again visiting the vineyard, as he desired to do, and that, too, when an examination would have demonstrated the worthless condition of the vines. Taken all in all, it is not made to appear that defendant should escape from the euect of the judgment. The offer to rescind was full and complete, and included a return of everything to which the defendant was entitled. The rules applicable to cases of this character are succinctly stated by Lamar, J., in Development Co. v. Silva, 125 U. S., at page 250, 8 Sup. Ct. Rep. 881, as follows: "(1) That defendant has made a representation in regard to a material fact; (2) that such representation is false; (3) that such representation was not actually believed by the defendant, on reasonable grounds, to be true; (4) that it was made with intent that it should be acted on; (5) that it was acted on by complainant, to his damage; and (6) that in so acting on it the complainant was ignorant of its falsity, and reasonably believed it to be true." These rules, properly construed, exclude such statements as consist merely of the expression of opinions, or judgment honestly entertained, and save in exceptional cases, also opinions and statements of vendor in respect to value. Tested in the light of these propositions, the judg ment and order appealed from are correct, and should be affirmed.

We concur: VANCLIEF, C.; HAYNES, C.

PER CURIAM. For the reasons given in the foregoing opinion the judgment and order appealed from are affirmed.

(3 Cal. Unrep. 862) KELLENBERGER et al. v. MARKET ST.

CABLE RY. CO. (No. 15,020.) (Supreme Court of California. May 3, 1893.)

APPEAL-DISCRETION OF TRIAL COURT.

Where the evidence is dubious and conflicting, the court on appeal will not, although it may differ in opinion with the lower court, revise the action of the court below in granting or refusing a new trial, unless an abuse of discretion is shown.

Commissioners' decision. Department 1. Appeal from superior court, city and county of San Francisco; John F. Finn, Judge.

Action by Ida Kellenberger and husband against the Market Street Cable Railway Company to recover damages for personal injuries. From an order granting a new trial, defendant appeals. Affirmed.

E. L. Craig, Frank Shay, and R. B. Carpenter, for appellant. W. H. H. Hart, A. R. Cotton, and J. C. McKee, for respondents.

SEARLS, C. This is an appeal from an order granting a new trial. The action was brought to recover damages for injuries al

leged to have been received by Ida Kellenberger, wife of her coplaintiff, on the 8th day of April, 1890, while a passenger on the cable car of the defendant. Plaintiff was on a Hayes street car, the gripman of which, as he approached the crossing of the Sutter street cable road on Larkin street, should, it appears, have "let go," or released the cable, but was diverted from doing so by the perilous situation of a pedestrian on the track, and as a result did not let go until he went over the pulley, and then could not do so, and the grip struck the bumper in the Sutter street track, producing a concussion by which, as is alleged, plaintiff was thrown from her seat and against one of the seats on the opposite side of the car, and thereby injured.

Two issues only of importance are made by the pleadings: (1) Was defendant guilty of negligence? (2) Was plaintiff injured thereby? Manifestly both of these issues needed to be answered in the affirmative, to entitle plaintiff to recover. For if defendant was not negligent, or if, being negligent, plaintiff was not injured thereby, there is no cause of action. The court below must have concluded that there was evidence sufficient to establish the affirmative of both the propositions. Looking at the case as presented here upon the cold record, and it must be said: (1) That plaintiffs made a case entitling them to a verdict. (2) The case made by the defense on its face was sufficient to fully justify the jury in the belief that the injuries of plaintiff were simulated, and to uphold the verdict in favor of defendant. The opportunity of the court below to determine as to the credibility of witnesses, the bias and prejudice, if any, exhibited by them, and generally to divine the truth in the conflicting evidence presented, gave him a decided advantage over us when seeking the same object. It has long been held that, where the evidence is dubious and conflicting, the supreme court will not, although it may differ in opinion from the lower court, revise the discretion of the court below in granting or refusing a new trial, unless there is abuse of such discretion. Taylor v. McKinley, 4 Cal. 104; Walton v. Maguire, 17 Cal. 92; Low v. McCallan, 64 Cal. 2, 27 Pac. Rep. 787; Savage v. Sweeney, 63 Cal. 340. A large number of cases might be cited to like effect, but these will suffice. The evidence presented a substantial conflict, and we are not prepared to say there was an abuse of discretion by the court below in granting a new trial. The order appealed from should be affirmed.

We concur: TEMPLE, C.; HAYNES, C.

PER CURIAM. For the reasons given in the foregoing opinion the order appealed from is affirmed.

(3 Cal. Unrep. 865)

JACOBS T. WALKER. (No. 14,976.) (Supreme Court of California. May 13, 1893.) CONTEST OF RIGHT TO PURCHASE STATE LANDSNEW TRIAL AFTER REVERSAL ON APPEAL.

1. The fact that plaintiff's application to purchase state land, of some portion of which he is in possession, has been adjudged invalid, and that it has been determined that he has no right to purchase, makes him none the less a proper party to proceedings to determine a contest inaugurated by a protest in the surveyor general's office against the purchase of the land by defendant. Garfeld v. Wilson, 15 Pac. Rep. 620, 74 Cal. 175, and Perri v. Beaumont, 27 Pac. Rep. 534, 91 Cal. 30, followed.

2. The amendatory act of 1885, which does not require an application to purchase state land, not suitable for cultivation, to state that the applicant is an actual settler, does not cover applications made before its enactment, and render unnecessary proof that one previously applying is an actual settler, as required by the old statute.

3. Where, on appeal, a new trial is ordered without limitation for a specified reason, the new trial should not be limited to the one issue discussed. Chandler v. Bank, 61 Cal. 401; 4 Pac. Rep. 502, 65 Cal. 498; 11 Pac. Rep. 791, 14 Pac. Rep. S64, and 73 Cal. 317, -distinguished.

Commissioners' decision. Department 1. Appeal from superior court, Mendocino county; Robert McGarvey, Judge.

Proceedings by Abner D. Jacobs against J. B. Walker to determine their right to purchase state lands. From a judgment for defendant and order denying a new trial, plaintiff appeals. Reversed.

T. L. Carothers, for appellant. J. A. Cooper, for respondent.

TEMPLE, C. This a contest in regard to the right to purchase state land, and this is the second appeal to this court. 90 Cal. 43, 27 Pac. Rep. 48. On the first trial it was found that plaintiff in his application to purchase had falsely stated that there was no possession of any portion of the land adverse to his possession. It was found that in every other respect the matters stated in his application were true, but because of the one false statement it was adjudged that his application was invalid. This finding was affirmed on the former appeal. As to the deferdant it was said that there was no finding that he was an actual resident upon the land, nor did it appear that there might not be some part of the land, equal to a legal subdivision, which was suitable for cultivation. The judgment was therefore affirmed as to plaintiff's claim, and as to the defendant it was reversed, and a new trial ordered. The complaint shows that the land in dispute is a part of a thirty-sixth section. That the defendant applied to purchase on the 23d of February, 1883, which application was approved May 3, 1883, and a certificate of purchase issued to defendant June 16, 1883. That plaintiff made his application May 6, 1884, and at the same time filed with the surveyor general a verified protest in writing

against the issuance of any further evidence of title to the defendant. Attached to, the complaint is the certificate of the surveyor general to the fact of the protest, and referring the contest to the courts for determination. Defendant's answer fails to deny that there was a protest, and that there was is found by the court. Yet respondent in his brief claims that plaintiff has not protested, and that the contest was not inaugurated in the state land office. He contends that as it was adjudged that the plaintiff's application to purchase was invalid, and it has been determined that he has no right to purchase, the contest is ended so far as plaintiff is concerned, and he is out of the case. Of course, if this be so, plaintiff is not a party, and cannot appeal. It would seem, also, that, if the contest inaugurated by plaintiff's protest is ended, the courts have no further jurisdiction of the matter. For where there is no contest, the surveyor general must himself determine such questions as arise. As authority for this proposition he cites Ramsey v. Flournoy, 58 Cal. 260. But that case was expressly overruled in Perri v. Beaumont, 91 Cal. 30, 27 Pac. Rep. 534. So far as this question is concerned, I am unable to find any difference whatever in the last-named case and this. In both, the contest was inaugurated by a protest in the surveyor general's office by one who appeared on the face of the record to have made no valid application to purchase, though both had filed formal applications, and both were found to be in possession of some portion of the land. And in these respects both cases seem to be exactly like Garfield v. Wilson, 74 Cal. 175, 15 Pac. Rep. 620. In those cases this point was fully discussed, and the matter need not be again considered. According to those cases, plaintiff is a proper party, and is entitled to be heard.

Respondent further contends that the specifications in the notice of the motion for a new trial, which was made upon the minutes of the court, as to the alleged insufficiency of the evidence, are defective. One is to the ef-. fect that there was no evidence tending to show that the defendant was an actual settler upon the land, when he applied to purchase. At the time defendant made his application to purchase, 1883, it was necessary to state in the application that he was an actual settler upon the land. Of course, unless this statement were true, he had no valid application to purchase, and he would be left in the same position as the plaintiff. The statute was amended in 1885, so that this statement was not required when the lands were not suitable for cultivation. This does not cover applications made before that time which were invalid when made. This defect in the findings was noticed on the last appeal, but as it was not important, since a new trial was ordered, the consequences of such failure were not commented on. But this was a material issue on the last trial, and, if there was no evidence upon that issue, the

case must be reversed. This specification is therefore sufficient.

The statement shows that there was no evidence whatever upon this subject, and that there was not because the learned judge concluded that a new trial was ordered only upon the one issue,-whether the land was suitable for cultivation. I see no warrant for such a conclusion. The judgment here ordered a new trial, and there was no hint at any restriction as to the scope of such new trial. The order is in the usual form, and there is no more justification in claiming that the new trial was to be limited than in the numerous cases in which the same language is used, found in every volume of our Reports. It is not uncommon to send back a cause for a new trial because the court has failed to find upon some one material issue. Yet no one ever supposed, because the particular defect was specially pointed out in the opinion, that the new trial was limited thereby to the one issue discussed. The opinion is not the judgment, although it may constitute the law of the case. When a new trial is ordered without limitation, it must be understood, as it always has been, that a new trial is ordered in the whole case. It is said that the court based its action on the case of Chandler v. Bank, which was three times appealed to this court. 61 Cal. 401; 65 Cal. 498, 4 Pac. Rep. 502; 73 Çal. 317, 11 Pac. Rep. 791, and 14 Pac. Rep. 864. I see no similarity in the cases, and, if the case cited were authority for the position, it would simply be one case against a thousand others running through the entire Reports. But that case is not authority for the position. On the first appeal the court noticed that the findings sustained the judgment in all respects except as to the matter of interest, and it was adjudged that the case be reversed, and remanded for further proceedings in accordance with the opinion. The doubt as to the meaning of this order arose from the fact that the court did not award a new trial. The lower court did not understand what the further proceedings could be when a new trial was not ordered. It therefore refused to retry the case, but simply struck out certain interest, which the findings did not show could be legally charged, and refused to receive further evidence which would show that the interest was authorized in accordance with the requirements of our statute. A new appeal was taken, and an opinion rendered, which, as I think, was unfortunately worded. The writer of the opinion, Judge Thornton, thought it held that a new trial was awarded in the whole case. But the trial court understood it as holding that a new trial was to be had on one issue only, and that conclusion was sustained by a majority of this court on the third appeal, Judge Thornton dissenting. The case went off upon some unfortunate use of language, but on no possible construction is it authority for the course pursued in this case, where a new trial

was ordered without restriction. No such new trial has been had, and therefore a discussion of other interesting questions suggested would be premature. I think the judg ment and order should be reversed, and a new trial had.

We concur: BELCHER, C.; SEARLS, C.

PER CURIAM. For the reasons given in the foregoing opinion the judgment and order appealed from are reversed, and a new trial ordered.

(98 Cal. 281)

GANCEART v. HENRY. (No. 14,554.) (Supreme Court of California. May 16, 1893.) MORTGAGES-REDEMPTION-ABSOLUTE Deed-Ap

PEAL.

1. In an action to have a deed absolute in form declared a mortgage, and to redeem from the same, the complaint must show that the money claimed to have been secured by the deed is payable.

2. Amending a complaint after a demurrer is sustained waives objections to the ruling on the demurrer.

3. An order denying a motion to strike out a pleading, unless made in the absence of the party complaining, is not within Code Civil Proc. 647, which provides that certain decisions and orders are deemed to have been excepted to.

4. To establish that a deed absolute on its face was given as security for a debt, the testimony, if parol in character, should establish a clear case.

Commissioners' decision. Department 1. Appeal from superior court, Contra Costa county; Joseph P. Jones, Judge.

Action by Frank Ganceart against J. B. Henry to have a deed absolute in form declared a mortgage. Judgment was rendered for defendant, and a motion for a new trial was denied. Defendant appeals. Affirmed.

G. W. Bowie and A. H. Griffith, for appellant. W. S. Tinning, for respondent.

SEARLS, C. Appeal from a judgment in favor of defendant, and from an order denying a motion for a new trial. The action was brought to have an absolute deed executed by plaintiff to defendant October 4, 1886, conveying a lot of land in the town of Alamo, county of Contra Costa, Cal., adjudged to be a mortgage, and to permit the plaintiff to redeem, and to require the defendant to execute a deed of conveyance to the plaintiff. The complaint, in apt language, set out, in substance, that on the 4th day of October, 1886, defendant loaned him $400, plaintiff to pay interest thereon at 1 per cent. per month, and that as security for the payment thereof to defendant he, the said plaintiff, executed to defendant a deed of bargain and sale, absolute in form, but understood and agreed to be and operate as a mortgage, etc. The complaint failed to show when the $400 averred to have been loaned fell due, or that it was in fact due and payable. Defend ant demurred to the complaint, which de

murrer was sustained by the court, with leave to plaintiff to amend, and in due time he filed an amendment to his complaint. Defendant answered denying all the allegations of the complaint, averred ownership of the conveyed property in himself. He also filed a cross complaint, showing ownership of the premises in himself, possession in plaintiff under a lease from month to month, a wrongful holding over, etc., and asked for judgment of restitution, etc. Defendant filed his answer and cross complaint on the 5th day of August, 1890, and afterwards, on the 15th of September, 1890, without leave of the court, so far as appears, he served and filed an amended answer and cross complaint. Plaintiff moved to strike out these amended pleadings upon the grounds that they were filed without leave of the court, and that they were sham and irrelevant, etc. The motion to strike out was denied by the court, and the ruling is assigned as error. The cause was tried by the court without the intervention of a jury, and the findings negative the theory of the plaintiff that a loan was made to him by defendant, and the deed given as security therefor, and uphold the position of defendant that the transaction was an absolute sale and conveyance absolute, etc.

The first error assigned by appellant is that the court erred in sustaining the demurrer to the complaint. There are two answers to this contention: (1) The court did not err in sustaining the demurrer. The complaint failed to show that the money averred by plaintiff to have been by him borrowed from the defendant was due and payable, non constat, but that the action was prematurely brought. (2) By amending his complaint after demurrer sustained, plaintiff waived the error, if any, in the ruling by the court. Gale v. Tuolumne W. Co., 14 Cal. 26.

The refusal of the court to strike out the amended answer and cross complaint is assigned as a further error. This assignment of error cannot be considered, for the reason that an order refusing to strike out a pleading is not one of the orders or decisions which are deemed to have been excepted to by section 647 of the Code of Civil Procedure, except when made in the absence of the party complaining. The record fails to show either that appellant excepted to the ruling of the court, or that he was absent when it was made. No bill of exceptions was prepared embodying the action of the court in the premises, without which the notice, motion to strike out, and order of the court refusing such motion, did not become a part of the judgment roll under section 670, Code Civil Proc. In the statement on motion for new trial no allusion is made to the motion to strike out the amended pleadings or the action of the court thereon. In the assignment of errors by counsel, on his motion for a new trial, and which, according to the recital, were "errors of law, duly excepted to,"

is that "the court erred in denying plaintiff's motion to strike out the defendant's amended answer and cross complaint in this case filed and served the 12th day of September, 1890." This, considered as an assignment or specification of error, is sufficient, but it affords no proof that any such action was ever had. It may be likened to an indictment or information in a criminal case, which fills an important office in the proceedings, but which, in the absence of proof, is impotent to convict.

The other specifications of error go to the sufficiency of the evidence to authorize the decision in favor of the defendant. The evidence was quite full as to the nature of the transaction, and whether it was a loan of money by the defendant, and the taking of a deed, absolute on its face, merely as security, or an absolute sale, was one upon which there was a sharp and substantial conflict in the testimony. The court below found in favor of defendant, and we are not authorized, under such circumstances, in disturbing the findings. A deed of conveyance absolute on its face is certainly some evidence that the transaction is what it purports to be, viz. a sale. To establish an equity superior to the deed, and authorize a determination that the deed was given as security for an existing debt, the testimony, if parol in character, should establish a clear case. Hopper v. Janes, 29 Cal. 19; Henley v. Hotaling, 41 Cal. 22. The judgment and order appealed from should be affirmed.

We concur: VANCLIEF, C.; TEMPLE, C.

PER CURIAM. For the reasons given in the foregoing opinion the judgment and order appealed from are affirmed.

(98 Cal. 268)

GALVIN v. GUALALA MILL CO. (No.

14,404.) (Supreme Court of California. May 13, 1893.) NEGLIGENCE-SETTING OUT FIRES-PRESUMP

TIONS.

Under Pol. Code, § 3344, providing that every person negligently setting fire to his own woods, or negligently suffering any fire to extend beyond his own land, shall be liable in treble damages to the party injured, negligence will not be presumed because the fire started on defendant's land.

Commissioners' decision.

Department 1. Appeal from superior court, Mendocino county; Robert McGarvey, Judge.

Action by M. J. C. Galvin against the Gualala Mill Company for damages for setting out a fire. From a judgment for plaintiff, and from an order denying a new trial, defendant appeals. Reversed.

J. A. Cooper, for appellant. H. A. Powell and T. L. Carothers, for respondent

HAYNES, C. Appeal from the judgment, and from an order denying defendant's mo

tion for a new trial. The complaint states two causes of action for the destruction of tan bark, cord wood, etc., by fires alleged to have been negligently set by the defendant upon its own land, and for its own convenience, and which it negligently permitted to escape and to extend to plaintiff's land; the first occurring October, 1887, and the second, July 30, 1889. The value of the property destroyed by the first fire is alleged to be $198, and, by the second, $800, and treble damages are prayed for. The jury returned a verdict for the plaintiff, and fixed the damages at $775. At the close of plaintiff's evidence, defendant moved for a nonsuit upon several specific grounds, the substance of which is that the evidence failed to show that the defendant negligently, or otherwise, set fire to its own, or any, woods, or that it negligently, or otherwise, permitted the fires to escape from its land. The motion was denied, and defendant excepted.

There was some evidence tending to show that the fires originated on defendant's land, but none that they were started by the defendant, unless it could be inferred from the fact (itself doubtful) that they originated on its land. But, however that may be, there was not a scintilla of evidence that the fires were started negligently, or for an unnecessary purpose, or that due care was not exercised to prevent the fires from spreading to other lands; and without negligence, either in starting the fires, or in permitting them to escape or get beyond defendant's lands, no recovery can be had. Section 3344 of the Political Code provides: "Every person negligently setting fire to his own woods, or negligently suffering any fire to extend beyond his own land, is liable in treble damages to the party injured." This action was brought under the above section of the Code, and the burden of proof was upon the plaintiff. Under it the actual damages sustained are trebled, not as a compensation to the plaintiff, but as a punishment to the defendant for his negligence; not for doing a lawful act in a careful and proper manner, which, without his fault, inflicts an injury upon another. Negligence is the essential fact, and must be proved. For a construction of section 3344 of the Politi cal Code, and of the other statutes cited by respondent, and hereinafter noticed, see Garnier v. Porter, 90 Cal. 105, 27 Pac. Rep. 55. Respondent contends, however, that "proof of setting the fire is sufficient, and is itself proof of negligence," and cites section 384 of the Penal Code: "Every person who willfully or negligently sets on fire, or causes or procures to be set on fire, any woods, prairies, grasses, or grain on any lands, is guilty of a misdemeanor." This section will bear no such construction. It is penal, and in such statutes the word "willfully" means with evil intent, or with legal malice, or with a bad purpose. Counsel for respondent also cites the act of February 13, 1872, for

the purpose of showing that it is unlawful to set fires in woods. But that act relates only to public lands belonging to this state or the United States, and is also penal, and applies to those who "shall willfully and deliberately set fire," etc. It is quite true, as counsel say, that where damage is caused by an unlawful act no negligence need be proven. But the complaint does not allege that defendant "unlawfully" set the fire, or unlawfully permitted it to spread to plaintiff's land, while his argument seems to concede that he has not proven negligence, unless it can be inferred from the fact of the fire having originated upon defendant's land, non constat that the fire may have been purely accidental, or occurred through the negligence of a hunter, or been maliciously set by a third person, for whose acts defendant is not responsible. A plaintiff must prove every material fact which goes to constitute his cause of action. Proving loss alone is not sufficient. The evidence introduced by defendant after the motion for nonsuit was denied did not supply the defects in plaintiff's evidence, and the verdict was therefore not justified. The judgment and order appealed from should be reversed.

We concur: TEMPLE, C.; BELCHER, C.

PER CURIAM. For the reasons given in the foregoing opinion the judgment and order appealed from are reversed.

(3 Cal. Unrep. 869) GALVIN v. GUALALA MILL CO. (No. 14,414.) (Supreme Court of California. May 13, 1893.) NEGLIGENCE-SETTING OUT FIRES- TREBLE DAMAGES MANNER OF FIXING.

Since Pol. Code, § 3344, providing for treble damages to the party injured by the negligent setting out of fires, is silent as to whether the jury shall find such damages, or whether they shall find the actual damage, and the court shall enter judgment for three times such amount, it is immaterial which course is pursued, provided absolute certainty is attained, and this can be secured by preparing the form of verdict.