had no legal interest therein. In determining, however, whether or not he was guilty of false swearing in making the proofs of loss, we may look to all the evidence in the case; and, if such a state of facts is presented thereby as leaves a reasonable presumption of mistake or misapprehension on his part, such presumption should be indulged in preference to that of willful false swearing, founded upon the single fact that the legal title had passed from him. E. C. Hickman, who had charge of plaintiff's business in San Diego at the time, testified that, as soon as he heard of the transfer of the property by Newkirk, "I went to him about it, and he said it was only security for the back rent, and that as soon as he was able to pay the rent the building would be returned to him, and in the mean time, if Mrs. Roberts [the owner] was able to sell the buildings, Mr. Newkirk was to receive all the money received from the buildings that was in surplus of the rent in arrears." If this was true, Newkirk still had an equitable interest in the property, and, subject to the payment of back rent, was entitled to be restored to his legal status under the lease. An equitable interest in real property is an insurable interest. This much is deemed due to the memory of Newkirk, who was confined by sickness at the date of taking the proofs, and died three days later.

2. Conceding, however, all that the appellant claims in reference to the falsity of the proofs of loss, and it is not perceived that its case is improved. It is shown to have known where the title was vested. Knowing all this, and the interest of plaintiff in the property, and the amount and nature of such interest, it still insisted that Newkirk should make the proofs of loss, and its agent had them filled out in his office by his bookkeeper, and under his instructions, and then delivered them to plaintiff's agent for execution by Newkirk. It received such proofs on or about April 15, 1889, and, so far as appears, made no objection thereto for a long time thereafter. Its adjuster had, as early as February, 1889, furnished the officers of defendant at San Francisco with evidence of plaintiff's claim, and with information as to the state of the title. On the 3d of June thereafter, defendant instructed its agents at San Diego to draw on it for Newkirk's loss, and to send policy and proper receipts. Thereupon, defendant, by its agents, drew, and delivered to the plaintiff, its bill of exchange, as follows: "San Diego, Calif., June 3, 1889. At sight, pay to order of West Coast Lumber Co. twelve hundred, no 100ths, dollars, value received, and charge the same to account of Pierce & Daly. To Charles H. Cushing, Esq., Sec'y State Investment Insurance Co., San Francisco, Calif." This bill of exchange was presented for payment soon after June 3, 1889, and was not paid to plaintiff, because unac companied by a receipt from Newkirk; no

other objection being made to such payment. A receipt from Newkirk was then sent for, but he had died in the mean time, as before stated. Thereafter, and about June 14, 1889, defendant refused to pay the draft. The court finds that there was no misapprehension of the facts respecting the insurable interest of plaintiff or of Newkirk, on the part of defendant, at the time the bill of exchange was executed. There was evidence to support the finding, and I am of opinion defendant had, with a full knowledge of all the facts, waived its right to set up the forfeitures relied upon as a defense to the action. The case made here is in many respects similar, but in some particu lars a stronger one in favor of plaintiff than Silverberg v. Insurance Co., 67 Cal. 36, 7 Pac. Rep. 38. In that case the proofs had been taken by the defendant, and pronounced satisfactory, and a promise to pay, while here a bill of exchange, which presupposes a final adjustment of the loss and the furnishing of all needed proofs, had been given. Each, in its way, is a waiver of all causes of forfeiture known, or which ought to have been known, to defendant at the time. Murray v. Association, 90 Cal. 406, 27 Pac. Rep. 309; Wheaton v. Insurance Co., 76 Cal. 429, 18 Pac. Rep. 758; Stache v. Insurance Co., 49 Wis. 89, 5 N. W. Rep. 36; Smith v. Insurance Co., 62 N. Y. 85, In the case last cited it was said: "The time for investigation as to breaches of warranty is when a claim is made of payment; and if the company elects to pay the claim, or, what is equivalent, to adjust it by an independent contract, it cannot afterwards, in the absence of fraud, retract, or fall back upon an alleged breach of warranty."

The claim of plaintiff, after satisfying its lien to the extent of the value of the property purchased under foreclosure sale,-$1,000,--was in excess of the amount of the insurance; and, if it was entitled to recover at all, it was for the $1,200. Insurance Co. v. Stinson, 103 U. S. 25.

A receipt from Newkirk was not necessary to the security or discharge of defendant. A party entitled to maintain an action may, upon payment being made to him, give a valid discharge from the cause of action. Under our law an action may be maintained by the party in interest. The courts, with some exceptions, hold that the party to whom the loss is payable may sue. Cone v. Insurance Co., 60 N. Y. 619; Chamberlain v. Insurance Co., 55 N. H. 249. It is sufficient to say, under this head, that decisions to like effect are to be found emanating from the courts of Missouri, New Jersey, Illinois, and many other states. Where the proceeds of the policy are to go in part to the assured, and in part to others, the authorities are not uniform as to the proper plaintiff. The better opinion, however, is believed to be that all the beneficiaries may unite as plaintiffs in the action.

We have followed counsel for appellant through the several objections made by him as to the sufficiency of the evidence to support the findings, and in his objections to the sufficiency of the facts to uphold the judgment, and it would have been more satisfactory to us, and perhaps to him, to have adopted the same course herein, but the necessity of confining our opinions within briefer limits than such method would have rendered necessary has prevented. The case seems to have been fairly tried, and wisely determined, and the judgment and order appealed from should be affirmed.

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

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

(3 Cal. Unrep. 886)

MCKENZIE v. GILMORE. (No. 18,067.) (Supreme Court of California. June 3, 1893.)

HIGHWAYS-DEDICATION.

1. Defendant, for the purpose of changing the course of a highway, opened a road through his land, fenced it on both sides, allowed it to be used by the public, and to be worked and controlled by the public authorities. Held, that the road was dedicated to the public.

2. Where a person dedicates land for a public highway he cannot afterwards reclaim the same by showing that he was induced to make such dedication by the promise of a neighbor to give him the use of other lands, and that he had ceased to use such lands.

3. A petition asking that a highway be vacated was presented to a board of supervisors. Viewers were appointed, and in their report they recommended that the highway be made a private road, and that the owners of the land over which the road passed give a deed to the county for the private road. The board made an order adopting the report, but no deeds of the land were ever made. Held, that the order of the supervisors was not an abandonment of the highway.

Commissioners' decision. Department 2. Appeal from superior court, Tehama county; Edward Sweeney, Judge.

Action by Isaac McKenzie against John Gilmore to cause obstructions to be removed from a highway. Judgment was rendered for defendant, and plaintiff appeals. Re versed.

N. P. Chipman, for appellant. L. V. Hitchcock and J. T. Matlock, for respondent.

TEMPLE, C. This is an action brought by a road overseer to cause certain obstructions to be removed from the public highway. The cause was tried with the aid of a jury, which found for the defendant. The plaintiff appeals from the judgment, and from an order refusing a new trial.

There are numerous assignments of error in the record, but I think it necessary to notice but a few of them. The existence of the highway for a portion of the way was shown by proceedings before the board of supervis

ors, which resulted in an order establishing the road. Between certain points this road had been changed by one Hickman, who opened a road across his land, fenced it on both sides, and allowed it to be used by the public, and to be worked and controlled by the public authorities. The old road had been fenced up. It was claimed that the new road was dedicated by Hickman to the public. Defendant was permitted to show, as rebutting the presumption which would arise from the above and other acts on the part of Hickman, that Hickman had opened the road to the public in consideration of the promise of one of his neighbors that he should have the use of certain other land if he would allow the new road to be opened, and that subsequently he had ceased to use the land given him as a consideration. This was clearly erroneous. The facts being assumed, there was a complete dedication to the public. The effect of the acts of Hickman, which show a dedication, cannot be qualified by evidence that he was induced to dedicate by his neighbor. If such proof I could have any effect, it would strengthen the proof of dedication. He proves that he did dedicate when he shows that he was paid by a neighbor to do so, and tries to avoid the effect of his acts by showing partial failure of consideration. The use was not given to Copeland, but to the public, by acts indicating an offer without condition. It was also error to allow proof that Cone had consented to the obstructions, or had himself obstructed the road at another point, except so far as such proof might tend to discredit Cone as a witness. On the trial the defendant admitted the erection and maintenance of the gates which constituted the obstruction complained of, but justified on the ground that the highway, if one ever existed, had been vacated by the board of supervisors. In this matter it appeared that a petition was presented to the board, signed by the defendant and several others, asking that the road be vacated. A day was set for the hearing, when viewers were appointed, who subsequently reported to the board, stating, among other things, that Gilmore agreed to give Cone and Hickman a private road 25 feet wide, and concluding as follows: "Being that a portion of this road has recently been abandoned, we recommend that the road de scribed in this report be made a private road, and that the landowners over which the road passes give a deed to the county for a pri vate road on the route as described above, which is shown more particularly by the accompanying plat." After the filing of this report the board made the following order: "In the matter of the road in Antelope road district, known as the 'Gilmore Private Road,' it was ordered by the board that the viewers' report be adopted." Deeds were not taken from the landowners for the right of way, nor were any steps taken to establish a private road. The last order was

made June 5, 1889. Nothing further seems to have been done until December 4, 1889, when the board made an order rescinding an order made April 3, 1889, pertaining to gates on Gilmore's land, and ordering the road master to open the road to the public.

Under the last order the plaintiff assumes to be acting. Defendant contends that the order of June 5th is an order vacating the road. That a private road could not be established until the public road was first vacated. Therefore, although the report did not in terms recommend that the road be vacated, such is necessarily implied, and by adopting it the board must be held to have vacated the highway, although it was not competent for them to convert it into a private road in that way.

I do not think this position can be maintained. An order vacating a public highway is legislative, and the enactment ought to appear in the order. Great strictness is not required, but, if an order may be helped by such a reference, the report referred to should itself be sufficient to indicate the act determined upon. The statute does not provide for viewers in the matter of the discontinuance of a highway. The provisions in regard to viewers evidently refer only to laying out and altering highways. By the twenty-first section of the county government act of 1883, in force when these proceedings were had, it was provided that the board should cause to be kept a road book containing all proceedings and adjudications relating to the establishment and discontinuance of roads, etc. This matter does not seem to have been entered in such book. The report adopted did not recommend the abandonment of the road, but that deeds be taken of a right of way for a private road 25 feet wide, and then the laying out of a private road. The adoption of the report was an indication that the board would pursue that course, but no conveyances were received, and to lay out a private road would seem to require the concurrence of the person chiefly interested. Section 2692, Pol. Code. Although the board indicated a willingness to pursue that course, it does not appear that they had the power to do so. Under the circumstances, I do not think the order was an abandonment of the highway, and it was therefore error to admit it in evidence over the objection of plaintiff.

This will dispose of many exceptions taken. If the order were excluded, no instructions in regard to its effect would be required. The plaintiff was entitled to an instruction as to the right of defendant to erect gates across a public highway, and the instruction offered upon that subject should have been given. I think the court erred in giving the fourth and seventh instructions asked for by the defendant. The fourth was upon a matter which had no bearing upon the issues in the case, and the seventh was erroneous. Neither the public nor the county is responsible for unauthorized acts of the board of su

pervisors. Their acts, when ultra vires, are simply void, and cannot be imputed to the public. I think the judgment and order should be reversed, and a new trial had.

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

PER CURIAM. For the reasons given in the foregoing opinion the judgment and order are reversed, and a new trial ordered.

(98 Cal. 299)

PEOPLE v. BEMMERLY. (No. 20,939.) (Supreme Court of California. May 16, 1893.) MURDER-INSANITY AS A DEFENSE-INSTRUCTIONS

-NEW TRIAL-MISCONDUCT OF JURY.

1. The fact that several jurors in a murder cause were separated from their fellow jurors during the progress of the trial, and out of the sight of the officer who had them in charge, contrary to the orders of the court, is not sufficient ground to grant a new trial where it does not appear that anything was said to either of them concerning the cause, or that they were guilty of any misconduct, or that they did any act inconsistent with their duties as jurors during the separation.

2. Nor does the fact that one of the jurors drank intoxicating liquors during the progress of the trial constitute a ground for a new trial, where it does not appear that such juror was affected by the liquor.

3. Where the record on appeal in a criminal cause does not contain defendant's testimony in the court below, an objection that the court erred in permitting the district attorney to cross-examine him upon matters not brought out in direct examination will not be considered.

4. A statement of defendant's testimony in the assignment of errors in a criminal cause cannot be considered as a part of the record in determining whether or not the court below erred in permitting certain questions to be asked him. People v. Faulke, 30 Pac. Rep. 837, 96 Cal. 17, followed.

5. On a trial for murder, the burden of showing insanity, relied on as a defense, is on defendant, and the insanity must be established by a preponderance of evidence. People v. Travers, 26 Pac. Rep. 88, 88 Cal. 238, followed.

In bank. Appeal from superior court, Yolo county; J. E. Prewitt, Judge.

One Bemmerly was convicted of murder in the second degree. From the judgment of conviction, and from an order overruling his motion for a new trial, he appeals. Affirmed.

For former appeal, see 25 Pac. Rep. 266. K. Clark, J. C. Ball, J. E. Strong, and J. Craig, for appellant. Atty. Gen. Hart, for the People.

HARRISON, J. The defendant was convicted of murder in the second degree, and upon the judgment of conviction, and an order denying a new trial, he has appealed.

1. After the jurors had been impaneled and sworn to try the cause, the court, upon its own motion, ordered them into the custody of the sheriff during the progress of the trial, and instructed the sheriff to keep them together, and not to speak to any one, or per

mit any other person to speak to them or in their presence, about the case; and also instructed them not to drink any intoxicating liquors during the progress of the trial. One of the grounds urged for a new trial and upon the appeal is that before the final submission of the cause certain of the jurors separated from the others, and from the officer who had them in charge, and that certain of the jurors did before the final submission of the case to them drink intoxicating liquors. It appears that after an adjournment upon one of the days while the cause was on trial certain of the jurors, while upon the street in company 'with the sheriff, joined a crowd of people who were listening to the utterance of a street fakir, and were for a few minutes out of the sight or custody of the sheriff; that on a Sunday which intervened during the trial, eight of the jurors, in company with a deputy sheriff, attended church separately from the remaining four, and that some of the other four listened to the singing and preaching of the Salvation Army in the streets of Woodland; that one of the jurors, in the company of a deputy sheriff, visited his place of business, without being accompanied by the others; that individual jurors were several times during the trial separated from the body of jurors for a few minutes at a time, and occasionally were out of sight of the officer who had them in charge; that several of the jurors, at various times during the trial, drank intoxicating liquors, and at times engaged in conversation with other persons. It was not shown that anything was said to either of the jurors concerning the case before them, or that they were at any time during their separation guilty of any misconduct, or that they did any act inconsistent with their duties as jurors. The amount or character of the intoxicating liquors which they drank is not shown, nor the time or frequency of such drinking, and it was not claimed that either of them was in any visible way affected thereby. Ten of the jurors were severally sworn before the court, and denied that they had conversed with any person respecting the case, or been influenced by any matter other than the evidence before them; and those who drank the intoxicating liquors denied that they had been affected thereby. Two of the jurors were not examined upon these points, but there was no showing made against their conduct. We cannot hold that these facts constituted such misconduct as to justify setting aside the verdict. The direction to the sheriff to keep the jury together, as well as the instruction to the jurors themselves not to drink any intoxicating liquors during the progress of the trial, was for the purpose of having the trial conducted in an orderly and discreet manner, and was evincive of the desire of the court to prevent the jury from being affected by any improper influences. The ultimate object of these instructions was not to keep the jury together,

but to prevent them from improper inter course with others, and their being kept together was merely a means of accomplishing this ultimate purpose. The direction of the court did not give to the defendant the right to control the action of the jury or of the officer in that respect during the pendency of the trial, nor the right to any exception for error or misconduct by reason of a failure to literally comply therewith. The mere fact that the direction of the court was violated does not give to the defendant the right to have the verdict set aside. He must show as fully as if the direction had not been given that one or more of the jurors was influenced in his verdict by some outside influence during or in consequence of such separation. Neither does the mere fact that a juror drank intoxicating liquor during the trial show that his verdict was affected thereby. The defendant, in addition thereto, should show that the juror was affected by the liquor which he drank, or should at least show the quantity and character of the liquor, so that there might be a basis for the court to determine whether it would presumptively affect his capacity as a juror. The failure on the part of the people to call two of the jurors to exonerate themselves from the charge of having been influenced in their verdict by reason of the violation of the above direction of the court does not strengthen the position of the defendant. The burden of showing error was upon him, and, in the absence of any showing that these two jurors had themselves drank any liquor, or conversed or been spoken to about the case, the people were not required to introduce negative testimony upon these points. 2. It was held upon the appeal from the former trial of the defendant (87 Cal. 117, 25 Pac. Rep. 266) that the dying declarations of the deceased were properly received in evidence. The testimony at the present trial concerning the circumstances under which they were made does not differ in any material respect from that presented upon the former trial.

3. The objection that the court erred in permitting the district attorney to crossexamine the defendant upon matters not brought out in direct examination is not sustained by the record. The bill of exceptions merely shows that the court permitted him to be cross-examined "upon the transcript of the reporter's notes of his testimony at the former trial." In the absence of the testimony given by him, we cannot say that it was upon matters to which he did not testify at the present trial. The statement of such testimony in the assignment of errors cannot be regarded as a part of the record for this purpose. People v. Faulke, 96 Cal. 17, 30 Pac. Rep. 837.

4. Objections are made by the appellant to some of the instructions given to the jury, but, after a careful examination thereof, we are unable to say that the court committed