matter' over which it is possible for any court to exercise jurisdiction. It is true that the court of probate, before issuing letters of administration, must first determine affirmatively the question of death; but, notwithstanding such determination, the fact that the supposed intestate is alive may still be shown, and when shown, establishes the nullity of the entire proceedings."

In this, McKinstry, Sharpstein, Morrison, and McKee, JJ., concurred.

So in this case it should be held that jurisdiction of the subject-matter vested in the board of public works when the required petition was presented. If no such petition was presented, though the county court held that such a petition was presented, the jurisdiction did not attach.

The foregoing remarks show that the city is not estopped by action of the mayor or by judgment of the county court. This question is thoroughly discussed by Field and Sawyer, JJ., in Liebman v. City and County of San Francisco, 11 Saw. 147, where the same clusion is reached. We refer particularly to the able opinion of the justices mentioned in the case cited.

The case of Lent v. Tillson, 72 Cal. 404, is in accord with these views. There the initial step to give jurisdiction was the adoption by the board of supervisors of a resolution authorizing the work to be done by expressing their judgment that such work would be expedient, and, in addition, the publication of the resolution as prescribed by the act of the legislature under which the proceeding was taken. This was done. The act was in this respect complied with. In the case before us the act was not complied with, for the required petition was not filed. In the case cited, as the act had been complied with, and jurisdiction attached for executing the work, we cannot see how the tax-payer was injured, conceding that the county court had jurisdiction to determine conclusively

LXXIX CAL.-26

the fact that the resolution required had been adopted and published.

Conceding that the determination of the county court in this case was prima facie evidence that a proper petition had been presented, still it was not conclusive. The facts as to jurisdiction were open to the examination of the bond-holder, and it was incumbent on him to inquire into them and ascertain whether the requirements of the act had been followed.

We cannot regard the petitioner, who is a holder of bonds issued under the act of 1872, as exempt from the obligation to ascertain whether the bonds were issued in compliance with the act of 1872. A purchaser of bonds is bound by the law under which such bonds were issued, and the law informs him that the bonds impose no obligation unless issued in accordance with law.

The application for the writ must be denied.

So ordered.

WORKS, J., SHARPSTEIN, J., MCFARLAND, J., and BEATTY, C. J., concurred.

[No. 12615. In Bank.-June 1, 1889.]

JOHN F. FENTON, APPELLANT, v. E. K. ALSIP ET AL., RESPONDENTS.

VENDOR AND PURCHASER-DEED-DELIVERY-PASSING TITLE-RECOVERY BACK OF PURCHASE-MONEY-TENDER OF RECONVEYANCE.When a deed of property given by a vendor describes town lots in a different block from those purchased by the vendee, and upon discovery of that fact, the vendee declines to go on with the trade, and does not take the deed, the fact that it had been actually placed in his hands does not constitute delivery of a deed for the property purchased, and the deed vested no title in the purchaser. He is not therefore bound to tender a reconveyance of the lots described in the deed before suing to recover the purchasemoney paid for the property purchased to which no title was received from the vendor.

APPEAL from a judgment of the Superior Court of Sacramento County.

The facts are stated in the opinion of the court.

Taylor & Holl, for Appellant.

The deed for the wrong lots was neither delivered to nor accepted by plaintiff. The whole matter was in fieri when when he discovered that the property bought was not deeded, 'stopped all proceedings, and demanded back his purchasemoney. To constitute delivery of a deed, there must not only be delivery by the grantor, but an acceptance by the grantee. (Bank of Healdsburg v. Bailhache, 65 Cal. 331; Fresno Land. Co. v. McCarthy, 59 Cal. 309; Stevens v. R. R. Co., 20 Barb. 332; Co-operative Association v. Phillips, 56 Cal. 553: Jackson v. Phipps, 12 Johns. 418; Carnes v. Platt, 6 Rob. 270; Parnell v. Simpson, 5 Wall. 86; Kingsbury v. Burnside, 58 Ill. 310; 11 Am. Rep. 67.) The deed takes effect only upon its delivery to the grantee. (Civ. Code, sec. 1054; Dyson v. Bradshaw, 23 Cal. 528; Barr v. Schroeder, 32 Cal. 609; Fitch v. Bunch, 30 Cal. 208; Hibberd v. Smith, 67 Cal. 547; 56 Am. Rep. 726.)

Beatty, Denson & Oatman, for Respondents.

Conceding that upon his statement of the case the plaintiff was entitled to rescind the contract on account of the mistake, still it was essential that he should restore, or offer to restore, to Singleton the title to his lots as a condition precedent to an action for the purchase-money. (Civ. Code, sec. 1691, subd. 2.)

WORKS, J.-This is an action to recover money paid as a part of the purchase-money for real estate for which the plaintiff claims he got no title.

There was a nonsuit granted by the court below on the ground that the plaintiff had received a deed for the propenty, and the title having vested in him, he must tender a reconveyance of the property before he could recover back the money paid by him. But the evidence shows beyond

any question that the property deeded to the plaintiff was not the property purchased by him, but of lots in a differ ent block, and that immediately upon discovering the fact he declined to go further with the trade and did not take the deed, although it had actually been placed in his hands. This was not a delivery of a deed for the property the plaintiff had purchased, and vested no title in him. It was

not necessary, therefore, that he should have tendered a conveyance of the property before bringing this action.

Judgment reversed.

MCFARLAND, J., SHARPSTEIN, J., THORNTON, J., and PATERSON, J., concurred.

[No. 12571. In Bank.-June 1, 1889.]

J. P. SHARP, APPELLANT, v. S. HOFFMAN ET AL., RESPONDENTS.

RIPARIAN RIGHTS—IRRIGATION CUSTOM-PRIORITY OF RIGHT.-The question of riparian proprietorship is eliminated from a controversy over the use of water for irrigation between owners of lands crossed by a natural stream, when both owners admit upon the trial that irrigation in the neighborhood of the stream is necessary; that it is the general custom for the farmers in such neighborhood to divert the water for irrigating purposes; and that the defendant, the upper proprietor, had for twenty years used the water for irrigation, leaving only the surplus water to the plaintiff. Under such admissions, the question is one of priority of right; and the plaintiff could not be injured by deprivation of water that he was not entitled to use. It devolves upon the plaintiff to prove a right to use the waters of which he was deprived, and an injury resulting from interference with such rights. ORDER GRANTING NEW TRIAL-SETTING ASIDE VERDICT-DISCRETION.The superior court may grant a new trial where, in its opinion, the verdict is contrary to the weight of evidence, and this court will not interfere with its discretion in so doing, except in extreme cases, or where it is apparent that the court below has proceeded upon an erroneous hypothesis. EVIDENCE-Cross-examinaTION.-It is competent to ask any questions on cross-examination of a witness which have a bearing directly or indirectly upon any portion of his testimony in chief, or which test the credibility, knowledge or recollection of the witness with

reference thereto; and it is error for which a new trial may be granted to refuse to allow such questions.

INSTRUCTIONS-EXCEPTIONS.-The instructions of the court below to the jury cannot be reviewed on motion for new trial or upon appeal, unless excepted to when given at the trial.

APPEAL ARGUMENT-REFLECTIONS UPON TRIAL JUDGE.-It is a reprehensible breach of duty for counsel to insert in their briefs in this court any reflections upon the judge of the court below.

APPEAL from an order of the Superior Court of Lassen County granting a new trial.

The facts are stated in the opinion.

E. V. Spencer, for Appellant.

To allow the judge of the court below to set aside a verdict upon his opinion of the evidence, where there is a substantial conflict, is practically to take away the right of trial by jury. The constitution guarantees that right. (Const., art. 1, sec. 7, art. 6, sec. 19; so also Code Civ. Proc., secs. 608, 1201.) Where the testimony is conflicting, it has been held that the verdict of the jury ought not to be interfered with. (Johnson v. Pendleton, 1 Cal. 133; Perry v. Cochran, 1 Cal. 180; Muse v. Stern, 82 Va. 33; 3 Am. St. Rep. 77; Bryant v. Carson etc. Co., 3 Nev. 313; 93 Am. Dec. 403.) It does not seem fair to presume that the court is always right, and the jury always wrong. The rule recognized in Bennett v. Hobro, 72 Cal. 178, and Hook v. Hall, 68 Cal. 23, is unjust, and subversive of the province of the jury. The only rational course is to apply the same rule in cases of jury trial that this court applies to the review of conflicting evidence.

Goodwin & Davis, and W. N. Goodwin, for Respondents.

GIBSON, C.-Action for damages for wrongful diversion of water; verdict and judgment for plaintiff. Defendants moved for and obtained an order granting a new trial, from which plaintiff appeals. The new trial was granted