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facts; but see on last point, Rice v. Jefferson, 50 Mo. App. 468, denying right to enjoin erection of wooden building simply because in contravention of ordinance; Siskiyou etc. Co. v. Rostel, 121 Cal. 513, as to house overbanging sidewalk.
76 Cal. 514-521. EX PARTE KIRBY.
Consecutive Sentences may be imposed, and second need not be expressly designated at termination of first, p. 519.
To same effect in In re Esmond, 42 Fed. Rep. 829, sustaining such sentences.
76 Cal. 521-523. PEOPLE v. MADDEN.
Instruction may be refused when already given, p. 522.
To same effect in People v. Elliott, 119 Cal. 594, when already substantially given.
Jury must determine on facts and render verdict in accordance with instructions given, p. 522.
To same effect in Sparf v. United States, 156 U. S. 86, on point that jury is not judge of law.
Refusal to Give Instruction as to grade of crime is not error where evidence shows commission of another grade, p. 523.
To same effect in People v. O’Brien, 88 Cal. 491, as to refusal to charge on larceny when evidence showed only robbery, which was alleged; People v. Scott, 93 Cal. 517, and People v. McNutt, 93 Cal. 659, as to refusal to charge on simple assault, where facts showed intent to murder; People v. Wright, 93 Cal. 568, sustaining general charge on prose. cution for mayhem; People v. Stanton, 106 Cal. 142, as to refusal to charge on simple assualt where malicious throwing of vitriol shown; People v. Swist, 136 Cal. 524, quoting People v. McNutt, 93 Cal. 658; People v. Repke, 103 Mich. 470, sustaining charge that defendant was guilty of murder in first degree if at all. Note citations: Patterson v. State, 21 Am. St. Rep. 156, on assault with intent to kill.
76 Cal. 524-527. SCHUYLER v. BROUGHTON.
Value in Homestead Declaration may be stated as “not to exceed sixteen hundred dollars,” p. 525.
To same effect in Southwick v. Davis, 78 Cal. 508, as to similar form of statement.
Homestead Statute is remedial and should be liberally consruted, p. 525.
To same effect in Heathman v. Holmes, 94 Cal. 296, sustaining homestead, although building used partly for business purposes; Quackenbush v. Reed, 102 Cal. 499, holding recording of declaration unnecessary; Simonson v. Burr, 121 Cal. 585, holding declaration sufficient. Note citations: Mitchelson v. Smith, 26 Am. St. Rep. 360, on general subject.
76 Cal. 527-532. BECK v. SOWARD.
Acknowledgment of Homestead Declaration by wife' must follow section 1186, Civil Code, p. 529.
To same effect in Kennedy v. Gloster, 98 Cal. 148, holding homestead not created unless acknowledgment so certified; Burbank v. Kirby, 6 Idaho, 213, declaration of homestead on community property by married woman, certificate of acknowledgment of which does not comply with statute, is void.
Homestead on Wife's Property descends to her heirs on her death, 531.
See note to Sanders v. Russell, 21 Am. St. Rep. 29, on general subject.
76 Cal. 532-534. BUNDY v. MAGINESS.
Assault.—Exemplary Damages are recoverable for when oppressive or malicious, p. 534.
See note to Beck v. Thompson, 13 Am. St. Rep. 874, and Spellman v. Railroad Co., 28 Id. 870, 882, on general subject.
76 Cal. 535-537. BURNETT v. KULLAK.
Specific Performance will be denied when contract is indefinite and uncertain, p. 537.
To same effect in Breckinridge v. Crocker, 78 Cal. 536, applying rule to action for damages for breach of such contract. Omaha Loan etc. Uo. v. Goodman, 62 Neb. 204.
76 Cal. 531-542. TREGEAR v. ETIWANDA WATER CO.; 9 Am. St. Rep. 245.
Corporate Stock is personal property, p. 539.
Approved in George v. Robison, 23 Utah, 83, water rights represented by shares in water company are personalty and water represented thereby is not appurtenant to land upon which water is used, and shares may be sold independent of land. See note 57 Am. St. Rep. 379.
Mortgage is Walid, although including realty and personalty, and latter is not delivered, p. 540.
To same effect in Breweries v. Schurtz, 104 Cal. 426, sustaining such mortgage, although part of personalty was not mortgagable.
Mortgage of Personalty is good between parties, although not of class included in section 2955, Civil Code, p. 540.
To same effect in Works v. Merritt, 105 Cal. 470, holding such mortgage good also as to subsequent purchasers, et cetera, with notice, although not lormally executed as chattel mortgage; see on same point, Lank v. Moore, 106 Cal. 680; Bank v. Gibson, 109 Cal. 199, sustaining (as in last case) mortgage of cattle, not embraced by then act.
76 Cal. 54:3-544. IN RE FOOTE.
Contempt in presence of court cannot be punished in proceedings begun fifty days thereafter and without notice, p. 544.
See note to Ex parte Robertson, 11 Am. St. Rep. 214, on general subject.
76 Cal. 545-555. WOOD v. STROTHER; 9 Am. St. Rep. 249.
Mandamus will Lie to control judicial discretion where determination is not intended to be final, p. 554.
To same effect in Raisch v. Board, 81 Cal. 547 (but see dissenting opinion, 550), issuing writ to compel board of education to draw draft for supplies when refusal without semblance of cause; and see State v. Mayor, 19 Mont. 540, ruling similarly; Fairchild v. Wall, 93 Cal. 405, but denying writ to compel street superintendent to enter into contract, where refusal was final under statute; Hunt v. Broderick, 104 Cal. 315, granting writ to compel auditor to audit claim when valid and legal and properly allowed by supervisors; and see State v. Commissioners, 22 Nev. 78, on similar facts; Keller v. Hewitt, 109 Cal. 148, granting writ when act merely ministerial; Hensley v. Superior Court, lll Cal. 544, granting writ to compel probate judge to sign decree of due notice to creditors: dissenting opinion; People v. Superior Court, 114 Cal. 479, main opinion denying writ to compel entry of default judgment in quo warranto proceedings: Rundberg v. Belcher, 118 Cal. 590, but denying writ to compel substitution of attorneys; Sullivan v. Gage, 145 Cal. 767, denying mandamus to compel state board of examiners to audit claim of attorney for receiver in action by state to dissolve corporation, where board had repeatedly rejected it; Kerr v. Superior Court, 130 Cal. 187, noted under People v. Sexton, 24 Cal. 78; County of San Luis Obispo v. Gage, 139 Cal. 402, noted under People v. Supervisors, 45 Cal. 395; Raleigh v. District Court, 24 Mont. 314, 81 Am. St. Rep. 437, granting writ to compel court to take jurisdiction and proceed thereon; State v. Daggett, 28 Wash. 14, mandamus lies to compel city comptrolled to issue warrants for officers whose salary is fixed by law; dissenting opinion in Hover v. People, 17 Colo. App. 405, majority refusing to mandamus Denver council to make appropriation to pay license inspectors in accordance with fire and police board's estimate where inspectors not provided for in charter; dissenting opinion in Pyke v. Steunenberg, 5 Idaho, 626, majority holding while mandamus lies to require state board of examiners to pass upon a claim presented, court cannot direct how such board shall act. State v. Board, 131 Ind. 93, but distinguishing cases where specific mode of action was directed; State v. Rickards, 16 Mont. 158, 50 Am. St. Rep. 485 (and note, 490), but denying writ to compel award of contract to “lowest” bidder, where not shown “responsible,” under facts; Huron v. Campbell, 3 S. Dak. 317, but denying writ to compel lower court to vacate injunction. Note citations: State v. Deane, 11 Am. St. Rep. 344, Brown v. Buck, 13 Id. 447, State v. Barnes, 23 Id. 525, and State v. Young, 34 Id. 48, on general subject. Distinguished in Payne v. State Board etc., 4 Idaho, 385, 386, mandamus does not lie to direct board of state highway commissioners to allow a claim already rejected by the board.
Street Assessment may be made within reasonable time after first declared void, p. 547.
Cited in Ede v. Cuneo, 126 Cal. 169, 174, noted under Himmelmann v. Cofran, 36 Cal. 411; Flewellin v. Proetzel, 80 Tex. 197, sustaining engineer's amended report.
General Citation.—State v. Higgins, 76 Mo. App. 328.
76 Cal. 555-562. HAYS v. STEIGER. Mexican Grant.—Agua Caliente grant construed, p. 558. Cited in Watriss v. Reed, 99 Cal. 136, discussing rights of purchasers.
Pleading must be construed most strictly against the pleader, p. 560.
Cited in Nason w. Lingle, 143 Cal. 366, noted under Green v. Covillaud, 10 Cal. 3.17.
76 Cal. 562-565. LOVELAND v. ALVORD CONS. Q. M. CO.
Attachment is Dissolved by judgment for defendant, p. 564.
Cited in Hamilton v. Bell, 123 Cal. 95, as to judgment on nonsuit, despite its subsequent reversal on appeal; Aigeltinger v. Whelan, 133 Cal. 113, noted under O’Connor v. Blake, 29 Cal. 316; Ranft v. Young, 21 Nev. 403, holding it not kept alive by pendency of motion for new trial; Meloy v. Orton, 42 Fed. Rep. 517 (Wisc.), construing local act as to effect of appeal thereon.
76 Cal. 567-569. BERNHEIM v. CHRISTAL.
Fraudulent Conveyances.—Transfer out of usual course of business is only prima facie evidence of fraud, p. 568.
To same effect in Grunsky v. Parlin, 110 Cal. 182, on point that presumption is rebuttable, and sustaining transfer because of innocence of transferee; and see Matthews v. Chaboya, l l l Cal. 438, where, as in the main case, findings of validity of sale were sustained on conflict of evidence.
Preference is not Fraudulent under insolvency act, where transferee had no fraudulent intent, p. 569.
To same effect in Haskin w. James, 96 Cal. 260, sustaining such transfer under facts; Greenwalt v. Mueller, 126 Cal. 639, sustaining deed under facts stated.
Order Granting New Trial will be affirmed where evidence conflicting, p. 569.
See note to Missouri etc. Co. v. Platzer, 15 Am. St. Rep. 780, on review of conflicting evidence.
76 Cal. 569-572. SCHEERER v. EDGAR.
Mandamus does not lie to compel auditor to draw warrant to assignee of judgment where he has drawn warrant to party ordered by supervisors, p. 571.
Approved in Sullivan v. Gage, 145 Cal. 567, denying mandamus to compel state board of examiners to audit claim they had rejected.
76 Cal. 573-576. PEOPLE v. BROWN.
Error in Allowing Questions is immaterial when answers render such error not prejudicial, p. 574.
Distinguished in People v. Mullings, 83 Cal. 146, 17 Am. St. Rep. 229, reversing judgment where such questions were prejudicial to defendant, as presenting “before the jury the assumption of damaging facts which could not be proven.”
Homicide.—Evidence is admissible of threats made by defendant against decedent several years prior to killing, p. 574. To same effect in People v. Chaves, 122 Cal. 143, admitting such evidence as tending to show malice; State v. Shafer, 26 Mont. 19, in murder prosecution, evidence of previous conflict at another place is admissible to show malice. Note citations: Campbell v. Commonwealth, 21 Am. St. Rep. 355, and Stitt v. State, 24 Id. 856, on evidence of threats.
76 Cal. 578-587. MALONE v. BIG FLAT. ETC. CO. S. C. 93 Cal. 384386.
Mechanics' Liens.—Variance between statements of notices and complaint is ground of demurrer for ambiguity and rejection of evidence, p. 581.
To same effect in Palmer v. Lavigne, 104 Cal. 33, 34, as to allegations of form and parties to contract; Santa Monica etc. Co. v. Hege, 119 Cal. 380, as to allegations of terms of contract; San Francisco Pav. Co. v. Fairfield, 134 Cal. 224, on point that claimant can recover only on contract stated in his claim.
Liens on Mines.—Several claims operated together by one owner may