of this suit was, that the "mortgage" provided that the interest should be added to the principal, not that the "note so provided, and was not such as necessarily to cause plaintiff to speak to his attorney about that matter when commencing suit. Mr. Mone drew the original complaint from the note and mortgage, not having been informed of the mistake, while plaintiff supposed the note and mortgage to have been drawn as agreed upon, and had not, therefore, given him, or plaintiff's attorneys, any information concerning the terms of the agreement not embodied in those instruments.

MORRISON, C. J.:

Plaintiff brought this suit to foreclose a mortgage, and defendants demurred to the complaint. The demurrer was sustained and leave was given to amend within ten days. Notice of the order was duly served on plaintiff, but he failed to amend his complaint, and final judgment was entered against him on the twenty-ninth day of January, 1880. On the seventh of April of the same year notice was served on defendants' attorney that plaintiff would move on Friday, the sixteenth day of that month, for an order, "relieving him from the order for judgment heretofore entered in said action on or about the twenty-ninth day of January, 1880, and the judgment heretofore rendered in favor of said defendant, Neumann and against said plaintiff, and setting the same aside on the ground that the same were taken and had against the plaintiff through his mistake, and also through his inadvertence and surprise, and his excusable neglect; and also for an order herein allowing the plaintiff to make and file herein an amended complaint, on the ground of mistake and inadvertence on the part of said plaintiff."

It was claimed there was a mistake in drawing the note to secure which the mortgage was given, inasmuch as by the terms of the note it was provided that the same should draw interest at the rate of eight per cent. per annum until paid, "and if not so paid, then the interest to be added to and become a part of the principal sum, and thereafter bear a like interest." The note was dated January 17, 1878, and was payable five years after date. The claim on behalf of plaintiff is

that the mistake consisted in leaving out of the note the words: "the interest payable monthly in advance."

On the affidavits filed in the case, the Court below set aside the final judgment on the demurrer and allowed the plaintiff to file an amended complaint. From this order, made after final judgment, this appeal is taken.

It is unnecessary for us to determine in the present case, whether such practice is to be sanctioned in any case, but assuming that the Court may, in a proper case, grant relief against a final judgment on demurrer, the circumstances attending the case in hand did not justify such action.

The mistake complained of was apparent on the face of the note, and was as clear on the day the note was executed, and at all other times thereafter, as it was when application was made for leave to file the amended complaint. But, in addition to this, it appears from the affidavit of the plaintiff himself, made on the hearing of the motion, that plaintiff was informed of the mistake, and had his attention called thereto four months before the commencement of the action.

We think that the plaintiff failed to make out such a case of mistake, surprise or excusable neglect as justified the Court below in setting aside the final judgment on demurrer, and the order to that effect, as well as the order granting plaintiff leave to file an amended complaint is reversed.

MYRICK and SHARPSTEIN, JJ., concurred.

[No. 7,184.

Department Two.]
April 4, 1882.

C. H. PARKER v. LUDWIG ALTSCHUL ET AL.

PRESUMPTION IN FAVOR OF JUDGMENT - ACTION ON STREET ASSESSMENT DISMISSAL OF PARTIES DEFENDANT. — A decree for the plaintiff in an action to foreclose a lien for street assessments, recited that the action was dismissed as to some of the defendants. The defendant appealed upon the judgment roll.

Held: All presumptions are in favor of the correctness of the proceedings of Courts of general jurisdiction, and as the consent of the defendants

would have justified the order, we must presume that such consent was given, there being nothing in the record to show that it was not.

ID. ID. ID.- CASES DISTINGUISHED.- Clark v. Porter, 53 Cal. 409; Diggins v. Reay, 54 Id. 525; Harney v. Applegate, 57 Id. 205; Tobleman v. Roper, 7 P. C. L. J. 56; distinguished.

APPEAL by defendant Elizabeth McGrath from a judgment for the plaintiff in the Fourth District Court of the City and County of San Francisco. MORRISON, J.

A petition for hearing in bank was filed in this case after judgment and denied.

E. A. Lawrence, for Appellant.

The judgment is erroneous because not entered against all of the owners. The complaint should have been amended so as to show that the persons dismissed were not owners. (Clark v. Porter, 53 Cal. 409; Harney v. Applegate, 57 Id. 205; Diggins v. Reay, 54 Id. 525; Tobleman v. Roper, 7 Id. 561.)

John J. Roche, for Respondent.

No brief on file for Respondent.

The COURT:

The decree recites that the action was dismissed as to some of the defendants. If any of the other defendants had objected to such dismissal, it would seem upon the authority of Clark v. Porter, 53 Cal. 409; Diggins v. Reay, 54 Cal. 525; Harney v. Applegate, 57 Cal. 205; Tobleman v. Roper, 7 P. C. L. J. 561, that the objection would have been well taken. But for anything appearing to the contrary such dismissal may have been consented to by the appellant.

All presumptions are in favor of the correctness of the proceedings of courts of general jurisdiction, and as the consent of the defendants would have justified the order of the Court, we must presume that such consent was given, there being nothing in the record to show that it was not.

Judgment affirmed.

APPEAL from a judgment of conviction, from an order denying an arrest of judgment and from an order refusing a new trial in the Superior Court of the City and County of San Francisco. FREELON, J.

The indictment charged that defendant on the nineteenth day of April, a. D., 1879, at the said City and County of San Francisco, unlawfully, feloniously, and with malice aforethought, with a deadly weapon, namely, a pistol, upon the body of one Victoria DeCleer, alias Victorie DeCleer, alias Victoire DeCleer, alias Victoria Bacon, alias Victorie Bacon, alias Victoire Bacon, in the place then and there being did make an assault; and her, the said Victoria DeCleer, alias Victorie DeCleer, alias Victoire DeCleer, alias Victoria Bacon, alias Victorie Bacon, alias Victoire Bacon, did then and there shoot and wound with the unlawful and felonious intent then, there and thereby, her the said Victoria DeCleer, alias Victorie De Cleer, alias Victoire DeCleer, alias Victoria Bacon, alias Victorie Bacon, alias Victoire Bacon, wilfully and of his malice aforethought to kill and murder contrary to the former force and effect of the statute, etc.

L. Quint, for Appellant.

A. L. Hart, Attorney General, for Respondent.
MORRISON, C. J.:

1. The demurrer to the indictment was properly overruled, as it contained all the averments essential to a charge of assault with intent to murder. (Wharton's Precedents of Indictments and Pleas, 242.)

2. The party upon whom the assault was made was described by several aliases, and the evidence shows that one of the names given her in the indictment was her true name.

3. The verdict "Guilty as charged in the indictment," was sufficiently certain, and was good in law. (People v. Gilbert, 57 Cal. 96.)

4.

The charge to the jury was unobjectionable, in view of all the evidence in the case. There was nothing in the evidence to sustain the plea of insanity, and it would have been a mockery of justice if the jury had acquitted the defendant on that ground. It was a plea set up in the absence of all matter tending to show an excuse or justification for the attempted murder, and such pleas are not to be encouraged in Courts of justice.

5. There was no error in the refusal to give instructions asked by the defendant, as all the points contained in them, proper to be given to the jury, were embraced in the charge of the Court. The Court is not required to state the law to the jury more than once.

There is no substantial error apparent in the record.
The judgment and order are, therefore, affirmed.

MYRICK, MCKINSTRY, Ross, and MCKEE, JJ., concurred.

SALE

[No. 7,107.- In Bank.]

April 5, 1882.

J. J. CUMMINGS v. P. W. DUDLEY ET AL.

PLEADING

EVIDENCE.- The

VARIANCE complaint contained two counts, the first alleging the sale of a horse to the defendants for the sum of one thousand five hundred dollars; the second, that the defendants were indebted to the plaintiff in that sum on account of a horse delivered to them by the plaintiff at their request, which (it was alleged) was reasonably worth one thousand five hundred dollars. The proof was that the defendants agreed to give the plaintiff for the horse seven hundred and fifty dollars in money and seven hundred and fifty in horses, and that the plaintiff sold and delivered the horse to the defendant on those terms.

Held: The plaintiff ought to have counted on the agreement to deliver the horses as well as the agreement to pay the money; but as no objection was made to the proof, as to the contract on the ground of variance or otherwise, the error was waived.

ID.- PROMISE TO PAY IN SPECIFIC ARTICLES DAMAGES.- Where a party agrees to deliver specific property at all events, without any option on