implication of a promise by the corporation to pay the plaintiff what his services
were reasonably worth; and (2) That the plaintiff, not having kept any account of
his services, and being unable to prove any specific items, ought not to recover more
than a reasonable annual retainer therefor. Id.
3. STIPULATIONS NECESSARY TO MAKE A CONTRACT REASONABLE ARE IMPLIED, and
need not be alleged in an action to recover for a breach of such contract. Bigger-
staff v. Briggs. Cal. 353.
See ASSUMPSIT; ATTACHMENT, 3; CORPORATIONS, 3; COUNTY PHYSICIAN, 1; LANDLORD
AND TENANT, 5; MARRIED WOMEN, 1-5; PLEADING, 2.
CONTRIBUTORY NEGLIGENCE.
See NEGLIGENCE, 3, 4.
1 CLAIM AND DELIVERY-SHERIFF-CONVERSION-JUDGMENT-UNDERTAKING-AFFI-
DAVIT NONSUIT.—Prior to the commencement of the present action, one Hawley
commenced an action against the plaintiff herein, and one Fowler, to recover the
identical property described in the complaint herein. In that action, upon proper
affidavit, undertaking and order of the attorney for plaintiff herein, the present de-
fendant, as sheriff, took said property from the defendants on the 12th day of No-
vember, 1881. On the 17th day of the same November (the day after the present
action was commenced), the plaintiff herein made affidavit for claim and delivery,
and executed bond, which affidavit and bond (together with an order of the attor-
neys for plaintiff herein) were delivered to an elisor, appointed by the court, by
whom the property was taken from the defendant herein, sheriff as aforesaid. After-
wards, on the 22d of November, 1881, defendant gave the undertaking provided for
in such case by the code, and demanded a return of the property of the clisor, who
on the same day delivered the property to the present defendant, who thereupon de-
livered the property to Hawley, the plaintiff in the action, wherein plaintiff and
Fowler were defendants. Afterwards, on the 12th day of December, 1881, the
plaintiff herein filed an answer in the action, wherein he and the said Fowler were
defendants, in which he demanded a return of the property therein and herein sued
for. That the action of Hawley v. Fowler and Fleming came on to be tried on the
21st day of January, 1882, and at the conclusion of the evidence on the part of the
plaintiff therein, the court, on motion of defendants, ordered a judgment of nonsuit
in that action, on the ground that plaintiff had not made out a case sufficient to go
to a jury, and thereupon a judgment was entered in favor of defendants therein for
their costs. Held, that the present defendant did not take the property from the
plaintiff wrongfully, but as sheriff, under process which made it his duty to take it;
that after the return of the property to him, the defendant simply performed his
duty in delivering it to Hawley, and that an independent action could not be main-
tained against him for its possession or value in case delivery could not be had.
Fleming v. Wills. Cal. 159.
2. CONVERSION BY SHERIFF JUSTIFICATION-PLEADING.-In an action against a sheriff
for a conversion, an answer which sets up an attempted justification by virtue of a
seizure under a writ of attachment is defective, and should be stricken out, unless
it is alleged that the defendants under the attachment were the owners of the prop-
erty taken, or had some interest therein. Failure to strike out such portion of the
answer, when the plaintiff's title is denied, and a general verdict is given in favor of
the defendant, will not warrant a reversal, unless it affirmatively appears that such
verdict was founded upon the attempted plea of justification. Krewson et al. v.
Purdom et al. Or. 85.
See ATTACHMENT, 5; PARTNERSHIP, 1.
See CRIMINAL LAW AND PRACTICE, 7, 8.
COPYRIGHT.
OF LECTURE (note), 584.
1. RESIDENCE OF CORPORATION.-Neither the principal place of business of a corpora
tion, nor the place in which its officers reside, is necessarily the place of residence
of the corporation. California Southern R. R. Co. v. Southern Pacific R. R. Co.
Col. 301, 302.
2. CORPORATE STOCK-TRANSFER OF PARTIES TO ACTION.-In an action to have the
plaintiff declared the owner of certain shares of stock, and to have the same trans-
ferred to him on the books of the company, the corporation is a proper party defend-
ant, together with a purchaser of such stock, with notice of the plaintiff's equities.
Johnson v. Kirby et al. Cal. 482.
ASSESSMENT-CONTRACT-JUSTICE COURT.-A shareholder's liability for the
amount of his unpaid assessment on the corporate stock, is founded on contract.
The justice court has jurisdiction of an action to enforce such liability. Alpers v.
Superior Court. Cal. 526.
4. ASSESSMENT TO PAY DEBT NOT DUE-FRAUD.-Levying an assessment to pay a debt
which the corporation did not owe, and selling stock for such purpose, especially
when it does not appear that the money so obtained was used for such purpose, is
not per se a fraud on the stockholder. Johnson v. Kirby. Cal. 482.
5. A CORPORATION HAS NO POWERS except such as are specially granted, and those that
are necessary to carry the same into effect. Salmon River Mining and Smelting
Co. v. Cunn, Idaho, 70.
6. A CORPORATION ORGANIZED FOR THE PURPOSE OF MINING, SMELTING AND REFIN
ING ORES, and for dealing in mining property, cannot become the assignee for a
chose in action growing out of the breach of a contract for building a bridge. Id.
7. A CORPORATION CANNOT APPOINT AN AGENT, nor can it become a cestui que trust,
un il it has a legal existence. Kelly v. Ruble. Or.
CORPORATION-UNAUTHORIZED DEED BY PRESIDENT—SEAL.-The president of a
corporation has no power, as such, without express authorization from the directors,
to purchase or sell real property in the name of the corporation. An instrument
executed by him for such purpose, in the name of the corporation, and under its
common seal, without the authorization of the directors, may be shown to be void.
Bliss v. Kaweah Canal and Irrigation Co. Cal. 571.
9. THE SAME ESTOPPEL-CONTRACT.-A corporation is not estopped from denying the
validity of an unauthorized contract made by its president, where.it has never
availed itself of the benefits of such contract.
10. CONVEYANCE-CONSIDERATION-CORPORATION-ULTRA VIRES.-A conveyance by a
corporation, in consideration that its grantee would prevent the recovery of or pro-
tect it against any personal judgment, in an action brought to recover on its con-
tract of guaranty, is valid, although such contract of guaranty was ultra vires.
Mound City Land and Water Ass'n v. Slauson et al. Cal. 372,
11. SETTLEMENT OF BANK DEFALCATION-AUTHORITY OF BANK OFFICERS AND DIRECT-
ons.-The settlement of a defalcation to a bank, and the acceptance of a deed of
real estate in satisfaction and release thereof, are not transactions which fall within
the ordinary powers of a corporation, which may be exercised by its agents, or per-
sons, who are held out to the public as such. Power to do such acts must be con-
ferred by the board of directors. Bank of Healdsburg v. Bailhace. Cal. 140.
12. WHERE THE CHARTER OF A MUNICIPAL CORPO. TION REQUIRES IT TO DO A CER-
TAIN ACT by resolution, it may do the same by ordinance. Los Angeles v. Waldron,
Cal. 42.
13. THE ADOPTION OF CERTAIN RULES OF BUSINESS BY A CHINESE COMPANY may be
inferred from the fact that such rules were printed in a book kept by the company's
agent, and were hung in the company's house. Chung Yow v. Hop Chong. Or. 325.
See ESTOPPEL, 1; INJUNCTION, 1; JURISDICTION, 2; SUMMONS, 1; TAXATION, 15–17;
1. APPEAL FROM COUNTY COURT-COSTS AND DISBURSEMENTS.-The circuit court, in
an action to recover the possession of personal property, appealed from the county
court, has no power to award to the successful plaintiff all his costs and disburse
ments incurred in both courts. In such appeals the allowance of costs and dis-
bursements is discretionary with the circuit court when a new trial is ordered, or
the judgment appealed from modified. The nature of the judgment in the ppellate
court determines the amount of the costs and disbursements to be allowed on
account of the proceedings in the lower court. If the judgment is such as would,
had it been recovered in the court below, have entitled the prevailing party to costs
and disbursements there, its recovery in the circuit court on appeal has the same
effect.-Burt v. Ambrose. Or. 554.
2. ORDER AMENDING JUDGMENT AS TO COSTS, AND DIRECTING SAME TO BE PAID in
due course of administration, affirmed. Estate of Crozier, deceased. Cal. 212.
See APPEAL, 10; ARREST AND BAIL, 4; ELECTION, 2; INJUNCTION, 2: JUSTICES'
1. CROSS-DEMANDS-SET-OFF-COMPENSATION-FORECLOSURE OF MORTGAGE. In an
action by an administrator to foreclose a mortgage which matured after the death of
his intestate, a cross-demand in favor of the mortgagor and against such intestate,
which was due and payable at the time of the intestate's death, cannot be set off as
a compensation of the mortgage debt, nor can such cross-demand be so st off if
the same is Larred by the statute of limitations at the time of the commencement
of the foreclosure suit. Lym, administrator, etc. v. Petty et al. Cal. 107.
2. COUNTER-CLAIM — ASSIGNMENT OF NOTES.-Promissory notes assigned before maturity
may be pleaded as a counter-claim by the assignee, if there is an existing cause of
action upon then at the commencement of the plaintiff's action. If assigned after
maturity the assignee takes them subject to all existing equities between the maker
and payees. Unier such circumstances they would not be the subject of a counter-
claim, and as such could not be pleaded under section 433 of the code of civil
procedure. Id.
1. COUNTY GOVERNMENT ACT-ORDINANCE-SUPERVISORS. An ordinance of the board
of supervisors of San Bernardino county, passed on May 7, 1853, at a regular
session commencing on May 7, 1883, is valid, although passed after the county
government act of May 14, 1883, took effect. Ex parte Benjamin. Col. 96.
2. THE SAME-THE COUNTY GOVERNMENT ACT MUST BE CONSTRUED with reference to
the laws in force at the time of its enactment and taking effect. It did not and
was not intended to operate as a repeal of that provision of the political code pro-
viding for te regular meetings of the board of supervisors, until the board itself
should provide for the holding of such regular meetings. Such act superseded and
repealed the act of March 13, 1883. Id.
3. THE SAME LIQUOR ORDINANCE.-At the time of the passage of the ordinance in
question, the board of supervisors had authority to regulate the sale of spirituous
liquors by imposing a license thereon. Id.
1. COUNTY PHYSICIAN-DISCHARGE OF BY SUPERVISORS.-The board of supervisors of
Santa Cruz county may contract with a physician for his attendance upon the in-
digent sick of said county for the period of a year, and if the physician performs
the duties required of him by the contract, the supervisors have no power to dis-
charge him during the period embraced in it. Grindley v. Santa Cruz County.
Cal. 296.
CRIMINAL LAW AND PRACTICE-IN GENERAL.
1. APPEALS IN CRIMINAL CASES-ENLARGEMENT OF TIME TO FILE TRANSCRIPT.-The
provisions of section 531 of the civil code do not affect appeals in criminal cases.
State v. Bovee. Or. 553.
2. THE SAME.-Appeals in such cases, taken under chapter 22 of the criminal code,
during a term of the supreme court, may, in its discretion, be heard and determined
at the same time. Id.
3. THE SAME.-Any order enlarging the time within which the clerk of the circuit court
must prepare and transmit the transcript on appeal, in a criminal case, to the supreme
court, must be made by the court, or judge thereof, where the notice of appeal is
filed. Id.
4. STATEMENT AND SILENCE OF PRISONER.-The conduct, acts and statements of a
person accused of crime, are admissible in evidence against him; and such inferences
may be drawn from them as are warranted by the evidence considered in the light
of human experience. But an inference of guilt cannot be drawn from a statement
evincive of innocence, nor from silence where a person is not bound to speak; nor
from refusal to answer unauthorized questions touching the charge against him,
which, under the circumstances, called for no reply. If the officer making the arrest
asks him any questions touching the circumstances connected with the crime, the
prisoner has the right to be silent, or to assign the reason why he at that time de-
clines to enter into explanations. If he keeps silence, or refuses to answer "because
he does not know the law and had better say nothing," no inference from his silence
or refusal can be drawn against him. People v. Elster. Cal. 33.
5. THE SAME-INSTRUCTIONS CIRCUMSTANTIAL EVIDENCE.-Facts and circumstances
upon which instructions are predicated must be founded upon the evidence in the
If there be no evidence tending to prove them, it is error for the court to
assume them, or to so word instructions with reference to them as to leave it to the
jury to infer their existence. While, therefore, it would be proper in a case in
which there is any evidence tending to prove inculpatory facts and circumstances in
connection with the possession of property recently stolen, for the court to instruct
the jury that they would be justified in finding the defendant guilty of theft, it is
error to give such instruction, if there were no evidence to warrant the inference of
such circumstances. Id.
6. THE CREDIBILITY OF A WITNESS CANNOT BE IMPEACHED by evidence that he has
been arrested for a felony. Id.
7. PREVIOUS CONVICTION-ARRAIGNMENT.-After the repeal of section 1025 of the
penal code, a defendant charged with a previous conviction must be arraigned under
section 988 of such code. People v. Brooks. Cal. 53.
S. THE SAME ANSWER TO CHARGE OF CONVICTION.-Upon the arraignment of a de-
fendant charged with a felony and a previous conviction, although after the repeal
of section 1025 of the penal code, he cannot be asked whether he has suffered a
previous conviction; still, he may voluntarily answer that part of the indictment
charging him therewith. When he does so answer, admitting or denying the pre-
vious conviction, the court, under section 1158 of the penal code, when the convic-
tion is denied, must take the verdict of the jury on the issue of previous conviction,
and the jury must respond as required by such section. If the conviction is con-
fessed, there need be no verdict on the answer under the same section, and the
court can proceed on the verdict as to the other issues in the case, and pronounce
judgment on the verdict when it declares guilt, and the voluntary answer or con-
fession. Id.
9. A CONFESSION IS A PERSON'S DECLARATION of his agency or participation in a crime.
The term is restricted to acknowledgment of guilt. People v. Le Roy. Cal. 755.
10. STATEMENTS OF PRISONER-PROOF OF GUILT-VOLUNTARY ADMISSIONS.-State-
ments made by a prisoner not in themselves involving his guilt, are admissible in
evidence without preliminary proof that they were voluntarily made, althongh such
statements, when taken in connection with other facts, tend to prove his guilt. Id.
11. EVIDENCE-REFRESHING MEMORY-MEMORANDA.-A witness, in testifying to state-
ments made by a prisoner; may refresh his memory from written memoranda made
by him at the time the statements were made. Id.
12. SWEARING TO COMPLAINT.-The complaint charging a person with the commission
of a crime, may be sworn to before a justice of the peace. Id.
13. INFORMATION-NAME OF DEFENDANT INSERTION OF.-An information cannot be
set aside because the defendant is designated therein by different names. Upon the
discovery of his true name, the same may be inserted in the information. Id.
See ARREST AND BAIL; ASSAULT WITH DEADLY WEAPON; BILL OF EXCEPTIONS, 2;
BURGLARY; CONTEMPT, 2; EVIDENCE, 22, 23; FORGERY, 1; KIDNAPPING; LARCENY;
MURDER AND MANSLAUGHTER; PERJURY; PROSTITUTION.
CROSS-ACTIONS.
See JUDGMENT, 13.
CROSS-EXAMINATION.
See MURDER AND MANSLAUGHTER, 13
CUSTOM-HOUSE CERTIFICATE.
See CHINESE RESTRICTION ACT.
1. DAMAGES-EVIDENCE-ADMISSIONS-PLEADINGS.-Evidence of the damages suffered
by plaintiff, in an action for personal injuries, is admissible, notwithstanding the de-
fendant's counsel states in open court that the allegations of the complaint in respect
to damages are admitted by the answer, if such statement were not true. Payne
v. Kripp. Cal. 424.
2. BREACH OF CONTRACT-VALUE OF WORK-EVIDENCE-In an action for breach of
contract in refusing to allow the plaintiff to do the work contracted for, evidence of
the expense of doing such work in a manner materially different from the mode
provided by the contract, as a test of value, is immaterial. Biggerstaff v. Briggs.
Cal. 353.
See CONSPIRACY, 1; PATENTS AND PATENT RIGHTS, 4-8.
DEADLY WEAPON.
See ASSAULT WITH DEADLY WEAPON.
See ESTATES OF DECEASED PERSONS; EXECUTORS AND ADMINISTRATORS.
STATUTE OF LIMITATIONS- ROMISSORY NOTE.--The maker of a promissory
note, who falsely and fraudulently induces the holder thereof to surrender its pos-
session, for the purpose of preventing an action thereon, is liable for such deceit,
although the statute of limitations has run against the note at the time when such.
action is brought. Cockrill v. Hall. Cal. 166.
DECLARATION.
See EVIDENCE, 10, 12-16.
1. PUBLIC STREET-ADVERSE POSSESSION-DEDICATION.-Title to lands cannot be ac..
quired by adverse possession after the same have been dedicated as a public street..
City of Visalia v. Jacob. Cal. 408.
1. DEED DELIVERY-INTENT.-A conveyance does not take effect as a deed until
delivery with the intent that it shall so operate. Such intent is a question of fact,
to be determined from the circumstances of the transaction, and cannot always be
determined as a matter of law. Hibberd et al. v. Smith et al. Cal. 446.
2. THE SAME.-Delivery of a deed is not complete until the grantor has so dealt with
the instrument delivered as to lose all control over it. Whether he has so dealt.
with it depends upon the intent to be deduced from all the surrounding circum-
stances. Id.
3. THE SAME ASSENT OF GRANTEE. The assent of the grantee is necessary to the
delivery of a deed, whether such delivery is actual or constructive. Id.
4. DELIVERY TO THIRD PERSON-DEED-CONSENT OF GRANTEE-RELATION.-The de-
livery of a deed to a third person, not authorized by the grantee to receive it, and
without his knowledge, cannot operate to defeat the rights of creditors of the
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