should be the full measure of his right to enforce proof of assignment, or to question its validity. In our opinion the court was warranted in finding that the note had been assigned and that plaintiff was the owner and holder thereof. The judgment and order are affirmed. We concur: SHAW, J.; TAGGART, J. PAINE et al. v. WARD et al. (Civ. 627.) (Court of Appeal, First District, California. Sept. 22, 1909.) 1. HIGHWAYS (§ 184*)-PERSONAL INJURIESACTIONS EVIDENCE. Evidence held to support a finding that defendant negligently permitted his team to run away, and thereby injure plaintiff. [Ed. Note.-For other cases, see Highways, Cent. Dig. § 472; Dec. Dig. § 184.*] 2. APPEAL AND ERROR (§ 1011*)-FINDINGSCONCLUSIVENESS. A finding on conflicting evidence will not be disturbed. [Ed. Note. For other cases, see Appeal and Error, Cent. Dig. §§ 3983-3989; Dec. Dig. § 1011.*] 3. HIGHWAYS (§ 184*)-PERSONAL INJURIESCONTRIBUTORY NEGLIGENCE EVIDENCE. Evidence held to justify a finding that one injured by the runaway team of another was not guilty of contributory negligence. [Ed. Note. For other cases, see Highways, Cent. Dig. § 472; Dec. Dig. § 184.*] Appeal from Superior Court, Santa Clara County; John E. Richards, Judge. Action by Catherine Paine and another against A. B. Ward and others, a copartnership. From an order denying a motion for new trial after judgment for plaintiffs, defendants appeal. Affirmed. E. D. Crawford and B. A. Herrington, for appellants. A. A. Caldwell and E. M. Rea, for respondents. KERRIGAN, J. This is an action to recover damages for personal injuries alleged to have been caused by the negligence of the defendants. The case was tried without a jury, and a judgment was entered in favor of the plaintiffs. The appeal is from an order denying defendants' motion for a new trial. ing driving a horse and buggy, and he held the gate open until they had passed into the Cullen ranch. After passing through the gate, the plaintiffs drove around the team, and, when they got into the road and about 40 feet ahead of the team, the latter ran away and collided with or jumped into the rear of their buggy, resulting in the injuries complained of. Defendants contend that the findings are not supported by the evidence. The court found: That defendants' "said servant negligently and carelessly left said team of horses, hitched to said wagon, standing about 20 feet from the gate or entrance to the Cullen ranch * without fastening the reins or setting the brake upon said wagon, said horses being unattended by any perteam was left in that unsafe condition said son or persons and untied." That while the employé "carelessly and negligently" did "slam shut violently and with great force the gate to said entrance, thereby creating a great and sudden noise," which noise "com bined with other causes * * * caused said team of horses to take fright" and run away. Defendants' contention that the evidence is insufficient to support this finding is untenable. One witness testified that this was a restless and nervous team, and that it had acted in a fractious manner before. It was undisputed that the employé in charge of the team on the day of the accident had been driving it for a period of three months. One of the plaintiffs, W. A. Paine, said in his testimony that it is the custom of teamsters to set brakes, back the team, and twist the lines securely around the seat of the wagon or the brake before getting down to open or close a gate, whether the team is gentle or not; that on this occasion, in driving by the standing team, he glanced down and noticed the reins of the team upon the ground; that, when the team was stopped, the lines were dragging upon the ground, and the brake upon the wagon was not set; and that the team and wagon were unattended while the driver thereof was holding open the gate. Both plaintiffs testified that just as they turned into the road ahead of the team, and while the team was still unattended, the gate slammed, making a loud noise, and that the team almost immediately started and came up behind them so rapidly that it was impossible to avoid the accident. On the other hand, defendants introduced testimony to the effect that the brake on the wagon was set and the reins fastened, that the gate was held open by their driver at the request of plaintiffs, and that they in passing the team drove so close to it as to touch with their buggy the stomach of one of the horses, which caused the team to run At the time of the accident the plaintiffs were employed on the Cullen ranch, near the town of Gilroy, as teamster and cook, respectively, and the defendants, who were in the wood business, were cutting and hauling wood from the same ranch. At that time an employé of the defendants, having in charge the defendants' team attached to a wagon, had passed from the public road into the Cullen property, and, after doing so, had left the team and wagon standing unattended while he stepped back to close a gate through which he had just passed. At this moment he noticed the plaintiffs approach- away. The effect of all this evidence was to present a question of fact to the trial court. The court accepted the version of the accident which showed negligence on the part of defendants' employé, and under the well-established rule in cases of conflict in the evidence this court will not disturb the conclusion of the trial court. Appellants also claim that the finding that plaintiffs were not guilty of contributory negligence is contrary to the evidence. W. A. Paine testified that as he approached the gate he "yelled to the man standing there to go on" as "the team coming behind would close the gate"; that "I told him several times to drive on, but he would not do so, and motioned to us to go on through the gate. We drove no closer at any time to the team than 30 or 40 feet. I saw the reins on the ground just as my wife turned into the road ahead of the team, and I had not noticed them before." IIis wife testified: "I naturally supposed the driver of the team had set his brake and fastened his reins. If he had done so, the accident would not have happened. I did not see the reins upon the ground and did not see the brake." Neither of these witnesses, according to their testimony, knew the horses nor had ever seen them before. They were familiar with the custom of teamsters, and therefore supposed that the brakes were set and the lines securely fastened. If the testimony in the case disclosed that the plaintiffs knew that the team in question was naturally nervous and restless, that the brakes were not set, and the lines lying on the ground, the court might have found that the plaintiffs were guilty of contributory negligence in driving ahead of the unattended team, but their evidence shows that they did not know those facts, except that one of the plaintiffs in passing the team saw the lines on the ground, but it may be inferred that this was at a time too late to change the course of the buggy and avert the accident. Neither of them could anticipate the slamming of the gate, without which act the team would probably not have run away. We think the finding of the court on this branch of the case is also amply sustained by the evidence. The order appealed from is affirmed. We concur: COOPER, P. J.; HALL, J. BEALL, Road Com'r, v. WEIR. (Civ. 620.) (Court of Appeal, First District, California. Sept. 23, 1909.) BOUNDARIES (§ 3*)-CONVEYANCE ACCORDING TO SECTION LINE MARKED BY STAKES. The owner of two sections, after having the east and west section line between them surveyed, and stakes set showing such line, conveyed a strip for a highway 60 feet wide, 30 feet wide off the south side of the north section, and 30 feet wide off the north side of the south section. The county entered on the strip and used it as a highway, though not to its entire width; and the owner of the sections platted the remainder of the north section, each on the basis of the deed for the road having conveyed a strip 30 feet wide each side of the section line as marked by the surveyor with stakes. Held that, the conveyance being made with reference to the stakes as showing the section line, the county could not be disturbed in its possession by defendant, who bought one of the south platted lots, knowing his south boundary was located with reference to the conveyance to the county being in accordance with the stakes, showing that the true section line was farther south. [Ed. Note.-For other cases, see Boundaries, Cent. Dig. §§ 14-19; Dec. Dig. § 3.*] Appeal from Superior Court, Fresno County; H. Z. Austin, Judge. Action by George W. Beall, Road Commissioner of Supervisor District No. 2, Fresno county, against W. J. Weir. Judgment for plaintiff, and defendant appeals. Affirmed. E. A. Williams, for appellant. Denver S. Church and Manson F. McCormick, for respondent. COOPER, P. J. This action was brought by the plaintiff as road commissioner for the purpose of abating a certain post and wire fence alleged to have been erected and maintained by the defendant on a public highway in Fresno county. The defendant admitted that he constructed and maintained the fence, but claimed that such fence was not upon a highway, but upon his own land. Upon the issue thus made the court found in favor of plaintiff, and ordered the fence abated as a public nuisance, and judgment was accordingly entered. Defendant prosecutes this appeal from the judgment and from the order denying his motion for a new trial. Defendant, no doubt in good faith, believed that he owned the land upon which he erected the fence. His counsel states in his brief that "the only issue in the case is the location of the section line between sections 23 and 26 in township 13, S. R. 21." After carefully examining the record, we are of the opinion that the issue in the case is as to the correct location of the boundaries upon the face of the earth according to the calls of a deed made by the then owner of the land to the county of Fresno for a right of way for a public highway, and whether or not the place where the fence was erected is within the exterior calls of said deed. On June 29, 1888, one Eggers was the owner of said sections 23 and 26, and while so the owner he conveyed by deed to the county of Fresno a strip of land 60 feet wide, being 30 feet on each side of the section line between sections 23 and 26, and extending east and west across the entire section; or, in other words, he conveyed a strip of bring the line of Wier's place in the neighborhood of 13 or 14 feet below the place where his first row of vines is." In other words, by the resurvey made by Manuel in 1905, disregarding the stakes he originally set in the ground so as to designate the lines, he made the south line of defendant's lot about 13 to 14 feet farther south than the line was made by the Eggers map, thus taking 13 or 14 feet, a portion of the highway as located by Eggers at the time he conveyed to the county. It is not necessary to decide as to whether or not the last survey made by Manuel is the correct one. When Eggers conveyed to the county, he owned the entire tract through which the right of way was granted, and the reference in the deed to the section line separating sections 23 and 26 was made with reference to the line as he had located it by his own surveyor. It conveyed the strip of land precisely as if the description had commenced at one of the stakes at the section corner and gone around the entire 60 feet, closing at the same stake. Eggers so understood it when he made the deed. He continued to so understand and construe it when he had the section surveyed and platted and defendant knew his said boundary as located by the Eggers colony map when he purchased. Defendant still owns undisturbed all the land described in lot 32 of the Eggers colony. He may not disturb the county in its ownership of all that Eggers had conveyed to it prior to the time defendant came upon the scene. This construction leaves each grantee undisturbed as to the lands described in the conveyance under which they respectively took. land 30 feet wide off the south side of sec-1 feet between the sections so "that would tion 23 and a strip of land 30 feet wide off the north side of section 26. Prior to the time Eggers made the deed to the county of the right of way the section lines in the township had been located or had been attempted to be located by one Manuel, by surveys made by said Manuel, who drove redwood stakes down in the ground to mark the section corners at the east and at the west end of what was believed to be the true section line dividing said sections 26 and 23. The people in the township, so far as appears, were governed by the surrey so made by Manuel and the corners as fixed by him. The surveyor of the county, McKay, made a survey in 1898 along the east line of said section 23, and found the redwood post at the southeast corner which had been placed there by Manuel in making his original survey prior to the time Eggers deeded to the county. In 1890 Eggers had all of section 23 surveyed and platted by a surveyor named Tielman, who subdivided the section into lots numbered from 24 to 59, inclusive, which survey was called the plat of the Eggers colony. In making this survey the surveyor found all the original redwood stakes as set by Manuel, and which were in the ground at the time Eggers made the deed to the county. This plat located the south boundary of the south tier of lots of said section 23 the same as the northerly line of the 60 feet right of way as fixed with reference to the stakes originally set by Manuel. Eggers, in having the survey and plats made of the Eggers colony, treated the deed to the county as fixed and located by said stakes so originally set. This survey and plat was filed for record by Eggers. The defendant afterwards (but at what time does not appear) became the owner of lot 32 of the property so platted for Eggers. It does, however, appear that defendant knew of the stake at the southeast corner of the section and of the south boundary of his lot, which did not include the place where he built the fence which is here claimed to be a nuisance. Defendant purchased with full knowledge of the construction which had been placed upon the deed by Eggers when he conveyed to the county and with full knowledge as to the south boundary of lot 32 as fixed by the Eggers map. The county accepted the deed and the public traveled the road as a highway after the conveyance was made to it. A furrow was at first run so as to mark the line of the road, but the road was not completely graded until 1905. During the year 1905, at the request of defendant, about 20 years after the first survey had been made, Manuel resurveyed the township. In making this resurvey Manuel states that, by measuring the township north and south between the township line and the line between sections 23 and 26, he found an overplus of 39 When land has once been conveyed with reference to stakes and monuments which were fixed and in place at the time of such conveyance, the conveyance cannot be afterwards defeated by a new survey which shows that the stakes and monuments as originally set were not as a matter of fact in their true places. A contrary rule would upset titles and make all conveyances more or less uncertain. It is always the endeavor of courts to ascertain the intention of the parties in applying the description contained in a deed to the monuments referred to therein so as to locate the land in accordance with the intention of the parties. The construction we have given the deed to the county is in accord with the rule as laid down time and time again by the Supreme Court. In Helm v. Wilson, 76 Cal. 476, 18 Pac. 604, the deed described the land as being in the southeast instead of southwest quarter of a certain section; but the court held that, if the land intended to be conveyed could be identified by monuments actually fixed upon the ground, the mistake as to the subdivision in which the land was really located PETERSON V. NESBITT. (Civ. 637.) (Court of Appeal, First District, California. Sept. 25, 1909.) ARREST (§ 28*)-IN CIVIL ACTION-AFFIDAVIT FOR ARREST. It does not appear from an affidavit for arrest in a civil action that a sufficient cause of action exists necessary under Code Civ. Proc. § 481, to give the court jurisdiction to make the order of arrest, the affidavit stating that "a good and sufficient cause of action exists as fully appears from the verified complaint *** as follows"; this being but the statement of affiant's opinion, and not being an oath to the truth of the matters in the complaint. * [Ed. Note. For other cases, see Arrest, Cent. Dig. §§ 56-63, 72; Dec. Dig. § 28.*] Appeal from Superior Court, Monterey County; John E. Richards, Judge. 140 Cal. 168, 73 Pac. 828, it was held that the boundaries of city lots as originally located on the surface of the earth must govern, and a line shown by monuments as platted by the city authorities, and acquiesced in for many years, must control courses and distances, and cannot be overturned by measurements afterwards made by a surveyor. We repeat what was there said: "The testimony of surveyors on the part of defendants was sharply in conflict with the above as to the division line by a survey by courses and distances. The defendants' surveyors took the monumental line of Green street as they located it. They found an original line monument at a point on Union street near Hyde, thence from the line of Union street across the block to Green street, a distance of 275 feet, thence 68 feet across Green street, and thence 68 feet and 9 inches to the line of defendant's lot. These surveys may have been correct by courses and distances, but in the course of 30 or 40 years a change in the position of the monuments on the surface of the earth might pellant. Daugherty & Lacey, for respondent. easily cause a variation of 4 or 5 inches. The lines as originally located must govern in such cases. The survey as made in the field and the lines as actually run on the surface of the earth at the time the blocks were surveyed and the plats filed must control. The parties who own the property have a right to rely on such lines and monuments. They must when established control courses and distances. A line, as shown by monuments and as platted by the city authorities, and as acquiesced in for many years, cannot be overturned by measurements alone." See, further, Penry v. Richards, 52 Cal. 496; Bullard v. Kempff, 119 Cal. 9, 50 Pac. 780; Diehl v. Zanger, 39 Mich. 601. There is no merit in the suggestion that the county only used the central portion of the right of way, and did not accept the right of way for the full width of the 60 right of way for the full width of the 60 feet, because it did not use all of the 60 feet up to the south boundary of defendant's land. The county accepted the right of way by entry upon and using the same as a public highway and expending public moneys thereon. Its acceptance was as broad as the grant, although it did not use the entire width of the right of way. The question is entirely different from the construction given to the width of a right of way where the right of way is claimed entirely by prescription or user. In such case the public cannot claim a constructive dedication or a constructive title to land which in fact was never used or traveled over by the public. There is no merit in any of the other contentions of defendant. The judgment and order are affirmed. We concur: HALL, J.; KERRIGAN, J. Action by Josephine Peterson, administratrix of Michel Cartier, deceased, against W. J. Nesbitt. Judgment for defendant. Plaintiff appeals. Affirmed. J. H. Andresen and W. S. White, for ap HALL, J. Plaintiff brought this action against the defendant, who is the sheriff of Monterey county, to recover damages for alwho had been arrested upon mesne process lowing the escape of one Marcelin Cartier, in a civil action, brought by this plaintiff against said Marcelin Cartier. At the trial plaintiff offered in evidence the affidavit up on which the order of arrest had been made, refused to admit it in evidence, and as a but upon objection of defendant the court result plaintiff was unable to prove her case, and at the close of her testimony the court granted defendant's motion for a nonsuit. The appeal is from the judgment of nonsuit entered in accordance with this order. to whether or not the court erred in sustainThe only question to be determined is as to whether or not the court erred in sustaining defendant's objection to the introduction of the affidavit for the order of arrest. The of the affidavit for the order of arrest. The correctness of the ruling of the court depends upon whether or not the affidavit upon which the order of arrest was based was sufficient to invest the court with jurisdiction to make the order. The statute (section 481, Code Civ. Proc.) provides that "the order may be made whenever it appears to the judge, by the affidavit of the plaintiff, or some other person, that a sufficient cause of action exists, and that the case is one of those mentioned in section four hundred and seventy-nine. The affidavit must be either positive, or upon information and belief; and when upon information and belief, it must state the facts upon which the information and belief are founded." Several objections are urged as to the sufficiency of the affidavit, the first of which is that it does not appear from the affidavit that a sufficient cause of action existed. In PACIFIC PAVING CO. v. VERSO et al. (Civ. 242.) this regard the affidavit, which was made by the attorney for the plaintiff in the original actions, states "that a good and sufficient cause of action exists in favor of the said plaintiff and against the defendant in said action for the sum of $2,705 for the 1. APPEAL AND ERROR (§ 384*)-BONDS-SUF wrongful conversion of certain property belonging to the estate of Michel Cartier, deceased, as fully appears from the verified complaint on file herein, which said complaint is in words and figures as follows, to wit:" Then follows a copy of such complaint. This is but the statement of the opinion of the affiant that the complaint states a good and sufficient cause of action. It is not a statement of the affiant that the matters set forth in the complaint are true. We apprehend that no prosecution for perjury would lie against the affiant predicated upon the falsity of any of the matters set forth in the complaint. The affidavit in question differs radically from the affidavits held sufficient in Ligare v. Cal. S. R. R. Co., 76 Cal. 610, 18 Pac. 777, and Ex parte Howitz, 2 Cal. App. 753, 84 Pac. 229, where the affiant made oath to the truth of the facts stated in the document referred to. In the Howitz Case the complaint was annexed to and made a part of the affidavit, and the affiant averred "that the allegations contained therein are true." In Ligare v. Cal. S. R. R. Co., the affidavit referred to the complaint on file, and made it a part and portion of the affidavit. The language was such that the court held that "the oath to the affidavit is an oath to the truth of the document referred to." That cannot be justly said of the language of the affidavit in this case. Though the complaint is set forth in the affidavit, the affiant does not make oath to the truth of any matter contained therein. It certainly is not sufficient for the affiant to state in general terms that a good and sufficient (Court of Appeal, First District, California. Sept. 29, 1909.) FICIENCY. not identify the particular appeal which it was Where the recitals in an appeal bond do intended to perfect, the bond is totally void, not merely insufficient, but where a bond on appeal from a judgment properly refers to the judg and shows that it was a judgment from which ment appealed from, so as to fully identify it, an appeal could only be properly taken to the court of appeal, it was not void because it recites by mistake that the appeal was to be taken to the Supreme Court, especially in view of Const. art. 6, § 4, providing for a transfer of the appeal to the proper court. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 2049, 2050; Dec. Dig. § 384.*] 2. APPEAL AND ERROR (§ 391*)-BONDS-SUFFICIENCY. It is no objection to the sufficiency of an appeal where a good bond has been filed and approved that the sureties on a former bond would Proc. § 954, providing that no appeal can be disnot be liable; the very purpose of Code Civ. missed for insufficiency of the undertaking thereon, if a sufficient undertaking be filed and approved before hearing upon motion to dismiss, being to allow a sufficient bond to be given to supply the defects of an insufficient one. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. § 2077; Dec. Dig. § 391.*] 3. CONSTITUTIONAL LAW (§ 50*)—LEGISLATIVE POWER-APPEAL BONDS. The entire law relating to the giving of appeal bonds being statutory, the Legislature may regulate the matter at its will. [Ed. Note.-For other cases, see Constitutional Law, Cent. Dig. § 48; Dec. Dig. § 50.*] Appeal from Superior Court, City and County of San Francisco; Frank J. Murasky, Judge. Action by the Pacific Paving Company against Peter Verso and others. Judgment for defendants, and plaintiff appeals. On motion to dismiss. Denied. W. J. Bartnett and R. K. Barrows, for appellant. Alexander D. Keyes, for respond ents. cause of action exists. This is a matter for the judge to determine, and the facts constituting the cause of action must be set forth and sworn to, either positively or upon information and belief. If sworn to upon information and belief, the facts upon HALL, J. Respondents have made a mowhich the information and belief are found- tion to dismiss the appeal in this case uped must be stated. The jurisdiction to issue on the ground that the appeal bond filed an order of arrest in a civil suit rests upon upon taking the appeal is so defective as the affidavit. Where the affidavit in an es- not to support the appeal. Two defects in sential particular fails to meet the require- the bond are pointed out by respondents, ments of the law, the court is without juris- one of which they concede is not fatal, and diction to issue the order for arrest. Ex may be corrected by the filing in this court parte Fkumoto, 120 Cal. 316, 52 Pac. 726; of a new bond under section 954 of the Neves v. Kosta, 5 Cal. App. 111, 89 Pac. 860. Code of Civil Procedure. Before the hearThe court did not err in sustaining the ing of this motion, a new bond was fiied and objection to the offer of the affidavit or in approved, which is sufficient in form and subgranting the motion for a nonsuit, and the stance to support the appeal, provided the judgment is affirmed. other defect in the original bond is not fatal to the appeal. The appeal is from a judg We concur: GAN, J. COOPER, P. J.; KERRI- ment, and the bond properly refers to the judgment appealed from so as to fully iden |