act "were not entirely such as those conferred upon the board of supervisors of the county," sitting as a canvassing board; that there is no law providing for a contest of an election of this kind; that the action of the board of commissioners must in its mature be final, since there is no way of remedying the matter in court by contesting the election. It is true that the Code provides only for contesting the election of persons to office, but the failure to provide for a contest of such an election as we have here would not authorize the board of commissioners to exercise powers not given them by the act itself, and no such power is there given. If the law furnished no remedy in such case through the regularly constituted courts, we must look to the Legislature for relief. It would be intolerable to allow a board created with limited powers to erect itself into a court and assume to discharge all the functions of a court in an ex parte, not to say arbitrary, manner, as must necessarily be done in such a case as we have here. But the courts are not thus impotent. The superior courts are endowed by the Constitution with general equity powers and may under its jurisdiction thus conferred inquire into frauds, mistakes, and cognate matters. If in the exercise of this jurisdiction no course of proceeding "be specially pointed out by the Code or by the statute, any suitable process or mode of proceeding may be adopted which may appear most conformable to the spirit of this Code." Code Civ. Proc. 187. We have, too, the maxim of jurisprudence: "For every wrong there is a remedy." Civ. Code, § 3523. But that there are remedies in such case through the orderly course of proceedings in courts has been decided by our Supreme Court. Calaveras v. Brockway, 30 Cal. 325, is an example. The election there related to the removal of the county seat of Calaveras county to the town of San Andreas, and that town was duly chosen as the county seat and was so declared by the board of supervisors. The county officers refused to remove their offices to this newly chosen county seat or to recognize the legality of the act of the supervisors. The latter proceeded against these recalcitrant officers by mandamus. There was then no general law for contesting such an election, and no contest was provided for in the special act, except as to the election of some person to an office. It was held that, while the determination of the board of supervisors was prima facie evidence of the fact so determined, it was open to contradiction, "and," said the court, "if the fact be otherwise than as determined by the board, it would be an unjust denial of the rights of the electors of the county to shut the door against all remedy for the redress of the wrong." In Gibson v. Board of Supervisors, 80 Cal. 359, 22 Pac. 225, the election was to determine whether bonds should issue to raise * * funds for the purpose of building certain bridges. The board of supervisors declared the proposition lost. Plaintiff then brought the action against the board, averring the true facts about said election, and praying that the order of the board be annulled, that a true result of said election be declared, and for such other relief as equity deemed meet. It was urged there, as here, that no court, by any form of action or proceeding, legal or equitable, has any jurisdiction or authority to inquire into the result of an election on the question of issuing bonds (here changing county boundary lines); that the whole matter is beyond the scope of judicial investigation; that there can be a contest over the election to an office simply because the statute provides a procedure for such a contest; but that as there is no such procedure provided for a contest about any other kind of an election, and, as the subjectmatter is in its nature beyond the cognizance of the courts, therefore there is no judicial jurisdiction of any kind to determine any question arising out of such an election. Said the court, speaking through Mr. Justice McFarland: "If that position be correct, then its consequences are far-reaching and alarming. Suppose that interested parties should successfully contrive to have presented to the people of a county a proposition to issue bonds for an unworthy purpose and to a ruinous extent, and that, although the people really defeated the project at the polls, certain election officers, either through intentional fraud or by a gross mistake, refused to return a large number of votes in the negative, so that the returns would show the proposition to have carried, would there be no remedy, no power to execute the real will of the people? There certainly would be no such remedy in the hands of the supervisors, for they can only estimate the votes returned, and have no power to count the ballots. The will of the people then can be carried out by the courts, with their power to compel evidence and thoroughly investigate, or not at all." It is then pointed out that the Constitution (section 18, art. 11) has specially provided for an election to determine the policy of creating a bonded indebtedness and prohibited the issuance of bonds without the consent of two-thirds of the voters of the county. Said the court: "Whenever there is such a constitutional provision, and no machinery provided by law for enforcing it, the Constitution by necessary implication confers upon the court of chancery jurisdiction to protect and enforce the will of the people by suitable and proper procedure. This principle has been declared and followed in numerous cases where Constitutions have provided for the removal of county seats, and we see no distinction, with respect to the point under discussion, between those cases and the one at bar." The Constitution (article 2) deals with the right of suffrage; the qualification of voters and elections by ballot in a way, it seems to us, to make applicable the principle discussed in the case just considered. So also does article 11, in its provisions with respect to creating new counties, removal of county seats, and the recognition of the several counties as they now exist, as legal subdivisions of this state. Without pursuing the argument further, we are satisfied that the writ should issue, and it so ordered. We concur: HART, J.; BURNETT, J. (7 Cal. App. 457) HUBBELL OIL CO. v. MORRISON et al. (Civ. 429.) (Court of Appeal, Second District, California. Jan. 23, 1908. Rehearing Denied Feb. 21, 1908.) 1. APPEAL-REVIEW-GROUNDS OF DECISION OF LOWER COURT-ORDERS GRANTING NEW TRIAL. Where an order granting a new trial is general, it will be sustained if good on any of the grounds upon which the motion was based. [Ed. Note.-For cases in point, see Cent. Dig. vol. 3, Appeal and Error, § 3410.] 2. SAME QUESTIONS PRESENTED FOR REVIEW. The sufficiency of the record to sustain an order granting a new trial, upon either the theory of errors of law occurring at the trial or surprise, will not be considered on appeal, where the matter cannot arise upon a new trial, and the order may be justified upon the ground of newly discovered evidence. [Ed. Note.-For cases in point, see Cent. Dig. vol. 3, Appeal and Error, §§ 3331, 3338, 3339.] 3. SAME-DISCRETION OF COURT-NEW TRIAL -NEWLY DISCOVERED EVIDENCE-CUMULATIVE EVIDENCE. The determination of the effect of newly discovered evidence which is cumulative is peculiarly within the province of the trial court. [Ed. Note.-For cases in point, see Cent. Dig. vol. 3, Appeal and Error, § 3876; vol. 37, New Trial, § 228.] 4. SAME. It will be presumed, on appeal, in support of a trial court's order granting a new trial, that its action was based upon any reason disclosed by the record on which it could have been properly founded, and hence where one of the grounds upon which the motion was based, as shown by the record, was newly discovered evidence, the order will be sustained, though the newly discovered evidence was cumulative, in the absence of a clear abuse of discretion. [Ed. Note.-For cases in point, see Cent. Dig. vol. 3, Appeal and Error, § 3876.] Appeal from Superior Court, Los Angeles County; Waldo M. York, Judge. Action by the Hubbell Oil Company against Charles J. Morrison and others. From an order granting a new trial on motion of defendants, plaintiff appeals. Affirmed. J. W. McKinley and F. E. Lacey, for appellant. Thomas N. Neal, D. Z. Gardner, and M. C. Hester, for respondents. TAGGART, J. This is an action to quiet title. The appeal is from an order granting defendants' motion for a new trial after judgment in favor of plaintiff. The cause was set for trial for the 16th day of December, 1904. On the 15th day of that month defendants moved the court for a postponement of the trial on the grounds of the illness of one attorney and the inability of another attorney, but recently retained on account of the sickness of the former, to prepare defendants' case for trial from lack of time to do So. From the affidavits filed to support the motion, it appears that the original counsel in the cause had been suffering for weeks from a nervous collapse; that on December 5, 1904, he notified defendants of his illness and the improbability of his recovery in time to prepare for trial, and suggested the retaining of other counsel. In pursuance to this notice the attorney appearing to present the motion was retained December 12, 1904. His affidavit discloses the character of the preparation necessary to a proper presentation of the defense and his court engagements, all tending to show that it would be impossible for him to make such a preparation before the day set for the trial. The court made an order of continuance conditioned upon the payment by defendant to plaintiff of the sum of $100 before 2 o'clock p. m. of the day the application was made. At the time set for trial defendants renewed their motion for a postponement, and stated that they were unable to comply with the condition requiring the payment of the $100. The postponement was denied and the cause proceeded to trial, with the result that findings were filed and judgment entered in favor of plaintiff. The complaint is in the form usual in such actions, and the title of plaintiff therein pleaded was supported by evidence tending to establish three different sources: By record, by tax deed, and by adverse possession. The findings are substantially in the language of the allegations of the complaint. Defendants moved for a new trial on the grounds: (1) Insufficiency of the evidence; (2) the decision is against law; (3) errors in law occurring at the trial; (4) newly discovered material evidence; and (5) accident and surprise. The motion was made upon statement and affidavits showing the newly discovered evidence and reason why same was not produced at the trial. The statement contained the showing made upon the application for a continuance, and it is upon the action of the court in this respect that the respondent justifies its ruling upon the motion for a new trial. It is stated in the brief of respondent that the reason given by the court for denying the motion for a new trial at the time the ruling was made was that the defendants should have been granted the continuance asked for and refused at the opening of the trial. The order granting the motion, however, is general, and must be sustained, if good, on any of the grounds upon which the motion was based. The matter specified might be considered under either of the two heads-(3) errors of law occurring at the trial, or (5) surprise against which ordinary prudence could not have guarded-but we do not think it necessary to pass upon the sufficiency of the record to sustain the court's ruling upon either theory, as this matter cannot arise upon a new trial and the order granting the new trial may be justified on another ground, to wit, newly discovered material evidence. The affidavits showing newly discovered evidence presented additional support to defendants' case by more definitely locating certain monuments called for in the paper title introduced by defendants. While this showing was cumulative in its nature and would have had no bearing upon and constituted no defense against two of the sources of title under which the plaintiff claimed, in the form of the findings here it cannot be determined upon which of these sources of title the judgment rests. Only the trial court could determine its effect had it been produced at the trial. The determination of the effect of newly discovered evidence which is cumulative is peculiarly within the province of the trial court. Oberlander v. Fixen & Co., 129 Cal. 692, 62 Pac. 254. The discretion of a trial court exercised in favor of the granting of a new trial will not be disturbed, unless there is a clear abuse of discretion. Von Schroeder v. Spreckels, 147 Cal. 186, 81 Pac. 515. In support of the court's order, we must presume that its action was based upon any reason disclosed by the record upon which It could have been properly founded. If upon the ground of newly discovered evidence, we cannot say it abused its discretion in granting a new trial. Order granting a new trial affirmed. We concur: ALLEN, P. J.; SHAW, J. (7 Cal. A. 432) AMOS v. COHN. (Civ. 433.) (Court of Appeal, Second District, California. Jan. 20, 1908. Rehearing Denied Feb. 19, 1908; Denied by Supreme Court March 19, 1908.) FORCIBLE ENTRY AND DETAINER-FACTS NOT CONSTITUTING. Under an agreement by the owner of a storeroom, divided by a board partition, to pay plaintiff, a lessee of one side of the room, for his unexpired term, plaintiff moved his shelving and part of his goods, etc., rented another room, and promised to remove the remainder of his goods a few days later. The owner removed the partition, and took possession of the entire room, and refused to vacate the part formerly occupied by plaintiff, and to pay the sum promised plaintiff on his surrender of possession. Held not a forcible detainer of the premises within Code Civ. Proc. § 1160, subd. 1, the arrangement to let part of the plaintiff's goods remain in the room temporarily making the owner merely a gratuitous depositary or bailee of the goods. [Ed. Note. For cases in point, see Cent. Dig. vol. 23, Forcible Entry and Detainer, §§ 23-28.] Appeal from Superior Court, Los Angeles County; J. S. Noyes, Judge. Forcible detainer action by B. E. Amos against Arthur Cohn. From a judgment for plaintiff and an order denying a new trial, defendant appeals. Reversed. Haas, Garrett & Dunnigan, for appellant. O. B. Carter, for respondent. SHAW, J. Action for forcible detainer. Judgment went for plaintiff in treble the amount of damages sustained. The appeal is from the judgment and an order denying defendant's motion for a new trial. Defendant was the owner of a storeroom, one-half of which he, by a written instrument, leased to plaintiff for a term expiring April 12, 1906. Defendant occupied the other half of the storeroom, and the two parts were separated by a board partition. According to the testimony of plaintiff, he and defendant on February 8, 1906, entered into a verbal agreement, whereby defendant agreed to pay plaintiff $50 for a cash register and $50 for the unexpired term of his lease, and defendant agreed that plaintiff should have until February 18th to sell the goods he then had on hand. Pursuant to this agreement, plaintiff on February 15th took out and removed his shelving and moved his desk and other articles out of the room, and piled the remainder of his goods upon a counter or table placed in the middle of the room. Defendant took down the partition separating the two rooms, and built his shelving in the room. Plaintiff rented a new storeroom on the 17th of February, and on the evening of that day he told defendant he would remove the balance of his goods the next morning, the 18th of February. Upon plaintiff arriving at the store on the 18th of February, he demanded payment of the $100 according to his understanding of the verbal agreement. Defendant claimed that plaintiff, as a part of the agreement, was to lease from him a certain vacant yard at $20 per month, and refused to pay the $100 unless plaintiff would consummate the agreement as he understood it. Defendant refused to vacate the storeroom, but placed his goods upon the shelves, notified plaintiff to remove his goods, otherwise defendant would store them in a warehouse at plaintiff's expense, which he subsequently did. Defendant bolted the front door, but plaintiff had access to his desk and goods through another door. Defendant never forbade plaintiff entering the store, but refused to open the front door, and told plaintiff he would not permit him to do business in the storeroom. The substance of the plaintiff's testimony is that, relying upon defendant's promise to pay him $100 for the cash register and surrender of his lease, plaintiff permitted defendant to enter upon possession of the premises; that after obtaining possession defendant not only refused to pay the $100 but refused to surrender possession. According to subdivision 1, § 1160, Code Civ. Proc., under which defendant must be held, if plaintiff is entitled to recover, one is guilty of forcible detainer who "by force, or by menaces and threats of violence, unlawfully holds and keeps possession of any real property, whether the same was acquired peaceably or otherwise." The finding of the court upon the question of the forcible detainer is the following: "That on the 18th day of February, 1906, the defendant unlawfully took possession of the premises described in the complaint, and ever since said 18th day of February has by force unlawfully held and kept possession of said premises." This finding is attacked upon the ground that it is not supported by the evidence; and in this view we agree with appellant. There is no evidence upon which to base the inference that the defendant exercised force, menace, or threats of violence in holding possession of the property. His entry was peaceable and with the assent and approval of plaintiff. On the morning of the 18th day of February, after defendant was in possession, plaintiff refused to remove the remainder of his goods out of the store, brought his desk back, and told defendant not to put any of his goods in the store. He came back in the evening and found that defendant had placed some of his goods upon the shelves. Plaintiff instructed his employés to bring some boxes in and defendant ordered them out, and locked the back door. On plaintiff's return to the store upon the 19th of February defendant informed him that he would not permit him to do business in the storeroom, and served him with notice that unless he removed the goods immediately he would be charged with storage. The term "force," as used in subdivision 1, § 1160, Code Civ. Proc., contemplates actual force, or such conduct on the part of defendant as tends to inspire a just apprehension of violence. There is nothing in the record tending to show the slightest violence either in manner or language of defendant. Plaintiff testified that he could have gone through defendant's store. "He did not order me not to do so. Nothing was said about it." The evidence fails to show that defendant held possession of the property by force as found by the court, and it is likewise silent as to menaces or threats of violence. The cases of Hodgkins v. Jordan, 29 Cal. 578, Buel v. Frazier, 38 Cal. 693, Thompson v. Smith, 28 Cal. 528, and Fogarty v. Kelly, 24 Cal. 317, are in point in considering the question of forcible detainer under subdivision 1 of section 1160 of the Code of Civil Procedure. We think, too, that the uncontradicted evidence shows that defendant was in the peaceable possession of the premises, and, having entered with the assent of plaintiff, the provisions of said subdivision of section 1160 of the Code of Civil Procedure would not apply. Carteri v. Roberts, 140 Cal. 164, 73 Pac. 818. Judgment and order are reversed. TAGGART, J. I concur in the judgment on the ground that the evidence shows that the possession and right of possession both vested in the defendant on February 15th, when the partition was torn down between the two rooms theretofore occupied by plaintiff and defendant respectively. The plaintiff put the defendant in possession of the entire premises, reserving only the right to let a portion of his goods remain until February 18th. This arrangement merely made defendant a gratuitous depositary for safety, or bailee, of plaintiff's goods for the three days. Plaintiff was not in possession and was not entitled to the possession of the premises on February 18th; so that defendant did not on that day unlawfully or otherwise take possession of the premises. Neither did defendant forcibly detain possession from plaintiff, since the latter was not entitled to the possession. The finding attacked (No. 2) as framed is a mere conclusion of law, but considered as a finding of fact it is not sustained by the evidence. The violation of the agreeement of defendant to pay for the possession cannot be made the basis of an action for forcible detainer. I concur: ALLEN, P. J. (7 Cal. App. 429) PORTER v. DOUGLASS et al. (Civ. 440.) (Court of Appeal, Second District, California. Jan. 20, 1908. Rehearing Denied by Supreme Court March 19, 1908.) 1. TRUSTS-ESTABLISHMENT. Plaintiff induced decedent to leave her husband and live with him, and, while living with him, placed in her hands without any agreement as to its disposition money with which she purchased property. Other property was purchas-. ed with their joint earnings, and the title by plaintiff's request was taken in decedent's name and a note and mortgage on such property executed in their joint names. Held, that there was no trust established in favor of plaintiff, though Civ. Code, § 853, provides that, when a transfer of real property is made to one person and the consideration therefor is paid by another, a trust is presumed to result in favor of the person by whom such payment is made. 2. SAME-ACTIONS-EVIDENCE. In proceedings to establish a trust in property given by plaintiff to the wife of another man whom he had induced to leave her husband and live with him, evidence that on the death of the wife he paid her burial expenses is inadmissible. Appeal from Superior Court, Los Angeles County; Curtis D. Wilbur, Judge. Action by G. S. Porter against Harry E. Douglass, administrator of Mary A. Douglass, and others. Judgment for defendants, and plaintiff appeals. Affirmed. Jones & Drake, for appellant. Wm. Mattoon, M. C. Hester, and G. P. Adams, for respondents. SHAW, J. Mary A. Douglass and defendant David E. Douglass were husband and wife. She died intestate on December 28. 1904, leaving as her heirs her said husband and three sons, Claude Douglass, Bert Douglass, and Harry E. Douglass, the last named of whom was appointed administrator of her estate. This estate consists of certain real estate and mortgages, the consideration for the purchase of which plaintiff claims to have furnished, and all of which property he claims the deceased held in trust for him. In this action he seeks a decree of court establishing a trust and adjudging that he is the owner of the property. As appears from the evidence and findings, the plaintiff prior to July 15, 1902, was in the employ of the defendant David E. Douglass in Omaha, Neb., and boarded with said defendant, with whom said Mary A. Douglass, deceased, was then living as his wife. Plaintiff had known both Douglass and his wife since 1886, and knew that they were living together as husband and wife with their three children. Plaintiff left the home and employ of said defendant David E. Douglass at the latter's request, and came to Los Angeles, from which place he carried on a correspondence with Mary E. Douglass and urged her to come to him. She followed plaintiff to Los Angeles, and, after going through a pretended marriage ceremony on a vessel at sea, plaintiff and said Mary A. Douglass lived together as husband and wife up to the time of her death. It was during this period that the title to the property involved in the action was acquired by said deceased. The court gave judgment for defendants. Plaintiff moved for a new trial, which was denied, and he appeals from both the judgment and the order denying his motion for a new trial. The court found that plaintiff at all times knew that Mary A. Douglass was the wife of David E. Douglass; that plaintiff voluntarily placed in the hands of the deceased, without any agreement as to what she should do with it, the money with which she purchased a part of the property; that other property was purchased with the joint earnings of the plaintiff and Mary A. Douglass, the title to which was, at the request of plaintiff, conveyed to her and by him intended to be and was a gift; that a note and mortgage securing the payment of the same was made in the joint names of plaintiff and decedent, with the full knowledge and consent of plaintiff, and the mortgage as thus made filed by him for record; that none of the property was held by Mary A. Douglass in trust for plaintiff. Appellant contends that, as the parties were not husband and wife, the presumption of a trust in favor of the plaintiff arises by reason of the fact that he furnished at least a part of the money to make the purchase. Civ. Code, 853. Conceding that the presumption does arise in this case, it is overcome by the evidence, which fully justifies the findings made by the court. Indeed, appellant's counsel do not attempt to point out specifically wherein the evidence fails to support the findings, but discuss the case in a general way, assigning as a reason for such course that the presentation as thus made is in a more "palatable form." Counsel's desire is commendable, and any failure in this regard is due to the facts of the case, not to a want of ability exhibited in the presentation. The language used in an opinion handed down at the present term of this court in the case of Bertelsen v. Bertelsen (No. 450) 94 Pac. 80, is applicable to this case. It was there said in discussing a case somewhat similar as to facts, but of far more merit: "We would not be inclined, even if the findings that the sums of money paid by defendant were in the nature of a gift were not entirely supported by the evidence, to disturb the judgment." Appellant contends that the court erred in sustaining an objection to a question asked plaintiff as to whether he paid the burial expenses of deceased; his claim being that proof that he paid such expenses tends to corroborate the theory that deceased was the wife of plaintiff. His complaint shows that he and Mary A. Douglass were never married. We cannot conceive of any theory upon which such evidence would be admissible. There is nothing in other points urged. We concur: ALLEN, P. J.; TAGGART, J. (7 Cal. App. 436) (Civ. 402.) In re JOHNSON. (Court of Appeal, Second District, California. Jan. 20, 1908. Rehearing Denied by Supreme Court March 19, 1908.) 1. EXECUTORS AND ADMINISTRATORS-SALEVACATION-INADEQUACY OF PRICE. Under Code Civ. Proc. § 473, providing that the court may in its discretion relieve a party from judgment taken against him through his mistake, inadvertence, or excusable neglect, relief may be had in proceedings on an application by the guardian of a minor child of a decedent to be relieved from an order confirming a sale by the executrix of certain shares of stock belonging to decedent's estate, on the ground of the disproportionateness of the price received to the value of the stock. [Ed. Note.-For cases in point, see Cent. Dig. vol. 22, Executors and Administrators, §§ 1549, 1550.] 2. STATUTES-CONSTRUCTION-REMEDIAL STAT UTES. On an application under Code Civ. Proc. § 473, providing relief from a judgment taken against a party through his mistake, inadvertence, or excusable neglect, the section is to be liberally construed as a remedial statute. [Ed. Note.-For cases in point, see Cent. Dig. vol. 44, Statutes, § 317.] 3. EXECUTORS AND ADMINISTRATORS VACATION. SALE The relief provided for by Code Civ. Proc. $473, to parties against whom judgment is taken by mistake, inadvertence, or excusable neglect, may be granted on application of a decedent's heir defrauded by a judgment confirming a sale made by the executrix, since fraud or its equivalent, whether extrinsic or other fraud, and whether practiced upon the court, or a party, or one so situated as to be held in law an adversary, is sufficient to warrant relief. [Ed. Note.-For cases in point, see Cent. Dig. vol. 22, Executors and Administrators, § 1546.] 4. CERTIORARI-PERSONS ENTITLED. Where a sale by an executrix, which was confirmed by the court, was never executed, the |