understood and agreed that plaintiff was to collect the rents as agent of defendant, and for the latter's use; but, apart from that finding, the view most favorable to plaintiff is that plaintiff was to collect the rents during the time it was attempting to sell the property, so that it might be in a position to turn them over to "the purchaser," should one be found, as provided in the instrument itself. As, in our opinion, the instrument sued on does not, upon its face, warrant a decree for specific performance, as prayed for, it is not necessary to notice the many other points argued by counsel. Whether or not plaintiff has any cause of action for a breach of contract is a question which does not here arise. The judgment and order are affirmed.

We concur: DE HAVEN, J.; FITZGER. ALD, J.

(105 Cal. 15)

used by them as an office in conducting their business. The building was a one-story wooden structure 20 feet square, and for its foundation they placed mudsills on the surface of the ground, and on these mudsills were short posts on which the main sills rested. The defendants occupied the lot as tenants of Bartlett, and paid him monthly rent therefor, until about September 1, 1885, when he sold and conveyed the same to one Jennings. Jennings recognized and renewed the said lease, and the defendants thereafter held and occupied the lot as his tenants from month to month; and it was understood and agreed by him that the said building was the property of defendants, and might be removed by them from the lot at any time. In December, 1891, Jennings conveyed to the plaintiff, by an ordinary bargain and sale deed, the said lot, "together with, all and singular, the tenements, hereditaments, and appurtenances thereunto belonging or in any wise appertaining, and the reversion and reversions, remainder and remainders, rents,

1. A one-story wooden building, 20 feet square, having for a foundation mudsills laid on the surface of the ground, on which are placed short posts which support the main sills, built and used by tenants on leased premises for a lumber-yard office, is a trade fixture, which the tenants have a right to remove any time during the term.

2. Where land occupied by tenants under a lease from month to month is sold by the landlord, and the purchaser afterwards accepts from the tenants the customary rent for several months, without giving any notice terminating the old lease in the manner prescribed by Civil Code, $$ 789, 827, such purchaser recognizes and continues such lease.

Commissioners' decision. Department 2. Appeal from superior court, city and county of San Francisco; D. J. Murphy, Judge.

Action by Joseph Macdonough against A. W. Starbird and others for an injunction. From a judgment for defendants, and from an order denying a motion for a new trial, plaintiff appeals. Affirmed.

Edward P. Cole, for appellant. J. H. Henderson, for respondents

BELCHER, C. The plaintiff commenced this action to obtain an injunction restraining the defendants from removing a building from a lot of land owned by him. The case was tried, and the findings and judgment were in favor of the defendants. The plaintiff appeals from the judgment and an order denying his motion for a new trial.

It appears that in 1881 one Bartlett was the owner of beach and water lot No. 586, in the city of San Francisco, and leased the same to the defendants from month to month for a lumber yard. The defendants erected on the lot the building in question, to be

tiff bought the property he had no knowledge or notice of the agreement between Jennings and defendants that they might remove the building from the lot at any time, other than such as would be given by their occupancy as tenants. No new lease, or agreement as to lease, was made between plaintiff and defendants, but they continued to hold the property from month to month, and to pay to the plaintiff the same rent as before, until December, 1892, when they attempted to remove the building, and this action was commenced. The contention of appellant is (1) that the building was affixed to the land and was a part of the realty, and that he was an innocent purchaser of the land and building, and hence was not bound by the oral agreement of Jennings that defendants could remove the building; (2) that defendants took a new lease from plaintiff, without any new arrangement as to removal, and that they had no right to remove after they ceased to be tenants of Jennings.

The questions arising under appellant's first contention are very elaborately discussed by counsel, but we do not deem it necessary to consider them. In our opinion, the building, if a fixture, was a trade fixture, which, under section 1019 of the Civil Code, defendants had a right to remove at any time during the continuance of their term. Security Loan & Trust Co. v. Willamette Steam Mills Lumbering & Manuf'g Co., 99 Cal. 636, 34 Pac. 321.

The only questions, then, are: Did the term of defendants' lease end when plaintiff purchased the property? And did the occupancy of the premises after the purchase. without objection, and the payment to and acceptance by the plaintiff of the monthly rent, constitute a new lease, or only a continuance of the old one? It is clear that the mere transfer of the title did not in any way

change, modify, or affect the lease. The grantee simply took the place of his grantor, and became the landlord of defendants. The lease continued as before, subject only to change in the mode prescribed by statute. Section 789 of the Civil Code provides: "A tenancy or other estate at will, however created, may be terminated by the landlord's giving notice in writing to the tenant, in the manner prescribed by section 1162 of the Code of Civil Procedure, to remove from the premises within a period of not less than one month, to be specified in the notice." And section 827 of the same Code provides: "In all leases of lands or tenements, or of any interest therein, from month to month, the landlord may, upon giving notice in writing at least fifteen days before the expiration of the month, change the terms of the lease, to take effect at the expiration of the month." Here no notice was given by plaintiff, and no attempt was made by him to terminate the lease or change its terms in any way. On the contrary, he accepted the customary rent and allowed the occupancy to continue for a full year. This, it seems to us, shows the recognition and continuance by plaintiff of the old lease, and not the taking of a new one by defendants. It follows, In our opinion, that when defendants commenced to remove the building it was during the continuance of their term of lease, and they had a right to make the removal. The judgment and order appealed from should be affirmed.

We concur: SEARLS, C.; TEMPLE, C.

PER CURIAM. For the reasons given in the foregoing opinion, the judgment and order appealed from are affirmed.

(105 Cal. 471)

In re PHILBROOK. (No. 21,188.) (Supreme Court of California. Dec. 7, 1894.) In bank.

Order on Horace W. Philbrook to show cause why he should not be debarred from further practice as an attorney at law.

PER CURIAM. It has come to the attention of the court that one Horace W. Philbrook, an attorney at law, authorized to practice in this court, did upon the 30th day of November, A. D. 1894, file a certain brief in a certain cause then pending in this court, numbered 15,857, and entitled "Ira P. Rankin, Special Administrator of the Estate of John Levinson, Deceased, Plaintiff and Appellant, vs. William J. Newman and Benjamin Newman, Defendants and Respondents," in which said brief there are found matters which in the mind of the court are of a scandalous and contemptuous character. The said scandalous and contemptuous matters are found upon the pages of said brief commencing at page 313 thereof, and extending consecutively down to and including a portion of page 379 thereof, and the whole tenor of said matter may be fairly illustrated by the following excerpt, taken from pages 377 and 378: "It is not enough for courts of justice to be, in fact, pure. In addition to the fact, there must exist the fullest confi

dence in their purity. It is not enough for Judges to be, in fact, strong enough to resist temptation. They must not allow themselves to be tempted. Examine carefully and thoroughly the secret transaction of September 6, 1890. It was without an extenuating circumstance. You have before you here the proof of what its contrivers and users think of courts of justice and of judges. You behold their evil and most contemptuous confidence. They rely solely upon the corrupting force of their corrupt contrivance,-the secret transaction of September 6, 1890, and solely upon that reliance they have been ever since September 6, 1890, and still are, as confident of a final judgment for the Newmans as if they already had it locked up at home. And is it not probable, then, that many others think with them that the courts may be corrupted, the judgments of judges perverted, and that others, still more numerous, suspect it? But if this secret transac tion of September 6, 1890, is not declared illegal and void, upon the rules and principles declared in Egerton v. Earl Brownlow, then all to whom knowledge of the case shall come will no longer merely suspect or even think that the courts may be corrupted; they will know it. They may point to the decision here as full proof of it, for it will be established that such practices are permissible, and, if permissible, they are sure to have effect." By reason of the foregoing premises, it is therefore ordered that he, the said Horace W. Philbrook, appear before the court on the 17th day of December, A. D. 1894, at 10 a. m., at the court room thereof, in the city and county of San Francisco, and at that time show cause why he, the said Philbrook, should not be removed from his office as an attorney at law, and debarred from further practicing before the courts of this state, for having violated his oath and duties as an attorney of this court in filing the said brief. It is further ordered that a certified copy of the foregoing order be forthwith served upon said Horace W. Philbrook by the bailiff of this court, and due return made thereof.

(104 Cal. 668) HEINTZ v. COOPER. (No. 15,522.) (Supreme Court of California. Dec. 4, 1894.) NEW TRIAL-NEWLY-DISCOVERED EVIDENCEDILIGENCE.

In an action by a doctor against a patient on an account stated, the defense being that no account was stated, defendant's motion for a new trial on the ground of newly-discovered evidence was based on an affidavit of a person, who lived in defendant's house, that she heard plaintiff say that defendant would not pay his bill because he said it was excessive; that defendant was ill at the time, and shortly afterwards was removed from his home to another city; and that she never told defendant or his attorney of what the plaintiff had said till after the trial. Held, that an order granting a new trial would not be disturbed.

Department 1. Appeal from superior court, Monterey county; N. A. Dorn, Judge.

Action by J. P. E. Heintz against J. B. H. Cooper on an account stated. Judgment was rendered for plaintiff. A motion for a new trial on the ground of newly-discovered evidence was granted, and plaintiff appeals. Affirmed.

W. A. Kearney, for appellant. S. F. Gell and John J. Wyatt, for respondent.

VAN FLEET, J. This is an appeal by plaintiff from an order granting the defendant's motion for a new trial. The motion

was made upon several grounds, among which was that of newly-discovered evidence, and the order granting the motion specifies the latter as the ground upon which the new trial is granted. The appellant does not deny that the showing was sufficient to warrant the court in holding the evidence newly discovered, and that it was material, but the sole ground upon which he urges a reversal of the order is that there was no sufficient showing of diligence. We have carefully examined the record with this objection in view, and we are unable, after such examination, to say that the showing upon the point urged is so devoid of merit as to amount to an abuse of discretion. The granting of a new trial upon this ground is so peculiarly within the discretion of the trial court that the record must be very bald indeed which will induce this court to interfere with its action. And that this should be so is perfectly obvious. "Diligence" is a relative term, incapable of exact definition. What would amount to due diligence under one state of facts would fall absolutely short of it under another and different state of facts. It depends, therefore, so essentially upon the particular circumstances of each case, with all their distinct and varying phases and bearings, as they have appeared to the lower court at the trial and throughout the conduct of the cause, in determining whether diligence has been used in any particular instance, that this court should hesitate to disturb a ruling upon this ground where it has any substance whatever upon which to rest. The presumption is that the discretion has been properly exercised, and that presumption must be overcome by a clear want of facts before the order will be disturbed. See Jones v. Singleton, 45 Cal. 92; Baker v. Joseph, 16 Cal. 180; Kenezleber v. Wahl, 92 Cal. 202, 28 Pac. 225. There is no such want in the showing made here. The action was to recover for surgical and medical services rendered defendant while suffering from a broken leg. The complaint contained two counts, one upon an account stated and the second upon quantum meruit. Both the existence of an account stated and the value of the services were denied. the trial there arose a sharp conflict in the evidence as to the value of the services, but the positive testimony upon the question whether the account had become a stated account was confined solely to that given by the plaintiff on the one part and the defendant on the other, and between whom there was a contradiction, the plaintiff testifying that defendant made no objection to the amount of his bill,-at least until some time after it was rendered,-and defendant testifying that he had. It did appear, however, that the defendant immediately discharged plaintiff upon receiving his bill, and shortly after sent him a check for $500; and defendant within a day or so thereafter had himself removed from the town of Monterey,

At

where he then was, to San Francisco, and put in charge of another physician. The court found the account had become stated, and gave judgment for the full amount demanded. The newly-discovered evidence is all addressed to the point whether there was a stated account between the parties, and the principal feature of it is that given by the affidavit of one Concepcion Speegle, a woman who lived at the house in Monterey where defendant was confined with his broken limb. She says, in substance, that just before defendant was removed to San Francisco she heard Dr. Heintz, the plaintiff, say that defendant would not pay his bill because defendant said it was too large and excessive; that defendant was ill, and confined to his bed at the time, and that she never informed defendant or his attorney of what Dr. Heintz had said until after the trial of this case. The materiality of this evidence, as above suggested, is not denied; but appellant claims that with any sort of diligence defendant could have informed himself of it in time to produce it at the trial. But it does not appear that there was anything to put defendant upon inquiry for any such evidence. The witness, it seems, said nothing about the circumstance, and very likely thought little, if anything, of it. She lived at the time, it is true, in the same house with defendant, but he was confined to his room, and the next day or so was tak en to San Francisco, where it appears he has since resided, while the witness, we infer from the record, has continued to have her home in Monterey. The lower court might well say, under all the circumstances, that there was not an absence of diligence on the part of defendant; and, having found against him upon the issue to which the newly-discovered evidence is addressed, have felt constrained, in view of the conflict as to the value of the services rendered, to grant the motion for a new trial. Order affirmed.

We concur: GAROUTTE, J.; HARRISON, J.

(4 Cal. Unrep. 901) VERMONT MARBLE CO. v. BLACK.1 (No. 15,591.) (Supreme Court of California. Dec. 7, 1894.) JUDGMENT BY DEFAULT-VACATING.

While a motion to open a default is addressed largely to the discretion of the court, all doubts should be resolved in favor of the application; and, where the circumstances lead the court to hesitate as to the merits of the ap plication, an order denying such a motion will be reversed on appeal.

Department 2. Appeal from superior court, city and county of San Francisco; W. H Levy, Judge.

Action by Vermont Marble Company against William Black. Judgment by default was rendered for plaintiff. After de 1 Rehearing denieu See 38 Pac. 961.

fendant's death, Annie Black, his administratrix, moved to open the default, and from an order denying her motion she appeals. Reversed.

Geo. C. Sargent, for appellant. F. Wm. Reade, for respondent.

PER CURIAM. The respondent commenced this action against William Black in the superior court of the city and county of San Francisco on May 6, 1893, and on the same day summons was issued and personally served upon him in said city. No appearance by or on behalf of Black was made, and on May 31st a judgment by default was entered against him. On June 5, 1893, he died, and thereafter the appellant, Annie Black, the surviving wife of deceased, was duly appointed administratrix of his estate. On July 14th, upon suggestion of the death of Black, appellant, as such administratrix, was, by an order of the court, substituted as defendant in his place; and thereafter, on the 22d day of the same month, she served notice upon the respondent that she would on a day named move the court to vacate and set aside the said judgment by default, upon the ground that it was taken against said deceased through his excusable neglect. At the hearing of the motion, appellant produced and read several affidavits, including an affidavit of merits, and presented a verified an swer. The respondent also read several counter affidavits. The motion was submitted upon the judgment roll and the affidavits read by the respective parties, and denied by the court, and from that order this appeal is prosecuted.

It is settled law in this state that applications of this kind are addressed largely to the legal discretion of the trial court, and that the exercise of that discretion ought to tend in a reasonable degree, at least, to bring about a judgment on the merits of the case; and when the circumstances are such as to lead the court to hesitate upon the motion to open the default, it is better, as a general rule, that the doubt should be resolved in favor of the application. Watson v. Railroad Co., 41 Cal. 17; Pearson v. Fishing Co., 99 Cal. 425, 34 Pac. 76. The affidavits read by appellant, if true, clearly establish the fact that the original defendant, William Black, from the time summons was served upon him till he died, was diseased in mind and body, and unable to attend rationally to any business. It is true that many of the facts stated in those affidavits are controverted by the counter-affidavits; but, after carefully reading all the affidavits, we are satisfied that the circumstances were such as to lead any court to hesitate, and, this being so, we think the doubt should have been resolved in favor of the application. As the order must be reversed, it is not necessary to consider the question as to whether the court erred in sustaining the objection of respondent to the affidavit of Dr. C. N. Ellinwood, the v.38p.no.9-33

physician who attended upon said Black dui. ing his illness. The order is reversed, and the cause remanded, with directions to the court below to set aside the judgment, and allow appellant to file her answer to the complaint.

(105 Cal. 9)

WHITE V. BEER et al. (No. 15,480.) (Supreme Court of California. Dec. 6, 1894.) REVIEW ON APPEAL.

Findings made on conflicting evidence will not be disturbed.

Department 2. Appeal from superior court, Mendocino county; R. McGarvey, Judge.

Action by one White against Mrs. Jennie Beer and others on a promissory note. Judgment for plaintiff, and defendants appeal. Affirmed.

Thomas L. Carothers and Thornton & Merzbach, for appellants. J. W. Oates and J. H. Seawell, for respondent.

DE HAVEN, J. 1. So far as relates to the question of the sufficiency of the evidence to support the findings, we think the case falls within the well-settled rule that the findings of the trial court will not be set aside by us when there is a substantial conflict in the evidence.

2. The refusal of plaintiff to release the defendant Mrs. Jennie Beer from the payment of the note sued on, and to accept the other defendants, Clifton and Weil, as his sole debtors thereon, was not a fraud upon the other creditors of Mrs. Beer, under the circumstances disclosed by the evidence. Judgment and order affirmed.

We concur: MCFARLAND, J.; FITZGERALD, J.

(105 Cal. 32)

PEOPLE v. ANDERSON. (No. 21,120.) (Supreme Court of California. Dec. 7, 1894.) HOMICIDE-EVIDENCE-CREDIBILITY OF WITNESS

-INSTRUCTIONS.

1. Where defendant in a murder trial, to show that deceased was of a quarrelsome character, testifies that he saw him stab a person in a difficulty, he may, on cross-examination, be examined as to what he saw in connection with the stabbing, to show who was the aggressor.

2. Insulting remarks by defendant, made concerning a witness, which were repeated to the witness, and statements by the witness showing prejudice against defendant, are admissible as affecting her credibility.

3. Where the charge, taken as a whole, correctly states the law, error in isolated paragraphs thereof is not ground for reversal.

Department 1. Appeal from superior court, Humboldt county; G. W. Hunter, Judge.

Richard Anderson was convicted of manslaughter, and appeals. Reversed.

Ford & Burnell, for appellant. Atty. Gen. Hart, for the People.

PER CURIAM. The defendant was charged with the crime of murder, and found guilty of manslaughter, with a recommendation to the mercy of the court. He was sentenced to be imprisoned in the state prison for the term of six and a half years, and has appealed from the judgment and an order denying his motion for a new trial. It was clearly proved at the trial that the defendant committed the homicide charged, and the only defense was that, under the circumstances shown, it was justifiable or excusable. It is claimed that the court committed several errors prejudicial to the defendant in its rulings upon the admission and exclusion of evidence, and in the giving, modifying, and refusing instructions to the jury.

1. When the defendant was on the stand as a witness, he testified at great length, on his direct examination, about the difficulties and quarrels he had had with the deceased, Donohue, and about Donohue's quarrelsome character, and, among other things, said he had seen him stab a young man named Cook twice in the back. On cross-examination he said he did not see the stabbing, but saw the marks on his back, and was there at the time it was done. He was asked: "Who was the cause of that trouble,-Cook or Donohue?" "Who did commit the assault at that time?" "What I want to know is who committed the assault there. You say he stabbed a man. I want to know who was the cause of the trouble." These questions were all objected to as not proper cross-examination, and the court ruled that the witness might answer as to what he saw. The witness said: "As far as actually who committed the assault, I don't know. Mr. Donohue told me since that he was the man that was to blame." He then went on to tell what he saw, and closed by saying: "I didn't know how the trouble commenced until last summer, and then I found out." On redirect examination, counsel for the defense offered to prove by the witness what he had heard or knew about the matter, but the court refused to admit the offered evidence, saying: "I don't care about going into that at all. I think it was proper to ask this witness as to what he saw there when he claimed he saw him stab a man. I think it was proper to ask him what the circumstances were that he saw, to show what effect it might have upon him in this case; that is all." It is earnestly urged that each of the rulings above referred to was erroneous, but we see no prejudicial error in either of them. A defendant in a criminal action, who offers himself as a witness, may be cross-examined as to all matters about which he was examined in chief. Pen. Code, § 1323. The defendant testified on his direct examination that he saw Donohue stab Cook, and it was proper, therefore, to cross

examine him as to what he saw in connection with the matter. Besides, the evident purpose of the direct examination was to prove that Donohue wrongfully committed the assault; and this was, in effect, shown by his subsequent statement to the witness that he was the one to blame. The claim that the witness should have been permitted to testify as to what he heard about the stabbing is clearly untenable. It was an ef fort to introduce hearsay evidence, which was inadmissible.

2. M. T. Steinbrum and Mrs. Steinbrum were witnesses for the prosecution, and gave damaging evidence against the defendant. On cross-examination the former was asked: "Didn't Mr. Donohue tell you, ** in

the presence of Mr. Fisher, that Anderson had made remarks about your family and others?" He answered: "I don't recollect whether he did or not." Counsel for defendant then said: "Well, I will make the offer to prove by the witness Fisher and the witness Morgan that these conversations did occur with Mr. Steinbrum as I have indicated in the questions I asked him." On objection of the district attorney, the offered evidence was excluded. On cross-examination, Mrs. Steinbrum was asked about what had occurred at a time and place named, and then: "Do you remember saying something about hanging Anderson if your evidence would be sufficient?" The witness denied saying anything of the kind, and counsel afterwards offered to prove that she had said "she would hang the defendant if her evidence would do so." This offered evidence was also excluded on objection of the district attorney. It is claimed that these rulings were erroneous, and, in our opinion, the claim must be sustained. The obvious purpose of the offers was to show bias and ill feeling on the part of the witnesses against the defendant, and this it was competent to do. People v. Wasson, 65 Cal. 538, 4 Pac. 555; People v. Lee Ah Chuck, 66 Cal. 662, 6 Pac. 859; Schultz v. Railroad Co., 89 N. Y. 242, and cases there cited.

3. It is urged that the defendant was prejudiced before the jury by certain questions propounded by the district attorney to a witness, and by certain remarks made by him in his closing argument. The questions were as to who was the assailant in the affray between Donohue and Cook, and the attorney said: "Tell all about it. I want to show just how it occurred; that Donohue was not to blame." The questions were ob jected to, and the objection was promptly sustained. It is not perceived, therefore, how the defendant was or could have been prejudiced by them. The remarks complained of were in regard to an ineffectual attempt made by defendant to have Donohue put under bonds to keep the peace some time before he was killed. The attorney said: "Anderson went to see Ben Harris about getting out a warrant to have Dono