"It appears, from the allegations of the complaint, not denied by the answer, that the value of the property now in the hands of the trustees is the sum of $3,300,000. The trustees are directed, by the terms of the trust deed, to convert the estate into money, and to proceed, in the order named in the deed, to satisfy the various specific donations, including the erection of certain works of a public character. When these payments and disbursements are all made, the residuum, whatever it may be, is to be divided equally between the Academy of Sciences and the Society of California Pioneers. The gross sum required to satisfy these donations is $1,941,000. If to this is added the sum of $385,000, the amount agreed to be paid John H. Lick by way of compromise, a total is produced of $2,326,000, leaving a residuum of nearly $1,000,000 to be divided between the two residuary donees. The present income derived by the Trustees from the estate is $150,000 per annum, and it is fair to presume, in the absence of any material depreciation in real estate, that the residuum, instead of falling below the above estimate, will, in the course of several years to be occupied by the Trustees in carrying out the various projects named in the deed, materially increase, thus finally entitling the residuary donees to an amount exceeding $1,000,000.

"It further appears that, independent of the estate conveyed to the trustees, and before the execution of the deed, Mr. Lick donated to the Academy of Sciences and to the Pioneers, real estate of about the value of $400,000; that is, about $200,000 to each.

"These are the leading facts of the case.

"Upon the first presentation of the question, it struck me as a proposition too plain for argument, that all the beneficiaries should contribute pro rata; inasmuch as the threatened attack of John Lick would be directed against the deed itself, and if successful would result in the destruction of the entire scheme sought to be carried out by the donor, through the agency of the trustees; that, as every beneficiary would be attacked, every beneficiary should contribute to the defense. This was my first impression, notwithstanding the general rule of law that where the donor has blended his whole estate, real and personal, into one common fund, making certain preferred, specific gifts, followed by a general residuary disposition, any loss, foreseen or unforeseen, must fall upon the residuary fund.

"After hearing the able argument of counsel, and giving the question full consideration, I am necessarily led to the conclusion that the adoption of the pro rata method would defeat every charity designed by the donor. The reasons are these: The trust deed does not place the various donations upon an equality. The payments are to be made by the trustees in the order set forth in the deed. There are sixteen donations to be satisfied before the residuary donees are reached. But in the case of some unforeseen diminution of the fund sufficient to create a deficit as to these sixteen donations, they would not each receive a percentage, but the first in order would be wholly paid, until the fund was exhausted, leaving the last without any provision whatever. That this is the true construction of the deed is entirely beyond doubt. If, then, this rule of construction would apply to the specific donees, such as the telescope, the Orphan Asylum, and the Old Ladies' Home, it certainly is applicable to the residuary donees, especially when it is remembered that they each received a large

donation from Mr. Lick before the execution of the deed now under consideration.

"The twentieth subdivision of the deed declares: 'And the said parties of the third part [including the residuary donees] do covenant and agree that the words "residue of the proceeds of the property" shall at all times be construed to mean only the net balance after the other payments herein directed to be made, and the execution of this trust.'

"It is claimed by the learned counsel representing the Academy of Sciences that the trustee are not executing the trust when they propose to divert a portion of the estate to compromise the claim of John H. Lick, This, taken literally, is probably true. But the answer is, that whatever they do in the premises they necessarily do as trustees; and, when done under the sanction of a court of equity, must be held to be done in the execution of the trust. Equity favors compromises; and it is the constant practice of trustees and administrators, under the advice and permission of the courts, to compromise hostile claims asserted against the estates they represent. This is a salutary power, and one, the intelligent exercise of which rescues estates from wasting litigation and often from total destruction.

“James Lick must be deemed in law to have anticipated that the trusts cręated would be subject to the ordinary casualties and incidents of similar estates, and, therefore, to have intended, as expressed in the deed, that only the net balance, after the execution of the trust, should go to the residuary donees. He is also presumed to have known that it was among the powers of the trustees, acting under the advice of the court, to compromise any and all adverse claims that might be asserted against the estate.

"I shall therefore decline to instruct the trustees to make a pro rata assessment on the various beneficiaries, but leave them to appropriate the compromise money from the common fund; and this, I am fully satisfied, carries out the intent of the donor and harmonizes with the established law, as laid down in kindred cases.

MR. MCGARVEY, from the Judiciary Committee of the Senate, reported back bills, with recommendations, as follows:

Senate Bill No. 108-An Act to amend section 40 of the Civil Code. Passage as amended.

Senate Bill No. 109—An Act to amend the Civil Code, concerning the mortgage of growing crops. Passage as amended.

Senate Bill No. 98—An Act authorizing cortain corporations to perform the duties of executors, administrators, and guardians, and to execute trusts in certain cases; without recommendation.

Senate Bill No. 112-An Act to amend section 1166 of the Code of Civil Procedure, in relation to forcible entry or unlawful detainer. Passage.

Senate Bill No. 118-An Act to amend section 895 of the Code of Civil Procedure. Passage.

Senate Bill No. 95-An Act to add a new section to the Code of Civil Procedure. Passage.

Senate Bill No. 123-An Act to amend section 1365 of the Code of Civil Procedure. Do not pass.

Supreme Court of California.

[October Term, 1877.]

[No. 5704.]

[Filed January 11, 1878.]

BILLINGS vs. EVERETT.

CONTEMPORANEOUS ORAL AGREEMENT-EVIDENCE-DEFENSE.

ORAL AGREEMENT WHEN GIVEN IN EVIDENCE TO DESTROY OR VARY WRITTEN ONE. When oral agreement is made at the time of executing a note that the note should not be paid unless the canal was constructed and completed across the lands of the defendants, so that said lands could be irrigated therefrom, such agreement may be given in evidence to defeat an action on said note in the hands of third parties taken after dishonor, when the original payees failed to construct said canal. The consideration of the note has failed and no judgment can be had on the same.

By the court.

The answer sets up as a defense an oral agreement made by the defendant with the Clear Lake Water-works, at the time when the note in suit was executed, to the effect that the note should not be paid unless the canal was con structed and completed across the lands of the defendant so that one thousand acres of his land could be irrigated therefrom, before the maturity of the note, and that the water company has failed to complete the canal in accordance with this agreement. If this averment be true the consideration of the note has failed in whole or in part, and as the plaintiff took the note after maturity the defense is available as against the note in his hands. The court below failed to find on this material issue raised by the answer, and no judgment could be properly rendered until there was a finding on that point.

Judgment reversed and cause remanded, with an order to the court below to find upon said issue on the evidence taken at the trial and on such other evidence as shall be adduced, and thereupon proceed to render judgment. Remittitur forthwith.

[No. 5890.]

[Filed January 12, 1878.]

CHESTER vs. COLBY, PROBATE JUDGE.

PRACTICE AND PLEADINGS-WRIT OF PROHIBITION-WHEN NOT ISSUED. The writ of prohibition, under our statute as at common law, is a prerogative writ and will not be issued if the question of the jurisdiction of the inferior court has been submitted to that court by any appropriate pleading or objection while that question remains undetermined by that court.

Julius Chester, editor of the Courrier-Californien, published an editorial reffecting upon the Judge of the Probate Court for his action and judgment in

the matter of contempt of one Smith. Chester was arrested on a charge of criminal contempt, and he filed a demurrer, alleging that the court had no jurisdiction. Afterward, and before the determination of demurrer, he applied for a writ of prohibition to the Sixteenth Judicial District Court restraining the Probate court from proceeding with said action, and the motion was denied and he appealed.

GEO. E. OTIS, attorney for petitioner.

JO HAMILTON and H. EDGERTON for respondent.

By the court.

It is alleged in the answer that the respondent demurred to the complaint and affidavit on which the warrant was issued for an alleged contempt, on the ground that the Probate Court has no jurisdiction to proceed in the same matter of contempt, and that the demurrer is still pending and undetermined; the pendency of the demurrer was admitted at the argument before us.

The writ of prohibition under our statute, as at the common law, is a prerogative writ, and will not be issued if the question of the jurisdiction of the inferior court has been submitted to that court by any appropriate pleading or objection, while that question remained undetermined by that court. (Highs Ex Rel. p. 588, § 773; Cox vs. St. Albans, 1 Mod. 81; Williams, ex parte, 4 Ark. 537; City of Little Rock, ex parte, 26 Ark. 52; Meechen, ex parte, 12 Ark. 70; Bouton vs. Hursler, 1 Barn. R. B. 71; Edmundson vs. Walker, Carth. 106.) Writ denied.

[No. 5791.]

[Filed January 11, 1878.]

CAMPBELL vs. HEINLEN.

STATE LANDS-ACT OF MARCH 2, 1872.

The Act of March 2, 1872, has a retroactive effect and was intended to relieve all purchasers of State lands. Hence, one who has made application and holding a certificate of purchase, has a valid right to complete his purchase, notwithstanding he failed to pay twenty per cent. of the purchase-money and one year's interest within fifty days after approval of his application.

This action was brought in the Thirteenth District Court (Tulare county) to annul a certificate of purchase issued to defendant, John Heinlen, under the Act of March 28, 1868, providing for the sale of State lands, being swamp and overflowed lands. Defendant's application to purchase was made March 26, 1869, and approved April 14, 1869. Twenty per cent. of the purchase-money and the first year's interest was paid March 28, 1870, and the certificate of purchase was issued to him April 11, 1870. Plaintiff made application September 25, 1876.

Plaintiff contended that the defendant should have paid twenty per cent. of the purchase-money and the first year's interest within fifty days from the time of the approval of his application. That he failed to do this and thereby lost his right to purchase.

Defendant demurred to the complaint.

EDGERTON, TUBBS & COLE for plaintiff.

G. A. HEINLEN and W. W. CROSS for defendants.

By the court.

The judgment is reversed, on the authority of Yoakum vs. Brower, Nos. 5441 and 5542, decided at the last term, and the cause is remanded, with directions to the court below to sustain the defendant's demurrer to plaintiff's complaint and for further proceedings.

United States District Court.

(District of California.)

(December Term, 1877.)

[Nos. 2262 and 2263.]

[Filed January 15, 1878.]

OLIVER CHRISTENSEN ET AL. VS. STEAMSHIP "CITY OF PANAMA," AND S. H. HARMON vs. STEAMSHIP "CITY OF PANAMA."

COLLISION-" MODERATE SPEED."

When a steamer was being navigated at the rate of at least eight miles an hour, in a dense fog, and in the usual track of vessels approaching this harbor, from ports to the northward: HELD, that she was not going at a moderate speed, as required by section 4233, Rule 21 of the U. S. R. S.

MILTON ANDROS, for libellant.

DELOS LAKE and HOSMER P. McKoon, for claimants.
HOFFMAN, J.

On the night of the 30th June, 1876, during a dense fog, the steamer City of Panama came in collision with the schooner Bill the Butcher. The collision occurred at some distance from the shore, but in the usual and frequented track of vessels entering this harbor from ports to the northward. No fault appears to be attributable to either vessel in respect to lights, look-outs, sounding the steam-whistle, or blowing the fog-horn. The only question is, whether the steamer was going at the "moderate speed" required by the statute.

In the very numerous cases which have arisen in this country and in England with regard to the meaning of this term it has been uniformly held that it admits of no precise definition. What, under some circumstances, would be a moderate speed would under others be considered excessive.

Mr. J. Lowell observes that the decisions only prove that there is scarcely any rate of speed that has not been held to be too great upon some state of facts. The Blackstone, 1 Low. Dec., p. 488.