Volume 102 — California Reports

<p>Appeal from, a judgment of the Superior Court of Fresno County, and from an order denying a new trial.</p> <p>The facts are stated in the opinion.</p>

Application to the Supreme Court for a writ of prohibition to the Superior Court of the city and county of San Francisco. The facts are stated in the opinion of the court.

<p>Justice oe the Peace—Vacancy—Power oe Aefointment—Code—Char. ' ter oe Oakland.—The power to appoint a justice of the peace of the city of Oakland to fill a vacancy is vested in the board of supervisors of the county of Alameda, under section 111 of the Code of Civil Procedure, and not in the mayor of the city under section 203 of the charter of Oakland.</p> <p>Id.—Constitutional Oeeice—State Election.—The office of justice of the peace is a creation of the constitution, and can not be created by any city charter, and such officer is elected at a general state election, and qualifies under the general law of the state.</p> <p>Id.—Construction oe City Charter—Appointments by Mayor—Presumption.—It must be presumed, the contrary not appearing, that the filling of vacancies in city offices by the mayor, provided for in section 203 of the charter of the city of Oakland, 'was not intended to include the filling of a vacancy in the office of justice of the peace for the city.</p> <p>Id.—County Government Act—Code—Repeal by Implication.—The County Government Act of 1891 does not impliedly repeal section III of the Code of Civil Procedure, which includes all justices of the peace, both of cities and of townships, and confers upon the hoard of supervisors of the county the power to fill vacancies in that office.</p> <p>Id.—Statutory Construction—Repeals by Implication Not Favored.— Repeals by implication are not favored, and it is only when two statutory provisions are absolutely repugnant to each other that a repeal of the earlier will be declared.</p>

<p>Criminal Law—Embezzlement—False Pretenses—Larceny.—On the facts there is often a narrow margin between cases of larceny, obtaining money by false pretenses and embezzlement, depending upon the intention of the parties; hut, as matter of law, if one honestly receives goods upon trust, and afterwards fraudulently converts them to his own use, he is guilty of embezzlement; if he obtains possession by fraud, and the owner intends to part with the title, the offense is obtaining goods under false pretenses; but if he obtains possession fraudulently, with intent to convert the same to his own use, and the owner does not part with the title, the offense is larceny.</p> <p>Id.—Obtaining Money by Fraud—Larceny—Questions of Fact—Felonious Taking—Ownership.—When the evidence tends to show that the prosecuting witness was induced to place his money in the hands of the defendant accused of larceny, as security for the faithful performance of services as a collector, upon the false assurance that he would have permanent employment, and that the voluntary giving of a worthless note for the money was a mere device, a trick to hide the real design of the defendant, and that defendant and his confederate conspired feloniously to procure the money and to convert it to their own use, it is a question for the jury to determine whether the defendant feloniously took the money, and whether the prosecuting witness intended to part with the ownership of the same.</p> <p>Id.—Evidence—Advertisement by a Confederate.—An advertisement in a newspaper by a confederate who took the applicant to the defendant, and who appeared to have been thereafter closely associated with him, stating the wages to be paid and the security to be required, which were the same as those insisted on by the defendant, and which advertisement was referred to in the conversation between the three parties, was properly admitted in evidence against the defendant, and justified the jury in believing, under the circumstances, that the act of one of the confederates was the act of both.</p> <p>Id.—Ownership of Money—Separate Property of Wife of Prosecuting Witness—Variance.—Evidence that the money paid to the defendant by the prosecuting witness came from the separate estate of his wife, and was given by her to the prosecuting witness to provide the security required by the defendant, does not show a material variance from the allegation of the information that the property belonged to the husband.</p> <p>Id.—Letter of Defendant to Third Person—Impeachment of Good Faith—Commission of Another Offense,—A letter written by the defendant to a third person, after the discharge of the prosecuting witness, replying to a letter of inquiry based upon an advertisement by the defendant for another person to take the same situation upon the same terms is admissible in evidence as tending directly to impeach the defendant’s good faith in discharging the prosecuting witness, and the fact that it may have tended to show the commission of another offense by the defendant is immaterial.</p> <p>Id.—Instruction—Stealing—Felonious Taking.—An instruction which uses the word “stealing” without using the word “felonious” before it, is not for that reason erroneous. The word “steal,” in common as well as in legal parlance, imports a larceny, and when used in connection with property which is the subject of a larceny, means the felonious taking.</p> <p>Id.—Motion for Nonsuit—Presence of Jury—Discretion.—It is not error for the court to consider and pass upon a motion for a nonsuit in the presence of the jury; and it is always in the discretion of the court to say whether the interests of the parties demand that the jury should not hear the argument on such motion.</p>

<p>Roads and Highways—Public User—Dedication—Evidence—Offer of Proof.—Where a road has not been laid out as such by the public, it cannot he held to be a public highway by virtue of section 2618 of the code, unless it is shown to have been dedicated or abandoned to the public by the owner of the land; and an offer to prove its use by the public for the period of five years, accompanied by a statement of the party offering the evidence that he did not expect to prove any intention on the part of the owner of the land to dedicate the land as a public highway, except by proving its use by the public, is properly excluded.</p> <p>Id.—Intention to Dedicate Essential—Effect of User.—Dedication exists only where the owner of the land has manifested some intention to make the dedication; and where the dedication of a highway is sought to he established by user, it must appear that such user was with the knowledge of the owner, and with his consent, or without objection on his part.</p> <p>Id.—License to Use Way—Inclosure by Fence—Rebuttal of Dedication.—The fact that the land had been inclosed by a fence would show that any use of it by the public for a way was only permissive, and is strong evidence in support of a mere license to the public to pass over the designated way, and in rebuttal of a dedication to public use.</p> <p>Id.—User for Five Years—Amendment of Code—Repeal of Original Section—Case Overruled.—The provision of section 2619 of the Political Code, as it originally stood, June 1, 1873, providing that “all roads used as such for a period of five years are highways,” was superseded and repealed by the amendment of March 30, 1874, although the amendatory act was made applicable to certain counties only, and the original section could not, after the date of that amendment, he invoked as an authority for the creation of a highway by mere user in any county of the state. (Qloster v. Wade, 78 Cal. 407, overruled.)</p> <p>Id.—Constitutional Law—Republication of Amendment—Repeal— Saving Clause—Limitation of Amendatory Act.—Under section 24 of article IV of the state constitution, which provides that an “act revised or section amended shall he re-enacted and published at length as revised or amended,” when a section of the code is “amended to read as follows, ” and the amended section is published at length, without any saving clause continuing the original section in force for any purpose or to any extent, the effect of the amendment is to repeal the section as it originally stood, and it ceases to have any statutory force; and a section of the amendatory act merely providing that the amendment shall be applicable to certain counties named does not operate as a saving clause to continue the original section in force in other counties of the state.</p>

<p>Trademark—Proper Subjects.—Words merely descriptive of the thing manufactured are not the proper subjects of a trademark, but the name of the maker, and every device in the form and contents of a label or wrapper affixed to denote that goods are manufactured, produced, compounded, or sold by him, other than a name, word, or expression denoting that the goods are of some particular class or description, are proper subjects of a trademark.</p> <p>Id.—Assignment of Trademark—Protection of Assignee—Injunction. When the claimant has secured a trademark or name by filing with the secretary of state his claim to the same, and otherwise complying with section 3197 of the Political Code, he may transfer the same, .and the right to the exclusive use thereof, to another, and the property right so transferred will be protected from infringement by injunction.</p> <p>Id. —Improper Use of One’s Own Name.—The improper use of one’s own name may be enjoined, where, for a valuable consideration, he has voluntarily sold a trademark of which his name forms an essential part, and the goodwill of a partnership business in which his own name is the leading and characteristic designation of the firm.</p> <p>Id.—Imitation of Labels—Fraud.—Apart from the infringement of a valid trademark, a competing business firm is bound to deal fairly in placing its rival article upon the market, and if it clearly appears that the defendant has closely imitated the plaintiff’s labels and style, and has done obvious damage to the latter’s business through the unlawful business methods employed, the plaintiff is entitled to relief upon the ground of fraud.</p> <p>Id.—Injunction Restraining Use of Name.—Injunctions may be issued to restrain the use of one’s own name where such use is made with such additions as to intentionally deceive the public, and make them believe he is selling the goods of another.</p> <p>Id.—Manufactube and Sale of Medicinal Pbepabation—Tbadehabk —Goodwill—Injunction.—A plaintiff who is not a patentee of a medic, inal preparation sold by him, but is merely the assignee of a trademark of such preparation, and of the goodwill of the firm which originally manufactured it, cannot maintain an injunction against his assignor, to prevent the manufacture and sale of that or any similar preparation; but may enjoin the use of labels by his assignor infringing the trademark, or constituting a colorable imitation of his labels, the resemblance being such as to justify the conclusion that they were intended and adapted to mislead the public, and to injure the plaintiff’s business, and may prevent the defendant from drawing off the plaintiff’s patrons and customers.</p>

<p>Appeal from a judgment of the Superior Court of Fresno County.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Appeal from a judgment of the Superior Court of Placer County, and from an order denying a new trial.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Corporations—Organization—Filing of Articles in Wrong County.— Where an intended corporation did not file its articles in the clerk’s office of the county in which the principal place' of business of the company was - to be transacted, but filed it in the clerk’s office of another county, the fact that a copy of the certificate of incorporation, signed by the secretary of state, was filed with the county clerk of the county in which the business of the corporation was to be carried on, is not sufficient to make the intended corporation a corporation de jure.</p> <p>Id.—Conditions Precedent to Incorporation.—A corporation de jure is an artificial body created by operation of law upon the execution, filing, and certification of certain written instruments by persons desirous of incorporating, and certain public officers, in accordance with the provisions of general laws; and while a substantial compliance with the statutory conditions precedent to the incorporation is sufficient, yet no necessary prerequisite can be omitted, and the filing of the articles of incorporation in the office of the county clerk of the county in which the principal place of business of the company is to be transacted, and the sending of a certified copy thereof, made by said clerk, to the secretary of state, are conditions precedent to the corporation.</p> <p>Id.—Corporation De Facto.—A corporation de facto exists where a number of persons have organized and acted as a corporation; and where the directors named in the articles never met nor acted, and no stock is issued, nor by-laws passed, nor seal adopted, nor any election held, nor any other corporate act done by an intended corporation, it is not a corporation de facto, and its right to exist as a corporation may be collaterally attacked in a private action.</p> <p>Id.—Pleading—Issuable Avermf.nt.—An averment of the existence of á de facto corporation is as issuable as an averment of the existence of a corporation de jure.</p> <p>Id.—Prevention of Organization.—Where one of the directors named in a proposed incorporation persuaded other members and directors of the proposed corporation not to enter into the organization, under an alleged misrepresentation that one of the proposed directors intended to and would, if the company was organized, deprive and rob them of all interest in the corporation and in their property, and ruin them all. such representations amount to little more than mere business advice, aá to a matter about which the persons advised had as good an opportunity to form an opinion as the person giving the advice; and the other directors who, owing to the alleged misrepresentations, refused to-enter into the organization, cannot, in the name of the corporation, defend against a mortgage executed by them on account of results caused by the financial embarrassment of the proposed company, and its loss-of prospective profits owing to the failure to organize the corporation.</p> <p>Id.—Remote Damages—Prospective Profits.—Remote results produced by intermediate sequences of causes are beyond the reach of any just- and practicable rule of damages, and financial embarrassment and loss of prospective profits by a proposed incorporation are too remote, contingent, speculative, indirect, and uncertain to come within a legal measure of damages for an alleged wrong in refusing to act as a director of such proposed corporation, and inducing others not to participate in the organization.</p> <p>Id.—Prospective Profits, When Allowable.—Prospective profits are-sometimes allowed as damages for breach of contract or tort; but they must be the clear, proximate, and natural results of the wrong, and must be confined to the principal thing complained of, and to its naturally attendant consequences.</p>

<p>Appeal from orders of the Superior Court of Sacramento County, making a partial distribution of an estate.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Appeal from a judgment of the Superior : Court of Tehama County, and from an order denying a new trial,.</p> <p>The facts are stated in the opinion.</p>

<p>Constructive Notice—Partnership—Attorneys at Law.—Where two attorneys are engaged as copartners in the practice of law, the knowledge acquired by one member of the firm, obtained while transacting such business and relating thereto, is constructive notice to the firm.</p> <p>Id.—Agency of Attorneys—Notice to Joint Agents.—An attorney is an agent for his client within the scope of his employment, and two or more attorneys practising together as copartners are joint agents as to the business transacted for their clients as such copartners, and actual notice to one of two or more such joint agents is constructive notice to all.</p> <p>Id.—Effect of Constructive Notice to Joint Agent—New Principal Not Bound.—Where one of a firm of attorneys or joint agents is merely chargeable with constructive notice of a transaction had with his co-partner or co-agent, but has no actual knowledge thereof, a new client or principal who employs him specially for the transaction of other business is not bound by such constructive notice.</p> <p>Id.—Notice to Agent, When Notice to Principal.-—Notice to an agent in order to be notice to his principal must be given to him while acting in the course of his employment, or at least must he present to his mind at the time he is acting as such agent, and be of such character as it is his duty to communicate to his principal.</p> <p>Id.—Mistake of One Partner in Release of Mortgage—Search of Title by Copartner for New Mortgage.—Where one of a firm of attorneys made a mistake in the satisfaction of a prior mortgage, which mistake was wholly unknown to his copartner, who subsequently at the request of another client examined and reported upon the title, and prepared notes and mortgages for him upon the same land, upon which money was advanced without actual knowledge of the rights of the prior mortgagee, the subsequent mortgagee is not chargeable with constructive notice of the mistake in the release and satisfaction of the prior mortgage.</p> <p>Id.—Negligence of Prior Mortgagee.—Where the prior mortgagee, by mistake, satisfied his mortgage in full, without reading the satisfaction, this was negligence on his part, and, if he and a subsequent mortgagee were both innocent parties, the loss resulting from the negligence of the prior mortgagor should fall upon him.</p> <p>Id.—Record of Subsequent Mortgage.—When a subsequent mortgage is recorded it is constructive notice to the world; and, as against a prior mortgage which had before that time been discharged of record, it is, in the absence of proof of actual notice of a prior equity, to he deemed prior in lien.</p> <p>Id.—Proof of Actual Notice—Burden of Proof.—A mortgagee seeking to enforce a mortgage which was satisfied by mistake, against a subsequent mortgage recorded after record of the satisfaction; must allege and prove actual notice of his mortgage lien to the subsequent mortgagee.</p> <p>Id.—Pleading—Answer—Cross-Complaint.—In an action to foreclose a mortgage, where a subsequent mortgagee denies that his mortgage is inferior or subject to the lien of the prior mortgage, and for further answer sets out his mortgage and prays for a foreclosure of it, such further answer, though affirmative in form, is, in fact, a cross-complaint, and the court may treat it as such in its findings.</p>

<p>Municipal Corporations—Publication op Ordinance—Time op Taking Eppect.—Where the charter of a city provides that the hoard of trustees shall publish all ordinances for ten days in some newspaper published in the city, but without providing that the ordinance should not take effect until after its publication, an order regulating liquor licenses takes effect on its passage, and publication thereafter is a ministerial act to give the people notice of its requirements, and is not a condition precedent to its taking effect.</p> <p>Id.—Regulation op Liquor Licenses—Remedy by Action—Constitutional Law.—A city ordinance regulating liquor licenses, and a section of the city charter giving to the city a remedy by civil action in any case where a person required by any ordinance to take out a license and pay therefor, shall fail to do so, are not in conflict with section 12 of article XI of the constitution.</p> <p>Id.—Action to Recover License Fee—Police Regulation.—Notwithstanding an action to recover a license tax for the sale of liquors is connected with a police regulation concerning liquor licenses, such action will lie where the city charter gives to the city a remedy by a civil action in all cases of licenses to transact, do, or carry on any business, trade or occupation without distinction as to the object for which the license is required.</p> <p>Id.—Nature of License Tax—Debt Due.—A license tax sought to be recovered in an action is not a penalty, but in the nature of a debt due from the defendant, or a duty devolved upon the defendant personally, which can be enforced precisely as though he had contracted to pay such sum of money to the city.</p>

<p>Appeal from a judgment of the Superior Court of Sacramento County.</p> <p>The facts are stated in the opinion of the court,</p>

<p>Appeal from an order of the Superior Court of Fresno County denying a new trial.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Appeal from a judgment of the Superior Court of Sierra County, and from an order denying a new trial.</p> <p>The facts are stated in the opinion.</p>

<p>Appeal from a judgment of the Superior Court of Los Angeles County.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Appeal from a judgment of the Superior Court of Modoc County.</p> <p>The facts are stated in the opinion.</p>

<p>License Tax—Sale of Liquors—Action—Police Power—Revenue Measure.—Where a county has passed an ordinance requiring a high license tax for the sale of intoxicating liquors within the county, and providing that the tax shall he collected by suit, hut fixing no penalty for engaging in the business, the ordinance is not to be regarded as the exercise of a police power, but as a revenue measure in the regulation of the business.</p> <p>Id.—Nature of Police Power—Penalty.—Police power is exercised in the enforcement of a penalty prescribed for a noncompliance with the l.aw, or for the doing of some prohibited act.</p> <p>Id.—Power of License for Revenue and Regulation—Prohibition.— Under the provisions of the County Government Act giving power to license for the purposes of regulation and revenue all and every kind of business not prohibited by law, prohibition .cannot he effected, and the very terms of the power preclude the exercise to such an extent as to prevent the carrying on of the business.</p> <p>Id.—Power to License Business—Individual Acts—Business Not Sbeci-Fied.—The power to impose a license tax upon a business does not authorize a tax upon individual acts connected with such business; nor can a license tax for a business he demanded for any act of the business not specified in the ordinance providing for such taxes,</p> <p>Id,—Power of Taxation Statutory—Strict Construction.—The right to take the property of the individual for public purposes, by way of taxation, must find an express statutory warrant, and all laws having this object are to he construed strictly in favor of the individual and against the state.</p> <p>Id,'—Proceeding In Invitum.—In a proceeding in invitum to enforce a tax, whether by seizure or by suit, no presumption is to he indulged in favor of the right to take the property, or of any intention that is not distinctly expressed in the statute by virtue of which it is sought to he taken.</p> <p>III.—Tax Not Extended by Construction.—A tax can never be extended by construction to things not named or described in the statute as the subject of taxation.</p> <p>Lo.—Tax .on Liquor Sales—Right of Action Limited to “Business.” Where an ordinance purports to impose a license tax for the sale of intoxicating liquors, but the right to collect the license tax by suit is limited to instances in which the persons commence, carry on, or engage in conducting some “business” for which a license tax is required, no action can he maintained to recover the tax imposed by the ordinance.</p> <p>Id.—Action to Recover License Tax—Right Statutory.—Without some special authority, either by the statute or by the ordinance itself, a civil action cannot be maintained to recover a license tax.</p> <p>Id.—Single Act Not a Business—Sales Incident to Other Business. A single act does not constitute a business, and when a sale is hut an incident in, or the final act of, another business, it cannot be said to be the business which is carried on or being transacted.</p> <p>Id.—Authority of County—Unauthorized Suit.—A county has no authority to demand a license tax except from those persons who are engaged in carrying on some business, and when its ordinance does not impose a tax upon the business of saloon-keeping, as such, and the complaint in an action to enforce a tax for the sale of liquors does not charge the defendant with having conducted a business upon which the ordinance imposed a license tax, there is no authority to commence or maintain the action.</p>

<p>Original Proceeding in the Supreme Court for writ of mandate.</p> <p>The facts are stated in the opinion of the court.</p>

<p>License Tax—Sale oe Liquors—Unauthorized Arrest—Habeas Corpus.—A county is not authorized to impose a license tax for the mere act of selling intoxicating liquors, and when its ordinance does not purport to impose a license tax upon the business of selling such liquors, but merely upon the act of selling it, one who refuses or fails to take out a license for such act cannot be lawfully arrested upon a penal charge of carrying on the business without a license, and should be discharged upon habeas corpus.</p>

<p>Criminal Law—Homicide—Evidence—Dying Declaration.—Upon the trial of a defendant accused of homicide, a written statement of the circumstances attending the shooting, which was reduced to writing, and signed and verified by the affidavit of the deceased, at a time when he was not impressed with a sense of impending death, but which was reaffirmed as a true and correct account of the facts after knowledge of impending death, is properly received as a dying declaration; and the reaffirmation of the matters set forth in the statement when all hope of recovery had gone is sufficient to constitute a repetition or restatement of the same matters, and with the same effect as if such matters had then been reduced to writing and signed.</p> <p>Id.—Recollection of Prior Statement—Rereading.—Where the evidence leaves it clear that when the deceased reaffirmed the correctness of the prior statement he had a clear recollection of its contents, the fact that it was not then reread to him is immaterial.</p>

<p>Application to the Supreme Court for a writ of mandate.</p> <p>The facts are stated in the opinion of the court.</p>

<p>School Law—Election tor Bonds tor Sohoolhouse—Joint Submission to Voters.—A school district may secure funds to purchase a lot and build a sohoolhouse thereon either by direct tax or by the issuance and sale of bonds, but in either case it can only do so after a vote of the district to that effect, and the question of the buying of a lot and the building of a sohoolhouse should properly be submitted to the voters-jointly with the question of the issuance of bonds or voting of the tax.</p> <p>Id.—Conduct of Election—Compliance With Statute—Validity.— The election, as a whole, must be conducted according to the requirements of the statute; and, if not, it is insufficient to form the basis for- ■ any future proceedings; and the election cannot be treated as a favorable expression of the voters of the district looking toward the purchase of a lot and the erection of the building if the election for bonds is. invalid.</p> <p>Id.—Improper Notice of Election.—A notice of election in a school district must clearly state the particular place where the election is to be held, and where the notice is so contradictory and misleading that it failed to satisfy the statute, the election is invalid.</p>

The facts are stated in the opinion of the court upon the first appeal, reported in 73 Cal., page 522, and in the opinion rendered upon this appeal.

<p>•Corporation—Agency—Joint Ownership of Land—Unrecorded Deed— Action to Perfect Title of Record.—Where a corporation was used as a means to the more successful operation of a winery plant hy two joint owners of a vineyard, one of whom had held the legal title to the land which he had put in the name of the corporation as a matter of convenience,, he being the holder of all the stock of the corporation, the officers of which were simply his agents, a conveyance, made by his direction, from the corporation to both of the original joint owners of the winery tract, which was never recorded, and was kept by the holder of the corporation stock among his private effects, vests the title of the corporation in both joint owners, and the vendee of the other joint owner may compel the execution of the proper instruments necessary to show of record that the title transferred by the corporation to both joint owners had, as to the interest of the other joint owner, vested in his vendee.</p> <p>Id.—Evidence—Declaration as to Joint Ownership.—In view of circumstances in proof showing the relation of the parties to the corporation, evidence of acts and declarations by the holder of the corporation stock showing that himself and the plaintiff’s assignor were jpint owners of the winery tract is admissible in an action to compel the corporation and the owner of its stock to complete the title of record which was transferred to both joint owners.</p> <p>Id.—Joint Ownership—Delivery of Deed.—The delivery of a deed to one of two joint owners is a delivery to both.</p>

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

<p>Pleading—Misjoinder of Causes of Action—Rescission of Sales bt Partner to Copartner—Dissolution of Copartnership.—A cause of action in favor of one partner for a rescission of a sale by him to a copartner, on the ground of fraud, cannot be joined in the same complaint with a separate and distinct cause of action in favor of another copartner for similar relief, neither of them being jointly interested in the property sold, and the sales not being made by the same transaction or for a single consideration, and it appearing that the rescission of the sale by either of them does not affect either of the other parties to the action; nor can these separate causes of action he properly joined in the same complaint with a cause of action for an accounting and dissolution of the copartnership.</p> <p>Id.—Misjoinder of Parties—Corporation—Rescission of Transfer of Stock.—Where the copartnership formed a corporation to which their mining properties were transferred, and a rescission is sought of a transfer of shares of stock of the corporation, transferred to two of the plaintiffs as the individual property of each, the corporation has no interest in the subject of the action, and is not a proper party in the controversy between the claimants to a portion of its capital stock.</p> <p>Id.—Partnership Assets—Corporation, Agent of Copartnership— Shares of Stock.—Where a corporation is formed as an agent of a co-partnership, any unissued stock is a part o£ the partnership assets, but shares of stock issued to the partners become their individual property, and shares transferred to third parties not shown to be bound by the partnership agreement are held by them like the stock of any other corporation.</p> <p>Id.—Accounting of Agency—Parties.—Where the corporation is only an agent of a partnership, it is only the partnership or some one in its interest who would have the right to ask for an account of the agency or for a surrender of its assets.</p> <p>Id.—Action for Dissolution of Partnership—Improper Parties.—An action for the dissolution or a partnership can only be brought at the instance of a partner, and the joinder of others as plaintiffs who have parted with all their interest in the partnership, does not give to the court jurisdiction to determine in the same action a controversy between them and their vendee respecting the validity of their sales.</p> <p>Id.—Jurisdiction of Equity-—Complete Relief—Insufficient Bill— Multifariousness.-—The rule that when a court of equity has jurisdiction, it will determine in one action all questions that may arise, and will not remit the party to another tribunal, applies only when the party seeking the relief has a standing in the court of equity upon a sufficient bill, and when it appears that he has no such standing his bill will be dismissed for want of equity, and if it improperly unites distinct causes for relief it will be dismissed for multifariousness.</p>

<p>Appeal from a judgment of the Superior Court of Tulare County.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Negligence—Master and Servant—Independent Contractor—Respondeat Superior.—As a general rule, the principle of respondeat superior does not apply where a negligent or wrongful act is that of an independent contractor or of his servant or employee, unless the superior has been guilty of negligence in contracting with an unfit person, though there are exceptions to this general rule.</p> <p>Id.—Contract With City Authorities—Work Required by Ordinance— Departure From Authority—Nuisance Created by Subcontractor —Liability For—Injury to Travelers.—Persons who stand in a contract relation to the public, represented by the city authorities, to dig trenches and lay pipes in the streets in a manner required by an ordinance of the city, cannot relieve themselves of the duty imposed by t’ e contract by contracting with another to do the work, which cannot be done without danger to the public; and if such work is done without authority, or not done in the manner required by the ordinance, the departure from authority creates a nuisance for which the contractor with the city is responsible to travelers on the street for injury caused, thereby, notwithstanding the nuisance is created by a subcontractor having an independent contract under the contractor with the city.</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.</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, and from an order denying a new trial.</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, and from an order denying a new trial.</p> <p>The facts are stated in the opinion.</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.</p> <p>The facts are stated in the opinion.</p>

<p>Appeal from a judgment of the Superior Court of Yolo County, and from an order denying a new trial.</p> <p>The facts are stated in the opinion.</p>

<p>Negligence—Leaving Postholes Unguarded—Contractors—Supervision op Work—Liability op Electric Railroad Company.—An electric railroad company is liable for injury to travelers caused by leaving unguarded in the public streets postholes dug therein for the support of poles for its railroad, and the fact that the holes were dug by contractors who had contracted for the digging of them, will not relieve the railroad company from liability for negligence, where the contract provided that they were to be dug under the supervision of the superintendent of the railroad company, and subject to his approval and acceptance, and did not require the contractors to guard the holes for the protection of travelers.</p> <p>Id.—Failure to Guard Finished Hole—Negligence op Railroad Company.—Where the negligence which caused the injury was that of failing to guard a posthole after it was finished by the contractors, such negligence must be imputed to the railroad company.</p> <p>Id.—Authority op Franchise—Nuisance.—If the digging of postholes for the use of an electric railroad is expressly or impliedly authorized by its franchise, it is not necessarily a nuisance, and can only become such by improper use, or by being negligently left in a condition dangerous to travelers.</p>

<p>Appeal from a judgment of the Superior Court of the City and County of San Francisco, and from an order denying a motion in an arrest of judgment.</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.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Estates op Deceased Persons—Contest op Heirship—Findings—Groups op Claimants—Appeal—“ Party Aggrieved.”—In a proceeding instituted by one claiming to be the daughter of a decedent for the contest of the heirship of his estate, under section 1664 of the Code of Civil Procedure, where numerous different groups of claimants appearing as defendants claim the right of heirship, their claims being mostly inconsistent with, and hostile to, each other; each group contending that the deceased was descended from parents different from those alleged by either of the other groups, if the court finds that the plaintiff is the daughter and sole heir of the deceased, and also finds that one group of claimants were related to the deceased as alleged in their answer, and that none of the other claimants were in anywise related to or akin to the deceased, and these findings are not assailed and overcome by another group of claimants, who have appealed, none of them is a “party aggrieved ” by the decision in favor of the daughter as sole heir of the deceased, and they cannot be prejudiced or aggrieved by any ruling made by the court in her favor, and have no standing as appellants from the decision and judgment in her favor.</p> <p>Id. —Conflicting Evidence—Review Upon Appeal—Paternity of Child. Where there is conflicting evidence as to the paternity of the child found to be the sole heir of the decedent, the decision of the trial judge upon that question of fact will not be reviewed upon appeal.</p> <p>Id.—Institution of Illegitimate Person as Heir—Construction of Code—Case Affirmed.—Blythe v. Ayers, 96 Cal. 532, affirmed as to the construction of section 1387 of the Civil Code, and as to the facts required to constitute an illegitimate child the heir of the decedent under that section.</p> <p>Id.—Competency of Witness to Acknowledgment of Paternity-Letters —Immaterial Omission in Findings.—Where it appears that a witness to the writing of letters by the decedent acknowledging the paternity of the plaintiff as his child, was a witness in the case and an attorney of record for the plaintiff, and that he was of age at the time of the writing of the letters, and there is no intimation in the findings that he was not a competent witness, but he is found to have been a competent witness at an intermediate date, the failure of the court specifically to find that he was a competent witness at the time when each of the letters was signed in his presence, to which he testified, is not ground for the reversal of a judgment in favor of the child, based upon section 1387 of the Civil Code.</p>

Application in the Supreme Court for disbarment of an attorney at law. The facts are stated in the opinion of the court.

<p>Appeal from a judgment of the Superior Court of the City and County of San Francisco.</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.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Dismissal op Action—Res Adjüdicata.—Where an action is dismissed by the plaintiff of his own motion, and without the consent of the defendant, the judgment entered upon the dismissal cannot be regarded as a! bar to another action for the same purpose.</p>

<p>Attachment—Indemnity Bond to Sheriff—Several Liability—Judgment on Motion Against Sureties.—A motion for a judgment against the sureties upon an indemnity bond, given to the sheriff to indemnify him against liability on account of the execution of a writ of attachment, may he made under section 1055 of the Code of Civil Procedure, although the judgment is a several judgment in different amounts against the sureties upon the bond, the obligation of the sureties being for several different amounts for which they have become liable upon the bond.</p> <p>Id.—Construction of Code.—Section 1055 of the Code of Civil Procedure should be construed as authorizing the entry of judgment against the sureties for the amount named in the bond, and for which each has become liable, but not to exceed the amount of the judgment recovered against the sheriff, including costs of the action.</p> <p>Id.—Nature of Indemnity Bond—Evidence of Liability of Sureties— Prima Facie Case.—An indemnity bond given to indemnify the sheriff on account of the execution of a writ of attachment indemnifies him against liability for the seizure, and he becomes liable therefor when a judgment is rendered against him; and he makes a pi-ima fade case under the statute against the sureties upon the bond, by the production of the indemnity bond, the judgment against him, and proof of notice to the sureties to appear and defend the action in which the judgment was recovered.</p> <p>Id.—Burden of Proof—Payment of Judgment—Return of Property. In order to overcome the prima fade case made by the sheriff, the burden of proof is upon the sureties to show that the judgment against the sheriff had been satisfied by them, or by a return of the property, or that the property with which to satisfy it was, or ought to have been, still in the possession of the sheriff.</p> <p>Id.—Jurisdiction of Superior Court—Several Liability Less Than Three Hundred Dollars—Motion For Judgment Against Sureties.—A motion for. a several judgment against the sureties upon an . indemnity bond where the several liability of each surety is less than three hundred dollars is not without the jurisdiction of the superior court, the motion not being an independent action against the sureties, but simply a supplemental motion made for judgment against the sureties in an action of which the superior court had jurisdiction, and in which it had already proceeded to judgment against the sheriff as a defendant.</p> <p>Id.—Indemnitors Real Parties in Interest—Notice—Conolusiveness of Surety.—The provision in section 1055 of the Code of Civil Procedure permitting a motion for judgment against the sureties who have indemnified the sheriff, proceeds upon the theory that the indemnitors are the real parties defendant when the sheriff is sued for an official act for which they have indemnified him, and that when they have notice of the pendency of such an action the judgment against the sheriff is conclusive of his right to recover against them.</p>

<p>Appeal from a judgment of ihe Superior Court of Sacramento County.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Divorce—Cross-Complaint—Dismissal.—Where the defendant, in an action for a divorce, denies the allegations of the complaint, and files a cross-complaint charging a ground of divorce against the plaintiff, if the court, upon hearing the evidence, finds the charges of both parties to be true, it may deny all relief to either party, and dismiss the action.</p> <p>Id.—Custody oe Minor Child—Incidental Relief.—In an action of divorce the question as to the proper custody of the minor child is entirely incidental to the main relief sought, and dependent alone upon the divorce proceedings; and when a decree of divorce is denied to both parties the court is not required to make any order as to the care and custody of the minor child.</p> <p>Id.—Costs—Discretion.—The question of costs in an action of divorce is a matter resting in the discretion of the trial judge.</p> <p>Id.—Charge of Adultery—New Trial Statement—Specification of Insufficiency of Evidence.—In an action of divorce based upon a charge of adultery with a person named, at several specified dates, a specification in the statement on motion for a new trial, assailing a finding oE fact on that issue in favor of the plaintiff, as not supported by the evidence, that “ the evidence introduced in this action fails to show that the defendant, at the times stated, was guilty of adultery” with the person named in the complaint is sufficient to require the court to consider the sufficiency of the evidence to support the finding.</p> <p>Id.—Object of Specifications.—The object of the statute requiring specifications of insufficiency of evidence is to bring directly before the mind of the court the particular point the aggrieved party desires to be reviewed, and also to give notice to the adverse party of the point of attack, and thereby enable him to produce any additional evidence tending to support the finding of fact assailed by the specification; and where the specification is sufficiently full to meet the purposes of the law, the court should pass upon the sufficiency of the evidence.</p> <p>Id.—Suspicious Evidence oe Adultery.—Where the evidence upon the part of the plaintiff consists in the main of the testimony of one who appears, according to his own statement, to be living upon the bounty of the plaintiff, and who states under oath that he is the party with whom the defendant committed the acts of adultery, it is of such startling character and comes from such a source as to demand the most careful review whenever and wherever presented before a court of justice.</p>

<p>Municipal Incorporation Act—Reorganization of Chartered Municipality.—Under the provisions of the municipal incorporation act a municipality formerly existing under a special charter, can only be reorganized under that act in the manner and after a compliance with all the conditions therein prescribed.</p> <p>Id,—Petition by Electors—Jurisdiction of Board of Trustees— Condition Precedent to Election.—Unless the petition for the reorganization of a municipal corporation under the municipal corporation act is signed by the requisite number of electors the board of trustees has no jurisdiction to submit the question of reorganization to the electors, and they have no right to vote upon it.</p> <p>Id,—Petition With Detached Signatures.—Where two or more petitions identical in language are circulated and signed, and to make the required number of names the signatures on one or more petitions are cut off and pasted on to a single petition which is presented, and which petition, is signed by a less number of electors th vn is required by the statute, the board have no authority to order an election.</p> <p>Id.—Submission of Question of Reorganization—“General Election” —Municipal Election.—The provision for the submission of the question of the reorganization of a municipality at the “general election,” is satisfied by submitting the question at the election provided for by law for the election of municipal officers.</p> <p>Id.—“Majority of Electors Voting”—Constitutional Construction, The provision of the constitution requiring that a “majority of the electors voting at a general election” must determine the question of reorganization, imports that a majority of all the electors voting at the election is necessary to carry the proposition to reorganize, notwithstanding a majority of all the electors who vote upon the proposition to reorganize were in favor of it.</p>

<p>Appeal from a judgment of the Superior Court of Sonoma County.</p> <p>The facts are stated in the opinion oí the court.</p>

<p>Contributory Negligence.—Contributory negligence sufficient in law to defeat a recovery for an injury caused by the negligence of the defendant must be such negligence as directly contributes to the accident.</p> <p>Id.—Question of Fact—Descent of Hill—Collision of Wagon With Street-car-tBroken Lock Chain.—It is not negligence as matter of law for the driver of a heavy wagon to attempt to descend a hill after the breaking of the lock chain near the top of the hill, by zigzagging in and out within a narrow space between the sidewalk and a streetcar track; and if a collision occurs between the wagon and the dummy of the street-car, whereby the driver of the wagon is injured while walking beside the wagon, it is a question of fact for the jury to determine whether the driver, as an ordinarily careful and prudent man, was justified in attempting to make the descent under the circumstances.</p> <p>Id.—Presence of Party Injured Upon Track.—It is not negligence in law for a party injured by collision between a wagon and street-car to be upon the street-car track at the moment of the accident, where it appears that he could see the track for a distance of a hundred feet and saw no car, although, owing to a steep grade and a wet track, the car could not be stopped within a distance of a hundred feet, after an alarm; but under such circumstances the question of contributory negligence is one of fact to be submitted to the jury.</p> <p>Id.—Failure of Driver to Look.—Where the driver of the wagon as a reasonable man may have thought that he would be able to leave the track before the car would be actually upon him, his failure to look up the hill to see whether or not a car was coming at a distance of more than a hundred feet, cannot be said to have necessarily contributed to the accident.</p>

<p>Vendor and Purchaser—Rescission of Contract—Recovery Back of Purchase Money Paid—Pleading—Appeal—Law of Case.—In an action by a purchaser to recover back the part of the purchase money which was paid to the vendor upon a contract for the sale of real estate, upon the ground that the vendor had rescinded the contract, where the complaint upon a second appeal stands exactly as it stood when the action was before the court upon a prior appeal, the decision upon the first appeal that the complaint stated a cause of action for the recovery of the purchase money becomes the law of the case upon the second appeal.</p> <p>Id.—Question of Fact—Findings.—Whether or not there was a rescission of a contract of purchase is a question of fact, and is the ultimate and fundamental fact in an action to recover back the purchase money paid, the finding upon which inevitably points the judgment.</p> <p>Id.—Immaterial Omission to Find.—Where a finding made is determinative of the judgment, an omission to find upon allegation of the complaint pertaining to probative facts, and to issues rendered immaterial by the finding made, is not ground for a reversal of the judgment.</p> <p>Id.—Readiness of Plaintiff to Fulfill Contract—Pleading—Evidence.—It is not necessary in order to entitle a purchaser to recover back purchase money paid under a rescinded contract of purchase, that the complaint should state that the plaintiff was ready, able, and willing to carry out the terms of the contract, and no evidence need be introduced at the trial to prove that fact.</p>

<p>Appeal from an order of the Superior Court of Ala'meda County denying a new trial.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Building Contract—Abandonment by Original Contractor—Cessation oe Work—Completion—Mechanics’ Liens—Time of Filing.—Where the original contractor under a building contract gave to the owner of the building written notice that he abandoned the contract, and that he declined to proceed further in its execution, and thereafter did no work upon the building, whereupon the owner contracted with another builder to complete the construction of the building, it is incumbent upon those who claim any mechanics’ liens by virtue of the original contract to file their claims of lien with the county recorder within thirty days after there has been a cessation from labor for thirty days upon the unfinished contract.</p> <p>Id.—New Contract Immaterial.—Where a building contract is abandoned it is immaterial whether the building is subsequently completed by the owner or not; and a subsequent contract by the owner for the completion of the work is as disconnected with the original contract as if it were for the construction of a different building.</p> <p>Id.—Loss of Lien—Disposition of Money Due Contractor.—Where the rights of materialmen to enforce a lien upon a building has been lost by failure to file their claims of lien in time, it is immaterial to them or to their assignee whether any portion of the moneys due to the contractor was unpaid at the time he had entered into the contract, or whether the owner made a proper disposition of the unpaid portion of the contract price.</p>

<p>'Criminal Law—Pleading—Ambiguity and Uncertainty—Special Demurrer.—In the absence of a special demurrer, ambiguities and uncertainties in an information in a criminal case are not fatal to a judgment of conviction.</p> <p>Id.—Obtaining Property Under False Pretenses—Uncertain Description op Property.—Where a description of property forms a part of the false pretenses and representations set forth in an information upon a charge of obtaining property by false pretenses, the pleader is bound to set out the pretenses and representations in the information exactly as they were made by the defendant, regardless of their indefiniteness and uncertainty.</p> <p>Id.—Charge op Fraud—Deception—Sufficiency of Pleading.—Though it is better practice to make a direct allegation charging the defendant with having defrauded a person named of certain specified property by false pretenses set forth in the information, yet, where the information charges that the defendant willfully and feloniously, and with intent to defraud a certain person of Ms property, made to him certain false and fraudulent representations and pretenses set forth in the information, and that such person, believing such statements, and being deceived thereby, was induced to, and did, borrow money from a bank upon a note, which money was paid to the defendant, the information sufficiently charges that such person was defrauded of his property.</p> <p>Id.—Deception, When Equivalent to Fraud.—Deception deliberately practiced for the purpose of gaining an unfair advantage of another is fraud, and goods obtained by such practices are obtained by fraud, and one deprived of his property by such means is defrauded.</p>

<p>Appeal—Review op New-trial Order—Opinion op Judge—Instruction—Insufficiency of Evidence. —Where a motion for a new trial is made upon several grounds, and the order is general in its terms, and does not specify or limit the grounds upon which it was made, the appellate court, in reviewing the order, will not be limited by an opinion of the judge, though made a part of the bill of exceptions, in which he holds that he committed an error in giving a certain instruction to the jury; and if one of the grounds of the motion for a new trial is that it was contrary to evidence, the order granting the motion will not be reversed, unless it appears that the discretion of the court to grant a new trial for insuEciency of the evidence has been abused.</p>

<p>Venue of Action—Cancellation of Mortgages by Corporation to President—Residence of Principal Defendant—Stockholders as Parties Defendant.—In an action by a stockholder to set aside and cancel mortgages given by a corporation to its president upon land in the county where it has its principal place of business, and where the president resides, and for a decree fixing the indebtedness of the corporation upon the mortgage notes, the mortgagee, being the only defendant against whom any relief is sought, has the right to have the cause tried in the county of his residence, notwithstanding the fact that a considerable number of the stockholders are made defendants, and are residents of another county in which the action is brought.</p>

<p>Divorce—Homestead—Separate Property of Wife—Assignment to Husband For Limited Period—Death of Husband—Construction of Decree.—Where a divorce is granted to the husband on the ground of the extreme cruelty of the wife, and a homestead selected from her separate property has been assigned to him for a period of years, his right to the use of the homestead terminates upon his death before the expiration of the term of years designated by the decree of the court. s</p> <p>Id.—Limit of Power of Court—Life Limitation—Presumption.—The power of the court, in an action of divorce, to assign for a limited period the homestead selected from separate property, cannot extend beyond the life of the innocent party to whom the property is awarded; and in construing the decree it must be presumed that the court intended to keep within its powers, and the decree must he read in the light of the law as having a life limitation inseparably connected with it.</p> <p>Id.-—Right, il'o Use of Homestead.—The right to the use of a homestead so assigned to the innocent party is purely personal; and such party has no interest under the decree that can be sold, or levied upon by execution, or inherited, and the interest terminates with the death, and constitutes no asset of the estate of such party.</p>

<p>Appeal from a judgment of the Superior Court of Fresno County.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Criminal Law—Extradition of Fugitives From Justice—Crimes Not Specified in Treaty—Discretion of Extraditing Government.— When a treaty with a foreign government provides for the extradition of fugitives charged with particular crimes, the reciprocal duty of delivering up persons charged with crime is confined to the particular cases for which the treaty has provided; but the existence of a treaty providing for extradition for certain specified crimes does not deprive either nation of the power and right to exercise its own discretion in surrendering fugitives from justice in cases not coming within the terms of the treaty.</p> <p>Id.—Incident of Sovereignty—Comity—Presumption.—In relation to persons charged with offenses not named in the treat)', each government, as an'incident of its sovereignty, may either grant or deny to the fugitive an asylum within its sovereignty or jurisdiction; and when a criminal is surrendered upon charge of a crime which is not extraditable under the treaty, it must be presumed that the surrender was made in the exercise of its own sovereign discretion, and as an act of comity.</p> <p>Id.—Surrender Not in Pursuance of Treaty—Order Setting Aside Indictment—Rearrest for Same Offense—Habeas Corpus.—The rule that when a defendant has been surrendered in pursuance of a treaty, for trial for a specified charge named therein, he cannot be placed upon trial for any other than the particular offense named in the extradition proceeding, does not apply where the defendant has not been surrendered in pursuance of the treaty; and the fact that he was surrendered for trial upon a particular indictment referred to in the warrant of arrest for extradition, and that such indictment was set aside upon his motion after extradition, does not entitle him to a discharge upon habeas corpus when rearrested upon a complaint charging him with the identical offense named in the indictment set aside.</p> <p>Id.—Obdbr Setting Aside Indictment—Res Ad judicata.—An order setting aside an indictment does not operate as an acquittal of the defendant for the offense therein charged, and is not a bar to his further prosecution for the same offense by indictment or information.</p>

<p>Appeal—Review of Order Granting New Trial—Specification of Grounds.—Where the superior court, in granting a motion for a new trial, specifies the grounds on which the motion is granted, if one of the grounds specified is the insufficiency of the evidence, the conclusion of the trial court upon that question will not be disturbed; and the fact that the court specifies other grounds upon which the motion was made as a reason for making the order does not change the established rule authorizing the trial court to grant a new trial, if, in its opinion, the evidence before the jury was insufficient to justify the verdict; and its discretion in granting it upon that ground is not subject to review in the supreme court, unless it is made to appear that its action was arbitrary rather than discretionary, or was made in a case where no opportunity was presented for the exercise of discretion.</p>

<p>Way of Necessity—Tenancy in Common—Allotment in Partition— Effect of Decree.—Where land allotted by order of the court in a proceeding for partition is so situated that one of the parties would be entitled to.a way of necessity, if an allotment were made by deed from all the other tenants in common, the effect of the allotment by order of the court is to create the way of necessity.</p> <p>Id.—Express Reservation of Way Unnecessary—Operation of Law.— It is unnecessary that there should be a reservation in terms of a way of necessity, which would confer no further right than would be conferred by operation of law without those words.</p> <p>Id.—Easement—Transfer of Parcel—Way as Appurtenance.—The easement of a way of necessity, resulting by operation of law from the fact that a parcel of land is cut off from the county road by other subdivisions of the original tract, attaches to that parcel as an appurtenance, aud passes with each successive transfer of title, whether such transfer is by deed or by sale under execution.</p> <p>Id.—Extinguishment of Way—Special Agreement—Presumption. — A way of necessity cannot be extinguished so long as the necessity exists, and must be presumed to continue, unless some fact found by the court shows that the right no longer exists; and a finding that a road was used across plaintiff’s land by special agreement, without stating what the agreement was, is not inconsistent with the continuance of the way of necessity.</p> <p>Id.—Cessation of Necessity.—The necessity ceases when another way has been acquired, or when, by the acquisition of other lands, the owner can reach the public road without traversing the land of others.</p> <p>Id.—Right of Condemnation.—The fact that a way might be acquired by Condemnation under the statute does not effect the right to a way of necessity.</p> <p>Id.—Designation of Way—Right of Owners of Dominant Estate.— It is immaterial whether the owners of the land over which the way of necessity exists have designated a road or way; and if they have not, the owners of the dominant estate may designate it.</p> <p>Id.—Appeal—Reversal of Judgment Upon Findings—Conclusions of Law.—Where the facts found show that the defendants have a way of necessity, and are sufficient to support a judgment in their favor, findings that the defendants have no right of way of necessity or otherwise, and have not used the way except as trespassers, are of conclusions of law, and a judgment in favor of the plaintiffs will be reversed upon appeal, and judgment ordered for the defendants upon the facts found.</p>

<p>Entibe Contract For Services—Contract With Attorney For Estate of Decedent—Construction—Premature Action.—Where an attorney who has agreed to render services during the entire progress of the administration of the estate of a deceased person, and to defray all of his personal expenses and outlay in and about his services, at his own cost, in consideration of a part interest in the estate, makes a contract with a third party, whereby the latter agrees to render services to the attorney daring the entire progress of the administration of the estate, in consideration of a share of the net amount of money and property realized by the attorney from the estate after defraying his actual disbursements, such contract is an entire contract based upon an entire consideration; and any action by such third person to recover a share in funds received by the attorney before the close of the administration of the estate is prematurely brought, and cannot be maintained.</p>

<p>Appeal from a judgment of the Superior Court of San Diego County.</p> <p>The facts are stated in the opinion of th¿ court.</p>

<p>Criminal Law—Pleading—Information—Mistake in Date.—Where an information charges the offense to have been committed at a date subsequent to its filing, but alleges in terms that the acts charged were committed prior to the day of its filing, and in the same year, thus bringing the offense without the bar of the statute of limitations, the particular date alleged in the information is not material to the sufficiency of the charge, and the apparent mistake in the stating of the dates might have been corrected by the trial court, and is not such an irregularity as will justify a new trial of the action.</p> <p>Id.—Interruption of Trial—Sickness of Witness—Prolonged Continuance—Dispersion of Jury—Abuse of Discretion.—Where, during the progress of a criminal trial, a witness for the people, while upon the stand, becomes ill and unable to proceed in giving evidence, and physicians report that it would not be safe for him to continue his testimony within the next two months, an order continuing the case for a period of sixty-three days, and instructing the jury to return to court in that time, and allowing them to return to their homes and there remain until the expiration of the continuance, is an abuse of discretion, entitling the defendant to a new trial.</p>

<p>Criminal Law—Arson—Description op Partnership Property—Evidence—Identification.—Where the property which a defendant accused of arson is charged with having burned is described in the information as a building belonging to a partnership firm named in the information, and the proof shows that the building was used by the partnership in their business at the time it was burned, and that the property had been bought by one of the partners some years previously, and that he had afterwards conveyed an undivided one-half of it to his copartner, such proof is sufficient to identify the property destroyed with that which was laid in the information, and it is immaterial for the purposes of the trial whether the building was held by the partners as cotenants or as joint tenants.</p> <p>Id.—Evidence—Declarations op Defendant—Testimony op Stenographer—Reading Notes to Jury.—Where a stenographer has testified to certain statements made by the defendant iu the jail after his arrest, refreshing his memory from shorthand notes, and testifying that he had written, out longhand notes, which was a true and correct statement of what the defendant had said, it will not be held error for the court to permit the district attorney in his argument to the jury to read from the statement written out in longhand, although such statement had not been formerly introduced in evidence, if the record does not show what was read to the jury, or that the longhand statement was in any manner different from the testimony given by the stenographer.</p> <p>Id.—Arrangement Between Officers and Witness—Cross-Examination—Harmless Error.—Where the evidence is undisputed that the defendant admitted that he set fire to the building, an error in refusing to permit him to cross-examine witnesses for the prosecution to show certain conversations between them and the arresting officers prior to the burning of the building to the effect that the officers had been informed that the fire was to occur, and that in consequence of such information they were near the place of the fire for the purpose of arresting such defendant, does nob affect any substantial rights of the defendant.</p> <p>Id.—Knowledge of Officers Immaterial.—What took place between the officers and these witnesses could neither bind nor exculpate the defendant, and the fact that the defendant’s intention to commit the offense was known to the officers beforehand would not palliate his crime.</p>

<p>Appeal from an order of the Superior Court of Alameda County denying a new trial.</p> <p>The facts are stated in the opinion.</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.</p> <p>The facts are stated in the opinion.</p>

<p>Counties—Sprinkling op Roads—Discretion op Supervisors to Advertise For Bids—Construction of Political Code—Mandamus.—Construing subdivision II of section 2643 of the Political Code, as amended in 1893, with other sections of the Political Code in, pan molería, the advertising for bids for the sprinkling of roads is in the discretion of the board of supervisors, and the exercise of their discretionary power cannot be controlled by mandamus.</p>

<p>Appeal from a judgment of the Superior Court of Monterey County, and from an order denying a new trial.</p> <p>The facts are stated in the opinion.</p>

<p>Criminal Law—Homicide—Evidence—Killing op Mistress.—Where the evidence introduced upon the trial of a defendant charged with the crime of murder necessarily shows that the relation existing between the accused and the woman killed was that of man and mistress, no error is committed in allowing that relation to be proved, and it is not objectionable on the ground that the effect of it is to bring the defend- ' ant into disrepute, and affect his good standing before the jury.</p> <p>Id.—Identification of Person—Certainty.—A witness is not required to be absolutely certain in his testimony as to the identification of another person.</p> <p>Id.—Declarations of Defendant.—The admission in evidence of declarations of the defendant which do not constitute a confession is not a reversible error where there is nothing in the circumstances under which they were made which would justify their exclusion.</p>

<p>Construction of Sewers—Drainage Over Private Lands—Amendment of Vrooman Act—Second Amendment Referring to Original Act. Section 24 of the act, approved March 18, 1885, commonly known as the Vrooman act, which authorized the construction of sewers in the highways of a city, hut not upon private property over which the right of way for a sewer had been secured, and which was amended in 1889 by authorizing cesspools to be constructed, was properly amended a second time by the act of 1893, so as to allow the construction of sewers, “also for drainage purposes over or through any right of way obtained or granted for such purpose, with necessary and proper outlet or outlets to the same,” although the amendment of 1893 referred to the original section 24 of the "Vrooman act, and did nob refer to it as having been amended by the act of 1SS9.</p> <p>Id.—Amendment of Amended Section—Sole Reference to Original Act—Validity of Statute.—Although an act amending a section of an act repealed is void, yet an amended section of an act takes the place of an original section in the act amended, and the failure of the legislature in amending the same section of the original act a second time specifically to refer to it as having been amended by the first amendatory act, does not effect the validity or constitutionality of the second amendment of the amended section.</p> <p>Id.—Construction of Constitution—Re-enacting Amended Statute at Length—Effect Upon Original Act.—Section 24 of article IV of the state constitution which provides that “no law shall be revised or amended by reference to its title; hut in such case the act revised or section amended shall be re-enacted and published at length as revised or amended,” has for its whole purpose and effect to avoid evils resulting from the mode of amendment which prevailed in the absence of such provision, and was not intended to prevent the section as amended from taking its place by its appropriate number in the original act.</p> <p>Id.—Amended Section Takes Place of Original Section.—An amended section of an act takes the place of the original section, and the portions which are not altered are to be considered as having been the law from the time when they were enacted, and the new provisions are to he considered as having been enacted at the time of the amendment.</p> <p>Id.—Assessment For Sewer—Advance of Expenses by Contractor-Waiver.—The provision of section 5 of the Vrooman act that the bidder for the construction of a sewer must advance to the superintendent of streets the cost of the publication of notices, resolutions, orders, or other incidental expenses and matters required under the proceedings prescribed in the act, is intended for the benefit of those to whom such expenses were payable, and for the protection of the city, or the superintendent of streets, and is not a matter which can in any way affect those whose property may be assessed for the construction of the sewer; and if all persons entitled to the payment of incidental expenses, in writing, waive their right to have such expenses collected in advance from the contractor, such written waiver does not have the effect to invalidate the contract or the assessment.</p> <p>Id.—Fixing Time For Work—Power of Superintendent of Streets.— Within the limits fixed by the statute, the superintendent of streets has the power expressly given him to fix the time for the commencement or completion of the work, and it is not a matter left to he fixed by the agreement of the contractor and superintendent; hut the contractor makes his bid in view of the power given to the superintendent and its limitations, and it is only necessary that it should be definitely fixed with the knowledge of the contractor, and the time thus fixed enters into, and becomes a part of, the contract.</p> <p>Id.—Indorsement Upon Contract by Superintendent—Signature of Contract Unnecessary.—The time may he fixed either in the body of the contract, or indorsed upon it with the knowledge of the contractor, and authenticated by the official signature of the superintendent, and in such case the statute and the indorsement makes it part of the contract without the signature of the contractor to the indorsement.</p>

<p>Municipal Corporations—Violations of City Ordinances and State Daws—Place of Imprisonment—Construction op Charter of Santa Rosa.—Under the charter of the city of Santa Rosa, persons found guilty of violating city ordinances should be committed to the city prison, and those found guilty of violation of the criminal laws of the state, where imprisonment is ordered, should be committed to the county jail.</p> <p>Id.—Expense of Local Government—Statutory Construction.—It is the policy of our frame of government to localize as far as can be reasonably done, not only the power, but the expense, of government, so that the expense of the county government should be borne by the whole county, and the expense of city government by the city; and if the language of a municipal charter is doubtful, or capable of different interpretations, it ought to be read in the light of our frame of government, and construed in harmony therewith, so as to require that the expense of city government should be borne by the city, and no part of it by the county at large.</p> <p>Id.—Liability of City for Committing Prisoners to Coonty Jail.— A city is liable to the county for hoard of prisoners committed to the county jail by the city recorder, for violations of the ordinances of the city.</p> <p>Id.—Effect of Illegal Commitment—Competent Authority—Duty of Sheriff—Recovery by County.—Although commitments of prisoners to the county jail by the recorder for violations of city ordinances are illegal, yet they are made by competent authority, within the meaning of section 1611 of the Penal Code, and it is the duty of the sheriff to receive them, and to provide them with necessary food, to be paid out of the county treasury; and the county having borne the expense, which, under the law, should have been borne by the city, is entitled to recover the same from the city.</p> <p>Id.—Imprisonment at Request of City—Implied Promise.—A commitment to the county jail by the judicial officer of the city, though erroneous, has the. force of a request, and the expense of enforcing its ordinances being imposed upon the city by law, a promise to pay therefor is implied.</p>

<p>Appeal from a judgment of the Superior Court of Lake County.</p> <p>The facts are stated in the opinion of the court.</p>

Appeals from a judgment of the Superior Court of the City and County of San Francisco, and from an order denying a 'new trial. The facts are stated in the opinion of the court.

<p>Mechanics’ Liens—Void Contract—Failure to Record Specifications —Rights of Lienors.—Where a building contract is not filed in the recorder’s office, but a memorandum is filed which contains within itself no sufficient statement of the general character of the work to be done, but refers to plans, drawings, and specifications remaining in the office of the architect which are not recorded, the contract is void, and mechanic lienors are entitled to recover the full value of the labor done, and materials furnished, irrespective of the contract price.</p>

<p>Statutory Remedy, When Exclusive.—A sufficient statutory remedy for the failure to perform a statutory duty is exclusive.</p> <p>County Government Act—Compensation of Deputy Assessors—Repeal of Political Code.—Sections 3704, 3894, and 3895 of the Political Code, regulating the appointment and compensation of deputy assessors, were superseded as to Butte county by special or local acts passed in 1874, and 1876, and were repealed altogether by the passage of the County Government Act in 1883, by which the salaries of all county officers, including assessors, their deputies, and their assistants, were fully regulated.</p>

Application to the Supreme Court for a writ of prohibition to the Superior Court of the City and County of San Francisco, and the judge thereof. The facts are stated in the opinion of the court.

<p>Appeal from a judgment of the Superior Court of Contra Costa County, and from an order denying a new trial.</p> <p>The facts are stated in the opinion.</p>

<p>Disbarment of Attorney—Accusation Upon Information and Belief —Affidavit of Informer—Insufficient Verification.—An accusation for the removal of an attorney or counselor must be verified by the oath of some person, to the effect that the charges therein contained are true; and an accusation, merely upon information and belief, that is not supported by the affidavit of the informant, is insufficient; nor is such an accusation sufficiently verified, by stating that the same is true of the affiant’s knowledge, except as to the matters therein stated on information and belief, and as to those matters he believes it to be true.</p>

<p>Constitutional Law—Taxation of School District— Power of Legislature—Discretion of Local Authority.—Under section 12 of article XI of the constitution the legislature cannot impose a tax upon the property or inhabitants of a school district, nor can it prescribe a procedure through which such tax would inevitably be levied, without leaving any discretion in regard to it to the local authorities.</p> <p>Id.—High School Act Unconstitutional—Delegation of Legislative Power to County Superintendent.—The act to provide for the establishment of high schools in the state of California, approved March 12, 1891, is unconstitutional, in that it authorizes the county superintendent of schools to furnish to the board of supervisors an estimate for the tax, and makes it the duty of the board to proceed to fix a rate which will realize the amount of his estimate, thus leaving the amount of the tax wholly to the discretion of an executive officer, and leaving no discretion in the board, and thereby delegating legislative power to the county superintendent.</p> <p>Id.—Power to Levy Tax Legislative—Ministerial Act.—The power to levy a tax is purely legislative, and the high-school act vests no legislative power in the board, but commands them to do a purely ministerial-act in a mode prescribed, without reference to their judgment or discretion.</p>

<p>Landlord and Tenant—Obligation of Landlord to Repair.—At common law the landlord was not, in the absence of a covenant or stipulation binding him so to do, liable to do any repairs, and the measure of his liability must be regulated by the standard of the statute.</p> <p>Id.—Limit of Landlord’s Obligation.—A landlord is only required by the code to make and keep a dwelling-house tenantable, except as to such deterioration or injury as is caused by the negligence of the tenant; and as to repairs which he ought to make, his obligation is limited to the extent of the privilege conferred upon the tenant, either to apply one month’s rent toward repairs, or to vacate the premises upon the failure of the landlord, after notice, to make such repairs.</p> <p>Id.—Damage to Tenant—Repairs Undertaken by Landlord—Negligence.—Though a tenant cannot recover for" damages sustained by dilapidation, where the landlord fails to repair upon notice; yet, if the landlord undertakes to make the repairs, whether pursuant to a contract, or to an obligation imposed by statute, or as a volunteer, he is bound to use ordinary care in the conduct of the work, and is liable for any" injury caused by his negligence in performing it.</p> <p>Id.—Injury During Progress of Repairs—Pleading—Insufficient Averment of Negligence.—A complaint for damages against a landlord for injury to the wife of the tenant, which alleges that the landlord agreed to repair the stairs, and employed a carpenter for that purpose, and that the wife of the plaintiff believed that the repairing had ceased, and was injured upon descent of the stairs by a step placed thereon which was not nailed, but which does not aver that the work was completed in fact, nor that the landlord so represented or considered it, nor that by some declaration or act he induced her to believe that the stairs were safe, does not sufficiently charge negligence upon the landlord.</p> <p>Id.—Construction of Pleading Against Pleader—Verified Complaint. —A pleading is to be construed most strongly against the pleader, and no intendments can be indulged in its aid; and the failure to aver material facts in a verified complaint must be construed as implying that they do not exist, and therefore could not be averred in a complaint under oath.</p>

<p>Appeal from, a judgment of the Superior Court of the City and County of San Francisco.</p> <p>The facts are stated in the opinion.</p>

<p>Homestead—Filing of Insufficient Declaration—Omission of Part of Acknowledgment in Record—Mortgage by Husband.—Where a declaration of homestead and the acknowledgment of it are in all respects perfect, the premises described in the declaration constitute a homestead from the time of the filing of the declaration for record, and the omission by the recorder of a part of the acknowledgment in copying the declaration into the proper book does not affect the validity of the homestead, as against a subsequent mortgage executed by the husband alone upon the homestead premises.</p> <p>Id.—Constructive Notice—Location of Homestead.—Constructive notice is a creature of statute; and the statute has not made the record of the declaration of a homestead notice to any one, but the question as to the existence of a homestead depends solely upon compliance with the law authorizing the homestead, which, although requiring the declaration to be recorded, declares, that, from and after the filing for record of a declaration, the husband and wife shall be deemed to hold the homestead as joint tenants.</p> <p>Id.—Construction of Homestead Law—Remedial Statute.—The homestead law is remedial, and is to be liberally construed in favor of the exemption.</p> <p>Id.—Description in Declaration—Reference to Map and Deed.— Where the premises are described in the declaration of homestead by reference to a map made by a civil engineer and surveyor, as part of a certain rancho, and as particularly described in a recorded deed, the record of which is referred to in the declaration, and which sufficiently describes the premises, the description of the land in the declaration of homestead is sufficient.</p> <p>Id.—Joint Intention of Husband and Wife Not Necessary.—The statute does not require a joint intention of the husband and wife to claim the premises as a homestead, hut allows either husband or wife to make and file the declaration; and this right cannot be taken from either by the refusal of the other to join in the claim.</p> <p>Id.—Value of Homestead—Validity of Mortgage.—The homestead consists of the premises described in the declaration, and the question as to whether its value is more than five thousand dollars is not material to the validity of a mortgage executed by the husband alone upon the premises, and every attempt of the husband to convey or mortgage it is unavailing.</p>

<p>Appeal from a judgment of the Superior Court of Tulare County.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Mechanic’s Lien—Statutory Eight—Time or Filing Claims or Subcontractors—Acceptance of Building—Certificate of Architect. The right to a mechanic’s lien is purely statutory; and if claims of liens by subcontractors are not filed within thirty days after the occupation or use of the building by the owner or his representative, or the acceptance thereof by the owner or his agent, they are not filed in time, notwithstanding the original contract provides for certificates of the architect, stating that the installment is due or work completed, as the case may be, as a condition precedent to the contractor’s right to demand payment, and notwithstanding claims of liens were filed within thirty days after the final certificate of the architect.</p>

<p>Pleading—Causes op Action Not Separately Stated—Demurrer— Motion.—Where two causes of action are not separately stated, the objection cannot be raised by a demurrer upon the ground that several causes of action are improperly united; but the remedy is by a motion to make the pleading more definite and certain by separating and distinctly stating the different causes of action.</p> <p>Contract in Restraint op Trade—Sale op Goodwill—Territorial Restriction Partly Valid and Partly Void—Divisible Covenant. Where the goodwill of a business has accrued from customers residing in several contiguous counties, though the business was conducted in one alone, a sale of the business and goodwill with a covenant restricting the vendor from engaging in business in any of such contiguous counties for a period of years is not at common law an illegal contract, and is only void under the code as to the counties other than the one in which the business was conducted, hut is valid as to that county, the covenant being divisible as regards space, and void only to the extent to which it departs from the provisions of the code.</p> <p>Id.—Construction op Contract—Sale op Carpet Renovating Business —Renovation op Other Fabrics—Goodwill.—Upon the sale of the business of cleaning and renovating carpets, and of the goodwill thereof, where the contract of sale contained a covenant that the vendor would not for a period of years enter into the business of cleaning and renovating carpets, “and of cleaning and renovating any other fabrics,” the contract cannot be held void for including the latter covenant, in the absence of evidence that the vendor was not engaged in renovating and cleaning other fabrics besides carpets, and, if he was so engaged, it would be giving to the contract a very narrow construction to hold that the goodwill sold did not include such other fabrics.</p> <p>Id.—Limit of Time fob Restraint of Trade—Injunction—Modification of Judgment.—Under section 1674 of the Civil Code, one who sells the goodwill of the business may agree with the buyer to refrain from carrying on a similar business within a specified county, city, or part thereof, so long as the buyer or any one deriving title to the goodwill from him carries on the business; and where the contract provides that the vendor shall not engage in tlie business for a period of ten years from the date of the instrument, a decree enjoining the defendant from prosecuting or carrying on a rival business until the expiration of the time limited in the contract, must be modified to conform with the statute as to time, viz., that it should continue so long as the plaintiff or any one deriving title to the goodwill from the plaintiff carries on the business in the county, not exceeding ten years from the date of the contract.</p>

<p>Quieting Title—Assessment For Widening Street—Sale For Delinquent Assessment—Evidence—Certificate of Sale.—In an action to quiet title, where the defendant claims title under a sale and conveyance by the superintendent of streets, for a delinquent assessment for the widening of a street, the certificate of sale is relevant and competent evidence of the official act of the officer in making the sale, and is admissible to show that it conforms to the requirements of the Political Code, and contains the matters required by the code to be recited in the deed.</p> <p>Id.—Notice of Application For Deed—Variance in Date.—The statute does not require that notice of application for a deed, under a sale for a delinquent assessment, should be dated; and where it appears that the notice contained the matters required by the Political Code in order to authorize the execution of the deed, and was given more than thirty days before the execution of the deed, the fact that the notice bore a different date does not impair its effect.</p> <p>Id.—Deed From Superintendent of Streets—Prima Facie Evidence of Preliminary Steps—Power of Legislature.—The legislature has power to make a deed prima facie evidence of preliminary steps requisite to its validity; and in the absence of proof of any of the acts of which a deed from the superintendent of streets, upon sale of property for a delinquent assessment for the widening of a street, is made primary evidence by the statute, the deed itself is sufficient evidence to authorize the court to find that all the preliminary steps have been regularly taken, and that the title of the land sold has been thereby transferred to the grantee.</p> <p>Id.—Bules of Evidence—Political Code—Code of Civil Procedure.— The rule of evidence prescribed in the Political Code declaring the effect of the deed of the officer, and making it prima fade, or presumptive, evidence of other facts is not in conflict with the provisions of the Code of Civil Procedure relating to evidence, and it is not a ground of objection to the effect of such deed as prima fade evidence, that the provision making it such is not found in the Code of Civil Procedure.</p> <p>Id,—Construction of Codes.—The provisions of the four codes are to be construed as though they were all parts of the same statute; and it is only when there is a conflict between the provisions that it is necessary to determine which shall prevail.</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.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Appeal from a judgment of the Superior Court of Humboldt County.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Motion fob Nonsuit—Review Upon Appeal—Error in Admitting Evidence.—Error in admitting evidence for the plaintiff cannot be reviewed on a motion for a nonsuit, and where the evidence admitted substantially tends to prove all the facts essential to plaintiff’s cause of action the nonsuit is properly denied.</p> <p>Contract for Grading Street—Limited Subscription of Lot-owners —Several Contract—Validity—Evidence.—Where a street contractor, with whom the city has contracted to do its proportion of the grading of a street, engages with lot-owners, contracting with each severally that he will do grading at a specified price per cubic yard, and other work at specified prices per front foot, the effect of signatures of lot-owners limiting the obligation of the subscribers to pay for only a specified part of the grading is the same as if the contract of each had been written on a separate paper; and the instrument is of the nature of a subscription contract, whereby the obligation of each subscriber is limited and several, and not joint, and the contract is not illegal or invalid, but is admissible in evidence to show the liability of a lot-owner who has subscribed the contract for grading in front of-big lot.</p> <p>Id.—Liability for Proportion of Frontage—Certificate of Surveyor —Number of Cubic Yards.—Where the contract of a lot-owner is to pay for the grading in front of his lot in the proportion that the frontage of his lot bears to the whole frontage on the street improvement, the certificate of the city and county surveyor showing the whole number of cubic yards of grading is admissible in evidence against the lot-owner, and the number of cubic yards of grading in front of his lot is not a factor in the calculation.</p> <p>Id.—Objection to Certificate Not Applicable to Survey.—Where a certificate signed by the city engineer showing the whole number of cubic yards of grading is based upon notes of a survey made by him before he came into office, an objection that the certificate was not made by the city engineer does not include the objection that he made the survey without authority, nor that it was improperly made.</p>

<p>Exemption From Execution-—Implements of Artisan—Printing Establishment-Question of Fact—Necessity to Carry on Trade.—The statute exempts from execution only such tools or 'implements of a mechanic or artisan as are necessary to carry on his trade, and not all that he may have acquired and used in his business; and whether the manager of a printing establishment, consisting of four printing-presses (three of which were operated by steam), a miscellaneous assortment of type, a paper-cutting machine, and the general paraphernalia of a printing-office, costing in the aggregate three thousand five hundred dollars, can claim the whole plant as exempt, upon the ground that the whole of it is necessary to carry on his trade, is a question of fact to be submitted to a jury under proper instructions as to the law, and a verdict against such claim of exemption cannot be disturbed for want of evidence to support it, where there is evidence to show that a practical printer can make a living with one press and five hundred or six hundred dollars’ worth of type.</p>

<p>Appeal from a judgment of the Superior Court of the City and County of San Francisco.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Corporations—Employment of Attorney—Authority of President.— The president or other head of a corporation has authority to employ an attorney, when the exigencies of his company require it.</p> <p>Id.—Executed Contract With Vice-President—Action by Assignee in Insolvency.—Where the vice-president, who, in the absence of the president, conducts the business affairs of the corporation, employed an attorney for the corporation, with whom a settlement was,had for services rendered, and payment made, without objection on the part of the corporation or any officer thereof, the subsequent assignee in insolvency of the corporation cannot recover the money so paid.</p>

<p>Sale—Statute of Frauds —Insufficient Change of Possession—Husband and Wife—Horses Upon Homestead.—Where a wife purchased from her husband horses upon the homestead, upon which they both resided at the time of the purchase, and, by agreement between them, the husband took charge of them for the wife, and drove and managed them the same as before the bill of sale was made, there is no such immediate delivery and actual and continued change of possession of the property as is contemplated by section 3440 of the Civil Code.</p> <p>Id.—Possession of Vendor as Agent of Vendee—Public Notice of Change.—The object of the statute is to require notice to the world of the transfer of personal property, and its efficiency would be defeated if the vendor were allowed to remain in possession of the property as the agent of the vendee, in the absence of a notice to the world of a change of ownership.</p> <p>Id.—Relationship Between Parties Immaterial—Statutory Construction.—The relationship existing between the parties is a matter wholly immaterial; and the fact that a vendor and vendee are husband and wife, or parent and child, is no reason why the provisions of the statute should receive a different or more liberal construction.</p> <p>Id.—Husband and Wife—Inventory of Wife’s Separate Property— Construction of Code.—Whatever may be the scope and purpose of section 165 of the Civil Code providing for the recording of the inventory of the separate property of the wife, it is not entitled to a construction, that would nullify the provisions of section 3440 as to fraudulent transfers of personal property requiring an immediate delivery and actual and continued change of possession.</p> <p>Id.—Declarations of Vendor in Possession After Sale.—The declarations of the vendor as to the character of his possession after the sale, and while in the actual possession of the property, are admissible against the vendee.</p> <p>Id.—Replevin—Compensation for Money Expended—Note for Attorney’s Fee.—In an action of replevin, a note given to attorneys as a fee for their services is insufficient to support a judgment allowing the amount of the note as a fair compensation for the time and money expended by the plaintiff in the pursuit of the property.</p>

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

<p>Criminal Law—Obtaining Property Under False Pretenses—Transfer With Intent to Defraud Creditors.—The offense of obtaining money or other personal property by false and. fraudulent pretenses is committed against the public, and not against the individual, and there is no principle of law that will bar the state from prosecuting a criminal because some other person is a partiaeps criminis; and an information charging that the false pretenses consisted of representations to the person defrauded by the defendant, that a judgment in a large sum of money had been obtained against her in another state, and that, believing such statements, she was induced to, and did, transfer her property to the defendant in order to avoid the application of her property to the satisfaction of such judgment, states a public offense, which is not affected or barred by the intention of the person defrauded.</p> <p>Id.—Offense Distinguished From Grand Larceny—Assignment in Trust.—In grand larceny, the owner of the property does not intend te part with the title and possession of it, while, in the offense of obtaining property under false pretenses, the owner does intend to part with the title and possession; and the offense is not grand larceny where the title to the property is transferred by the assignment thereof in trust.</p> <p>Id.—Agreement For Support—State Not Estopped.—The fact that the assignment entered into appears on its face to be a valid agreement for the transfer of property, in consideration of an agreement upon the part of the defendant to support and care for the prosecutrix during the remainder of her life, does not estop the state, which is not a party to the contract, from proving that the transfer was fraudulently induced by false pretenses for the purpose of avoiding the application of the property of the prosecutrix to the satisfaction of a judgment fraudulently represented as existing against her; and the rules of evidence in civil cases as to a direct or collateral attack upon the contract by any of the parties to it are entirely inapplicable.</p> <p>Id.—Variance Between Allegations and Proof.—Where there is no variance between the allegations and the proof as to portions of the property described in the information, a variance as to a particular piece of property is in no way fatal to a judgment of conviction.</p> <p>Id.—Contract Induced by False Pretenses—Property Obtained Under Contract.—The fact that the written contract entered into between the parties was induced by false pretenses does not prevent a prosecution for the obtaining of property under the contract as a result of the false pretenses, there being a causal relation between the pretenses and the transfer of the property.</p> <p>Id.—Evidence—Objections to Weight of Testimony.—Where objections to evidence go to the weight of the testimony, rather than to its admissibility, the court does not err in admitting it, although it is somewhat remote, and relates to an incident not directly traceable to the accused.</p>

<p>Vendor and Purchaser—Tender of Purchase Monet—Objection Not Expressed. —The sufficiency of a tender of the unpaid balance of the purchase price of land cannot be objected to on the ground that it was not in gold coin, where the only objection made to the tender at the time it was made was that it did not include interest and taxes.</p> <p>Id.—Estates of Deceased Persons—Sale bt Executor—Appeal From Decree of Confirmation—Stipulation Suspending Contract Rights —Interest on Purchase Monet—Taxes.—Where an executor under a power of sale contained in the will sold the property of the decedent at auction, part of the purchase money to be paid in cash and the balance on confirmation of title by the superior court, and the purchasers appealed from the decree of confirmation, whereupon it was stipulated between them and the executor that the whole matter should remain in statu quo until after the decision of the supreme court establishing the rights of the purchasers, the stipulation suspended the consummation of the contract until after the determination of the appeal, and the purchasers are not liable for interest upon the purchase money from the date of the auction sale, nor for taxes, but they may compel a conveyance to themselves upon their payment of the balance of the purchase money.</p> <p>Id.—Sale by Executor Under Power Not Judicial.—An executor’s sale of realty under a power in a will is not strictly a judicial sale; but as between the executor and purchaser the dealings are the same as they would be between any other vendor and vendee.</p>

<p>Appeal from a judgment of the Superior Court of the City and County of San Francisco denying a motion for a new trial.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Appeal—New-trial Order—Review of Judgment.—An appeal from an order granting or denying a new trial does not involve a review of the judgment, the correctness of which can be determined only by an appeal therefrom. '</p> <p>Id.—Motion For New Trial—Independent Record—Reference to Pleadings—Sufficiency of Pleadings Not Involved.—The motion for a new trial, which is in the nature of a distinct proceeding, is to be heard upon an independent record, distinct from the record upon which the judgment depends; and reference may be had to the pleadings in the record for the purpose of ascertaining the issues in the case, and determining the correctness of the rulings of the court as to the relevancy of evidence; but whether the complaint is sufficient to support the judgment, or whether the court erred in overruling a demurrer to the complaint, are matters not involved upon the motion for a new trial, and can be considered only upon an appeal from the judgment.</p> <p>Id.—Objection Upon Appeal For First Time—Fraudulent Conversion of Goods—Objection to Evidence—Variance.—In an action by the proprietors of a bonded warehouse for the conversion of numerous boxes of tin, which the defendants are alleged to have fraudulently obtained by conspiracy with an employee of the plaintiffs, the fraudulent conversion being alleged to have occurred between two dates a number of years apart, an objection that the plaintiffs were limited at the trial to establishing a single conversion of tin, and could not introduce testimony in support of their complaint showing that the tin for which they sued had been received by the defendants at different times, is in the nature of an objection to evidence on the ground of variance from the allegations of the complaint, and it appearing that the defendants were not misled by the evidence, and failed to raise any objection at the trial, such objection cannot be considered upon appeal for the first time.</p> <p>Bailment—Warehouse — Embezzlement — Fraudulent Conspiracies — Conversion of Property of Several Bailors—Single Cause of Action—Objection to Evidence.—The proprietors of a bonded warehouse, who are the bailees of boxes of tin left in the warehouse by several different bailors, have a single cause of action to recover for fraudulent conversion of the tin by persons obtaining it through embezzlement by an employee of the warehouse, with whom they had conspired for the purchase of the tin, and it is immaterial to the defendants sued for such conversion whether the plaintiffs were the bailees of one or more bailors; and an objection to the evidence of the entire conversion, upon the ground that the plaintiffs have as many causes of action as there were bailors, and should have stated them separately, is not tenable.</p> <p>Id:—Statute of Limitations—Admissibility of Evidence—List Made by Defendant—Items Barred.—Where one of the defendants, in connection with his testimony, presented a statement, or list of items, from the books of the defendants, which had been prepared at the instance of the witness, and was produced by him for the purpose of showing the nature of the transactions between the defendants and the employee of the plaintiff, the list produced is not rendered inadmissible by reason of its containing entries of transactions that had occurred more than three years before the commencement of the action; and an objection on the part of the defendants to that portion of the list, upon the ground that no recovery could be had for it, and that it is barred by the statute of limitations, is properly overruled.</p> <p>Id.—Interwoven Transactions—Dependent Facts—Instruction as to Statute of Limitations.—When a cause of action depends upon a series of continued transactions, which are so interwoven that the evidence cannot be limited to a particular point of time, or when the sufficiency of the defense of the statute of limitations depends upon the establishment of other facts at the trial, an objection to a piece of evidence on the ground that it relates to a transaction claimed to he barred by limitation is unavailing; and the proper practice in such cases is to allow the evidence to go before the jury; and to have them properly instructed with reference to the statute of limitations and its application to the facts of the case before them.</p> <p>Id.—Fraudulent Purchase From Embezzling Employee—Identity of Goods Purchased—Burden of Proof.—Where there is evidence tending to show that the defendants were not entirely innocent in their dealings with the employee of the plaintiffs who embezzled the tin bought by the defendants, the burden is thrown upon the defendants to show that the tin thus purchased was not a portion of that for which the plaintiffs proved that they found a shortage in their warehouse, and settled with their bailors.</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.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Parties—Guardian of Incompetent Person.—The guardian of an incompetent person is neither a necessary nor a proper party to an action upon a note and mortgage assigned by the incompetent person to the plaintiff.</p> <p>Id.—Service of Summons Upon Incompetent Person—Appearance of General Guardian—Joint Answer—Jurisdiction of Person— Amended Complaint.—The rule that the appointment and appearance of guardians ad litem without a personal service of summons upon the incompetent is void, does not apply where the incompetent person appears by a general guardian; but in such case where the incompetent person appears by attorney, and, jointly with the general guardian, files an answer, and goes to trial upon the issues made by the pleadings, a judgment rendered against him is binding as far as any question of personal 'jurisdiction is concerned, and it is immaterial whether he was brought into the action by an amended complaint rather than by the original, or whether his guardian was wrongfully sued instead of the incompetent person in the original complaint.</p>

<p>Estates of Deceased Persons—Compromise of Claim—Action to Rescind—Finding Against Evidence.—Where a claim against the estate of a deceased attorney was compromised with the administrator by allowing an offset of $250, as attorney’s fees, in an action to rescind the compromise for fraud, upon the alleged ground that a balance of $880, due to the claimant, had not been paid or accounted for, except to the extent of $250, which had, without right, been charged as attorney’s fees, a finding that, by reason of false representations, plaintiff was induced to settle the claim, and accept in full payment $500 less than the amount justly due and payable, is against the evidence, where the testimony in behalf of the administrator proved that the whole claim, excepting the sum of $250, agreed upon for attorney’s fees, had been paid to the claimant, and written instruments were proved, consisting of a satisfaction of the judgment, in which there was an acknowledgment that the whole claim had been paid by the administrator, and a release of the administrator from all claims, acknowledging that the whole claim, less $250, had been paid to the claimant by the administrator, and a written receipt for the sum of $250, on account of the claim, signed by the claimant, and the oral contradiction by the claimant of the effect of the writings, and of the proof of payment, and oral evidence of the claimant that $880 had not been paid, given six years after the date of the writings, does not create a substantial conflict sufficient to support the finding of the court.</p> <p>Id.—Weight of Evidence—Conte: diction of Writings.—Oral testimony in contradiction of the plain terms of written instruments, or of written admissions, should be clear, full, and precise; and the weight to be given to such testimony diminishes from the date of the instrument which it purports to contradict or overcome.</p>

<p>Appeal from a judgment of the Superior Court of the City and County of San Francisco.</p> <p>The facts are stated in the opinion.</p>

<p>Appeal from an order of the Superior Court of the City and County of San Francisco modifying a judgment.</p> <p>The facts are stated in the opinion of the court;</p>

<p>Change of Place of Trial—Vacation of Default—Condition of Answer to Merits—Second Motion Unauthorized.—Where the time for defendant to answer has been repeatedly extended, and he finally appears and moves for a change of venue, but fails to file his answer or demurrer, whereupon-his default is entered, and thereafter the court, upon motion of the defendant, sets aside the default and allows him ten days to “answer upon the merits,” and such allowance imposes a condition against further delay" or dilatory plea, a second motion for change of venue is unauthorized, and is properly denied.</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.</p> <p>The facts are stated in the opinion.</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.</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.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Appeal from a judgment of the Superior Court of Santa Clara County, and from an order denying a new trial.</p> <p>The facts are stated in the opinion.</p>

<p>Board of Education—Power to Enact Rules—Statutory Quorum.— Where the statute provides that a majority of the hoard of education shall constitute a quorum for the transaction of business, and that the board may enact rules for the conduct of its own proceedings, the authority given it to enact such rules does not authorize it to overthrow or change the rule declared by the statute, that a majority of the board shall constitute a quorum.</p> <p>Id.—Authority to Employ Teachers—Contract—Mutual Assent.—. The authority given to a board of education to employ teachers entitles them to contract with suitable persons to engage in the work of teaching in the public schools of the city for a fixed salary or compensation; and the employment implies a contract on the part of the employer to hire, and on the part of the employee to perform, services, and until such a contract is mutually entered into, it can have no binding obligation upon either party.</p> <p>Id.—Ballot For Teacher—Offer of Employment—Revocation Before Acceptance.—The mere balloting by the majority of a quorum of the board of education for a teacher does not constitute an employment of the teacher, but amounts only to an offer of employment, which the board has a right to revoke or cancel at any time before acceptance.</p> <p>Id.—Effect of Refusal to Declare Election — Mandamus.—When the board, after taking a ballot in favor of the employment of a teacher, refuse then and there to declare the teacher elected, it in effect revoked and canceled the offer, and left nothing thereafter for the teacher to accept; and a writ of mandate will not lie to compel the board to declare such teacher elected.</p>

<p>Street Improvement—District Assessed—Curbing and Partial Laying oe Sidewalks—Uniformity of Assessment.—In a resolution of intention to sewer, regrade, and macadamize a street, the board of supervisors has the right to confine the curbing and sidewalks to the portion of the street upon which such curbing and sidewalks had not been laid, and it cannot be objected that an assessment for the work is not equal and uniform, because the cost of improving the sidewalks was not distributed on all the frontage within the district assessed, but was imposed only upon the lots where the curbing and laying of sidewalks was done.</p> <p>Id.—Presumption as to Sidewalks.—In the absence of a showing to the ■ contrary, a presumption may be indulged that no sidewalks were laid except in front of the lots as shown in the assessment.</p> <p>Id.—Foreclosure of Assessment—Dismissal as to Part of Property.— Right to Recover as to Residue.—The dismissal of a suit to foreclose a street assessment as to part of the lot assessed, upon the ground that one of the defendants, who was the owner of four several feet of the frontage of the lot, Had paid the portion of the assessment for such frontage, is not fatal to the right of recovery against the owner of the residue, for the remainder of the assessment upon the lot as a whole, where such defendant in his answer admitted the ownership of the entire lot by both defendants, and the court finds that such defendant requested and demanded that the street superintendent assess the lot as a whole, and where it appears that the assessment was made to unknown owners for a fixed sum for a front foot, and was capable of segregation between the owners in severalty of a given number of front feet, without doing injustice to either owner.</p> <p>Id.—Appeal to City Council—Irregularity in Assessment.—The defendant having failed to appeal to the city council on account of irregularity in the assessment, is precluded from urging an irregularity which might have been corrected on such appeal.</p>

<p>Eire Insurance—Immaterial Misrepresentation—Cancellation op Previous Policy.—A misrepresentation in a written application for an insurance policy, as to the fact that another company had canceled a policy on the property, is not material, where it appears that the reason of the cancellation was, that the insurance company which issued it was retiring from business, and wished to clear up every thing, and that it was for no reason that could have influenced the granting or refusing of the policy sued upon.</p> <p>Id.—Representation as to Ownership op Land—Foreclosure op Mortgages—Deed Intended as Mortgage.—A representation in the policy that the insurer is the owner of the land on which the insured buildings stood is not rendered false by the fact that after suit was brought to foreclose mortgages upon the land, because the time to sue was about to expire, the suit was withdrawn, and the mortgages canceled, and a deed executed purporting to convey an absolute title to the land, where it appears by oral proof that the deed was intended as a mortgage to secure the indebtedness, and where the application for the policy states that the property is encumbered by mortgage.</p>

Petition to the Supreme Court for release from imprisonment upon a writ of habeas corpus. The facts are stated in the opinion of the court.

<p>Appeal—Review op Conflicting Evidence.—Where there is a substantial conflict in the evidence, the verdict of a jury cannot he disturbed upon appeal, upon the ground that the evidence was insufficient to justify it.</p> <p>Conversion of Goods—Action Against Sheriff—Impeachment of Garnishee.—In an action for the conversion of personal property sold by the sheriff under a writ of attachment, the writ of attachment and the sheriff’s return thereon, with a memorandum furnished by a garnishee, are properly admitted in evidence in connection with the cross-examination of the garnishee, for the purpose of showing that some of the statements made by the witness upon his direct examination were not true.</p> <p>Id.—Burden of Proof—Instructions—Omission of Request.—Where the instructions given to the jury as to the burden of proof state the law correctly as to to the burden of proof upon the part of the plaintiff, so far as they go, if tile plaintiff desires further instructions as to the burden of proof upon the issues raised by the answer, he should ask for them, and, having failed to do so, he cannot be heard to complain upon appeal.</p> <p>ID._Instructions Already Given—Modification.—An instruction upon a subject on which the court of its own motion has charged the jury fully and fairly is properly refused; and the court may modify an instruction asked for to conform to the law.</p> <p>Id._Construction of Instructions Given by Court.—The instructions given by the court must be read together as a whole, and are sufficient if, when so read, they appear to cover the whole case, and state correctly the law applicable thereto.</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.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Negligence—Superintendent of Streets—Unskillful Repairing of Sewer—Appeal—Conflicting Evidence.-—In an action against the superintendent of streets to recover damages caused by the negligent and unskillful repairing of a sewer, where the evidence before the jury is conflicting, and the jury were properly instructed by the court, and the judge who heard the evidence and saw the witnesses denied a new trial, the verdict of the jury in favor of the plaintiff cannot be disturbed npon appeal.</p> <p>Id.—Official Duty of Superintendent of Streets—Liability for Negligence.—Where it is the duty of the superintendent of streets to attend to the repairing of sewers, if he undertakes to make any such repairs, he must do it in a careful and skillful manner, and is liable for any damages resulting from his negligence in so doing; and his claim to have done such work in his official capacity will not relieve him from responsibility for such damages if he does the work in an unskillful and negligent manner.</p> <p>Id.—Work in Excess of Jurisdiction—Skill and Diligence Required. Where the cost of making repairs upon a sewer exceeds one hundred dollars, the superintendent of streets has no jurisdiction to do the work, and the acts of the superintendent and his deputy in making the repairs are on the same footing as those of any other person making the repairs without authority, and they are liable for damages sustained, unless, after undertaking to repair the sewer, the work is done skillfully and diligently.</p> <p>Id.—Evidence of Cost of Repairs-—Province of Jury.—-Where there is evidence before the jury of the amount of labor required in making the repairs, it is not necessary that there should be any evidence of the exact amount paid for the labor, and the jury may determine from their own experience whether it would exceed one hundred dollars or not.</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.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Insolvency—Petition by Creditors—Dissolution of Attachment.— The mere filing of a petition for an adjudication of insolvency by creditors against an alleged insolvent debtor does not dissolve an attachment, and is not ground for the dissolution thereof by the court; and the fact that the creditor who issued the writ of attachment is uniting with other creditors in prosecuting the insolvency proceedings is not ground for such dissolution.</p> <p>Id.—Appeal—Previous Motion to Dissolve Attachment.—Where the bill of exceptions upon appeal from an order refusing to dissolve an attachment contains papers which might show that there had been a previous motion to dissolve the attachment on other grounds which had been denied, but it appears that such papers were not read or considered on the hearing of the motion from which the appeal is taken, they cannot be considered upon the appeal.</p> <p>Id.—Judicial Notice oe Records—Reference to Another Appeal by Appellant.—For some purposes the supreme court will take judicial notice of its own records; but an appellant cannot, by reference to another appeal, have his cause heard on evidence not produced at the hearing in the court below.</p>

<p>Foreclosure oe Mortgage—Sheriee’s Deed—Relation.—A sheriff’s deed executed to the purchaser at a sale under a judgment foreclosing a mortgage vests the purchaser with all the title to the land that the mortgagors had at the date of the mortgage, or which they had subsequently acquired therein.</p> <p>Id—Attachment Prior to Deed.—An attachment upon the property of the mortgagors affects only the interest in the land which was then held by them, and if the land has been sold by the sheriff under foreclosure sale, the deed subsequently executed by the sheriff extinguishes the interest which the mortgagors had at the date of the attachment.</p> <p>Id.—Extinguishment oe Judgment Lien.—A judgment rendered after the date of the sale under foreclosure of a mortgage cannot be a lien upon the property of the mortgagors, and the land is not subject to a sale in satisfaction of the judgment.</p> <p>Id.—Conveyance by Mortgagor—Adverse Possession—Prescriptive Title.—The conveyance by the mortgagor after sale of the land under foreclosure, and the execution of the sheriff’s deed, does not transfer any title or interest in the land; but if the purchaser takes possession of the land, and maintains an adverse possession thereof for the full period of the statute of limitations, he becomes vested with a prescriptive title thereto.</p> <p>Id.—Estoppel — Aetb r-acquired Title—Ejectment.—A judgment debtor in possession of property at the time of the sale, or any one claiming under him subsequently to the creation of a judgment or attachment lien, who has no other title than that which he derived from the judgment debtor, and which was sold under the execution, cannot defeat • the right of the purchaser at the sale to recover the land in ejectment by showing that he had no title to the land, or that the true title was outstanding; but the sheriff’s deed does not transfer any after-acquired interest in the land, and the judgment debtor or his vendee may show that he has acquired a different title frcm that which was sold under the judgment, and his vendee may also show that the judgment debtor himself had no interest in the land at the time of the sale.</p> <p>Id. —Vendee oe Land Not Estopped.—The vendee or grantee of land is not estopped from disputing the validity of the title under which he entered, and he may show another and independent title in himself.</p> <p>Id.—Adverse Possession oe Grantee—Prescription.—The possession of a grantee becomes adverse to his grantor immediately upon his entry under the grant, and by this adverse possession he may acquire a title by prescription which will be as available for the protection of his possession as one acquired by grant.</p> <p>Id.—Running oe Statute oe Limitations—Sheriff’s Deed—Title oe Stranger. —The rule that the statute of limitations does not begin to run against the judgment debtor, or one claiming under him, until the execution of the sheriff’s deed, has no application to a stranger to the judgment, or to any title which is not received from the judgment debtor.</p> <p>Id.—Ejectment—Evidence—Extinguishment of Lien—Conveyance to Plaintiff Subsequent to Suit.—In an action of ejectment brought by a plaintiff claiming title under an execution sale, where the defendant offers evidence of a sale and sheriff’s deed under the foreclosure of a mortgage, for the purpose of showing that the sale which the plaintiff claimed as the basis of his title had been extinguished thereby, the plaintiff cannot offer in evidence a deed to him of the title under foreclosure sale, executed subsequently to the commencement of the action, and it is error to admit such deed in evidence.</p>