The record-union., 1899-01-18
SUPREME COURT DECISIONS.
SYLLABI,
IS. F., No. 1,342 = Department Two
EIlod nooona har 10 1909

SYLLABI.
IS. F., No. 1872 = Department Two
Filed December 10, 1889
Alfred Clarke, administrator, etc., ap-
pellant; Police Life and Health Insur-
ance Board, respondent. Mandate. At
firnled.
The Act Of April i, 1873 (Stats. 1877
IS, p. -S79), which provided for police
life and health insurance fund, was re-
pealed by implication by the Act of
March, 1889. The later Act effected a
merger Of the insurance fund created
BY the later Act Nor does the later
Act violate the Constitution Of the
United States. See Pennie VS.. Refs, &c
Cal, 226; also Clarke VS. Refs, 81 Cal,
543.
Is. F., No. 7S9-Department Two-Filed
December %, 1889
Corbett ct al, respondents; A. c.
Widber, treasurer, etc, appellant. Man
date to compel return of excess taxes
under Sections 3640, 3714, $500, 1880 of
the Political Code. Affirmed.
Excess moneys received by the City
and County Treasurer for taxes over
and above what is legally due are no
part of the moneys of the city and
county. and, if the aggregate of them
be denominated a fund, it is in no
sense a public fund of the city and
county. AS to these moneys the Treas
urer is but bailee, holding them sub
ject to the demand of the rightful own
ers. The revenue laws expressly declare
that these moneys shall not be appor-
toned to the State but shall be held
in the Treasury and repaid to the right
full owner upon his demand. Moneys SO
held constitute no part of the public
funds.
A demand upon the Treasury for the
repayment of moneys so held is not a
demand upon the Treasury" or a de-
mand upon any public fund" in the
Treasury, within the meaning of the
Consolidation Act. Therefore, such
demand need not be presented to the
City and County Auditor and allowed
by him before being paid by the Treas
urer
While the right to urge counter
claim or insist upon a set-off is as
available to municipal corporation as
it is to natural person, that right
must be invoked before the judicial de-
partment Of the State.
Is. F., No. 742 Department Two
Filed December 21, 1889
Carl Bernheim and John Lerbrandt,
respondents; NJ. Cert, appellant. Fore
closure. Affirmed.
Courts of equity are ever ready to re-
lieve from sales made upon their de-
or aes where there has been irregularity
in the proceedings, provided that ap-
plication be made to them in the suits
in which such DEGREES are entered,
within a reasonable time, and the relief
sought will not operate to the prejudice
of the just rights of others. The aid
of Section 473, C. c. P, may be in
voked by one in whose favor the judg-
ment was rendered, even though he
was present at the trial.
(Csim., No. 462 = Department One
Filed January 6. 1899
People respondent; Lon Yeck ct al,
appellants Robbery. Affirmed.
An instruction given at the request
of the defendant cannot be objected to
on appeal on the ground that it does
not contain a sound declaration of law
Where the evidence upon material
issues is substantially conflicting, the
verdict of the jury as to these will not
be disturbed upon appeal.
(Sac., No. 39S-In Bank-Filed jan
uary z, 1899
Harry T. G. Trumpler ct al, appel
lants; Barbara, Grant, F1pra and Cath
crime Trumpler, respondents. Parti-
ton. Judgment of appellate court here
tofore given set aside and remittitur
recalled.
The general rule that the Supreme
Court cannot exercise any jurisdiction
over case in which a remittitur has
been issued by its order and filed in
the court below rests upon the sup
position that all of the proceedings
have been regular and that no fraud or
imposition has been practiced upon the
court or the opposite party; for, if it
appears that such has been the case
the Appellate Court will assert its
Jurisdiction ard recall the case.
Is. F., No. $50 Department Two
Filled January ~, 1899
Estate of Greengrove Dudley, de-
ceased; Serena G. Hicks, administra-
trix, appellant; Flora NJ. Varian, adj
ministratrix, respondent. : Accounting
Affirmed.
The allowance of administrator COM
missions and attorneys fees is mat
ter largely within the discretion of the
court, and the courts action will not
be disturbed on appeal except where 1t
appears that that discretion has been
grossly abused.
An administrator has the right to
have the court determine in the first
instance what amount shall be allowed
his attorney. See Pennie vs.. Roach. "a
CAL, 515.
Is. F., No. Department Two-Filed
8, January. II, 1S99.)
John c. Wilson, appellant; 0. L.
Henderson ct al, respondents. Re-
versed.
A person who is neither partner nor
a quasi partner is liable on the gem
eral principles OF agency for acts done
by others with his authority, express or
implied. IT, therefore, directors, mem
bers of committees, manasers of clubs,
or any other persons not in partnership
pass resolutions that work shall be done
or goods supplied, they authorize what
ever may be done in pursuance of such
resolutions, and they are the persons
naturally looked to and prima fac;e
liable to pay for what may be done.
The question in these cases is simply
one of agency, and the question of part
nership or no partnership is immaterial.
An order of court is not an agree
ment between parties. The powers of
the assignee in insolvency are express
ly defined by the Insolven. Act, and
the power of continuing the business
of the insolvent is not included among