ESTATES OF DECEASED PERSONS (Continued). to order a sale of real estate, any defects, errors, or irregularities in the proceedings, in the exercise of its jurisdiction, however gross, cannot render the order of sale invalid; and the fact that the order first made was vacated, and that the land was sold under a subsequent order entered without any new order to show cause, or any continuance, and that the bond was given under the first order, and none was given under the second order, will not vitiate the sale as against a collateral attack. Id. 23. ESTOPPEL OF OWNER TO QUESTION TITLE OF PURCHASER-RETENTION OF PURCHASE MONEY- VOID SALE. Where the administrator, who petitioned for the sale, had title to the land, but asserted in the probate proceedings that the title to the land was in his deceased wife, and, after procuring the sale thereof, received the purchase money and applied it to the payment of a valid lien thereon, for which he was personally liable, and to the payment of the funeral expenses and costs of administration which he had incurred, and conveyed the property to the purchaser, and put him in possession, he is estopped to question the title of the purchaser, while retaining the purchase money, even though the proceedings for the sale may have been void for want of jurisdiction. Id. 24. SALE OF REAL PROPERTY-VALIDITY OF PROCEEDINGS-INSUFFICIENT NOTICE OF SALE. -Proceedings for the sale of the real property of a deceased person are statutory, and such a sale will be void, unless the requirements of the statute are complied with; and where the notice of the sale is not published for the full time required by law, the defect is fatal, and a deed to the purchaser at the sale will pass no title. Hellman v. Merz, 661. 25. CONDITIONAL BID-GOOD TITLE-DEFECTIVE PROOF OF PUBLICATION -RECOVERY OF DEPOSIT-AMENDED PROOF AFTER HEARING.-Where a proposed purchaser made a bid at a sale of real estate belonging to the estate of a deceased person, on condition that the title was to prove good, or no sale, and, if not good, a deposit made was to be returned, such bid and deposit must be considered as made with reference to the proceedings for the sale, as they were shown to exist when the bid was made, and when the return of the deposit was demanded for the insufficiency of title, and if the proof of publication of the notice of sale was then insufficient, the bidder cannot be required to take title, and may recover the deposit; and an amended proof of publication, filed after the hearing of the action to recover the deposit, cannot obviate the defect, or defeat the action.-Id. 26. POWER OF EXECUTORS TO SELL-PROPOSAL TO TAKE TITLE UNDER ORDER OF COURT.-When a will gives the executors power to sell and convey the real estate of the testator, or any part thereof, without any order of court, but a deposit and bid are made for a proposed sale, to be authorized by an order of court, the decision as to the validity of the sale must depend upon its validity as made under the order of the court, and not upon the supposed validity of a sale which might have been made under the authority given in the will.--Id. 27. ACTION AGAINST EXECUTOR INDIVIDUALLY-AGREEMENT TO RETURN DEPOSIT-WAIVER OF OBJECTION-SETTLEMENT OF ESTATE. Where ESTATES OF DECEASED PERSONS (Continued). the executors accepted a deposit for a bid upon the real estate of a deceased person, under an express agreement that they would return it if the title should prove defective, objection to an action against them individually for the return of the deposit is waived where no objection upon the ground that they were sued individually, and not as executors, was raised by demurrer or answer; and a judgment in such action against them will not be reversed, because they have settled their accounts as executors, including the amount of the deposit.-Id. 28. SALE OF REAL ESTATE-PATENT TO MINERAL LAND-SUFFICIENCY OF PETITION-CONSTRUCTION OF CODE.-A tract of land, for which a mineral patent has been issued, and of which the deceased was the owner in fee simple, and upon which no mining has been done for a series of years, cannot be summarily sold as a mine or mining interest under sections 1529-33 of the Code of Civil Procedure, and can only be sold under a petition stating the facts required for the sale of real estate under section 1537 of the same code; and a petition not stating such facts cannot support an order of sale of such tract.-Estate of Byrne, 176. See APPEAL, 1-3; CRIMINAL LAw, 14; Mortgage, 11–14; Wills. ESTOPPEL. PURCHASE FROM ESTOPPED OWNER -KNOWLEDGE OF FACTS.-A plaintiff who purchased the title of an owner who is estopped to claim title as against the defendant, with knowledge of the facts upon which the estoppel is based, is in no better situation than his grantor, and is bound by the estoppel.-Ions v. Harbison, 260. See BANKS, 2; PUBLIC LANDS, 3; STREET ASSESSMENT, 3. EVIDENCE. 1. ACTION UPON GUARANTY-SALE OF FRUIT IN BOXES-NET RETURN PER TON-OPINION EVIDENCE-ESTIMATE OF WEIGHT.-Where pears in boxes, called forty-pound boxes, were sold upon commission without any weighing, or any agreement that the fruit should be measured by the nominal capacity of the boxes, in an action upon a guaranty of a net return of fifteen dollars per ton, witnesses engaged in the business of packing fruit may testify to their opinion that the boxes, if well packed, held more than forty pounds each. —Ah Tony v. Earle Fruit Co., 679. 2. COMPETENCY OF EXPERT WITNESSES OBJECTION UPON APPEAL. Where no objection was raised at the trial to the competency of witnesses called to estimate the weight of fruit in boxes, objection thereto cannot be urged upon appeal for the first time.-Id. 3. IRRELEVANT EVIDENCE- - CUSTOMS--EXPENSE OF TRANSPORTATION EXPRESS CONTRACT OF GUARANTY.-Evidence of the custom of growers to pay the expense of getting their fruit to the defendant's packinghouse, is not admissible when the action is upon an express contract of guaranty for a net return to the plaintiff, and not upon a contract resting in implication or presumption, and there being no proof that the parties dealt with reference to such custom.—Id. 4. MPEACHMENT of Witness-WEAKNESS OF MEMORY.-A witness cannot be impeached by independent evidence of another witness that he EVIDENCE (Continued). is a person of weak memory, and his memory can only be impeached by cross-examination, if he is not affected by mental derangement.-Id. 5. BOOKS OF BANK-INCOMPETENT TESTIMONY OF CASHIER-ERROR WITHOUT PREJUDICE.-It is error to permit the cashier of a bank to state what the books showed on a certain date, where he has no personal knowledge on the subject; but such error is without prejudice where the fact thus proved was of no consequence.Id. 6. ACTION BY ONE PARTNER UPON PARTNERSHIP CLAIM - WAIVER OF OBJECTION.--It cannot be objected merely that the evidence shows that the plaintiff had a partner who was interested with him in the demand sued on, who was not joined as a party to the action, where no such ob jection was raised by the pleadings, but such objection is waived by the failure to plead it.—Id. 7. RECEIPT OF TELEGRAM - PRESUMPTION.- When a telegram has been sent, it is a presumption of fact that it was received by the person to whom it was sent, and the fact that it was sent is admissible evidence tending to show that it was received; but its receipt may be disproved. Eppinger v. Scott, 369. 8. PREPAYMENT OF TELEGRAM - WAIVER OF OBJECTION.- Where no objection is made to the introduction of a telegram as evidence, on the ground that no proof is made that it was delivered to the telegraph company for delivery, or that it was prepaid, and no attempt is made to show the facts in the case, on cross-examination of the witness, objections cannot afterward be urged upon those grounds.-Id. 9. RES GESTE - DECLARATIONS OF VENDOR.- Where the vendor of personal property is present when the property is moved by his vendees, the declarations of the vendor as to his object in moving the property, made before the removal is complete, are admissible in evidence as part of the res gesta, and for the purpose of throwing light upon the character of the transaction, and enable the jury to determine whether the sale was bona fide, or with the express intent to defraud his creditors.Id. 10. INCONSEQUENTIAL REMARK OF WITNESS-MOTION TO STRIKE OUT.Where a witness makes an inconsequential remark as to his opinion, which precedes any objection thereto, the only proper mole of raising an objection is by motion to strike it out, and a ruling upon a mere objection to the remark will not be considered as prejudicial error.-Tate v. Fratt, 613. 11. SETTLEMENT - MUTUAL RECEIPTS IN FULL-PAROL EVIDENCE-INCLUSION OF CROP RELEASE ESTOPPEL. Where a settlement was made between the defendant and the plaintiff, and mutual receipts in full of all demands were passed between them, it is error to allow the defendant to testify that the settlement did not include or cover the crop in controversy between them, or to testify to his intentions, or to the meaning or legal effect of the writing, nor can the defendant claim that the settlement and receipts operated as a release to him of all expense and liability connected with the crop, and, at the same time, insist that his right to the crop was not considered in or affected by the settlement.-Paige v. Akins, 401. EVIDENCE (Continued). 12. APPEAL WAIVER OF OBJECTION WHICH MAY BE OBVIATED-LACK OF Preliminary PROOF.—The failure to specify an objection to admitted evidence which might have been obviated if specified, is waived by failure to specify such objection with particularity; and where proffered evidence admitted is imperfect by the lack of preliminary proof, which may or may not be supplied, the objector must specify that objection, and a general objection to the evidence is not sufficient to warrant an investigation on appeal as to the insufficiency of the preliminary proof. People v. Louie Foo, 17. 13. CROSS-EXAMINATION- - EXCLUSION OF EVIDENCE.-It is not error to exclude evidence offered on cross-examination of a witness for the prosecution, where it is not in explanation of anything called out on the direct examination, and is not proper cross-examination. -Id. - 14. DECLARATIONS OF THIRD PARTY IN PRESENCE OF DEFENDANT. — The declarations made by the boss Chinaman at the washhouse where the defendant was arrested, are not admissible in favor of the defendant, though made in the presence of the defendant.-Id. 15. CROSS-EXAMINATION OF DEFENDANT IMPEACHMENT.-It is proper upon cross-examination of the defendant, to lay the foundation for impeachment, by asking him if he had not tried to get white witnesses to testify for him in support of an alibi claimed by him, and it cannot be properly objected that the questions on that subject were insinuations tending to prejudice the jury against the defendant, where there is no evidence of bad faith on the part of the prosecution putting the questions. Id. 16. TESTIMONY OF CHINESE WITNESSES-INSTRUCTIONS REMARKS OF DISTRICT ATTORNEY.-Where the district attorney, in his argument to the jury, expressed his opinion of the guilt of the defendant, and that the testimony of Chinese witnesses as to an alibi was not sufficient to raise a reasonable doubt as against the testimony of the white witnesses, but remarked that the jury were the sole judges of the sufficiency of the evidence and the credibility of the witnesses, such remarks are not ground for a reversal of a judgment of conviction; and when the court has instructed the jury that testimony of Chinese witnesses is governed by the same rules as that of any witness, and the credibility of Chinese witnesses must be determined by the jury in the same manner that they determine the credibility of any other witnesses, it is not error to refuse a similar instruction, stating that the argument of the district attorney as to the Chinese testimony to an alibi was not law, and that the testimony of a Chinaman must receive the same con sideration as the testimony of a white man, all other things being equal. Id. See AGENCY, 2; CONTRACT, 1-4; CRIMINAL LAW, 3, 7, 8, 10-13; DI- EXECUTORS AND ADMINISTRATORS. See ESTATES OF DECEASED PERSONS. EXTREME CRUELTY. See DIVORCE, 1, 2, 12, 14. FINDINGS. 1. ACTION TO QUIET TITLE-CLAIM OF LIEN ULTIMATE FACT-CONCLUSIONS OF LAW-APPEAL FROM JUDGMENT. - In an action to quiet title to land, where the complaint alleged that the defendants claimed a lien upon the property without right, and the defendants set up in their answer the lien of a judgment docketed against plaintiff and her husband, a finding that the asserted judgment is not, and never has been, a lien upon the premises, is responsive to the averments and denials of the pleadings, and is the finding of an ultimate fact, and not of a conclusion of law, and is sufficient to sustain a judgment for the plain. tiff upon appeal therefrom upon the judgment-roll.—Dam v. Zink, 91. 2. SUFFICIENCY OF FINDINGS-RELATION TO PLEADINGS.-The only purpose of the findings is to answer the questions put by the pleadings; and, if facts are stated in the findings in the same way in which they are stated in the pleadings, they are sufficient. -Id. REA 3. DOCKETED JUDGMENT NOT NECESSARILY A LIEN - HOMESTEAD. SON FOR FINDING. -A docketed judgment is not necessarily a lien, and is not a lien upon a homestead which is exempt from execution; nor is is necessary for the court to state such exemption as a reason for finding that it was not a lien against a married woman who is plaintiff in an action to quiet title against the claim of lien, where the ultimate facts set forth in the pleadings are found by the court.-Id. 4. REQUEST OF PARTY EXCEPTION-NEW TRIAL DECISION AGAINST LAW.-No such practice is recognized under the code as an exception to a refusal of the request of a party that the court should find upon certain issues, and such ruling cannot be reviewed upon appeal merely as an error of law; but it is the duty of the court to find upon all the material issues regardless of the request of the parties, and its failure to do so is a decision against law, which is ground for a motion for new trial.-Haight v. Tryon, 4. See APPEAL, 13; BANKS, 3; DIVORCE, 6, 11; FINDINGS, 8. FIRE INSURANCE. See INSURANCE. FRAUD. See TRUSTS, 1-6. GRANTOR AND GRANTEE. See DEED. GROWING CROPS. Sec MORTGAGE, 16-18. GUARANTY. See EVIDEnce, 1–3. GUARDIAN AND WARD. 1. APPOINTMENT OF GUARDIAN-JURISDICTION-LOCAL-ABSENCE OF CHILDREN FROM STATE-DOMICILE IMMATERIAL.-The jurisdiction to appoint a guardian for infants, under the American system, is entirely local, and the superior court has no jurisdiction to appoint a guardian for infants who are absent from the state, and the fact that their domicile is in the state is immaterial, and is no test of jurisdiction to appoint a guardian for them.-De La Montanya v. De La Montanya, 131. CXII. CAL.-46 |