ship, People v. Hughes, 41 Cal. 237. People v. Vick 7 Cal. 165. Cited, Appeal, jurisdiction of Supreme Court in criminal cases limited to felonies, People v. Apgar, 35 Cal. 390. People v. Washington 36 Cal. 658. Disapproved, Constitutional Law, construc- tion of amendment to Federal Constitu- tion, People v. Brady, 40 Cal. 215; con- stitutionality of statute as to competency of witnesses, Id. ; contra, per Rhodes, C. J., Id., 221. People v. Waterman 31 Cal. 412. Cited, Street Assessment, statutory de- fenses in action for, San Francisco v. Eaton, 46 Cal. 102. People v. Webb 38 Cal. 467. Commented on, Criminal Trial, discharge of jury as an acquittal, Ex parte Mc- Laughlin, 41 Cal. 215 ; cited, Jeopardy, when it attaches, Ex parte Hartman, 44 Cal. 35. People v. Weston .' . .28 Cal. 639. Cited, Mandamus, will not lie to compel Court to reinstate case, Lewis v. Barclay, 35 Cal. 214 ; or compel a rescission of an order, Francisco v. M, I. Co., 36 Cal. 287 ; or control judicial discretion, People v. Sexton, 27 Cal. 534. People v. Whartenby 38 Cal. 461. Approved, Taxation, solvent debts cannot be exempted, People v. Eddy, 43 Cal. 336 ; S. & L. Society v. Austin, 46 Cal. 492 ; approved, double taxation, Id., 485 ; who may complain of, Id., 483. People v. White 34 CaL 183. Distinguished, Counterfeiting, jurisdic- ' tion of State CourtB, People v. Kelly, 38 Cal. 150. People v. Whitman 6 Cal. 659. Cited, Mandamus, province of writ, Til- den v. Sacramento Co., 41 Cal. 77. People v. Whitman 10 Cal. 38. Commented on, Office, vacancy in, power of Governor to appoint, People v.Tilton, 37 Cal. 618-623 ; People v. Parker, 37 Cal. 643-650. People v. Whyler 41 Cal. 351. Approved, Taxation, for local improve- ments, Williams v. Corcoran, 46 Cal. 555- People v. 'Williams 17 Cal. 142. Cited, Criminal Procedure, threats of de- ceased as evidence, People v. Scoggins, 37 Cal. 687. People 1). Williams 18 Cal. 193. Approved, Appeal, technical exceptions, practice recommended, People v. Devine, 44 Cal. 460. People v. Williams 32 CaL 280. Approved, Instructions, to be given in reference to evidence adduced, People v. Best, 39 Cal. 691. People v. Wilson. 9 Cal. 260. Distinguished, Verdict, of assault with deadly weapon, construction of, People v. Congleton, 44 Cal. 95. People v. Wolf 16 Cal. 385. Cited, Recognizance, when responsibili- ties of sureties attach, People v. Penni- man, 37 Cal. 273. TABLE OP CASES. 429 People u. Woods 43 Cal. 177. Cited, Appeal, reporter's notes no part of record, People v. Armstrong, 44 Oal. 327. People v; Woppner 14 Cal. 437. Cited, Criminal Trial, oral charge with r out defendant's consent illegal, People «, Trim, 37 Cal. 276. Perre v. Castro 14 Cal. 519. Commented on, Mortgage, effect of tender after law day, Ketchum v. Crippen, 37 Cal. 226. Perry v. Washburn 20 Cal. 318. Distinguished, Legal Tender, railroad fare, tender of, Tarbell v. C. P. E. E. Co., 1 34 Cal. 623 ; cited, Mandamus, lies to en- force official duty, Tilden u. Sacramento Co., 41 Cal. 77. Peters v. Foss 16 Cal. 357. Cited, Appeal, matters of discretion, as the allowance of amendment for variance, not reviewable,, Waugenheim v. Graham, 39 Cal. 175. Phelan v. San Francisco. ..6 Cal. 531 ; same case, 9 Cal. 15 ; 20 Cal. 39. Cited, Appeal, effect of reversal, Ryan v. Tomlinson, 39 Cal. 646. Pico 13. Sunol 6 Cal. 294. ' Cited, Judgments, not subject to collateral attack, Drake v. Duveniek, 45 Cal. 464. Pierce v. Robinson 13 Cal. 116. Cited, Assignment, of choses in action, Grain v. Aldrich, 38 Cal. 521 ; Bergson v. Builders Ins. Co., 38 Cal. 545 ; approved, Deed, as mortgage, parol evidence admis- sible to prove, Jackson v. Lodge, 36 Cal. 46, 48, 62 ; Baynor v. Lyons, 37 Cal. 454. Piercy v. Crandall 34 Cal. 334. Cited, Deed, construction of calls in, Walsh v. Hill, 38, Cal. 487. Pierpont v. Crouch 10 Cal. 315. Cited, Statutory Construction, repeal by implication, People v. Burt, 43 Cal. 564. Pinkham v. McFarland 5 Cal. 137. Cited, Evidence, waiver of objections to endorsement on note, Pobrman v. Mills, 35 Cal. 121. Pioche v. Paul. 22 Cal. 105. Cited, Ejectment, unconstitutional provis- ion in statute limiting action by patentee, Anderson v. Fisk, 36 Cal. 633. Piper's Appeal 32 Cal. 530. Eeferred to, Appeal, in special cases, Ap- peal of S. O. Houghton, 42 Cal. 68. Pitte v. Shipley 46 Cal. 154. Followed, Eoreclosure of Mortgage, claim against estate, Harp v. Calahan, 46 Cal. 233- Fixley v. Huggins 15 Cal. 127. Cited, Cloud on Title, not constituted by void deed, Cohen v. Sharp, 44 Cal. 30 ; distinguished, Injunction, equitable juris- diction to enjoin sale, Crowley v. Davis, 37 Cal. 270, 271 ; to quiet title, Afrington v. Liscom, 34 Cal. 389. Pixley v. W. P. R. R. Co .33 Cal. 183. Approved, Corporation, liability on im- plied contract, Barstow v. City B. E. Co., 42 Cal. 467. Pleasants v. N. B. & M. R. R. Co.. .34 Cal. 586. Distinguished, New Trial, when verdict for excessive damages will be set aside, Kinsey v. Wallace, 36 Cal. 485. Plume v. Seward 4Cal. 94. Cited, Land, actual possession, what con- stitutes, Brumagim v. Bradshaw, 39 Cal. 44- - Poett v. Stearns. .28 Cal. 226 ; same case, 31 Cal. 78. Cited, Legal Tender Act, constitutional- ity of, Belloc v. Davis, 38 Cal. 254 ; but its application to pre-existing debts doubted ; contra, Id., 259 ; commented on, Him- melmann v. Spanagel, 39 Cal. 391. Poinsett v. Taylor 6 Cal. 78. Cited, Trespass, officer liable for acts done by deputy, Hlrsch v. Eand, 39 Cal. 318. Polack v. Hunt .2 Cal. 193. Cited, Summons, power of Court to amend, Lyman v. Milton, 44 Cal. 635. Polack v. McGrath , 25 Cal. 54. Cited, Nonsuit, when should be granted in forcible entry and detainer, Buel v. Erazier, 38 Cal. 697. Polack v. McGrath 32 Cal. 15. Eeferred to on second appeal, 38 Cal. 667 ; cited, Ejectment, title, by prior posses- sion, Cannon v. Union Lumber Co., 38 Cal. 674 ; portion of premises may be re- covered, Slaughter v. Fowler, 44 Cal. 200. Polhemus v. Carpenter .42 Cal. 375. Cited, Findings, provisions as to filing, directory,, Broad y. Murray, 44 Cal. 229. 430 TABLE OF OASES. Polhemus v. Trainer 30 Cal. 685. Commented on, Mortgage, -when created by absolute assignment, Jackson v. Lodge, 36 Cal. 43, 49. Pollock v. Cummings 38 Cal. 683. Approved, Trespass, on real estate, juris- diction of Justice of Peace t Cornett v. Bishop, 39 Cal. 319. Pond v. Davenport 44 Cal. 481. Cited, Judgment, by confession, when prima facie fraudulent, Pond v. Daven- port, 45 Cal. 229. Poorman v. Mills 35 Cal. 1 18. Cited, Pleadings, allegation of legal con- clusions, surplusage, Hook v. White, 36 Cal. 302. Pope v. Huth 14 Cal. 403. < Cited, Assignment, of insurance policy, assent of insurer required, Bergson v. Builders Ins. Co., 38 Cal. 545. Potter v. Seale 5 Cal. 410; same case, 8 Cal. 217. Cited, Malicious Prosecution, want of probable cause to be shown, burden of proof, Levy v. Brannan, 39 Cal. 488. Pralus v. Jefferson G. & S. M. Co 34 Cal. 558. Cited, Pleading, requisites of complaint in action to quiet title, N. C. & S. C. Co. v. Kidd, 37 Cal. 307 ; commented on, Se- pulveda v. Sepulveda, 39 Cal. 22. Preston v. Keys 23 Cal. 193. Cited, Instructions, practice, Bradley v. Lee, 38 Cal. 370. Preston v. Sonora Lodge 39 Cal. 116. Commented on, Mechanic's Lien, con- struction of statute, Fuquay v. Stickney, 41 Cal. 586/587. Price v. 'Whitman 8 Cal. 412. Affirmed, on principle of stare decisis, Statute, computation of time for return of bill by Governor, Iron M. Co. v. Haight, 39 Cal. 542. Priest v. Union Canal Co 6 Cal. 170. Cited, Trial, discretion in admission of evidence, Poote v. Richmond, 42 Cal. 442. Quinn v. Kenyon 38 Cal. 502. Cited, Pre-emption, transfer and extin- guishment of right of, Moore ti. Besse, 43 Cal. 514. Quivey v. Baker 37 Cal. 465. Cited, Judicial Notice, of decision of Su- preme Court, Gambert v. Hart, 44 Cal. 549- Quivey v. Gambert 32 Cal. 304. Cited, Appeal, error without injury, Gam- bert v. Hart, 44 Cal. 450 ; overruled, as to jurisdiction to review "special orders made after final judgment," Calderwood v. Peyser, 42 Cal. 113; cited, New Trial, notice of motion when to be given, Harris v. S. P. S. R. Co., 41 Cal." 404 ; disap- proved, practice on settlement of state* ment, Morris v. DeCelis, 41 Cal. 331 ; con- tra, Rhodes, C. J., dissenting, -? 334 i commented on, Lucas v. City of Marys- ville, 44 Cal. 212 ; approved, as to error, in striking out statement, Calderwood v. Peyser, 42 Cal. 117, 120, 121 ; proposing amendments and striking out statement, Cottle v. Leitch, 43 Cal. 322. Quivey v. Porter, 37 Cal. 458 ; same case, Cal. Supreme Court, Oct. Term, 1867 (not reported). Affirmed, Judgment, by default, recitals as to service of process import absolute verity, Quivey v. Baker, 37 Cal. 477 ; cited, Mc- Cauley v. Pulton, 44 Cal. 361. Racouillat v. Rene 32 Cal. 450. Cited, Pleading, immaterial averments, matters of evidence, Jones v. City of Peta- luma, 36 Cal. 233 ; Minor v. Kidder, 43 Cal. 236. Racouillat v. Sansevain 32 Cal. 376. Cited, Married Woman, executory con- tract as a lien, Racouillat v. Requena, 36 Cal. 653; approved, Id., 657; cited, en- forcement of, Love v. Watkins, 40 Cal. 562 ; Judgment, against executor cannot be enforced by execution, Bank of Stock- ton v. Howland, 42 Cal. 133. Ramsdell v. Puller 28 Cal. 37. Approved, Conveyance, to wife, evidence admissible to explain consideration, Hig- gins v. Higgins, 46 Cal. 263 ; distinguish- ed, constructive notice, Vassault v. Austin, 36 Cal. 697-700. Reamer v. Nesmith 34 Cal. 624. Cited, Deed, construction of calls in, as to latent ambiguities, Piper v. True, 36 Cal. 615 ; Walsh v. Hill, 38 Cal. 486. Redding v. Bell 4 Cal. 333. Approved, Appropriations, authority of controller to draw warrants, Stratton v. Green, 45 Cal. 151. Redding v. White 27 Cal. 282. Cited, San Francisco, tenure of pueblo TABLE OF CASES. 431 lands, San Francisco v. Canavan, 42 Cal. 556- Reed v. Omnibus R. R. Co 33 Cal. 212. Affirmed, Street Railroad, actions against for forfeitures, jurisdiction, Smith v. Om- nibus R. R. Co., 36 Cal. 282 ; statutory ' rights and remedies, Clear Lake W. W. Co. v. Lake County, 45 Cal. 92. Reese, Appeal of 32 Cal. 567. Referred to, Appeal, in special cases, Appeal of S. O. Houghton, 42 Cal. 68. Reese v. Mahoney 21 Cal. 305. Referred to, Satterlee v. Bliss, 36 Cal. 513. Reese v. Stearns 29 Cal. 273. Cited, Legal Tender Act, constitutionality of, Belloo v. Davis, 38 Cal. 254 ; judgment in currency valuation, Carpentier v. Small, 35 Cal. 357- Reeve v. Kennedy 43 Cal. 643. Cited, Judgment, conclusiveness of recitals, McCauley v. Fulton, 44 Cal. 361 ; Judicial Sale, title of purchaser, Jones v. Gillis, 45 Cal. 543 ; Pleading, allegation of law in complaint, Stokes v. McCoy, 46 Cal. 19. Regan v. McMahon 43 Cal. 625. Approved, Partition, practice on new trial, Tormey v. Allen, 45 Cal. 121. Reily v. Lancaster 39 Cal. 354. Cited, Judgment, collateral attack, Eitel v. Foote, 39 Cal. 440; Taxation, assess- ment, when void, Williams v. Corcoran, 46 Cal. 556. Revalk v. Kraemer 8 Cal. 66. Cited, Injunction, does not lie to restrain proceedings of co-ordinate Courts, Crowley v. Davis, 37 Cal. 269. Reynolds ^.'Harris 14 Cal. 667. Cited,, Judgment, erroneous, conclusive till reversed, Hunt v. Loucks, 38 Cal. 377 ; cited, Appeal, restitution on reversal, Polack v. Shafer, 46 Cal. 276 ; remedies after sale under judgment reversed, Rey- nolds v. Hosmer, 45 Cal. 629. Reynolds v. Page .35 Cal. 296. Cited, Action, dismissal for want of prose- cution, Carpentier v. Minturn, 39 Cal. 45i- Rhine v. Ellen 36 Cal. 362. Approved, Estoppel, by recitals in deed, Ingersoll v. Truehody, 40 Cal. 610 ; cited, Evidence, parol to explain written instru- ments, Higgins v. Higgins, 46 Cal. 263. Rice v. Cunningham 29 Cal. 492. Cited, Appeal, finding not disturbed where evidence is conflicting, Pralus v. P. G. & S. M. Co., 35 Cal. 37 ; cited, Estoppel, by judgment, Cunningham v. Ashley, 45 Cal. 494. Rice v. Inskeep 34 Cal. 224. Cited, New Trial, motion for is exclusive remedy for defective findings, Prince v. Lynch, 38 Cal. 53 1, 536 ; Judgment, against administrator, nofe enforceable by execu- tion, Bank of Stockton v. Howland, 42 Cal. Cal. 133. Richu. Maples 33 Cal. 102. Cited, Mexican Grant, survey and segre- gation of, Yates v. Smith, 38 Cal. 66. Richards u. McMillan 6 Cal. 419. Cited, Judgment, by confession, defective statement, Pond v. Davehport, 44 Cal. 487 ; commented on, not subject to collat- eral attack, Lee v. Figg, 37 Cal. 336. Richardson v. Kier 34 Cal. 63. Affirmed, Negligence, ' liability of ditch owners for injuries done by water, same case, 37 Cal. 263 ; cited, Campbell v. B. R. & A. W. & M. Co., 35 Cal. 683. Richardson v- McNulty 24 Cal. 339. Approved, Abandonment, evidence of, Bell v. Bed Rock T. & M. Co., 36 Cal. 218 ; Moon v. Rollins, 36 Cal. 337 ; cited, what constitutes, McLeran, v. Benton, 43 Cal. 476 ; Ejectment, from mining claim, doc- trine as to title inapplicable, Bradley v. Lee, 38 Cal. 370. Richardson v. "White 18 Cal. 102. Cited, Lis Pendens, exclusive method of charging purchaser with constructive no- tice, Corwin v. Bensley, 43 Cal. 263. Richardson v. Williamson. ... .24 Cal. 289. Cited, Mexican Grant, when Statute of Limitations begins to run against confir- mee, Anderson v. Fisk, 36 Cal. 632. Richmond v. S. V. R. R. Co 18 Cal. 351. Cited, Statutory Construction, repeal by implication, Logan v. Gedney, 38 Cal. 58l. Rickett v. Johnson 8 Cal. 34. Approved, Injunction, does not lie to re- strain proceedings of co-ordinate Court, Crowley v. Davis, 37 Cal. 269 ; cited, De- Godey v. Godey, 39 Cal. 162. Rico v. Speuce 21 Cal. 504. Cited, Action, to quiet, title, possession 432 TABLE OP CASES. essential, N. C. & S. C. Co. v. Kidd, 37 Gal. 307 ; allegation of possession in com- plaint essential, Pralus v. Jefferson G. & S. M. Co., 34 Cal. 559; Mexican Grant, title in confirmee, Banks v. Moreno, 39 Cal. 246. Riddle v. Baker 13 Cal. 295. Cited, Sureties, when bound by decree against principal, Murdock v. Brooks, 38 Cal. 601. Riggs v. Waldo z Cal. 485. Approved, Guarantor, on negotiable in- strument, liable as in dorser, Jones v. Good- win, 39 Cal. 494, 495 ; who is "guarantor, Ford. v. Hendricks,-34 Cal. 675; promise of guarantor, not within Statute of Frauds, Id., Howland v. Aitoh, 38 Cal. 135. Ring, Matter of 28 Cal. 247. Cited, Appeal, bill of exceptions as part of record, People v. Trim, 37 Cal. 275. Roberts v. Landecker 9 Cal. 262. Cited, Attachment, liability of garnishee, Robinson v. Tevis, 38 Cal. 614. Robinson v. Forrest 29 Cal. 317. Commented on, State Lands, construction of Swamp Land Act, Sherman v. Buick, 45 Cal. 668. Robinson v. Gaar 6 Cal. 273. Cited, Injunction, will not lie to restrain collection of taxes, Bucknall v. Story, 36 Cal. 71. Robinson v. Magee '. . .9 Cal. 83. Cited, Constitutional Law, Legislature cannot impair vested rights, Bose v. Estu- dillo, 39 Cal. 274, Robinson v. Smith 14 Cal. 95. Cited, Consideration, pre-existing debt a valuable consideration, Frey v. Clifford, 44 Cal. 342. Rodriguez v. Comstock 24 Cal. 85. Cited, New Trial, surprise, Delmas v. Martin, 39 Cal. 558. Rogers v. Huie . . . 1 Cal. 429 ; same case, 2 Cal. 571. Cited, New Trial, newly discovered evi- dence, showing required, Case v. Codding, 38*Cal. 194. Rollins v. Forbes. . . .< 10 Cal. 299. Approved, Pleading, demurrer does not lie to prayer of complaint, Althof v. Con- heim, 38 Cal. 234. Rondell v. Fay 32 Cal. 354. Approved, Corporation, right to act not subject to collateral inquiry, Pacific Bank v, DeBo, 37 Cal. 541. Rose v. Davis.. 11 Cal. 133. Cited, Lands, constructive possession un- der deed, Walsh v. Hill, 38 Cal. 487. Rose v. Estudillo 39 Cal. 270. Approved, County Funds, power of Legis- lature, People v. Morse, 43 Cal. 538. Ross v. Heintzen 36 Cal. 314. Cited, Partnership Property, title of pur- chaser of interest in, McCauley v. Fulton, 44 Cal. 362. Roussin v. Stewart 33 CaL 208. Cited, Pleading, sufficiency of denial, " on information and belief, ' ' Jones v. City of Petaluma, 36 Cal. 234 ; Kirstein v. Mad- den, 38 Cal. 163. Rowe v. Kohle 4 Cal. 285. Cited, Married Woman, how may bind her separate property, Belloc v. Davis, 38 Cal. 256. Rowland v. Kreyenhagen 24 Cal. 52. Cited, Appeal, remittitur when may be re- called, Vance v. Pena, 36 Cal. 328. Rush v. Casey 39 Cal. 339. Commented on, Mexican Grant, effect of rejection of claim, MoGary -v. Hastings, 39 Cal. 368 ( . Russell u. Byron 2 Cal. 86. Cited, Appeal, dismissal for want of grounds of action in complaint, Ketchum v. Crippen, 37 Cal. 228. Russell v. Harris 38 Cal. 420. Explained, Land, constructive possession of, Bussell v. Harris, 44 Cal. 492. Russell v. Mallon 38 Cal. 262. Cited, Estoppel, landlord, when bound by judgment against tenant, Douglas v. Ful- da, 45 Cal. 594. Russell v. Mann 22 Cal. 131. Approved, Pleading, tax title, how pleaded, Himmelmann v. Danos, 35 Cal. 449. Russell v. Mixer 39 Cal. 504. Preferred to, Mortgage, relief from mis- take in decree, same case, 42 Cal. 478. Ryan v. Dougherty 30 Cal. 218. Cited, Arbitration, practice, on submis- sion of award, Fairchild v. Doten, 42 Cal. 129 ; Jurisdiction, on what depends, Pier- att v. Kennedy, 43 Cal. 395. TABLE OF OASES. 433 Ryan v. Johnson. . . , 5 Gal. 86. Cited, Constitutionality, of special stat- utes, Peoples. C. P. R. R. Co., 43 Cal. 434. Ryan v. Tomlinson 31 Cal. ,n. Referred to, on second appeal, Statute of Frauds, same case, 39 Cal. 643. Rynerson v. Kelsey .34 Cal. 470. Cited, Tax Collector, election, powers of Legislature, Mills v. Sargent, 36 Cal. 382 ; Taxation, when assessment invalid, Reily v. Lancaster, 39 Cal. 359. Sacramento F. & N. R. R. Co. v. Harlan, 24 Cal. 334. Approved, Appeal, lies from judgment in proceedings to condemn lands, Phillips v. Pease, 39 Cal. 584 ; cited, Appeal of S. O. Houghton, 42 Cal. 68. Sacramento V. R. R. Co. v. Moffatt 6 Cal. 74. Cited, Appeal, lies from judgment in pro- ceedings to condemn lands, Appeal of S. O. Houghton, 42 Cal. 68. Sanchez i,. Carriaga.... 31 Cal. 170. Cited, Injunction, when will not issue to restrain execution of judgment, Ketchum v. Crippen, 37 Cal. 228 ; Murdock v. De Vries, 37 Cal. 529. Sanchez v. Roach 5 Cal. 248. Commented on, Parties, substitution of , legal representatives, Judson v. Love, 35 Cal. 468, 470. Sandfoss v. Jones 35 Cal. 481. Approved, Resulting Trust,, when it arises, Price v. Reeves, 38 Cal. 460. San Diego v. S. D. & L. A. R. R. Co., 44 Cal. 106. Cited, Supervisors, relation of trustees, Andrews v. Pratt, 44 Cal. 318. Sanford v. Boring 12 Cal. 539. Explained, Attachment, effect of defend- ant retaining possession after levy, Haw- kins v. Roberts, 45 Cal. 41. San Francisco v. Beideman 17 Cal. 443. Cited, San Francisco, tenure of pueblo lands, San Francisco v. Canavan, 42 Cal. 556. San Francisco v. Calderwood. .31 Cal. 585. Cited, Dedication, what essential to valid- ity of, San Francisco v. Canavan, 42 Cal. 554 ; legislative power over pueblo lands, Id., 557- CAL. DIG. SUP. 28. San Francisco v. Fulde 37 Cal. 349. Cited, Lands, title by adverse possession, continuity of possession essential, San Jose' v. Trimble, 41 Cal. 543. San Francisco v. Lawton 18 Cal. 465. Commented on, Foreclosure, adverse titles not in issue, Hibernia S. &/ L. Society v. Ordway, 38 Cal. 681 ; cited, Deed, quit- claim does not pass after-acquired title, McDonald v. Edmonds, 44 Cal. 330. San Francisco v. Fixley 21 Cal. 56. Cited, Execution, title of purchaser, on what depends, Blood v. Light, 38 Cal. 654. San Francisco A. & S. R. R. Co. v. Cald- well 31 Cal. 367. Cited, Appeal, jurisdiction in special cases, Appeal of S. O. Houghton, 42 Cal. 68 ; approved, condemnation of lands, compen- sation, how computed, Cal. P. R. R. Co. v. Armstrong, 46 Cal. 91. S. F. & S. J. R. R. Co. v. Mahoney 29 Cal. 112. Cited, Appeal, jurisdiction in special cases, Appeal of S. O. Houghton, 42 Cal. 68. San Jose v. Trimble 41 Cal. 536. Cited, Alcalde Grants, limitation of ac- tion under, Grim v. Curley, 43 Cal. 253 ; Statute of Limitations not stopped by pendency of proceedings for survey, Hayes v. Martin, 45 Cal. 563. Sargent v. Sturm 23 Cal. 359. Approved, Claim and Delivery, when de- mand not necessary to action, Wellman v. English, 38 Cal. 584. Saunders v. Clark 29 Cal. 304. Cited, Deed, evidence to explain latent ambiguities, Piper v. True, 36 Cal. 615. Saunders v. Haynes 13 Cal. 145. Cited, Jurisdiction, special cases, what are, Appeal of S. O. Houghton, 42 Cal. 62 ; Appeal in Special Cases, Id., 68. Saunders v. Webber 39 Cal. 287. Referred to, Webber v. "Wilcox, 45 Cal. 302. Savings & L. So. u. Austin 46 Cal. 415. Approved, Taxation, injunction will not lie to restrain, People v. Austin, 46 Cal. 522 ; solvent debts taxable, People v. Ash- bury, 46 Cal. 527. Scales v. Scott 13 Cal. 76. Cited, Confession of Judgment, when void for fraud, Tully v. Harloe, 38 Cal. 308. 434 TABLE OP CASES. Schadt v. Heppe 45 Cal. 433. Distinguished, Probate, mortgage claim, when to be presented, Pitte v. Shipley, 46 Cal. 159, 160; Harp v. Calahan, 46 Cal. 230. SchelJhous v. Ball 29 Cal. 605. Approved, New Trial, for surprise, when denied, Doyle v. Sturla, 38 Cal.' 456 ; Del- mas v. Martin, 39 Cal. 557. Schenk v. Evoy 24 Cal. 104. Approved, Conveyance, grantee of specific quantity a tenant in common, Lawrence v. Ballou, 37 Cal. 520 ; Grogan v. Vache, 45 Cal. 612. Schmidt v. Wieland 35 Cal. 343. Approved, Guardian and Ward, sale of ward's property when void, De La Mon- 1 tagnie v. Union Ins. Co., 42 Cal. 293. Sclimitt v. Giovanari 43 Cal. 617. Cited, Mexican Grant, legal title in con- firmee, Hartley v. Brown, 46 Cal. 204. Schumann. Garratt 16 Cal. 100. Approved, Land, title by purchase of ad- verse claim, Cannon v. Stockmon, 36 Cal. 539- Seale v. Doane 17 Cal. 476. Cited, Municipal Corporations, property not subject to execution, San Francisco v. Canavan, 42 Cal. 557- Seale v. Ford 29 Cal. 104. Cited, Mexican Grant, title under con- firmed survey, Yates v. Smith, 38 Cal. 65 ; title takes effect by relation, Morrill v. Chapman, 35 Cal. 88 ; commented on, effect of survey, Miller v. Dale, 44 Cal. 575 ; title not perfect till segregation, Bernal v. Lynch, 36 Cal. 145. Sealeu, Mitchell sCal. 401. , Approved, Supreme Court, jurisdiction and powers of, Vassault v. Austin, 36 Cal. 696, 697. Sears v. Dixon 33 Cal. 326. Cited, Findings, presumptions as to, Mor- rill v. Chapman, 35 Cal. 87 ; in support of judgment implied, Shelby v. Houston, 38 Cal. 421 ; Smith v. Cushing, 41 Cal. 99 ; Homestead, alienation of, what essential to, Barber v. Babel, 36 Cal. 21 ; Deed, as mortgage, parol evidence to prove, Jack- son v. Lodge, 36 Cal. 49 ; distinguished, Henley v. Hotaling, 41 Cal. 28. Sears v. Hathaway . . 12 Cal. 277. Distinguished, New Trial, for excessive damages, Kinsey v. Wallace, 36 Cal. 485. Selden v. Meeks 17 Cal. 128. Cited, Mechanic's Lian, sufficiency of statement in notice, Hicks v. Murray, 43 Cal. 522. Selover v. American R. C. Co. . .7 Cal. 266. Approved, Husband and Wife, power of wife over her separate property, Love v. Watkins, 40 Cal. 559. Semple v. Hagar 27 Cal. 163. Approved, Mexican Grant, decree of con- firmation not subject to collateral attack, Bernal v. Lynch, 36 Cal. 143 ; Yates v. Smith, 40 Cal. 668. Semple v. Wright 32 Cal. 666. Cited, Mexican Grant, confirmation of survey not subject to collateral attack, Bernal v. Lynch, 36 Cal. 144; Yates v. Smith, 38 Cal. 61-63 ; contra, opinion of Crockett, J., Id., 72; approved, Estoppel, waiver of in pleading, Semple v. Ware, 42 Cal. 621. Settembre v. Putnam 30 Cal. 490. Cited, Mines and Mining, stockholders in ditch companies as tenants in common, McConnell v. Denver, 35 Cal. 370 ; Re- sulting Trust, when it arises, Sandfoss v. Jones, 35 Cal. 487. Sharp v. Brunnings 35 Cal. 533. Cited, Judgment, conclusiveness of recit- als in, McCauley v. Fulton, 44 Cal. 361. Sharp v. Contra Costa Co 34 Cal. 284. Approved, Action, State or local subordi- nate governments not liable to, without consent, People v. Doe, 36 Cal. 223 ; rem- edy of creditor of county, Base v. Estu- diE.0,39 Cal. 275 ; cited, Legislature, power of control over affairs and property of mu- nicipal corporations, Sin ton v. Ashbury, 41 Cal. 530. Sharp v. Daugney 33 Cal. 505. Cited, Appeal, motions and orders to strike out pleadings, no part of judgment roll, Slitter v. San Francisco, 36 Cal. 114. Sharp v. Lumley 34 Cal. 614. Cited, Execution, may issue before docket lien acquired, Bagley u.Ward, 37 Cal. 146. Shaver v. Murdock 36 Cal.. 293. Approved, Mechanic's Lien, statutory rights of subcontractors, Henley v. Wads-' worth, 38 Cal.' 361. Shea v. Potreio & B. V. R. R. Co 44 Cal. 414. Distinguished, Negligence, rule for com- TABLE OP CASES. 435 puting damages, Malone v. Hawley, 46 Cal. 414. Shelby v. Houston 38 Cal. 410. Approved, Forcible Entry and Detainer, " occupant" denned, Wilson v. Shackel- ford, 41 Cal. 632 ; when action will not lie, Townsend v. Little, 45 Cal. 676 ; Powell v. Lane, 45 Cal. 678. Sherman v. Buick 32 Cal. 241. Approved, Eminent Domain, Legislature cannot condemn lands' for other than pub- lic uses, Brenham v. Story, 39 Cal. 189 ; cited, Supervisors, jurisdiction and powers of, Kimball v. Board of' Supervisors, 46 Cal, 24. Sherman v. Story 30 Cal. 253. Ci,ted, Judgment, collateral attack on, Hahn v. Kelly, 34 Cal. 424 ; Statute, not impeachable for fraud in its passage, O. & V. R. R. Co. v. Plumas Co., 37 Cal. 363 ; motives of legislators not subject to col- lateral inquiry, Harpending v. Haight, 39 Cal. 202 ; when conclusive of legislative will, People v. Burt, 43 Cal. 564. Shrader, Ex parte 33 Cal. 279. Cited, Legislature, may authorize munici- pal health regulations, Johnson v. Simon - ton, 43 Cal. 249. Shriver v. Lovejoy 32 Cal. 574. Cited, Negotiable Instruments, joint mak- ers all principals, Damon v. Pardow, 34 Cal. 281. Sichel v. Carrillo 43/Cal. 493. Approved, Mortgage, burdens cannot be increased as against junior incumbrancers, Wood v. Goodfellow, 43 Cal. 188 ; distin- guished, Probate, presentation of mort- gage claim, Schadtu. Heppe, 45 Cal. 438 ; Pitte v. Shipley, 46 Cal. 159; cited, Harp v. Callahan, 46 Cal. 230 ; Foreclosure, administrator, when not a necessary party, Schadt v. Heppe, 45 Cal. 437. Simson v. Eckstein. 22 Cal. 580. Approved, Presumptions, from acquies- cence for length of time, Drake v. Duven- ick, 45 Cal. 467. Skillman v. Lachman 23 Cal. 198. Approved, Mining Partnerships, power and authority of partner, MeConnell v. Denver, 35 Cal. 369, 370, 372 ; construed, exceptional rule as to such partnerships, Decker v. Howell, 42 Cal. 641 ; distin- guished, as to ratification by, Jones v. Clark, 42 Cal. 194. Sleeper v. Kelly .22 Cal. 456. Approved, Appeal, judgments and orders by consent not reviewable, Mecham v. McKay, 37 Cal. 158; San Francisco v. Certain Real Estate, 42 Cal. 518. Smith v. Keating, Ex parte 38 Cal. 709. Cited, Appeal, decision of Supervisors when not reviewable, Ex parte Delaney, 43 Cal. 480. Smith v. Athern 34 Cal. 506. Approved, Land, prior equities enforced in case of conflicting patents, Yates v. Smith, 38 Cal. 65 ; Poppe v. Athearn, 42 Cal. 615 ; cited, Appeal, findings must be in relation to facts proved, Moss v. Atkinson, 44 Cal. 16. Smith v. Brannan 13 Cal. 107. Approved, Quieting Title, equitable title sufficient to maintain action by party in possession, Pralus v., Pacific G. & S. M. Co., 35 Cal. 34. Smith v. Chichester 1 Cal. 409. Cited, Jurisdiction, cannot be conferred by stipulation, Bates v. Gage, 40 Cal. 184. Smiths. Cofran 34 Cal. 316. Approved, Street Assessment, when to be made to "unknown owners," Himmel- mann v. Steiner, 38 Cal. 180 ; cited, Rem- edy, by appeal to Board exclusive, Him- melmann v. Hoadley, 44 Cal. 279. , Smith v. Dall 13 Cal. 510. Commented on, Conveyances, mistake of Recorder as vitiating record, Emmal v. Webb, 36 Cal. 203. Smith v. Davis 30 Cal. 536. Approved, Street Assessment, when to be made to "unknown owners," Himmel- mann v. Steiner, 38 Cal. 180 ; statute to be strictly pursued, Chambers v. Satterlee, 40 Cal. 524 ; remedy by appeal to Board exclusive, Himmelmann v. Hoadley, 44 Cal. 279 ; cited, demand of payment, how made, Himmelmann v. Hoadley, Id., 227. Smith v. Greer > 31 Cal. 477. Cited, Husband and Wife, when wife not liable on contract, Althof v. Conheim, 38 Cal. 233 ; Belloc v. Davis, Id., 256. Smith v. Ogg Shaw 16 Cal. 88. Approved and applied, Replevin, demand, when not necessary, Campbell v. Jones, 38 Cal. 512. Smith v. Randall 6 Cal. 47. Cited, Execution, validity of sale not af- fected by neglect of officer, Blood v. Light, 38 Cal. 654. 436 TABLE OF CASES. Smith v. Richmond 15 Cal. 501 ; same case, 19 Cal. 476. Cited, Pleadings, admissions by failure to deny, Doll v. Good, 38 Cal. 290 ; disapprov- ed, New Promise, nature of contract aris- ing from, Chabot v. Tucker, 39 Cal. 438. Smith v. Sacramento 13 Cal. 531. Approved, Munioipal Corporation, may employ attorneys to protect public inter- ests, Hornblower v. Duden, 35 Cal. 670. Smith v. Smith 12 Cal. 216. Cited, Husband and "Wife, deed to wife not perse void, Lord v. Hough, 43 Cal. 585 ; right of wife to share of community property, DeGodey v. Godey, 39 Cal. 164 ; referred to for facts, Smith v. McDonald., 42 Cal. 486. Smith v. Yule 31 Cal. 180. Approved, Lands, possession of tenant as notice of landlord's title, Thompson v. Pioche, 44 Cal. 516. Sneed v. Osborn 25 Cal. 619. Distinguished, Land, adverse possession, what constitutes, Irvine v. Adler, 44 Cal. 562. Solano Co. v. Neville 27 Cal. 465. Cited, Fees and Salaries, power of Legisla- ture respecting, Ream v. Siskiyou Co., 36 „ Cal. 622. Solomon v. Reese 34 Cal. 28. Cited, Appeal, statement when not re- quired, Jones v. Petaluma, 36 Cal. 232. Soto v. Kroder 19 Cal. 87. Commented on, Probate Act, how far re- troactive, Ryder v. Cohn, 37 Cal. 89 ; ap- proved, dissenting opinion of Rhodes, J., Id., 91. Spangel u.Dellinger, 38 Cal. 278 ; same case, 34 Cal. 476. Cited, Appeal, injury presumed from error, Sweeney v. Reilly, 42 Cal. 407. SpanageF v. Bellinger 42 Cal. 148. Cited, Appeal, effect of assignment of in- terest in •judgment on rights of party, Hobbs v. Duff, 43 Cal. 492. Sparks v. Hess 15 Cal. 186. - Commented on, Vendor's Lien, nature of, Porter v. Brooks, 35 Cal. 206. Spencer v. Prindle 28 Cal. 276. Approved, Damages, assessment of, may be founded on valuation in legal tenders, Carpentier v. Small, 35 Cal. 357. Spring Valley W.W., Ex parte, 17 Cal. 132. Cited, Corporation, substantial compliance with Statute, on formation of, sufficient, People v. S. & V. R. R. Co., 45 Cal. 313; Mandamus, when will issue, Tilton v. Sacramento Co., 41 Cal. 77; Appeal, in special cases ; appeal of S. 0. Houghton, 42 Cal. 68. Spring Valley W. W. v. San Francisco, 22 Cal. 434. Approved, Corporations, slight defects or omissions in organization not to invali- date charter, O. & V. R. R. Co. v. Plumas Co., 37 Cal. 361 ; People v. S. & V. R. R. Co., 45 Cal. 313. Stafford v. Lick 7 Cal. 479; same case, io Cal. 16. Approved, Conveyances, recording deeds made prior to passage of Act,- Anderson v. Fisk, 36 Gal. 634 ; Graff v. Middleton, 43 Cal - 343- Stanford v. Worn 27 Cal. 171. Cited, Appeal, in special cases, Appeal of S. O. Houghton, 42 Cal. 68. Stanley v. Green 12 Cal. 148. Cited, Deed, construction of description in, Haley v. Amestoy, 44 Cal. 138. Stark v. Barrett 15 Cal. 361. Approved, Mexican Grant, effect of deed anterior to issue cf patent, Walbridge v. Ellsworth, 44 Cal. 355 ; commented on, Conveyance, by tenant in common, grantee entitled to possession, subject to loss on partition, Gates v. Salmon, 35 Cal. 588, 594, 595- State v. Rogers 13 Cal. 159. Cited, Constitutional Law, relative powers of Federal and State Governments, S. & V. R. R. Co. v. Stockton, 41 Cal. 162. Stearns v. Aguirre 7 Cal. 443. Approved, Appeal, effect of reversal of judgment, Ryan v. Tomlinson, 39 Cal. 646. Stearns v. Martin .4 Cal. 229. Cited, Pleadings, demand for unliquidated damages not available as counter claim, Hook v. White, .36 Cal. 301. Steinbach v. Moore 30 Cal. 498. Cited, San Francisco, tenure of pueblo lands, San Francisco v. Canavan, 42 Cal. 556. Steinbach v. Krone 36 Cal. 307. Cited, Landlord, when not estopped by judgment against tenant, Douglas v. Ful- da, 45 Cal. 594. TABLE OF OASES. 437 Stephens v. Mansfield n Cal. 365. Cited, Abandonment, what does not con- stitute, MoLeran v. Benton, 43 Cal. 476. Stevenson v. Bennett 35 Cal. 431. Cited, Mexican Grant, title, -when perfect, Bernal v. Lynch, 36 Cal. 145 ; Banks v. Moreno, 39 Cal. 237. Stevenson v. Smith 28 Cal. 102. Distinguished, Appeal, review 01 order on motion to retax costs, Dooly v. Norton, 41 Cal. 441 ; cited, dissenting opinion of Rhodes, C. J., Id., 443 ; approved, Plead- ing, special damages to be specially aver- red, L. T. Co. v. S. & W. W. R. Co., 41 Cal. 565- St. John v. Kidd 26 Cal. 263. Approved, Abandonment, a question of intent, Bell v. Bedrock T. & M. Co., 36 Cal. 218 ; Moon v. Rollins, Id., 338. Stoddard v. Treadwell 26 Cal. 294. Approved, Pleading, contract, how may be set out, Joseph v. Holt, 37 Cal. 253 ; Murdock v. Brooks, 38 Cal. 603 ; Appeal, judgment or orders entered by consent not reviewable, San Francisco v. Certain Peal Estate, 42 Cal. 518. Stone v. Bumpus 40 Cal. 428. Referred to on second appeal, same case, 46 Cal. 220. Stone v. Elkins 24 Cal. 127. Cited, Constitutional law, distribution of powers of Government, People v. Prov- ines, 34 Cal. 541. Stout v. Coffin 28 Cal. 65. Cited, Pleading, allegata and probata must correspond, Clark v. Phoenix Ins. Co., 36 Cal. 175. Stratman, Matter of 39 Cal. 517. Approved, Municipal Court, Act creating constitutional, People v. Nyland, 41 Cal. I3i- Stringer v. Davis 30 Cal. 318. Cited, Pleading, amendment allowed in case of variance, Clark v. Phoenix Ins. Co., 36 Cal. 176. Stuart v. Allen 16 Cal. 473. Cited, Probate, jurisdiction for sale of real estate, on what depends, Estate of Bentz, 36 Cal. 689. Stuart v. Haight 39 Cal. 87. Approved, Mandamus, when may issue to Governor, Harpending v. Haight, 39 Cal. 210. Sullivan v. Davis 4 Cal. 291. Approved, Ejectment, title under quit claim deed sufficient to maintain action, Lawrence v. Ballou, 37 Cal. 521. Sullivan v. Triunfo G. & S. M. Co 29 Cal. 585. Affirmed, Res Adjudicata, judgment, of what conclusive, same case, 39 Cal. 464. Summers v. Dickinson 9 Cal. 554. Approved, State Lands, title to, when it vests in State, Sherman v. Buick, 45 Cal. 668. Sutter v. Cox 6 Cal. 415. Cited, Writ of Possession, will not issue to stranger to the record, Ford v. Doyle, 37 Cal. 348. Swain v. Naglee 19 Cal. 127. Cited, Amendment, of clerical errors, power of Court, Estate of Schroeder, 46 Cal. 316. Sweetland v. Froe 6 Cal. 144. Approved, Possessory Act, strict compli- ance with essential, Crowell v. Lan Franco, 42 Cal. 656. Swift v. Kraemer 13 Cal. 526. Construed, Mortgage, substitution of new note and security as an equitable assign- ment, Barber v. Babel, 36 Cal. 23. Taaffe v. Josephson. 7 Cal. 352. Cited, Judgment void in part is void in toto, Tully v. Harloe, 35 Cal. 308. Taber v. Omnibus R. R. Co Cal. Sup. Court, Oct. Term, 1S67 (not reported). Followed, Jurisdiction, in actions for for- feiture against street railroads, Smith v. Omnibus R. R. Co., 36 Cal. 282. Table M. T. Co. v. Stranahan . . 20 Cal. 198. , Disapproved, Conveyance, of mining claim by parol, Felger v. Coward,, 35 Cal. 652. Talbert v. Hopper 42 Cal. 397. Cited, Term of Court, presumptiou as to legality of sessions, Talbert v. Singleton, 42 Cal. 397. Tarbell v. C. P. R. R. Co 34 Cal. 616. Distinguished, Verdict, excessive damage*, Einsey v. Wallace, 36 Cal. 485. Taylor v. Brown 4 Cal. 188. Cited, Officers, constables may act by deputy, Jobson v. Fennell, 35 Cal. 713. Taylor v. Cal. Stage Co 6 Cal. 230. 438 TABLE OF CASES. Cited, New Trial, surprise, what insuffic- ient, Case v. Codding, 38 Cal. 194. Taylor «. Domier 31 Cal. 482. Approved, Street Assessment, how made when land in dispute, Himmelmann v. Steiner, 38 Cal. 179. Taylor v. Palmer 31 Cal. 240. Cited, Constitutional Law, adoption of in- terpretations of, People v. Webb, 38 Cal. 477 j approved, Street Improvement, Act levying assessment for, constitutional, Chambers v. Satterlee, 40 Cal. 514; As- sessment, as a tax, Williams v. Corcoran, 46 Cal. 555 ; to whom assessment to be made, Himmelmann v. Steiner, 38 Cal. 1 79 ; remedy by appeal exclusive, Shepard v. McNeil, 38 Cal. 75 ; Personal Judgment, erroneous, GafEney v. Cough, 36 Cal. 105 ; Coniff v. Hastings, 36 Cal. 292, 293 ; cit- ed, Consolidation Act, construction of, dissenting opinion of Sprague, J., Nicol- son P. Co. v. Painter, 35 Cal. 708. Taylor v. Underbill 40 Cal. 471 . Cited, State Lands, swamp and overflowed lands defined, Kimball v. McPherson, 46 Cal. 107. Terry v. Megerle.. 24 Cal. 609. Cited, State Lands, title of State under Congressional Act, Toland v. Mandell, 38 Cal. 33 ; approved, selection of, when and how made, Hastings v. Jackson, 46 Cal. ■ 243 ; when not subject to selection, Id., Hastings v. Devlin, 40 Cal. 363 ; loca- tion of school warrants, when void, Id. , 37°- Teschemacher 1;. Thompson 18 Cal. 1 1 . Cited, Mexican Grants, third persons not concluded by patent, who are, Miller v. Dale, 44 Cal. 576 ; Patent, takes effect by relation, Morrill v. Chapman, 35 Cal. 88 ; commented on, construction of patent, More v. Massini, 37 Cal. 435. Tevisu. Ellis 25 Cal. 515. Aoproved, -Ejectment, who cannot be dis- possessed under writ of restitution, Long v. Neville, 36 Cal. 459 ; Ford v. Doyle, 37 Cal. 348 ; cited, Injunction, when will not issue to restrain execution of writ, N . C & S. C. Co. v. Kidd, 37 Cal. 307. Tevis v. Pitcher 10 Cal. 465. Commented on, Probate Act, how far re- troactive, Ryder u. Cohn, 37 Cal. 89 ; cited, dissenting opinion of Rhodes, J., Id., 91 ; cited, Mexican law of descents, Id., 89. Tewksbury v. Magraff - • • -33 Cal - 2 37- Approved, Estoppel, when tenant not estopped, Franklin v. Merida, 35 Cal. 566- 571 ; contra, dissenting opinion of Sawyer, C. J., Id., 576; distinguished, Mason v. Wolff, 40. Cal. 250; approved., Findings, practice on submission of, Emmal »:. Webb, 36 Cal. 202 ; Prince v. Lynch, 38 Cal. 531. Thomas v. Armstrong 7 Cal. 286. Cited, Supervisors, not subject to control under writ of mandate, Tilden v. Sacra- mento Co., 41 Cal. 77 ; approved, Fran- chise, not subject to assignment or forced sale without consent of granting party, People v. Duncan, 41 Cal. 511. Thompson v. Lyon 14 Cal. 39. Cited, Pleadings, answers in abatement to be strictly construed, Larco v. Clements, 36 Cal. 134. Thompson v. Pioche 44 Cal. 508. Cited, Landlord, when not estopped by judgment against tenant, Douglas v. Ful- da, 45 Cal. 594. Thompson v. Smith 28 Cal. 527. Cited, Unlawful Entry, what constitues, Shelby v. Houston, 38 Cal. 422. Thompson v. Williams 6 Cal. 88. Cited, Constitutional Law, State sover- eignty, S. &. V. R. P.. Co. v. Stockton, 41 Cal. 162. Thome v. San Francisco. See People v. Hays. Thornton v. Mahoney 24 Cal. 569. Cited, Mexican Grant, title when deemed perfect, Bernal v. Lynch, 36 Cal. 145. Thurston v. Alva 45 Cal. 16. Cited, Pre-emption Law, agreements when void under, Hudson v. Johnson, 45 Cal. 25. Tissot v. Darling 9 Cal. 278. Cited, Action, on undertaking on appeal, nonpayment of judgment, how shown, Murdock v. Brooks, 38 Cal. 604. Toland v. Mandell 38 Cal. 30. Commented on, State Lands, purchasers in good faith of State selections, Hodapp v. Sharp, 40 Cal. 71, 73. Tompkins v. Weeks 26 Cal. 57. Cil;ed, Judicial Sale, administrator when cannot purchase at foreclosure sale, Es- tate of Miner, 46 Cal. 569. Touchard v. Crow 20 Cal. 150. Approved, Officers, powers of deputy to take acknowledgments, Emmal v. Webb, 36 Cal. 203. TABLE OP CASES. 439 Touchard v. Keyes '. 21 Cal. 202. Approved, Alcalde, records as evidence, Garwood v. Hastings, 38 Cal. 219, 226, 227 ; cited, Ejectment, executor of tenant in common may be joined as party, Rey- nolds v. Hosmer, 45 Cal. 631. Townsend v. Little , 45 Cal. 673. Cited, Forcible Entry and Detainer, when action lies, Powell v. Lane, 45 Cal. 678. Treadway v. Semple 28 Cal. 652. Cited, Mexican Grant, conclusiveness of confirmation of survey, Bernal v. Lynch, '36 Cal. 144 ; Yates v. Smith, 38 Cal. 61, 63 ; disapproved in dissenting opinion of Crocket, J., Id., 72. Treadwell v. Davis 34 Cal. 601. Disapproved, Appeal, review of facts with- out motion for new trial, Keed v. Bernal, 40 Cal. 630. Treasurer v. Commercial C. M. Co. ... 22 Cal. 390. Cited, Specific Performance, when will be decreed, Senter v. Davis, 38 Cal. 453. Trinity Co. v. MoCammon 25 Cal. 117. Cited, Supervisors, order of, when valid and binding, Linden v. Case, 46 Cal. 174. Trout v. Gardiner 39 Cal. 386. Approved, Statutory Construction, effect of repeal, People v. Hunt, 41 Cal. 438. Tubba v. Ghirardelli 45 Cal. 231 . Cited, Appeal, facts deemed found in sup- port of judgment, Crane v. Ghirardelli, 45 Cal. 236. Tuolumne Redemption Co. v. Sedgwick, 15 Cal. 515. Cited, Redemption, statutesproviding for, constitutional, Moore v. Martin, 38 Cal. 439 i approved, right of, a creature of statute, Boyle v. Dalton, 44. Cal. 334. Turner v. Caruthers 17 Cal. 431. Approved, Attorney and Counsel, power of Court over, Clark v. Willett, 35 Cal. 540. Turner v. N. B. &M. R. R. Co. .34 Cal. 594. Followed, Damages, measure of, for viola- tion of personal rights, Pleasants v. N. B. & M. R. R. Co., 34 Cal. 590 ; cited, liabil- ity for forcible ejection from railroad car, Kline v. C. P. B. B. Co., 37 Cal. 409 ; dis- tinguished, excessive damages, Kinsey v. Wallace, 36 Cal. 485 ; approved, Princi- pal, how far liable for conduct of agent, Wade u. Thayer, 40 Cal. 586; Mendels- ohn v. Anaheim L. Co., 40 Cal. 662. Turner v. Tuolumne W. &. M. Co 25 Cal. 397. Cited, Accident, damages by the elements, what constitute acts of God, Polack v. Pioohe, 35 Cal. 423. Tustin v. Faught 23 Cal. 237. Disapproved, Conveyance, to married wo- man construed, Salmon u. Wilson, 41 Cal. 608. TJhlfelder v. Levy 9 Cal. 607. Cited, Injunction, will not lie to restrain proceedings of co-ordinate Court, exception stated, Crowley v. Davis, 37 Cal. 269 ; distinguished, De Godey v. Godey, 39 Cal. 162. Updegraff v. Trask 18 Cal. 458. Cited, Estate, of deceased, when heir may maintain ejectment, Chapman v. Hollis- ter, 42 Cal. 464. TJridias v. Morrell : 25 Cal. 31. Cited, Pleading, inconsistent defenses, practice, Buhne v. Corbett, 43 Cal. 269. Valencia v. Couch 32 Cal. 339. Commented on, Forcible Entry and De- tainer, complaint in action, Shelby v. Houston, 38 Cal. 419. Valentine v. Mahoney 37 Cal: 389. Approved, Estoppel, when landlord bound by judgment against tenant, Russell v. Mallon, 38 Cal. 263 ; when not, Douglas v. Fulda, 45 Cal. 594. Vallejo v. Green 16 Cal: 160. , Cited, Motion, service of notice essential, Reilly u. Ruddock, 41 Cal. 313. Vance v. Fore 24 Cal. 435. Cited, Deed, description by reference to map, Mayo v. Mazeaux, 38 Cal. 448 ; ap- proved, construction of doubtful calls, Hastings v. Stark, 36 Cal. 125 ; cited, Pi- per v. True, Id., 619 ; referred to, Vance v. PeHa, 41 Cal. 693. Vance v. dinger 27 Cal. 358. Approved, Pleading, what must be shown on plea of another action pending, Larco v. Clements, 36 Cal. 134. Van Maren v. Johnson 15 Cal. 308. Cited, Husband and Wife, common prop- erty liable for antenuptial debts of wife, Vlautin v. Bumpus, 35 Cal. 215; interest of wife in common property, De Godey v. Godey, 39 Cal. 164. Van Feltu. Littler 14 Cal. 194. 440 TABLE OP OASES. Cited, Appeal, objections to verdict which cannot be raised on appeal, Campbell v. Jones, 41 Cal. 519. Van Valkenburg v. McCloud . .21 Cal. 330. Cited, State Lands, when interest on school lands vests in State, Sherman v. Buick, 45 Cal. 668. Vassault v. Austin 32 Cal. 597. Approved, Pleadings, denials on informa- tion and, belief, when insufficient, Jones v. Petaluma, 36 Cal. 234 ; Kerstein v. Mad- den, 38 Cal. 163 ; Davanay v. Eggenhoff, 43 Cal. 397 ; referred to, Butler v. Vassault; 40 Cal. 75. Vassault v. Austin 36 Cal. 695. Cited, Superior Court of San Francisco, presumption as to jurisdiction, McCauley v. Fulton, 44 Cal. 361 ; recitals in judg- ment conclusive, Id. Vassault v. Seitz 31 Cal. 225. Cited, Pleadings, statutes, how pleaded, Anderson v. Fisk, 36 Cal. 632. Vermule v. Shaw 4 Cal. 214. Cited, Findings, provisions as to filing findings directory, Broad v. Murray, 44 Cal. 229. Vilhacu. Biven 28 Cal. 409. Cited, Appeal, when findings not review- able, Spanaget v. Dellinger, 38 Cal. 280. Vinton v. Crowe 4 Cal. 309. Affirmed on principle of stare decisis, As- signment, of note overdue, to what equities not subject. Hayward v. Stearns, 39 Cal. 60. Visher v. Webster 13 Cal. 58. Approved, Statute of Frauds, sale of grow- ing crops not within, Davis v. McFarlane, 37 Cal. 638 ; Evidence, declarations of vendor, when not admissible to impeach sale, Jones v. Morse, 36 Cal. 207. Votanu. Reese 20 Cal. 89. Construed, Appeal, jurisdiction as govern- ed by amount in dispute, Dooly v. Norton, 41 Cal. 442 ; qualified, review of orders on motion to retax costs, Id. Wade v. Thayer 40 Cal. 578. Approved, Principal, measure of liability of, for acts of agent, Mendelsohn v. Ana- heim Lighter Co., 40 Cal. 662. Wakefield v. Greenhood 29 Cal. 599. Cited, Pleading, sufficient averment of agreement to sell land, Vassault v. Ed- wards, 43 Cal. 463. Walden v. Murdook 23 Cal. 540. Distinguished, Appeal, dismissal of, if taken too late, Bornheimer v. Baldwin, 42 Cal. 3 1. Walker v. Woods 15 Cal. 66. Disapproved, Attachment, what necessary to justify levy, Sexey v. Adkinson, 34 Cal. 35i- Walsh v. Hill. . . .38 Cal. 481 ; same case, 41 Cal. 571. Approved, Land, constructive possession under deed, Cannon v. Union Lumber Co., 38 Cal. 674 ; modification of rule com- mented on, Wolfskill v. Malajowich, 39 Cal. 280. Walsh v. Matthews 29 Cal. 123. Cited, Street Assessment, as taxation, power of Legislature to impose, Chambers v. Satterlee, 40 Cal. 514. Ward v. Mulford 32 Cal. 365. Beferred to, Patent, lands embraced in, More v. Massini, 37 Cal. 435. Waring v. Crow It Cal. 366. Approved, Abandonment, a question of intention alone, Moon v. Bollins, 36 Cal. 33 8 - Washburn v. Washburn 9 Cal. 475. Cited, Divorce, for failure to support when action will fail, Bycraft v. Bycraft, 42 Cal. 446. Waterman v. Smith, ._ 13 Cal. 373. Cited, Mexican Grant, survey and segre- gation of, a political right, Yates v. Smith, 38 Cal. 66, 67 ; Title, under grant before survey and segregation, Id., 67; confirmed, survey takes effect by relation, Morrill v. Chapman, 35 Cal. 88; third persons not concluded by patent who are, Miller v. Dale, 44 Cal. 576 ; approved, Patent, issued to deceased person, title inures to heirs, etc., Chipley v. Farris, 45 Cal. 537. Waters v. Moss 12 Cal. 535. Cited, Common Law, how far adopted, Logan v. Gedney, 38 Cal. 581. Wattson v. Dowling 26 Cal. 124. Cited, Ejectment, who bound by judg- ment, Bogers v. Parish, 35 Cal. 129; ap-, proved, who to go out on writ of posses- sion, Id., Long v. Neville, 36 Cal. 460 ; Ford v. Doyle, 37 Cal. 348 ; distinguished, Mayne v. Jones, 34 Cal. 487. Waugh v. Chaunoey 13 Cal. 11. Cited, Supervisors, jurisdiction and power TABLE OF OASES. 441 of, Kimball v. Board of Supervisors, 46 Cal. 24. Weaveru. Eureka Lake W. Co., 15 Cal. 271. Approved, Water Rights, diligence re- quired in perfecting claim by appropria- tion, N. C. & S. C. Co. v. Kidd, 37 Cal. 1 3 ! 4. Weaver v. Page 6 Cal. 681. Cited, "Verdict, when will be set aside for excessive damages, Kinsey v. Wallace, 36 Cal. 484. "Weber v. San Francisco 1 Cal. 455. Cited, Injunction, when will not issue to restrain tax sale, Bucknall v. Story, 36 Cal. 71. Wedderspooni;. Rodgers 32 Cal. 569. Cited, Pleading, allegation, "owner and holder," a legal conclusion, Poorman v. Mills, 35 Cal. 121 ; Hooku. White, 36 Cal. 302. - Welton v. Adams 4 Cal. 37. Approved, Negotiable Instruments, certifi- cate of deposit a promissorynote, Poorman v. Mills, 35 Cal. 120. Welton v. Palmer 39 Cal. 456. Approved, Deed, by trustee, when void, Learned v. Welton, 40 Cal. 350. Weston v. Bear Riv. & A. W.&M. Co S Cal. 185; same oa.se, 6 Cal. 425* Affirmed, on principle of stare decisis, Corporations, validity of transfer of stock, People v. Elmore, 35 Cal. 655 ; Parrott v. Byers, 40 Cal. 625. Wetherbee v. Carroll 33 Cal. 549. Cited, Appeal, nonappealable orders re- viewable oiily by means of statement, Gates v. Walker, 35 Cal. 290 ; effect of fail- ure to make statement, Rogers v. Parish, 35 Cal. 128. Wetherbee v. Dunn 32 Cal. ip6. Referred to in same case, 36 Cal. 149. Wheaton .v. Neville 19 Cal. 44. Cited, Attachment, lien, how created, Main v. Tappener, 43 Cal. 209. Wheelock v. Warschauer, 21 Cal. 309 ; same case, 34 Cal. 265. Cited, Estoppel, landlord estopped by evic- tion of tenant, Steinback v. Krone, 36 Cal. 310; Valentine v. Mahoney, 37 Cal. 395 ; landlord, when bound by judgment against tenant, Douglas v. Eulda, 45 Cal. 594. White u.Pratt 13 Cal. 521. Cited, Equity, when relief not obtainable, Ketchum v. Crippen, 37 Cal. 228. White v. Lyon 42 Cal. 279. Approved, Interest, rule for computation of, Randolph v. Bayue, 44 Cal. 369. White v. Moses 21 Cal. 34; Id., 43. Cited, Pueblo Lands, power to grant, in whom vested, San Francisco v. Cahavan, 42 Cal. 556. White v. Todd's V. W. Co 8 Cal. 443. Cited, Water Rights, diligence required in perfecting claim, N. C. & S. C. Co. v. Kidd, 37 Cal. 314. Whiting v. Clark 17 Cal. 410. Cited, Surety, right of to pay debt and pro- ceed against principal, Sichel v. Carrillo, 42 Cal. 500, 507. Whitney v. Board of Delegates, See People v. Board of Delegates ; Whitney v. But- terfield, 13 Cal. 33^5. Cited, Officer, liable for trespass by deputy, Hirsch v. Rand, 39 Cal. 318. Whitney v. Higgins 10 Cal. 547. Cited, Parties, necessary in action to fore- close mortgage, Carpentier v. Brenham, 40 Cal. 238. Wilcoxson v. Burton 27 Cal. 228. Commented on, Eraudulent Conveyance, what constitutes, Tully v. Harloe, 35 Cal. 308 ; distinguished, confession of judg» ment not subject to collateral attack for fraud, Lee ii: Eigg, 37 Cal. 336 ; com- mented on, defective statement in, Pond v. Davenport, 44 Cal. 487. Wilkinson v. Parrott 32 Cal. 102. Cited, Master, when liable for acts of ser- vant, Baker v. Kinsey, 38 Cal. 634. Wilii;. Sinkwitz 39 Cal. 570. Cited, Certiorari, what reviewable on, C. P. R. R. Co. v. Placer Co., 46 Cal. 670. Williams v. Benton 24 Cal. 424. Cited, Reference, in action for partition, Hastings v. Cunningham, 35 Cal. 552. Williams v. Price n Cal. 212. Cited, Probate, when settlement of ac- counts a bar, Kingsley v. Miller, 45 Cal. 96. Williams v. Young 17 Cal. 403. Cited, Homestead, not subject to sale un- der execution on judgment at law for pur- chase money, Ross v. Heintzen, 36 Cal. 442 TABLE OP OASES. 319 ; levy and sale of void, Deffelizu. Pico, 46 Cal. 292. Williams v. Young.. 21 Cal. 227. Cited, Vendor's Lien, not assignable, Ross v. Heintzen, 36 Cal. 321. Willis v. Parley 24 Cal. 490. Distinguished, Homestead, enforcement of mortgage claim against estate, Sichel v. Carrillo, 42 Cal. 505 ; cited, Harp v. Cal- ahan, 46 Cal. 233 ; Estate of Schroeder, 46 Cal. 316. Willis v. Wozencraft 22 Cal. 607. Approved, Vendor and Vendee, rights of vendee in possession, Love v. Watkins, 40 Cal. 567. Willson v. Cleaveland 30 Cal 192. Cited, Pleading, irrelevant matter of evi- dence and description in complaint, Jones v. Petaluma, 36 Cal. 233 ; separate defens- es, when may be inconsistent, Buhne v. Corbett, 43 Cal. 269 ; Abandonment, when may be proved without pleading, Bell v. Bed Rock T. & M. Co., 36 Cal. 218 ; Evi- dence, rule as to admission of, Moon v. Rollins, 36 Cal. 340. ■Wilson v. Brannan 27 Cal. 258. Cited, Pledge, sale of by pledgee, Wright v. Ross, 36 Cal. 429. Wilson v. Castro 31 Cal. 420. Cited, Mexican Grant, title under suffici- ent to maintain ejectment, Morenhout v. Barron, 42 Cal. 603 ; commented on, effect of confirmation, Schmitt v. Giovanari, 43 Cal. 622 ; affirmed on principle of stare decisis, Estates, of decedents dying prior to Probate Act, by what law governed, Ryder v. Cohn, 37 Cal. 89, 91. "Wilson v. Fitch 41 Cal. 363 . Cited, Libel and Slander, what must be shown in complaint, Clarke v. Fitch, 41 Cal. 480. Wilson v. Lassen 5 Cal. 1 14. Cited, Partition, necessary parties, Sutter v. SanFrancisco, 36 Cal. 116. ■Wilson v. Sacramento 3 Cal. 386. Cited, Certiorari, purpose of issuance of writ, People v. County Judge, 40 Cal. 480. Winter v. Fitzpatrick 35 Cal. 269. Cited, Certiorari, appeal lies in cases of, Morley v. Elkins, 37 Cal. 456; what re- viewable on, C. P. R. R. Co. v. Placer Co., 46 Cal. 670. "Wolf v. Baldwin 19 Cal. 306. Approved, Land, title under Van Ness Or- dinance by actual possession; Judson f . Malloy, 40 Cal. 309 ; what constitutes actual possession, Brumagim v. Bradshaw, . 39 Cal. 44-47 ; Walsh v. Hill, 41 Cal. 582. Wolf v. St. Louis Independent W. Co . . 10 Cal. 541. Approved, Negligence, no liability on rea- sonable care in construction of ditch, Campbell v. B. R. &. A. W. &. M. Co., 35 Cal. 683. Wolfskill v. Malajowich 39 Cal. 276. Cited, Possessory Act, constructive posses- sion under, Hughesu. Hazard, 42 Cal. 152 ; Russell v. Harris, 44 Cal. 494 ; actual pos- session, what sufficient, Le Roy v. Cun- ningham, 44 Cal. 606. Wood v. Truckee T. Co 24 Cal. 474. Approved, Easement, not subject to assign- ment or forced sale without consent of granting party, People v. Duncan, 41 Cal. 510. Woods v. Whitney 42 Cal. 359. Cited, Husband and Wife, gift from hus- band valid, Higgins v. Higgins, 46 Cal. 263. Woodworth, Estate of 31 Cal. 595. Cited, Estates, of deceased, title on death of ancestor, Chapman v. Hollister, 42 Cal. 463- Wood-worth v. Knowlton 22 Cal. 164. Cited, Pleading, admissions by failure to deny, Doll v. Good, 38 Cal. 290. Wright v. Ross 1. . 36 Cal. 414. Distinguished, Trust and Trustee, pur- chase of trust property, Price v. Reeves, 36 Cal. 460 ; cited, Foreclosure, adminis- trator, when not a necessary party, Schadt v. Heppe, 45 Cal. 437 ; rights of mortgage creditors against estate, Id., 438. Wright v. Ryder 36 Cal. 357. Approved, Contract, in restraint of trade, when void, More v. Bonnet, 40 Cal. 254 ; Callahan v. Donnolly, 45 Cal. 153. Wright v. Solomon 19 Cal. 64. Cited, Sale and Delivery, title under con- ditional sale, Putnam v. Lamphier, 36 Cal. 158. Wright v. Whitesides 15 Cal. 46. Cited, Ejectment, under Possessory Act, showing required, Crowell v. Lan Franco, 42 Cal. 656. Yates v. Smith 38 Cal. 60. TABLE OP OASES. 443 Affirmed, same ease, 40 Cal. 662 ; followed, Mexican Grant, survey of, Semple v. "Ware, 42 Cal. 620. Yonge v. P. M. S. S. Co 1 Cal. 353. Cited, Appeal, new trial granted for erro- neous instructions, Brown v. McAllister, 39 Cal. 577. Yount v. Howell 14 Cal. 465. Cited, Ejectment, maintainable, on right of entry under Mexican grant, Toland v. Mandell, 38 Cal. 43 ; what plaintiff must show, Hestres v. Brannan, 37 Cal. 389. Zielv. Dukes 12 Cal. 479. Approved, Demand, in suit on promissory note not a condition precedent, Bell v. Sackett, 38 Cal. 409. Zottman v. San Francisco 20 Cal. 96. Approved, Municipal Corporations, mode of contracting as regulated by statute to be strictly pursued, People v. Tomlinson, 35 Cal. 507. INDEX. INDEX. .A- Abandonment 1 of mine 249 Abatement of nuisance 275 defenses in action 297 Accident 2 Accounting, between partners 283 by executors and administrators 311 Acknowledgment * 2 Action 3 dismissal of 3 by and against particular persona 4 for various causes 4 for forcible entry and detainer ] 65 by landlord , 167 by husband and wife 183 for abatement of nuisance 275 for partition 280 for specific performance 328 for street assessment 343 for delinquent taxes 357 Act of God 5 Acts of Congress 6 Admiralty ,. , . 6 Admission, of attorney to practice 36 to bail ■ 81 Admissions, as evidence 150 Adverse possession 228 Alcalde grants ; 223 Alienation, of homestead 180 Alimony . .•. 6 Amendments 7 for variance 169 to statement on new trial 270 to pleadings 301 Answer 294 in particular actions 299 time within which to 346 Appeal, right of 7 who may 8 when it lies 8 orders not appealable 9 time within which to appeal 9 notice of 10 undertaking on 11 statement on 11 record on 1 13 briefs and points 14 transcript on 14 * dismissal of 15 review on 16 principles of determination on 20 reversal of judgment 25 modification of judgment 28 rehearing 28 judgment on '. 29 law of a case 29 remittitur SO costs on 30 from probate court 30 in county court 30 in partition cases 280 Appeal in criminal actions 102 right of 102 when it lies 102 orders not appealable 102 record on 102 review on ,..,.'. 103 determination on 104 Appearance 31 effect of , '..'.',', 345 Appropriation '. 32 Arbitration. 32 Argument of counsel * . " ' 95 Arrest and bail ',).„" 32 Arrest of judgment ; 100 Assault, with felonious intent , 79 Assessment 353 roll of !.......... 354 when invalid 354. for street improvement 335 Assignment 33 Attachment 33 issuance of writ 34 service and filing * 35 undertaking on 35 lien of 35 ineffectual process 36 release of 36 Attorney and client 36 admission to practice , . 36 authority of attorney 36 conduct of action 37 liability of attorneys 37 relation between 37 Authentication of street records 342 Authority of attorneys 36 Award of street work 339 B Bail, admission to 81 Bailment 38 Bankruptcy 38 Bar, defenses in 297 Bench warrant ,,.... 86 Bill of exceptions 98 Bill of particulars 39 Bill of review 139 Boundaries 40 of San Francisco 322 Breach of contract 62 damages for 107 Breach of trust 373 Briefs and points 14 C Capital stock 70 Cattle 40 Certificate of deposit 262 Certiorari, when it lies 41 proceedings and practice 41 Challenges 92 Change of place of trial 92 Change of street grades 336 Charge to jury , 96 Chattel mortgage 42 Checks 261 Cities and towns 43 town lands 223 448 INDEX. Citizenship ' 44 Civil rights bill 45 Claim and delivery 45 Collateral attack 198 Commissioners, in land condemnation 133 Commitment, for crime 81 after appeal 105 Common carriers 47 Common schools 52 Community property 181 Compensation, on condemnation 134 Competent evidence 149 Complaint 287 in particular actions 289 in ejectment 121 in action for street assessment 343 in tax suit 368 Computation of interest 191 Confirmation, of Mexican grant 219 Conflict of evidence 24 Consideration 55 Consolidation Act 323 Constitutional law 48 federal constitution; 48 constitution of California 49 Construction, of contract 58 of deed - 110 of findings 164 of negotiable instrument 260 of 'pleading 287 of statutes as to street improvements 337 of revenue acts ". 351 Constructive trust 371 Contempt of court 54 Continuance 365 in criminal action 91 Contract, laws impairing obligation of * 61 execution of 64 consideration 55 validity of 56 in restraint of trade 56 against public policy 67 entirety of 57 construction of 58 for sale of land 58 to forward freight 60 to deliver lumber 60 not to run boat 61 to reconvey land 61 to pay for goods furnished 61 ■ to find purchaser 61 to advance on joint venture 61 on subscription paper 61 payment by installments '61 building contract 61 fixing two compensaiions 61 by wife, ratification of 61 performance of 62 breach of 62 ratification of 62 rescission of 63 damages for breach of 107 by husband and wife 182 interest on 191 when enforceable 326 ' time as essence of 327 to do street work 339 Contributory negligence 258 Conversion 64 Conveyances 64 registry of 64 execution of 65 Coroners 66 Corporations 66 formation of 66 statutes concerning 67 evidence of existence of 67 right to act 68 - powers of , 69 title to property 69 liabilities of . .' 70 capital stock 70 dividends t 70 stockholders 71 officers of 72 dissolution of 73 railroad corporations 73 Corroboral ive evidence 89 Costs on appeal • 30 in action 74 Counsel, argument of 95 Counter claim 298 County court, appeal in '. 30 jurisdiction of 205 Court of first instance 206 Courts of justice 76 terms of 76 judicial officers '.. 77 Covenants 77 Criminal law and practice 78 principal and accessory 78 offenses against the person 79 offenses against morality 79 offenses against property 80 jurisdiction 81 limitation of action 81 admission to bail 81 proceedings after commitment 82 indictment 83 proceedings after indictment 86 evidence 87 conduct of trial 91 verdict. .- 98 bill of exceptions 98 new trial '. 99 arrest of judgment » , 100 judgment 101 appeal 102 commitment after appeal 105 Cross complaint. . - 299 Cross examination 369 D Damages, measure of 63 for personal injuries 105 for injuries to property 106 for breach of contract j. 107 set-off against 126 excessive 266 Death 107 Debt 108 Debtor s 108 Declaration of homestead 180 Declarations,' as evidence 150 Decree in foreclosure 171 in probate procedure 313 in tax suits 358 Dedication 109 of public streets 335 Deed 109 construction of 110 description in Ill effect of 113 of gift 114 quit-claim deed 114 when a mortgage 252 Default 1 15 opening of 115 Defendants. ... ...t. 279 Defenses in criminal actions 87 in ejectment 123 equitable, .f 126 generally 296 in abatement 297 in bar 297 in action for street assessment 344 in tax suits 358 Demand 116 of possession of land 167 for rent 231 of payment of negotiable instrument 263 for street assessment 342 Demurrer to indictment 86 in civil actions 293 Denials in answer 294 insufficient 295 Description of land 116 in deed ill INDEX. 449 Dismissal, of action 3 of appeal 15 Dissolution, of corporation 73 of injunction 185 of partnership 283 Distribution of estates of deceased 312 District attorney 117 District court, jurisdiction 204 District court reporters 118 Divorce ■• ... 118 Documentary evidence 151 Donation 119 Double taxation 352 Duties, of executors and administrators .' 310 of municipal officers 323 E Easement 119 Ejectment, when action lies 120 who may maintain 121 against whom it lies 121 what plaintiff must show 121 defenses in . 123 evidence in 126 findings 128 judgment 128 from Mexican grant 222 Elections 130 contests .concerning 131 Eminent domain, right of 131 proceedings in 132 compensation 134 title to land condemned 134 new trial 135 Employer and employee v . 135 Engrossment, of new trial statement : 270 Entry of judgment 194 Equalization of taxes 355 Equitable defenses 125 Equity, particular cases for relief 136 bill of review 139 power and extent of relief : 139 Error 140 in law. 266 harmless and immaterial 23 Estate in reversion 140 Estates of deceased 306 claims against 309 sale of property .-. 310 distribution of 312 Estoppel, by matter in pais 141 by matter of record 142 by judgment 142 as between vendor and vendee 144 as between landlord and tenant 144 Evidence, conflict of 1 24 of existence of corporation 67 in criminal action 87 in ejectment 126 in civil actions 145 burden of proof , 145 judicial notice 146 of experts , 146 contents of writing, how proved 146 agreement, written deemed the whole 147 to correspond with allegations 148 competency of 149 declarations and admissions 150 documentary 151 parol, when admissible 153 weight of 155 effect of 156 in forcible entry and detainer 168 of possession 229 newly discovered , . . 265 insufficient 266 on new trial , 273 in action for street assessment 345 in tax suit 358 practice in admission of 366 Examination, of offenses 81 of witness 368 CAL. DIG. SUP. 29. Exceptions..... 156 to findings 164 Excessive damages 266 Execution, of contracts J 55 of conveyances 65 Executions 157 issuance of 157 property subject to - 157 levy how made 158 property exempt 158 sheriff's return 158 sale under 159 redemption from sale 159 void and voidable ; 159 proceedings supplementary 160 Executors and. administrators 310 Exemption, from execution 158 Experts, evidence of 146 Express trust 370 F Federal Constitution 48 Fees and salaries 160 Ferries and ferriage 161 Filing attachment. \ 35 mechanic's claim 247 statement on new trial 269 Findings, presumptions as to .' 21 defective, effect of t 26 in ejectment 128 in civil actions 162 must be in writing 162 statement in, how made 163 , construction of . 164 conclusiveness of t \ 164 objections and exceptions to 164 in forcible entry and detainer , 170 Fixtures 164 Forcible entry and detainer 164 construction of statute 165 action, when maintainable 165 action by lessor 167 demand and refusal 167 pleadings , 167 evidence 168 trial 169 findings and verdict 170 judgment '. 170 Foreclosure 170 parties in action 170 proceedings 170 jiidgment and decree 171 sale under decree , 172 Forfeiture 173 of mine 249 Formation of .corporation 6& of partnership 282 Franchise 173 Fraud 174 what constitutes 174 fraudulent intent , 174 fraudulent conveyance 174 effect of 175 relief against 175 Fraudulent conveyance. . . , 174 Fraudulent intent 174 Funds 176 G Grift, by deed 114 by husband to wife 182 Grace, days of 263 Grades of streets 336 Growing crops 171 Guardian and ward 177 in probate procedure 314 Habeas corpus 178 Hearing, motion for new trial ' 271 45Q INDEX. Heir 179 Homestead 179 declaration of 180 alienation of 180 mortgage on 181 inheritance of , 181 setting apart to widow 308 Homicide 79 Husband and wife , 181 separate property 181 community property 181 gift by husband 182 contract by 182 actions by 188 I Identity 183 Improvements, set off in ejectment 126 Indictment , 83 Indorsement 262 Inheritance, of homestead 181 Injunction , ., 183 when it lies 183 issuance of 185 parties and proceedings 185 dissolution of 185 Injunction bond 186 Injuries, damages for 105 Insolvency 187 Instructions, in criminal actions 96 in civil actions 188 in various causes of action 189 « Insufficient evidence 266 Insurance 189 Insurance commissioner , 190 Interest 191 computation of 191 on contract 191 onjudgments 192 , Intervention 192 Issuance, of attachment , 33 of execution 157 of injunction 185 of summons 345 Joint tenancy 193 Judgment, when appeal from lies 9 review on appeal 16 reversal of < 25 modification of ,. 28 on appeal '. .'. 29 in criminal proceedings 101 in ejectment 128 as an estoppel. '. 142 in forcible entry and detainer 170 in foreclosure 171 interest on 192 in civil actions 193 relief granted 194 entry of 194 lien of 195 satisfaction of 195 finality of 196 conclusiveness of 196 erroneous, not void. . , 196 void judgments 197 . vacating of -197 collateral attack 198 by default 199 by confession 200 roll of 200 in partition 280 on the pleadings 302 on actions for street assessment 345 in tax suits 358 Judgment by confession 200 Judgment by default 199 Judgment roll 200 appeal on 19 Judicial department 51 Judicial notice 146 Judicial officers 77 Judicial opinions 200 Judicial powers 132 Judicial sale 201 redemption from 201 sheriff 's deed 202 purchaser's rights % 202 Jurisdiction, in criminal actions 81 generally 203 of supreme court 204 of district court 204 of county court 205 of superior court 206 of municipal court 206 of court of first instance 206 of police court 207 of justice's court 207 in mandamus 242 in actions for nuisance 275 in probate proceedings 306 in actions for specific performance 326 in actions for collection of taxes 357 Juror and jury 364 Jury, impanneling 92 charge to 96 Justices' courts 207 Labor 207 Landlord and tenant, estoppel of 144 relations between 230 rights and obligations ._ 231 remedy of landlord 232 Land and land titles 208 public domain 208 right of pre-emption 209 rights under possessory act 212 state lands 213 school lands ." 214 swamp and overflowed 216 salt marsh and tide lands 216 Mexican grants 218 pueblo lands 222 alcalde grants 223 title under Van Ness ordinance 223 town lands 224 possession of land, 225 constructive possession 226 possession as notice of title 227 title by adverse possession 228 Law of a case 29 Legal tender 233 Legislative department 51 Legislature 233 Letters of administration 307 Levy, under execution 158 Liability, of attorneys 37 of corporations 70 of stockholders 71 of corporate officers 72 of mortgagor 254 for negligence 258 of officers 277 Libel and slander 233 . Lien, of attachment 35 of judgment 195 generally 235 of mechanic 245 of street assessment 342 for taxes ,355 Limitation, of powers of State 49 in criminal actions 81 title by adverse possession 228 of actions civil 235 construction of statute 235 new promise , 237 in particular actions 238 Lis pendens { 240 Local ciistoms 249 Local taxation 356 INDEX. 451 Malicious prosecution 241 Mandamus 212 jurisdiction. , v ' 242 to whom will issue. 242 when will and will not issue ^ ...... . 243 proceedings 244 Measure of damages 63 Mechanic's lien 245 who entitled to 245 what property subject to 246 claim, notice and filing 247 enforcement of 247 Mexican grant 218 right of pre-emption on 211 Mexican law 248 Miners' rights , 250 Mines and mining 248 mining claims 248 mining 249 miners' rights 250 Mining 249 Mining claims , 248 Mining partnership 284 Mining stock 250 Money 251 Mortgage 251 deed, when a mortgage 252 a mere security 253 rights and liabilities of mortgagor 254 rights of mortgagee 254 on homestead 181 Mortgagee, rights of 254 Mortgagor, rights and liabilities 254 Motions 256 for new trial 264 notice of 267 when and when not granted 272 Municipal corporations 256 Municipal court 206 Negligence 258 what constitutes ,258 liability for 258 contributory . . : 258 a question of fact 259 Negotiable instruments 260 construed 260 indorsement of 262 demand > 263 nptice of dishonor 263 reasonable time, what is 263 bona fide holders 264 non-negotiable instruments 264 Newly discovered evidence ,265 New promise; 237 New trial, when granted on appeal 27 in criminal actions 99 in condemnation proceedings : 135 in civil actions 264 grounds of motion 264 notice of intention 267 statement on t 267 motion for 271 practice 272 evidence on 273 in partition t 280 Non-negotiable instruments 264 Nonsuit 274 Notice of appeal 10 to quit 231 of mechanic's lien 247 of dishonor 263 of motion for new trial 267 of intention to improve street 338 publication of, 338 Nuisance 274 what is 274 jurisdiction 275 action to abate 275 O Oath 276 Objections, when not considered on appeal W to findings ' 164 how waived 292 Offenses against the person 79 against public morality 79 against property 80 how charged 83 sufficiency of charge of 84 Office and officer 53,275 Office 276 Officer , j... 2,77 of corporations , 71 powers of 323 Official bonds 277 Orders not appealable, 9 when to appeal from 10 review on appeal ■ 17 indiscretion , 18 in general 278 in probate proceedings 313 Overflowed lands 216 F Pardon 278 Parol evidence 153 Parties appellants 8 as witnesses '. . 95 in ejectment ;... 121 in foreclosure 170 in injunction proceedings 185 in partition -. 280 in civil actions 278 plaintiffs. 278 defendants t i 279 substitution 279 Partition, action for 280 of estate of deceased. 312 Partnership 282 formation of 282 rights and obligations of partners 282 dissolution and settlement 283 . mining partnerships 284 Patent for Mexican grant 221 Payment 285 Performance of contract ■> 62 Personal rights 49 Petition for mandamus 244 Phonographic reporters 286 Place of trial in criminal actions 92 in civil actions 286 Plaintiffs 279 Plank road companies 68 Plea, to indictment '. 86 Pleading, defenses : 125 set off. 126 in forcible entry and detainer 167 in civil actions 287 construction of 287 complaint 288 objections, how waived 292 demurrer 293 ' answer 294 replication 300 variance 300 amendments 301 practice on striking out 302 judgment on 302 , Pledge 303 Police court, jurisdiction 207 Political powers v 49 Possession, in forcible entry and detainer 166 of land 225, constructive 226 as notice of title - 227 adverse 228 adverse, must be actual 228 must be continuous 229 evidence of .■ 229 miscellaneous 220 452 INDEX. j act, rights under 212 Postponement 91 Powers, of State 49 of corporations 69 of judiciary 132 of relief in equity 139 of officers 277 of partners 282 generally 304 of executors and administrators 310 of municipal officers 323 of legislature 350 of trustees 372 Practice, in certiorari proceedings 41 on admission of evidence 93, 366 on instructions 97 on motion for new trial 272 on striking out pleadings. 302 on introduction of evidence 367 Practice act 304 Prayer, in complaint 289 Pre-emption, right of 209 Prescription 305 Presumptions ,20 Principal and accessory '78 Principarand agent 305 Privileged communications i 369 Probate court, appeal from .' 30 jurisdiction , 306 Probate law and practice 306 jurisdiction 306 probate of wills 307 letters of administration ■ 307 setting apart homestead 308 claim against estate. 309 sale of property 310 executors and administrators 310 partition and distribution 312 orders and decrees 313 ' guardian and ward 314 Probate of wills 307 Proceedings, in certiorari 41 after commitment 82 after indictment 86 in criminal actions 91 in condemnation of land. '. 132 supplementary to execution 160 in foreclosure suits 170 in injunction .' . 185 in mandamus 244 jn specific performance 328 Process, ineffectual in attachment — 36 in action for delinquent taxes 357 Promissory notes 260 Proposals, to do street work 338 advertising for 338 Publication, of notice to do street work 338 Public domain 208 Pueblo lands 222 Q Quieting title 315 Quitclaim deed 114 Quo warranto , 316 Railroad corporations 73 Railroads 316 right of way 316 street railroads, .i 317 Record, on appeal 13 estoppel by 142 authentication of 342 Redemption, from execution sale 159 from judicial sale 201 Reference 318 Registry, of conveyances 64 Rehearing, on appeal 28 Release 3l9 of attachment 36 Relief, in equity 136 against fraud 1 ? 5 on judgment 194 Remedy, on breach of contract 62 of landlord 232, by appeal in street assessments. 343 Remittitur 30 Repeal 333 Replication 300 Rescission of contract 63 Resulting trust 372 Revenue stamps 319 Review, on appeal 16 Right of appeal 7 of appeal in criminal cases . . . 102 of eminent domain T 131 Right of way 316,319 Rights of corporations to act 68 of stockholders ; 71 of prisoners 91 of landlord and tenant 231 of mortgagor and mortgagee 254 of partners 282 to water by appropriation 376 Roads and highways 320 Rules of court 320 S Sale under decree 172 of property of decedents 310 by trustee 372 Sale and delivery 321 Salt marsh lands 216 San Francisco 322 extent and boundaries 332 consolidation act 323 officers, powers and duties 323 Satisfaction of judgment 195 School lands 214 Security, mortgage as 253 Separate property 181 Service of attachment, i 35 of statement on new trial 269 of process 324 of summons 346 proof of 336 Set-off of improvements 126 Setting apart homestead 308 Setting aside indictment 86 default 115 Settlement of statement 270 of partnership aocounts 283 of executors and administrators 311 Sheep .- 324 Sheriff 325 deed of 202 return of 158 Slander 235 Sole trader. . . A 325 Specific contract act 326 Specific performance 326 jurisdiction 326 contracts, when enforceable 326 action and proceedings , 328 Stare decisis 328 State 329 State lands 213 Statement on appeal 11 on new trial 267 State printer 329 State prison 329 Statute of frauds 330 Statutes, uniform operation of 50 validity and construction of 350 as to taxation 350 construction of 351 Statutory construction corporation act 67 forcible entry and detainer act, 165 limitation act 235 in general 331 general rules 331 validity of statutes 333 INDEX. 453 Statutory construction, repeal and its effect 333 act relating to streets 337 Stipulations 334 Stoppage in transitu 335 Street improvements ; 336 Street railroads ; 317 Streets and street improvements 335 dedication ' 335 street improvements 336 assessment 340 authentication of record 342 demand and return 342 lien of 342 remedy by appeal 343 action 343 Submission, of motion for new trial 271 Substitution v 279 Summons 345 issuance of ; 345 time within which to issue 346 requisites of 346 service of 346 in tax suits 357 Superior court 206 Supervisors 347 Supreme court 204 Sureties 349 Surprise 264 Survey of Mexican grant 220 Swamp lands 216 T Taxation, uniformity of 53 power of legislature 350 validity and construction of statutes 350 taxable property 351 ' double taxation '352 property, where taxable 353 assessment 353 assessment roll 354 invalid assessment 354 lien of tax 355 equalization of taxes 355 local taxation 356 action for collection of taxes 357 tax titles 359 Taxable property 351 Tax titles 359 Tenancy, termination of 231 creation of new 231 Tenants in common 360 Tender. . . . r 361 Term of court , 76 Testimony 95 Tide lands 216 Time within which to appeal 9 reasonable, what is 263 as essence of contract 327 within which to answer 346 Title, to corporate property 69 to land condemned 134 to swamp lands . . . . 216 under Mexican grant 218 _ under Van Ness ordinance 223 by adverse possession 228 in gerieral 361 to water 376 by appropriation 376 Tort 362 Town lands.... 224 Trade marks 362 Transcript on appeal 14 Treaty '. ... 363 Trespass 363 Trial, conduct of by attorney 37 in criminal action 91 in forcible entry and detainer 169 in civilactions 364 juror and jury 364 continuance 365 conduct of 366 miscellaneous 369 Trust and trustee 370 express trust 370 constructive trust 371 resulting trust .. 372 power of trustee 372 , sale by trustee 372 breach of trust 373 trustee of stockholder 72 Turnpike road corporation 68 TJ Ultra vires, acts of corporation .' 68 Undertaking, on appeal 11 on attachment 35 V Vacancy in office \ , 276 Van Ness ordinance 223 Variance 300 amendments for 169 Vendor and vendee 373 estoppel of 144 Verdict 374 in criminal actions 98 in forcible entry and detainer 170 Vessels 375 Vicious animals '374 W Wagers 375 Waiver 375 of demand and notice 263 of summons 345 Warranty ' .... 375 Water companies 377 Water rights '. 376 title to water 376 title by appropriation 377 Wills 377 probate of 307 Witness, in criminal actions 95 examination of 368 privileged communications 369 cross-examination _ 369 in general 378 Writing, contents of, how proved 146 agreement deemed the whole 147 parol evidence to explain 148 Writ of assistance 379 Writ of possession 380 Writ of restitution 380 Yosemite. 381