Volume 10 — California Appellate Reports

MOTION to dismiss an appeal from a judgment of the Superior Court of the City and County of San Francisco. J. V. Coffey, Judge. The facts are stated in the opinion of the court.

<p>The facts are stated in the opinion of the court.</p>

<p>Judgment by Default—Irregular Entry—Jurisdiction—Bemedy by Motion Within Seasonable Time.—When the court, at the time of the entry of judgment by default, had an affidavit of service of summons, showing default, and had jurisdiction of the subject matter of the suit and of the persons of the defendants, the fact that there was an error of one day in the date of service of summons, and that the judgment was irregularly entered before actual default of the defendants, did not deprive the court of jurisdiction nor render the judgment void, and it could only be vacated upon a proper motion made within a reasonable time.</p> <p>Id.—Laches—Loss of Bemedy.—When, upon notice that defendants claimed that the default judgment was prematurely entered, plaintiff’s attorney proposed that if defendants would state that the money claimed in the complaint was not wholly due, plaintiff would stipulate to set aside the judgment by default, which defendants did not accept, and they made no attempt to move for relief from the judgment by default under section 473 of the Code of Civil Procedure, but after the lapse of six months from the date of its entry, and after the plaintiff had incurred expense in attempting to enforce payment of the judgment, they moved to vacate the same solely on the ground that it was prematurely entered, without the presentation of any answer or showing of merits, all remedy of defendants for relief from the judgment was lost by their laches.</p> <p>Id.—Prompt Motion—Affidavit of Merits.—If the defendants had moved promptly or within a reasonable time, and had filed the proper affidavit of merits, the court would have been authorized to grant relief from the judgment by default, upon its finding that the same was prematurely entered by reason of a wrong showing of the date of service of summons. [Upon the question of the necessity of an affidavit of merits, upon a prompt motion, in such ease, the supreme court, upon denying a rehearing, on the ground of laches, expressed no opinion.]</p> <p>Id.—Rule as to Setting Aside Valid Judgments—Showing of Honesty and Good Faith.—It is a rule of universal application that a court will not set aside a judgment valid on its face, of which the court had jurisdiction, except the party applying makes at least an apparent showing of honesty and good faith, by showing that he has a defense to the action on its merits, and that a valid judgment by default will not be opened, unless it is made to appear prima faoie that the judgment as it stands is unjust.</p> <p>Id.—Erroneous Order Setting Aside Default Judgment.—Held, that the order setting aside the judgment by default in this case, upon the facts appearing in the record, was erroneous, and must be reversed.</p>

<p>Criminal Law—Assault with Intent to Commit “Rape”—Information—-Failure to Negative Wifehood of Prosecutrix to Accused—Jurisdiction.—An information charging the crime of an assault with intent to commit “rape,” which does not show the prosecutrix was “not the wife of the perpetrator,” as required by section 261 of the Penal Code, defining the crime of “rape,” does not state a criminal offense within the original jurisdiction of the superior court.</p> <p>Id.—Crime of Mere “Assault”—Absence of Original Jurisdiction.— It cannot properly be maintained that the information is to be construed as charging merely the crime of “assault,” since that offense is clearly not within the original jurisdiction of the superior court.</p> <p>Id.—Intent "by Force and Violence to Carnally Know.”—The charge of an intent “feloniously and by force and violence to carnally know” the prosecutrix, “and accomplish with her an act of sexual intercourse against her will and without her consent,” cannot in any way aid in determining that the prosecutrix was not the defendant’s wife.</p> <p>Id.—Instruction—Presumption of Guilty Intent from Unlawful Act.—A correct abstract instruction that a malicious and guilty intent is presumed from the deliberate commission of an unlawful act for the purpose of injuring another should not be given without qualification upon a charge of an assault with intent to commit rape, which intent is denied by the defendant. It should not be conclusively presumed from the assault that its intent was to ravish the prosecutrix, though such intent may have existed.</p> <p>Id.—Evidence—Hearsay—Conversation with Third Party Concerning Prosecutrix.—A question asked of the mother of the prosecutrix as a witness, as to what a third party stated as to her daughter’s brave and collected conduct as a witness, was improperly admitted as calling for hearsay testimony.</p> <p>Id.—Support of Verdict.-—-Held, that notwithstanding the strangeness of the case, and the uncertainty of the tesbimony, yet, if the defendant made the assault as testified to by the prosecutrix, it is hard to conceive what other motive he could have in view, and that, considering all the circumstances, it cannot be said that the verdict is without support.</p>

<p>Fire Insurance—Sale and Purchase of Insured Property without Consent op Insurer—Policy Vitiated.—Under a policy of fire insurance providing that the policy shall be void, unless otherwise provided by indorsement thereon, if any change takes place in the interest, title or possession of the subject of insurance, a contract for the sale and purchase of the insured premises, transferring possession to the purchaser under fixed terms of payment, without any indorsement on the policy or consent of the insurer, vitiates the policy, and no recovery can be had thereon in the event of loss by fire.</p> <p>Id.—Distinction Between Contract op Sale and Option—Question op Obligation.—The distinction between a contract to sell and purchase real estate and an option to purchase is that the former creates a mutual obligation on the one party to sell and on the other to purchase, while the latter merely gives the right to purchase, within a limited time, without imposing any obligation to purchase.</p> <p>Id.—Terms op Contract op Sale and Purchase—Cash Payment— Possession — Beneficial Ownership — Re-entry for Breach.— Where the price fixed by contract for the sale of the insured premises was $10,'000, on which the purchaser paid $3,000 in cash when he took possession thereof, and obligated himself to pay the residue in monthly installments by a fixed time, the $3,000 cannot be deemed the price of an option, but the possession taken by the purchaser under the terms of the contract made him the equitable or beneficial owner of the premises; and the mere fact that, in case of breach of the contract, it was stipulated that the vendor might re-enter, and treat all payments made as compensation for use of the premises, does not make the contract an option or render it any the less a contract for the sale and purchase of the premises insured.</p> <p>Id.—Forfeiture for Loss of “Unconditional 'and Sole Ownership”—> Defeasible Rights.—When, by the terms of the policy, it was to be forfeited, “if the interest of the insured be other than unconditional and sole ownership,” without an agreement by the insurer on the policy, it became manifest that his “unconditional and sole ownership” ceased to exist when an equitable interest in possession was bestowed upon the purchaser under the contract of sale and purchase. In such case neither the vendor nor vendee had an absolute title; but the equitable title of the purchaser, as such, was as absolute as the legal title of the vendor as such. Both of these titles were defeasible—that of the purchaser by the forfeiture prescribed in the agreement of sale and purchase, for nonperformance of its conditions, and that of the vendor, upon full performance of those conditions by the purchaser, thereby divesting the vendor of all ownership of the property.</p> <p>Id.—Policy of Insurance a Personal Contract—Breach of Conditions.—A policy of insurance is a personal contract between the insurer and the insured, and is subject to all express conditions in- • serted therein; and a breach of such conditions against any voluntary change in the interest, title or possession of the insured premises, not agreed to by the insurer on the policy, divested, ipso faoto, the insured of all insurable interest in the insured premises, and renders the contract void.</p> <p>Id.—"Change of Interest” in Property Insured.—A “change of interest” in the property insured, without consent of the insurer, is-as effectual to defeat the policy as a “change of title.” The word “interest” is broader and more comprehensive than the word “title,” and embraces both legal and equitable rights. The doctrine that there is no breach of condition against “change of title,” so long as the insured retains the title, cannot be applied to the condition against a “change of interest.” The true test is whether the insured, as a vendor, has parted with the absolute control and dominion over the property insured to a purchaser. If he has, a “change of interest” has been effected, which if not sanctioned by the insurer makes the policy void.</p> <p>Id.—“Change of Possession.”—The “change of possession” which vitiates the policy is made when possession is given, not merely to a tenant of the insured, whose possession is constructively his, but to a purchaser to whom a right of possession is given as against the insured as a vendor, so long as the terms of purchase are complied' with.</p> <p>Id.—Increase of Bisk Immaterial.—It is immaterial whether there was or was not an increase of risk by delivery of possession under a contract of sale to a purchaser. That question is only material when possession is held by a tenant of the insured.</p> <p>Id.—Presumption from Personal Character of Insured Party—Protection of Policy-holders Against Transfer to Unknown Party.—It must be assumed that the personal character of the insured party was an important factor in moving the insurance company to assume the risk; and it owed a duty to other policy-holders to fortify itself against assuming any other hazard in favor of another party unknown to the insurer, and to require its consent to any change in the interest, title or possession of the insured premises. Id.—Bights of Insurance Company.—The insurance company is entitled to a substantial compliance on the part of the insured with the terms of the contract of insurance.</p> <p>Id.—Bulb of Construction in Payor of Assured—-Limits of Application.—The rule of construction of an insurance policy in favor of the insured only applies to resolve an uncertainty or ambiguity therein in his favor, and cannot be invoked to nullify his express and unequivocal agreement, or to change the nature and- express conditions of the policy.</p>

<p>APPEAL from a judgment of the Superior Court of the City and County of San Francisco. George A. Sturtevant, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>The facts are stated in the opinion of the court.</p> <p>John M. Eshleman, M. W. Conkling, Conkling & Brown, and Eshleman & Swing, for Appellant.</p>

<p>Action fob Bent—Void Lease fob Saloon Purposes—Proximity to Church—Violation of City Ordinance.—No action for rent can be maintained upon a lease knowingly executed by both parties for saloon purposes within one hundred feet of a church in express violation of a city ordinance providing that no saloon shall be permitted or licensed within one hundred and fifty feet of a church.</p> <p>Id.—Contract in Violation of Law—Belief Denied to Either Party.—No recovery can be had by either party to a contract having for its object the violation of law.</p> <p>Id.—Facts Well Known—Parties Chargeable with Knowledge of Law.—Where the facts making the saloon business to be conducted on the leased premises unlawful were well known to both parties, they are both chargeable with knowledge df the law making their contract invalid and unenforceable.</p> <p>Id.—Untenable Cross-complaint for Moneys Spent in Fitting up Saloon.—No relief can be granted to the defendants against the plaintiff by way of cross-complaint for moneys expended by them in fitting up the leased premises for a saloon to be conducted thereon in violation of law.</p>

<p>Criminal Law—Murder—Self-defense—Instruction Warranted by Evidence.—Held, upon appeal from a judgment of conviction of the defendant for the crime of murder, that, notwithstanding defendant’s testimony to self-defense, the evidence adduced upon the trial fully warranted the court in instructing the jury: “If you believe from the evidence that, at the time of killing, the defendant could, with safety to himself, have avoided such killing, and that defendant knew, or as a reasonable man could have known, that he could, with perfect safety to himself and his person, have avoided such killing, then if you find all these facts, the defendant cannot justify' such killing on the grounds of self-defense.”</p> <p>Id.—Right of Defendant Assailed to Stand Ground—Instruction— Applicability.—It is not a ground of objection to the foregoing instruction that it did not present the law as to the right of a defendant assailed to stand Ms ground against an aggressor, when other instructions gave the defendant the full benefit of the law on that subject. Yet it may be doubted whether the facts as they appeared, even giving all reasonable weight to defendant’s testimony, would warrant the application of that rule at all; it appearing that the killing was a brutal, cold-blooded murder without semblance of justification on the ground of self-defense, and that to hold deceased to he in any sense an aggressor would be a gross distortion of the facts.</p> <p>Id.—Prior Assault to Avenge Insult to Woman—End of Affair— Ample Time to Cool Blood—Motive of Killing.—When the affair of a prior assault made by the deceased without a weapon, to avenge an insult by defendant to a woman, had come to an end, and deceased was no longer an aggressor, and defendant had ample time to cool his blood, if such prior affair can be brought into the question at all, it tends merely to furnish the probable motive of the killing, as having been in retaliation for the prior assault by deceased after he had ceased to be the aggressor.</p> <p>Id.—Evidence of Previous Good Character—Aid of Presumption of Innocence—Proper Refusal of Requested Instruction.—Evidence of good character is admissible as coming to the aid of the presumption of innocence, and as bearing on the question whether guilt is proved beyond a reasonable doubt; but it was proper to refuse a requested instruction that “the defendant’s character outweighs the evidence against him, even if the evidence outside of the evidence of good character conclusively establishes his guilt.”</p> <p>Id.—Instruction Given not Required to be Repeated.—When the court had properly instructed the jury upon the weight to be given to evidence o£ the previous good character of the defendant, it was not required to give so much of a requested instruction on that subject as repeated the charge given.</p> <p>Id.—Evidence—Cross-examination—Turning op Deceased at Dependant’s Approach—Object op Turning—Conclusion op Witness.—Where the evidence showed that deceased was standing unarmed with others and was warned that defendant was approaching with a pistol, and turned around, when defendant came up and shot him three times, it was proper to refuse a question on cross-examination of a witness for the prosecution, whether at the time deceased turned round, “had he started back to renew the fight?” as calling for the conclusion of the witness.</p>

<p>The facts are stated in the opinion of the court.</p> <p>G. W. Langan, for Solomon Baumgarten, Plaintiff, Appellant.</p> <p>Asa V. Mendenhall, for J. F. Baumgarten, Defendant, Appellant.</p>

<p>The facts are stated in the opinion of the court.</p>

<p>APPEAL from a judgment of the Superior Court of Los Angeles County, and from an order denying a new trial. B. N. Smith, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>APPEAL from a judgment of the Superior Court of Alameda County, and from an order denying a new trial. .William H. Waste, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>The facts are stated in the opinion of the court.</p>

<p>APPEAL from an order of the Superior Court of Santa Barbara County denying a motion to change the place of trial of a foreign corporation. S. E. Crow, Judge.</p> <p>The facts are stated in the opinion of the court.</p> <p>E. W. Camp, U. T. Clotfelter, A. H. Van Cott, and M. W. Reed, for Appellant.</p>

<p>Action on Note—Joint and Several Guaranty—Untenable Cross-complaint—Contribution—Parties—Amendment of Code.—In an action on a note in which three out of eight joint and several guarantors are made defendants, which action was commenced subsequently to the amendment of 1907 to section 442 of the Code of Civil Procedure (Stats. 1907, p. 706), which expressly limits a cross-complaint to affirmative relief against a party or parties to the action, a cross-complaint by one of the guarantors defendant, who had made a payment on the note, seeking to bring all of the other guarantors in as parties, in order to enforce contribution against them, and seeking no relief against the plaintiff, is untenable, and a demurrer thereto was properly sustained, without leave to amend; and judgment was properly rendered on the note against the three guarantors made defendants.</p> <p>Id.—Former Decisions Inapplicable.—The decisions made under section 442 of the Code of Civil Procedure, as it existed prior to the amendment of 1907, are inapplicable under that section as then amended, it being the express object of the amendment to confine relief by cross-complaint to the parties to the action.</p> <p>Id.—Joint and Several Liability—Eight of Plaintiff to Elect.— The plaintiff was entitled to elect whether he would sue one or more of the joint and several guarantors, and those sued can bring in no other defendants.</p> <p>Id.—Remedy of Guarantors.—The guarantors made parties and those who were not made parties were left to determine their liabilities, as between themselves, in a separate controversy, as they may choose.</p> <p>Id.—Construction op Section 389—New Parties.—The right to bring in new parties under the terms of section 389 of the Code of Civil Procedure still exists; but it is to be exercised when the court, finds new parties necessary for the proper determination of a controversy already before it. Yet this right is subject to the power of the court to determine the controversy before it without bringing in new parties; “when this, can be done without prejudice to the rights of others, or by a saving of their rights.”</p>

<p>Action for Deceit—False Representations as to Profits of Business—Burden of Proof—Prima Facie Case—Motion for Non-suit.—In an action to recover damages for alleged, false and fraudulent representations made by defendant to plaintiff with1 respect to the amount of weekly profits received from two barber-shops, up to the time of the sale of a half interest therein to plaintiff, who was not a barber, and who purchased relying upon defendant’s false representation that the profits were $100 per week up to that time, though the plaintiff has the burden to prove that the averments of the complaint are prima facie true, yet such burden is sufficiently sustained to preclude the granting of a motion for non-suit, by proof that the first week after the purchase the profits were not $100, but only $39, and that for no week while the parties were in business did they exceed more than $40, and that for many weeks they were much less.</p> <p>Id.—Proof of Negative Averment.—The averment of the complaint as to the profits of the shops' was negative in character; -and under the circumstances like these here appearing, a negative allegation does not require the same degree of proof to sustain it as does an affirmative allegation.</p> <p>Id.—Proof of Fraud Sustained bt Inference.—Fraud is generally proved by inference from facts and circumstances, and not by direct and positive proof; and it is held that the circumstances of this ease afforded a satisfactory inference that the representations as to the profits of the shops were false and fraudulent.</p> <p>Id.—Neglect of Defendant to Keep Books.—When it appears that though the plaintiff became a partner in the business, no apparent change was made in its management, and that the defendant kept no books of account, the plaintiff produced all the evidence on this point that could be expected of him.</p> <p>Id.—Action for Deceit not Waived—Effect of Verdict.—Held, that there is nothing in the record to show that this action for deceit was waived; and it is conclusive against it that there was sufficient evidence to warrant the jury in believing, as their verdict for the plaintiff shows, that the fraud was not waived.</p> <p>Id.—Single Material Misrepresentation.—A single material misrepresentation knowingly made with intent to induce another to enter into a contract, will, if believed and relied upon by that other, afford as complete a ground for relief as if it had been accompanied by a multitude of other false representations.</p> <p>Id.—Right of Plaintiff to Rely upon False Representations as to Past Profits—Fact Peculiarly Known to Maker.—Under the law ancl the circumstances of this case, the plaintiff was entitled to rely upon the false representations as to the past profits of the business, which is to be considered as of a fact lying peculiarly within the knowledge of the maker, so that they may be relied upon; and if they are false and known to be such, they constitute fraud, and the plaintiff, having relied thereupon to his damage, is entitled, to recover therefor.</p> <p>Id.—Election of Remedy—Rescission not Required—Notice—Election to Sue for Damages.—The plaintiff had the election either to rescind the contract of sale, or to bring suit for damages for the false and fraudulent representations. But the mere fact that the plaintiff gave notice of rescission does not require him to pursue that remedy; and he could leave the rescission ineffective, and elect to sue for damages for the fraud.</p>

<p>Certificate of Deposit—Construction—Words “Not Transferable”—Negotiability—Assignability not Limited—Subsequent Stipulations.-—A certificate of deposit with the words “not transferable” written under its title, is to be construed as intended merely to render the certificate “non-negotiable” under the law-merchant, and not as intended to restrict the mere assignability of the instrument as an incident of ownership, especially when such restrictive words are followed by a subsequent stipulation made part of the instrument, that the “sum cannot be drawn unless this receipt is returned signed by the depositors,” which imports that it may be returned by anyone with the names of the depositors signed thereon.</p> <p>Id.—Construction op Contracts—Limitation op Clauses—Construction Against Promisor.—One clause of a contract apparently conclusive as to a particular thing may be enlarged or limited by other provisions of the instrument upon the same subject; and doubtful or conflicting clauses in an agreement should be construed against the party responsible for the ambiguity, who is presumed to be the promisor.</p> <p>Id.—Construction Against Restriction upon Alienation.—When one construction of a contract involves the absolute destruction of the property right of alienation, and another retains such right, and, at the same time, protects all parties from loss or injury, that construction should be given which would not forfeit property or property rights.</p> <p>Id.—Practical Construction—Intention of Parties.—Where the practical construction of an ambiguous contract by the acts of the parties manifests the same intention of the parties which is to be gathered therefrom by correct principles of construction, it affords a reliable clew to their intentions.</p> <p>Id.—Demurrer to Complaint op Assignee—Admissions—Intention op Parties—Circumstances op Execution op Certipicate—Lex Loci.—When the complaint on the certificate of deposit by the assignee thereof was demurred to by the maker, and the demurrer admits its averments as to the meaning of the certificate, and as to the intention of the parties thereto, under the circumstances surrounding its execution, and that by the laws, customs and usages of the place of the contract the words “not transferable” merely import non-negotiability, as applied to commercial paper, and do not have the effect to establish its nonassignable character, that it was assigned to the plaintiff by the payee, and that payment thereof was demanded by the assignee and payment refused, the maker’s demurrer thereto was improperly sustained.</p> <p>Ib.—Certifícate Payable in Hongkong—Action in This State After Demand and Refusal—Jurisdiction—Appearance op Dependant. Although the certificate of deposit was executed in Hongkong, and by its terms was payable there, yet when it appears that demand of payment was there made by the assignee and payment refused by the maker, and that the maker has a place of business in California, there is no good reason why an action should not be brought against it in the courts of this state, where the defendant gives jurisdiction of its person by an appearance by general demurrer to the complaint, questioning its sufficiency to state a cause of action.</p>

<p>Mechanics’ Liens—Notice of Lien—Description of Property Sufficient for Identification Essential.—In order to bind the property of the owner of a building erected on his lot with notice of lien filed under section 1187 of the Code of Civil Procedure, such notice must contain a description of the property sought to be charged with liens, sufficient for identification thereof.</p> <p>Id.—Insufficient Notices—Building not Identified—Other Property Described.—When it appears that the only lot owned by the person causing the building to be erected thereon was lot 18 in block 4 of a specified tract, and that the notices of liens in controversy for materials furnished contained no description of the building by its general location, but merely misdescribed the property sought to be charged as lot 18 in block 5 of the same tract, which has an existence, the liens are thereby rendered invalid.</p> <p>Id.—New Section of Code not Retroactive.—Section 1203 of the Code of Civil Procedure, as enacted in 1907 (Stats. 1907, p. 858), can have no effect upon the validity or invalidity of liens, when the proceedings in the action to enforce the same were had prior to its enactment.</p> <p>Id.—Misdescription of Lot in Contract—Invalidity—Owner not Estopped to Contest Invalid Liens.—When the recorded contract, by mistake of the architect in drafting the same, misdescribed the lot on which the building was to be erected in the same manner as in the notices of liens, and thereby failed to describe the lot to be affected by the contract, as required by section 1183 of the Code of Civil Procedure, the effect is the same as if no contract was made, and the property of the owner is chargeable to the full with valid liens; but he is not thereby estopped from contesting the validity of liens not chargeable against Ms property under section 1187 of the Code of Civil Procedure.-</p>

<p>APPEAL from a judgment of the Superior Court of Alameda County, and from an order denying a new trial. F. B. Ogden, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Annulment or Marriage—Physical Incapacity or Husband—Showing Required Under Code.—An annulment of a marriage for physical incapacity of the husband can only be granted under section 82 of the Civil Code, where it appears that the husband “was, at the time of the marriage, physically incapable of entering into the marriage state, and such incapacity continues and appears to be incurable.” It is necessary, in such ease, to allege and prove that the physical incapacity continues and appears to be incurable.</p> <p>Id.—Insufficient Complaint fob Annulment of Marriage—Incurability not Shown.—A complaint by the wife to annul the marriage for physical incapacity of the husband, which does not follow the language of the statute, and neither avers that the physical incapacity of the husband for entering the marriage state “appears to be incurable,” nor states any facts which show such in-curability, either as the result of disease, or defect or malformation of the sexual organs of the husband, and does not show that plaintiff is normal in her sexual organs, and that the physical incapacity of the husband for sexual intercourse was not her fault, does not state a cause of action.</p> <p>Id.—Insufficiency of Evidence—Conflict as to Physical Incapacity—Continuance and Incurability not Proved.—-Where the only evidence given upon the trial was that of the plaintiff that during; the two months that they lived together, before the complaint was-filed, defendant was physically incapable and not able to perform, sexual intercourse, and never succeeded therein, and the equally positive conflicting testimony of the defendant that they had sexual intercourse together during all the time they lived together, that he never failed to respond, and that his physical condition was as good as it ever had been in his life; but there was no evidence that his-physical incapacity continued to the time of the trial, or that it was incurable, it is wholly insufficient to sustain findings and judgment for the plaintiff annulling the marriage.</p>

<p>APPEAL from a judgment of the Superior Court of Alameda County, and from an order denying a new trial. John Ellsworth, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Trust in Legal Title fob Security—Foreclosure not Esquired— Judgment Quieting Title Subject to Condition of Payment in Eeasonable Time.—Where it appears that the owners of an equitable estate in real property under a contract of purchase, who had made part payment, conveyed their equity to a third person upon trusts declared by him, and it was afterward agreed between the parties that the trustee should pay the residue of the purchase money, and take- the legal title from the vendor and possession by way of security therefor and for taxes to be paid, the transaction is not a mortgage requiring foreclosure, but a trust in the legal title, by way of security, and in an action by the trustee to determine the conflicting claims of the parties, it was proper for the court to find and adjudge that plaintiff has the title, and to quiet the same, subject to condition of the payment of the amount found due within a reasonable time fixed by the court, with interest from the date of the findings, upon payment of which the property should be conveyed to defendants.</p> <p>Id.—Decision upon Former Appeal not Law of Case—Facts Materially Different.—Where the facts appearing upon the trial of the present case are materially different from those appearing upon a former appeal, when the transaction as it then appeared was held to constitute a mortgage requiring foreclosure, its decision is not the law of the ease upon the present appeal.</p> <p>Id.—Eelief Granted the Only Eemedy to Which Plaintiff was Entitled.—The only remedy to which the plaintiff was entitled was to enforce the trust upon condition of paying the amount found due, which is, in effect, the relief granted under the findings and judgment.</p>

<p>APPLICATION for discharge upon writ of habeas corpus to the sheriff of Lassen County.</p> <p>The facts are stated in the opinion of the court.</p>

<p>APPEAL from a judgment of the Superior Court of Alameda County, and from an order denying a new trial. John Ellsworth, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

PETITION for writ of review to annul an order of the Superior Court of Solano County. L. G. Harrier, Judge. The facts are stated in the opinion of the court.

<p>APPEAL from an order of the Superior Court of Mendocino County revoking letters of administration. Emmet Seawell, Judge presiding.</p> <p>The facts are stated in the opinion of the court.</p>

PETITION for writ of review to annul an order of the Superior Court of the City and County of San Francisco, modifying a temporary injunction. James M. Troutt, Judge. The facts are stated in the opinion of the court.

<p>Action on Note—Consideration—Presumption—Burden of Proof.— In an action on a promissory note the law raises the presumption that it was given for a consideration, and the burden of proof is upon the defendant to show that there was no consideration therefor.</p> <p>Id.—Evidence of Consideration—Value of Use of Money—Desire for Further Use—Just Obligation—Inconsistent Finding and Judgment—New Trial.—Where there was no evidence for the defendant, and the plaintiff testified the note was given for the value of the use of $25,000 of plaintiff’s money for seven months, and the desire for the use of the same for a longer period, and that the defendant proposed the note as a just obligation, and paid $30 interest thereon, findings and judgment for the defendant are not supported by the evidence, and the court properly granted a new trial to the plaintiff.</p> <p>Id.—New Trial for Insufficiency of Evidence—Discretion of Court.—A motion for a new trial for insufficiency of the evidence to justify a verdict or the findings of the court is addressed to the sound legal discretion of the trial court, and its action will not be disturbed upon appeal, unless it appears that there was a clear abuse of discretion. Held, that in this case, not only there is no abuse of discretion, but that the evidence was such that the court properly granted the motion for a now trial.</p>

<p>Criminal Law—Burglary Jointly Charged—Separate Trial—Evidence—Bequbsted Instruction Properly Befused.—Upon a separate trial of the defendant) jointly charged with another, for the crime of burglary, where the circumstances of the case were such that even if the evidence indicated that the other defendant was the real active participant in the crime, nevertheless, under section si of the Penal Code, defendant might be found guilty as aiding and abetting therein, but, as matter of fact, the evidence tended strongly to prove that both of them participated in the crime, and there was also evidence tending to show that defendant was the more active participant, a requested instruction to the jury, that “if you find from a consideration of all the evidence that it points as clearly to some other person, as the person who committed the crime in question, as it does to the defendant, or if, after a fair and full consideration of all the evidence, the jury entertain a reasonable doubt as to whether Charles Olivas or some • other person was the guilty party, then it is your duty to acquit the defendant,” was properly refused.</p> <p>Id.—Clause as to Seasonable Doubt Embodied in Charge.—When the element of reasonable doubt involved in the last clause of the requested instruction was completely covered by a number of the instructions embodied in the charge, its repetition in the requested instruction was unnecessary.</p>

<p>The facts are stated in the opinion of the court.</p>

<p>Taxation—Assessment—Wells, Pumping Machinery and Pipe-lines on Water-bearing Lands.-—-Wells, pumping machinery and pipelines on water-bearing lands, together with such lands, constitute “real estate” within the definition of that term as used in the revenue act, which includes “the possession of claimants, ownership of or right to the possession of land,” and all of such property should be assessed and taxed as real estate.</p> <p>Id.—Duty of Assessor and State Board of Equalization—Presumption of Performance.—It is made the official duty of the assessor to prepare an assessment-book with proper headings as directed by the state board of equalization, in which must be listed all property within the county under the proper head; and the presumption in favor of their action is that they have each performed their official duty.</p> <p>Id.—Action to Recover Taxes Paid Under Protest—Conclusion of Wrongful Assessment not Justified—Presumption not Negatived.—When the complaint in an action to recover taxes on such property paid under protest does not negative the presumption that the official duty of the assessor and of the state and county boards of equalization were regularly performed, its averments do not justify the conclusion of the plaintiff that the improvements were assessed as personal property.</p> <p>Id.— Informal Listing not Invalidating Assessment — Equalization—Correction.-—If it be conceded, as matter of fact, that the improvements were listed as “personal property” in the assessment-book, such listing by the assessor would be merely an informality which, under section 3885 of the Political Code, would not invalidate the assessment, for it could in no wise prevent equalization and correction.</p> <p>Id.—Appearance of Plaintiff Before Board of Equalization— Waiver and Estoppel of Plaintiff.—The plaintiff, by voluntarily appearing before the board of equalization, waived notice of any action within its power to correct or order the correction of any informality in the assessment so as to make it conform to the law; and when he asked the board merely .to lower the amount of the assessment, which thoy granted, the plaintiff, being then aware of the form of the assessment, and of the manner thereof, and having urged no objection thereto before the board, should not be permitted to remain silent until it was too late to correct the informality, and then seek to avoid taxation by asserting such informality as a ground for the recovery back of taxes paid under protest.</p> <p>Id.—Legal Effect of Assessment—Collection of Taxes as on Real Estate—Improper Averment Disregarded.—Notwithstanding the informality in the assessment, in placing improvements on the land on the assessment-book under the heading of personal property, since not only is the rate of taxation not different, but also since the assessment-book shows the character of the property, and that, in legal effect, it is all real estate, it follows that, under the law, the taxes levied and assessed upon the whole property were collectible only in the manner provided for the collection of taxes upon real estate, and only in that manner could plaintiff be compelled to pay the same. Plaintiff’s averment that his legal obligation is different under the two forms of assessment may be dis-. regarded.</p> <p>Id.—Action of Board of Equalization Judicial and Conclusive— Collateral Attack.—The action of the board of equalization is judicial in its character, and is conclusive as to the amount and validity of the tax, and its action cannot be collaterally assailed, whatever error may have been committed in the assessment, where no fraud or abuse of discretion is shown in its action.</p>

The transcript shows that the contract and specifications contain the provisions cited in the first syllabus, besides some other provisions imposing conditions upon the contractor. Other facts as to the decree are stated in the opinion of the court.

<p>APPEAL from a judgment of the Superior Court of Los, Angeles County, and from an order denying a new trial.. George H. Hutton, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>APPEAL from an order of the Superior Court of the City and County of San Francisco. John Hunt, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>APPEAL from a judgment of the Superior Court of San Joaquin County, and from an order denying a new trial. C. W. Norton, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>The facts are stated in the opinion of the court.</p>

<p>The facts are stated in the opinion of the court.</p>

<p>Appeal—Order Disposing of Demurrer to Complaint—Judgment of Dismissal.—An order disposing of a demurrer to the complaint is not appealable; but the sufficiency of the complaint will be reviewed upon appeal from a judgment dismissing the action.</p> <p>Specific Performance—Contract for Proceeds from Conveyance of Mine to Corporation—Shares of Stock—Constructive Thus-tees—Parties.—Under a" complaint seeking specific performance of a contract to convey a mine, and pay one-eighth of the net price thereof to plaintiff’s assignor, and alleging a sale and conveyance thereof to defendant corporation, and claiming one-eighth of its stock as the proper share of the proceeds of sale, and charging the corporation and all of its stockholders as constructive trustees, with full knowledge of plaintiff’s rights, the defendants so charged are proper and necessary parties to the action.</p> <p>Id.—Contract to Pat Share oe Net “Price” oe Mine.—Under a contract to pay an agreed share of the net “price” received for the mine, the assignee of the person entitled to any such share is entitled to a like proportion of the capital stock of a corporation for which the mine was sold and conveyed. “Price” does not necessarily mean value in money. It means some other equivalent.</p> <p>Id.-—Question not Determined.—The court does not determine the question whether plaintiff is entitled under the terms of the contract to one-eighth of the nominal capital stock of the corporation or only one-eighth of the total number of shares issued, that question not being vital in determining whether the complaint states a cause of action.</p> <p>Id.—General Demurrer to Complaint—Cause of Action—Uncertainty Waived.—Where the complaint states a cause of action against all of the defendants, and the demurrer was only general, any uncertainty in its averments is waived and cannot be ground for reversal.</p> <p>Id.—Assignment Impliedly Averred.—Though the assignment to the plaintiff by his assignor is not definitely averred, the implied averment by the description of him as “plaintiff’s assignor ” is sufficient as against a general demurrer.</p> <p>Id.—Value oe Stock not Required to be Alleged.—It was sufficient for the purposes of this action to allege the full amount of the capital stock of the corporation and how it was divided, and what number of shares were held by the defendant shareholders charged as constructive trustees, and it was not necessary to allege the value of the stock where there is nothing in the complaint to show that its value is trivial.</p> <p>Id.—Demurrer Improperly Overruled—Erroneous Order to Amend Complaint to Omit Defendants — Error in Demurrer not Waived.—The ruling of the court after improperly overruling the demurrer of all parties save one, in directing the plaintiff to amend his complaint by omitting all defendants save one, cannot be upheld; but even if the ruling had been complied with by the plaintiff, he would not thereby waive the erroneous ruling on the demurrer, nor his right to object thereto on appeal from the judgment.</p>

<p>The facts are stated in the opinion of the court.</p>

<p>APPEAL from a judgment of the Superior Court of Los Angeles County, and from an order denying a new trial. Charles Monroe, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

Curtis D. Wilbur, Judge rendering judgment and order; B. N. Smith, Judge acting at trial and instructing jury. Other judges acted as stated in the opinion of the court, which also states further facts in the case.

<p>Money had and Received—Basis and Theory of Action—Ownership by Plaintiff.—An action for money had and received by defendant from a third party for plaintiff’s use is predicated upon the theory that the defendant had received money, or property as such presumably converted into money, which in fact belonged to the plaintiff, and in which the defendant never at any time had an interest.</p> <p>Id.—Findings must be Within Issues.—The rule is elementary that findings must be within the issues raised by the pleadings, and that findings outside of such issues must be disregarded as affording any basis for a judgment rendered thereon.</p> <p>Xb.—Failure to Find upon Issues Joined—Findings Outside of Issues—Judgment not Supported.—Where the court failed to find upon the issues joined in the action for money had and received, and found outside of such issues that the third party was plaintiff’s debtor in the amount of the money alleged to have been had and received by defendant, and that there was a tripartite agreement between plaintiff’s assignor, such third party and defendant, that such third party should sell and assign notes and mortgages to defendant, as part consideration of which defendant promised and agreed to pay to plaintiff’s assignor the amount of such indebtedness, such findings cannot support judgment for the plaintiff for such amount.</p> <p>Id.—Absence of Ownership in Plaintiff.—Such findings show the absence of any ownership of the notes and mortgages assigned to defendant, or in the proceeds thereof, in the plaintiff, and cannot support the complaint for money had and received to plaintiff’s use.</p> <p>Id.—Action not upon Executory Contract.—The findings show that whatever rights plaintiff had were based upon an executory contract on the part of defendant, independently and regardless of the collection of the notes and mortgages, to pay a portion of the consideration therefor to plaintiff’s assignor; but the action is not based thereon.</p> <p>Id.—Statute of Limitations—Hew Promise.—The rights of the plaintiff are not barred by the statute of limitations, where, notwithstanding the notes and mortgages were converted by defendant to its own use, conceding that the statute was then set in motion rather than at the date of payment thereof, yet where the record shows that defendant within the statute in writing acknowledged its obligation to pay the plaintiff the amount agreed to be paid, the court properly found that the action is not barred by the statute.</p>

<p>Negligence—Open Manhole in Sidewalk—Injury to Plaintiff— Support of Verdict—Master and Servant—Independent Contractor.—In an action for damages for alleged injury to the plaintiff owing to the negligence of the defendant in permitting a manhole in its sidewalk to remain open, into which the plaintiff fell, held, that the support of a verdict for the plaintiff depends upon whether the relation of master and servant existed between the defendant and the servant whose neglect caused the injury, or whether such servant was employed by an independent contractor, for whose negligence the defendant was not responsible.</p> <p>Id.—Written Contract with Head Porter of Hotel—Construction —Question of Law for Court.—When a contract claimed by the defendant to be that of the employment of the head porter of defendant’s hotel as an independent contractor, one of whose subordinate porters left the manhole open, was wholly in writing, the construction of the written contract is a question of law for the court, and the court properly refused to submit that question to the jury.</p> <p>Id.—Reservation of Control of Head Porter and Subordinates—Relation of Master and Servant Established.—Prom the very nature of the employment of the head porter of a hotel, it is one of service; and when his contract of employment expressly reserves the right of the defendant, through its manager, to direct the head porter and all the porters in the performance of their work, which was to be performed in compliance with the manager’s instructions, the contract establishes the relation of master and servant between the defendant and all of the porters employed by it.</p> <p>Id.—Relations of Independent Contractor and Master and Servant Distinguished.—An independent contractor is one who, in rendering services, exercises an independent employment or occupation, and represents his employer only as to the results of his work, and not as to the means whereby it is to be accomplished; but the relation of master and servant exists whenever an employee is, in the discharge of bis duties, subject to the immediate direction and control of his employers, who may direct not only what shall be done, but how it shall be done.</p> <p>Id.—Sick Benefits of Plaintiff—Cross-examination—Harmless Exclusion.—When the defendant had not pleaded the reception of sick benefits from a fraternal organization by the plaintiff in mitigation of damages, it was not prejudicial error for the court to disallow cross-examination on that subject, as testing plaintiff’s credibility, it appearing that it could not have the slightest influence in weighing plaintiff’s testimony, and that it cannot be assumed that the jury would have attributed an improper motive to the plaintiff in remaining in bed to obtain such benefits, in view of the independent testimony of his physicians and others that it was necessary for him to do so.</p>

<p>The facts are stated in the opinion of the court.</p>

<p>Ejectment—Possession Under Contract of Purchase from Owner— Ouster by Grantee of Adjoining Land.—One who is in possession of land under a contract of purchase of a tract of land, on which he has made improvements, may maintain ejectment against the grantee of adjoining lands from the same grantor who contracted with plaintiff, when such adjoining owner has wrongfully taken possession of part of the property possessed by such purchaser.</p> <p>Id.—Disputed Boundary Line—Location of Survey and Fence— Finding for Defendant Against Evidence.—When it appears that plaintiff’s land is located south of defendant’s land, and the north boundary line of plaintiff’s land is identical with the south boundary of defendant’s line, and the action of ejectment involves its location, held, that the evidence shows that the boundary was established by a survey and monuments in accordance with the calls of the defendant’s deed, and.by a fence originally erected thereon; that the plaintiff is entitled to recover, and that findings and judgment for the defendant are unsupported by the evidence.</p>

<p>Taxation—Invalid Deed to State—Absence of Notice of Redemption to Owner—Requirement Applicable to State.—While section 3785 of the Political Code required thirty days’ notice to the owner to redeem before the execution of a deed, it applied to a sale for taxes made for the year 1887 to the state, and such notice of redemption was required before a deed could be executed to the state; and if no such notice was given, the deed to the state was void, and passed no title to the state or to anyone claiming under it.</p> <p>Id.—Construction of Code—Conclusiveness of Deed—Requirement of Notice Unaffected.—The provision of section 3787 of the Political Code, making the deed conclusive evidence of the regularity of certain proceedings, does not apply to or affect the requirement of notice to the owner.</p> <p>Id.—Right of Redemption from Tax Sale Governed by Law then in Force.—The right of redemption from a tax sale is governed by the law in force at the time of the sale, and cannot be affected by subsequent legislation.</p> <p>Id.—Amendment to Code not Retroactive.—The amendment to section 3785 of the Political Code, dispensing with notice of redemption to the owner, was not retroactive, and could not be made so. Id.—Curative Act Inapplicable.—The curative act of 1903 has no application to cure a void deed to the state for want of the notice required in this case to make it valid.</p>

<p>APPEAL from a judgment of the Superior Court of Contra Costa County, and from an order denying a new trial. Wm. S. Wells, Judge.</p> <p>The facts are stated in the opinion of the court.</p> <p>E. W. Camp, A. H. Van Cott and U. T. Clotfelter, for Appellant.</p>

<p>The facts are stated in the opinion of the court.</p>

PETITION for a writ of habeas corpus to determine the legality of a conviction for misdemeanor in the Justice’s Court of Union Township, Humboldt County. The facts are stated in the opinion of the Court.

<p>APPEAL from a judgment of the Superior Court of Los Angeles County, and from an order denying a new trial. N. P. Conrey, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Negligence—Explosion of Steam Radiator—Injury to Servant of Sublessee—Proper Construction—Lease of Building—Owner not Responsible.—Where it appears that in the original construction of a building its whole heating apparatus, pipes and radiators in the several rooms thereof were properly constructed, and that the owner made a lease of the whole building, including all devices for heating the same, and had no further control or supervision thereof, the owner owed no duty to the servant of a sublessee, who was injured by the explosion of a steam radiator in one of the rooms of such sublessee, and is not responsible for such injury, and in an action against him and the lessee therefor, a nonsuit was properly granted as to the owner.</p> <p>Id.—Liability of Lessee for Injury—Drying of Wet Towels on Radiator—Negligence not Presumed from Accident.—Where the sublease of several .rooms was made by the lessee to be used as a hair physician’s office, at a monthly rental for one year, which provided that all damages, alterations or improvements should be done by or under the direction of the lessor, and it appeared that the explosion occurred in one of the subleased rooms, while the servant was engaged in the duty regularly imposed upon her by the sublessee of drying wet towels on «the radiator, it cannot, under such circumstances, be presumed that the lessee was negligent from the mere fact of the explosion of the radiator in that particular room only.</p> <p>Id.—Limited Cause of Action—Negligent Construction and Condition of Radiator and Heating Plant—Burden of Proof.— Where there was no other allegation in the complaint of any negligence of the lessee, other than the negligent construction and condition of the radiator, which exploded, and of the heating plant in the building, the burden of proof is upon the plaintiff to show that the explosion of the radiator was caused by the negligence of the lessee, by direct evidence, or by proof of facts from which the inference of negligence can be legitimately drawn by a jury.</p> <p>Id.—Pleadings—Sufficiency of Issue.—Held, that an averment in the complaint that defendants had the exclusive management and control of the heating plant and radiators was sufficiently denied as to the plaintiff by affirmative allegations that the sublessee of the defendant lessee of the building had exclusive management and control of the room and the fixtures therein contained, including the radiator and its connections, and was sufficient to raise an issue, when no objection thereto was raised upon the motion for a nonsuit.</p> <p>Id.—Objection upon Appeal.—Where the parties have proceeded upon the theory that the answer raised an issue in the court below, they will not be allowed to raise the question upon appeal for the first time.</p> <p>Id.—Failure of Evidence Justifying Nonsuit for Lessee.—Where the evidence showed clearly that the construction of the radiators and heating plant was first class, and that every precaution was taken to prevent any excess of steam from accumulating in any radiator, and that the explosion occurred when a radiator was being used for a purpose for which it was not designed, in one of the rooms in the possession and control of a sublessee, no complaint of which was made known to the lessee, and there is no evidence to show any excessive use of steam, or any cause of the explosion beyond a mere matter of conjecture, the burden of proof upon the plaintiff to show that the negligence of the lessee caused the injury was not sustained, and the court properly granted a nonsuit as to him.</p> <p>Id.—Doctrine of Res Ipsa Loquitur, When Inapplicable.—The doctrine of res ipsa loquitur only applies where the cause of the injury is shown to be under the exclusive control and management of the defendant, and can have no application when it was under the management and control of plaintiff, and her employer, nor to a case having a divided responsibility where an unexplained accident may have been attributable to one of several causes, for some of which the defendant is not responsible.</p> <p>Id.—Burden to Show Responsibility from One of Two Assignable Causes.—In a case involving negligence, when it appears that the injury was occasioned by one of two causes, for one of which defendant is responsible, but not for the other, plaintiff must fail) if the evidence does not show that the injury was the result of the former cause, or leaves it as probable that it was caused by the one as the other.</p>

<p>Deed—Metes and Bounds—Reservation op Strip' for Street Purposes—Exception not Made—Easement Reserved.—When a husband conveyed land to his wife by metes and bounds, reserving a strip of land on the east side of the tract twenty-five feet in width, adjoining his remaining land on the east, such reservation does not operate as an exception to the land conveyed, but merely reserves an easement or right of way over the strip for street purposes.</p> <p>Id.—Nature op “Exception” and “Reservation.”—An “exception” is of some part of the estate not granted at all; while a “reservation” is always of something taken back out of that which is clearly granted.</p> <p>xd.—Construction op Civil Code—Rule in Pavor op Grantor Construed with Other Rules—-Intention op Parties Controlling. The rule declared in section 1069 of the Civil Code, that reservations in a grant shall be construed in favor of the grantor, is to be considered in connection with other rules of interpretation contained in that code, the most prominent of which is that all interpretations shall be directed toward the ascertainment of the true intention of the parties, which was manifestly not to except the strip, but to reserve an easement therein.</p> <p>Id.—Grant by Owner op Remaining Land with Easement.—Where the owner granted his remaining land bordering on the strip to a third party, stating that it is intended to include his right in the strip for street purposes, the purchaser takes all Ms easement in and right of way over the strip as his successor in interest thereof, whether the easement be regarded as appurtenant to the land or in gross.</p> <p>Id.—Use of Land for Street or Road Immaterial—Basement.— The use of the land reserved by the grantor, and granted by him to his successor in interest, for a street or road is not material, since easements arising by deed are never lost by nonuser.</p> <p>Id.—Cultivation of Strip not Abandonment of Right of Way.— The cultivation of the strip by the grantor of the easement does not constitute an abandonment by him of his right of way.</p> <p>Id.—Action to Determine Conflicting Claims to Strip—Finding Against Evidence.—In an action by the owner of the strip of land, to determine adverse claims against the owner of the easement, a finding that the plaintiff was the owner of the land and that defendant had no right or interest therein, was against the evidence in so far as it denied the defendant’s right to the easement, or right of way over the strip.</p> <p>Id.—Cross-complaint Unnecessary.—In such an action a cross-complaint is unnecessary, and performs no effective office; but under the complaint and answer it was competent for the court to determine the respective rights of the parties as shown by the evidence.</p>

<p>The facts are stated in the opinion of the court.</p>

<p>APPEAL from a judgment of the Superior Court of the City and County of San Francisco. J. C. B. Hebbard, Judge.</p> <p>The facts are stated in the opinion of the court.</p> <p>Joseph F. Cavagnaro, R. T. Harding, and Harding & Monroe, for Appellant.</p>

<p>Specific Performance—Insufficient Complaint—Adequacy of Con sideration not Shown.—In an action for specific performance of a contract for the sale of land, it is necessary that the complaint should allege and show to the court an adequate consideration for the performance of the contract; and when the complaint is wholly silent on that subject, it states no cause of action for a specific performance.</p> <p>Ib.—Failure of Showing as to Consideration—Finding Outside of Issues not Prejudicial—Inability of Defendant.—When there is neither averment nor evidence as to an adequate consideration, a finding outside of the issues as to the inability of the defendant to perform the contract precluding a specific performance cannot prejudice the plaintiff.</p> <p>Id.—Breach of Contract—Evidence of Bad Faith—Measure of Damages.—Where there is evidence of bad faith of the defendant in making the contract, showing that the legal title to the lot was vested in another, the measure of damages includes not only the detriment caused by the difference between the price to be paid and the value of the lot, with legal interest thereon, and the sum paid on the contract price, but also takes account of every installment paid, and includes the legal interest on each from the date of its payment to the date of the rendition of judgment, and also the amount of interest paid by plaintiff on the deferred payments pursuant to the terms of the contract.</p> <p>Id.—Insufficient Damages—Trial upon Wrong Theory—New Trial. Where the damages awarded by the court for breach of the contract, under the evidence, were insufficient, and it is manifest that the ease was tried upon a theory not authorized by the pleadings, the judgment must be reversed, and a new trial ordered.</p>

<p>Action by Husband to Determine Title to Community Property— Title Taken in Name of Deceased Wife—Code Presumption Negatived—Pleadings—-Evidence—Error of Court.—In an action by a husband to determine that property taken in the name of the-wife, after the amendment to section 164 of the Civil Code, was community property, to which he was entitled as against the heirs of his deceased wife, an averment in tho complaint that the wife took the title thereto as community property of herself and her husband, and that it was thereafter continuously held and used as such, is-sufficient, if proved upon issue joined, to overcome the presumption of separate property in the wife; and the court erred in failing to find upon such issue, and in striking out evidence for the plaintiff" tending to prove it, and to controvert the presumption that she took it as separate property, on the ground that such evidence was incompetent, in the -absence of any attack for fraud, undue influence or mistake.</p> <p>Id.—Construction of Code Amendment—Presumption of Separate. Property not Conclusive—Burden of Proof.—Section 164 of the-Civil Code as amended in 1889, providing that “when any property-is conveyed to a married woman, the presumption is that the title-is thereby vested in her as her separate property,” is not designed to make such presumption conclusive against the husband, but merely establishes a rule of evidence, fixing the onus probandi when the-question of true ownership is in litigation.</p> <p>Id.—Amendment not in Conflict with Preceding Sections—Nature, of Community Property not Changed.-—There is no conflict between the amendment and preceding sections which provide, excluding property acquired before marriage, that all property acquired' during coverture is community property, unless it is acquired by gift,, bequest, descent or devise. Aside from shifting the burden of proof,, the amendment effects no change as to what constitutes community property, or the manner of ascertaining its character.</p> <p>Id.—Presumption of Gift of Community Property to Wife—Burden upon Husband.—Since community property may be the subject of gift from the husband to the wife, when it is deeded to her, the-law, in the absence of any evidence touching the question of gift, regards it as her separate estate, notwithstanding it was paid for with community funds. The wife is not required to prove that it was a gift; but it devolves upon the husband to overcome the presumption by showing that it was not a gift.</p> <p>Id.—Admissibility op Evidence to Show Community Property.— Since the community property may be vested in either spouse, and its true character is to be ascertained by the nature of the transaction, without reference to which party retains the title, evidence tending to establish any facts which will overcome the presumption that the wife holds it as her separate property and showing that the true character of the holding is as community property is admissible, not on the ground of actual or constructive fraud, or otherwise, but solely upon the principle that it is immaterial which of them holds the common property.</p> <p>Id.—Extent op Proop Required to Exclude Gift.—In order to prove that the husband did not give the community property to the wife, it is not sufficient to show an undisclosed intention on his part, but his intention is to be determined from his acts, declarations and conduct at the time.</p>

<p>APPEAL from a judgment of the Superior Court of the City and County of San Francisco, and from an order denying a new trial. John Hunt, Judge.</p> <p>The facts are stated in the opinion of the court.</p> <p>Morrison & Cope, and Morrison, Cope & Brobeck, for Appellant.</p>

<p>Action for Breach of Contract—Lithographed Cigar Bands and Labels—Manufactured in Germany—Designs Agreed—Sample Proof not Required—Support of Finding.—In an action for damages for a breach of contract between plaintiff, a lithographing company, and defendant, a cigar company, to furnish a large number of cigar bands and labels for defendant cigar company of specific colors and designs, then shown by sample, with the picture of defendant, then president, in the center thereof, which were to be manufactured in Germany, and to be delivered in five equal installments. to be paid for on delivery, and after delivery of the first installment, after change of presidents, sueh installment was not paid for, and the contract was repudiated, and defendant pleaded that a sample proof was to be furnished, and the testimony for the plaintiff was uneontradieted that the contract contained no provision for a sample proof, and that labels were always furnished in the way shown, the court was justified in finding that the contract did not provide for a sample proof.</p> <p>Id.-—Sufficiency of Complaint—Refusal to Accept First Installment—All Goods Manufactured.—When the complaint alleges that all of the bands and labels ordered were manufactured, and that defendant absolutely refused to accept or to pay for the first installment, sueh refusal may be deemed a repudiation of the entire contract, and authorized the plaintiff to sue, not merely for damages for breach as to the first installment, but for a breach of the entire contract.</p> <p>Id.—Testimony as to Manufacture not Stricken Out—Reserved Ruling not Passed upon—Weight Considered.—Testimony admitted at the trial to show that the last two installments of the bands and labels had been manufactured, conceding it to be inadmissible, as presented, the court having reserved a ruling upon an objection thereto, and having failed to rule thereupon, remains in the record, and being of some weight is entitled to be considered. Id.-—Finding not Assailed—Manufactured According to Contract— Untenable Objections.—When the defendant has failed to specify the insufficiency of the evidence to justify a finding that the bands and labels were manufactured in conformity to the contract, his objection that the evidence does not so show cannot be considered.</p>

<p>Appeal from Judgment- Taken too Late—Dismissal.—An appeal from the judgment taken more than six months after its entry cannot be considered and must be dismissed.</p> <p>Mining Claims—Validity of Location of Placer Claim—Inartificial Notice—Printed and Written Matter—Location on Ground. A notice of location of a placer mining claim, containing the printed words “Commencing at” and followed by the written words “The S. W. % of the N. E. % of Section 23, T. 14, E. 10 E., situate in the Brushy Mining District, County of Placer, State of California. This claim shall he known as the Canothus Placer Mining Claim,” followed by the date of the location and the names of the locators, may be shown to have been clearly intended to locate the land described in writing, and that the same was actually located on the ground, from which it appears that the printed words were inadvertently left in, and the notice was not thereby vitiated.</p> <p>Id.—Unnecessary Finding—Substantial Compliance with Law.— Although the evidence justified a finding that the printed words were left in, such a finding is immaterial, as a substantial compliance with the law was sufficiently shown, and no one could be prejudiced in consequence of the obvious oversight as to those words.</p> <p>Id.—Construction of Location Notices—Purpose of Notice.—Location notices should be liberally construed, having reference to the circumstances under which, and the character of the parties by which, they are generally made; and in determining the sufficiency of a location notice, the most important guide is the purpose of the notice, which is to identify the land claimed with reasonable certainty.</p> <p>Id.—Notice a Temporary Protection—Marking of Boundaries the Main Act of Location.—A notice of location is valuable chiefly as a temporary protection to the location, while the acts are performed under the laws of Congress, under which the main and necessary act of location is “distinctly marking the location on the ground so that its boundaries may be readily traced.” When the location is thus marked, all that the notice and record were ever intended or expected to accomplish is effected in a manner far more satisfactory and complete.</p> <p>Id.—Compliance with Mining Customs and Law of Posting Notice Important—Location Clarifying Notice.—While compliance with mining customs and with the requirement of the law as to the posting of notices is important, and not to be disregarded, yet the whole question must be viewed in the light of the beneficent purpose of the regulations, and the acts performed by the parties in pursuance of the location notice must be considered if they tend to clarify and render certain what under the notice itself might be obscure or uncertain.</p> <p>Id.—Boundaries Fully Marked—Trespass upon Actual Possession. Where one of the locators built a house on the land located, and fully and distinctly surveyed the location and marked its boundaries on the ground so that they could be readily traced, and remained in the actual possession of the claim, a third party cannot trespass upon such claim to make a valid conflicting location.</p> <p>Id.—Natural Object or Permanent Monument not Required in Notice op Land Surveyed by Government.—The requirement of reference in the notice to some natural object or permanent monument is for the purpose of identification, and is sufficiently met when the location is of a legal subdivision of land surveyed by the federal government.</p> <p>Id.—Portion of Subdivision Patented.—The inclusion in the notice of location of a little more than one acre of a patented mining claim extending into the subdivision, and making the location fractional, cannot affect its validity as to the unpatented part of the location, and a trespasser on the rights of the locators who is not in privity with the patentee cannot assert his rights.</p> <p>Id.—Mineral Survey not Affecting Legal Aspect of Attempted Location Based on Government Survey.—A mineral survey for a patent by a deputy mineral surveyor, including a little over one acre of the smallest legal subdivision, taken by a deputy mineral surveyor, cannot affect the boundaries of the original government survey, nor the legal aspect of the attempted location by two locators of the forty acre tract, though it may actually include a little less than thirty-nine acres thereof.</p> <p>Id.—Practice Sanctioned by Land Department.—The practice sanctioned by the land department of the United States allows a placer locator to locate a legal subdivision not exceeding the statutory limits, and to legally describe the land located by the proper legal subdivision, although the tract so located may embrace within the exterior limits prior patented lode claims, and the government will grant all the residue of the placer locations excepting the portion previously patented.</p>

<p>The facts are stated in the opinion of the court.</p>

PETITION for writ of prohibition to the Superior Court of the City of San Francisco, Department No. 5. John Hunt, Judge. The facts are stated in the opinion of the court.

<p>Action fob Breach of Contract—Code Bule Limiting Becovery of Damages.—No action will lie for breach of contract, when the damages claimed were only such as are within the prohibition of section 3301 of the Civil Code, which provides that "no damages can be recovered which are not clearly ascertainable in both their nature and origin.”</p> <p>Id.—Insufficient Counts of Complaint Against Attorney—Withdrawal from Legal Proceedings—Different Besult.-—When two counts of a complaint against an attorney by the trustee of a bankrupt set forth his employment by the bankrupt in two distinct legal proceedings commenced by law, and his withdrawal therefrom, and the employment of other attorneys whose work resulted disastrously, and that the result would have been different if defendant had continued the employment, and claims resulting damages, no cause of action is stated for such damages, the same not being “clearly ascertainable in their nature and origin,’’ and a demurrer to each of said counts was properly sustained.</p> <p>Id.—Action to Bescind Contract to Purchase Interest in Partnership—Cash Payment—Note—Negligence not Shown.—When the first count of the complaint involved an action instituted to rescind a contract for the purchase of an interest in a partnership, for which $4,000 was paid in cash and a note for $2,500 was given, in which the recovery of the money and the cancellation of the note was prayed for, it shows no negligence in the attorney to plead such note, which constituted part of the purchase price, since the purchase could not be rescinded without the disposition of such note; and the fact the defendant pleaded the note by way of cross-complaint, and recovered judgment thereon, does not affect the question of negligence.</p> <p>Id.-—Insufficient Third Count of Complaint.—A third count of the complaint in which plaintiff sets up the same distinct proceedings alleged in the first and second counts, and simply alleges that after a retainer in each of said proceedings defendant, against the will and protest of his employer, abandoned each and both of said matters, and refused to act further therein, without disclosing wherein the employer was damaged by defendant’s neglect and failure, nor that she sustained any loss by reason thereof, fails to state a cause of action, and a demurrer to the third count was properly sustained.</p>

<p>Foreclosure oe Chattel Mortgage—Action to Declare Deficiency Judgment Satisfied—Alleged Misrepresentations and Agreement—Support of Findings.—When the plaintiffs were parties defendant to a suit to foreclose a chattel mortgage, in which a deficiency judgment was entered against them, and brought this action to vacate and declare the same satisfied as having been entered through misrepresentations and in violation of an agreement made by the chattel mortgagee, where the evidence was conflicting, and the court found upon sufficient evidence against the existence o£ such, misrepresentations or agreement, its findings cannot be disturbed upon appeal.</p> <p>Id.—Insufficient Complaint to Vacate Judgment fob Fraud—Facts Showing Defense to Merits not Pleaded.—It is not sufficient in a complaint to vacate and set aside such judgment for fraud in its procurement merely to allege generally that the plaintiffs had a defense that they had been released from the debt, but it is essential that the complaint should set forth all the facts constituting the fraud as well as the defense, and show that the complaining parties have the ability to produce evidence upon any new trial to establish a meritorious defense specially pleaded as to all the facts constituting it.</p> <p>Id.—Power of Appellate Court.—The appellate court has no power to substitute its findings for those of the trial court; and counsel should cease to ask it to do so, in any case where the evidence is conflicting and there is any evidence tending to support the findings of the trial court.</p>

PETITION for discharge upon writ of habeas corpus to the sheriff of Santa Barbara County, to test the legality of an information filed in the Superior Court of that county. S. E. Crow, Judge. The facts are stated in the opinion of the court.

PETITION for writ of prohibition to restrain the enforcement of an order of the Superior Court of Los Angeles County. W. P. James, Judge. The facts are stated in the opinion of the court.

<p>APPEAL from a judgment of the Superior Court of Los Angeles County, and from an order denying a new trial. B. N. Smith, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Estates of Deceased Persons—Sale of Beal Estate—Sufficiency of Petition—Omission to State “Condition and Value”—Sale, not Invalidated.-—Under section 1537 of the Code of Civil Procedure, although the petition of the administrator of the estate of a deceased person, for the sale of its real estate, is required to state “the condition and value thereof,” yet the failure to make such statement will not invalidate the subsequent proceedings, if the defects be supplied at the hearing, and the general facts showing the necessity of the sale, or that it is for the advantage, benefit and best interest of the estate and those interested therein, he stated in the decree.</p> <p>Id.—“Value” not Material to “Necessity”—Assistance of Discretion.-—-When the sale involves the question of necessity, the “necessity” is the prime factor for consideration, and the question of “value” can throw no light upon the question of necessity; and, at most, the value is a matter to be stated to enable the court to exercise its discretion more intelligently, after it has determined the sale to be necessary.</p> <p>Id.—Petition and Decree for Necessity—Amount of Property Sold—Intendments.—Under a petition setting forth facts showing a sale for necessity, and a decree thereon stating necessity, it must be intended that evidence thereof was given at the hearing, and that the court found therefrom the truth of the petition; and a like intendment must bé made that the value was proved, and that the court intelligently exercised its discretion as to the amount of property ordered to be sold.</p> <p>Id.—Jurisdiction of Court—Proof of Notice—Movement Within Jurisdiction—Bemedy by Appeal.—Proof of compliance with the-order of the court as to publication of the notice to show cause-why a sale should not be made as petitioned for, as required by section 1539 of the Code of Civil Procedure, conferred jurisdiction over all parties interested, and the subsequent action upon the petition was a movement within its jurisdiction, subject to be reversed upon appeal for such error as might be shown therein. Id.—General Jurisdiction op Superior Court in Probate—Collateral Attack—Action to Quiet Title.—The superior court, though sitting in probate, is still a court of general jurisdiction, and its action therein is entitled to the same presumptions that attach to its action in other cases' when collaterally attacked. An action by nonresident heirs to quiet title to real estate sold, in the exercise of probate jurisdiction, is a collateral attack upon the action of the superior court.</p> <p>Id.—Irregularity in Action op Court.—Any irregularity in the action of the court in ordering all the real property to be sold under a petition asking for a sale of only so much as may be necessary, and in its discretion to sell noncontiguous lots in one parcel, would be but an error of judgment, and is not the subject of collateral attack.</p> <p>Id.—Purchase at Sale by Appraiser Through Interposition op Corporation Controlled by Him—Sale only Voidable.—If it be conceded that the sale of the land to an appraiser through the interposition of a corporation controlled by him was virtually a sale to the appraiser, it would not under any circumstances render the sale void, but only voidable, in an action to enforce a trust,</p>

<p>The facts are stated in the opinion of the court.</p>

<p>Validity of Municipal Ordinance—Public Street Addresses Prohibited in Defined District—Police Power.—A municipal ordinance of the city of Los Angeles which, in general terms, makes it unlawful for any person to hold, conduct or address any assemblage, meeting, or other gathering of persons in any public park of the city, or upon any public street or alley within a defined district, without imposing any restrictions of any kind with relation to meetings or addresses upon any streets "or alleys outside of such district, is within the police power conferred in its charter, which, being in the same language as that of the constitution, is derived from the constitution of the state.</p> <p>Id.—Police Pow-er to Protect General Traveling Public—Freedom, of Speech not Suppressed.—The police power extends to the preservation and control in a proper manner of a public park, and streets and alleys, and to the protection of the general public-traveling thereon, more fully within a defined district, if there is. no attempt to suppress freedom of speech or the right of the citizen to express his views on any subject, political or otherwise, upon, streets outside of the district protected.</p> <p>Id.—Habeas Corpus—Reasonableness of Restriction—Absence of-Showing—Presumption.—Upon an application for the writ of habeas corpus to determine whether one violating the terms of the-ordinance can be discharged, the only question to be considered relates to the reasonableness of the restriction in the particular-case; but if nothing is shown in the application from which the-court may determine the reasonableness or unreasonableness of the-action of the municipal legislature in fixing the exterior boundaries of the defined district, and no abuse of its discretion appears, it will be presumed that it acted wisely, and fixed proper-boundaries.</p> <p>Id.—Character of Assemblages Prohibited Immaterial.—Assuming-the police power of the city in the premises, the character or object of the assemblages prohibited is immaterial. One may not. violate the law, even though, by so doing, he may be of the opinion that he is performing an act the result of which would benefit the public.</p>

<p>Street Opening—Condemnation of Land—Accrual of Right of Compensation—Code Rule—Date of Summons.—In an action under the “street opening act” of 1903 to condemn land for the opening of a street,, which act provides that “said action shall in all respects be subject to and governed by such rules of the Code of Civil Procedure, now existing, or that may be hereafter adopted, except in the particulars otherwise provided for in this act,” when it appears that that act is silent as to the time as of which the value of the property shall be fixed, section 1249 of the Code of Civil Procedure applies, which provides: “Por the purpose of assessing compensation and damages, the right thereto shall be deemed to have accrued at the date of the summons, and its actual value at that date shall be the measure of compensation for all property to be actually taken.”</p> <p>Id.—Construction of Word “Rules.”—The word “rules,” as used in the “street opening act,” does not refer exclusively to those rules of the Code of Civil Procedure, which govern pleading and practice. That word is of wide and varied signification, depending upon .the context; and in a legal sense it is synonymous with “laws.” The phrase “rules of the Code of Civil Procedure,” as used in section 6 of that act, means the laws or provisions of that code.</p> <p>Id.—Constitutionality of Code Section—Stare Decisis.—Since the constitutionality of section 1249 of the Code of Civil Procedure has since 1882 been repeatedly and uniformly affirmed by the supreme court, its provisions must be deemed immune from attack on constitutional ground, notwithstanding a vast array of authorities from other jurisdictions supporting the contention that that section is in violation of section 14 of article I of the state constitution.</p> <p>Id.—Interest not Allowable on Value of Land—Possession of Property.—The owner being left in the possession of the property, and in the -receipt of its rents, issues and profits, he cannot, in a legal sense, be damaged until the actual taking of the property, and interest cannot be allowed on the value of the land fixed as of the date of the summons to the taking of the property.</p> <p>Id.—Absence of Basis for Allowance of Interest.—Interest can only be allowed by agreement, or by way of damages for the failure to pay a principal sum when due; and neither of these bases for interest appear, when there is no agreement for interest and no failure to pay the assessment when required to be paid.</p>

<p>APPLICATION for writ of prohibition to the municipal legislature of the City of Napa.</p> <p>The facts are stated in the opinion of the court.</p>

<p>The facts are stated in the opinion of the court.</p>

<p>APPEAL from an interlocutory judgment in partition in the Superior Court of Solano County. L. G. Harrier, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Negligence—Action for Death—Collision op Wagon with Electric Car—Support of Verdict as to Negligence.—In an action' for death alleged to have been caused by the negligence of the defendant in causing its electric car to collide with the wagon of the deceased, it is held that the evidence is sufficient to sustain the verdict in regard to the negligence of the defendant in causing the car to approach the crossing at. an unusual speed, and in failing to give any alarm of such approach.</p> <p>Id.—Contributory Negligence—Negligence op Driver Attributable to Deceased.—In determining whether the deceased was guilty of contributory negligence, as matter of law, the negligence of the driver of the mules attached to the wagon of the deceased, in which he was sitting when killed, must be regarded as the negligence of the deceased.</p> <p>Id.—Pacts Showing Contributory Negligence as Matter of Law— Sight Prevented—Failure to Stop and Listen for Bumble of Car.-—When it appears from the undisputed facts that the driver was familiar with the crossing, and knew that the approach of the electric car could not be seen on account of both roads going through a cut thereat, and it is proved that the rumble of the approaching car could have been distinctly heard if the driver had stopped to listen therefor before going on the track, and could thereby have avoided the accident, and such rumbling was obscured by the rumble of the wagon, it was upon such facts contributory negligence, as matter of law, for the driver not to stop the wagon and listen for the rumble of the approaching train before attempting to cross the track at the cut; and the verdict against contributory negligence is unsupported in law.</p> <p>Id.—Basis fob Contributory Negligence.—The basis for the rule of contributory negligence is that the party to whom it is imputed must bear the harm which he brings upon himself, and which he might have avoided by reasonable care for his own self-preservation.</p> <p>Id.—Test of Contbibutoby Negligence as Matter of Law.—The test whether the court is authorized to determine the. question of contributory negligence, as matter of law, is whether the facts are such that there is no room for a sensible or impartial man to draw more than one reasonable inference as to the negligence of the driver and of the deceased.</p> <p>Id.—Failure Deliberately to Bring About a Collisíon not a Test— ¡Responsibility for Miscalculation of “Chances” or Forgetfulness.—It is not a test for determining contributory negligence that the deceased, or his driver, had not deliberately brought about a collision. The deceased is equally responsible for the harm which he brings upon himself when he “takes the chances” and makes a miscalculation in relation thereto, or fails to think of some ordinarily prudent precaution, which a proper regard for Ms own safety, as well as that of the passengers in the car wMeh collided with Ms wagon, demands.</p>

<p>Easements—Effect of Transfer of Property with Easements Attached.—A transfer of real property passes all easements attached thereto, and creates in favor thereof an easement to use other real property of the person whose estate is transferred in the same manner and to the same extent to which such property was obviously and permanently used by the person whose estate is transferred, for the benefit thereof at the time when the transfer was agreed upon or completed.</p> <p>Id.—Effect of Partition—Easement for Irrigating Ditch not Shown—Support of Finding for Defendant.—Conceding that ah action for partition, and a decree establishing the same between tenants in common has the same effect as a deed would have had between the parties, yet where the evidence shows that no easement then existed for a right of way for an irrigating ditch in favor of the plaintiff over the land of the defendant, or was raised by the partition proceedings, a finding for the defendant against the existence of such easement must be sustained.</p> <p>Id.—Entire Tract Held in One Ownership.—So long as the entire tract was held in one ownership there could be no such thing as a dominant and servient tenement between the different portions of the tract. During such ownership the owner may rearrange the quality of any possible servitudes.</p> <p>Id.—Servitudes Created by Grant—Benefits or Burdens.—Servitudes created by grant or transfer must correspond to the benefits or burdens existing at the time of the transfer.</p> <p>Id.—Oral Agreement Prior to Partition for Bight of Way—Statute of Frauds.—An oral agreement between parties to the partition prior thereto, not carried into the decree, that the one to whom the middle piece was to be allotted should allow a ditch to extend across it for the benefit of the one who took the western piece, concerned an estate in real property and was void under the statute of frauds.</p> <p>Id.—Adverse User After Partition.—An adverse user of the irrigating ditch for one year only can confer no title to an easement; and the use by the owner of the middle tract for his own benefit, while lessee of the tract claimed by plaintiff, of water over his own land for his benefit as such lessee, being by consent of the middle owner, could not constitute adverse user.</p>

<p>Mining Claim—Execution Sale—Sheriff’s Deed—Delation to Attachment.-—When mining claims were attached at suit of a creditor of the owner, and were sold under execution, the sheriff’s deed obtained thereunder relates to the date ■ of the levy of the attachment, if the attachment proceedings were regular.</p> <p>Id.—Action to Determine Ownership—Sheriff’s Deed to Plaintiff’s Predecessor—Objection to Attachment Bond—Appeal— Defect not Shown.—In an action to determine plaintiff’s ownership of the mining claim, in which he claims title under the sheriff’s deed and attachment, an objection to the regularity of the proceedings on account of a defective attachment bond cannot be considered upon appeal, where the record contains no evidence showing the existence of such defect.</p> <p>Id.—Presumptions upon Appeal—Burden upon Appellants.—Error cannot be presumed upon appeal, but all intendments are in favor of the action of the trial court; and when the record is silent as to an objection urged by the appellants, the appellate court cannot assume that facts stated by appellants were conceded by the respondent, or that any evidence was offered in aid of the objection. The burden was upon appellants to show in the record that the objection was supported by the facts.</p> <p>Td.—Sheriff’s Deed to Administratrix.—The objection that the title of the plaintiff accrued under the sheriff’s deed to an administratrix, who conveyed to plaintiff’s predecessor, cannot be urged by anyone not in privity with the estate nor with the judgment debtor whose property was sold by the sheriff. Such title is not void, but at most voidable at the instance of those whom the administratrix represents.</p> <p>Id.—Confirmed Title from Estate—Written Authority to Convey Residue—Objection by Stranger to Title Untenable.—When the estate owned one-third of the legal title, and its right passed by a confirmed purchase and deed from the administratrix, and the owner of the other two-thirds thereof in writing authorized the conveyance of the remaining two-thirds thereof by the administratrix to the purchaser, the legal effect of his act cannot be questioned by any stranger to the title.</p> <p>Id.—Deed not Void—Form of Acknowledgment—Cure of Defect— Protection of Bona Fide Holder of Title—Omission in Record. The recorded deed by the administratrix could not be void in any event, notwithstanding a defective acknowledgment by her as “widow,” though cured by a subsequent deed, with proper acknowledgment. If plaintiff’s predecessor took title thereunder as a dona fide purchaser, as against the defendants, the benefit of that title would inure to plaintiff as the successor in interest, whether the subsequent deeds were recorded or not; but if the plaintiff took in ignorance of any rights of the defendants, any defect in the first acknowledgment would be immaterial.</p> <p>Id.—Covenant not Running with Land—Binding in Equity on Purchaser with Notice.—A covenant or agreement entered into between patentees, if known to plaintiff’s predecessor, as intended to qualify the title conditionally, would be binding in equity upon it, and upon any person taking title with notice thereof, though it may be only a personal covenant not running with the land. Such covenant is not binding upon the purchaser because he is assignee of the party who makes the agreement, but because he has taken the estate with notice of a valid agreement concerning it which he cannot equitably refuse to perform.</p> <p>Id.—Agreement Between Patentees to Work Mine Until Paid for —Nonperformance—Stock Security—Deed not Contemporaneous—Purchaser Protected.-—A prior agreement between patentees of a mine, who subsequently convey the title to a corporation, that they were to have the exclusive right to work the mine until they are paid the purchase money therefor, with a transfer of shares of its stock as security, though evidently intended to be an agreement for the sale and purchase of the mining property, but which is not contemporaneous with the deed, nor between the same parties, and in pursuance of which nothing was ever done, does not affect its record title, nor charge a purchaser therefrom with any notice of such agreement.</p>

<p>Jurisdiction or Superior Court—Appeal prom Justice’s Court— Justification op Sureties—Exceptions Served too Late.—The superior court has jurisdiction of an appeal from a justice’s court notwithstanding the sureties on the appeal bond failed to justify within the time prescribed after an exception to their sufficiency, when it appears that the exception thereto was not served within the time prescribed by law. The sureties are not required to justify if there is no legal exception to their sufficiency.</p> <p>Id.—Appeal from Whole of Justice’s Judgment—Sufficiency of Notice.—When an appeal is taken from the whole of the justice’s judgment, the notice of appeal is not required to state whether the appeal is taken upon questions of law or fact.</p> <p>Id.—Writ of Prohibition.—The writ of prohibition will not lie to prevent the superior court from trying a case appealed thereto from the justice’s court,- of which it has appellate jurisdiction.</p>

<p>Eight to Removal of Barn Against Plaintiff’s Assignor—Assignment of Barn to Plaintiff—Injunction.—When a barn was situated upon land belonging to plaintiff’s grantor, which the defendant was entitled to remove, as against such grantor, but not as against the plaintiff, if such barn was included in an assignment by defendant and his wife to plaintiff, held, that though such barn was not included in the assignment of all fences, buildings and personal property situated upon a lease and deed of trust of property including only a certain townsite, yet where it expressly includes all such property “in the vicinity thereof,” the assignment covered the barn by such description, and the plaintiff was entitled to enjoin the removal thereof.</p> <p>Id.—Erroneous Judgment upon Cross-complaint—"Verdict Against Evidpnce—Absence of Conflict—Interpretation of Written Con vract.—When there is no conflict as to the words of the assignment, nor as to the location of the barn, the rule that a verdict ■mil not be disturbed where there is a conflict of evidence does not apply; and an erroneous judgment upon a cross-complaint for the value of the barn, based upon a verdict contrary to the legal effect of the assignment of the barn to the plaintiff, must be reversed. The record presents no conflict of evidence, but simply a case for the interpretation of a written contract.</p> <p>Id.—Negotiations by Defendant with Plaintiff’s Assignor Superseded by Assignment.—Where negotiations attempted by defendant with plaintiff’s assignor were not concluded, they were superseded by the assignment of the barn by defendant to the plaintiff.</p>

<p>Building and Loan Association—Loan to Member—Deed of Trust— « Default in Payments for Six Months—Sale by Trustees— Injunction Dissolved.—When a member of a building and loan association to whom a loan is made on the installment premium plan, secures it by a pledge of her shares and a note and deed of trust, providing for monthly payments for interest, premium, and dues, and for a sale after default in payments for the period of six months, and for declaring the whole sum due, permits more than six months to elapse without payment, notwithstanding urgent solicitation therefor, the association was within its rights in directing the trustees to sell the property, and a temporary injunction to restrain them from so doing was properly dissolved.</p> <p>Id.—Presumed Knowledge of Law and of Contract.—The borrowing member is presumed to know the law from which is derived the vitality of the contract which she entered into, presumably read and became familiar with the full import and scope of the terms of the contract before making herself a party to it, and must have known and understood that she emphasized the provision of the law in conferring upon the board of directors the discretionary power to declare and conclusively determine that the whole loan shall become due and payable in the event that she should be in default for the period of six months in any of the payments which she promised to make.</p> <p>Id.—Knowledge of Credits in Pass-book—Knowledge of By-laws.— The member is chargeable with the knowledge of credits entered in a pass-book which she possessed, and is also chargeable with knowledge of the by-laws of the association of which she is a member, especially where the collateral agreement by which she pledged her shares of stock therein as part security, for the repayment of the loan makes the by-laws a part of the terms.</p> <p>Id.—Inexcusable Neglect to Obtain Information Offered.—When the member was importuned to come to the office of the association and ascertain the exact amount due from her thereto, which she had the right as a member to obtain without invitation, and make investigation into her affairs therewith, and failed to do so, if she must suffer to some extent by the sale of her property, her own inexcusable remissness is alone responsible for it.</p> <p>Id.—Notice in Case of Arrearages not Esquired.—The law does not prescribe any notice in the case of arrearages in any payments which a borrowing member is required to make by the terms of the contract; and when it clearly appears that such member was in arrears in payments required beyond the time after which the law provides that the directors may in their discretion order the property to be sold, and she knew her own default, and the directors having, in the exercise of their option, declared the whole of the loan to be due, they were clearly within their legal rights in ordering the property to be sold, whether the member had been previously notified of the precise amount due or not.</p> <p>Id.—Complaint not Warranting Injunction Pending Suit.—When there is no charge of mistake or fraud in the complaint, and it does not point out specifically alleged overcharges, but only alleges in general terms that the interest charged exceeds the interest due, and the corporation is not entitled to the penalty claimed, it does not warrant a temporary injunction.</p> <p>Id.—Discretion in Granting or Dissolving Injunction—Abuse— Review upon Appeal.—An order granting or dissolving a temporary injunction is in the discretion of the court below, and its discretion will not be interfered with upon appeal, unless it clearly appears to have been abused. But it is held that, under the facts in this case, this court would be justified in holding it to be an abuse of discretion if the court had refused to dissolve the temporary injunction.</p>

<p>APPEAL from a judgment of the Superior Court of San Luis Obispo County, and from an order denying a new trial. E. P. Unangst, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>APPLICATION for a writ of habeas corpus to determine the legality of a commitment by a magistrate to the sheriff of the County of Los Angeles.</p> <p>The facts are stated in the opinion of the court.</p>

<p>The facts are stated in the opinion of the court.</p>

<p>APPEAL from a judgment of the Superior Court of Mendocino County, and from an order denying a new trial. J. Q. White, Judge.</p> <p>The facts are stated in the opinion of the court.</p> <p>L. Gonsalves, Weldon & Held, and J. E. Pemberton, for Appellant.</p>

<p>APPEAL from a judgment of the Superior. Court of Fresno County, and from an order denying a new trial. George E. Church, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Municipal Corporations—Power of City of Sixth Class to Sell Light to Inhabitants.—Under section 862 of the municipal corporation act, empowering each city of the sixth class to acquire “works necessary or proper for supplying water for the use of such city, or the inhabitants, or for irrigating purposes therein,” and “to acquire, own, and control, maintain and operate . . . gas and other works for light and heat,” it is necessarily implied in said grant of power that, when the city has an electric light plant, it has authority to furnish the inhabitants for private use as well as the general public with electric light.</p> <p>Id.—Gr'-nt of Power to Cities of One Class not Special Legislation.—-The grant of power to municipal corporations of any one class is not unconstitutional, as being special legislation. So long as legislation as to municipal affairs operates alike upon all municipal corporations coming within the classes for which the charter exists, it is a “general law” fully authorized by section 6 of article XI of the constitution.</p> <p>Id.—Election for Bonds for Combined Plant for Water and Electric Light—Separate Estimates of Cost not Required.—Before an election for bonds for a combined plant for water and electric light, it is not essential that separate estimates should be made of ihe cost of each plant. The proposal being for a definite sum for a single definite plant, though operated for two purposes on the score of economy or efficiency, a single estimate of the cost thereof satisfies the requirement of any reasonable interpretation of +he law.</p> <p>Id.—Rights of Voters.—The proposal to the electors for one combined plant being valid, the voters cannot complain because not aiforded the opportunity to vote for one proposition, and against the other, An elector can scarcely ever vote upon that precise proposition which of all the possible and authorized propositions he prefers.</p> <p>To.—Duty of City Trustees—Necessity for Expenditure—Information to Voters.—The duty of determining the necessity for the expenditure and the propriety of submitting it to the electors, and the particular phraseology in which it shall be expressed is east upon the trustees, subject to a reasonable and practicable regard for the right and privilege of the electors to be informed of the purposes and cost of the proposed improvement, that they may exercise at the polls an intelligent and discriminating judgment, as to their own interests and the public welfare.</p> <p>Id.—Favorable Result op Election—Injunction Against Sale op Bonds not Tenable.—Where the electors voted the bonds for the combined plant, an injunction was properly refused to restrain the sale or disposal of the bonds.</p>

<p>Liens upon Threshing-machine—Complaint—Defective Counts for Assignors—Default Judgment—Vacation for Plaintiff’s Excusable Neglect—Leave to Amend.—In an action by plaintiff to enforce liens for himself and thirteen assignors upon a threshing-machine, when the complaint stated a full cause of action for the enforcement of plaintiff’s lien thereupon, but was defective in its counts as to his assignors, in not specifically averring that the work or labor of each was performed in, with, about or upon the threshing-machine, and a judgment was taken by default in favor of each, the court had jurisdiction to grant a motion by plaintiff upon a showing of excusable neglect, under section 473 of the Code of Civil Procedure, to vacate the default judgment, and allow the plaintiff to amend the complaint to supply all defects therein, as to each of his assignors.</p> <p>Id.—Cause of Action Attempted to be Stated—Judgment not Void— Jurisdiction of Court.—When the original complaint clearly showed the intention of plaintiff to assert a lien upon the harvester in favor of each of his assignors, for all the work and labor alleged to have been done, and it cannot be said that no cause of action was attempted to be stated in favor of the assignors, the judgment in plaintiff’s favor in respect thereto is not void, as it affirmatively appears that the court had jurisdiction of the subject matter of the action and of the persons of defendants, and the relief was such as was demanded in the complaint and specified in the summons.</p> <p>Id.—Relief from Error.—Any error upon the part of the court in rendering judgment directing a sale of the threshing-machine in the absence of proper averments in certain causes of action, or in rendering a judgment within the amount claimed, in excess of the amount found due upon the plaintiff’s first cause of action, could only be corrected upon appeal, or upon a proper showing by motions made within the time limited by section 473 of the Code of Civil Procedure.</p> <p>Id.—Bight of Plaintiff to Obtain Belief by Motion.—The plaintiff, as well as a defendant, may invoke the relief by motion provided in section 473 of the Code of Civil Procedure, lb.—Liberal Construction of Code—Discretion of Court.—Section 473 of the Code of Civil Procedure is to be liberally construed; and the granting of relief thereunder is largely within the discretion of the court.</p> <p>Id.—Effect of Order Vacating Judgment—Beversal for Error in Incompleteness of Complaint—Allowance of Amendment.— The effect of the order vacating the judgment under section 473 of the Code of Civil Procedure was only such relief as could have-been obtained by a reversal of the judgment for the error involved' in the incompleteness of the complaint, and the allowance of an amendment to complete the cause of action attempted to be stated.</p> <p>Id.—Cause of Action not New Within Statute of Limitations.—</p> <p>//</p> <p>In view of the allegations of the original complaint, and of the-manifest intent thereof, the amendment proposed and allowed was-not the statement of a new cause of action, which would be barred by the ten day limitation of the statute, appellant having boon-a defendant to the original complaint and served with process before the statute had run in his favor, and as against the appellant the action was begun by the assignee of those who did the work, and the amendment did not go to any other cause of action, but simply to - allege omitted facts by which the relief against the property could be effectively granted in favor of all original lien claimants. Jb.—“Cause of Action” Distinguished from “Bemedy” and “Belief.”—The “cause of action” is to be distinguished from the-“remedy”—which is simply the means by which the corresponding action is effectual—and also from the “relief sought.”</p> <p>Id.—Order Granting Belief not Prejudicial.—Held, that the order granting the relief, to the plaintiff was not prejudicial to the appellant, and should be affirmed.</p>

<p>APPEAL from a judgment of the Superior Court of Santa Clara County, and from an order refusing to vacate a judgment, to amend the conclusions of law and direct judgment for appellant upon the findings. John E. Richards, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Negligence—Cave of Unbraced Trench Wall upon Plaintiff Employee—Pleading—Amendment During Trial—Weakening of Earth by Unknown Trench.—In an action to recover damages alleged to have been suffered from defendant’s negligence in failing to brace a trench wall, which fell upon plaintiff while employed by defendant in digging the trench, the court properly allowed an amendment to the complaint to set forth a fact discovered during the trial, which was before known to defendant and unknown to plaintiff, that the earth, which seemed to be solid from grass upon the top, was weakened by a prior trench excavated by the defendant close to the wall, which was covered with loose soil, and was an additional cause of the caving of the trench upon which plaintiff was employed.</p> <p>Id.—Discretion — Amendment in Furtherance of Justice — New Cause of Action not Stated.—It was not only within the discretion of the court to allow the proposed amendment of the complaint, if necessary, to set up new facts developed during the trial, which did not constitute a new cause of action for negligence, but merely stated another and additional fact so developed, which is claimed to have caused or contributed to the caving in of the trench; hut the court properly allowed the same in furtherance of justice, and with a view to disposing of the ease on its merits.</p> <p>Id.—Amendment to Conform to Evidence—Defendant not Surprised—Terms not Required.—"Where the proposed amendment was made to conform to evidence, which did not take defendant by surprise, and defendant asked for no continuance to allow further evidence on his behalf, the court was not required to impose such terms for the amendment as would he required if a continuance were made necessary thereby.</p> <p>Id.—Knowledge of Plaintiff—Assumption of Risk of Peril Incident to Employment.—If plaintiff knew the kind of soil in which the trench was being excavated and all the facts surrounding the same, and the danger, if any, to which he was exposed, he took upon himself the risk and peril incident to his employment.</p> <p>Id.—Unknown Facts Bearing on Duty to Brace Wall—Question for Jury.—Whether the depth of the soil, the hidden causes known only to defendant and the character of the soil were such facts as to make it the duty of the defendant to brace the trench, was a question peculiarly for the determination of the jury.</p> <p>Id.—Requested Instruction op Defendant—Evidence of Materials and Work Furnished to Brace Trench—Improper Modification. When the defendant introduced evidence that it furnished materials, implements and competent workmen to brace the trench wherever necessary, and requested the court to instruct the jury to the effect that the defendant discharged its duty when it did so, and “if these persons were guilty of negligence in not bracing the trench and it caved, the defendant company cannot be charged with negligence for such caving, or held liable for the damages resulting to plaintiff from such caving,” it was prejudicial error to modify the same so as to state that “it partially discharged its duty,” and that if those persons were guilty of negligence in not bracing the trench, the act being one which it was the duty of the employee to perform, the defendant company is responsible.</p> <p>Id.—Improper Instruction as to “Matters of Fact.”—The instruction as modified was in violation of the provision of section 19 of article IV of the constitution that “judges shall not charge juries with respect to matters of fact.”</p> <p>Id.—Inconsistent Instructions Ground op Reversal.—Where the requested instruction as modified and given is inconsistent with another instruction given as to the nonliability of defendant, if the jury should find that plaintiff was injured from neglect to brace up the- trench, and that defendant provided materials therefor and a carpenter to aid in putting in the bracing, their verdict in such case must be for defendants, on the ground that the carpenter and the plaintiff were fellow-servants, such inconsistent and contradictory instructions are ground for reversal.</p> <p>Id.—Expert Evidence as to Effect of Prior Trench.—The court did not err in admitting the expert evidence of the civil engineer, as to the effect of the prior trench in weakening the walls of the trench in which plaintiff was working. If that subject were matter of common knowledge, such evidence would not be prejudicial.</p>

<p>Deed—Acknowledgment—Delivery to Grantee—Subsequent Delivery at Grantor’s Request to Third Party for Record After Death.—Where a deed duly acknowledged by the grantor was delivered by him to the grantee, the subsequent delivery of the same in a sealed envelope addressed to the county recorder to a third party, at the grantor’s request, with instructions to such third party to deliver the same to the county recorder after the grantor’s death, did not affect the original delivery of the deed, or operate as a recall of the deed by the grantor. The third party was simply the agent or bailee of both parties for recordation only.</p> <p>Id.—Prior Will—Rights of Executor—Devise of Property Deeded to Grantee—Deed Performed by Grantor’s Attorney—Innocence of Grantee.—When the grantor had, by previous olographic will, devised to the grantee the same property subsequently conveyed to him by deed, which was in fact an accomplishment of his wish previously expressed in his will, and the deed was drawn by the attorney of the grantor, to whom he expressed a wish to convey that property to the grantee, and there is nothing to indicate that there was any fraud or undue influence exercised by the grantee over the grantor, or to show that the grantor, though afflicted with cancer, was not in the full possession of his mental faculties, the delivered deed cannot be set aside by the executor of the deceased grantor, nor the property recovered by him as the property of his estate.</p> <p>Id.—Debts of Estate and Insufficiency of Remaining Assets Im- '' material.—The deed having been lawfully effectuated in his lifetime, and the will speaking only as of the date of the death of the grantor, it is immaterial what debts were provable against his estate, or whether the remaining property is sufficient to pay the debts and legacies mentioned in the will.</p> <p>Id.—Evidence—Declarations of Grantor After Conveyance Inadmissible.—The declarations of the grantor made after the execution and delivery of the deed were inadmissible in disparagement of the title of the grantee.</p> <p>Id.—Mere Physical Condition of Grantor Inadmissible.—The mere physical condition of the grantor was inadmissible, if not shown to have some relation to his mental condition when the deed was executed, which was not shown.</p> <p>Id.—Confidential Relationship of Grantor and Grantee—Conclusion of Witness.—The court properly sustained an objection to a question whether the grantee was with the grantor during his sickness “in a confidential relation,” as calling for the conclusion of the witness.</p> <p>Id.—Action to Quiet Title by Heirs—Burden of Proof.—Where heirs of the grantor sued to quiet their title against the grantee, claiming that there was no will and that the grantor was the owner of the property and died intestate, the burden was upon them to establish that fact.</p> <p>Id.—Recovery by Executor of Deceased Grantor—Claims not Presented—Proper Instruction to Jury.—When the uncontradicted evidence showed that no claims had been presented to the executor, and that the time for any presentation had passed, the court properly instructed the jury that to entitle the executor to recover the land from the grantee, the jury must find from the evidence that at the time of his death, the deceased had the right of ownership and possession of the land, and that it was subject to testamentary disposition, and had not in fact been conveyed to the grantee.</p> <p>Id.—Presumption of Delivery of Deed.—A deed is presumed to have been delivered at its date and the burden is upon one who disputes that fact to show otherwise.</p> <p>Id.—Presumption of Continuous Ownership Overthrown.—The presumption of continuous ownership in the grantor was met and overcome by the evidence showing his conveyance and delivery thereof to the grantee.</p> <p>Id.—Burden not Cast upon Grantee to Show Fairness of Transaction.—The evidence was wholly insufficient to cast the burden upon the grantee to show the fairness of the transaction, and that it was free from fraud, artifice or other undue means.</p> <p>Id.—Absence of Error in Instructions.—Held, that there was no error either in the giving of instructions, or in the refusal of requested instructions ■, and that the instructions as given fully and correctly stated the law to the jury.</p>

<p>Ejectment—Disputed Strip Fronting on Street—Location op Street —Reference in Deeds to Official Map—Failure of Proof.—In an action of ejectment for a strip of land alleged to front on a street and to be included in plaintiff’s claim of title, the deeds of which refer to the official map of the street, in which issue is joined as to title and ouster, and defendant claims title under resurvey of the street adopted by the city authorities, and possession taken thereunder, the burden is on the plaintiff to show that the deeds include the strip in controversy, when it does not appear from the description in her deeds, and when she failed to show the official map of the street or the survey on which it was based, or to show that she or her predecessors ever possessed the strip, or had any right of possession thereof, her cause of action fails of proof, and the judgment for the defendant must be sustained.</p> <p>Id.—Lines of Street as Actually Opened and Possessed—Construction of Deeds.—When the evidence shows that plaintiff and her predecessor never possessed the strip, but that the street in controversy, as actually opened and possessed by owners on both sides thereof for many years, and until the commencement of the action, included the full width of the street between them, in the absence of proof of any different intention, the description in the deeds under which plaintiff claims must be construed to mean the lines of the street as they were actually laid out.</p> <p>Ib.—Reference to Block and Streets—Official Location not Shown. Where plaintiffs’ deeds refer to a block and streets surrounding it, in the absence of evidence to show the official location of either, the trial court was justified in accepting the best evidence the case affords, and if none is afforded, in applying the legal presumption from the failure of the plaintiff to present satisfactory evidence.</p> <p>Ib.—Fences not Original Evidence of Street Lines—Absence of Original Measurements.—Fences are not original evidence of street lines; but it is only in the absence of original measurements to show their location, that it would be important to ascertain the boundaries of the streets as actually opened and used.</p> <p>Id.—Disregard of Fence by City—Resurvey not Conclusive of Original Survey.—The fact that the city after a resurvey of the block disregards the occupation of the street by fences in 1906, such disregard does not necessarily establish that this was the official line of the street when it was opened, where there is evidence tending to show that about that time the street, as traveled, was otherwise located.</p> <p>Id.—Conflicting Evidence.—If the trial court regarded the meager evidence of plaintiff’s deeds, admitted without objection, as some evidence, it only created a conflict as to the location of the streets, and the determination of the trial court thereon will not be disturbed upon appeal.</p>

<p>PETITION for writ of habeas corpus to the sheriff of the County of Placer to test the validity of a conviction under a complaint for misdemeanor in the justice’s court of Township No. 9.</p> <p>The facts are stated in the opinion of the court.</p>

<p>APPEAL from an order of the Superior Court of the City and County of San Francisco, denying a new trial. F. H. Kerrigan, Judge.</p> <p>The facts are stated in the opinion of the court.</p> <p>Cleveland L. Dam, Charles S. Burnell, and George Appell, for Appellant.</p>

<p>Criminal Law—Burglary—-Stolen Jewelry—Support op Verdict.— Meld, upon a review of the evidence upon appeal from a judgment of conviction of the appellant for "burglary in the first degree, in connection with which he took and carried away stolen jewelry, that it was shown that the defendant was identified as the person who committed the burglary, that the articles of jewelry taken by him were identified beyond question as property taken from the house burglarized, and that the evidence leaves no possible doubt of the guilt of the defendant, which does not rest upon evidence of guilty possession alone, and that the verdict of guilty is fully supported.</p> <p>Id.—Testimony op Arresting Oppicer—Possession op Burglarized Property.—The testimony of the arresting officer that when he arrested the defendant he had the stolen articles on him, and as - to declarations made by the defendant to the arresting officer, was properly admitted.</p> <p>Id.—Evidence—Pipe Taken prom Another House Where Dependant was Identified—Objection not Specific.—Testimony as to the finding upon the defendant a pipe taken from another house the same evening, where defendant was fully identified, was proper, where the identification of the pipe was part of the identification of the defendant, and where the only objection related to its admissibility, and did not cover the specific objection that it tended to prove an independent offense.</p>

<p>Criminal Law—Bobbery—Motion to Set Aside Information for Want of Legal Commitment—Insufficient Becord—Order not Beviewable.—An order denying a motion of the defendant to set aside an information against him for robbery, on the ground that there was no legal commitment by a magistrate, cannot be reviewed upon appeal, when the record upon appeal is insufficient to show error in the order.</p> <p>Id.—Bobbery After Burglary—Evidence—Manner of Entry into House.—When the evidence upon the charge of robbery showed a forcible taking of property from the person of the prosecuting witness, in the commission of which he was perfectly identified, after he had committed burglary in entering his house, evidence of the manner in which he had entered the house was proper, as detailing the surrounding circumstances connected with the crime charged, and being relevant thereto, the fact that it also tended to prove another offense was not a ground of objection to such evidence.</p>

<p>APPEAL from a judgment of the Superior Court of Los Angeles County, and from an order denying a new trial. W. H. Jamison, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Criminal Law—Murder—Conviction in First Degree—Support op Verdict.—When, upon a trial for murder, the jury convicted the defendant of murder in the first degree, their verdict was sufficiently supported by evidence from which the jury might well believe that the defendant armed himself in full expectation of an encounter, and with the deliberate purpose to take advantage of the occasion to kill his rival, that his claim of self-defense was a pretense, that the encounter was deliberately sought for the purpose of killing the deceased, and that the killing was but the accomplishment of such deliberately formed purpose.</p> <p>Id.—Degree op Murder—Province op Jury.—The degree of murder is peculiarly a matter for the determination of the jury, and this court will not interfere with its verdict as to the degree of the crime, except in a clear case of absence of evidence to support. Held, that this is certainly not such a case.</p> <p>Id.—Bight to Protect Home—Self-defense—Loose and Inaccurate Instruction not Prejudicial—Full and Accurate Instructions. A loose and inaccurate instruction on the law of self-defense given shortly after giving another independent instruction on the right of a person to protect his own home from intrusion was not prejudicial, when all of the instructions as to the law of self-defense taken together expressed fully all of the conditions under which such right might be exercised, including an instruction “that the fact that one is a trespasser upon the premises of another will not. justify the other in taking life, and if the one trespassing is violently attacked, and is threatened with serious bodily injury, he may repel that attack by whatever force is necessary, even to the extent of taking his assailant’s life.”</p> <p>Id.—Befusal of Bequests Otherwise Embodied in Charge.—It was not error to refuse instructions properly requested, when such instructions were fully covered by other instructions given by the court.</p>

<p>Mandamus—Foreign Corporation .Doing Business in This State— New Secretary—Compelling Besident Ex-secretary to Turn Over Books and Papers.—This court has jurisdiction to issue a writ of mandate in favor of a foreign corporation doing business in this state, in pursuance of its articles of incorporation, and having its principal place of business at Los Angeles, and in favor of its newly elected secretary, to compel its ex-secretary who is and was during all of the period of his holding a resident of this state, to deliver up the corporate books, papers and other matters pertaining to the office of secretary to his successor, which he has in his possession and control in this state, entirely beyond the reach of the state in which the foreign corporation was organized, and who has refused after demand to deliver up the same. o</p> <p>Id.—Title to Office Incidentally Involved.—Though the allegations of the petition do not show that the title to office is directly involved in the proceeding, yet the remedy by mandamus is appropriate to the proceeding before the court, notwithstanding the title to the office may be incidentally involved.</p> <p>Id.—Fxjsotion of Mandamus not Prerogative—Appropriate Legal Process to Enforce Asserted Bight.—The writ of mandamus is no longer treated as a purely prerogative writ; but in its use in an original proceeding in modern practice the writ has come to be considered as merely a legal action between the parties, to which every one is entitled, when it is the appropriate process for asserting the right which he claims.</p> <p>Id.—Extraordinary Legal Remedy Supplementing Deficiencies of Common Law—Equitable Interference.—The writ of mandamus, although it is -an extraordinary legal remedy, is in the nature of an equitable interference supplementing the deficiencies of the common law, and it will ordinarily be issued where a legal duty is established and no other means exist for enforcing it.</p> <p>Id.—Legal Discretion of Court.—Though the writ lies in the legal discretion of the court, yet where one has a substantial right, which cannot be otherwise enforced, he is entitled as a matter of right to the writ, and it would be an abuse of discretion to refuse it.</p> <p>Id.—Absence of Other Remedy Applicable to Private Corporations. Neither the remedy by quo warranto, nor by suit in equity, nor by replevin nor by mandatory injunction, applies to a private corporation to try the title to an office nor to compel the delivery of books and papers by an ex-officer to his successor in office. The only appropriate remedy to compel such delivery, in the case before the court, is by mandamus.</p>

<p>APPEAL from a judgment of the Superior Court of the City and County of San Francisco and from an order denying a new trial. George A. Sturtevant, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>APPEAL from an order of the Superior Court of the City and County of San Francisco directing the widow of the decedent to pay an inheritance tax. J. Y. Coffey, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Easement—Right of Wat fob, Irrigating Ditch—Prescription—Injunction.—Where a right of way for an irrigating ditch over the land of the defendant has been acquired by the plaintiff, by prescription, the plaintiff may enjoin any interference therewith by the defendant.</p> <p>Id.—Conflicting Evidence—Support of Findings—Adverse User.— When there is a substantial conflict in material portions of the testimony, but there is sufficient evidence tending to support the plaintiff’s prescriptive right, and to show that Ms use of the ditch over defendant’s land for irrigation of plaintiff’s land was open and notorious under claim of right 'with the knowledge of the defendant for more than the requisite period, the findings for plaintiff are sufficiently supported.</p> <p>Id.—Tentative Proposition to Buy Peace—Rejection op Price Asked by Dependant—Continuous Adverse User not Interrupted.—A tentative proposition by the plaintiff to a son in law of defendant to buy his peace, which came to naught, defendant having asked a price which plaintiff repudiated, stating that he would pay nothing and proceeded with the adverse claim, does not show such a recognition of defendant’s right as would interrupt plaintiff’s adverse user.</p> <p>Id.—Openness op Adverse User—Notice to Defendant—Pacts Putting upon Inquiry.—When the adverse user of the ditch extending across defendant’s land for the irrigation of plaintiff’s land was so open and notorious that the defendant and his agent could not have failed to note the same, or to be put on inquiry as to plaintiff’s adverse user of the easement or right of way for the ditch, they are chargeable with notice thereof.</p> <p>Id.—Exclusiveness op Plaintiff’s Claim—Meaning of Requirement. When plaintiff’s claim of title was as his own and exclusive of any other right, so far as he was concerned, it is sufficiently exclusive; but this requirement does not mean that all other persons were excluded from the use of the ditch so long as plaintiff’s right to irrigate his land when required was not taken from him.</p> <p>Id.—Adverse User During Cropping Season Sufficient.—It is not requisite that the user of the ditch should be continuous and uninterrupted throughout the whole of every year; but the adverse user of an irrigation ditch across the lands of another, only during the cropping season, the ditch not being needed at other times, does not break the continuity of the user.</p> <p>Id.—Ditch not Assessed for Taxation—Burden op Proop.—When there is nothing to show that the ditch was separately assessed for taxation, or was assessed at all, it was not necessary for plaintiff to show payment of taxes thereon. The law does not require an easement to be assessed; and the burden was on the defendant to show that it had been assessed.</p> <p>Id.—Knowledge by Owner—Acquiescence in Easement Presumed.— While the right to the easement depends on the knowledge and acquiescence of the owner of the land upon which it is claimed, both may be inferred from the facts, and their existence is matter for the court to determine as a fact in the light of the relations between the parties and the surrounding circumstances. But if knowledge by the owner of the land of the adverse user of the easement is shown, the acquiescence of the owner will be presumed therefrom, if the owner does not prove to the contrary.</p>

<p>The facts are stated in the opinion of the court.</p>

<p>Mandamus—Jurisdiction of District Courts of Appeal.—The several district courts of appeal have jurisdiction to issue writs of mandate coextensive with the state.</p> <p>Id.—Ordinary Bulb of Comity—Special Circumstances Justifying Writ.—It is an ordinary rule of comity that the writ should be applied for in the appellate court of the proper district; but there may be special circumstances warranting an appellate court in the full exercise of its jurisdiction over the writ of mandate.</p> <p>Id.—Venue of Criminal Libel—Judge of This District Presiding in Second District—Change Befused for Want of Jurisdiction— Alternative Writ.—Where a judge of a superior court of this district is trying a criminal libel in Kern county, against publishers residing in San Francisco, and by consent of parties has acted in this district upon an application of the defendants to change the place of trial to San Francisco, for the convenience of witnesses, upon a proper showing, and has refused the same, solely for want of jurisdiction, this court will, under such special circumstances, issue the alternative writ of mandate to the superior court of the county in which such judge is presiding.</p>

<p>APPEAL from an order of the Superior Court of the City and County of San Francisco denying a new trial. John. Hunt, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Action on Note—Compromise Agreement—Time of Essence—Payment of Principal—Refusal to Pay Interest—Credit on Note. In an action on a note, in wMch the defendant relied on a compromise agreement which made time of the essence and required payment of the compromise sum, with interest, within the time limited, and provided that upon failure to comply strictly therewith, the agreement should be void, and the amount paid should be credited on the note, the mere payment of the principal sums within such time, without payment of any interest, though demanded, is a failure to comply with the agreement, and by the terms thereof the plaintiff is entitled to have the sum paid applied merely as a credit on the note and to recover judgment for the residue of the note.</p> <p>Id.—Power of Court Over Contracts.—It is not for the court to make contracts for the parties, nor to allow the defendant to be relieved merely because it came so nearly complying with its contract, nor to stop to speculate as to the amount of the interest required to be paid and which remained unpaid. The defendant could only be released by paying the amount agreed in the manner and at the time and according to the agreement by which the plaintiff agreed that defendant should be released.</p> <p>Id.—Plaintiff not Required to Return Amount Paid—Credit as Payment.Under Contract.—It was not necessary for the plaintiff in the action on the note to return to the defendant the amount paid, it being a part of the agreement that it should be applied as a credit on the note if the compromise agreement was not fully kept" and performed.</p>

<p>APPEAL from a judgment of the Superior Court of the City and County of San Francisco, and from an order denying a new trial. John Hunt, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Change of Place of Trial—Nonresidence of Defendants—Notice of Motion—Specification of Misjoinder of Nominal Defendant to Prevent Change Essential.—Upon a motion made by two out of three defendants to change the place of trial to the place of residence of all three defendants, when the notice includes only the ground that all of them are nonresidents and residents of the same county, and does not specify that the third defendant is only a nominal party not interested in the action, and was improperly or fraudulently misjoined to prevent a change of the place of trial, such" specification was essential to present that question for proof, and it is not raised as a ground of the motion.</p> <p>Id.—Deposition by Third Defendant for Plaintiff—Showing of Agency—Question of Waiver of Notice of Motion.—When the plaintiff introduced a deposition of the third defendant to prove the case upon the merits, in which he testified that he was a resident of the county, such deposition must be considered on the subject of the change of the place of trial for all purposes; and where it showed that he was acting in the county of the venue as the agent and trustee of the other defendants, if it conclusively showed that he was improperly joined as a party defendant, the objection to the form of the notice of motion as not including that question would be deemed waived.</p> <p>Id.—Pacts Showing Proper Joinder of Third Defendant.—Where the deposition shows that the cause of action is in the main correct, and that the balance claimed is approximately correct, and has not been paid, and that the witness contracted most of the items as agent for the other defendants, but the affidavit of merits alleges a meritorious defense to the action, which could only be based upon a want of authority of the agent to incur the account, it does not clearly appear that the third party is not a proper party to the action, and under the circumstances, plaintiff acted properly and pursued the safest course in joining him as a codefendant.</p> <p>Id.—Conflicting Affidavits as to Nonresidence of Third Defendant —Decision of Trial Court Conclusive.—Where the affidavits are conflicting as to the nonresidence of the third defendant, the decision of the trial court that he is a resident of the county of the venue is conclusive, and since he is a proper party defendant, the court properly denied the motion of the other two defendants for a change of the place of trial to the county of their residence, in pursuance of section 395 of the Code of Civil Procedure.</p>

<p>Judgment by Default—Vacation—Entry Contrary to Stipulation— Discretion.—When it appears that this action was begun by plaintiff as his own attorney, and that another attorney appeared for him on the hearing of a demurrer to the complaint, without substitution of record, and that after demurrer overruled and leave to answer, before the time to answer expired, plaintiff’s clerk signed plaintiff’s name to a stipulation giving defendant ten days further time to answer, agreeing that it need not be filed, and that after the expiration of the first ten days such attorney, contrary to the stipulation, entered the default of the defendant and judgment by default, the court had discretion to vacate the same and to allow the defendant to answer to the merits.</p> <p>Id.—Authority of Clerk of Plaintiff—Absence of Showing by Parties—Presumption—Affidavit of Attorney.—In the absence of any showing, either by the plaintiff or by his clerk, that the clerk had no authority to represent the plaintiff in signing the stipulation, it must be presumed upon appeal in favor of the action of the trial court in vacating the judgment, that the stipulation was authorized by the plaintiff, notwithstanding an affidavit of such attorney appears in the record that the stipulation was not authorized or consented to by plaintiff.</p> <p>Id.—Strict Legal Authority of Clerk not Essential—Presumed Authority.—If it be presumed as a fact that plaintiff was present when the stipulation was given, or that it was authorized by the plaintiff, and it appears that defendant acted upon it, this court will not, under the circumstances of the case, pause to consider whether or not, as a purely legal proposition, the clerk had authority to bind plaintiff by the stipulation.</p> <p>Id.—Abuse of Discretion must Clearly Appear—Allowing of Answer upon Merits.—It would have to be made clearly to appear that the trial court abused its discretion, before the appellate court would be justified in annulling an order by the very terms of which a defendant is allowed, after judgment by default, to appear and answer upon the merits.</p> <p>Id.—Form of Notice of Motion—Vacation of Default—Waiver of Objection—Proper Vacation of Judgment.—The fact that the form of the notice of the motion was to set aside the default is not material where no objection was taken thereto when the motion came on for hearing, nor that the order was made thereunder setting aside the judgment by default. If the default vrere set aside, the judgment would fall with it, since the default was' the foundation of the judgment. The whole matter was before the court, and it properly granted the relief which appeared to be just and in furtherance of a hearing on the merits.</p>

<p>Action upon Notes—Pleading—Count upon Note not Due—Cause of Action not Stated.—In an action upon two notes, in distinct counts of the complaint, only one of which is past due, a separate count upon a note not due states no cause of action.</p> <p>Id.—Improper Judgment by Default for Both Notes—Reversal— Dismissal of Action as to Note not Due.—It appearing that the immature note sued upon was not due when the judgment was entered, an improper judgment by default for the amount of both notes must be reversed, with directions to the court to enter judgment solely for the amount of the note past due, and to dismiss the action as to the note not due, without prejudice to a new action thereon.</p>

<p>Ejectment—Plaintiffs Claiming as Vendees of Mortgagor—Outlawed Debt—Title Held by Vendor as Security.—Where plaintiffs in ejectment claim to be the successors in interest of a mortgagor whose debt is outlawed, and which they repudiate, claiming to be holders of the legal title, but it appears in fact that the vendor retained the legal title as security for the debt, and that one of the defendants is the successor in interest of such title and the codefendant is a tenant of such defendant, the plaintiffs are not entitled to recover the possession of the property.</p> <p>Id.—Payment of Debt Essential to Obtain Deed of Vendor’s Title. In such case the payment of the debt by the purchaser or his grantees was essential to obtain a conveyance of the title from the vendor or Ms grantee.</p> <p>Id.—Effect of Outlawed Debt—Vendor’s Title Unaffected.—The outlawing of the debt for wMch the purchaser was responsible cannot affect the legal title remaining in the vendor, nor operate to transfer the same to the purchaser.</p> <p>Id.—Effect of Bepudiation of Debt—Loss of Equities.—When - the purchaser and his grantees have refused to pay the debt and have repudiated the same, they are neither entitled to recover the possession from the vendor or Ms grantee, nor to enforce any equities against such grantee, their equitable estate having been divested by such repudiation, and they have no equities that ought to prevail against the legal title.</p> <p>Id.—Improper Judgment for Plaintiffs—New Trial Properly Granted.—When the court had improperly rendered judgment for plaintiff on the theory that the transaction was a mere mortgage, it properly granted a new trial to the defendants.</p>

<p>Negligence—Injury to Infant Child—Pall from Unguarded Wagon in Bear of Slowly Moving House—-Attraction of Children— Sufficiency of Complaint.—A complaint for damages sustained by the infant plaintiff, which alleges that defendants caused a wagon without bed or frame to be attached to the rear of a very slowly moving house on the public street, which was left unguarded and unattended; that the wagon thereby became and was attractive to young children desiring to climb and ride thereon; that the plaintiff, who was an infant four years old and wholly unable to appreciate or guard himself against dangerous appliances, was attracted to said wagon, and by the negligence of the defendants invited to climb and ride thereon, and by the negligence of the defendants and of their servants, and without fault on his part, caused him to be jolted and thrown from said wagon, and injured by its wheels running against his head—sufficiently shows the defendant’s neglect of duty to the plaintiff.</p> <p>Id.—Duty of Person Using Vehicles upon Street.—Everyone using vehicles upon the public street is chargeable with the duty to exercise ordinary care in the management and control thereof, to avoid injury to others using the street with ordinary care and to those who by reason of tender years are unable to appreciate or guard against danger; and it is his duty at all times to retain such control over the same as may be required to avert injury, if possible, to those not using such care or who are unable to appreciate the danger connected therewith.</p> <p>Id.—Negligence to Leave Dangerous Machinery Attractive to Children Unguarded.—It is an act of negligence to leave unguarded and exposed to the observation of little children dangerous and attractive machinery which they would naturally be tempted to go about or upon, and against the danger of which action their immature judgment opposes no warning or defense.</p> <p>Id.—Contributory Negligence Negatived.—The allegation of the complaint that the plaintiff child, four years of age, was too young and inexperienced to foresee the danger, removes from consideration, as regards the complaint, any question of contributory negligence.</p> <p>Ib.—Sufficiency of Evidence—Conflict—Credibility of Witnesses —Province of Jury.—Held, that the evidence, notwithstanding some conflict in the same, was sufficient to warrant the jury in finding that the wagon was in fact unguarded and unattended, and that the defendants did not exercise usual and ordinary care in the management and control of the same. The credibility of the witnesses was matter for the determination of the jury, and it was within their province to accept as true the testimony of the witnesses for the plaintiff.</p> <p>31).—Appointment op Guardian Ad Litem—Concession—Additional Party—Parol Evidence not Prejudicial—Cause op Action Unaffected.—Where it is conceded that an original order was duly entered appointing a guardian ad litem for plaintiff against the original defendant, the fact that the corporation defendant was subsequently joined as a party defendant did not change the cause of action nor destroy the right of the guardian ad litem to recover against the corporation defendant; and upon issue joined by such corporation, it was not prejudicial error to allow parol proof of such original appointment.</p> <p>3d.—Infant Bound by Judgment.—The appointment of a guardian ad litem having been made in fact, the infant is bound by the judgment in his favor against the corporation defendant.</p> <p>Id.—Nonsuit as to Original Defendant—New Appointment not Bequired.—The granting of a nonsuit as to the original defendant sued, whose name is included in the name of the corporation defendant, cannot affect the cause of action nor the validity of the original appointment of the guardian ad litem, nor require a new appointment as to the corporation, when brought in as a party co-defendant with the original defendant.</p> <p>Id.—Appointment of Guardian Ad Litem not Jurisdictional—Question of Beversal—Exception.—The appointment of a guardian ad litem is not jurisdictional; though if the matter were called to the attention of the court, and there were an entire failure to make an appointment, the judgment would be reversed; yet when facts appear which will preclude the infant from disaffirming the judgment before maturity, the judgment will not be reversed for failure to appoint a guardian ad litem as against the appellant.</p>

<p>PETITION for discharge upon writ of habeas corpus from the custody of the chief of police of the city of Sacramento, to test the validity of a conviction in the city justice’s court.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Action on Burned Note—Assignment for Collection—Loss by Bank—Evidence—Reassignment to Payee—Officers of Bank— Corporate Seal.—In an action on a burned note, which the payee had assigned to a bank for collection, in whose possession it was destroyed in the conflagration of April 18, 1906, the court properly admitted evidence of a reassignment of the note by the vice-president and cashier of the bank, with its corporate seal attached, with testimony not objected to that such officers were authorized to make the assignment, the corporate seal being, of itself, sufficient prima facie evidence that such officers were authorized to execute the same, and that the execution thereof was the act of the corporation.</p> <p>Id.—Action by Assignee of Payee—Bond of Indemnity for Destroyed Note—Form.—Where the action on the destroyed note is brought by the assignee of the payee, the assignee, as holder, is required by the terms of section 3137 of the Civil Code to give to the makers a bond executed by himself and two sufficient sureties to indemnify them against any lawful claim thereon. Such bond is not required to fix any penal sum; but the parties executing it under the statute are liable to the full extent of the lost note by way of indemnity.</p> <p>Id.—Payee of Note not Required to Give Bond.—The payee of the lost note who is not the holder at the time of its enforcement for payment is not required to give any indemnifying bond to the makers of the note. The statute requires such bond only of “the holder” of the lost or destroyed note.</p>

<p>The facts are stated in the opinion of the court.</p>

<p>Action to Quiet Title—Boundary Between Sections—Reference to Uncertain Map—Absence op Field-notes—Location in Fact— Best Evidence—Recognized Monuments.—In an action to quiet title involving a disputed boundary between lots, referring to a map uncertainly locating the line, and no field-notes of the survey for the map are indicated, it was proper for the court to receive the best evidence obtainable to determine the location as matter of fact, and in doing so, was important to inquire as to the location of such stakes and monuments as were commonly recognized, accepted and used in lieu of lost or destroyed original monuments, and in the absence of more certain evidence, these stakes and monuments would be sufficient to support a finding as to the location of the boundary.</p> <p>Id.—Admissibility op Evidence—Conclusions op Surveyors as to Results op Surveys Proved—Reversal op Judgment not Required. Although in general opinion evidence as to the location of a line is not admissible, yet where several surveyors, each of whom had proved his survey, were each allowed to state his conclusion as to the result of his survey, it was not such prejudicial error as to entitle the aggrieved party to a reversal of the judgment.</p> <p>Id.—Summary op Previous Testimony—Mind op Trial Judge not Appected—New Trial not Required.—A new trial will not be granted when the answers to questions constituted no more than a mere summary in the form of a conclusion of the previous testimony of the witness, and could add nothing to the effect of the previous testimony in the mind of the judge trying the case.</p>

<p>The facts are stated in the opinion of the court.</p>

<p>The facts are stated in the opinion of the court.</p>

<p>Sale Under Trust Deed—Right to Surplus—Deed from TrustoRt— Notice of Prior Equity—Deed from Owner to Trustor—Contract to Resell—Payments—Material Omission to Find.—In an action involving the right to a surplus in the hands of trustees after sale under a trust deed, in which the surplus -was adjudged to the trustor’s grantee, who took with notice of the prior equity of appellant, who, as original owner of the property, conveyed the same to the trustor, who agreed to resell the same to appellant, upon payment of the amount of the trust deed besides a further sum advanced by' the trustor and such grantee, with monthly interest on the whole amount, which was payable within one year, with a forfeiture clause in case of nonpayment, and before the end of the year the sale was made, an issue joined that appellant paid and tendered all the interest due under the agreement to resell to the date of sale was material, and the failure to find thereon is ground for reversal of the judgment.</p> <p>Id.—Effect of Payments as Provided—Ownership of Surplus in Equity.—If appellant made the payments as provided in the agreement to resell to the time of sale under the trust deed, she is in equity the owner of the surplus, under the findings of the court as to such agreement, though mistaken in her contention that the transaction amounted to a mortgage.</p> <p>Id.—Appeal from Judgment — Review of Material Omission in Eindings—Judgment Unsupported—Reversal.—An error in failing to find upon a material issue, upon which evidence was offered, as shown by the record upon appeal, is not necessarily required to be passed upon on appeal from an order denying a new trial, but may be reviewed upon appeal from the judgment, and such material omission in the findings -leaves the judgment without support, and requires a reversal thereof.</p> <p>Id.—Conflicting Evidence as to Payments—Finding Required.— Where there is testimony to the effect that appellant made the payments as required, notwithstanding conflicting evidence to the contrary, such conflict cannot be determined by the appellate court, and does not deprive a party of the right to have a finding upon the material issue as to such, payments.</p> <p>Id.—Former Judgment of Nonsuit not a Bar—Finding Concluding Respondents.—A finding in the present action, that a former judgment of nonsuit in a prior action by appellant to collect the surplus was not a bar in favor of respondents against the appellant in this action, concludes the respondents from questioning such finding.</p> <p>Id.—Supposition of Default in Interest—Belief in Equity Against Forfeiture—Compensation.-—Upon the supposition of default of the purchaser in the payment of interest, equity will relieve against a forfeiture, if intended to secure the payment of the purchase money with interest, when compensation can be made, which can be done in the present case, since, prior to the year fixed for payment of the principal sum, the property was sold, through no fault of the appellant, and appellant is only required to reimburse respondents for their outlay with interest.</p> <p>Id.—Compensation of Cross-demands.—In determining whether the evidence is sufficient to show that the omission to find upon the material issue as to payments of interest by appellant until the sale, and ascertainment of the surplus, the appellant will not be deemed in default when it appears that the vendor owed the purchaser a sufficient sum to pay the interest required, and the one debt could offset the other. In such case the two demands, so far as equaling each other, are deemed compensated, under section 1440 of the Code of Civil Procedure.</p>

<p>New Trial—Newly Discovered Evidence—Facts Known at Trial— Complaint — Opportunity to Produce Evidence — Absence of Diligence—Discretion.—Notwithstanding newly discovered evidence, presented as a ground for a new trial, appears to be such as, if produced at the trial, would raise a strong presumption that the result would be different, yet where it appears that the moving party knew the facts before the trial, and might have proved them thereat with the exercise of reasonable diligence, that the complaint gave notice of plaintiff’s position, and of the proof required to meet it, that defendants asked for no continuance, and had an opportunity after the trial, for three months before the decision, to move for a resubmission of the cause for further evidence, it cannot be said that defendants exercised due diligence, or that the court abused its discretion in denying the motion.</p> <p>Id.—Burden upon Moving Party.—The moving party must show due diligence, and the action of the trial court will not be disturbed, except upon a clear showing of an abuse of discretion.</p> <p>Id.—Date of Affidavits—Remedy by Motion for Resubmission.— Where all of the affidavits produced upon the motion, save that of the plaintiff and one other, were made during the month preceding the decision of the cause, the defendant had the remedy to move to open the resubmission of the cause for further evidence, which, if granted, would have given an opportunity to produce all of the evidence disclosed in any of the affidavits.</p>

<p>Action for Materials Sold—Nonliability of Defendant Sued— Partnership with Plaintiff’s Agent — Payment — Support of Findings.—In an action for materials sold and delivered, where the court found upon sufficient evidence that defendant, sued individually, did not purchase or receive or promise to pay for said materials; that plaintiff’s managing agent, to plaintiff’s knowledge, was a partner with defendant as contractors, that plaintiff’s agent was to furnish the materials and defendant the labor, and share the profits; that the materials were furnished to the partnership through plaintiff’s agent, and that they were paid for before suit, with the exception of materials returned, and that the partnership owed nothing therefor, the court upon such findings properly rendered judgment for the defendant.</p> <p>Id.—Parties—Bringing in Copartner not Required.—It appearing that plaintiff’s agent, as copartner, had wrongfully charged the materials against the defendant upon the plaintiff’s books, and had caused the plaintiff to sue defendant individually therefor, the facts of the case take it out of the rule, that, in a proper case, where a partnership obligation is involved, the court will direct a copartner to be joined as a defendant, to avoid a mistrial.</p> <p>Id.—Election by Plaintiff—Objection to Plea of Partnership.— The plaintiff having elected to sue the defendant individually, and having objected to allow the defendant to amend his answer to set up that the materials were sold to the partnership, and not to the defendant, the court will not compel the bringing in of defendant’s managing agent as a partner, and to allow judgment against the partnership. The plaintiff was entitled to litigate and did litigate the question as to whether the defendant was indebted to it individually or not, which was properly found against it.</p> <p>Id.—Incidental Finding—Debt of Partnership.—The finding that the debt was the debt of the partnership was merely incidental to the finding that it was not the debt of the defendant.</p>

<p>Mechanics’ Liens—Foreclosure by Materialman—Void Contract— Pleading.—Where the contract for the construction of a building for a sum exceeding $1,000 is void because not filed with the recorder before the work was begun, and because the specifications which were a part of the contract were not filed with the recorder, the materials are deemed to have been furnished at the personal instance of the owner, and it is sufficient for the complaint so to allege, and to assert a lien therefor directly against the owner, though not in accordance with the actual transaction between the plaintiff and the contractor.</p> <p>Id.—Pleading—Invalidity of Contract—Proof—Practice.—It is not essential that the plaintiff should set out the contract or allege its validity, and the plaintiff may introduce it in evidence, and show its invalidity. But it is deemed proper practice to allege the facts as they exist, and leave it to the court to draw the conclusion that the property is subject to the lien; and where the contract is void, the plaintiff may pursue that course, or aver a direct agreement with the owners.</p> <p>Id.—Uncertainty in Complaint—Notice of Lien as Exhibit—Inconsistency — Special Demurrer — Error not Prejudicial.— Though the allegation that the contract was made by plaintiff with the owner is inconsistent with the notice of lien, made part of the complaint as an exhibit, stating that it was made with the contractor, and admitting that a special demurrer for such uncertainty should have been sustained, yet the error in refusing to sustain it will not be deemed prejudicial, nor ground for reversal, where the court justified the ruling on the ground that the law made the contract to be with the owner, and the case was tried on that theory.</p> <p>Id.—Mistake of Amount Due in Notice of Lien—Absence of Fraud —Complaint for Less Sum.—Where there was a mistake in the amount stated to be due in the notice of lien, and no fraud appears, the fact that the complaint is for a less sum, after deducting payments made, than is called for in the notice is unimportant.</p> <p>Id.—Immaterial Difference.—There is no material difference between a statement of the whole amount due without setting out the credits, or a statement of the whole amount of the debit side of the account, and also of the credits.</p> <p>ü>.—Immaterial Variance as to Terms op Contract—Substantial. Truth—Market Value.—The technical doctrine of variance does not apply to the statement of the contract in the notice of lien, all that is required being that the statement of the contract therein shall be substantially true. A statement made as to the terms of the contract which is shown to accord substantially with the-actual market value cannot mislead the owner to his prejudice,, though the contract is merely implied to pay the market value.</p> <p>Id.—Uncertainty as to Terms op Contract—Harmonious Construction—Lien not Vitiated.—Where the notice of lien is uncertain as to whether the claimants rely upon an express or implied contract, but it merely states that the materials were furnished to the contractor, to be used in the construction of the building,, that there were no conditions attached to the contract, and no-time set for payment, except that payment was to be made when the work was completed, and there was evidence of an account stated thereafter, the notice is to be construed as harmoniously and consistently as possible; and any uncertainty therein cannot vitiate the lien.</p>

<p>APPEAL from a judgment of the Superior Court of Mendocino County, and from an order denying a new trial. J. Q. White, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>The facts are stated in the opinion of the court.</p>

<p>The facts are stated in the opinion of the court.</p>

<p>Contract to Sell Land—Perfect Title of Becord—Loss of Becords —Action by Purchaser for Beturn of Deposit.—Under a contract to sell land in San Francisco, upon which the purchaser made a deposit, and which gave him twenty days in which to examine title, and, if found defective, the vendor was to perfect it within ninety days, and if not perfected within that time the deposit was to be returned, the purchaser was entitled to a good or perfect record title, and when such title of record was impossible by reason of the destruction of the public records by fire, and could not be restored by the vendor within the time limited, the purchaser was entitled to reclaim the deposit, unless he abandoned the contract, or brought Ms action prematurely.</p> <p>Id.—Contract not Repudiated by Purchaser—Rights Under Contract—Absence of Estoppel.—Held, that there is notMng in the record which can be construed as an abandonment or repudiation by the purchaser of the contract on Ms part; but that, even if he did not intend to take the property under any circumstances, he had the right to rely on the imperfect condition of the record as an excuse for avoiding the contract, where it appears that he did not mislead the defendant, nor do anything which could be held to estop him from insisting upon a strict compliance with the terms of the agreement.</p> <p>Id.—Action by Purchaser to Recover Deposit not Premature—Repudiation of Contract by Vendors—Inability to Perform.—The action by the purchaser to recover the deposit before the expiration of the ninety days was not prematurely brought, where it appears that the defendants, a few days after notice by plaintiff of objection to their title, as not appearing of record, under the pretext that plaintiff was compelled to accept the report of a title insurance company on the title, tendered plaintiff a deed of the land and stated that that was all that would be done for him under tha contract, which, coupled with their inability to obtain a record title) within the ninety days, worked a repudiation of the contract, and gave to plaintiff the right to have Ms deposit returned immediately. Id.—Tender of Performance by Plaintiff not Required.—Tender of performance by plaintiff of the conditions of the contract on Ms part was, under the facts of the case, unnecessary to entitle him to recover back the deposit.</p>

<p>APPEAL from an order of the Superior Court of Kern County refusing to dissolve an attachment. J. W. Mahon, Judge.</p> <p>The facts are stated in the opinion of the court.</p> <p>J. W. P. Laird, Rowen Irwin, and E. L. Foster, for Appellant.</p>

MOTION to dismiss an appeal from a judgment of the Superior Court of the City and County of San Francisco. The facts are stated in the opinion of the court.

<p>APPEAL from a judgment of the Superior Court of Los Angeles County denying an application for a writ of mandate. Chas. Monroe, Judge.</p> <p>The facts are stated in the opinion of the court. •</p>

<p>The facts are stated in the opinion of the court.</p>

<p>The facts are stated in the opinion of the court.</p>

MOTION to dismiss an appeal from a judgment of the Superior Court of the City and County of San Francisco. John Hunt, Judge. The facts are stated in the opinion of the court.

<p>The facts are stated in the opinion of the court.</p>

<p>Broker’s Commissions—Sale of Land at Auction.—The assignee of a real estate company, may recover commissions on a sale of land by it at auction for the defendants.</p> <p>Id.—Defaulting Purchasers—Broker not Guarantor of Payment of Purchase Price.—A broker selling land at auction is not a guarantor of the payment of the purchase price on the sales thereby made and does not lose the right to commissions by reason of the default of the purchasers in such payments.</p> <p>Id.—Agreed Statement of Facts—Construction—Failure of Duty not Shown — Presumption — Percentage — Reference to Defaulting Purchasers.—Where the case was determined upon an agreed statement of facts, which does not show that the real estate company failed to perform any duties required of it, it cannot be presumed that it failed of its duty to collect percentage of purchasers at the time of sale, if it be assumed without proof that he was required to collect the same upon the fall of the hammer or no sale; and the reference in the agreed statement of facts to the defaulting of purchasers should be construed to refer solely to subsequent defaulted payments of the purchase price, when its language admits of such construction.</p> <p>Id.—Absence of Provision for Percentage—Completeness of Auction Sale—Entries Binding Parties.—In the absence of an express provision in the contract for sales at auction that percentage must be collected on the fall of the hammer, the sale of a lot at auction was complete when the auctioneer announced that the lot was sold; and entries in his sale-book, specifying the lot sold, the names of the seller and buyer, and the price and terms of sale, bind the parties the same as if the memorandum was made by the parties themselves.</p> <p>Id.—Earning of Commissions.—A broker earns his commissions when he brings the buyer and seller together, each being willing to effect a sale, where nothing further is required of the broker by the terms of the contract, and the same rule applies when the sale of the land is made at auction.</p> <p>Id.—Liability of Defendants as Principals—Agency not Disclosed. The defendants, as matter of law, made themselves liable as principals to the real estate company for commissions on their sales at auction of lots in a tract of land described in the agreed statement of facts under their contract therewith, where it was not executed by them in the name of anyone as agent, but solely as individuals. Id.—Recital op Phrase “Syndicate Committee”—Construction.— The description of the defendants as a “syndicate committee” of the syndicate owning the property described, in the recitals of the contract, is to be taken most strongly against them as makers and promisors, and the word “committee” may be construed to be a committee of the whole syndicate; nor can the allegations of the answer be considered in aid of the construction of this language, to the advantage of the defendants, or to add to the agreed statement of facts, showing their individual liability.</p> <p>Id.—Recitals in Contract Executed Individually.—When a person executes a writing in his individual capacity, and recites in the body of the instrument that he acts as representative of a third person, it cannot be said, as matter of law, that by so doing he binds the third person, and with much less reason can it be said that he does not bind himself individually.</p> <p>Id.—Question op Fact—Parol Evidence—Absence op Evidence.—At most, in such case, it becomes a question of fact whether the third party is also bound, as well as those signing individually, to be determined by parol evidence; but in the absence of any evidence, except the fact of the execution of the writing by the defendants individually, they are the only parties appearing to be bound by the contract.</p>

<p>APPEAL from a judgment of the Superior Court of the City and County of San Francisco, and from an order denying a new trial. James M. Troutt, Judge.</p> <p>The facts are stated in the opinion of the court.</p> <p>George F. Hatton, Walter H. Robinson, and Hartley F. Peart, for Appellant.</p>

PETITION for writ of review to annul an execution issued in the justice’s court of Los Angeles township, Los Angeles county, after dismissal of an appeal therefrom by the superior court for want of prosecution by the appellant.

<p>Judgment Determining Water Bights—Stipulation—Corporations Substituted for Bespondent—Modification—Affirmance.—Seld, that, it being stipulated that certain corporations are the successors in interest of the original respondent upon this appeal from ' a judgment determining the water rights between the appellant and respondent, the judgment is modified accordingly, and as so modified is affirmed.</p>

<p>Action to Enforce Trust—Laches Shown by Complaint—Demurrer —Decision upon Former Appeal—Law of Case.—In an action to enforce a trust in favor of the estate of a deceased wife against the estate of a deceased husband, where the complaint shows on its face that the claim is stale in equity, the decision on a former appeal that a general demurrer to the complaint should have been sustained is the law of the case upon a second appeal involving the same rule of demurrer as to a stale demand in equity, where the cause .of action is the same, and no excuse is shown for the laches, notwithstanding the nature of the trust is more specifically alleged.</p> <p>Id.—Same Question of Laches Involved—Distinction as to Nature of Trust Immaterial.—Where the same question of laches upon the face of the complaint is presented upon the second appeal, there is no material distinction between a complaint to enforce a trust pro tanto upon the former appeal and an amended complaint setting forth a trust in favor of the deceased wife as to all the funds of the deceased husband, and the setting forth of a chain of title thereto appearing upon the present appeal, no excuse for the apparent laches being presented.</p> <p>Id.—Theory of Stale Demands in Equity—Death of Parties Inducement to Perjury and Injustice—Sound Policy.—Equity does not proceed in its theory of stale demands upon the supposed impossibility of tracing trust funds, but that it looks with disfavor upon suits involving stale transactions extending over a long period of years because after the death- of the parties testimony can be so easily fabricated, and there is such strong inducement to perjury, and such peril of injustice is involved to those whose lips are sealed by death, that it is deemed contrary to sound policy to investigate the case.</p> <p>Id.—Correct Decision Sustaining Demurrer to Amended Complaint. Sold, the court correctly sustained the demurrer to the amended complaint, on the ground of laches appearing upon the face of the complaint, not only on the ground of the law of the ease, but also because it is just, and because there is added reason for holding that now, after fifty-five years since the original transaction, no trial should be had of plaintiff’s stale demand.</p>

<p>APPEAL from an order of the Superior Court of the City and County of San Francisco denying a new trial. George A. Sturtevant, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Motion for New Trial—Service of Notice of Intention.—Upon a motion for a new trial the notice of intention must be served upon all adverse parties whose interests would be adversely affected by the granting of the motion to give the court jurisdiction to grant a new trial.</p> <p>Id.-—Bill of Exceptions—Service Upon All Adverse Parties Required—Affirmance of Order.—The bill of exceptions, to be used on the motion for a new trial, must be served upon all parties adversely interested in the result of the motion, or in the result of an appeal from an order denying the motion, else the appeal from such order must be affirmed.</p> <p>Id:—New Method op Appeal—Filing op Notice—Service op Notice op Intention and Bill op Exceptions Unchanged.—Notwithstanding the new method of appeal does not require the filed notice of appeal to be served, yet such method does not dispense with the requirement for service of the notice of intention to move for a new trial, and for service of the bill of exceptions to be used thereon, upon all adverse parties.</p> <p>Id.—Joint Judgment—Appirmance Upon Appeal—Adverse Parties not Served.-—Where the judgment was joint against the appellant and two codefendants, and the appellant claimed upon the trial and also upon appeal that he was not liable, and that the codefendants were the only parties liable, such codefendants were adverse parties, who must be served with the notice of intention to move for a new trial, and with notice of the bill of exceptions to be used thereon, and when there was no such service, and no error appears upon the judgment-roll, the judgment and order denying a new trial must be affirmed.</p> <p>Id.—Construction op Code Provisions.—Held, that there is nothing confusing or misleading in the provisions of section 650 of the Code of Civil Procedure as amended; and that its provisions are not directory so far as relates to the service of notice.</p> <p>Id.—Adverse Parties not Complaining—Immaterial Fact.—The fact that the adverse parties were not served with the notice, of intention to move for a new trial or with notice of the bill of exceptions, or with notice of the appeal, is not material, since they have had no opportunity to complain. They might be satisfied with a judgment making the appellant jointly liable with them, but might seriously object to having the judgment reversed or so modified as to make them solely liable.</p>

<p>Action on Note—Prima Facie Case—Presumption of Consideration —Burden of Proof.—In an action on a promissory note, the plaintiff makes a prima facie ease by producing the note in evidence and proving nonpayment. The presumption is that the note is supported by a sufficient consideration; and the burden is upon the defendants to overcome' such presumption and to show a want of consideration for the note.</p> <p>Id.—Burden on Party Having Affirmative.—The burden of proof is. always on the party maintaining the affirmative of the issue.</p> <p>Id.—Attack upon Consideration—Evidence for Defendants—Burden upon Plaintiff.—Where the answer took issue upon the allegations of the complaint and the defendants filed a cross-complaint,, setting up a want of consideration for the note sued upon, and offered evidence in support thereof, the burden is upon the plaintiff to show by the preponderance of evidence that there was a sufficient consideration for the note.</p> <p>Id.—Presumption of Consideration as Evidence.—-The presumption of consideration has effect as positive evidence in favor of the plaintiff.</p> <p>Id.—Conflicting Evidence—Finding in Favor of Presumption.— When the evidence is otherwise conflicting between plaintiff and defendants upon the question of consideration for the note, the jury were authorized to find in favor of the presumption of consideration as against the witnesses in favor of the defendants, and that plaintiff has the preponderance of evidence in his favor by virtue of such presumption.</p> <p>Id.—Sufficiency of Consideration—Waiver of Bight to Contest Second Will—Devise of Plaintiff Under Prior Will.—Where a devise was made in favor of the plaintiff under a prior will, and a second will devised the whole property to one of the defendants, the plaintiff had the legal right to contest the second will on the grounds of incompetency of the deceased to make it and undue influence of said defendant exerted over the deceased, and the waiver of that right of contest constitutes a sufficient consideration for a note given by such defendant to the plaintiff.</p> <p>Id.—Immaterial Fact—First Will not Filed for Probate—Agreement for Settlement.—It is an immaterial fact upon the question of consideration that the first will had not been filed for probate, and that the second will had been admitted to probate, when there is evidence to show that it was part of the agreement of settlement that the first will should not be filed for probate.</p> <p>Id.—Ultimate Success op Contest Immaterial.—It is not material to show that a contest of the will waived by the settlement upon which the note was founded would ultimately have been successful. Id.—Pleadings—Answer to Cross-complaint—Special Demurrer— Trial upon Merits—Error Cured.—Although the answer to the cross-complaint was inconsistent, and a special demurrer tuereto should have been sustained, yet where the answer as a whole stated a defense to the cross-complaint, and a trial was had upon the merits, which resulted in a verdict for the plaintiff, the error was thereby cured.</p> <p>Id.—Variance—Inconsistency Between Answer and Evidence— Weight—Province op Jury.—Any variance in evidence of the plaintiff inconsistent with the statements of the answer to the cross-complaint, goes only to the weight of the plaintiff’s evidence, which in connection with the presumption in favor of the consideration, raises a question of fact for the determination of the jury, who were authorized to find for the plaintiff, notwithstanding such variance.</p> <p>Id.—Denial op Threat to Contest Later Will not Conclusive.— The denial in the answer to the cross-complaint of a threat to contest the later will is not conclusive evidence against the right of plaintiff to contest the same and the waiver of that right as a consideration for the note in suit.</p> <p>Id.—Instruction.—Held, that the charge of the court fairly presented the law of the case, and that there was no error in the refusing of instructions requested for the defendants.</p>

<p>APPEAL from a judgment of the Superior Court of Alameda County, and from an order denying a new trial. Henry A. Melvin, Judge.</p> <p>The facts are stated in the opinion of the court.</p>