The record-union., 1899-06-26
SUPREME COURT DECISIONS.
SYLLABI.


(S F., No 1130-Departmen One
Filed June 20, 1889
E. v. Scheerer. appellant; James w
Goodwin ct al, respondents. Injunc-
ton against execution of writ of resti-
tuition. Affirmed.
Prima facie all who come into posses
sion of the land, pending the action to
recover possession, must go out under
the writ of possession if the plaintiff re-
covers, the presumption being that they
came in under the defendant. Nor is
this presumption overthrow by show
ing that they came in under a stranger
to the action, unless they also show
that such stranger was in possession
at or prior to the commencement of the
action, or was entitled to the posses
sion by virtue of title adverse to that
of the plaintiff in the action, which the
court would be authorized to protect
against the enforcement of the judg-
ment. Upon the issue of their right to
remain in possession the burden is upon
them to show affirmatively that their
possession is rightful and under a title
that has not been determined in the ac-
ton, and that such possession was not
taken by collision with the defendants
in the judgment.
Instructions given to jury whose
verdict is merely advisory to the court
are not the subject of an exception.
IS. F.. No. 1,056-Department One
Filed June p, 1899
Thomas Roche, respondent; Reding
ton & Co., appellants. Action for per-
sonai injury. Affirmed
In actions for ia ma ooc while fhp yer.
dict of the jury is subject to review by
the Appellate Court, it will not be dis
turbed merely upon the ground that the
damages, are excessive, nor because the.
opinion of the court differs from that
of the jury, but only where it appears
that the excess has been given under
the influence of passion or prejudice.
Lee VS.. s. P. r. r. Co., 1O1 Cal. lis.
(Sac., No. 516-Department One-Filed
June %, 1899
Alfred Davis, appellant; G.. A. Post,
Auditor, ETC., respondent Mandate. At
firmed.
Section 1876 of the County Government
Act of 1893, providing for the payment
of Road Commissioners, is free from
constitutional objection. Being a later
eApIeSSlOu VI NSlSIdt1Ve VIII tIldIL 0cc-
ton 2,641 of the Political Code as
amended in 1893, with which it is in
consistent, the section of the County
Government Act must prevail.
Is. F.. No 1,41S-Department Two
Filed June 81, 1899
Raymond Riego, assignee, etc, re-
spondent; Samuel Foster ct al, appel
lants- Recovery of property alleged to
have been Illegally assigned by insol-
vents Affirmed.
Section p of the Insolvent Act ex-
pressly provides that in suits prose-
cuted or defended by the assignee, a
certified copy of the assignment made
to him shall be conclusive evidence of
his authority to sue or defend.
# on petition and other proceedings
regular in form a decree in bankruptcy
is made and an assignee in bankruptcy
is appointed in way regular on its
face, the decree of bankruptcy, though
it be decree pro confesso, cannot, in a
suit by the assignee to recover from a
preferred creditor the property trans
ferred, be attacked on the ground that
the party petitioning had released his
debt, was no creditor, that his petition
was accordingly fraudulent and that
the decree based on it was void.
If the provisions of the Insolvent Act
are violated the transfer IS void, and
this is true regardless Of any question