general law and attempts to create an exception, the exception is not repugnant to the general law, or, if it be, it is only to the extent of the exception, p. 420.

Cited and applied in Capron v. Hitchcock, 98 Cal. 432.

40 Cal. 421-426. RAHM v. MINIS.

Insolvency. Where a plea of "discharge in insolvency" is omitted, a judgment rendered after such discharge is conclusive against the insolvent, p. 425.

Where a decree of foreclosure was rendered against an insolvent a few days after his discharge in insolvency, and he failed to ask the court to limit the recovery to the sale of the property under the foreclosure, the discharge will not prevent a recovery for any deficiency remaining after the sale: Leisure v. Kneeland, 2 Wash. 539; 26 Am. St. Rep. 889. Cited, also, in 23 Am. St. Rep. 112, note.

Idem. Where a judgment was entered against an insolvent after his discharge, if the insolvent could show that the judgment was taken against him through mistake, surprise, or excusable neglect, he might then set up his discharge as a defense, p. 426.

Allowable under section 473 of the Code of Civil Procedure: Tuttle v. Scott, 119 Cal. 589, 63 Am. St. Rep. 193.

Injunction. An injunction cannot be granted in a case where a party has a complete remedy at law, p. 426.

Cited in Richards v. Kirkpatrick, 53 Cal. 435, holding that an injunction would not lie where the party could obtain all the relief he was entitled to in an action of claim and delivery.

40 Cal. 426-428. EX PARTE AH CHA.

Habeas Corpus.-A judgment upon a conviction of misdemeanor, which punishes the defendant by imprisonment in the state prison, is absolutely void, and defendant will be discharged from custody on habeas corpus, p. 428.

Overruled in Ex parte Max, 44 Cal. 581, the court holding that mere questions of error cannot be inquired into under the writ of habeas corpus. Ex parte Max, supra, affirmed in Ex parte Turner, 75 Cal. 228. If the sentence of the lower court is illegal, the supreme court may modify the judgment and remit the case that the proper judgment may be imposed: Territory v. Conrad, 1 Dak. Ter. 355.

Assault-Verdict. The verdict of the jury in a trial for "assault to commit murder," which found the defendant guilty of an "assault to commit great bodily injury," imports that the defendant was guilty of a simple assault only, p. 427,

An indictment charging an assault with intent to do bodily harm

upon the person of another charges only a simple assault. People v. Martin, 47 Cal. 112. Battery, being the greater, includes assault, but assault does not include battery: People v. Helbing, 61 Cal. 622. Cited in Sullivan v. State, 44 Wis. 596.

Under an indictment for assault with intent to commit murder, a verdict is sufficient which found the defendants guilty of assault with a deadly weapon with intent to inflict bodily injury, p. 427.

Cited in People v. Cargleton, 44 Cal. 94, where it was held that an indictment for an assault with intent to do bodily injury to another may, in general terms, aver the assault to have been made with a deadly weapon; State v. Snider, 32 Wash. 307, since there is no such offense as assault with deadly weapon, words "with deadly weapon” in verdict are surplusage.

40 Cal. 428-432.

STONE v. BUMPUS. S. C. 46 Cal. 220.

Under an answer denying that the plaintiff is the owner of a certain mining claim, it is competent for the defendant to overcome plaintiff's evidence of title, by showing title in himself, p. 432.

Under an answer denying "each and every allegation" in the complaint, which alleged that the plaintiff was the owner of certain personal property, the defendant may prove title in himself: Staubach v. Rexford, 2 Mont. 566.

40 Cal. 434-439. MORGAN v. STEARNS.

Contract-Damages.-Mere nominal damages do not belong to a case where there is a willful breach of an agreement to convey land because the land has appreciated in value, p. 439.

Where one contracts to convey knowing that he has no title and cannot perform on his part, the damages may include reimbursement for improvements put upon the estate; Erickson v. Bennet, 39 Minn. 327.

40 Cal. 439-447. FELCH v. BEAUDRY. S. C. 47 Cal. 183.

Judgment on Pleadings. If the complaint be sufficient, and the answer expressly admits the material facts stated in the complaint, or leaves them undenied, or sets up new matter insufficient to debar or defeat the action, judgment may be rendered on the pleadings, p. 443.

This rule has become well established as shown by the following cases citing and applying it: Hemme v. Hays, 55 Cal. 339; Loveland v. Garner, 74 Cal. 300; San Francisco v. Staude, 92 Cal. 563; and Benham Connor, 113 Cal. 171. Referred to in Estate of Wooten, 56 Cal. 324, 325. Cited and applied in People v. Brown, 23 Colo. 430.

V.

Pleadings. A defense by a payee of a note that the plaintiff is not the lawful holder or owner of the instrument sued upon, when on its

face it runs to him, and which discloses no issuable fact to support it, is merely frivolous, p. 444.

Cited in important note on sham defenses, in 72 Am. Dec. 523.

Plea of Another Action Pending will not avail unless same person is plaintiff in both actions, p. 445.

Cited in Smith v. Smith, 134 Cal. 119, holding plea not maintainable under facts stated.

40 Cal. 447-456. SCHIERHOLD v. NORTH BEACH & MISSION RAILROAD COMPANY.

Contributory Negligence-Nonsuit.-Negligence is generally an interence from facts and circumstances which it is the province of the jury to find, and in an action for damages for injury caused by negligence, a nonsuit on the ground of contributory negligence should only be granted when, giving the plaintiff the benefit of all controverted questions, it is apparent to the court that a verdict in his favor must necessarily be set aside, pp. 453-454.

The general rule in California.-Negligence is not absolute or intrinsic, but always relates to some circumstance of time, place, or persons, and is generally a question for the jury: Jamison v. S. J. & S. C. R. Co., 55 Cal. 596. Negligence cannot be imputed to a passenger for not anticipating culpable negligence on the part of the carrier: Franklin v. Motor Road Co., 85 Cal. 70. If the evidence presented such a state of facts that the inference to be drawn therefrom might well lead to a difference of opinion between reasonable men, it is a proper question for a jury: Redington v. Pacific P. T. C. Co., 107 Cal. 325; 48 Am. St. Rep. 137. It is only where the undisputed facts are such as to leave but one reasonable inference, and that of negligence, that the court is justified in taking the question from the jury: Davis v. Pacific Power Co., 107 Cal. 575; 48 Am. St. Rep. 162. Rule applied where a child on the streets, unattended, was run over: Daly v. Hinz, 113 Cal. 369. Whether the conduct of a mother in permitting her child to be out of her sight for a period of fifteen minutes without satisfying herself of its whereabouts was a want of ordinary care is a fairly debatable question, which the jury are to determine: Fox v. Oakland Con. St. Ry., 118 Cal. 62, 63. Cited in West Chicago etc. Co. v. Liderman, 187 Ill. 472, 473, 79 Am. St. Rep. 231, quoting Fox v. Oakland etc. Co., 118 Cal. 55. Followed in Wall v. Helena St. Ry. Co., 12 Mont. 49, 50, and Solen v. V. & T. R. R. Co., 13 Nev. 148. Referred to in Nehrbas v. Central Pacific R. R. Co., 62 Cal. 336. See, also, important note, 55 Am. Dec. 669. The doctrine of imputable negligence is discussed and the leading case cited in Battishill v. Humphreys, 64 Mich. 504. Whether the negligence of the mother contributed to the injury is a question for the jury: Lynch v. Metropolitan Street Ry. Co., 112 Mo. 440. Lead

ing case followed in Bowers v. N. P. R. R. Co., 4 Utah, 225. See, also, 57 Am. Rep. 475, note.

General Citations.-Referred to in Air-Line Ry. Co. v. Gravitt, 93 Ga. 374, 44 Am. St. Rep. 149, as an illustration of a case applying the doctrine of imputable negligence.

40 Cal. 463-466. BATES v. RYBERG.

Executor-Appeal. The executor of an estate cannot maintain an appeal from a final order of distribution, upon the ground that the property was improperly divided between the legatees, pp. 465, 466. The rule of the leading case is well settled in this state as a general rule. Approved in Estate of Murphy, 145 Cal. 467, executrix cannot urge that petitioning legatees had forfeited rights to legacies because of alleged violation of will that if any one named therein should contest same he should take nothing under it. Followed in Estate of Wright, 49 Cal. 551. Cited in dissenting opinion of Myrick, J., in Rosenberg v. Frank, 58 Cal. 420. Followed in Estate of Maney, 65 Cal. 287, holding that a legatee, who is also an executor, cannot maintain a suit for his own benefit as legatee in the capacity of executor, and charge the expense of the suit to the estate. No appeal lies by an administrator from a decree of distribution where he has no interest as administrator in the matter sought to be reviewed: Merrifield v. Longmire, 66 Cal. 181. An administrator cannot propose cross-interrogatories to be annexed to a commission, issued at the request of one heir to take the depositions of witnesses in support of his claim: Roach v. Coffey, 73 Cal. 282. Attorney's fees for resisting the claim of an heir are not allowable: In re Jessup, 80 Cal. 626. Rule cited and applied in Goldtree v. Thompson, 83 Cal. 422; Jones v. Lamont, 118 Cal. 503, holding that an attorney, who is attorney for an administrator, may act for one of the heirs as against other heirs, in an adversary proceeding relating to the property of the estate; and In re Dewar's Estate, 10 Mont. 425. Rule Limited. The general rule does not admit of question, but it has its limitations. "Where an order or decree involves a construction of the proper exercise of the duties of the officer, wherever it presents a question of the right or power of the trustee to comply with it, wherever obedience to it might subject him to liability, the will does not operate: In re Welch, 106 Cal. 429, holding that an administrator may appeal from an order directing him to pay the arrearage of family allowance, and also from a decree of partial distribution. The executors may appeal from an order of the court requiring them, in pursuance of the will, to redeem certain land from a foreclosure sale: In re Heydenfeldt, 117 Cal. 552, 554, where it was said that the rule of the leading case had been carelessly applied. The leading case was distinguished in Nichols v. Reyburn, 55 Mo. App. 6. An executor cannot prosecute an appeal from a final order of distribution where he is not

pecuniarily affected by such order: Merrick v. Kennedy, 46 Neb. 269. Where an executor is fully protected by the decree of distribution he cannot appeal: Schlegel v. Sisson, 8 S. Dak. 478.

40 Cal. 471-474. TAYLOR v. UNDERHILL.

Tide Lands. A certificate of purchase from the state of land, as swamp and overflowed land, over which the tide ebbs and flows, is void, p. 473.

A sand beach between ordinary high and low water mark could not be converted into private ownership: Kimball v. Macpherson, 46 Cal. 107. Sale of tide lands validated under the curative act of March 27, 1872: Upham v. Hosking, 62 Cal. 258.

Patent for Land.-A court of equity will not restrain the issuance of a patent for land, where such patent would not be a cloud on plaintiff's title, p. 473.

A sale under a judgment for the foreclosure of a lien would not create a cloud upon the title of one owning the fee and in actual possession of the land, but not a party to the judgment, and equity will not enjoin the sale at his instance: Archbishop of S. F. v. Shipman, 69 Cal. 591. An application to purchase accretions as swamp and overflowed land is a mere nullity, and casts no cloud on the title of the riparian owner: Minto v. Delaney, 7 Oreg. 345.

State can Sell Land Below High-water Mark and authorize purchaser to extend waterfront so as to enable him to build upon this land, p. 473.

Referred to in Oakland v. Oakland Water Front Co., 118 Cal. 185, where it was held that the state has full power to alienate lands covered by the daily flux and reflux of the tides, subject only to the right of navigation and fishery, especially where of advantage to navigation and commerce. The state may dispose of its tide lands free from any easement of the upland owner: Pacific Gas Imp. Co. v. Ellert, 64 Fed. Rep. 434.

Approved in United States v. Mission Rock Co., 189 U. S. 406, California may convey title to tide lands, surrounding Mission Rock in San Francisco bay free from any easement appurtenant thereto.

Accretion. A party as riparian owner cannot be protected as to accretions to his land not yet in existence, pp. 473, 474.

The right of a riparian owner to future accretions is not a vested right: Eisenbach v. Hatfield, 2 Wash. 250. Referred to in the dissenting opinion of Stiles, J., in the same case, 2 Wash. 260.

40 Cal. 474-479. ROBINSON v. HAAS.

Sale of Personal Property passes to purchaser only such title as vendor has, p. 479.