W. S. Dodge and H. V. Morehouse, for appellant. Julius Lee, A. L. Hart, S. P. Hall, and A. S. Kittredge, for respondent.

MCKINSTRY, J. The notice of intention to move for a new trial constitutes no part of the judgment roll or of the record to be furnished to this court on appeal from an order granting or denying a new trial. Code Civil Proc. 661, 952. In support of the action of the court below, it will be presumed that the motion for new trial was made on the ground, among others, that the verdict was not justified by the evidence; and, as there was a substantial conflict in the evidence, the order must be affirmed here, in accordance with the settled rule. In the "statement of the case" on motion for new trial, immediately preceding the judge's certificate of the settlement of the statement, is the recital:

"The plaintiff, in filing and submitting amendments to defendant's statement on motion for new trial herein, specially reserves the right, and does not waive any rights that she may have, to object and except to the hearing of the said defendant's motion for new trial, on the ground that the notice of said motion was not filed with the clerk of said superior court within the statutory time prescribed by section 659 of the Code of Civil Procedure of the state of California."

This portion of the statement cannot be treated as in the nature of a bill of exceptions. The facts are not set out, and, as the notice of intention constitutes no part of the record, we are not informed but that the motion was filed within the time prescribed by the Code. Order affirmed.

We concur:

(2 Cal. Unrep. 555)

THORNTON, J.; Ross, J.; McKEE, J.

COMBS v. HAWES. (No. 8,898.)

Filed November 19, 1885.


A deed given to secure the payment of money advanced by the grantee is in effect a mortgage, and must be foreclosed in accordance with the statute. (Code Civil Proc. Cal. § 726.)


Equity will give to the grantee in a deed, construed to be a mortgage, a lien on the land, to the extent of payments of other mortgages on the land, which he has been obliged to make to protect his own security.


An infant over the age of 18 years executing a promissory note, the consideration of which he receives, and which note is paid by an indorser, cannot disaffirm his contract with the indorser without refunding the amount paid in taking up the note.

Department 1. Appeal from superior court, county of Lake.
Jos. C. Bates, for appellants.

E. W. Britt, for respondent.

MCKINSTRY, J. The action was brought to recover an alleged balance, with interest thereon, averred to have been paid by plaintiff in

satisfaction of a certain promissory note made by defendants to the Bank of Lake, which note the plaintiff, as indorser thereon, was compelled to pay. The complaint avers that defendant Caroline “has conveyed to plaintiff, in part satisfaction of the amount paid by him," certain real and personal property "of the value of $2,500;" but that the defendants have made no other payment, leaving due and unpaid the sum of $2,975, with interest. The answer of the defendant Caroline Hawes denies that the property was conveyed and transferred by her in part payment, but averred the same was conveyed and transferred in full satisfaction of the claim of the plaintiff; and the answer of the defendant Horace is to the same effect, with the additional allegation that when the note was executed he was a minor of the age of 18 years. The court below found:

"(4) That said defendant Caroline Hawes has conveyed to plaintiff, in part satisfaction of the amount paid by him on said note as alleged in said complaint, the real and personal property referred to in said complaint, of the value of $2,500. And that such property was not taken or accepted by plaintiff as full satisfaction or payment of the demand in his favor against defendants for reimbursment of the sums paid by him as aforesaid on said note, and was not accepted by him as payment of said note.

"(5) That except by conveyance aforesaid of said real and personal property, the said defendants have not, nor has either of them, repaid to plaintiff any part of the sums paid by him on said note."

The testimony of plaintiff is to the effect that the conveyance from the defendant Caroline Hawes was to secure the payment of the money by him advanced in payment of the note of the defendants. The plaintiff recognized the continuation of the whole indebtedness from defendants after the deed was executed. If the testimony of the plaintiff is to be believed, the conveyance was neither in payment of part nor of the whole of such indebtedness. The transaction was a contract of mortgage. Finding No. 4 is therefore not justified by the evidence. If the facts are as claimed by plaintiff in his testimony, he should have filed his complaint for the foreclosure of his mortgage. There can be but one action in such cases, which must be in accordance with the Code of Civil Procedure, § 726. If, while the legal title stood apparently in plaintiff, he was obliged to protect his security by paying off other mortgages on the land, equity would give him a lien thereon to the extent of such payments.

There was evidence to justify the finding of the court that defend. ant Horace, with the other defendant, received the benefit of the mon eys received from the Bank of Lake. It follows, of course, that he received the benefit of the moneys paid by plaintiff to satisfy the note of defendants. He was 18 years of age when the note was given. Section 35 of the Civil Code reads:

"In all cases other than those specified in sections 36 and 37, the contract of a minor, if made while he is under the age of eighteen, may be disaffirmed by the minor himself, either before his majority or within a reasonable time afterwards; or, in case of his death within that period, by his heirs or personal representatives; and if the contract be made by the minor while he is

over the age of eighteen, it may be disaffirmed in like manner upon restoring the consideration to the party from whom it was received, or paying its equivalent."

The provision of the section which requires the restoration of the consideration to the party from whom it was received as a condition precedent to the disaffirmance of a contract made by an infant over the age of 18, applies as well to the contract to refund to plaintiff the money advanced by him in taking up the note as to the original contract evidenced by the promissory note.

Judgment and order reversed, and cause remanded for further proceedings.

We concur: Ross, J.; McKee, J.

(68 Cal. 39)

COTHRIN v. FABER. (No. 9,265.)

Filed November 23, 1885.


For the reasons given in department 1, 4 Pac. Rep. 940, judgment affirmed. In bank. Appeal from superior court, county of El Dorado. Chas. F. Irwin, for appellant.

A. P. Catlin, for respondent.

MYRICK, J. This case was heard in department 1 of this court, and an opinion filed October 28, 1884, affirming the judgment of the court below. 4 Pac. Rep. 940. Hearing in bank was granted, and has been had. For the reasons given in the opinion in department

the judgment is affirmed.

We concur: Ross, J.; MORRISON, C. J.; MCKEE, J.; THORNTON, J.

(68 Cal. 78)

WOOD v. BRADY. (No. 8,348.)

Filed November 25, 1885.


For the reasons given in the opinion in department 1, 5 Pac. Rep. 623, judgment affirmed.

In bank. Appeal from superior court, city and county of San Francisco.

J. M. Wood, for appellant.

Parker, Shafter & Waterman, for respondent.

MYRICK, J. This case was decided by this court in department 1, January 20, 1885. 5 Pac. Rep. 623. Hearing in bank having been granted and had, we are satisfied with the reason given in department. The judgment is therefore affirmed.

We concur: Ross, J.; MCKEE, J.; MORRISON, C. J.; McKINSTRY, J.; THORNTON, J.



Filed November 25, 1885.

Appellant having failed to file points and authorities, and no merit appearing in the appeal from the record, order affirmed.

Commissioners' decision.

Department 2. Appeal from superior court, county of Napa.
B. S. Brooks and W. Leviston, for appellant.

Wm. F. Hening and Estee Boalt, for respondents.

BELCHER, C. C. The appellant has failed to file any points and authorities, and, after examining the record, we see no merit in his appeal. The order should therefore be affirmed.

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BY THE COURT. For the reasons given in the foregoing opinion the order is affirmed.

CITY OF SAN FRANCISCO v. Low. (No. 9,996.)

Filed November 25, 1885.


On authority of People v. Pittsburg R. Co., 8 Pac. Rep. 881, judgment affirmed.

In bank. Appeal from superior court of the city and county of San Francisco.

David McClure, W. T. Baggett, and J. A. Waymire, for appellant. McAllister & Bergin, Pillsbury & Blanding, Wilson & Wilson, Jarboe & Harrison, and Lloyd & Wood, for respondents.

BY THE COURT. This case presents for decision precisely the same question as was involved in People v. Pittsburg R. Co., 8 Pac. Rep. 381. Upon the authority of that case the judgment here is affirmed.

We dissent: MYRICK, J.; THORNTON, J.

(67 Cal. 646)

PEOPLE. ROBERTSON. (No. 20,106.)1

Filed November 19, 1885.



A homicide will not be justified nor excused, nor even mitigated, by the mere fact, of itself, that the deceased and the defendant were in actual combat at the time of the homicide. Justification or excuse for taking human life must arise out of the circumstances in which the killing took place. If

1See note at end of case.

it appears that a person, armed with a deadly weapon, on being assaulted, takes advantage of the assault to kill his assailant, and, in execution of his purpose, does kill him, not in the heat of passion caused by the assault, nor in reasonable self-defense, it is murder.


If the facts following the assault show that from the outset of the combat following the assault the words and acts of defendant show an intention to kill his assailant under color of the assault, it is murder; and the sufficiency of the facts to prove the existence of malice is a matter for the jury. 3. SAME


A killing is not in self-defense if the defendant, having the opportunity to decline further combat in good faith, instead continues the struggle or renews the affray, the result of which is the homicide.


Refusal to give instructions which have already been given in substance is

not error.


It is not error to deny a defendant's motion, in a prosecution for murder, after the prosecution has rested, to order the prosecution to call and examine as witnesses certain persons said to have been present at the time of the hom icide.

Department 1. Appeal from superior court, county of Mendocino.
J. A. Cooper, J. Q. White, and J. M. Mannon, for appellant.
The Attorney General, for respondent.

MCKEE, J. Defendant was convicted of murder in the second degree, and sentenced to 10 years in the state prison. On this appeal from the judgment and an order denying a motion for a new trial, it is contended:

1. That the verdict is not supported by the evidence.

The evidence shows that defendant, on the twenty-fourth of August, 1884, twice stabbed one A. Davis with a butcher knife. In one of the stabs the knife was driven into his body, between the fifth and sixth ribs, upwards and forward towards the heart, the point of the knife penetrating the heart, causing almost immediate death. The stabbing was done in the excitement of an angry quarrel and scuffle, which originated in an attempt by the defendant and two others to buy a watermelon at a store in the town of Covelo kept by the wife of Davis. Davis himself was in charge of the store at the time, and when the parties asked him to sell them a watermelon on credit, he told them he had no watermelons to sell on credit, and to go along about their business. They did not leave. Defendant refused to go, saying he would do as he pleased, and commenced to abuse Davis with opprobrious and threatening language. In these circumstances, Davis picked up an iron-hooked stick, six or seven feet long, which was used in the store for bringing down buckets and things from hooks on which they hung, and with the end of the stick he "poked and punched" the defendant who fell on the porch of the store. The defendant got up, and, instead of going away, turned upon Davis, who was standing inside the store, and Davis again used the stick to "punch" him; but the defendant got hold of the stick, and Davis, in trying to jerk it away from him, jerked him inside the store,

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