7. UNDERTAKING ON APPEAL IN EJECTMENT-ACTION MAY BE MAINTAINED BY PLAINTIFF
AFTER CONVEYANCE.—The plaintiff, in an action of ejectment, after the affirmance on
appeal of a judgment in his favor, may maintain an action in his own name on an
undertaking on appeal, given under section 945 of the code of civil procedure, to
recover the value of the use and occupation of the property from the time of the
appeal until the delivery of the possession thereof, although, prior to the rendition
of the judgment appealed from, he had conveyed the premises demanded to a third
person. As between him and his grantee, the plaintiff is a trustee of an express
trust, and, as such, authorized to sue on the undertaking. Walsh v. Soule et al.
Cal., 582.
See HOMESTEAD, 2; SUMMONS, 1.
See CONSTITUTIONAL LAW, 5.
1. THE CRIME OF EMBEZZLEMENT OF PUBLIC MONEYS IS EXTRADICTABLE under the
treaty with Mexico of December 11, 1861. People v. Gray. Cal., 69.
2. EVIDENCE OF SIMILAR OFFENSES.-In a prosecution for embezzlement of public
moneys, evidence of similar acts of embezzlement is admissible for the purpose of
showing a guilty knowledge and a criminal intent on the part of the accused. The
court should instruct the jury as to the purpose of such evidence, if so requested
by the defense; but in the absence of such a request, a failure to so instruct is not
ground for a reversal. Id
3. MONEYS COLLECTED BY THE STATE BOARD OF HARBOR COMMISSIONERS from wharf-
age, tolls, etc., become the property of the state as soon as collected. Id.
4. PROOF OF AMOUNT OF EMBEZZLEMENT.-On a trial for embezzlement, the prosecu-
tion need not prove that the exact amount as laid in the information was embezzled.
Proof that a part of the amount charged was embezzled is sufficient to sustain the
information, Id.
5. EMBEZZLEMENT BY AGENT-DEMAND AUTHORITY FROM EMPLOYER.-An agent is
not guilty of embezzling the money of his employer, upon refusing to pay it over
on demand, unless the person making the demand had authority from the employer.
The evidence reviewed and held not to show such authority. People v. Tomlinson.
Cal., 212.
6. EMBEZZLEMENT MAY BE CHARGED IN THE LANGUAGE OF THE STATUTE. -An infor
mation for embezzlement by an agent is sufficient if it charges the offense in the
language of the statute. Id.
EMPLOYER AND EMPLOYEE.
See NEGLIGENCE, 4.
EQUITY.
1. BILL TO ENFORCE DECREE-AMENDMENT-NEW MATTER-DECREE MAY BE AT-
TACKED FOR FRAUD.-A decree in favor of the plaintiffs, in a suit brought to review
a prior decree, and obtain a modification thereof, was reversed on appeal, with leave
granted to the plaintiffs to amend their bill as they might be advised, and to the
defendants to answer any new matter introduced in such amended bill. The plaint-
iffs amended by striking out portions of their original bill, so as to change the nature
of the suit to one for the enforcement of such prior decree. Held, that the entire
amended bill was, in effect, new matter; that the defendants could attack the valid
ity of the decree sought to be enforced, on the ground that the same was fraudu
lently obtained, and that a refusal to allow such defense was error. Thompson, Ad-
ministratrix, etc., et al. v. Maxwell Land Grant and Railway Company et al. N. M.,
845.
2. EQUITY PLEADING-INFANT MAY FILE ANSWER AFTER ATTAINING MAJORITY.-An
infant defendant in a suit in equity, after he arrives at the age of majority, is entitled
to file a separate answer in his own behalf, and make a new defense, although an
answer in his behalf has already been filed by his guardian ad litem. Id.
3. EQUITY JURISDICTION OF THE NATIONAL COURTS-STATE LAWS.-Equity jurisdic-
tion of the national courts, and the mode of procedure therein, exist independ-
ently of the state laws, and cannot be limited or restrained by them. Goldsmith v.
Gilliland et al. (U. S. Cir. Ct.) Or., 529.
4. RIGHT GIVEN BY STATE LAW.-A right given by a state law, that is properly the
subject of a suit in equity, may be thereby enforced or protected in the national
courts. Id.
See CANCELLATION; FINDINGS, 1-5; Judgment, 8; LIENS, 3-5.
ESTATE OF DECEASED PERSONS.
1. PROBATE OF WILL FRAUDULENTLY DESTROYED-PETITION MUST STATE FACTS SHOW-
ING FRAUD.-A petition for the probate of a will alleged to have been fraudulently
destroyed during the lifetime of the testator, must state the facts and circumstances
constituting the fraud. Estate of Kidder, deceased. Cal., 755.
2. THE SAME INSUFFICIENT EVIDENCE OF FRAUD.-The facts showed that the testa-
trix, at the time of the destruction of the will in question, was ill in bed; that her
nurse, and sole attendant, handed her the will; that the same was either thrown by
her, or fell accidentally into the fire and was consumed; that the nurse saw the will
burning, but made no effort to save it. Held, not to show a fraudulent destruction
of the will by the nurse. Id.
3. THE SAME EVIDENCE OF CONTENTS OF LOST WILL.-Under section 1,339, of the
code of civil procedure, on an application to have a lost will admitted to probate,
the provisions of such will must be clearly and distinctly proved by at least two
credible witnesses. The evidence tending to show the contents of the lost will in
question reviewed, and held not to comply with the requirements of the statute.
Id.
4. ESTATES OF DECEASED PERSONS-PETITION FOR SALE OF REAL ESTATE-DESCRIPTION
OF LAND--REFERENCE TO INVENTORY.-Under the statute regulating the settlement
of the estates of deceased persons, in force between the years 1855-57, the petition
for the sale of real estate must contain a description of all the real estate of which
the testator or intestate died seized, and the condition and value of the respective
portions and lots. For such particulars the petition may refer to the inventory, and
both may be considered together. But, unless the petition, or inventory if referred
to, substantially complies with the requirements of the statute, the court acquires no
juris liction to order a sale; and an insufficient description as to one of several par-
cels of land referred to in the petition will deprive the court of jurisdiction, although
the remaining parcels are sufficiently described. Wilson v. Hastings et al. Cal., 31.
5. THE SAME How REFERENCE TO INVENTORY SHOULD BE MADE.-The petition, in
referring to the inventory for the particulars required by the statute, must state that
the reference is made for description, or value, or condition. A statement that ref-
erence is made "for greater certainty" is not sufficient. Id.
6. THE SAME-INSUFFICIENT DESCRIPTIONS IN PETITION.-Descriptions of such lands as
the undivided one-half part of one league of land on Clear Lake;" or "the undi-
vided one half part of a farm and vineyard at Sonoma, containing eight hundred
and thirty-three acres, more or less," are insufficient. Id.
7. ESTATE OF DECEASED PERSONS-SALE OF REAL ESTATE-PETITION FOR-AMENDMENT OF
PETITION. The petition for the sale of a decedent's real estate must contain a general
description of all the real estate of which the decedent died seized. If such petition
is deficient in this respect, it cannot be amended at the hearing, so as to make an
order of sale based thereon valid, without further notice. The court should treat
the petition when amended as a new petition, and proceed de novo. Estate of
Gharky, deceased. Cal., 284.
8. ESTATES OF DECEASED PERSON-CONVERSION BY ADMINISTRATOR-HEIR WHEN NOT
DISQUALIFIED AS WITNESS --In an action against a former administrator of a dece-
dent's estate to recover money of said estate, alleged to have been converted by
him to his own use, an heir of said deceased and a distributee of said estate, is not
disqualified as a witness by virtue of section 359 of the code of 1881. McCǝy v.
Ayers, administrator, etc. Wash., 681.
9. ACTS OF AN ADMINISTRATOR OUTSIDE OF HIS AUTHORITY Are Tortious, and the
estate cannot be held liable for the consequences thereof. Id.
10. DEBT DUE ESTATE-EFFECT OF PAYMENT TO UNAUTHORIZED PERSON.-The pay-
ment, to a person not authorized to receive the same, of a debt due to a decedent,
does not discharge the debtor from liability to his estate. Nor can the estate main-
tain an action at law against the person to whom such unauthorized payment has
been made, to recover the amount thereof. Id.
11. PRESENTATION OF CLAIMS-STATUTE OF LIMITATIONS.--Where a claim against the
estate of a decedent, founded on a promissory note, is presented to the executor,
and by him allowed, no action can be maintained thereon, until ten days after its
presentation to the judge, unless he rejects it within that period. Consequently,
the statute of limitations does not run against such claim during the time interven-
ing between the date of its presentation to the executor and that of its rejection by
the judge. Nally et al. v. McDonald. Cal., 892.
12. THE SAME-LOSS OF ORIGINAL CLAIM-APPROVAL OF COPY.-The approval by the
judge of a copy of a claim against the estate of a decedent, where the original had
been allowed by the executor and subsequently lost, has the same effect as an ap-
proval of the original. Id.
13. DISTRIBUTION OF ESTATES-CONFLICT OF LAWS.-While each state will deal with
the decedent's property within its jurisdiction, so far as creditors are concerned,
according to its pleasure, the universal rule is, that the distribution of dece-
dent's personalty will be governed by the laws of his domicile at the time of his
death. This rule has not been changed in California. Estate of Apple. Cal., 518.
14. DISTRIBUTION OF PERSONALTY.-Personalty in this state of one dying testate in
Austria, whose domicile at the time of his death was in Nevada, is to be distributed
according to the law of Nevada. Id.
15. ABATEMENT AMONG DEMONSTRATIVE LEGATEES.-According to the law of Nevada,
where a fund is insufficient to pay all the demonstrative legatees, all the demonstra-
tive legatees should share proportionately. Id.
16. SAME, IN CALIFORNIA.-Under sections 1,357, 1,359, 1,360 and 1,362 of the Califor-
nia civil code, all demonstrative legacies stand upon an equality. Those to kindred
and to strangers must abate alike. Only in the matter of the payment of debts
(sec. 1,361) are the kindred to be preferred to strangers, and the legacies of the for-
mer to be resorted to after those of the latter have been exhausted. Id.
17. PAYMENT OF HUSBAND'S DEBTS BY WIDOW-INFERENCES ARISING FROM.-The
mere fact that a widow paid certain debts of her deceased husband would not tend
to establirh an obligation on her part to pay other debts of her husband. Briswalter
v. Palomares et al. Cal., 38.
See CORPORATION, 11; LANDLORD AND TENANT, 1; STREET ASSESSMENT, 2.
1. REFEREE IN EQUITY CASES-WRITTEN EVIDENCE.-A referee appointed to take the
testimony in an equity case need only take oral evidence. Written documents, es-
pecially when proved by being authenticated as provided by statute, may be put in
evidence at the hearing. Baker v. Woodward. Or., 136.
2. COPY OF ACCOUNT BOOKS, WHEN ADMISSIBLE IN EVIDENCE.-True and correct tran-
scripts of original account books, with proofs aliunde as to the items thereof, may
be admitted in evidence when the original books have been accidentally destroyed
by fire. Mills v. Glennon. Idaho., 824.
3. EXPERT MUST CONFINE TESTIMONY TO FACTS.-An expert in handwriting must con-
fine his testimony to the facts, and cannot give his inference from the facts. The
inference to be drawn is for the court. Kruse v. Chester et al. Cal., 223.
4. RECORD ALTERED AFTER BEING MADE NOT ADMISSIBLE.-The record of a deed is
inadmissible in evidence, if it has been altered after it was made. And where such
record has been excluded after a full inquiry, it is a matter of discretion for the
trial court to allow further testimony in relation to it. Id.
5. EVIDENCE-TESTIMONY ON FORMER TRIAL-ADMISSIBILITY OF.-Testimony as to
what a witness said on a trial before a justice of the peace, is not admissible on a
trial of the same case in the district court, when such witness is within the juris-
diction of the court, and could have been by process compelled to appear. Provo
City v. Shurtliff. Utah, 148.
6. A WITNESS CANNOT TESTIFY TO A DECLARATION MADE HIM BY A THIRD Person,
tending to discredit the testimony of an adverse witness, or to the contents of a
letter written by a stranger to the action. Spottiswood v. Weir et al. Cal., 888.
7. A PRESS COPY OF A LETTER IS INADMISSIBLE IN EVIDENCE until the nonproduction of
the original has been properly accounted for. Id.
8. EXPERT TESTIMONY AS TO HANDWRITING-COMPARISON WITH PRESS COPY.-An ex-
pert cannot testify as to the genuineness of a disputed document from a comparison
of a press copy thereof with other genuine writing. Id.
9. HEARSAY EVIDENCE-STATEMENTS OF THIRD PERSONS-DEPOSITIONS.-A witness's
answers to direct interrogatories contained in a deposition, taken and read in evi-
dence by the plaintiff, if based wholly upon statements made by persons other
than the defendant, should be stricken out on motion. Amann et al. v. Lowell.
Cal., 166.
10. RAILROAD-TIME TABLE AS EVIDENCE OF CHARACTER OF STATION.-In determining
whether a certain place on the line of a railroad was a regular station, at which
trains were obliged to stop, or a mere flag station, a time table, issued by the com-
pany, which states that it is for the government and information of employees
only, and reserves to the company the right to vary therefrom at pleasure, is admis-
sible in evidence in an action against the company to recover for injuries received
by a person while endeavoring to get on a moving train at such station. Such time
table is not conclusive of the fact, although it states that the place is a regular
station. Denver, South Park and Pacific R. R. Co. v. Pickard. Col., 791.
11. PROMISSORY NOTE-PAROL EVIDENCE TO SHOW PARTIES TO.-In an action by the
payee of a note which reads, "we promise to pay," and signed "Pioneer Mining
Company, John E. Mason, sup't," parol evidence is admissible to show that it was
understood by the plaintiff that the note was the note of the company, and that the
consideration for which it was given passed to it. Bean v. Pioneer Mining Company
et al. Cal., 584.
12. THE SAME AGENT WHEN NOT PERSONALLY LIABLE ON NOTE.-If it was known to
the
payee that the note was given by the superintendent of the company, as such,
and in recognition of an indebtedness of the company, the superintendent is not
bound on the note, even if he had no power to execute it for the company. Id.
13. HEARSAY EVIDENCE-STATEMENTS OF ATTORNEY TO CLIENT-RES GESTAE.-The
payee of a note, in an action thereon, cannot testify as to statements made him by
his attorney with reference to the manner in which the note was obtained, and the
consideration therefor. Such evidence is hearsay, and forms no part of the res
gestae. White v. Rayburn. Or., 200.
14. RES GESTAE-SUBSEQUENT DECLARATIONS WHEN NOT. -Declarations of deceased
made half or three quarters of an hour after an affray (in which deceased was fatally
shot), and after the occurrence had wholly ceased, when all danger was over, the
defendant under arrest, and when deceased had been for that length of time among
his friends, are inadmissible as part of the res gestae. People v. Dewey. Idaho, 812.
15. DECLARATIONS OF A VENDOR MADE AFTER HE HAD PARTED WITH HIS INTEREST in
the land conveyed, are not admissible in evidence against his vendee. Briswalter v.
Palomares. Cal., 38.
16. ERRORS IN EVIDENCE-RECORD MUST CONTAIN EVIDENCE.-Alleged errors in the
admission or rejection of evidence will not be considered on appeal, unless the evi-
dence is embodied in a bill of exceptions properly settled and signed by the judge.
And the same is true of an assignment of error that the verdict is contrary to the
evidence. Territory v. Bell et al. Mont., 702.
17. ADMISSION OF EVIDENCE-EXCEPTION-GROUND OF MUST BE STATED.-The ruling
of the trial court on the admission of testimony, although excepted to, will not be re-
viewed on appeal, unless the ground of the objection or exception was stated.
Langworthy v. Coleman. Nev., 7.
18. IF A VERDICT IS JUSTIFIED BY THE EVIDENCE it is not against law. Carlson v. Mu-
tual R. Ass. Cal., 895.
19. ERRORS IN THE ADMISSION OF EVIDENCE, not affecting the substantial rights of the
defeated party, will not warrant a reversal. Id.
20. WHERE THE EVIDENCE IS SUBSTANTIALLY CONFLICTING on a material issue, the find-
ing of the jury thereon will not be disturbed. Id.
21. Where the EVIDENCE IS SUBSTANTIALLY CONFLICTING the findings will not be dis-
turbed. Jackson v. Logan. Cal., 284.
22. BENEVOLENT SOCIETY-EXPENSES OF ILLNESS-BURDEN OF PROOF.-In an action
against a benevolent society to recover for the expenses of an illness of one of its
members, the burden of proof is on the plaintiff to establish the liability of the soci
ety. Mullally v. Irish American Benevolent Society. Cal., 575.
See ACCOUNT, 2, 5; APPEAL, 9, 10; ATTACHMENT, 3; BONA FIDE PURCHASER, 3; COMMON
CARRIERS, 5, 7, 13, 14; CONTRACT, 4; CRIMINAL LAW AND PRACTICE, 11, 13; DEED,
5; EJECTMENT, 5; EMBEZZLEMENT, 2, 4; ESTATES OF DECEASED PERSONS, 2, 3; MUR-
DER AND MANSLAUGHTER, 4, 9, 12, 14, 19; NEGLIGENCE, 2; NEW TRIAL, 15; UNLAW-
FUL DETAINER, 2.
See APPEAL, 14, 15; BILL OF EXCEPTIONS; EVIDENCE, 17.
1. SEIZURE OF PROPERTY EXEMPT FROM EXECUTION.-An execution creditor under
whose direction a levy is unlawfully made is liable and may be sued with the sheriff
in an action for the trespass. In such case both are wrongdoers. Elder v. Frevert
et al. Nev., 52.
2. THE SAME COUNTER CLAIM-MEASURE OF DAMAGES.-In an action against a judg
ment creditor for unlawfully seizing two horses and a wagon of the debtor, exempt
from execution, the defendant cannot set up, as a counter-claim, the judgment
under which the seizure was made. The measure of damages in such action is the
value of the use of the team and wagon during the period of detention. Id.
3. ISSUANCE OF EXECUTION SATISFACTION BY ALLEGED ASSIGNEE.-The superior court
has jurisdiction to order an execution to issue on a judgment, notwithstanding a
satisfaction thereof has been executed and acknowledged by an alleged assignee of
the judgment. Farragiard et al. v. Superior Court. Cal., 236.
4. EXECUTION TAKES PRIORITY OVER SUBSEQUENT ATTACHMENT-SECTION 118 OF THE
CODE OF PROCEDURE CONSTRUED.-An execution issued upon a judgment in a civil
action takes priority over a writ of attachment subsequently levied upon the same
property, although the writ was issued and returned at the term during which the
judgment was rendered. Section 118 of the code of civil procedure does not author-
ize nor require a pro rata distribution of the proceeds of such property between the
execution and attaching creditors. Brady et al. v. Farwell et al. Cal., 543.
See INJUNCTION, 1; MANDAMUS, 2.
EXECUTORS AND ADMINISTRATORS.
1. ADMINISTRATOR MAY LEASE REAL ESTATE-DURATION OF LEASE.-The administrator
of the estate of a decedent has authority to lease the real property of the estate,
during the period of administration, any lease for a term definite being subject to
be terminated by the final distribution of the estate, and the discharge of the ad-
ministrator. Doolan, Administrator, etc., v. McCauley et al. Cal., 691.
2. LESSOR AND LESSEE-PAROL LEASE FOR TEN YEARS-ADVERSE POSSESSION-One who
enters upon and continues in the possession of real estate under a parol contract of
lease for ten years, the conditions of which have been fully performed by the lessor,
will not be presumed to have been in adverse possession. Id.
3. ADMINISTATOR'S ACCOUNT-SETTLEMENT OF ITEMS WITHOUT VOUCHERS.-Items in an
administrator's account, aggregating more than fifteen hundred dollars, for which
no vouchers are produced, and as to the payment of which no evidence is given,
cannot be allowed. Estate of Van Tassel, deceased. Cal., 222.
4. ACTION AGAINST REPRESENTATIVE OF DECEDENT-CAPACITY HOW ALLEGED.-In an
action against the personal representative of a decedent, where several causes of
action are separately stated in the complaint, each count need not separately allege the
death of the decedent and the proceedings in probate. One allegation of such facts,
following the other allegations in the complaint, is sufficient. Moseley v. Hency, ad-
ministrator, etc. Cal., 694.
See ESTATES OF DECEASED PERSONS.
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