By, the COURT: Opinion of the Court. It appears by the bill of exceptions that the homicide in question was committed by the prisoner with a deadly weapon; that the supposed "provocation given by the deceased were words of reproach only;" and that these were uttered by the deceased when very drunk, and when the prisoner was walking away from him. The jury found the prisoner guilty of murder in the first degree, and he was thereupon adjudged to suffer death. The appeal is taken from the judgment and from an order denying a new trial. 1. The first error relied upon is the refusal to give the seventh instruction asked by the prisoner, which instruction was in the following words: "If there is a reasonable doubt whether the defendant at the time of the homicide was capable of deliberation or premeditation, you must not find him guilty of murder in the first degree." The court, however, gave another instruction (the ninth), asked by the prisoner, and which is in the following words: "Even if you find that the killing was malicious, and therefore murder, yet before you can find that it was murder in the first degree, you must be satisfied beyond a reasonable doubt not only that the defendant knew his act was wrongful, but also that it was the result of deliberation and premeditation. It being apparent that all that was refused in the seventh instruction asked was given in the instruction last recited, the supposed error committed in refusing the seventh becomes immaterial. 2. There was no error in refusing to instruct the jury that if the prisoner did unlawfully, but without malice, kill the deceased upon a sudden quarrel, or in the heat of passion, the killing would not be murder, but manslaughter only. The undisputed facts of the case (already recited) did not warrant such an instruction, and the only purpose it could have served would have been to turn the attention of the jury from the case before them to an imaginary case not before them. Statement of Facts. 3. The court correctly instructed the jury at the instance of the prosecution that no words of reproach, how grievous soever, are sufficient provocation to reduce the offense of an intentional homicide with a deadly weapon from murder to manslaughter. This is the law so long and firmly established in this State that its discussion would be out of place. In fact, after an attentive consideration of the ingenious and labored argument submitted for the prisoner, we are unable to discover any reason why we should disturb the judgment rendered below in this case. By the provisions of the Penal Code (Sec. 1258), we "must give judgment without regard to technical errors or defects, or exceptions, which do not affect the substantial rights of the parties.' We are satisfied that no substantial right of the prisoner has been interfered with in the trial which has been had. Judgment and order denying a new trial affirmed and cause remanded with directions to fix a day for carrying the sentence into execution. Mr. Justice McKINSTRY did not express an opinion. [No. 4932.] SARAH E. RUSH, ADMINISTRATRIX OF THE ESTATE OF HIRAM RUSH, DECEASED, v. C. W. MCDERMOTT AND J. G. JOHNSTON. POWER OF AN ADMINISTRATOR.-An administrator, as such, has no power to bind the heirs by consenting to a proceeding under the provisions of the Political Code for laying out a highway over the lands of the estate, by which such heirs are divested of their estate in the lands. IDEM. The consent of an administrator to the laying out and opening a highway under the provisions of the Political Code across the land of the estate, confers no right and is void. APPEAL from the District Court, Seventh Judicial District, County of Solano. The estate of Hiram Rush, deceased, owned the east half of section nine, township four north, range one west, Mount Diablo meridian, Solano County. The plaintiff was admin Argument for Respondents. istratrix, and, as administratrix, along with seventeen other persons, inhabitants of the road district, signed a petition to the board of supervisors to lay out a road over said land and other lands adjoining. The petition stated that "Saralı E. Rush, administratrix," consented to the laying out and opening of the road. The board appointed viewers and proceeded regularly under the provisions of the Political Code, Secs. 2638 to 2714, but did not give the plaintiff notice of any of its proceedings. Damages were assessed as to all the non-consenting land-owners, but the plaintiff was regarded as consenting, and damages as to said land were not assessed. The board, on the 9th day of June, 1873, declared the road a public highway, and the defendant McDermott, who was one of the supervisors, and the defendant Johnston, who was road commissioner, were proceeding to tear down fences to open the same. This was a bill to enjoin them from proceeding further. The court below gave judgment for the defendants, and the plaintiff appealed. H. F. Crane, for the Appellant Sarah E. Rush, as the administratrix of the estate, was not the owner of the lands of said estate in such sense that she could alienate or transfer any interest therein except in the mode pointed out by the laws governing estates and administrators. An administrator of an estate has no power to give away the lands of an estate. Under our system, both the real and personal estate of an intestate vests in the heir, subject only to the lien of the administrator for the payment of debts and expenses of administration. (Updegraff v. Trask, 18 Cal. 458; Beckett v. Selover, 7 Cal. 238; Estate of Woodworth, 31 Cal. 604; Haynes v. Meeks, 10 Cal. 120; Chapman v. Hollister, 42 Cal. 463; Meeks v. Hahn, 20 Cal. 627.) J. F. Wendell and J. McKenna, for the Respondents. We claim that the administratrix had authority to bind the estate by her signature to the petition. In this State an administratrix has exclusive possession of all the property, real and personal, of the intestate, and Statement of Facts. is therefore the necessary party in all suits or proceedings concerning the same. (8 Cal. 580; 15 Id. 264; 42 Id. 462.) By the COURT: The administratrix has no power to bind the heirs by consenting to a proceeding under the provisions of the Political Code for laying out a public highway, by which they are divested of their estate in lands without their consent. If her acts in this case are to be construed as a consent on her part to the proceeding, they are to that extent void, and are not obligatory either upon her as administratrix or upon the heirs; and aside from the assumed assent of the administratrix, it is not pretended that any other person interested in the estate assented, or that any steps were taken to condemn the land. Under these circumstances, the order for establishing the road and declaring it to be a public highway cannot be supported. Judgment and order reversed, and cause remanded. Remittitur forthwith. [No. 4906.] GEORGE HAGER v. THE BOARD OF SUPERVISORS OF YOLO COUNTY. WRIT OF REVIEW.-The facts, that a question is new and of great public interest, and affects the property of a great many persons, and that the decision will be a rule established in a large number of cases, are not sufficient reasons for the Supreme Court to entertain a writ of review as an original proceeding. PETITION to the Supreme Court for a writ to review the proceedings of the Board of Supervisors of Yolo County, appointing a board of commissioners, and directing them to levy an assessment of $192,046, on a swamp land district. The petition averred that the questions involved were new and of great public interest, involving the right of assessment, and affected the property of over one hundred persons, and that there were about two hundred swamp Statement of Facts. land districts in the State, and that the decision in this case would be a guide to officers in other districts. The rules of the Supreme Court require a petition for a writ of review to set forth the circumstances which render it proper that the writ should originally issue from this Court, and declare that the Supreme Court will determine upon the sufficiency of such reasons in awarding or refusing the application. George Cadwalader, for the Petitioner. By the COURT: There is nothing in the circumstances set forth in the petition which renders it proper that the application should be entertained by us as an original proceeding. The motion that the writ issue is therefore denied, [No. 4890.] SAMUEL HEWLETT AND LEWIS HEWLETT TENANTS IN COMMON OF PERSONAL PROPERTY.-If the owner of sheep lets APPEAL from the District Court, Fifth Judicial District, County of San Joaquin. The plaintiffs owned two bands of sheep, consisting of twelve hundred, and four hundred and eighty head. On the first day of October, 1873, they entered into a written |