tion, and the sum of $1,333.33 herein declared to be a lien upon said premises." The defendant appeals from the judgment, and incorporates in the record a bill of exceptions. In the bill, exception is taken to several of the findings of fact by the court as being contrary to the evidence; but as no part of the evidence in the court below is brought up in the record, this court has no means of determining the correctness of the findings of fact. It is also well established that exceptions to findings of fact, on the ground that they are contrary to the evidence, can only be reviewed on a motion for new trial. Pico v. Cuyas, 47 Cal. 174; Rice v. Inskeep, 34 Cal. 224; Code Civil Proc. § 411; Hayne, New Trials, § 96. The second point made in appellants' brief is that the complaint is not sufficient to sustain the judgment, in that it fails to allege that the claim of plaintiffs was presented to the administrator for his acceptance or allowance. Prob. Act, § 138. Upon this objection it has been held in the adjudicated cases that it is not necessary to allege the presentation and rejection of the claim, but that it may be proven on the trial without such allegation. Hentsch v. Porter, 10 Cal. 555; Coleman v. Woodworth, 28 Cal. 568. It is, however, admitted by respondent that no such evidence was in fact given, and it is insisted that the cause of action, as set out in the complaint, is not a "claim," in contemplation of the probate act. In Gray v. Palmer, 9 Cal. 616; in which very elaborate briefs were prepared, and exhaustive arguments were made, to determine the signification of this term, as used in the statute identical with our own, the court say: "It would seem clear from the different sections of the act, construed together, as well as from the nature and reason of the case, that the words claimant' and 'claim' are used as synonymous with creditor' and 'legal demand for money."" In Fallon v. Butler, 21 Cal. 24, a suit to foreclose a mortgage, Judge FIELD says: "The term claim' in the probate act only has reference to such debts or demands against the decedent as might have been enforced in his life-time by personal actions for the recovery of money, and of which only a money judgment could have been rendered." The adjudicated cases, and the reason of the law, indicate the rule to be as suggested by Justice FIELD, above cited: that in cases purely equitable, or in which a purely equitable relief is sought, the canse of action set out in the complaint does not constitute a "claim" which must be presented to the administrator, under section 138 of our probate act, before an action may be maintained. This is held to be the rule in actions for the foreclosure of mortgages and liens where personal judgments over are not sought. In the case at bar the plaintiffs were in the possession of the property in dispute, and had a vendor's lien thereon for the unpaid pur chase price. The real object of the suit was to foreclose this lien. It is true, the plaintiffs demanded a personal judgment over against the administrator. The test, however, is not what a litigant demands, but what he is entitled to receive. His prayer for general relief enabled the court to grant such relief as was agreeable to equity. The only remaining point is that the plaintiff Toulouse was permitted to testify, against the objection of defendant and contrary to section 898, subd. 3, of our Code of Civil Procedure, as to the ownership and possession of the mines conveyed at the time the deed was made. An inspection of the pleadings shows that such ownership and possession was alleged in the complaint, and not denied in the answer. The testimony referred to could not have injured defendant, as it went to facts admitted in the pleadings. We find no error in the trial below, and the judgment is affirmed. HAYS, C. J., and BRODERICK, J., concurring. PETITION FOR A REARGUMENT. Filed March 3, 1886. BUCK, J. On February 15th the decision of the court herein was announced, confirming the judgment appealed from. On the 23d the appellant filed his petition for a reargument. As a basis for the petition, it is set out that the court was mistaken in stating that the allegation of ownership and possession of the premises in dispute set out in the complaint was admitted in the answer, by a failure of defendant to deny the same, and on the further ground that the cases of Gray v. Palmer, 9 Cal. 616, and Fallon v. Butler, 21 Cal. 24, are practically overruled in Ellis v. Polhemus, 27 Cal. 354, and in Pitte v. Shipley, 46 Cal. 162. The allegation of ownership and possession of the premises in dispute are denied in terms, but admitted in fact in the answer, The defendants allege in their answer that the quitclaim deed set out in the complaint contained the exact understanding of the parties, and that there was no mistake or misunderstanding. If this be true, the defendants stand in the relation of vendee of the plaintiffs, the vendors in the deed. This action is brought to foreclose the vendor's lien for alleged unpaid purchase money. In such an action the vendee is estopped from denying his vendor's title. While in some actions the vendee may dispute his vendor's title, the doctrine is (Bigelow, Estop. 415) "that, until the grantee has paid for the land, he holds, in respect to the payment, a relation of duty to the grantor similar to that of tenant and landlord. The grantee cannot escape the payment of the purchase price by disclaiming the title of his grantor." In the case at bar the defendant admits that whatever rights he has to the premises he has by virtue. of purchase from plaintiffs, and in an action to foreclose the vendor's lien for purchase price, admitting as he does the purchase, the issue is, is there purchase money due? He cannot disavow his vendor's title on that issue. Bigelow, Estop. 414. The effect, therefore, of the defendant's answer is to deny the plaintiffs' allegation of ownership in form, and to admit it in fact. It is claimed in the petition, also, that the California cases cited in support of our decision as to the word "claim" have been substantially overruled in later cases. In support of this statement the petitioner cites Ellis v. Polhemus, 27 Cal. 354, and Pitte v. Shipley, 46 Cal. 162. The signification of this term has been under discussion in the California courts since 1858; commencing with Gray v. Palmer, 9 Cal. 616, and continued in Fallon v. Butler, 21 Cal. 24; Ellis v. Polhemus, 27 Cal. 354; Christy v. Dana, 34 Cal. 553; Sichel v. Carillo, 42 Cal. 505; Pitte v. Shipley, 46 Cal. 155; and Estate of McCausland, 52 Cal. 568. Much that has been said in the discussions of this question has been outside of the issues. We find in them nothing to change our opinion upon this question at issue. It is evident that the courts of that state do not understand that the cases referred to have been overruled. In Estate of McCausland, above cited, the court say: "In Fallon v. Butler, Mr. Chief Justice FIELD said: Whatever signification there may be attached to the word "claim," standing by itself, it is evident that in the probate act it has reference to such debts or demands against the decedent as might have been enforced against him in his life-time, by personal action, for the recovery of money, and upon which only a money judgment could have been rendered.'' This definition, they say, "in our opinion, is correct." We are unable to see that any benefit would arise by a reargument of the case, and the prayer of the petitioner is therefore denied. HAYS, C. J., and BRODERICK, J., concurring. (2 Idaho [Hasb.] 193) PEOPLE V. BERNARD. Filed March 3, 1886. 1. CRIMINAL LAW-TRIAL-INSTRUCTIONS. Under the criminal practice act the trial court in charging the jury may state the evidence and declare the law. 2. SAME ENTIRE CHARGE MUST BE CONSIDERED. The entire charge on a particular point must be considered in determining whether or not it is misleading. 3. SAME-INSTRUCTION HELD PROPER. The instructions herein examined, and held not prejudicial to the defendant. Appeal from First judicial district, county of Nez Perces. Brumback & Lamb, for appellant. D. P. B. Pride, Atty. Gen., for the State. BRODERICK, J. The defendant was accused of the murder of John J. Enright, was tried, and convicted of manslaughter, and sentenced to hard labor in the territorial prison for eight years. From this judgment he appeals. The first point made on his behalf on the appeal is that the court erred in giving the jury the following instruction: "Evidence has been given tending to show that the deceased, John Enright, entered the printing office of the defendant for the purpose of taking therefrom his blankets, and that while there he addressed to defendant certain language which you remember, and thereupon the defendant got down from the printing stool and ordered him, Enright, out of his office; that said Enright not going on such order, the defendant fired his revolver at him, and inflicted upon the deceased the wound from which he died." 66 The criticism on the foregoing instruction is on the latter part of it; that is, it is claimed the court erred in saying to the jury: The defendant fired his revolver at him, and inflicted upon the deceased the wound from which he died.” Under our statute (criminal practice act, § 354) the court, in charging the jury, may state the testimony and declare the law; this is what was here done. We cannot by any rule of law subdivide this instruction in the manner contended for, but we must take and consider the entire paragraph, and thus determine whether or not it was misleading. Certainly, under our practice and the circumstances of this case, it was not error for the court to tell the jury that there was evidence tending to prove the facts as stated in this instruction. The second alleged error complained of is the giving of the following instruction: "There must be danger of personal injury, or the fear of personal injury, to that extent that the only means to avoid the loss of life, or great personal injury, is to kill the assailant." Section 26 of crimes act fully warrants this instruction. Had this section of the statute been copied and given as an instruction, the defendant would have had as good ground for complaint as he has against the one given and here objected to. The third and last alleged error complained of is in giving the following portion of an instruction: "And that he had in good faith endeavored to decline any further struggle before the fatal shot was fired." It is apparent from the reading that this is not a full or complete sentence. It is selected and taken from a charge which, in the main, is unobjectionable. As the facts appear to us, these lines might have been omitted from the paragraph, but we are unable to see how any substantial right of the defendant could have been prejudiced by them. The meaning of the court below cannot be fairly ascertained by a partial view of what the jury was told was the law by which they should be governed in determining a question of fact. arrive at such meaning we must look at the entire charge upon the point to which it relates. This rule is recognized in numerous decisions. People v. Nelson, 56 Cal. 81, and cases cited; People v. Welch, 49 Cal. 182; People v. Doyell, 48 Cal. 93; U. S. v. Snow, 9 Pac. Rep. 501. Section 482 of the criminal practice act provides To that we must give judgment here without regard to technical error or defects which do not affect substantial rights. The statute authorizes the entire instruction from which the words objected to are taken to be given in a proper case, and we understand that it is supported by the general doctrine. Whart. Hom. 485, and cases there cited. From an examination of the evidence and the entire record we are satisfied the defendant could not have been injured by these instructions, or either of them, and that he had a fair trial, and was rightly convicted. Judgment affirmed. HAYS, C. J., and Buck, J., concur. (2 Idaho [Hasb.] 195) SALT LAKE BREWING Co. v. GILLMAN and others. Filed March 3, 1886. 1. APPEAL FROM JUSTICE'S COURT-PERFECTING APPEAL. To effectuate an appeal from a judgment of a justice of the peace three things are required: the filing of the notice of appeal with the justice, the service of a copy of the same on the adverse party, and the filing of the undertaking; and all these things must be done within 30 days after the rendition of the judgment, and are jurisdictional prerequisites; but the mere order in which they are done is not material. 2. SAME-NOTICE-SERVICE. Where judgment was rendered in a justice's court on October 2, 1885, and the notice and undertaking on appeal were filed with the justice on the sixth of the same month, and the notice of appeal was served on the fifteenth of the same month, held, that the statute was complied with, and the appeal well taken. 3. SAME STATUTE REGULATING APPEALS. The statute providing for appeals from justice's and probate courts, and the provisions for appeals from district to the supreme court, considered and distinguished. 4. SAME ACCIDENT OR MISTAKE PREVENTING OBJECTION TO UNDERTAKING WITHIN FIVE DAYS. Where, by accident or mistake, the respondent is prevented from objecting to the sufficiency of the undertaking within five days after the filing, may such objection be made at any time a substantial defect is ascertained? Noticed, but not decided. Appeal from Second judicial district, county of Alturas. Kingsbury & McGowan, for appellant. F. E. Ensign, for respondents. BRODERICK, J. On the second day of October, 1885, the plaintiff recovered judgment against the defendants before a justice of the peace in Alturas county. On the sixth day of same month the defendants filed with the justice their notice and undertaking on appeal, and on the fifteenth day of the same month they served upon the plaintiff a copy of the notice of appeal. The transcript and papers on appeal were transferred to the district court, and the plaintiff there moved to dismiss the appeal on the ground that the district court had not acquired jurisdiction of the same, as no undertaking |