The herald., 1896-10-25

complete answer to plainitiff's position.
Many authorities are quoted by the
court and examined In detail, after
which 1t concludes by saying: wet
the demurrer was properly sustained,
and the Judgment is affirmed.
A LOS ANGELES CASE
In the case of William N. Bradbury,
administrator. ETC.. appellant, VS.. Josiah
N. Davenport, ct al, respondents, the
court holds that the lower court erred
in sustaining the demurrer, and that
Judgment should be reversed, with leave
to the plaintiff to amend his complaint,
If so advised.
The case was appealed from Los An
geles from judgment rendered against
the plaintin upon demurrer 10 the COM
In January, 1891, Daniel Keniston ex-
ecuted a mortgage to the defendant up
on certain real estate, to secure the sum
of $4,000, payable in two years. Daven-
port claimed there was due for principal
and interest to March l, 1896, $3933.87.
On March 1, 1895, Remission, who was
very i'll, was induced to sign, according
to the complaint, an agreement with
Davenport and executed a deed to two
lots to the defendant. By the terms of
the agreement, upon payment of a sum
Of money. not expressed In the agree
ment, before July /, 1895, the mortgage
turned to Keniston.
But from the time Of the execution Of
the deed until July 9, 1895, when he died,
Remission was very Ill and for a large
part Of the time unconscious.
The deed above referred to was cloud
upon the title Of plaintiff, who was ap-
pointed administrator of Keniston's es-
tate. and suit was brought to have the
deed declared void.
TO RECOVER A LOAN.
In the suit Of e. Northrop, admins
traitor Of the estate of Matthias Thomp-
son. deceased, vs.. William Knott, the
court has affirmed the judgment Of the
Sacramento court appealed from.
The action was brought to recover from
the defendant $720S7. The complaint
contained two counts-the first for mon
ey loaned, and the second was for the
same amount alleged to have been de-
posted with the defendant for safe
keeping, to be repaid upon demand.
AN EXCESS OF LAW.
In the San Francisco case Of Mcmahon
vs.. Thomas ct al, upon appeal from the
judgment, no point was urged for re-
versal, and the Judgment and order de-
nying the motion for a new trial are
affirmed by the supreme court.
Upon the first trial of the case judg-
ment went to the defendants. Plaintiff
moved for new trial, which was grant
GU, duu lIOIu LudL OTUeF Tie ueleIudutS
appealed to the supreme court. The or
der being affirmed, the case went back
for a new trial, with the result that
plaintiff got verdict, upon which judg-
ment was entered. Then defendants
moved for new trial and were denied,
and from that ruling the present ap-
peal was taken.
FOR DAMAGED FRUIT.
In the case of the Colfax Mountain
v1Ny
company, the court reverses the judg-
ment of the trial court at Sacramento
and remands the cause for q new trial,
The facts in the case were as follows:
On October "a, 1890, the defendants re-
ceived from the plaintiff at Colfax a
carload of fruit for transportation, ac-
cording to the terms of a written con-
tract called shipping order," signed
by plaintiff, consigned per passenger
service to New York. The defendant
transported the car to Ogden and then
company, the next carrier, with request
delivered 1t to the Union Pacific Railway
that it be forwarded.
The carload of fruit was delayed en-
route, and the fruit. being damaged, was
sold at a loss.
THE LONG BEACH AVENUE
The supreme court has affirmed the
judgment Of the lower court in the suit
of James G. Dunn, plaintiff and appel
liant, VS.. the Long Beach Land and
Water company. the Long Beach De-
velopment company and the City of
Long Beach, defendants and respond
ents.
demurrer to the complaint was sus-
tained in the court below, and judgment
entered for defendants; and plaintiff
appealed from the judgment
The subject matter of the action was
certain premises, constituting street
q Qrly T1A
pose of the action was to enjoin the
defendants. from making any claim to
said premises under Judgment of the
superior court entered March TO- 1889.
The plaintiff brought suit as a prop
erty owner and taxpayer in Long Beach.
In 1882 j. and c. Bixby and T. Flint,
being owners of tract of land in which
Ocean Park avenue is situated, had the
same staked off, and caused a map to
be made and recorded showing the tract
subdivided into lots, blocks, ETC., the
said Ocean Park avenue being includ-
ed. 1t was averred that in 1883 the Long
Beach Land and Water company, with
out title, asserted claim to the avenue,
and that the board of trustees entered
into conspiracy with the water COM
pany to acquire the portion of land that
had been dedicated.
The court says, in concluding the opin-
ion: "As the matter now stands, the
city and the public have the lands and
ways granted by the water company
at the time Of the alleged compromise,
and also have ever since enjoyed and
now enjoy the uninterrupted use of
Ocean Park avenue. AS long as the
present circumstances continue any al
legged rights which respondents in the
future might undertake to enforce
would not be strengthened, but would
rather be weakened. by the lapse of
time"