ESTOPPEL. 1. RELIANCE UPON CONDUCT.-It is an essential element of estopped by conduct that the party claiming the estoppel should have relied upon the conduct of the other, and was induced by it to do something which he would not otherwise have done.-McCormick v. Orient Ins. Co., 260. 2. INSTANCE-PRODUCTION OF BOOKS, ETC.-If an insurance company has a valid defense to a claim upon a policy, but nevertheless requests the insured to produce their books, and the property which escaped damage, and the insured comply with the request, at considerable inconvenience and expense, there is no waiver of the defense or estopped with respect to it,it appearing that the contract provided for the taking of such steps, and that the insured would have taken them, anyway.-Id. 3. DISMISSAL OF ACTION-RES ADJUDICATA.-The voluntary dismissal of an action without any agreement of the parties, or other circumstances tending to show that such dismissal was intended as a final disposition of the case, is not a bar to another action.-Park v. Dunlap, 189. 4. ACTION TO QUIET TITLE-RETRAXIT-FORECLOSURE OF MORTGAGE FORMER ADJUDICATION-VALIDITY OF MORTGAGE.-Where the defendants in an action to foreclose a mortgage had brought a previous action to quiet title to the property in controversy against the plaintiff and the parties who executed to him the mortgage sued upon, and the plaintiff demurred to the complaint, whereupon the defendants voluntarily dismissed the action as to him, before the demurrer was passed upon, and proceeded to trial and judgment as to the other parties, the dismissal does not operate as a retraxit, or amount to an adjudication in favor of the plaintiff as to the validity of his mortgage.—Id. See JUDGMENT, 4, 5; NEGOTIABLE INSTRUMENT, 3; Trust, 13; EVIDENCE. 1. EXAMINATION OF WITNESS-ANSWERING QUESTION TOO QUICKLY -OBJECTION TO EVIDENCE-STRIKING OUT ANSWER-EXCEPTION -WAIVER OF QUESTION.-The court has a right, and it is its duty, to give opposite counsel a chance to object to a question which has been answered too quickly, and to strike out the answer for such purpose; and where a witness answers a question too quickly to give an opportunity for an objection before the answer is given, and the court, upon motion, strikes out the answer, on grounds of objection to the question, and an exception is taken to such ruling, but no further objection is made to the question after such ruling, the question itself remains unchallenged, and the passing of the examining counsel to another question is a waiver of the former question, and his exception to the striking out of the answer is not well taken.-Barkly v. Copeland, 483. 2. CROSS-EXAMINATION-IMPEACHMENT OF WITNESS-COLLATERAL AGREEMENT TO SUPPRESS EVIDENCE GIVEN.-A witness may be asked, on cross-examination, for the purpose of discrediting his testimony, and laying a foundation for impeachment, whether he had not, on a previous occasion, made a collateral EVIDENCE (Continued). agreement with or proposition to another party for a consideration to suppress the very testimony given in the case. Such evidence does not fall within the rule that a witness cannot be impeached by evidence of particular wrongful acts not bearing upon the matter in issue, nor within the rule that a witness cannot be impeached in regard to a purely collateral matter.-Id. 3. IMPEACHMENT ON COLLATERAL MATTER SLANDER-SETTLEMENT OF THEFT DECLARATIONS OF THIRD PARTY.-It is not permissible to impeach a witness by contradicting his statement in regard to a purely collateral matter brought out on crossexamination; and in an action for slander, committed in charging that plaintiff participated in a theft, where the convicted thief, on cross-examination by the plaintiff's counsel, testified that he was told by a third person while under arrest that the whole matter of the stealing had been settled, and that plaintiff's name was mentioned in the conversation, such third person cannot be called for the plaintiff to contradict the statement thus brought out.-Id. 4. SLANDER-PARTICIPATION IN THEFT-BOOKS OF PLAINTIFF BONA FIDE PURCHASE OF STOLEN PROPERTY.-Upon the trial of an action for slander in charging plaintiff with being interested in the larceny of certain cattle, entries of the plaintiff in his books, showing that he had put down therein the cattle he was charged to have stolen, as having been purchased by him, are not admissible in evidence in his favor, as a litigant is not permitted to strengthen his case by his own declarations, whether written or verbal.-Id. 5. ACTION AGAINST THIEF FOR PURCHASE-MONEY-RES GESTÆ.— In such action, where the plaintiff testified that he paid a certain amount to the owner of the cattle stolen, evidence of a suit to recover such amount, brought against the thief after the cattle were stolen and the thief was arrested, is inadmissible, as the transaction was no part of the res gestæ.-Id. 6. PROOF OF CONSPIRACY DECLARATIONS OF CO-CONSPIRATOR.After proof of a conspiracy, the declarations of one conspirator, accompanying an act done in furtherance of the common design, is competent evidence against his confederate. But the conspiracy itself cannot be proved as to either of the alleged co-conspirators by evidence of the declarations of the other.-Id. 7. IMPEACHMENT OF MORAL CHARACTER ·PARTICULAR Wrongful ACTS-CROSS-EXAMINATION.-A witness cannot be impeached by evidence of specific wrongful acts, for the purpose of showing that the witness is destitute of moral qualities; nor can the witness be questioned on cross-examination as to such acts.-Id. 8. FORECLOSURE OF MORTGAGE-LIEN OF JUDGMENT FOR ALIMONYPRIORITY - FRAUD — WANT OF CONSIDERATION-ADMISSIONS OF MORTGAGOR · PREJUDICIAL ERROR.-In an action to foreclose mortgages, in which the priority of the lien of the mortgages was contested by the divorced wife of the mortgagor, and the lien postponed by the court to the lien of a judgment in her favor for alimony, on the alleged ground that the mortgages were executed without consideration to defraud creditors, and to cheat her out of her claim for alimony, the EVIDENCE (Continued). admission in evidence of ex parte statements and admissions of the mortgagor, made after the execution of the mortgages, in support of the alleged charges, is error presumably prejudicial to the mortgagee, and is ground for reversal of so much of the decree of foreclosure as postpones the lien of the mortgages to the lien of the judgment.-Silva v. Serpa, 241. See APPEAL, 7, 19, 24; CONTRACT, 1-5; CRIMINAL LAW, 5-7, 10, 12-17, 21, 22, 25-27, 29, 30, 34-38; DEED, 1; DIVORCE, 2, 4; LANDLORD AND TENANT, 9, 11, 12; NEW TRIAL, 4, 5; PUBLIC LANDS, 8. EXECUTION. TRANSFER BY 1. PROCEEDINGS SUPPLEMENTARY TO EXECUTION DEBTOR TO THIRD PARTY-JURISDICTION OF COURT.-Upon proceedings supplemental to execution, where it appears that certain property claimed by the judgment creditor to be the property of the judgment debtor was conveyed to a third party upon the same day that the affidavit was filed for the institution of the supplementary proceedings, the court has no jurisdiction to take possession of the property by a receiver, but can only make an order authorizing the judgment creditor to institute an action against the parties claiming it, for its recovery and subjection to the satisfaction of the debt, and forbidding its transfer until such action could be commenced and prosecuted to judgment.-McDowell v. Bell, 615. 12. TAKING POSSESSION OF PROPERTY CONVEYED-ORDER APPOINTING RECEIVER-EXCESS OF JURISDICTION-PROHIBITION.-Orders in such proceedings directing that the property so conveyed be subjected to the satisfaction of the judgment, and that a receiver take possession thereof, are in excess of the court's jurisdiction, and a writ of prohibition will lie to restrain their enforcement.-Id. 3. EXCESS OF JURISDICTION-WRIT OF REVIEW.-An order granting an execution upon a judgment awarded in the superior court, as a court of probate, after the lapse of five years from the entry of judgment, is in excess of the jurisdiction of the court, and will be annulled by the supreme court upon a writ of review.-Cortez v. Superior Court, 275. See APPEAL, 11; HOMESTEAD, 5-10; STATUTE OF LIMITA- EXECUTORS AND ADMINISTRATORS. CEASED PERSONS. See ESTATES OF DE FALSE IMPRISONMENT. See PLEADING, 1, 2. FINDINGS. REVIEW UPON APPEAL-FAILURE TO FIND.-A judgment will never be reversed for failure to find upon an immaterial issue.Johnson v. Vance, 128. See APPEAL, 18, 19; CONTRACT, 6-10; DIVORCE, 1, 3, 10; EJECT- FRAUD. See ARREST; FRAUDULENT CONVEYANCE; LANDLORD AND TENANT, 8, 9, 12; PUBLIC LANDS, 1. FRAUDULENT CONVEYANCE. 1. DEED IN LIEU OF WILL-FRAUDULENT RECORD QUIETING TITLE -PLEADING-FINDINGS-SUPPORT OF JUDGMENT.-In an action to quiet title brought by the grantee of a deed against a subsequent purchaser at an execution sale, who was the judgment creditor of the grantor, and who alleged, in his answer, that the deed to the plaintiff was made to defraud the creditors of the grantor, a finding that the deed was made by the grantor when ill, with the intention, known to the grantee, that it should not take effect except in lieu of a will upon the death of the grantor, and that upon recovery of the grantor a record of the deed was made with intent to defraud the creditors of the grantor, is wholly inconsistent with the defense pleaded, and cannot support a judgment for the defendant.-Mowry v. Heney, 471. 2. TRUST AGREEMENT.-Such finding is not responsive to an allegation in the answer that the plaintiff agreed to hold the title in trust for the grantor, and to reconvey it upon demand, where the court fails to find any such agreement.-Id. GAMBLING-HOUSE. See CRIMINAL LAW, 3, 4. GROWING CROP. See ASSIGNMENT, 5, 6. HABEAS CORPUS. See ARREST, 4; CRIMINAL LAW, 1, 2, 10. HOMESTEAD. 1. ESTATES OF DECEDENTS-WILL-CONVERSION-POWER OF SALECONTINGENCIES OF ADMINISTRATORS.-A will whereby a testatrix authorizes the sale of all her property, and attempts to dispose thereof in the form of money bequests, her property consisting of the premises she and her husband had occupied as a homestead, though not then protected as such by selection and recording, does not operate as an actual conversion of the property into money, and the beneficiaries take their interests subject and subordinate to all the contingencies of administration, and among others to the authority conferred by law upon the court to set the same apart for a limited period to the surviving husband as a homestead, as well as to appropriate the same for the payment of debts.-Estate of Lahiff, 151. 2. SETTING APART HOMESTEAD SEPARATE PROPERTY OF WIFERIGHT OF SURVIVING HUSBAND.-Where no homestead has been selected and recorded during the lifetime of the decedent, it is the duty of the court to designate and set apart a homestead out of the community property, if there is any such, and if not, then for a limited period out of any separate property of the decedent suitable for the purpose; and though the husband could not have selected a homestead out of his HOMESTEAD (Continued). wife's separate property without her consent when living, this does not affect the power of the court to set it apart to him as such for a limited period after her death.-Id. 3. EFFECT OF UNCONFIRMED SALE UNDER POWER.-The power of the court to set apart a homestead from the separate property of the decedent, after her death, is not defeated by the action of the executor in negotiating a sale under a power contained in the will which is unconfirmed, before the decree setting apart the homestead is made.-Id. 4. COMMUNITY PROPERTY - SURVIVORSHIP — RETENTION OF HOMESTEAD CHARACTER.-Community property duly dedicated as a homestead, upon the death of one of the spouses, becomes the sole property of the survivor, and is protected as such to the survivor in the same manner as before it had been protected to the community by its homestead character.Sanders v. Russell, 119. 5. LEVY OF EXECUTION-LIEN-APPLICATION OF EXCESS IN VALUE. -Property impressed with the character of homestead, no matter what its value, is exempt from seizure and forced sale, and a levy of execution upon such property creates no lien, but simply creates a foundation for proceedings under the statute for the ascertainment of the value of the property covered by the declaration of homestead, and the procurement of an order for the partition or sale thereof, and the application of the excess to the satisfaction of the judgment.-Id. 6. JUDGMENT AGAINST DECEASED HUSBAND - PRESENTATION OF CLAIM APPRAISEMENT OF HOMESTEAD-ACTION TO ENFORCE LIEN. It is the duty of a judgment creditor, who has recovered a judgment against the owner of a homestead declared upon common property, upon the death of the judgment debtor, to present the judgment to the administratrix, in like manner with any other claim; and if the judgment is not so presented as a claim, the judgment debtor acquires no existing lien upon the property, and proceedings under section 1245 of the Civil Code, for the appraisement and sale or partition of the homestead property and the application of the excess over five thousand dollars to the satisfaction of the judgment, cannot be maintained; nor can the judgment creditor, even if possessing a lien, maintain an action for the purpose of enforcing it against the homestead, without first presenting his judgment as a claim against the estate of the judgment debtor.-Id. 7. EXEMPTION FROM EXECUTION-DISSOLUTION OF FAMILY.-Under section 1265 of the Cvil Code as amended in 1880, providing that a homestead once declared upon remains as such always exempt from forced sale as against any liability of the owner, except as otherwise provided, a homestead set apart under section 1261, subdivision 6, of the Civil Code, by a son, with whom his mother resided under his care and maintenance, does not cease to be exempt from execution for a debt of the son, because he has ceased to be the head of a family, owing to the death of the mother.-Roth v. Insley, 134. 8. INJUNCTION-ENJOINING SALE OF HOMESTEAD CLOUD ON TITLE. The sale of a homestead under execution for a debt for which the homestead is exempt, though void under the stat |