582


2  Cal.  Jur.  Appeal  and  Erbob.  §  309

his  alleged  grievance  is.*  This  requires  only  a  general
statement  of  the  tendency  of  the  evidence,  so  that  the
materiality  of  the  ruling  alleged  to  have  been  excepted
to  may  appear.^

Where  the  original  petition  is  held  insuflScient  because
it  does  not  include  the  exceptions  taken  and  evidence  in
support  thereof,  and  leave  is  given  to  file  an  amended
petition,  the  amended  petition  is  sufficient  if  it  has  an-
nexed thereto,  and  made  a  part  thereof  as  an  exhibit,  a
writing  containing  the  evidence,  rulings  and  exceptions
taken  in  the  court  below.*

§309.  Determination  and  Settlement— Where  a  peti-
tion for  settlement  by  the  supreme  court  presents  a  direct
issue  as  to  the  accuracy  of  the  bill  as  settled,  the  peti-
tioner should  be  allowed  to  prove  the  truth  of  the  issue,
and  a  commissioner  of  the  court  may  be  appointed  to  take
the  proofs  and  report  the  same  with  his  findings  thereon.*

A  petition  for  leave  to  prove  an  exception  will  be  de-
nied where  it  appears,  from  the  evidence  upon  an  issue
of  fact  as  to  the  alleged  matter  of  exception  taken  before
a  referee  appointed  by  the  supreme  court,  that  the  allega-
tions of  the  petition  are  not  established  by  the  preponder-
ance of  evidence.'  Moreover,  where  the  evidence  is
directly  conflicting  as  to  whether  the  exceptions  in  ques-
tion were  taken,  the  supreme  court  cannot  hold  that  the
superior  jndfire  erred  or  abused  his  discretion  in  not  allow-
ing them,  and  would  not  be  warranted  in  holding  that
they  should  be  included  in  the  bill.®

1.  Landers  v.  Landertt,  82  Cal.  Unrep.  259,  24  Pac.  276.  This  eom-
480,  23  Pac.  126;  People  v.  Bitan-  missioner  may  be  a  justice  of  the
court,  73  Cal.  1,  14  Pac.  372;  Estate  supreme  court.  See  report  of
of  Hawes,  68  Cal.  413,  9  Pac.  456.  Beatty,  C.  J.,  in  Estate  of  Dolbeer,

2.  People  V.  Bitancourt,  73  Cal.  1,  147  Cal.  569,  82  Pac.  192.
