that the witness had not shown himself competent or qualified to answer it. The objection was properly overruled. The witness had testified that he knew the parties to the action, and the claims and ditches involved; that he was over the ditches in 1892, and had been at the mines of both plaintiffs and defendants; that he had resided in the vicinity for 12 or 13 years, and was a miner by occu pation, having been engaged mostly in hydraulic mining. This was a sufficient showing that the witness was qualified to give the opinion asked for. 6. The plaintiffs' witness Edward L. Shumway was asked on his direct examination what it would cost to clean out their lower ditch; that is, clean out the débris that is there now. The question was objected to upon the ground that plaintiffs had not shown that this débris was run into the ditch by any act of defendants, or that they were responsi ble therefor. The objection was overruled, and, as we think, properly. It was clearly shown that the débris which filled up the "lower ditch" came down from defendants' mine, and there was no pretense that it came from any other source. 7. The only other questions discussed by counsel relate to the sufficiency of the evidence to justify the findings, and the form of the judgment. It would subserve no useful purpose to state the evidence. It covers about 60 pages of the transcript, and is in some respects conflicting. A careful reading of it, however, shows that it is amply sufficient to justify each of the findings complained of. The judgment does not require any modification. It properly restrains the defendants from using any of the waters of the stream, except at such times and in such manner as they can do so without materially deteriorating the quality of the water for mining purposes on plaintiffs' claim. or diminishing the quantity of water flowing into plaintiffs' ditches to less than 1,000 inches, measured under a 4-inch pressure; and, so long as defendants comply with those conditions, plaintiffs will have nothing to complain of. The judgment and order appealed from should be affirmed. We concur: TEMPLE, C.; SEARLS, C. PER CURIAM. For the reasons given in the foregoing opinion, the judgment and order appealed from are affirmed. (104 Col. 254) O'ROURKE v. VENNEKOHL et al. (No. 15,542.) (Supreme Court of California. Sept. 29, 1894.) INSTRUCTIONS-CREDIBILITY OF WITNESS-NEW TRIAL-NEWLY-DISCOVERED EVIDEnce. 1. Where, on the question of the effect of a false statement by a witness, the court charges that "a witness false in one part of his testi mony is to be distrusted in others," a judg ment will not be reversed because of a refusal to present the question more in detail, though the instruction asked for would, if given, have been proper. 2. In an action for personal injuries the refusal to grant a new trial because of newlydiscovered evidence will not be disturbed on appeal where the new evidence is that of but one witness, who, like several who testified at the trial, witnessed the accident. Department 1. Appeal from superior court, San Francisco county; Charles W. Slack, Judge. Action by Margaret O'Rourke against Bernard Vennekohl and others for personal injuries. Judgment was rendered for plaintiff, and defendants appeal. Affirmed. T. C. Van Ness, for appellants. Stafford & Stafford, for respondent. VAN FLEET, J. Action for damages for personal injuries. Verdict and judgment were for plaintiff, and from the judgment and order denying a motion for new trial the defendants appeal. 1. The court refused the following instruction requested by defendants: "If you shall find that the plaintiff has willfully misstated any fact concerning which she has been interrogated, then her testimony in other respects should be distrusted, and the jury may in such case disregard the whole of her evidence. So, also, if you shall find that any witness examined upon behalf of the plaintiff has willfully misstated any fact concerning which he has been interrogated, then the testimony of such witness in other respects should be distrusted, and the jury may in such case disregard the whole of the evidence of such witness. Where a witness gives willfully false testimony, the jury should treat all his testimony with distrust and suspicion, and reject all, unless convinced, notwithstanding the base character of the witness, that he has in other particulars sworn to the truth,"-but instead charged the jury on this point that "a witness false in one part of his testimony is to be distrusted in others." While we think the instruction as requested was proper, and should have been given, nevertheless we are unable to hold that there was error in the action of the court. In refusing the instruction as asked, the court charged the jury upon the point in the language of the statute, and this, it has been repeatedly held, was sufficient. People v. Treadwell, 69 Cal. 226, 238, 10 Pac. 502, and cases there cited. 2. After a careful examination of the record, we are unable to say that the court erred in denying the motion for a new trial. The motion was based upon the ground of newly-discovered evidence. The granting of a new trial upon this ground is largely matter of discretion, an exercise of which will not be disturbed by this court except in case of abuse clearly disclosed by the record. It should not be granted in any case where the party has not shown due diligence in discovering and producing the evidence, nor where the evidence is purely cumulative, nor unless the newly-discovered evidence is such as to render a different result upon a retrial probable. Testing the showing made in this case by these rules, we certainly cannot say that there was any abuse of discretion in denying the motion. The new evidence was largely, if not entirely, cumulative, and conceding that appellants' view of the law be correct, that a new trial should not be refused merely because the evidence is cumulative, in a case where the cumulation is sufficiently strong to render a different result probable, we cannot say that the record presents such a case. The new evidence is that of but one witness, who, like several who testified at the trial, witnessed the accident. What the probable result of his evdence, if produced before the jury, would be, when viewed in connection with all the other evidence in the case, was a question which the lower court, with all the witnesses and facts of the case before it, was much more competent to determine than this court can possibly be. We find no error in the record, and the judgment and order denying the motion for a new trial are affirmed. We concur: HARRISON, J.; DE HAVEN, J. (104 Cal. 262; 4 Cal. Unrep. 838) MERLEY et al. v. BOULON et al. (No. 15,630.) (Supreme Court of California. Sept. 29, 1894.) NOTICE OF APPEAL. A notice of appeal stating that the appeal is from an "order" denying a motion for a new trial, and from an "order" denying a motion to set aside the judgment, a description of which is given, and "from the whole thereof," is insufficient as to notice of appeal from the "judgment." Department 2. Appeal from superior court, San Francisco county; J. C. Hebbard, Judge. Action by one Merley and others against one Boulon and others. There was a judgment for defendants, and plaintiffs appeal. Dismissed. Smith & Murasky, for appellants. Pillsbury, Blanding & Hayne, for respondents. DE HAVEN, J. The notice of appeal herein is addressed to the attorneys for respondents, and is in the following words: "You will please take notice that the plaintiff substituted in the above-entitled action hereby appeals to the supreme court of the state of California from the order denying plaintiff's motion for a new trial, and from an order of said court denying plaintiff's motion to set aside the decision and judgment in the action, which said judgment was therein entered in the said superior court on the 16th day of December, 1891, in favor of the de fendants in said action and against plaintiffs, and from the whole thereof." The appeal from the orders named in this notice was dismissed by this court, February 6, 1893; and the appellant now claims that the notice above set out is sufficient as a notice of appeal from the judgment therein described, and he insists upon his right to be heard upon such appeal. This contention cannot be sustained. The notice of appeal is certainly very awkwardly constructed, but is not ambiguous, and it cannot possibly be construed as an appeal from the judgment therein mentioned. It says nothing about an appeal from the judgment, but gives notice only that the plaintiff "appeals to the supreme court * from the order denying plaintiff's motion for a new trial, and from an order of said court denying plaintiff's motion to set aside the decision and judgment in the action;" and then follows a description of the judgment to which the said motion of plaintiff related; and the notice then concludes with the words "and from the whole thereof." These latter words refer to the orders previously mentioned, and indicate that the appeal is from the whole and not a part of said orders. * While notices of appeal should be liberally construed, and no appeal should be dismissed because of any misdescription of the judgment or order to which it relates, unless it appears that the respondent has been misled by such misdescription, still this rule is not liberal enough to justify us in holding that the above notice of appeal is or was intended as an appeal from a judgment. In order to constitute such a notice, the paper relied on for that purpose should at least state that the appeal is taken from a judgment; and this, considering the fact that it is not difficult to find words to properly express such an intention, is not a harsh rule. It follows from these views that the cause is not properly on our calendar, the only appeal in the case having already been disposed of; and for this reason the submission thereof is set aside, and the cause stricken from the calendar. So ordered. We concur: MCFARLAND, J.; FITZGERALD, J. (5 Cal. Unrep. 774) FLECKENSTEIN v. PLACER COUNTY. (No. 18,298.) (Supreme Court of California. Sept. 29, 1894.) COUNTY GOVERNMENT ACT-FEES OF CONSTABLES -CONSTITUTIONALITY OF PROVISIONS. 1. St. 1893, p. 452, § 184, subd. 17, which declares that subdivision 14 of the act (fixing the fees of constables) shall apply to present incumbents, applies to a constable of Placer county holding office at the time of the passage of the act. 2. St. 1893, p. 452, § 184, subd. 14, providing that the fees allowed constables for services in criminal actions other than felonies shall not exceed $75 for any one quarter, is not in conflict with Const. art. 11, § 5, which makes it the duty of the legislature to regulate the fees of officers in proportion to their duties. 3. Nor does such provision conflict with Const. art. 4, § 25, prohibiting local and special legislation affecting the fees of any officer. Department 2. Appeal from superior court, Placer county; J. E. Prewett, Judge. Action by one Fleckenstein against the county of Placer to recover constable's fees. Judgment was rendered in favor of plaintiff for less than the amount claimed by him, and he appeals. Affirmed. A. K. Robinson and F. P. Tuttle, for appellant. L. L. Chamberlain, for respondent. DE HAVEN, J. This action was brought by the appellant, a constable within the county of Placer, to recover from that county fees for services rendered by him as constable in criminal cases other than felonies. The amount demanded in the complaint is the sum of $573.10, with interest from July 1, 1893. A judgment was rendered in the superior court in favor of plaintiff, but not for the full amount claimed. The plaintiff appeals. It is conceded by appellant that the judgment is in accordance with subdivision 14 of section 184 of the county government act approved March 24, 1893 (St. 1893, p. 452), and that the judgment must be affirmed if that provision of the act is constitutional, and applies to constables in office in the county of Placer at the date of its passage. 1. Subdivision 17 of section 184 of the act above mentioned declares that "the provisions of subdivision 14 of this section shall apply to present incumbents." This .language clearly refers to those holding the office of constable in that county at the date of the passage of the act. It can mean nothing less, and its effect is not destroyed by the fact that the main body of the act of which section 184 is a part does not, except as in the act "otherwise provided," take effect until the first Monday after the 1st day in January, 1895. It is the intention of the act that subdivision 14 of section 184 should take effect immediately upon its approval. 2. Subdivision 14 of said section 184 is not unconstitutional. It provides that constables shall have the "fees allowed by the general fee bill of 1870, provided that the amount allowed by the board of supervisors for services in criminal actions and proceedings other than felonies shall not exceed seventy-five dollars for any one quarter." This provision is not in conflict with section 5 of article 11 of the constitution of this state, which makes it the duty of the legislature, among other things, to regulate the fees of officers "in proportion to their duties." Green v. County of Fresno, 95 Cal. 329, 30 Pac. 544. Nor is the law under consideration local and special, and for that reason forbidden by the constitution.' Longan v. 1 Const. art. 4, § 25. County of Solano, 65 Cal. 122, 3 Pac. 463; Cody v. Murphey, 89 Cal. 522, 26 Pac. 1081. The other points urged by counsel as grounds for a reversal of the judgment do not require special discussion. Judgment affirmed. We concur: MCFARLAND, J.; FITZGERALD, J. (4 Cal. Unrep. 839) SCHAEFFER v. HOFMANN. (No. 15,382.) (Supreme Court of California. Sept. 29, 1894.) QUIETING TITLE-CONTEST BETWEEN VENDOR and VENDEE-FORM OF DECREE-COSTS ON APPEAL. 1. In an action to quiet title to lands, where no mortgage lien is claimed, and where the answer pleads possession under a contract of sale, and offers payment of the amount due, a judg ment declaring the amount due to be a mortgage on the land will be reversed as not warranted by the pleadings. 2. Plaintiff, by a verbal contract with defendant, agreed to convey certain lands to him within five years on the payment of a certain sum. Defendant went into possession, and made improvements. Held, in an action to quiet title, that equity would require plaintiff to convey on payment of the amount due within a specified time, in default of which his title would be quieted. 3. Costs on appeal from two improper judgments which, if enforced, would have cast heavy expense on the appellant, are properly chargeable to respondent. Commissioners' decision. Department 1. Appeal from superior court, Napa county; E. D. Ham, Judge. Action by Caspar Schaeffer against Conrad Hofmann to quiet title to land. There was a personal judgment for plaintiff for a specific sum, and a final judgment making such sum a mortgage lien on the land. Said Hofmann having died. Ida Hofmann, his administratrix, was substituted as defendant, and she appeals. Reversed. F. E. Johnson, for appellant. H. M. Barstow, for respondent. SEARLS, C. This action is brought to quiet the title of plaintiff, and to procure him to be restored to possession of a tract of land containing about 10 acres, situate in Pope valley, county of Napa. Defendant answered, denying the allegations of plaintiff as to his right to possession of the premises; admitted that he (the said defendant) was in possession; and by way of cross complaint set out that on the 5th day of September, 1884, plaintiff and defendant entered into a verbal agreement by which plaintiff agreed to sell to him the land upon the payment by defendant to him of $150, with interest at 8 per cent., within five years, to convey the same to defendant, etc.; defendant was to take possession of the land at once, and retain the same until payment and conveyance; that defendant entered into possession, cleared the land, fenced it, erected a house and planted a vineyard and orchard thereon, etc.; en that defendant has always been ready and willtag, and is now anxious, to pay the purchase money, and offers to pay the same into court, and asks that plaintiff be decreed to execute a deed, etc. Plaintiff answered the cross complaint, claiming, in substance, that the consideration to be paid by the defendant for the land was $650, with interest, $100 of which he admitted had been paid. The cause was tried by the court, and written findings waired. An interlocutory decree was tered, decreeing the defendant to be entitled to a deed of the land from plaintiff upon payment of the sum of money due as purchase money and interest, and referring the question of the amount due to the court commissioner to take testimony and report. The court commissioner reported the sum of $594.28 due plaintiff from defendant. Thereupon, on the 30th day of January, 1893, an ordinary common-law judgment was entered in favor of plaintiff, and against defendant, for said sum of $594.28. Thereafter, on the 13th day of February, 1893, a decree was duly filed, but which decree purports to have been signed January 30, 1893. By this decree, omitting the formal parts, it was decreed that the sum of $594.28 due plaintiff was secured by a lien upon the land, and constituted a valid mortgage thereon, and which mortgage was ordered foreclosed, and the property sold, etc., as in ordinary cases of foreclosure sale. Defendant departed this life, and the administratrix of his estate, haying been substituted as a party defendant, appeals from both judgments. The cause comes up on the judgment roll. It is conceded by both parties that the personal judgment was improperly entered, and hence should be reversed, annulled, and set aside. As to the final decree the position of appellant is (1) that the first judgment was final, and, although not warranted by the pleadings, was valid upon its face, and no other or further judgment could be entered while it remained in force; (2) that the final decree entered February 13, 1893, holding the demand of plaintiff to be a valid and subsisting mortgage, and foreclosing the same, was not warranted by the pleadings. we It may be remarked that plaintiff, in his complaint, asked that his title be quieted. The defendant averred a contract for the purchase of the property by him, and averred a willingness to pay. Plaintiff admitted this, and practically the only difference between them was as to the amount due as purchase money. Under these circumstances, agree with what is said by appellant in the opening brief, viz.: "The court should have directed the respondent to execute the necessary conveyance upon receiving the purchase money within a limited time, and, if appellant's intestate should fail to make payment within that time, then the respondent's title be quieted, and we have possession. There would have been some equity in this kind of a judgment." We may add that there would have been complete equity in such a decree. Counsel for respondent replies: "I agree with appellant that the proper judgment to have been entered is one directing the payment by the appellant within a given period, say thirty days, of the amount found due from him, and, in default of such payment, that respondent's title be quieted." Counsel for respondent claims that the judgment as rendered was more favorable to appellant than that to which her intestate was entitled, and hence that the costs of the appeal should be assessed against her. There were two improper judgments rendered against appellant's intestate. Upon the first of them an execution might have been levied upon, and enforced against, the property of the judgment debtor. Upon the other, the expenses of a sale would have been cast upon the property of the estate represented by the appellant; or, if she paid the demand, she would have been left without the muniment of title to which, on such payment, she was entitled. It was her right to avoid these disadvantages, and it could only be done by an appeal, the costs of which should not be visited upon appellant. Appellant in her reply brief urges that a new trial should be granted because of the improper allowance of some item of interest. It cannot be said from the judgment roll that there is any just ground for this contention. The personal judgment of January 30, 1893, appealed from should be reversed, set aside, and annulled. The final decree of foreclosure, filed February 13, 1893, appealed from, should be reversed, and the court below directed to enter a decree requiring the respondent to execute a proper deed of conveyance to appellant as administratrix of the estate of Conrad Hofmann, deceased, of the property in dispute, upon the payment to him by appellant of the sum of $594.28, with interest thereon from July 29, 1891, at 7 per cent. per annum, within 60 days from the entry of such decree, and, if the appellant shall fail for 60 days to make such payment, that then and in that event the title of respondent to said land and premises be quieted, and that he be restored to the possession thereof. We concur: TEMPLE, C.; BELCHER, C. PER CURIAM. For the reasons given in the foregoing opinion, the personal judgment of January 30, 1893, appealed from, is reversed, set aside, and annulled. The final decree of foreclosure filed February 13, 1893, appealed from, is reversed, and the court below directed to enter a decree requiring the respondent to execute a proper deed of conveyance to appellant as administratrix of the estate of Conrad Hofmann, deceased, of the property in dispute, upon the payment to him by appellant of the sum of $594.28, with interest thereon from July 29, 1891, at 7 per cent. per annum, with In 60 days from the entry of such decree, and, | if the appellant shall fail for 60 days to make such payment, that then and in that event the title of respondent to said land and premises be quieted, and that he be restored to the possession thereof. (4 Cal. Unrep. 843) MALVILLE v. KAPPELER. (No. 15,570.) (Supreme Court of California. Oct. 2, 1894.) SERVICES OF ATTORNEY-EMPLOYMENT BY EXECUTOR-INDIVIDUAL LIABILITY—EVIDENCE. 1. In an action to recover attorney's fees for services rendered in an action in which defendant was named as defendant both individually and as executrix, though not a necessary party thereto, it appeared that she made no claim in such prior action in her individual capacity, and she tes tified that she employed plaintiff merely as attorney for the estate, but this plaintiff denied. The property received by defendant in settlement of the prior action was applied to the benefit of the estate of which she was executrix, and plaintiff received an allowance from the estate for his services, under order of court. Held, that a finding that plaintiff was not employed by defendant in her individual capacity was proper. 2. In such an action the inventory filed by the executrix, who was the wife of the testa tor, would not determine whether certain premises were separate or community property, and was therefore inadmissible for that purpose. Department 1. Appeal from superior court, city and county of San Francisco; Charles W. Slack, Judge. Action by one Malville against one Kappeler. There was a judgment for defendant, and plaintiff appeals. Affirmed. N. B. Malville, for appellant. L. J. Hardy, Jr., for respondent. HARRISON, J. The appellant is not entitled to recover from the respondent for his services, unless they were rendered at her request. This issue is directly presented by the pleadings, and the testimony thereon was contradictory; the plaintiff testifying that he was retained by her as her attorney in the action in which the services were rendered, and the defendant testifying that she never employed him, except as the attorney for the estate of her husband, of which she was executrix, and that for these services he had been fully paid. The finding of the court is in accordance with the testimony of the defendant, and upon this appeal must be accepted as conclusive. It may be added that the testimony of the defendant is corroborated by the circumstances under which the services were rendered. The suit was to foreclose a mortgage upon property belonging to the estate of the deceased husband of the defendant, made by him in his lifetime, and the only interest of the defendant in the property was such as she had under the will. Although she was named as a defendant individually, as well as in her representative capacity, she was not a necessary party defendant in the foreclosure suit, and in the answer which was prepared by the plaintiff no claim was made on her behalf, except as the executrix of the will. All the property that was received in the settlement of the suit was received for and applied to the benefit of the estate of which the defendant was executrix. For the services thus rendered by the plaintiff he was allowed by the probate court the sum of $1,500, and the court below finds that this was for all the services rendered by him in the action. The inventory in the estate would not, for the purposes of this action, determine whether the mortgaged premises were separate or community property, and, when offered for that purpose, was properly refused by the court. The judgment and order are affirmed. We concur: VAN FLEET, J.; GAROUTTE, J. (104 Cal. 286) SANTA CRUZ ROCK PAVEMENT CO. v. 1. The fact that a party is misled by erroneous advice of his counsel as to the admis sibility of evidence is not "surprise" for which a new trial will be granted. 2. In an action in equity to foreclose the lien of an assessment for street improvements, defendant is not entitled to a jury trial, as the action is not on a contract made by him, or which imposes a personal liability on him. Department 1. Appeal from superior court, city and county of San Francisco; D. J. Murphy, Judge. Action by the Santa Cruz Rock Pavement Company against one Bowie and others. There was a judgment for plaintiff, and defendants appeal. Affirmed. J. T. Rogers, for appellants. Parker & Eells, for respondent. HARRISON, J. Assuming that, in an action to foreclose the lien of a street assessment, it is competent for the defendant to show that the work contracted for has not been done, or that the specifications for the work have been manifestly disregarded (McVerry v. Kidwell, 63 Cal. 246), such a defense must not only be alleged in the answer, but must also be supported by evidence at the trial. If the court refuses to hear any evidence in support thereof, or disregards it in its decision, exception should be taken to its rulings, in order to have the same considered upon a motion for a new trial. Upon the hearing of such motion, any errors in law occurring at the trial must be presented in a bill of exceptions or statement of the case (Code Civ. Proc. § 658), and cannot be considered if presented merely in ex parte affidavits containing the evidence which was presented at the trial, and the rulings thereon. |