The case then came before Judge Maguire of the superior court, who had succeeded to the office, for "further proceedings." Neither party offered additional evidence, -the case being submitted upon the pleadings and papers on file, which included the interlocutory decree and the report of Commissioner Mott above mentioned. A final decree was rendered, from which the plaintiff appeals. The argument for the appellant ranges itself under two heads, which we will consider separately.

1. The learned counsel contends that "the decree of September 11, 1884 (which is the final decree), is erroneous in ascertaining an indebtedness of five thousand dollars from Thompson to White, when the testimony taken by Commissioner Mott shows that White, upon a fair statement of the account, is largely indebted to Thompson."

It is not entirely accurate, under our system, to say that the evidence does not justify a decree. The evident intention, however, is to say that the evidence does not justify the decision. But no motion for a new trial was made, and the appeal was not taken within sixty days from the rendition of the final decree, and hence no question of the sufficiency of the evidence can be considered, whether to justify the decree or the decision.

2. It is contended that the final decree is inconsistent with the interlocutory decree.

As a matter of course, whatever was decided on the former appeal has become the law of the case, and must govern on this appeal. The question is, whether it was there decided that the final decree cannot be inconsistent with the interlocutory one. And we do not think that it was. The court below had proceeded upon the theory that there could not be, under our system, such a thing as an interlocutory decree except in partition cases,-in other words, that the court had no power to make such a decree. All that was necessary for the appellate court to decide was, that the trial court had such power, and

that the proceedings should not be set aside as for want of power. And this is what we think it did decide, its language being, "there was no warrant for its vacation upon the theory that it was beyond the power of the court to make."

It was not necessary for the court to say that the trial court could not on the final hearing modify the interlocutory decree as the law and the evidence might seem to require. And it did not say it. It was not even necessary for it to say what kind of interlocutory decree it referred to. The opinion is not entirely clear in this regard, but we think it sufficiently shows that the court referred to the interlocutory decree of the old equity practice. It could not have referred to the interlocutory decree established by our statutes in partition cases, because that kind of decree is itself appealable, and is not reviewable on appeal from the final decree; whereas the opinion says of the interlocutory decree, that it "is also reviewable on appeal from the final judgment." (63 Cal. 509.) And unless the court intended to evolve something entirely new (which cannot be supposed) it must have had reference to the interlocutory decree of the old equity practice. Its language is consistent with this idea. For it said that the intention of the codifiers was not "to abolish the power of a court of equity to pronounce what in equity was called an interlocutory decree or decretal order." And what is said with reference to new trials evidently refers to the findings of fact upon which the interlocutory decree rested, which findings had been set aside by the court below along with the decree resting upon them.

If this be the true interpretation of the opinion, it does not matter whether the final decree is inconsistent with the interlocutory one, or not. For under the old equity practice the interlocutory decree could be modified on the final hearing, as the law and the evidence should require. (Fourniquet v. Perkins, 16 How. 32.)

With reference to interlocutory decrees in partition, the rule would seem to be different; but that is because the statute so provides.

The foregoing covers all the points made. We therefore advise that the judgment be affirmed.

BELCHER, C. C., and FooTE, C., concurred.

The COURT. For the reasons given in the foregoing opinion, the judgment is affirmed.

Hearing in Bank denied.

[No. 12444. In Bank.-June 1, 1888.]

E. A. PHILLIPS ET AL., RESPONDENTS, v. L. DECK, APPELLANT.

VENDOR AND VENDEE-PROPOSAL FOR SALE-ACCEPTANCE-REASONABLE TIME.-An acceptance of a proposal for the sale of land, and the compliance with the terms of the proposal, held, to have been made within a reasonable time.

APPEAL from a judgment of the Superior Court of San Bernardino County, and from an order refusing a new trial.

On the 21st of February, 1887, the defendant, by an instrument in writing, made an offer to sell certain land to the plaintiffs for sixteen thousand dollars, one third to be paid in cash, and the balance secured by a mortgage, subject to an acceptance of the offer by the plaintiffs within a reasonable time. The offer was communicated on the same day to one C. H. Condee, who was acting for both parties in the negotiations for the sale and purchase of the land. The plantiffs were residents of Missouri, and at the time of the offer were on their way to that state from California, which facts were known to the defendant. On the 6th of March, 1887, Condee wrote a letter to the plaintiffs, addressed to their

residence, notifying them of the defendant's offer, and at the same time sent them a note and mortgage drawn in compliance with the terms of the defendant's proposal, and instructed them that in the event of their acceptance to sign, to sign, execute, and return the same, together with one third of the purchase price. On the 23d of March, Condee received a reply to his letter, accepting the defendant's proposal, and returning the note and mortgage, and inclosing a draft for one third of the purchase price. On the same day Condee notified the defendant's wife, who had been empowered by him to act as his agent in the matter, of the plaintiff's acceptance, and on the 29th of the same month tendered her the note, mortgage, and one third of the purchase money. She refused to accept the same, because the mortgage had not been acknowledged so as to entitle it to be recorded. On the following day, with her consent, the mortgage was returned to the plaintiffs for proper acknowledgment. On the 17th of April, 1887, the defendant's wife surrendered possession of the land to the plaintiffs, who have since been in possession thereof. On the same day Condee received from the plaintiffs the mortgage properly acknowledged, and on the 19th of April, 1887, again tendered it, together with the note and one third of the purchase price, to the defendant, and demanded the delivery of the deed. The defendant

refused to accept or deliver the deed, whereupon the plaintiffs brought this action for a specific performance of the contract of sale. Judgment was rendered in favor of the plaintiffs, from which, and from an order refusing a new trial, the defendant appealed.

C. J. Perkins, and Wicks & Ward, for Appellant.

Rowell & Rowell, for Respondents.

The COURT.-We find no error in the rulings upon the evidence.

LXXVI. CAL.-25

We are of opinion that the communication to and acceptance by plaintiffs of the proposal of defendant to sell the land in controversy were all within a reasonable time, and that the same is true of the compliance of plaintiffs with the proposal so accepted by them. Judgment and order affirmed.

[No. 20354. In Bank.-June 1, 1888.]

THE PEOPLE, RESPONDENT, v. L. B. COHN, APPEL

LANT.

CRIMINAL LAW-BURDEN OF PROOF UPON PROSECUTION-INSTRUCTION -REASONABLE DOUBT.-In a criminal case it is error for the court to refuse to instruct the jury as to the burden being upon the prosecution to prove beyond a reasonable doubt every element of the crime of which the defendant may be convicted.

APPEAL from a judgment of the Superior Court of Los Angeles County, and from an order refusing a new trial.

The defendant was convicted of the crime of assault, and appeals from the judgment, and from an order refusing him a new trial. The further facts are stated in the opinion of the court.

Robert Hardie, for Appellant.

Attorney-General Johnson, for Respondent.

MCKINSTRY, J.-The defendant asked the court to instruct the jury: "The burden is upon the prosecution of establishing every element of the crime of which the defendant may be convicted, beyond a reasonable doubt." Through inadvertence, or for some reason which does not appear in the record, the court refused to give the instruction requested, and omitted to give any other instruction of a like character, or stating or bearing upon the rule as to reasonable doubt in criminal cases. De