INDEX TO THE CALIFORNIA SUPREME COURT DECISIONS. ACTS OF LEGISLATURE. 1870, 189; March 24, 1874, 264; March, 1874, 104. See LIEU LANDS; POWERS OF LEGISLATURE, 1. ADMINISTRATION. 1. Where letters testamentary were directed to be issued to Joseph Frey, they are unauthorized and void if issued to Jacob Frey; and being void, he would not be entitled to commissions as executor. Estate of Frey, 131. See WILLS; Estate of Selby. ADMINISTRATOR. See FINDINGS, 4. ADVERSE TITLE. 1. Under C. C. Pro., Sec. 738, any person, the owner of any estate or interest less than a fee, or otherwise, can maintain an action for determination of an adverse claim. Pierce vs. Felter, 185. ADVERSE USE. 1. The use must be open, and as of right, and also peaceable; the slightest act that operates as an interruption by the owners prevents the acquisition of a right by such use. Cave vs. Crafts, 482. AGREEMENT. See CONTRACTS. AMENDMENT.' See STATUTE OF LIMITATIONS; FINDINGS, 6. APPEAL. 1. An order vacating judgment of dismissal is appealable. James vs. Center, 164. See FINDINGS, 6, 7; PLEADING AND PRACTICE, 6; UNDERTAKING ON APPEAL, 1. APPRAISERS. 1. Political Code, Sec. 2390, does not impose any duty upon either party as to appraisement. No intelligible mode is provided by the statute for the selection of appraisers. Flanders vs. Locke, 172. ARTICLES OF INCORPORATION. See CORPORATIONS. ASSIGNMENT. See WAREHOUSE RECEIPTS. ATTACHMENT. See SHERIFF, 1; COPARTNERSHIP, 1; Monroe vs. McDonald. ATTORNEYS. 1. A client employed an attorney to bring suit. The attorney compromised the debt before suit at fifty cents on the dollar, and failed to account to his client. Held: the settlement was no defense to an action for the full amount claimed. Ambrose vs. McDonald, 204. 2. An order associating a new attorney is unknown to the practice as prescribed by the Code of Civil Procedure. That Code provides only for the substitution of one attorney for another, either upon the consent of the superseded attorney, or upon the application of the client, after notice to the attorney of record. Even if an order associating a new attorney is to be regarded as operating a substitution it is ineffectual if written notice is not given to the adverse party. Nor can such attorney act as sole attorney of record under such an order. Prescott vs. Salthouse, 489. BOND. CERTIFICATE. See UNDERTAKING ON APPEAL, 1. CLAIM AND DELIVERY. 1. Where plaintiff claimed drifted lumber and defendant disclaimed any charge for damages. Held: error to nonsuit the plaintiff for failure to tender payment of damage. 2. In action of claim and delivery it is sufficient for plaintiff to prove ownership, possession of defendant, demand, and refusal. Flanders vs. Locke, 171, 172. CODE. 2991 C. C. P., 83; 486 C. C., 96; 1493 C. C. P., 222; 1754 C. C. P., 237; 1323 Penal Code, 153; 752 C. C. P., 174; 1880 C. C. P., 182; 738 C. C. P., 185; 581 C. C. P., 164; 2390 Political Code, 172; 953 C. C. P., 106; 3333 C. C., 273; 1970 C. C., 236; 1119 Penal Code, 254; 1161 C. C. P., 162; 1496 C. C. P., 221; 4017 P. C., 241; 1469 C. C. P., 281. COLLATERAL MATTER. See CRIMINAL LAW. COMMON PROPERTY. See WILLS, 1. COMPROMISE. See ATTORNEYS, 1. CONSTRUCTION. See DEEDS, 1; WORDS, 1. CONSIDERATION. See WAREHOUSE RECEIPTS, 3. CONTRACTS. 1. Where an express contract has not been fully performed, and an action upon an implied contract to pay the reasonable value of what has been done is maintainable, the express contract may ordinarily be introduced as evidence of value. 2. Where the plaintiffs sue for being prevented from performing a contract, the action is on the contract; and unless prevention is proved and found, plaintiffs are not entitled to recover anything on such contract. 3. Mere failure or refusal to pay an installment, as it becomes due, does not amount to prevention; and, therefore, does not authorize the party to abandon the work and recover the benefit he would have received had he fully performed. The fact that defendant failed to make such payments, "well knowing that plaintiffs had to rely on the money received from him," does not change the result. 4. But if the defendant knew at the time the contract was entered into, that plaintiffs relied entirely on his payments to them, or that such reliance was an inducement to the contract on their part, it might be otherwise. 5. So, if defendant had notified plaintiffs that he would pay none of the installments as they should become due, it might amount to prevention. Cox vs. McLaughlin, 126. 6. Where a party subscribed a "prospectus" of a railroad company for shares of capital stock, contemplating an organization only after securing subscriptions for one hundred and fifty thousand dollars, a subsequent organization effected without his consent, when subscriptions for only one hundred and thirty thousand dollars had been obtained, operates to release him from further liability. Santa Cruz R. R. Co. vs. Schwartz, 283. 7. It is a universal rule in equity never to enforce either a penalty or a forfeiture, so where there existed a contract between parties for the sale of land, containing a forfeiture or penalty for failure to pay the balance of the purchase money, in the view of a court of equity the legal title is retained by the vendor as security for the balance. He may bring ejectment, if out of possession, but if he come into equity for relief, his better remedy is to proceed to foreclose the vendor's right to purchase, and the court must fix a day within which he must pay the balance. He can not proceed to enforce the forfeiture or penalty. Keller vs. Lewis, 407. See CROPPING ON SHARES, 1; FACTORS, 1. CONTRIBUTORY NEGLIGENCE. 1. The 486th Section of the Civil Code, providing that a railroad corporation shall be liable for all damages sustained by any person, and caused by the locomotive of the corporation, when a bell is not sounded or a whistle blown, as directed by that section, does not abrogate the doctrine of contributory negligence, or operate to give a right of action, if an adult; or an infant, by the negligence of the parent, materially and proximately contributed to the injury. 2. The plaintiff, an infant of six years, was permitted by his parents to make use of the roadway of the defendants as a play-ground, and to lie down on the track unattended. Held: that such conduct amounted to negligence per se, which would defeat a recovery by plaintiff, there being no evidence showing lack of due diligence or care on the part of the railroad company. Weeks vs. S. P. R. R. Co., 96. COPARTNERSHIP. 1. The seizure by attachment of the partnership property, and the application of the property to the payment of creditors of the firm, and the fact that the firm did not do business after the attachment was levied, do not of themselves necessarily and conclusively operate as a dissolution of the partnership. The tommencement of an action by the firm, subsequent to the attachment, to recover a debt due the firm, and the action not yet having been determined, tends to rebut any inference of the dissolution arising from the above facts. Barber vs. Barnes, 124. See MINING PARTNERS, 1. CORPORATIONS. 1. A municipal corporation is the creature of the statute invested with such power and capacity only as is conferred by the statute or passed by necessary implica tion. 2. In construing the words of the grant the whole chapter and the general legislation of the State respecting the matter must be consulted in order to determine whether by the terms "license and regulate" it was intended to authorize licenses for purposes of revenue. Acting on this rule of interpretation it is held that the act giving power "to license and regulate trades, callings, and employment as the public good may require to be licensed and regulated" confers power to exact license fees for purposes of revenue. 3. But an ordinance passed under a general authority of this nature must be-1. Reasonable, consonant with the general powers and purposes of the corporation, and not inconsistent with the laws or policy of the State. 2. It must not be oppressive. 3. It must be impartial, fair and general. 4. It may regulate but must not restrain trade or contravene public policy. Ex parte Frank on habeas corpus, 27. 4. The instrument from which the corporation derives its being must be held to limit the power of the corporation so that it can bind as stockholders, as of the date of its filing, only those named in the articles, and to the amounts therein mentioned. 5. The defendant signed a preliminary agreement for $25,000 (250 shares) of the capital stock of the railroad (plaintiff), but signed the articles of incorporation for (40 shares) $4,000 only. Held: in an action to recover $25,000, and that the defendant be adjudged a subscriber for 250 shares of said stock, and subject to all liabilities in consequence of said subscription, that the action could not be maintained. Monterey and S. V. R. R. Co. vs. Hildreth, 404. COUNTER CLAIM. See FINDINGS, 5; DEFENSE. CRIMINAL LAW. 1. Witness stated upon cross-examination that he had lived in Marin County two years, such residence not having been brought out upon direct examination. Held: evidence to contradict the witness in rebuttal, that he had testified on a former trial to a residence of four years in Marin County, was inadmissible. People vs. Mc Keller, 150. 2. Opinion of witness' veracity based upon personal knowledge, as distinguished from general reputation, is incompetent. People vs. Methrim, 151. 3. When the facts from which negligence is sought to be inferred are within the experience of all men of common education, the opinion of experts is inadmissible. It is for the jury to draw the inference of negligence. Shafter vs. Evans, 205. 4. The court erred in permitting the District Attorney (against the objection of defendant's counsel) to argue that the failure of defendant to become a witness was to be considered by the jury as a circumstance tending to prove her guilt, and in approving of such action of the prosecuting officer. Penal Code, Sec. 1323. People vs. Tyler, 36 Cal. 522. People vs. Brown, 153. 5. 6. Under an indictment for robbery the defendant may be convicted for larceny. The jury may be instructed to find the defendant guilty of larceny, if they entertain a reasonable doubt as to whether the offense be robbery or larceny. 7. An indictment for robbery must aver every fact necessary to constitute larceny, with the addition of facts showing force or fear. People vs. Jones, 248. 8. The employment of arts and devices, without violence, by which the moral power of a female is so corrupted that she will offer no resistance, is not sufficient to constitute rape. 9. The testimony of medical experts, in a trial for rape, as to the effect of indecent liberties upon the mind of the female, is inadmissible; all such practices are to be classed under the head of solicitation, and distinguish the crime of seduction from that of rape. People vs. Royal, 250. 10. No person, whether by order of the court or otherwise, can be permitted to show to a criminal jury, when viewing the premises in question, what positions the defendant and witnesses occupied during the commission of an offense. People vs. Green, 254. 11. If a question is put to a witness which is collateral or irrelevant to the issue, his answers can not be contradicted by the party who asked the question, but is conclusive against him. People vs. Bell, 430. 12. It is error to refuse instructions to jury as to reasonable doubt upon any fact essential to constitute the offense charged. People vs. Morino, 152. See People vs. Herrera. CROPPING ON SHARES. 1. A lease contained a clause providing that possession of crops should remain with lessors until certain payments were made. While the payments were in default the lessee sold and delivered a portion of the crop. Held: the vendee acquired no title against the right of the lessors; the possession of lessee was as servants of the landlords, and in replevin the latter must prevail. Wentworth & Osborn vs. Miller & Lux, 193. CROSS-COMPLAINT. See DISMISSAL, 1. DAMAGES. 1. In an action for damages for the wrongful seizure and detention of property, the measure of damage is what the use of such property could have been procured for-in other words the market value-and not what the use of such property was worth to the plaintiff, considering how the plaintiff could and would have used it had it not been taken from him. Hurd vs. Barnhardt, 246. 2. In actions for negligence the damages to be recovered are only those of which the negligent act is the proximate cause. Civil Code, Sec. 3333. Chidester vs. Consolidated People's Ditch Co., 273. See CONTRIBUTORY NEGLIGENCE, 1; RIPARIAN OWNERS, 1; MASTER AND SERVANT, 1; VERDICT, 1. |