Volume 11 — California Appellate Reports

<p>APPLICATION for Writ of Prohibition to the Superior Court of Solano County. A. J. Buckles, Judge.</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. M. H. Hyland, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

MOTION to dismiss an appeal from a judgment of the Superior Court of Humboldt County. _ G. W. Hunter, Judge. 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, and from an order denying a new trial. J. M. Seawell, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Appeal—Action in Equity—Foreclosure of Mortgage—-Jurisdiction —Transfer to Supreme Court.—An action for the foreclosure of a mortgage is an action in equity; and this court has no jurisdiction of an appeal taken in such action. The jurisdiction of such an appeal is vested in the supreme court under the constitution, and an appeal taken to that court, in which the transcript and briefs are erroneously filed in this court must be transferred to that court for disposition.</p>

<p>APPLICATION for writ of mandate to the Superior Court of Los Angeles County. Walter Bordwell, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>APPEAL from an order of the Superior Court of Santa Barbara County, denying a new trial. S. E. Crow, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

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

<p>Partition of Land—Pleading—Answer Setting Forth Water Eights —Service Only upon Plaintiff—Issue not Involved.—When the property described in the complaint in an action for partition consists solely of land, without any reference to water rights, and there are numerous parties defendant litigating rights solely in the land, but appellant alone, in addition to Ms interest in the land, answered that he also owns an interest in the waters of a stream flowing through the land, but served Ms answer solely on the plaintiff, the court properly found, in effect, that the affirmative matter set forth in the answer as to water rights was not involved in the issues of the action.</p>

<p>Quieting Title—Sale Under Judgment Lien—Completed Conveyance Prior to Docketing.—In an action to quiet title to mining property in which defendant claims under an execution sale thereof under a judgment lien, and plaintiff claims title under a completed conveyance thereto, prior to the docketing of the judgment, where the agreed facts show a prior deed thereof to the judgment debtor as grantee, which was not delivered to him personally, but merely constituted part of a chain of title, that he paid no part of the purchase money, but immediately conveyed the same to plaintiff’s predecessors, who paid the whole purchase money, and conveyed the property to plaintiff, the judgment debtor had no interest to which the judgment lien could attach; and where the whole chain of title was recorded prior to the execution sale, judgment was properly rendered quieting plaintiff’s title.</p> <p>Id.—Deeds in Escrow—Payment op Price by Grantees.—The fact that the deeds executed as part of the prior transaction were placed in escrow, subject merely to the payment of the purchase money by the grantees of the judgment debtor, who had parted with all title and control over the property on which he had paid nothing, and upon such payment, which was fully made, the deeds were to be delivered to the grantees, in whom it was intended to vest the whole title, does not indicate any ownership in the debtor by reason of the escrow.</p> <p>Id.—Naked Legal Title—Prior Equitable Title—Judgment Lien not Eppective in Equity.—If it be assumed that by virtue of the escrow there was an apparent legal title in the original grantee, it was a naked legal title, and even if it did not vest in his grantees prior to the docketing of the judgment, yet there being prior thereto a full equitable title in them by reason of full payment of the purchase money, the judgment lien cannot be effective as against them in an equitable action to quiet title.</p> <p>Id.—Land Purchased in Name op Another—Trust.—Where land is’ purchased in the name of one person, and the consideration is paid by another, the land will be held by the grantee in trust for the person furnishing the consideration.</p> <p>Ld.—Voluntary Purchaser prom Naked Trustee—Notice op Ownership—Purchase Under Judicial Sale.—A voluntary purchaser from the trustee of the naked legal title, having knowledge of the record of the documents evidencing the transaction and possession of the property by the true owner, could acquire no title to the property, and a purchaser with notice under a judicial sale could occupy no better position.</p>

<p>APPEAL from a judgment of the Superior Court of Los Angeles County. George H. Hatton, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>APPEAL from an order of the Superior Court of Orange County, denying a new trial. Z. B. West, Judge.</p> <p>The facts are stated in the opinion of the court,</p>

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

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

<p>APPEAL from an order of the Superior Court of San Diego County, denying a new trial. E. S. Torrance, Judge,</p> <p>The facts are stated in the opinion of the eoúrt.</p>

MOTION to dismiss an appeal from an order of the Superior Court of Kern County denying a new trial. J. W. Mahon, Judge. The facts are stated in the. opinion of the court.

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

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

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

<p>Criminal Law—Review upon Appeal—Verdict not Appealable.—No appeal lies from a verdict of guilty in a criminal ease, and the review of rulings upon evidence must be confined to the appeal from the judgment and order denying a new trial.</p> <p>Id.—Receiving Stolen Property-—-Election op Date—Evidence— Other Transactions—Motive and System.—Upon the trial of an information charging the crime of receiving stolen property, where the prosecution was required to elect a particular date to be relied upon for conviction, evidence of other transactions prior thereto and of one subsequent thereto in which the defendant was entrapped was admissible as tending to show motive and system in relation to the particular offense for which he was on trial.</p> <p>Id.—Distinction Between Guilty Knowledge and Motive and Intent.—Although, when guilty knowledge is the only matter to be 'considered, a subsequent offense cannot be inquired into, yet when motive and intent are under consideration a broader field is open, and where there is a clear connection with the offense relied upon and a transaction of the next day, from which the jury, might logically infer that if the defendant was guilty of the one he was guilty of the other, evidence of the subsequent transaction is admissible to show motive or system, notwithstanding it has a tendency to prove a distinct offense also.</p> <p>Id.—Evidence Connected with Arrest.—The transaction of the subsequent day was also admissible as being connected with the arrest of the defendant on that day, although the circumstances connected with the entrapping and arrest of the defendant did not constitute a punishable offense, or any proof of the offense charged.</p> <p>Id.—Conviction op Thief—Exclusion not Prejudicial.—The exclusion from evidence of the record of conviction of the prosecuting witness for theft of the stolen goods which were received from him by the defendant for almost twenty per cent of their market value, was not prejudicial to the defendant, the prosecuting witness having testified to the theft committed by him without "objection.</p> <p>Id.—Receipt op Stolen Junk—Evidence—Noncompliance with City Ordinance.—Where the goods stolen and received by the defendant consisted of junk in respect to which defendant was a dealer, evidence of a city ordinance requiring junk-dealers to make reports to the chief of police, and of the noncompliance of the defendant therewith, was admissible.</p> <p>Id.—Presumption op Continuance of Ordinance—Burden op Proof to Show Repeal.—It must be presumed that an ordinance duly passed continued to exist, and the burden of proof is upon the defendant to show the repeal to excuse his noncomplianee therewith.</p>

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

<p>APPEAL from an order of the Superior Court of the City and County of San Francisco changing the place of trial. James M. Troutt, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

PETITION for discharge upon writ of habeas corpus, from imprisonment under an ordinance of the city of San Jose. The facts are stated in the opinion of the court.

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

<p>Action—Dismissal fob Want of Diligent Pboseodtion—Unreasonable Delay in Restoring Records—Discretion not Abused.—In an action brought in San Francisco in which the original records were destroyed by the fire of April 18, 1906, copies of which were procured by defendant’s counsel, and were supplied to counsel for plaintiffs, with an offer to stipulate for restoration of the records, but such stipulation was not applied for by plaintiff’s counsel for a period of thirteen months, the court did not abuse its discretion in dismissing the action for want of diligence in its prosecution.</p> <p>Id.—Inherent Power of Trial Courts.—Trial courts possess inherent power to dismiss pending actions, on the ground that they have not been diligently prosecuted.</p> <p>Id.—Excuse for Delay—Press of Business Caused by Disaster.— The fact that the attorney for the plaintiff had an accumulated pressure of other business as the result of the great San Francisco disaster, though a proper matter for consideration by the trial court on the motion to dismiss, could not of itself show an abuse of discretion by the trial judge in dismissing the action, or justify plaintiffs’ counsel in neglecting an action instituted by them, to the great inconvenience and detriment, perhaps, of the adverse party.</p> <p>Id.—Illness of Trial Judge—Neglect to Secure Stipulated Restoration—Formal Act—Power of Other Judges—Judicial Notice.— The illness of the particular trial judge, to whom the action had been assigned, is not a reasonable excuse for delay in obtaining the restoration of the records upon stipulation. Such restoration would be a mere formal act, which could be ordered by any other judge of the same court, during such illness, upon stipulation of the parties. This court takes judicial notice that there are twelve superior judges in San Francisco, any one of whom could have restored the records in such case.</p> <p>Id.—Pendency of Demurrer to Complaint Submitted upon Briefs— Duty of Plaintiff.—The pendency of a demurrer to the complaint which had been submitted upon briefs at the time of the disaster is no excuse for delay in securing the restoration of the records. It would have been an idle act to pass upon the demurrer without such restoration; and it was the duty of the plaintiffs diligently to pursue the action, whether the issue be of law or of fact, and, as moving actors in the litigation, to take all steps necessary to secure a decision upon the demurrer; and it was not the duty of the defendant to do so.</p> <p>Id.—Injury Presumed from Unreasonable Delay—Injury Immaterial on Question of Abuse of Discretion.—The law presumes injury from unreasonable delay; but the inquiry whether the respondent suffered any material inconvenience or hardship by reason of the delay is immaterial upon the question whether the facts show an abuse of the discretion of the trial judge in dismissing the action for unreasonable delay in its prosecution.</p>

<p>Foreclosure of Mortgage—Assignment as Indemnity—Judgment of Cancellation—Assignee not Bound—Improper Plea in Bar.— In an action to foreclose a mortgage assigned to plaintiff to indemnify it against liability on a bond to stay execution against the defendant, pending an appeal by it, the judgment upon which was affirmed, a judgment rendered in another action, pending such appeal, in favor of defendant canceling such mortgage as against plaintiff’s assignor and the original payees, to which plaintiff was not a party, and of which he had no notice, and by which he is not bound, cannot be pleaded in bar to the foreclosure, and such plea was properly stricken out as constituting no defense thereto.</p> <p>Id.—Admissibility of Judgment—Bight of Defendant to Surplus Proceeds—Indemnity to Plaintiff.—The judgment, though no defense to the action, was properly admitted, in the interest of justice and equity, to establish the right of defendant, as against plaintiff’s assignor, to all the surplus proceeds of the sale under the foreclosure, after plaintiff is indemnified therefrom for the loss on its bond.</p> <p>Id.—Becitals of Judgment not Binding Plaintiff—Proper Findings to Contrary.—The plaintiff is not bound by any recitals in the judgment, and the court could properly make findings to the con- • trary to sustain the foreclosure.</p> <p>Id.—Mortgage to Directors of Corporation — Nonparticipation— Construction of Finding as to Authority.—A finding that the mortgage was made to two payees who were directors of the defendant corporation, who did not participate therein or vote therefor, “but that the majority of directors then remaining unanimously authorized the execution of said note and mortgage,” though it might have been more clearly phrased, is to be construed as a finding that a majority of all of the board of directors, considering the two payees as absent, were present and unanimously authorized the execution of said instruments.</p> <p>Id.—Construction of Findings to Support Judgment.—When, from the facts found by the court, other facts may be inferred to support the judgment, such inference will be deemed to have been made by the trial court, and any uncertainty in the findings is to be construed so as to support the judgment rather than to defeat it.</p> <p>Id.—Presumption of Lawful Meeting of Board—Absence of Express Finding.—Although there is no express finding as to whether the meeting of the board of directors was a regular meeting, or a regularly called special meeting, yet the presumption must be indulged that it was a lawful meeting of the board.</p> <p>Id.-—Defense of Payment of Mortgage Out of Special Eund—Immaterial Omission to Bind.—When the resolution authorizing the mortgage does not by its terms limit the right to compel payment of the mortgage out of any special fund, and the note by which the mortgage is secured is an unconditional promise to pay the sum set forth therein, the omission to find on a defense set forth that the mortgage was to be paid out of a special fund is immaterial.</p> <p>Id.—Assignee of Mortgage not Bound by Defense—Absence of Notice—-Adverse Terms of Resolution Immaterial.—Assuming that the terms of the resolution were adverse to the plaintiff, as assignee of the mortgage, yet since he had no notice of its contents he cannot be bound thereby, and a finding as to the defense arising from its terms would be immaterial as to the plaintiff, whatever its terms may be.</p> <p>Id.—Nonpayment of Note Secured—Presumption from Averments of Complaint—Burden of Proof—Binding not Required.—Where the complaint alleged the plaintiff was the owner and holder, of the note secured, the presumption is raised therefrom that the note has not been paid, and the burden is upon the party defending against the note to prove that it has been paid if such be his defense.</p> <p>Id.—Presumption upon Appeal—Absence of Evidence in Bill of Exceptions.—It would be the duty of the defendant appealing, if he had introduced evidence to show payment, to embody the same in the bill of exceptions, and when no such evidence appears, it must be presumed that there was no evidence to overcome the presumption of nonpayment.</p> <p>Id.—Validity of Mortgage to Minority of Directors—Ratification by Stockholders—Good Faith—General Rule.—Although- it is a rule that transactions between a director of a corporation as an individual and the corporation will always be subject to severe scrutiny and required to be characterized by the utmost good faith, yet a director may advance money to it, may become its creditor, may take from it a mortgage or security, and may enforce the same like any other creditor; and where a mortgage is made by a majority of the board of directors to the minority thereof who did not participate therein, and was executed in good faith and free from all taint of fraud, and was ratified by more than two-thirds of the stockholders, such mortgage is valid, and may be enforced by the assignee thereof for indemnity.</p> <p>Id.—Collusive Judgment Vacating Mortgage.—Although the judgment vacating the mortgage did not bind the plaintiff, yet the circumstances appearing upon its face indicating that it was rendered by consent of all the parties to the action afford ground of suspicion that it was collusively procured for the purpose of defeating the plaintiff’s indemnity against loss.</p>

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

<p>APPEAL from an order of the Superior Court of Kings County, dissolving a preliminary injunction. John J. Covert, Judge.</p> <p>The facts are stated in the opinion of the court,</p>

<p>Criminal Law—Appeal by People from Order Sustaining Demurrer —Insufficient Record.—Upon an appeal by the people from an order sustaining a demurrer to an information, where neither the information nor the demurrer showing the grounds thereof are incorporated in the bill of exceptions, there is no authenticated record from which it can be determined whether the court erred in its ruling on the demurrer, notwithstanding they are printed in the transcript.</p> <p>Id.—Statutory Mode of Review—Bill of Exceptions.—The only mode provided for a record upon appeal from an order sustaining a demurrer to an information is by a bill of exceptions, as provided in sections 1172 and 1174 of the Penal Code.</p>

<p>Action fob Balance of Accounts Due Assignors—Pleading—Common Counts—Indebitatus Assumpsit.—Where the complaint in an action by an assignee of numerous accounts sets forth in each count either that specified goods, wares and merchandise were between specified dates sold and delivered to defendant by plaintiff’s assignor, or that specified services were rendered to defendant by plaintiff’s assignor, and that there became due on each count a specified balance, that each of said accounts were sold and assigned to plaintiff for value, and that no part thereof has been paid, though it is not an exemplar of model pleading, yet it sufficiently states common counts in indebitatus assumpsit.</p> <p>Id.—Essential Requisites of Good Pleading.—The essential requisites of good pleading are that the matter pleaded must be clearly and distinctly stated, so it may be fully understood by the adverse party, the counsel, the jury and the judges, and especially as to the complaint, that the defendant may be enabled to plead the judgment rendered thereunder in bar of any further action for the same cause. It is held that the complaint in this case sufficiently complies with these requisites.</p> <p>Id.—Common Counts—Consideration, Request and Promise Implied. In an action on the common counts for goods sold and delivered, and for services rendered, the consideration, request and promise are implied, and it is not necessary to allege either specifically in the complaint.</p> <p>Id.—Breach op Contract—Averment of Nonpayment.—The averment of nonpayment of the balance due in each count of the complaint sufficiently alleges a breach of the contract therein set forth.</p> <p>Id.—Special Demurrer—Uncertainty as to Nature of Contract— Ruling not Prejudicial.—Though it is the better method of pleading to state the nature of the contract, whether it be express or based upon a quantum valebat or quantum meruit, yet the defendant was not prejudiced by the overruling of a special demurrer for uncertainty as to the nature of the contract, when, in view of the answer and trial, it cannot be said that such uncertainty affected the substantial rights of the parties.</p> <p>Id.—Insufficient Answer—Negative Pregnant—Absence of Proof at Trial—Defendant not Injured by Ruling upon Special Demurrer.—Where the answer raised no issue of fact as to the several counts of the complaint, and was insufficient as merely involving a negative pregnant, as to the amount of the indebtedness, thereby admitting indebtedness in any less amount; and where the defendant, at the trial, offered no evidence to prove that the claims pleaded by plaintiff did not exist, or that they were paid, it cannot be said that defendant was injured by the overruling of his special demurrer to the complaint, and he is not in a position to complain thereof upon appeal.</p> <p>Id.—Claim of Interest on Balances Alleged to be Due—Absence of Pleading by Defendant—General Finding—Support of Judgment.—Though an averment in the complaint that plaintiff claims interest on the balances alleged to be due, is not the best' pleading thereof, yet where the defendant neither interposed a special demurrer thereto, nor raised any issue as to interest in the answer, thereby admitting the claim of interest, a general finding that all the allegations of the complaint are true is sufficient to support an award of interest in the judgment from the time when the several claims pleaded became due and payable.</p> <p>Id.—Evidence—Assignments to Plaintiffs—Itemized Account of Indebtedness.—The court properly admitted in evidence the assignments to the plaintiff of the several claims alleged in the complaint; and where the purpose of their admission was not limited, and each assignment contained an itemized account of the indebtedness assigned, it was proper for the court to consider the same as evidence of the indebtedness assigned.</p> <p>Id.—Support of Findings.—Held, that the findings are sufficiently supported by the evidence, and the admission of the answer.</p> <p>Id.—Sufficiency of Assignments from Corporation by General Manager—Prima Facie Evidence—Burden of Proof.—Assignments of claims in favor of a corporation to the plaintiff, made in the name of the corporation by its general manager, are at least prima faeie evidence of the authority of the general manager, by virtue of his position, to execute the same, and it was incumbent upon the defendant to overcome the effeet of such proof, if he could do so.</p> <p>Id.—General Authority op Managing Agent.—In respect to the management of the business of a corporation, a general managing agent and superintendent of a corporation is the representative of the corporation, and may do in the transaction of its ordinary affairs what the corporation itself could do within the scope of its powers.</p>

<p>Mandamus—Services of Member of City Board of Equalization of Woodland—Municipal Ordinance Limiting Service.—The superior court properly refused a writ of mandate on behalf of a member of the hoard of equalization of the city of Woodland, to compel the president of the board of trustees to draw his warrant in favor of the petitioner for an excess of service beyond the time fixed by a municipal ordinance of that city limiting such service to the period of two weeks.</p> <p>Id.—Consistency of City Ordinance with Municipal Corporation Act.—Such municipal ordinance is not inconsistent with the municipal corporation act so far as it is applicable to the city of Wood- . land, which contains no limitation as to the time within which the city equalization shall he done and expresses nothing to show that the period of two weeks was not ample time in which to rectify all the returns from the city assessor.</p> <p>Id.—Construction of General Language of Act.—The general language of the act that the hoard “shall continue in session from day to day until all the returns of the assessor have been rectified” necessarily implies that the sessions should continue only so long as is necessary to accomplish this purpose, and does not import that the work should be indefinitely prolonged to the unnecessary expense of the city.</p> <p>Id.—Power of Board of Equalization—Limitation of Time as Trustees.—In the absence of any other legislation on the subject, perhaps the board of equalization might itself limit the time for its own action; but there is certainly nothing unreasonable in the view that legislative power has been committed to the members of the board acting in their capacity as a board of trustees to limit the period of their action to a reasonable time.</p> <p>Id.—Practical Effect of City Ordinance—Limitation of Period of Compensation.—The practical effect of the city ordinance is the same as if it only assumed to limit the period of compensation of the members of the hoard. The situation is the same as though the trustees had enacted one ordinance providing a per diem compensation for each member of the board of equalization while in attendance upon the meetings of the board, but the session shall continue two weeks if necessary, but no longer.</p> <p>Id.—Sufficiency of Two Weeks’ Time—Notice by Assessor to Taxpayers—Presumption.—It does not appear that the period of two weeks is not sufficient to pass upon the claims of all taxpayers, since there is nothing in the ordinance to prevent the assessor from giving notice that the board will remain in session for two weeks if necessary, and that each taxpayer who desires to be heard must be present on the first day and from day to day, if required, until the returns are rectified. It is presumed that the assessor pursues this course, and that two weeks is ample time in which to complete the work.</p> <p>Id.—Acts of Board Beyond Limited Time not Void—Compensation Limited.—Though the acts of the board of equalization, beyond the two weeks fixed, are not void, and in that respect the ordinance may be subject to the provisions of section 3385 of the Political Code, yet this would not disturb the conclusion that the members of the board are bound by the terms of the ordinance as to their compensation.</p> <p>Id.—Action of Board of Trustees in Making Excessive Allowance not Conclusive.—The action of the board of trustees in making an excessive allowance forbidden by its ordinance is not conclusive.</p>

<p>Maitdamus—Change of Place of Trial—Pendency of Contempt Proceedings—Violation of Injunction.—Mandamus will not lie to compel a superior court to change the place of trial to the county in which the defendants reside, where the ultimate right of the defendants to such change is not questioned by the court, but is merely held in abeyance pending proceedings for contempt against the defendants for violation of an injunction issued against them prior to the motion for the change of the place of trial.</p> <p>Id.—Rule as to Treatment of Parties in Contempt.—It is a settled rule that courts will not hear parties or issue orders or process in favor of litigants when they are in contempt of court until a reasonable time has expired, and the parties have been allowed to show cause, and either purged themselves of contempt or punished for such contempt.</p>

<p>Quo Warranto Against High School District—Judgment Establishing Legality—Review upon Appeal.—Where, in an action of quo warranto against a high school district to establish the illegality of its formation, the judgment declared it to be a de jure high school district organized and existing under the laws of the state of California, and an appeal is taken from the judgment-roll without any bill of exceptions, the findings of fact must be regarded as supported by the evidence and absolutely true, and it must be presumed that rulings by the court as to the admission and exclusion of evidence were correct, and the only subject of review is whether or not the findings are consistent, and support the judgment.</p> <p>Id.—Complaint Alleging Absence op Records and Noncompliance with Law—Findings Establishing Existence, Loss and Compliance.—Where the complaint alleged' nonexistence of any record of organization of the high school district defendant, and its noncompliance with law, findings establishing its full compliance with the law in 1896, and the loss of the records, and that for a period of more tha.n ten years it" has continuously since claimed to be and has acted as a regularly authorized and organized school district, are conclusive as to the facts.</p> <p>Id.—Conclusion op Law—Statute Curing all Defects.—The court properly incorporated in its conclusions of law “that if any defect of- any kind existed in its organization, such defect was cured by operation of law, and particularly by reason of the provisions of subdivision 11 of section 1671 of the Political Code.”</p> <p>Id.—Power op Legislature to Pass Curative Acts.—The legislature also passed another curative act in March, 1901 (Stats. 1901, p. 299). The legislature possesses the power to pass acts curing the failure of a high school district to comply with the statutory requirements for its formation.</p>

<p>Prohibition—Want or Jurisdiction—Adequate Remedy at Law.— Want of jurisdiction is an insufficient ground for issuing a writ of prohibition, if there be a plain, speedy and adequate remedy at law.</p> <p>Id.—Improper Writ prom Superior Court to Justice’s Court or Another County—Service or Summons Out or County—Absence or Written Contract.—The superior court of the county of the petitioner improperly issued the writ of prohibition to the justice’s court of the city and county of San Francisco for its want of jurisdietion to serve its summons out of its county upon the petitioner in an action not based upon a written contract, since the petitioner had an adequate remedy at law.</p> <p>Id.—Available Legal Remedy—Motion to Quash Service op Summons—Appeal.—The petitioner for the writ of prohibition had the available adequate remedy at law to move in the justice’s court in which the action was commenced to quash the service of the summons, and if he should fail, the remedy by appeal was available to him.</p> <p>Id.—Necessity op Calling Attention op Court to Excess op Jurisdiction.—It is a settled rule that the writ of prohibition will not lie, unless the attention of the court whose proceedings are sought to be stayed has been called to the alleged excess of jurisdiction.</p>

<p>Criminal Law—Grand Larceny—Theft of Horses—Support of Verdict—Testimony of Accomplice—Corroboration.—The testimony of an accomplice to the crime of grand larceny charged against the-defendant, in the theft of horses, is sufficiently corroborated to sustain a verdict of conviction when, if his evidence be considered as-eliminated, the conclusion is irresistible that there is evidence in-the record tending to connect the defendant with the commission of" the crime, as required by section 1111 of the Penal Code.</p> <p>Id.—Admissions •Tending to' Connect Defendant with Crime.—Admissions made by the defendant, which tend strongly to connect him. with the larceny for which he is on trial, are a sufficient corroboration of the testimony of an accomplice introduced by the prosecution, to sustain a conviction.</p>

<p>Criminal Law—Murder—Instruction as to Verdict—Degrees of Offense—Verdict for Manslaughter.—Upon a trial for murder, where there is evidence from which the defendant might be and was convicted of manslaughter, the court properly instructed the jury to the effect that if they believed from the evidence beyond a reasonable doubt that defendant was guilty of any offense, they might find him guilty of murder in the -first degree or murder in the second degree or manslaughter, notwithstanding defendant’s claim that the killing was only murder in the first degree, and that the only question for the jury was as to his identity with the one who did the killing, which he claimed he did not commit, and that he was prejudiced by a compromise verdict for manslaughter. '</p> <p>Id.—Exclusion of Opinion Evidence—Powder Marks on Face of Deceased — Immateriality—Qualification not Shown.—Where there is no dispute in the evidence as to powder marks on the face of the deceased, and there is no theory of the case upon which the question as to the distance of the party who did the killing from the body of the deceased, at the time the shots were fired, could be material, it was not error for the court to exclude opinion evidence asked of a physician as to the distance of the muzzle of the pistol from the face of the deceased when the shots were fired in order to produce such marks, especially where the evidence does not show that the witness was qualified to give an opinion upon that question.</p>

<p>APPEAL from an order of the Superior Court of Sacramento County changing the place of trial of an action. C. N. Post, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Judgment by Default—Motion to Vacate—Discretion—Review upon .Appeal.—A motion to vacate a judgment by default for alleged mistake, inadvertence or excusable neglect of the defendant rests largely in the discretion of the trial court; and it is only where it plainly appears that such discretion has been abused that this court will interfere. Its action in denying the motion will be sustained where no such abuse of discretion appears.</p> <p>Id.—Discretion not Abused—Cross Carelessness—Summons Unheeded—Attorney not Employed.—Where the defendant was guilty of gross carelessness in not heeding the summons which required Mm to appear and answer witMn tMrty days, and in employing no attorney until tMrty days after the entry of the judgment by default against Mm, the court did not abuse its discretion in refusing to set aside the judgment by default.</p> <p>Id.—Conflicting Affidavits—Presumption upon Appeal.—Where the affidavit of the defendant sets forth an agreement of plaintiff’s attorney to notify defendant of the time for trial, and that he rested without answer on thp-t agreement, and plaintiff’s attorney, in a counter-affidavit, demes any such conversation or agreement, and states that he notified defendant that he would have to file his answer and should get an attorney, which he declined to do, stating that he would be his own attorney, this court must presume that the trial court believed the statements made in the affidavit of plaintiff’s attorney.</p> <p>Id.—Willful Slumbering upon Eights—Flimsy Excuses—Duty of Defendant.—Where a party willfully slumbers upon Ms rights when he should be alert, and makes no efforts to protect himself, courts cannot patiently listen to flimsy excuses and the claim of ignorance of law. It was the duty of the defendant to read the summons and to heed it.</p>

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

<p>Change op Place op Trial—Transitory Action Against Corporation —Principal Place op Business—Residence op Corporation.— The residence of a domestic corporation is at its principal place of business; and when it is sued in a transitory action in a county other than its principal place of business it has the right, when it appears and demurs, to demand a change of the place of trial to the county where it has its principal place of business, if no other ground for retaining the action appears.</p> <p>Id.—Suit por Damages por Fraud op Agent in Sale op Stock—Transitory Action.—An action to recover damages for the false and fraudulent representations alleged to have been made by the authorized agent of defendant in the county of the original venue, relating to the sale of certain shares of stock in defendant corporation, is a personal or transitory action, within the provisions of sections 395 and 397 of the Code of Civil Procedure as to change of place of trial.</p> <p>Id.—Inapplicability op Constitutional Provisions.—Where it cannot be said, from any facts set forth in the complaint, that the contract involved was made, or was to be performed, or that the alleged liability arose, or breach occurred in the county where the action was commenced, the provisions of section 16 of article XII of the constitution as to suability of corporations, in those eases, are inapplicable; and the provision for action at its principal place of business is the only provision which here applies, that fact being shown by the affidavit and demand for change of the place of trial.</p>

<p>Foreclosure of Mortgage—Proper Allowance of Attorneys’ Fees.— Where a mortgage sought to be foreclosed stipulated for attorneys’ fees, and the court found against each defense set up in the answer against the attorneys’ fees, the court properly allowed the stipulated attorneys’ fees upon such foreclosure.</p> <p>Id.—Insufficient Defense—Deed of Trust from Defendant’s Predecessor—Payment of Debt not Alleged—Conditional Pelease.— No sufficient defense against attorney’s fees is shown by an answer pleading a deed of trust from defendant’s predecessor to plaintiff, of which a release is claimed by defendant, on condition of paying the mortgage, which does not allege payment of the debt secured by the deed of trust, nor show that it is not rightfully an existing encumbrance on the land.</p> <p>Id.—Appeal on Judgment-roll—Conclusiveness of Findings.—Where the appeal is on the judgment-roll, the findings of the court against the defendant appealing are conclusive.</p> <p>Id.—Findings—Absence of Tender—Willingness or Ability to Pay Mortgage Before Suit.—-The findings of the court against averments in the answer that the defendant tendered and offered in writing before suit to pay the mortgage on condition of releasing the deed of trust, and that defendant was willing and able to pay the same upon such condition, negativing each of such averments, or that defendant was willing or able to pay said mortgage upon any condition, or at all, establish that no valid tender or offer was made before suit.</p> <p>Id.—Insufficient Tender in Answer.—A tender made in the answer cannot defeat the right to attorneys’ fees, where no money was deposited in court with the tender, and no averment of defendant’s ability to make the tender good was alleged in the answer, and no offer was made under section 997 of the Code of Civil Procedure, to allow judgment to be taken for the amount due with costs incurred.</p> <p>Id.—Requirements as to Offer of Performance.—An offer of performance must he made in good faith and in the manner most likely to benefit the creditor, and must be free from any conditions which the creditor is not bound on Ms part to perform, and is of no effect if the person making it is not able and willing to perform according to the offer.</p>

<p>APPEAL from a judgment of the Superior Court of Humboldt County. GL W. Hunter, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>San Francisco Charter—Restriction of Employment—Independent Contractor—Removal of Garbage from School Buildings and Grounds.—The restriction of the San Francisco charter that “all deputies, clerks, assistants, and other employees of said city and county must be citizens of the United States, and must during their respective terms of office or employment actually reside in the city and county, and must have so resided for one year next preceding their appointment,” does not apply to an independent contractor employed by the board of education to remove garbage from the school buildings and grounds in said city and county, he being the lowest bidder therefor under a contract for a monthly sum, by the terms of which he was to furnish Ms men, wagons and teams, and select his own time for doing the work, provided he did it according to the contract.</p> <p>Id.—Power of Board of Education.—The board of education had power to let the contract for the removal of garbage from the school buildings and grounds to the lowest responsible bidder, as an independent contractor.</p> <p>Id.-—Statutory Construction—“Independent Contractor” not an “Employee.”—A statute like the present charter, wMch restrains the right of a municipal corporation to “employ” certain classes of persons must be given no broader construction than its words imply. Any “independent contractor” who ordinarily selects Ms own materials, and furnishes his own means of carrying out Ms contract, cannot be considered an “employee” in the ordinary meaning of that term.</p> <p>Id.—Injunction Properly Refused at Suit of Taxpayer and Rival Bidder.—An injunction was properly refused, at suit of a taxpayer of the city and county, who was also a rival bidder, to restrain the auditor and treasurer of the city and county from paying the monthly sum allowed to the independent contractor, to whom the bid was awarded by the board of education, as being the lowest bidder.</p>

<p>Corporations—Action for Services—Employment by Secretary and General Manager—Articles of Incorporation—Improper Exclusion of Account.—Where, in an action for services rendered to a corporation, an account stated, as “in accordance with terms of hiring,” signed by one who designates himself as “secretary and general manager,” and who at that time appeared from the articles of incorporation previously introduced in evidence to be designated therein as “secretary and general manager,” until the next annual meeting, no by-laws having been adopted at the time of signing such account, it was error to exclude the same from evidence, on the ground that the secretary had no authority as general manager to make the contract of hiring.</p> <p>Id.—Admissibility of Account Stated—Authority of Secretary.— The admissibility of the writing as an account stated did not necessarily depend upon the original making of the contract; and such account stated, being a matter relative to the bookkeeping of the corporation, was clearly within the duties and authority of the secretary as such. And it was admissible on that ground, as a “pay-roll,” a “time-sheet,” or an “account stated,” and it was error to exclude it as the act of the secretary.</p> <p>Id.—Findings Against Evidence.—Since the evidence showed that at the time of the employment of plaintiff, as well as of the account stated, the person signing it was, by the articles of incorporation in evidence, authorized to act for the defendant as general manager, and did employ the plaintiff and promise to pay him as alleged, the findings to the contrary, based upon the mere adoption of subsequent by-laws making the president the chief executive officer of the company, were against the evidence.</p> <p>Id.—Matters of Surprise and Irregularity not Involved.—Where there is no specification in the motion for a new trial, connected with a change in the ruling of the court to defendant’s surprise, or as constituting an irregularity of the court, under the appropriate subdivisions of section 657 of the Code of Civil Procedure, those matters cannot be considered upon the appeal.</p>

<p>APPEAL from a judgment of the Superior Court of Los Angeles County, and from orders denying a motion to strike out defendant’s answer and cross-complaint, and a motion to set aside a default judgment entered on the cross-complaint. N. P. Conrey, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

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

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

<p>Criminal Law—Murder—Instruction as to Self-defense and Reasonable Doubt—Refusal not Prejudicial—Request Covered by Others Given.—In a prosecution for murder, if it be conceded that there was testimony warranting a requested instruction to the jury that “if you are not convinced beyond all reasonable doubt and to a moral certainty that the defendant did not act in self-defense you will return a verdict of not guilty,” the refusal thereof was not prejudicial, where other requests given fully and fairly instructed the jury as to the law of self-defense and the right to act upon appearances, and as to the law of reasonable doubt as to every fact essential to a conviction, and where, the killing being conceded, the instruction as to reasonable doubt could only apply as to whether the defendant killed the deceased in self-defense.</p> <p>Id.—Entire Instructions Considered.—We must look to the entire instructions given by the court, in order to determine whether or not the refusal to give any single instruction was prejudicial to the defendant. Although an instruction may not be given in the exact language in which it was asked, yet if, by an examination of the entire record, and the instructions as given by the court, it appears that the jury were fairly instructed upon the point upon which a single instruction was refused, such refusal will not be erroneous.</p>

MOTION to dismiss an appeal from a judgment of the Superior Court of Modoc County. N. D. Amot, Judge presiding. The facts are stated in the opinion of the court.

<p>Criminal Law—Rape upon Young Girl—Re-examination op Prosecutrix upon Testimony in Chief—Discretion.—Upon a trial for rape charged to have been committed upon a young girl, where she had become confused upon cross-examination, it was within the discretion of the trial court to permit the district attorney to permit the prosecutrix to be re-examined as to matters testified to by her in chief. Where no abuse of discretion appears, but the record shows a proper exercise of the court’s discretion, its action will not be disturbed upon appeal.</p> <p>Id.—Support op Verdict—Attempt to Commit Rape.—Where the evidence clearly shows that the conduct of the defendant with the young girl was bestial, and was such as justified an inference that he attempted to commit rape upon her without accomplishing actual penetration, and that matter was fairly submitted to the jury under appropriate instructions, the question was primarily for the jury to determine, and their verdict of guilty of an attempt to commit rape is sufficiently supported, and will not be interfered with upon appeal.</p>

<p>Railroad Companies—Operation op Railroad by Lessee—Duty to Fence Track—Injury to Stock—Liability por Negligence.—A railroad company which operates a railroad as lessee thereof has the same duty as would be imposed upon the lessor, if operating the same, to keep its tracks properly fenced and in suitable repair, as required by section 485 of the Civil Code, and for negligence in failing to do so the lessee is liable to the owner for injury to or loss of any domestic animals escaping upon the track without the fault of the owner thereof.</p> <p>Id.—Construction op Statute—Gates Part op Fence.—Gates constructed in connection with the fence for the convenience of the owner of the adjacent property are a part of the fence, and the railroad company is under the same duty to erect the gates in the first instance and keep them in repair as it is in regard to any other part of the fence; and they must be so securely adjusted that animals cannot, by pressing against them, cause them to open and escape upon the track.</p> <p>Id.—Prima Facie Case op Negligence.—Where there was evidence that the gate on plaintiff’s land was out of repair and was not good and sufficient for the purpose, and that defendant had notice of that fact, and that needed repairs requested were not made until after the loss and injury to animals escaping through the defective gate, without the fault of their owner, such facts, unexplained, made a prima facie ease of negligence against the defendant.</p> <p>Id.—Plaintiff not Required to Explain Opening op Gate—Burden op Proof.—Plaintiff was not required to explain how the defective gate came to be open; but it being known by the defendant to be defective, and sufficient time having elapsed to make the necessary repairs, the burden was upon the defendant to show that plaintiff’s mules, which may have pushed open the gate, did not escape through defendant’s negligence; and if it failed to sustain such burden, it failed to excuse its negligence.</p> <p>Id.—Opening op Defective Gate by Animals—Liability op Depend-ant Unaffected.—The fact that the defective gate which could not be securely fastened was pushed open by plaintiff’s animals could not affect the liability of the railroad company for the killing or maiming of the same, after having been charged with notice of the defective condition of the gate.</p> <p>Td.—Instructions—Bequest as to Nonsuit and Fence—Modification —Negligence as to Gate and Condition.—It appearing that a non-suit had been granted as to a second cause of action merely for negligent operation of defendant’s ears, and that the jury were properly instructed as to the nature of the cause of action to be considered/ the court properly modified a requested instruction stating the fact of such nonsuit, and that the only question to be considered by the jury was “whether defendant has or has not maintained a good and sufficient fence along its right of way,” by omitting all reference to such nonsuit, and giving in lieu of the request: “You are not to consider any testimony as to carelessness or negligence except as relates to the gate and its condition.”</p> <p>Id.—Sufficiency of Complaint.—Held, that the complaint is sufficient to charge the defendant with liability. It was not necessary tu allege that the defendant was the owner of the railroad.</p> <p>Id.—Motion for Nonsuit—Beview upon Appeal from Order Denying New Trial.—It is held that the motion for a nonsuit for insufficiency of the evidence for the plaintiff was properly overruled; but that the ruling thereupon is reviewable upon appeal from an order denying a motion for a new trial.</p>

<p>Notes—Action Against Payee as Indorses—Defense—Delivery to Agent of Maker—Cancellation of Debt—Support of Findings and Judgment.—In an action by the administrator of a deceased holder of notes against the payee as indorser thereof, an answer to the effect that the notes were never delivered to the decedent personally, but were delivered to him solely as agent of the corporation maker thereof, to which it was intended and agreed that they should be delivered and applied solely in reduction of the indebtedness of the corporation to the payee, discloses a sufficient-defense to the action, and a finding in favor of such defense upon sufficient evidence conclusively supports a judgment for the defendant.</p> <p>Id.—Effect of Transfer of Note by Maker to Agent—Assent of Payee—Advances by Agent—Benefit of Mortgage Security— Bight of Action not Transferred.—Where the payee held other notes, which with those surrendered were secured by mortgage of the maker, an agreement between the agent and the corporation maker, assented to by the payee, that if such notes were surrendered in reduction of its indebtedness the agent would advance needed moneys to the corporation and take the surrendered notes, with benefit of the mortgage security pro tanto, to secure the same, while it had the effect to keep the notes alive, which would otherwise be extinguished, could not have the effect to transfer any right of action against the payee as indorser, since the title of the transferee comes solely from the corporation, which had no such right of action to transfer.</p> <p>Id.—Decision upon Former Appeal upon Same Facts—Law of Case. The decision upon a former appeal upon the same facts which appear upon this appeal is the law of the ease.</p> <p>Id.—Amendment of Answer—Close of Plaintiff’s Evidence—Evidentiary Matter Bearing upon Main Issue—Credits of Interest.—The court properly allowed the defendant at the close of the plaintiff’s evidence, to which he had offered evidence as to credits of interest paid, to amend his answer so as to take issue upon such payments, which related to mere evidentiary matter as bearing on the main issue as to whether' the notes were indorsed and surrendered for the purpose of cancellation, and not with the intention that they should become the agent’s property with liability over against the defendant as indorser.</p> <p>Id.—Liberality in Allowance of Amendments.—Courts are liberal in the allowance of amendments, at all stages, where the rights of the adverse party are not unduly prejudiced.</p> <p>Id.—Evidence—Agreement with Agent as to Surrender of Notes— Terms of Notes not Varied.—The court properly admitted parol evidence to show the agreement between the defendant and the agent as to the surrender of the notes. It did not have the effect to contradict nor vary the terms of the notes, nor to add a new term thereto, but merely to show that the notes were canceled and ceased to have operative effect.</p> <p>Id.—Want of Consideration—Pleading—Admission of Execution and Genuineness.—Where want of consideration for the indorsement of the notes is pleaded, it may be proved, notwithstanding admissions of the execution and genuineness of the notes for failure to deny them.</p> <p>Id.—Absence of Prejudicial Error.—Held, that even if error were conceded, there is no prejudicial ruling in the case, which would affect the substantial rights of the annellant, or which would justify a reversal of the case.</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. Jas. M. Troutt, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

MOTION of respondent to dismiss an appeal from an order of the Superior Court of Orange County, dismissing an appeal from the Justice’s Court of Huntington Beach Township. Z. B. West, Judge. The facts are stated in the opinion of the court.

<p>Sales—Breach op Warranty op Quality—Measure op Damages— Code Bule—Hature and Intention op Bule.—When personal property is sold under a warranty of quality, and the purchaser retains its possession, the measure of damages for a breach of such warranty is that fixed by section 3313 of the Civil Code, which “is deemed to be the excess, if any, which the value would have had, at the time to which the warranty referred, if it had been complied with, over its actual value at that time.” This is a simple, plain rule, which eliminates all imaginary claims to damages in such cases, and is intended to do justice to both seller and buyer.</p> <p>Id.—Justice to Seller—Agreed Price Less Excess of Value.—The law is just when it allows the party who has delivered personal property of a different quality from that which it had agreed to deliver, and which is retained by the purchaser, to recover the agreed price, less the excess of value which the property would have had at the time of delivery, if it had equaled the quality warranted over its actual value at that time.</p> <p>Id.—Code Bule Declarative op General Law.—The code rule as to the measure of damages for breach of warranty of quality of goods sold and delivered to the purchaser is merely declarative as to the rule long established in England and since adopted in most of the leading eases in the United States.</p> <p>Id.—Warranty Beperring to Time op Delivery.—When the warranty, as in this ease, refers to the time of the delivery of the goods sold, the first question to be determined is as to what was the actual value of the property at that time; and then it must be determined what excess over that value would have been realized if the warranty had been complied with at that time.</p> <p>Id.—Appeal upon Judgment-roll—Record—Conclusiveness op Findings as to Measure op Damages—Finding op Further Loss— Surplusage—Presumption.—Where the appeal is upon the judgment-roll without a bill of exceptions or statement specifying insufficiency of the evidence, the specific findings as to the value of the property sold at the time of delivery, and as to the excess over that value which would then have been realized if the warranty had been complied with, are conclusive as to the total measure of damages; and a separate finding as to loss by the defendant appealing in net profits, premiums, cartage and storage, must be deemed surplusage as to the measure of damages. It must be presumed, in support of the judgment, that such loss was incurred by defendant in keeping the property longer than he should have done before selling it.</p>

<p>Street Improvements—Construction op Sidewalks—Effect of Sidewalk Act—Repeal of Yrooman Act Pro Tanto—Exclusive Method.—The sidewalk act of March 6, 1909, expressly repealed so mueh of the Yrooman act as relates to sidewalks, and provides an exclusive method, so far as respects the construction of sidewalks. It contains a new and complete scheme for constructing sidewalks, and assessing the entire cost thereof on the frontage on the same side of the street that the sidewalk is laid, and thereby relieves the property on the other side of the street from the burden thereof, as contemplated by the Yrooman act.</p> <p>Id.—Completeness of Sidewalk Scheme—Substituted Method Inconsistent with Yrooman Act.—Taking into consideration all of the elements of the scheme established by the sidewalk act, rendering it a complete scheme in that regard, the inference is justifled that it was intended to repeal the Vrooman aet by the sidewalk aet, independent of the express repeal, not so much by implied repeal as by the adoption of a substituted method inconsistent with the Vrooman act.</p> <p>Id.—Changes in Vrooman Act—Construction Against Implied Repeal of Special Sidewalk Act.—Since special laws are never to be deemed repealed by the amendment of general legislation, except upon the most unequivocal manifestation of intent to that effect, amendments made in the Vrooman act at the same session of the legislature at which the special sidewalk act was passed are to be construed as not implying a repeal of the special sidewalk act. Id.—Special Object of Change in Vrooman Act — Presumption Against Change of Prior Law.—Where the evident object of the amendment to the Vrooman act was to strike out a clause relating to the change of grades, the fact that a part of the original section as to sidewalks repealed by the sidewalk act was inserted in copying the whole section for such amendment, cannot, in view of the presumption against any intended change in other respects under section 325 of the Political Code, be deemed to work a repeal of the special sidewalk act by implication.</p> <p>Id.—Unconstitutional Amendment.—An unconstitutional amendment of the Vrooman aet is not entitled to much weight as indicating the intention of the legislature as to the construction of that act on the subject of sidewalks.</p> <p>Id.—Mandamus.—Held, that mandamus will not lie to compel the enforcement of an ordinance for the construction of sidewalks, based upon the Vrooman act, as distinguished from the special sidewalk act.</p>

<p>Attachment—Undertaking—Exception to Sureties—Failure of One Surety to Justify—Substitution of Corporation Surety —Waiver of Objection.—Where the sureties on an undertaking for attachment were excepted to, and one of them justified, but the other failed to justify, the plaintiff properly presented a new corporation surety, which the defendant was entitled to examine as to its sufficiency, and where there is nothing to show that he questioned its sufficiency, or was denied the right to examine the same, the facts show a waiver on the part of defendant of other than the prima facie justification made by presenting and filing an undertaking duly executed by such new surety.</p> <p>Ib.—Appeal from Order Defusing to Vacate Attachment—New Bond not Incorporated in Record—Presumption.—Upon appeal from an order refusing to vacate the attachment for failure of one of the sureties to justify or of the new surety to justify, where the new bond is not incorporated in the record it must be presumed, in the absence of a contrary showing, that the new bond was in due form, and in the execution thereof and conditions of its terms, fully complied with the requirements prescribed by law.</p>

<p>Unlawful Entry and Forcible Detainer—Pleading—Insufficient Answer.—Where the complaint in an action for unlawful entry and forcible detainer alleges plaintiff's possession and right of possession of an eighty aere tract of land on a date stated, and for a long time prior thereto, the entry without right thereon by defendant and his subsequent withholding of possession from plaintiff, after service of notice to vacate and surrender the same, an answer denying that plaintiff was in the lawful possession of the entire tract at the date stated, and denying the entry and withholding of possession without right, is insufficient to raise an issue.</p> <p>Id.—Trial upon Original Answer—Failure of Defendant to Justify Acts—New Insufficient Answer—Motion for New Trial —Admission Considered.—Where a trial was had upon the original answer without objection thereto, but defendant failed to justify his acts, and was allowed to file a new answer, which also raised no issues, the court, in passing upon his motion for a new trial, properly considered the admission made by his other failure to deny the material allegations of the complaint.</p> <p>Id.—Bight of Plaintiff to Judgment upon Pleadings—Insufficiency of Evidence Immaterial.—The averments of the complaint not being denied, plaintiff was entitled to judgment upon the pleadings, and a judgment so sustainable cannot be reversed for insufficiency of the evidence for plaintiff adduced upon the trial.</p> <p>Id.—Doctrine of Equitable Estoppel Inapplicable.—Upon the facts appearing, the defendant is in no condition to claim the doctrine of equitable estoppel against the plaintiff, he having failed to introduce any evidence to contradict the allegations of the complaint or to justify his acts, or to raise any issue upon the complaint, when allowed to do so at the trial, and there being nothing to indicate that he was misled by the failure of the plaintiff to object to his first answer upon the trial.</p> <p>Id.—Irregularities Occurring at Trial—Affidavit not Embodied in Bill of Exceptions.—An affidavit relating to irregularities occurring at the trial cannot be considered, where the same is not incorporated in a bill of exceptions.</p> <p>Id.—Motion for Nonsuit—Beview upon Appeal from Order Denying New Trial—Argument—Insufficiency of Complaint.—Conceding that a motion for a nonsuit improperly refused is reviewable upon appeal from an order denying a new trial as an error of law, yet it appears that the grounds stated in the record upon the motion are not those presented by the brief of appellant’s counsel, and in so far as the application is based upon the insufficiency of the complaint to sustain the judgment, it cannot be considered upon such appeal, and is reviewable only upon appeal from the judgment. [Ruling on order denying rehearing.]</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. Jas. M. Troutt, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>APPEAL from an order of the Superior Court of Santa Clara County denying a new trial. John E. Richards, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Trüst—Contract Between Distributees'—Guardian of Minor Made Trustee—Reports—Payments—Expiration of Term—-Moot Question.—Where, by the terms of a trust agreement made before distribution, the guardian of a minor is made trustee of the whole estate, during his minority, with duty to make annual reports to the court and monthly reports to the beneficiaries, and to pay each of them a stated sum monthly, and to distribute all surplus rents annually, after deduction of necessary expenses besides six per cent on all sums collected allowed to the trustees, the trust to terminate when the minor becomes of age, or dies prior thereto, if it appears that he has become of age, the construction of the trust agreement, as to its nature, effect, or validity, has become a merely abstract ,pr moot question, which will not be passed upon.</p> <p>Id.—Transfer by Adult Beneficiaries During Trust—Rights of Successor.—The adult beneficiaries had the clear right to transfer all their beneficial interests during the trust, and their successor became thereby vested with all of their rights under the trust agreement, to the payments thereby required to be made, independently of the question- whether the adult trustees or their successor had or had not the right to terminate the trust agreement at any time and collect the whole share of rents pertaining to their interests.</p> <p>Id.—Demand of Right to Rents—Refusal—Collection by Trustee Without Accounting—Right of Action by Successor.—Where the successor made demand of the right to collect the share of the rents pertaining to the rights assigned, which demand was refused, and the trustee proceeded to collect all of the rents as before and retained the same without any payments to the successor under the terms of the agreement, or any accounting thereunder, the successor is entitled at least to sue for an accounting.</p> <p>'Id.—Sufficiency of Complaint—Single Cause of Action—Demurrer Improperly Sustained.—Where the complaint by the successor of the adult claimants states a single cause of action for the withholding of rents to which he was entitled without his authority or consent, and shews no ground of special demurrer, the court improperly sustained a demurrer thereto.</p> <p>Id.—Bight to Belief.—The court may grant any relief, and as many kinds of relief, as are consistent with the cause of action stated, and it cannot be objected to the complaint that such kinds of relief-are asked for.</p>

<p>Criminal Law—Order Sustaining Demurrer to Indictment— Appeal — Bill of Exceptions — Lawful Settlement Essential.—The only way in which an order sustaining a demurrer to an indictment can be reviewed upon appeal by the people is upon a bill of exceptions lawfully settled by a judge authorized to settle the same; and in the absence of a bill of exceptions so settled, the order must be affirmed for want of any legal record from which it can be determined whether or not the court erred in its ruling.</p> <p>Id.—Unauthorized Settlement by New Judge.—The statute does not authorize the settlement of a bill of exceptions by the successor of the judge who parsed upon the demurrer to the indictment; and such bill settled by a judge who was not in office at that time is without authority, and cannot be considered upon appeal.</p> <p>Id.—Judicial Notice of Accession of Judge to Office and Signature to Bill of Exceptions.—This court is required, under</p> <p>section 1875 of the Code of Civil Procedure, to take judicial notice of the accession of a superior judge to office and of his signature to the bill of exceptions, and that Ms accession was subsequent to the order sustaining the demurrer to the indictment.</p> <p>Id.—Authority of Judge to Settle Bill After Term—Proof in Appellate Court.—The superior judge who passed upon the demurrer to the indictment is authorized to settle the bill of exceptions after the close of Ms term; but if he declines to settle it, the bill of exceptions may be proved in tMs court and then filed in the superior court as the authorized bill of exceptions.</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. E. P. Mogan, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Action for Value of Unused Bags—Authorized Accounting to Third Person—Law of Case—Proper Finding and Judgment.— In an action for the value of unused bags not returned to plaintiff’s assignor, where the evidence, without conflict, is the same as upon the last appeal, upon which "it was determined that defendant was authorized, and in duty required to account for the same to a third party, and that such third party accepted the same and offered them for sale, the trial court could not do otherwise, under the law of the case, than to find for the defendant, and enter judgment accordingly, upon that cause of action.</p> <p>Id.—Count for Monet Had and Received—Finding Against Evidence—Reversal.—In a count for money had and received, where the evidence for the plaintiff is without conflict showing the balance due to plaintiff’s assignor for money advanced upon a shipment of oats by the defendant in excess of the net proceeds thereof, the finding and judgment for defendant on that count must be reversed and the action retried thereon.</p>

<p>APPEAL by plaintiffs from an order denying to them a new trial and appeal by defendants from a judgment of the Superior Court of Orange. County and from an order denying to them a new trial. Z. B. West, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

M. C. Sloss, Judge. The ease was commenced in Department No. 8, of which George A. Sturtevant is judge; but the trial was had solely before M. C. Sloss, Judge, who made the findings and settled the statement. Further facts are stated in the opinion of the court.

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

<p>Prohibition—Jurisdiction or Los Angeles Police Court—Misdemeanor Under Cartwright Law—Code Penalty Exceeded— Repeal by Act Establishing Court.—Prohibition will not lie to prevent the police court of the city of Los Angeles from punishing a misdemeanor committed under the Cartwright law forbidding conspiracies against trade, on the ground that the penalty affixed thereby exceeds the limit fixed by section 4426 of the Political Code, it appearing that that section was repealed by section 2 of the act of 1901 establishing that court, and giving it jurisdiction of all misdemeanors.</p> <p>Id.—Misdemeanor Defined.—Misdemeanors are not defined as being punishable by fine or imprisonment in the city or county jail, but are those offenses for which the penalty imposed, whatever it be, is other than death or imprisonment in the state prison.</p> <p>I'd.—Constitutionality op Act Creating Los Angeles Police Court— Classification.—The act creating the police court of Los Angeles is not special legislation, but is based upon the classification of cities of the one and one-half class, and is a general law applicable to all cities of that class, and as it confers exclusive jurisdiction of all misdemeanors upon the police courts in all cities of that class, it repeals section 4226 of the Political Code, so far as it applies to such court in cities included in that class.</p> <p>• Id.—Extent op Power to Classify Cities.—The power to classify cities is not limited to purposes of regulating their incorporation and organization, but includes the -purpose of supplying the general laws required by the varying needs of the municipalities so classified.</p> <p>Id.—Plage op Imprisonment.—Although the Cartwright law does not fix any place of imprisonment, it is sufficient that the classification act provides for imprisonment in the city jail, and it is the duty of the court so to provide.</p> <p>Id.—Construction of Cartwright Law.—Held, that the provisions of the Cartwright law do not indicate that it was not the intention that the police court of the city of Los Angeles should not have jurisdiction of a complaint for a misdemeanor under that act, though its phraseology indicates that in some jurisdictions the offense may be triable in the superior court by information or indictment.</p>

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

<p>APPEAL from a judgment of the Superior Court of Monterey County. John E. Richards, Judge presiding.</p> <p>The facts are stated in the opinion of the court.</p>

<p>APPEAL from a judgment of the Superior Court of San Diego County, and from an order denying a new trial. E. S. Torrance,- Judge.</p> <p>The facts are stated in the opinion of the court.</p>

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

<p>MOTION to dismiss an appeal from a judgment of the Superior Court of the City and County of San Francisco. Frank J. Murasky, Judge.</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. E. P. Mogan, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Appeal prom Judgment—Transcript not Conforming to Rule—Practice.—Upon appeal from the judgment in this ease taken under the method prescribed by section 941b of the Code of Civil Procedure, it is held that the transcript does not conform to rule 7 of the supreme court; and that transcripts on appeal hereafter taken which do not conform to that rule will not be allowed to be filed, nor the appeal considered, except as to such questions as may be reviewed on the judgment-roll alone, when the judgment-roll is in a proper, separate and distinct form from the transcript.</p> <p>Id.—Rules op Supreme Court Part op System op Procedure.—The rules of the supreme court for the government of appellate practice are as much a part of our system of procedure as the rules promulgated by the legislature; and the consequences of a failure to observe them rests upon the lawyer and not upon the court.</p> <p>Reclamation Districts'—Nature op Organization—Construction op Code—Constitutional Law.—Reclamation districts do not belong to any class of corporations defined by section 284 of the Civil Code, nor do they come within the purview of the prohibition of section 1 of article XII of the constitution forbidding the creation of corporations by special act; nor are they municipal corporations within the provisions of section 6 of article XI of the constitution.</p> <p>Id.—Governmental Agencies—Power of Legislature not Limited by Constitution—Specific Purpose.—Reclamation districts are governmental agencies which may be formed and organized by special act; and the general power of the legislature for their creation, organization and control is not limited by the constitution of the state. They are formed to carry out a specific purpose, and the public agency ceases with the accomplishment of that purpose.</p> <p>Id.—Policy of Reclamation Schemes—Conclusive Determination by Legislature.—The policy of schemes for the reclamation of swamp and overflowed lands is one for conclusive determination by the legislature.</p> <p>Id.—Action by Reclamation District to Enforce Assessment— Legality of Organization not Collaterally Assailable.—In an action by a reclamation district to enforce an assessment upon property situated therein, the legality of its organization is not collaterally assailable on the ground that the act creating it, which appears to be valid on its face, in fact includes within its limits two other reclamation districts existing at the time of its creation. In no case can the legality of a reclamation district established by the legislature be collaterally attacked in a suit to enforce an assessment.</p> <p>Id.—Act Expressly Repealing Inconsistent Acts.—Where the act organizing the plaintiff district expressly repealed all inconsistent acts, if there existed at the time of its passage any law authorizing the maintenance of districts which were made a part of the district created, such laws were repealed at least by necessary implication. The legislature has the power to repeal laws creating irrigation districts, and may change its policy in relation thereto. It must be presumed conclusively against a collateral attack that it acted with due regard to the rights of all land owners, and that the act creating the plaintiff district is in all respects legal and valid.</p> <p>Id.—Extrinsic Facts Showing Illegality of District—Inquiry Confined to Prosecution Against District.—It appearing that an act establishing an irrigation district is valid upon its face, if there be any facts extrinsic to the act showing its invalidity and the consequent illegality of the district, an inquiry to that end, if any authority for it exists, must be prosecuted directly against the district, upon relation of the attorney general, and not against any acts of officers charged with the administration of its affairs.</p> <p>Id.—By-laws of Reclamation District—Mode of Adoption and Change—Invalid Amendment by Trustee.—The by-laws of a reclamation, district can only be adopted and changed by the land owners of the district. The board of directors had no authority to amend them by change of the time for regular meetings of the board.</p> <p>Id.—Authority to Gall Special Meetings—Unanimous Meeting op Directors—Question of Special Notice Immaterial.—Where the original by-laws gave authority to the directors to hold special meetings upon notice to all the directors, where all of the directors were present at a special meeting, the question whether it was regularly called upon due notice becomes immaterial.</p> <p>Id.—Validity of Assessment not Vitally Dependent on Begularity of Meetings.—It is not vitally material to the validity of a reclamation assessment whether or not all the meetings of the board, regular or special, have been held or called according to the strict letter of the provisions of the by-laws, where it appears that all the members were present, that the organization of the district is lawful, that there was no fraud in the election of trustees, and the assembled board has discharged its duties fairly and honestly, and that the assessment commissioners have been fair and honest in the assessment of all the lands of the district according to the benefits to accrue to each piece or tract of land by reason of the reclamation works.</p> <p>Id.—Evidence—Answer Calling for Conclusion of Witness.—The court properly excluded evidence palling for the conclusion of a witness.</p> <p>Id'.—Technical Defense—Bules Governing Evidence.—Where the defense to this case is technical in the extreme, we approve of the course of the trial court holding defendants’ counsel to the strictest letter of the rules governing the admission and exclusion of evidence.</p> <p>Id.—Disinterestedness of Assessment Commissioners—Mortgage Taken by Wife of One After Appointment—Validity of Assessment.—The validity of the assessment cannot be affected by the fact that a mortgage was taken upon the lands in the district by ■ the wife of one commissioner after the qualification and appointment of the commissioners.</p> <p>Id.—Valid Action by Majority—Code Bule.—There being no inhibition in the act creating the commissioners to the contrary, the action of the majority of the commissioners would be valid without reference to the qualification of one of them to act. Under section 15 of the Political Code, words giving a joint authority to three or more public officers or other persons are construed as giving such authority to the majority of them unless it is otherwise expressed in the act giving the authority.</p> <p>Id.—Office of Assessment Commissioner Created by Statute—De Jure Office—Acts of De Pacto Officer Binding.—The office of assessment commissioner, being created by statute, is a de jure office. The commissioner, whose wife became a mortgagee, was a de facto officer, who, when appointed and qualified as such, acted under color of office, and was presumptively entitled thereto-. He was engaged as such de facto officer in the discharge of the duties of a de jure office, and his acts were as valid and binding as those 1 of a de jure offiáer.</p> <p>Id.—Commissioner Disinterested When Appointed.—It appearing that the wife of the commissioner took the mortgage subsequently to his appointment and qualification, though the money therefor was furnished by him to her, he was at the time of such appointment and qualification a disinterested person.</p> <p>3d.—Duty of Commissioners in Making Assessment.—It is the duty of the commissioners in making the assessment to make an estimate of the whole expense of the proposed reclamation works, and then assess the lands embraced in the district proportionate to the whole expense thereof and according to the benefits which will result to each parcel of land from such reclamation.</p> <p>Id.—Discretion—Presumption—“Prima Pacie Evidence” under Code. The statute contemplates the exercise of considerable discretion on the part of the commissioners in determining the question of benefits. While an arbitrary assessment cannot be levied, the judgment of the commissioners upon the assessment, after a view of the land, under the statute, must be presumed to have been the result of a contemplation of all the elements necessary to a just apportionment of the assessment; it being provided in section 2463 of the Political Code that the assessment list is prima facie evidence o-f the validity of the assessment, and that it was apportioned in obedience to law.</p> <p>3d.—Burden of Proof to Overthrow Presumption.—Where the assessment or a certified copy thereof has been filed, a prima facie case is made out in favor of the assessment and of the validity of the lien against the lands of the defendants; and the burden was cast upon them to overcome the presumption that the assessment was apportioned according to the law.</p> <p>3d.—Action to Enforce Assessment upon Lands Embraced in District—-Benefit by Beclamation Conclusive—Incompetent Evidence.—Where the lands of the defendants appealing were included by the legislature in the reclamation district, it must be conclusively presumed that their lands will be benefited by the reclamation works, and evidence offered by defendants to prove the contrary was incompetent, and was properly rejected.</p> <p>3d.—Evidence to Show Inequality of Assessment.—If the offered evidence be viewed in the light of an offer to show inequality in the assessment according to benefits, its probative force or value in that regard was matter for the determination of the trial court.</p> <p>Id.—Finding of Benefit to Every Tract.—A finding that all the land in the district was assessed in proportion to benefits and to the whole expense incurred in reclamation is supported by evidence as well as by the presumption in favor of the validity of the assessment, and'it cannot be said as matter of law that the offered evidence was sufficient to overcome that presumption.</p> <p>Id.—Effect of Presumption as Evidence.—A presumption of law is not an arbitrary rule which is necessarily destroyed as evidence by opposing evidence; since, if it is not fully disproved or admitted to be so, it still remains for the jury or trial judge to determine whether the presumption is outweighed, and to find in favor of "the presumption against evidence not sufficient in the judgment of the jury or court to overcome its effect.</p> <p>Id.—Refusal to Adjourn Court for Cumulative Evidence—Discretion.—Where a large amount of testimony had been introduced on the question whether the assessment was made according to benefits, the court did not abuse its discretion in refusing to adjourn the case for the testimony of a witness subpoenaed by the defendants to prove that their land was not benefited by the reclamation works, and that the assessment was not according to benefits. It cannot be said, as matter of law, that any different result would have been reached if such testimony had been given.</p>

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

<p>APPEAL from a judgment of the Superior Court of Kings County, and from an order denying a new trial. John G. Covert, Judge.</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. J. E. Prewett, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

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

<p>Attorneys at Law—Power of Removal and Suspension—Justice’s Court Without Jurisdiction.—Section 287 of the Code of Civil Procedure designates the courts having power to remove or suspend attorneys, and the causes for which such removal or suspension may be made. A justice’s court is not a court which has jurisdiction under that section to remove or suspend an attorney.</p> <p>Id.—Practicing Law by Attorney Occupying Judicial Position— Ground for Suspension or Removal.—The practicing of law by an attorney while occupying a judicial position is not ground for suspension or removal under section 287 of the Code of Civil Procedure.</p> <p>Id.—Remédy for Misconduct.—If, as matter of fact, a police judge, who is an attorney at law, violated the law by practicing his profession, while holding that judicial office, before a justice’s court, his offense is that of a judicial officer, and not that of an attorney; and if he subjected himself to any penalty by reason of misconduct, the punishment therefor is provided by section 758 of the Penal Code.</p> <p>Id.—Jurisdiction of Courts to Discipline Lawyers—Exclusive Remedy for Misconduct.—Courts which have inherent power to discipline lawyers are confined in its exercise to such acts exhibiting turpitude or loss of that good character which was essential to admission in the first instance. When misconduct is made a statutory ground for removal from office for transgression as a judicial officer, the same, in the absence of expressions to the contrary, must be deemed exclusive.</p> <p>Id.—Certiorari—Petition must be Made by Party Beneficially Interested—Client not Aggrieved.—The writ of certiorari to annul the order of the justice’s court, striking the name of the police judge as an attorney from its files, must be made by the party beneficially interested. The client is not such a party, when his answer was oral, not requiring the signature of an attorney, ' and the cause remained fully at issue notwithstanding such order, and it does not appear how it could affect his substantial rights. His right to be represented by counsel does not imply his right to be represented by a particular person.</p> <p>Id.—Remedy of Client by Appeal.—If the order complained of should affect a judgment rendered against the client in the action he has a remedy by appeal to the superior court; and the writ of certiorari will not lie when the matter complained of may be corrected by appeal.</p> <p>Id.—Harmless Error of Superior Court in Vacating Void Order.— The order of the justice’s court suspending the power of the attorney at law to act for his client, and disbarring him from practice in that court, is so obviously without authority, and so foreign to the jurisdiction of the justice of the peace, that its void character is apparent on its face; and the order of the superior court, vacating such void order, on the petition of the client, though erroneous, could not prejudice the rights of anyone.</p> <p>Ib.—Duty of Appellate Court to Disregard Harmless Error— Affirmance of Judgment.—Under section 475 of the Code of' Civil Procedure, it is the duty of an appellate court to disregard: any error not affecting the substantial rights of the parties, and not to reverse a judgment by reason of any error not appearing-from the record to be prejudicial, and which does not cause any substantial injury to the appellant. No prejudicial error being-apparent, the judgment must be affirmed.</p>

<p>Cbiminal Law—Assault with Deadly Weapon—Attempt to Expel Police Oejtcer by Keeper of Pool and Billiard Hall—Police Begulation.—Pool and billiard halls are the subjects of regulation under the police power of the state; and a constable as a police officer has the right to keep such places under his supervision, and may lawfully enter and remain to ascertain whether the law is being violated by sales of liquor to drunken men found therein. While he is lawfully therein, the keeper thereof has no right to expel him by force, and cannot justify an assault upon him with a deadly weapon for that purpose.</p> <p>Id.—Bight ot Expulsion at Common Law Inapplicable.—The common-law doctrine as to the right of a manager of such a place to eject a person (and particularly an officer of the peace) from his premises at his own pleasure, is not the law of this state. ,</p> <p>Id.—Instruction—Right of Police Officer to Remain After Order to Leave.—The court properly instructed the jury as to the right of the police officer to remain in the billiard-hall after he was ordered to leave the same.</p> <p>Id.—Failure of Court to Admonish Jury Fully—Injury not Appearing—Prejudice not Presumed.—The failure of the court to admonish the jury fully at two adjournments, under section 1122 of the Penal Code, will not be presumed to be prejudicial error where no injury to the defendant appears to have resulted therefrom, and it does not appear that the jury was not fully instructed at all other adjournments.</p> <p>Id.—Misconduct of District Attorney—Comment on Testimony Prior to Cross-examination—Matter of Argument.—There was no reversible misconduct of the district attorney in alluding to the testimony of a witness for the defendant, at the close of the examination in chief, and prior to Rross-Rxa.mina.tion, as matter of argument, that he is making “a plausible story.” Such comment, though improper while the witness was testifying, yet is not, under the circumstances appearing, sufficient to justify the setting aside of a verdict or a reversal of the judgment.</p> <p>Id.—Alleged Errors in Evidence—Exceptions not Reserved—Review upon Appeal.—Alleged errors in evidence to which no exceptions were reserved, and which are not included in the amendment of section 1259 of the Penal Code as amended in 1909, cannot be reviewed upon appeal.</p> <p>Id.—Evidence of Prior Raid—Motive for Assault—Cross-examination—Raids upon Other Persons—Re-examination—Notice to Abate Nuisance.—The court properly allowed the prosecution to show a prior raid upon the same place by the police officer in search for intoxicating liquors which were found upon the premises and lawfully destroyed, as tending to show a motive for the assault, and where after cross-examination as to such raid, and also as to raids upon other persons, it was not prejudicial error to allow the prosecution upon re-examination to show that the police officer notified' the defendant to abate the nuisance upon his premises.</p> <p>Id.—Improper Cross-examination of Defendant’s Witness as to Other Raids—Harmless Error.—An improper cross-examination by the prosecuting attorney of defendant’s brother, who explained the first raid, as to other raids, being the same as to which the police officer was cross-examined by defendant, was not prejudicially erroneous, and was harmless ti the defendant.</p> <p>Id,—Appeal—Review Limited to Prejudicial Errors.—Courts of appeal sit to review such errors of the trial court and misconduct of the prevailing party as prejudice the rights of the appellant, and not to set aside verdicts or reverse judgments merely because some error has been committed upon the trial.</p> <p>Id.—Introduction of Improper Matter bt Dependant and Plaintiff—Question op Prejudicial Error.—Conceding that the introduction of improper matter into a case by the defendant does not justify the court in permitting the district attorney to pursue the same line on cross or redirect examination, or estop the defendant from objecting to the same, nevertheless the fact that the defendant has already called the same matter to the attention of the jury will be considered in determining whether or not the error committed at the request of the district attorney is or is not prejudicial to the defendant.</p> <p>Id.—Defendant not Prejudiced.—Held, that defendant was not prejudiced by the showing by both parties that the police officer had found “booze” on other premises, nor by the fact that the police officer had before served a notice on defendant relative to abating the nuisance at the pool and billiard hall, which tended to show that his presence there at the time of the assault was in pursuance of his duties, and that he was not then a trespasser.</p>

<p>APPEAL from a judgment of the Superior Court of Mendocino County. M. S. Sayre, Judge presiding.</p> <p>The facts rare 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. J. M. Seawell, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>APPEAL from a judgment of the Superior Court of Los Angeles County, and from an order denying a new trial. Curtis D. Wilbur, Judge.</p> <p>The instruction as to the word “abet” and as to the “corroboration of an accomplice,” referred to in the opinion of the court, are inserted in the syllabi from the transcript. Further facts are stated in the opinion of the court.</p>

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

<p>PETITION for writ of prohibition to the Superior Court of Butte County. John C. Gray, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Option to Purchase Land—Consideration—Want of Mutuality— Communication op Acceptance Within Duration Essential.— Whether an option to purchase land is or is not based upon a consideration, there is a want of mutuality of obligation between the grantor and holder of the option, unless it is properly accepted; and the communication of acceptance of its terms must, in either case, be made within the duration of the option. If there is no consideration for the option, it may be revoked at any time before acceptance, which must be communicated prior to any revocation, to make it binding. If the option is based upon a consideration, the acceptance must be communicated within the time expressly limited therefor, else the option expires by limitation, and no deed can be enforced under the contract conferring it.</p> <p>Id.—Absence op Grantor op Option—Efforts to Communicate by Telephone—Telegram Sent after.Time Limited.—Notwithstanding the absence of the grantor of the option from his residence, and ineffectual efforts of the grantee to communicate with him by telephone within the time limited for the option, and the sending and receiving of a telegram one day after the expiration thereof, communicating the acceptance of the option, neither such ineffectual efforts nor such telegram changed the relations of the parties, or gave to the holder of the option any rights not conferred by the contract.</p> <p>3d.—Code Provisions—Mode of Communicating Acceptance—Loss op Eight.—The plaintiff, as holder of the option, could, under section 1582 of the Civil Code, have adopted “any reasonable and usual mode” for the “communication of its acceptance”; and under section 1583 of the same code, “consent is deemed to be fully communicated between the parties as soon as the party accepting the proposal has put his acceptance in the course of transmission to the proposer.” The plaintiff, not having communicated his acceptance, nor put it in the course of transmission within the time limited by the contract, lost his right to demand a deed.</p> <p>3b.—Action by Grantee op Option for Specific Performance—Non-suit Properly Granted.—In an action by the grantee of the option to enforce a specific performance of the contract under which it was conferred, a motion for a nonsuit was properly granted for want of any mutual contract of purchase between the parties.</p>

<p>Criminal Bail Bond—Consideration—Belease of Prisoner from Custody—Sufficiency of Complaint.—A complaint upon a criminal bail bond which alleges that after an order fixing the bail of the accused, defendants appeared before the judge and executed the bail bond to the people in the sum fixed, and that upon the giving and approval of the bond the accused was released from custody, sufficiently shows that his discharge therefrom was in consideration of the execution and delivery of the bond.</p> <p>Id.—Breach of Bail Bond—Failure to Appear fob Trial—Sufficiency of Averment.—The bond having been conditioned that the defendant bailed “will appear and answer the charge above mentioned in whatever court it may be prosecuted, and will hold himself amenable to the orders and processes of the court,” a breach of the bail bond is sufficiently stated by the averment that the case was regularly set for trial on a specified day, and was then regularly called for trial, and that, the defendant having been theretofore duly advised of the time and place of such trial, then and there failed to appear for trial.</p>

<p>APPEAL from a judgment of the Superior Court of the</p> <p>City and County of San Francisco. Geo. H. Buck, Judge</p> <p>presiding.</p> <p>The facts are stated in the opinion of the court.</p>

<p>APPEAL from a judgment of the Superior Court of Shasta County, and from an order denying a motion to set aside the default upon which the judgment was entered. Wm. M. Pinch, Judge presiding.</p> <p>The facts are stated in the opinion of the court.</p>

Wm. M. Pinch, Judge presiding. The facts appearing in the record as to the negligence of the attorney for the defendant appealing are the same as those which appear in ease No. 651, ante, p. 497, on the second motion, to set aside the default judgment in that case.

Wm. M. Finch, Judge presiding. The facts appearing on the record in this case as respects the negligence of the attorney for the defendant appealing are the same as in the second motion to set aside the judgment by default in case No. 651, ante, p. 497.

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

<p>Habeas Corpus—Conviction under City Ordinance—Laundry Forbidden in Building Used for Public Store.—The proprietor of a laundry or wash-house, convicted of the violation of a city ordinance forbidding the maintenance thereof in the city limits in any building used in part for a public store, is not entitled to be discharged upon habeas corpus.</p> <p>Id.—Constitutionality of Ordinance—Province of Court—Doubt Insufficient—Clear Proof of Invalidity Required.—It is not sufficient that the court may entertain a doubt as to whether the legislative body has exceeded its constitutional authority, but it must clearly appear that some fundamental right of the individual has been invaded and a personal privilege impaired or destroyed, before an ordinance duly enacted can be declared invalid.</p> <p>Id.—Nature of Police Power—Discretion of Legislative Body— Presumption of Proper Action.—The police power vested in a municipality is of extensive application, involving many variant circumstances. It is incapable of exact definition, and depends for its just and proper exercise so largely upon knowledge of local conditions, that a very wide discretion must be conceded to the legislative body, clothed as it is with the presumption that it will be guided by a rational and conscientious regard for the rights of the individual, as well as for the interests of the community.</p> <p>Id.—Duty of Courts in Considering Local Police Power.—-In determining the validity of the ordinance, under the police power, the courts must give due consideration to all the circumstances of the particular city as far as disclosed, the objects sought to be accomplished, and the necessity which exists for the measure. It is only where it appears that the legislation has no proper relation to the public welfare, and that under the guijse of police regulation, attempt is made to violate personal or property rights, that the courts will not hesitate to overthrow the measure.</p> <p>Id.—Local Restrictions upon Particular Lawful Business.—The fact that an ordinance imposes restrictions upon the laundry business which are not imposed on other lawful avocations, and that the laundry business is a common, ordinary and useful avocation, which should be hampered as little as possible, and that it is not a nuisance per se, does not render local restrictions thereon invalid, where such lawful business, when conducted in particular localities specified, may become dangerous to the public safety or health.</p> <p>Id.—Ordinance General and not Discriminative.—The portion of the ordinance complained of by the petitioner for the writ of habeas corpus is general in its application, and does not discriminate against him as an individual or as a member of the Mongolian race. All persons, without regard to race or condition, are subject to its penalties if they violate its provisions.</p> <p>Id.—No Prohibition of Proper Calling—Begulation—Presumption. The ordinance discloses on its face no prohibition of the exercise of a proper calling, but only a regulation thereof, which this court must presume that the evidence before the city council demonstrated to be in furtherance of a beneficent design to contribute to the welfare and public health of the community.</p> <p>Ib.—Provision of Ordinance Involved not Invalid upon Its Face.— It is only in eases where an ordinance appeared to be invalid upon its face that its invalidity has been necessarily declared. It is held that here it cannot be affirmed that the provision of the ordinance in controversy goes beyond the legitimate domain of the police power, or that the method adopted is unreasonable and unnecessarily oppressive.</p>

<p>APPEAL from a judgment of the Superior Court of San Joaquin County. W. B. Nutter, Judge.</p> <p>The facts 'are stated in the opinion of the court.</p>

<p>APPLICATION for writ of habeas corpus to secure a release from the State Hospital for the Insane at Napa.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Action to Establish Title to Bank Stock—Transfer and Dividend —Pleading — Ultimate Pacts — Evidence Showing Trust.— Under a complaint in an action to establish title to bank stock and to enforce a transfer thereof on the books of the bank, and the payment of a dividend thereon, which alleges the ultimate facts of the ownership and possession of the stock which stands on the books in the name of a deceased person, who indorsed the same in his lifetime, and which is alleged to have been assigned and delivered to plaintiffs, evidence may be given to establish such alleged ownership and possession, without further allegation, by showing that plaintiffs’ ownership originated in a trust created by the decedent in his lifetime in said stock for the benefit of the plaintiffs, and that, in pursuance of said trust, the stock was delivered to plaintiffs by his executors.</p> <p>Id.—Proof of Ownership—Trust a Necessary Part of Proof.—The proof of the ownership and possession of the shares of stock alleged made necessary a disclosure of all of the facts out of which was to appear the ultimate fact of ownership, which showed that the shares were held in trust by the original owner thereof for the plaintiffs, and that their title and possession came to them in execution of that trust, shown by his indorsement thereof, and written statement of their ownership, and delivery of the shares to thgm by his executors.</p> <p>Cd.—Ultimate Facts Only Required to be Alleged.—The ultimate facts only which entitled the plaintiffs, as owners and possessors of the shares of stock, to the relief demanded, were required to be alleged. Probative facts are not required to be alleged, but are matter of proof. The averments of original ownership by the decedent in his lifetime, the transfer by him and possession in the plaintiffs, was sufficient to admit the evidence in support thereof, though it showed a trust in such owner.</p> <p>Id.—Owner of Stock Competent to Create a Trust.—It was competent for the owner of the stock to become the trustee of the trust created by himself therein for the benefit of the plaintiffs. One who owns property may so deal with it, while retaining the legal title, as to make himself a trustee for the benefit of another</p> <p>Id.—Trust Property Retained Until Death—Dividends on Trust Shares During Life.—The circumstance that the shares of stock held in trust for the plaintiffs were retained in the trustee’s possession until his death, with power to receive the dividends thereon during his life, did not affect the validity of the trust in equity. In such cases, equity will look to the substance of the act alone, and will carry out the intentions of the trustee in the absence of fraud.</p> <p>Id.—Trust in Personal Property How Created—No Set Form of Words Essential.—A .trust in personal property need not be in writing, and no set form of words is necessary to create it. Any words which indicate with sufficient certainty an intention or purpose to create such a trust will be effective, without the use of the words “trust” or “trustee.”</p> <p>Id.—Acceptance—Consent of Beneficiaries.—It was not necessary to the creation of the trust in the shares of stock by the owner that the beneficiaries should be informed of the trust, and should express an acceptance thereof to the trustee. The trust not having been rescinded, the consent of the plaintiffs to receive the stock held in trust by the owner from his executors in execution of the trust was sufficient to enable the beneficiaries to take advantage of it under section 2251 of the Civil Code.</p> <p>B>.—Support of Finding—Indorsement of Shares to Plaintiffs.— A finding that the shares were indorsed to the plaintiffs by the former owner is sufficiently sustained by evidence that he indorsed them in blank, and that his intention in so indorsing them was to effect a transfer of them to the plaintiffs, as beneficiaries, and that his act had that effect.</p> <p>Id.—Support of Finding as to Trust.—Though the evidence does not show that the word “trust” was used, yet it was sufficient to support a finding as to the existence of the trust alleged, where it showed by his declarations and acts beyond doubt that he did in fact hold the shares of stock in trust for the plaintiffs, and so intended.</p> <p>Id.—Ineffectual Gift—Evidence Consistent with Trust Found.— Though an ineffectual attempt to make a gift does not create a trust, and equity will not perfect an imperfect gift by establishing a trust, if none was contemplated, yet where the evidence is in every way consistent with the view taken by the trial court that a trust was contemplated, its findings establishing the trust must stand.</p> <p>Id.—Directions on Envelope Containing Indorsed Shares-—Delivery upon Death-—Construction-—Proved Intention.—Where the indorsed shares, witnessed by the bank cashier, were placed in an envelope containing the words, “In case of my death to go to Neva and Lena Cahlan,” and were placed in a locked tin box deposited in the bank vault, and after receipt of dividends thereon during the life of the indorser they were delivered upon his death by his executors to plaintiffs, the language so used on the envelope is not to be construed as testamentary or as expressing a gift causa mortis, but the directions thereon are to be given effect in accordance with the purpose of the donor otherwise shown to have been his intention in making the indorsement.</p>

<p>Criminal Law—Pleading—Joinder of Offenses Delating to One Transaction—Validity of Code Amendment.—The amendment in 1905 of section 954 of the Penal Code, so as to provide that “the indictment or information may charge different offenses, or different statements of the same offense, under separate counts, but they must all relate to the same act, transaction, or event,” is valid and effective, and not subject to any constitutional objection.</p> <p>Id—Substantial Bights of Defendant Safeguarded—Joinder of Distinct Offenses Disallowed.—The legislature, while recognizing that there is no danger of violating any substantial rights from permitting two different offenses arising from exactly the same particular circumstances, “act, transaction or event,” to be joined, yet safeguarded the substantial rights of the defendant by providing expressly that “charges of offenses occurring at different and distinct times and places must not be joined.”</p> <p>Id.—Code Amendment Harmonious with Other Code Provisions.— There is no distinction in principle between the code amendment authorizing the charging of two different offenses relating to the same act or event, and other code provisions authorizing the jury to find a verdict for a less crime included within a greater offense charged.</p> <p>Id.—Beneficial Effect of Method Allowed.—The method allowed by the amendment, while harmless to the rights of the accused, must result in a just administration of the criminal law. It permits the jury, under the court’s instructions, to return a verdict of guilty of that one of the two offenses charged which the evidence discloses had been committed, thus avoiding, in large measure, the mistrials which have too often resulted from a disagreement between the proof and the allegations of the indictment or information.</p> <p>Id.—Information Charging Burglary with Intent to Commit Larceny and Grand Larceny—-Demurrer Properly Overruled.—An information charging burglary with intent to commit larceny at a time and place specified, and charging grand larceny committed at the same time and place “as a part of the same act, transaction or event” in a distinct count, conforms to the amendment of section 954 of the Penal Code, and a demurrer thereto for the misjoinder of two distinct offenses was properly overruled.</p> <p>Id.—Offenses Charged Esquiring the Same Proof.—The offenses thus charged required for their proof the same quality of testimony and the same manner of. trial and punishment. Though the crime of burglary may involve an intent to commit any of the crimes mentioned in section 459 of the Penal Code, yet it will not be denied that proof that a larceny or felony had been committed in the building by the party making the entry would be competent not alone for showing the intent, but also the fact of the entry.</p> <p>Id.—Motion to Set Aside Information—Point of Demurrer Involved.—A motion to set aside the information on the ground that defendant had not been committed by a magistrate for either of the offenses charged, involving the same point raised upon the demurrer, was properly denied. The defendant had a preliminary examination on both charges, since the facts necessarily applied to both offenses.</p> <p>Id.—Evidence—"Voluntary Confession of Grand Larceny to Suspected Relative—Promise of Endeavor to Protect Defendant.— A voluntary confession by defendant of the commission of the grand larceny charged in the information, not made for the purpose of being used in evidence against him, but made to a relative, not an officer of the law, who was also suspected of the crime, who • held out to the defendant nothing beyond the hope that such relative would endeavor to keep defendant’s connection with the crime from becoming known to the authorities, was properly admitted in evidence against the defendant.</p> <p>Id.—Evidence of Good Character—Instruction as' to Caution— Harmless Error.—Evidence of good character of the defendant is in aid of the presumption of innocence, and is no more to be laid out of view by the jury in their deliberations than is the presumption itself. Yet such evidence is important only where there may exist some doubt of the defendant’s crime. An instruction that such evidence should be received “with great caution” was erroneous; but in view of the conclusive evidence of defendant’s guilt, the error was harmless, since the jury could, consistently with their verdict, have found that defendant’s good character was conclusively shown.</p> <p>Id.—General Caution of Jury—Special Caution Beyond Province of Court.—As matter of fact, all evidence in a criminal case should be considered by the jury with caution or that deliberation which will insure a just verdict. But to select a particular species of evidence for special caution to the jury, thus disparaging the probative effect thereof, is a function specially excluded from the province of trial courts, even in those few special cases where the legislature has declared that it may be done.</p> <p>Id.—Instruction as to Confession—Matter not for Jury—Harmless Error.—An instruction that “a person’s declaration or voluntary confession is always admitted in evidence against him, for the law presumes that a person will not say anything untrue against himself or his interests,” is erroneous, as presenting matter not for the consideration of the jury. But the error in giving it was harm- ¡ less, where there is no denial that the confession was made, and no attempt was made to impeach the witness who testified thereto, and there was uneontradicted evidence of the defendant’s guilt.</p>

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

<p>Arrest in Civil Action—Insufficient Affidavit—Information and Belief—Basis not Stated—Want of Jurisdiction—Certiorari.— An affidavit for atoest in a civil action which states the facts upon mere information and belief, without stating the facts upon which the affiant bases his information and belief, is insufficient to give the court jurisdiction to order the arrest. of the defendant; and when the court has refused to vacate the order upon motion, certiorari will lie to annul the order.</p> <p>Id.—Warrant not Issuable upon Hearsay.—A warrant of arrest cannot be issued upon hearsay nor upon any statement, however positive, founded upon hearsay.</p> <p>Id.—Affidavit of Defendant upon Second Motion to Vacate Order— Jurisdiction not Affected ¡Retroactively.—Conceding that an affidavit made by the defendant upon a second motion to vacate the order supplied defects in the original affidavit, it could not have effect retroactively to confer jurisdiction to make the order of arrest where such power was wanting at the time of making it.</p> <p>Id.—Limit of Jurisdiction of Special Proceeding—Statutory Terms and Conditions of Authority.—Since special proceedings are created and authorized by statute, the jurisdiction over any special proceeding is limited by the terms and conditions of the statute under which it was authorized.</p> <p>Id.—Power of Court in Ordering Arrest, Limit of.—The power of the court in ordering an arrest in a civil action, under section 481 of the Code of Civil Procedure, was limited to the facts and conditions which were made to appear to the judge by the affidavit pursuant to which the order was made, not to the fact that at some subsequent stage of the proceedings facts would be established justifying its action.</p>

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

<p>Habeas Corpus—Imprisonment Under Charge of Felony—Violation-of “Racetrack Bill”—Alternative Misdemeanor.—One who is-imprisoned under a complaint charging him with a felony for violation of section 353a of the Penal Code, commonly called the-“Racetrack” bill, which makes the offense either a felony or a misdemeanor, by providing punishment by imprisonment in the county jail or in the state prison for a period of not less than thirty days, and not exceeding one year, is not entitled to be discharged upon habeas corpus, where the complaint clearly states an offense under-that section.</p> <p>Id.—Policy of Law—Province of Court.—It is not the province of the court to deal with the policy of the law, as that belongs exclusively to the legislature, which within the limits imposed by the constitution is vested with the right to voice the will of the people in public enactments, and is ordinarily the judge of the expediency of creating new crimes, and of prescribing penalties for them, light or severe.</p> <p>Id.—Question of Constitutionality.—The courts can only inquire as to whether or not the legislature has violated the constitution; but in passing upon that question much is left to the discretion and judgment of the legislature, and it will be presumed that sqch discretion has been wisely and justly exercised, and the law will not be held unconstitutional unless it is clearly in violation of the fundamental law.</p> <p>Id.—Suppression of Gambling.-—Gambling in its many forms may be rightfully suppressed by the legislature, and that question is no longer open to discussion.</p> <p>Id.—Act not a Delegation of Legislative Power.—The act authorizing the trial judge to make the crime a felony or a misdemeanor is not an attempt to delegate legislative power in violation of section 1 of article III of the constitution of the state.</p> <p>Id.—Effect of Code Section—Crime Fixed by Legislature—-Minimum and Maximum Punishment.—The code section enumerates the various acts which are prohibited and made criminal by the express will of the legislature. It prescribes what the law shall be in future cases arising under it, and does not attempt to make the question as to whether or not the act prohibited shall be a crime dependent on the will of the court or judge. It states the minimum and maximum punishment. The court cannot make it less or greater than the statute prescribes. The trial judge is merely selected as the agent of the people, whereby mercy or severity may be shown as the circumstances connected with the offense may demand. This is in harmony with the legislative will in regard to most crimes in prescribing a minimum and maximum penalty; and the permitted discretion of the court in affixing the penalty has never been considered a delegation of legislative power.</p> <p>Id.—Crime Classified by Punishment.—The same offense may constitute a felony or misdemeanor according to the minimum and maximum punishment affixed. In so far as it authorizes imprisonment in the county jail it is a misdemeanor, and in so far as it authorizes punishment for one year in the state prison it is a felony. The complaint may charge the case as a felony. But after judgment affixing the penalty of a misdemeanor, it must be deemed a misdemeanor for all purposes.</p> <p>Id.—Cruel and Unusual Punishments not Imposed.—The code section in question does not violate section 6 of article I of the constitution forbidding cruel and unusual punishments. Imprisonment in the county jail or in the state prison is not unusual nor cruel in the sense of the constitution. Gruel and unusual punishments are punishments of a barbarous character unknown to the common law, being such as disgraced the civilization of former ages and made one shudder with horror to read of them.</p> <p>Id.—Sufficiency of Complaint—Complicated Enumeration of Other Acts Immaterial.—Where acts charged in the complaint are clearly within the prohibition of the code section, and any person of common understanding would, by reading the section and reading the complaint, know that defendant was charged with acts prohibited by the section, it is sufficient, and the objection that the section is too complicated in its enumeration of offenses cannot be considered.</p> <p>Id.—Construction of Penal Code.—Under section 4 of the Penal Code it is provided that its provisions must be construed according to the fair import of their terms with a view to effecting their object, and promoting justice.</p>

<p>Officers—Fixed Compensation—Change in Expenses or in Deputies and Pay During Term—Constitution not Violated.—Where the statute provides a fixed salary for an officer which is not changed during his term, and a separate allowance is made for the expenses of his office or a fixed salary for a certain number of deputies or clerks, all payable out of the county treasury, an increase of such separate allowance of expenses, or for deputies, whether in the number of deputies or the amount paid to each, is not a violation of the provision in section 9 of article XI of the state constitution that “The compensation of any county, city, town, or municipal officer shall not be increased after his election or during his term of office.”</p> <p>Id.—Compensation of New Deputy County Assessor—Writ of Mandate to Auditor.—Where, at the beginning of the term of a county assessor, the law provided his fixed salary, which remained unchanged, and for seven field deputies, to serve for four months after the first Monday in March, in each year, making their salary and expenses payable from the county treasury, and the law was amended during his term to provide a new eighth deputy assessor, to serve for the entire year, at a fixed monthly salary, to be paid out of the county treasury, and the county auditor refused to draw his warrant therefor, the writ of mandate will lie to compel him to draw the same.</p>

<p>APPEAL from a judgment of the Superior Court of Lassen County. F. A. Kelley, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Conveyance of Land—Alleged Fraud—Deed Prior to Breach of Contract to Purchase Other Land—Execution Sale for Installment—Good Faith—Support of Finding.—Where one who contracted to purchase land had paid part of the purchase money, and the title-was reserved until all installments were paid, and had prior to any breach of the contract conveyed other land owned by himself, in consideration of the surrender to him of an unpaid outlawed note executed by himself to his grantee, which land so conveyed was for alleged fraud subsequently sold under execution for an unpaid installment, it is held, upon a review of the evidence, that a finding that such conveyance was made for a valuable consideration, in good faith and without any intent to defraud the original vendor of his purchase money, was sufficiently supported.</p> <p>Id.—Fact of Conveyance for Surrender of Outlawed Note—Probative Effect—Question of Fact for Court.—The probative effect of the fact that the conveyance was in consideration of the surrender of the outlawed note was a question of fact for the court to consider and weigh in determining the ultimate fact as to good faith. Such fact is not of itself evidence of fraud, and at most it can only be considered as a circumstance which might or might not tend to prove fraud, according to its effect as influenced by other proved circumstances.</p> <p>Id.—Effect of Bar of Statute upon Consideration.—The fact that a debt may be barred by the statute of limitations can affect the remedy only, but can in no degree release the debtor of the moral duty of paying it, and it will therefore support a contract as consideration, and although the note surrendered in consideration of the conveyance was barred by the statute, it constituted a good and valuable consideration.</p> <p>Id.—Delivery of Deed—Conclusive Evidence—Omission to Find not Ground for New Trial.—Where the evidence as to the delivery of the deed to the grantee is conclusive, so that any finding made thereon must have been adverse to the party seeking a new trial, the omission to find thereon is not ground for a new trial.</p> <p>Id.—Appellant not in Position to Claim Injustice in Protection of Respondent.—Where appellant as vendor had been paid by the purchaser under his contract of purchase over $1,600, and had recovered back the land after the purchaser had expended three years’ time, much labor and considerable money in its improvement, thus putting the land in a condition in which it became a profitable producer of oranges, appellant has no ground in equity to complain of injustice in the protection of the respondent as tíje purchaser’s vendee of other land, as not having been made in fraud of appellant’s rights.</p>

<p>APPEAL from an order of the Superior Court of Riverside County vacating a judgment of nonsuit and granting a new trial. E. E. Densmore, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>■Criminal Law—Evidence—Impeachment op Prosecuting Witness— Contradictory Statements—Proper Foundation Essential.—In order that the prosecuting witness may be impeached by statements contradictory to Ms testimony, it is essential that the defendants’ ■counsel must lay the proper foundation by calling the attention of the witness to the statements to be proved, and stating the circumstances of time, place and persons present.</p> <p>Id.—Identity of Statement must Appear.'—When the attention of the-prosecuting witness is called to a statement, it is essential that the statement sought to be proved was the same statement to which the-attention of the prosecuting witness was called.</p> <p>Id.—Offer of Impeaching Evidence—Inclusion of Improper Matter—Rejection of Whole Offer Sustained.—Where an offer of impeaching evidence includes some matter to which the attention of the prosecuting witness was called, and other matter to which his-attention was not called, the ruling of the court in rejecting the whole offer will be sustained.</p> <p>Id.—Offer of Proof—Unsatisfactory Mdthod of Evidence.—An offer of proof, instead of calling the witness, is at best a very loose and unsatisfactory method of introducing evidence, and certainly when, the offer consists of several propositions, this court must sustain the ruling rejecting it, if it is correct as to any one of the propositions offered.</p> <p>Id.—Appeal—Review of Error in Excluding Evidence—Duty of-Appellant.—It is. fundamental that a party relying upon the exclusion of evidence as constituting error upon which he asks to have-the case reversed must clearly show and point out the offered evidence, and that it was competent and material.</p>

<p>Guardianship op Alleged Incompetent Person—Showing Required. In order to justify the appointment of a guardian of an alleged incompetent person, under the provisions of sections 1763 and 1764 of the Code of Civil Procedure, the court must find the person for whom the guardian is appointed mentally incompetent to take care of himself and manage Ms property. The evidence must show that Ms mind is so far gone, and so weak and feeble, that he does not realize and comprehend the value and prudent management of his property, and is not sufficiently normal to care for it in the usual acceptation of that term.</p> <p>lb.—Appointment, When Unjustifiable. — Notwithstanding mere debility or some impairment of memory, one who is in mental health and vigor, and capable of managing the property which he has acquired, should not be deprived of Ms property and liberty by the appointment of a guardian. If one is capable of transacting ordinary business relative to Ms property, and understands the nature of Ms business and the effect of what he does, and can exercise his will relative thereto with discretion, notwithstanding the influence of others, he is not of unsound mind, within the meaning of the statute, and should not be deprived of the control of his property.</p> <p>Id.—Support of Finding as to Incapacity—Review op Evidence-Disagreeing Opinions.—Upon an elaborate review of the evidence, by Cooper, P. J., in delivering the opinion, it is held by him insufficient to support the finding of the superior court that the appellant “is incapable of taking care of Mmself and managing his property.” But Hall, J., and Kerrigan, J., while - of opinion that the evidence on this point is not as satisfactory as it might be, yet hold that there is some evidence to support the finding, and that it cannot be disturbed upon appeal, under the rule governing this court.</p> <p>Id.—Rule as to Conflict of Evidence.—An appellate court will not reverse a finding, if there is a substantial conflict in the evidence; but the evidence to raise a conflict must be such as to present a fair and reasonable difference of opimon. A few general statements without substantial reasons are not sufficient to raise a conflict, where the evidence fully establishes the contrary.</p> <p>Id.—Inadmissible Evidence—Opinions oe Witnesses as to Mental Capacity.-—The court erred in allowing witnesses, against the appellant’s objection, to state their opinions as to his “ability to manage his property,” and as to “whether, in their opinions, he was likely to be imposed upon by designing parties.” By this testimony the witnesses were allowed, in effect, to give their opinions upon the general merits of the case, and as to questions directly in issue, which may not be done.</p>

<p>Homestead—Deed op Trust—Abandonment to Trustees not Absolute—Payment op Debt—Eight not Lost.—The abandonment of a homestead by the joint act of the husband and wife to trustees named in a deed of trust to secure the payment of a debt is not absolute, but only for the purposes of the trust, and where no title-is passed by the trustees under the deed, but the debt secured is. paid in full, the trust is thereby extinguished and the homestead right remains unaffected.</p> <p>Id.—Decision Upon Former Appeal—Law op Case.—The decision upon the former appeal (153 Cal. 97), as to the effect of the abandonment of the homestead to the trustees, is the law of the ease upon the present appeal.</p> <p>Id.—Beconveyance by Trustees to Husband—Mesne Conveyance prom Husband to Dependant—Eight op Wipe to Sue por Homestead.—Where the trustees reconveyed the property to the husband who, by his sole deed, conveyed the homestead premises to. a third party, who quitclaimed the same to the defendant, the wife is entitled, under section 370 of the Code of Civil Procedure, to sue alone concerning “her right or claim to the homestead property.”</p> <p>Id.—Form op Action—Cancellation op Deeds and Quieting Title to Homestead.—The form of the action to cancel the deeds affecting the homestead right of the plaintiff and to quiet plaintiff’s homestead title to the property involved does not affect her right to sue alone under section 370 of the Code of Civil Procedure.</p> <p>Id.—Husband not Shown to be a Necessary Party to the Action.— Where there is nothing in the pleadings showing that the husband was a necessary party defendant to the action, and the action had been dismissed as to him as defendant, on a former trial, a motion by defendant to restore him as a party was properly denied. He was not required to be joined as a party coplaintiff, the plaintiff being clearly entitled to sue alone.</p> <p>Id.—Tender op Issue as to Validity op Homestead.—The mere fact that the defendant tendered an issue as to the validity of plaintiff’s claim to a homestead title does not render the action any the less one concerning her right or claim to the homestead property under the code provision.</p> <p>Id.—Construction op Code—Plaintiff not Bound to Establish Bight Before Suit.—Section 370 of the Code of Civil Procedure is not to be construed as requiring the wife, as plaintiff, first to establish a valid homestead right before she can sue alone.</p> <p>Id.—Bight op Wipe to Sue not Dependent upon Sufficiency op Complaint.—Although the right of the wife to recover in the action depends upon the fact that the land is covered by a valid claim of homestead, and it does not so appear in the complaint, it does not state a cause of action; yet the right of the wife to sue alone concerning “her right or claim to the homestead,” under section 370 of the Code of Civil Procedure, does not depend on the sufficiency of the complaint or her right finally to recover in the action.</p> <p>Id.—Sufficient Cause op Action Stated—Valid Claim op Homestead by Wipe.—Where the complaint by the wife, besides the other elements constituting her cause of action, shows a valid homestead declaration executed by her in due form, as a married woman, upon the community property expressly made for the joint benefit of herself and her husband, which expressly states that the husband has made no declaration of homestead, and that the actual cash value of the homestead property claimed is the sum of $1,500, a sufficient cause of action is stated, entitling the plaintiff to the relief asked for, in the absence of any counter showings sufficient to overcome its claims.</p> <p>Id.—Wife’s Claim op Homestead Coextensive in Value with Possible Claim op Husband,—The wife’s claim of homestead upon the community property, made as authorized under section 1262 of the Civil Code, constitutes the identical selection which the husband could have made, and is not limited to the sum of $1,000 under section 1260 of the code, but may extend to the full limit of $5,000 which the husband, as head of the family, could have made had he declared a homestead to that extent.</p> <p>• Id.—Proper Refusal to Allow Amendment of Answer—Parol Proof of Abandonment of Homestead.—It was proper for the court to refuse to allow an amendment to the answer, as a basis for parol proof that the homestead was intended to be forever abandoned by the husband and wife at the time of the execution of the deed of trust. The deed of trust is unambiguous and speaks for itself, and its legal effect is to limit the abandonment to the purposes of the trust.</p> <p>Id.—Parol Evidence Properly Excluded—Intention of Plaintiff.— Parol evidence that plaintiff at the time of the execution of the deed of trust orally declared to the party from whom the loan was negotiated that she intended forever to abandon the homestead premises was properly excluded.</p>

<p>Corporations—Election of Directors—Disqualification of Elected-Person—Insufficient Stock under By-laws.—Where, at the regular annual meeting of the corporation defendant for the election of directors, the one who received the largest majority of votes was disqualified for election under the by-laws by reason of not holding sufficient stock, he is not entitled to the office as against a qualified director elected who received a less number of votes.</p> <p>Id.—Subsequent Purchase of Stock Before Meeting for Organization.-—-The person who received the largest number of votes having-been disqualified at the time of the election, if he purchased the requisite number of shares of stock thereafter and prior to the-meeting held by the duly elected directors for organization, that fact is immaterial, and could not authorize him to act as a director at that meeting to the ouster of one who was qualified to act at-the time of the election.</p> <p>Id.—-Provision of Code—Duty of Immediate Organization—Presumption.—As section 308 of the Civil Code provides that immediately after their election the directors must organize by the election of a president, it must be presumed that this was done, and until it is shown otherwise, the purchase of the additional stock by the disqualified person will be assumed to have been made subsequent to-the organization of the directors.</p> <p>Id.—Water Company—Organization not for Profit—Benefit of - Stockholders—By-laws.—The circumstance that the water company was not organized for profit, but for the purpose of distributing water to its stockholders, and that its operating expenses were-met by assessments on the stock, could not preclude its power as a corporation to pass by-laws prescribing the number of shares of' stock which would be required as qualification for its directors, under section 303 of the Civil Code.</p> <p>Id.—Untenable Proceeding to Test Validity of Election.—One claiming to have been elected as director of the water company who had not at the time of the election of its directors the qualification of a director prescribed by its by-law at the time of election, is not entitled to any relief on a proceeding to test the validity of the election, under section 315 of the Civil Code.</p> <p>Id.—Appeal—Alternative Method—Proper Record—Transcript in Lieu of Bill of Exceptions.—Where an appeal is taken under the . alternative method by filing the notice of appeal without service under section 953a of the Code of Civil Procedure, the proper record upon appeal is a transcript to be certified by the judge in lieu of a bill of exceptions, which becomes part of the judgment-roll.</p> <p>Id.—Sending up of Original Papers Improper.—The clerk of the trial court is not entitled to send up his original files of papers in the cause in lieu of a transcript to be certified by the judge and filed upon the appeal. The law makes it the duty of the clerk to preserve the original files in his office, and to leave them here would render it impossible for him to enter up the remittitur of this court sent down in this proceeding, and he will be permitted to withdraw the same and send up a certified copy thereof in lieu of the original.</p>

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

<p>PETITION for writ of review to the Superior Court of Amador County. Pred V. Wood, Judge.</p> <p>The facts are stated in the opinion of the court,</p>

<p>Statute of Frauds—Sale of Personal Property—Delivery and Continued Change of Possession—Question of Fact.—The question whether or not a sale of personal property was followed by an immediate delivery and an actual and continued change of possession, as required by section 3440 of the Civil Code, so as to protect the same against the creditors of the vendor, is a question of fact to be determined by the trial court.</p> <p>Id.—Attachment by Creditors—Claim and Delivery—Support of Finding—Conflicting Evidence.—Where the creditors of the vendor levied an attachment against the personal property sold, which was taken possession of by a constable, against whom the purchaser brought an action of claim and delivery, and notwithstanding conflicting evidence in such action; there was some evidence tending to show a continued possession by an agent of the vendor when the attachment was levied, it cannot be held upon, appeal that a finding in such action against the purchaser and in favor of the constable that the sale was not accompanied by an immediate delivery and actual and continued change of possession was without support in the evidence.</p>

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

<p>APPEAL from a judgment of the Superior Court of Los Angeles County. W- P. James, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Criminal Law—Robbery—Testimony of Accomplice—Sufficient Corroboration.—Where a robbery charged was committed at a store on the corner of Temple and'Olive streets, in Los Angeles, and two others were jointly indicted with defendant for the same offense, and one of them as an acknowledged accomplice testified that defendant performed the office of a lookout on Temple street while they approached the store on Olive street, and when all appeared safe the defendant was to signal them, whereupon they entered the store and robbed it, and the three shared equally in the booty, the testimony of the accomplice was sufficiently corroborated by two witnesses, who crossed Temple and Olive streets fifteen minutes before the robbery and saw defendant on Temple street about one hundred feet from the store, and saw the other two defendants approaching the corner on Olive street, and saw the defendant looking toward them and the store.</p> <p>Id.—Testimony Tending to Connect Defendant with Crime—Corroboration of Every Detail not Required.—It was not necessary that the corroboration of the accomplice should extend to every detail covered by his testimony, but it is sufficient that the corroboration of his testimony as to the position of the defendant, as that of a lookout, and as to his conduct in observing the store and the approach of his eodefendants thereto, tended of itself to connect defendant with the commission of the offense, although it is slight in degree, and entitled, when standing by itself, to but little consideration.</p> <p>Id.—Reluctance op Accomplice to Testify—Improper Answers— Change of Disposition—Repetition of Questions Properly Allowed.—Where the accomplice was at first reluctant to testify and gave evasive and erroneous answers to questions, and subsequently changed his disposition and testified readily to further questions, the court was justified in allowing a repetition of the questions improperly answered.</p> <p>Id.—Harmless Ruling upon Evidence—Nervous Appearance of Co-defendants.—Conceding that the testimony of a witness who saw the eodefendants approaching the store that they appeared nervous, as if they feared somebody might watch them, was inadmissible, and that the court erred in refusing to strike it out, yet, since the evidence had no relation to the defendant, his rights could not have ■ been prejudiced by the ruling.</p> <p>Id.—Running Time of Street-cars—Statement not Hearsay.—The testimony by the foreman of a street-ear line that its running time of Temple street cars was the same at the time of the commission of the offense as it was at the time of the trial was not hearsay evidence, but of a fact within the personal knowledge of the witness, the time schedule not being offered in evidence.</p> <p>Id.—Verdict of Jury not Appealable—Appeal Disregarded.—The verdict of the jury in a criminal case is not the subject of an appeal under the Penal Code, and an appeal taken therefrom must be disregarded.</p>

<p>APPEAL from a judgment of the Superior Court of Los Angeles County. Frederick W. Houser, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

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

<p>Appeal—Motion to Dismiss—Failure to File Transcript in Time— Reasonable Excuse for Delay.—A motion to dismiss an appeal for failure to file the transcript in time will not be granted where a reasonable excuse is shown for the delay in the preparation of the transcript, so that it was not in a suitable condition to be served and filed within the time prescribed by rule 2.</p> <p>Id.—Application of Rule 5—Prior Service of Transcript—Subsequent Filing Excused.—Where it appears th'at the transcript was served prior to the motion to dismiss, and if the clerk of the appellate court had been in his office when it was presented for filing it would have been filed prior to the motion to dismiss, which would have been a complete answer to the motion, under rule 5, and where the circumstances connected with the filing, in the absence of the clerk from Ms office, show a reasonable excuse for delay in filing the transcript until shortly after the filing of the motion to dismiss, rule 5 will still be applied.</p> <p>Id.—Equitable Construction of Rule 5.—By an equitable .construction of rule 5, with reference to the circumstances of this ease, appellants may be relieved of the severe penalty sought to be imposed upon them by the respondents; and it appearing that the transcript was first served prior to the service of the motion with intent to file it on the same day, and that it was so filed, it would do no violence to rule 5 to hold that the transcript was on file at the time of the noticing and filing of the motion to dismiss, within the spirit, if not within the letter, of rule 5.</p> <p>Id.—Statutes and Rules Construed Liberally in Favor of Right of Appeal.—The right of appeal being conferred by the constitution, statutes and rules of procedure should be construed liberally in favor of the exercise of such right.</p> <p>Id.—Circumstances to be Considered in Determining Remedy—Engagements of Counsel.—-Though the necessary engagements of counsel for appellants in other causes is not of itself an excuse for delay in exercising the remedy by appeal; yet it is a circumstance to be considered in connection with facts and circumstances shown in determining the existence or loss of the remedy by appeal.</p> <p>Id.—Appeal to District Courts of Appeal—Reasonable Discretion— Hearing on Merits.—Where appeals are taken directly to the district courts of appeal, they are vested with a reasonable discretion in determining questions involving the application of the rules of the court to such an appeal, which should be exercised in favor of a result which is just, and “tends to bring about a hearing on the merits, which is always to be desired.”</p>

<p>Criminal Law—Grand Larceny—Stealing of Automobile—Support of Verdict—Circumstantial Proof—Presence at Place of Theft—Possession-—Confession.—Upon the trial of a defendant charged with grand larceny in the stealing of an automobile left at a garage in Sacramento by the owner for the night, which could not be found at 9 o’clock the next morning, evidence that the defendant was seen at the garage at 5 o’clock of that morning, and was afterward found in possession of the automobile in Oakland and San Francisco and gave an untruthful account of the origin and extent of his possession thereof, was sufficient to support the verdict independently of his confession, which, in itself, was enough to persuade the jury of his guilt, and justify the verdict returned.</p> <p>Id.—Proof of Corpus Delicti.—The corpus delicti was fully proved without the aid of the defendant’s confession. It consisted in the asportation of the machine from the garage by some one, manifestly without the consent of the owner or of the manager of the garage.</p> <p>Id.—Inspection of Automobile by Court and Jury—Consent of Counsel—Order of Court—Lawful Proceeding—Evidence not Taken.—Where, at the trial by express consent of counsel for both sides, the court made an order for inspection of the automobile by the jury in front of the courthouse, which was lawfully conducted under the control of the judge, and in presence of the judge, counsel, court stenographer, and an officer in charge of the jury, and no evidence was actually taken out of court, beyond the legitimate scope of such inspection, defendant cannot claim that such inspection was the taking of evidence out of court.</p> <p>Ib.—Evidence—Driving Gloves Left in Automobile by Owner— Possession by Defendant—Circumstance Tending to Show Larceny Charged.—Where the owner of the machine testified that he left driving gloves in his automobile left by him at the garage, and identified the same as those found in the possession of the defendant when he was arrested, the court properly allowed such proof, and admitted the gloves in evidence, as part of the same transaction connected with the larceny charged as not only tending to show defendant’s guilty knowledge, but also as a circumstance tending to show that defendant stole the machine.</p> <p>Id.—Different Offenses Committed at Same Time and Place—Admissibility of Crime not Charged.—Where an accused person has committed two offenses at the very same time and place, so that they constitute the same, or approximately the same, transaction, evidence of the crime not charged is admissible if it tends to show motive or any other fact relevantly bearing upon the crime charged.</p> <p>Id.—Confession Properly Admitted.—Where the evidence offered on the question of the admissibility of the confession of guilt made by the defendant tended to show that it was freely and voluntarily made, without inducements or threats held out to him, it was properly admitted in evidence.</p> <p>Id.—Competency of Confession a Question of Law—Evidence Assailing It After Puling Inadmissible.—The question whether a confession has been obtained under such circumstances as to render evidence thereof competent or incompetent is one of law for the eourt; and when the court has ruled that it is competent and admissible and has received the same in evidence, subsequent testimony offered by the defendant to show that it was inadmissible because not freely and voluntarily made, but was wrung from him, was properly excluded.</p>

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

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

<p>Action on Undertaking to Discharge Attachment — Variance — Bankruptcy op Debtor—Stipulated Judgment.—In pursuance of stipulation, the judgment and order are affirmed on the authority of San Francisco SulpJmr Co. v. Aetna Indemnity Co., ante, p. 695.</p>

<p>Criminal Law—Murder—Conviction of Manslaughter—Self-defense —Claim of Verdict for Murder or Acquittal.—Where a defendant charged with murder relied upon self-defense, and was convicted of manslaughter, and there was evidence tending to show murder, and also to sustain the verdict rendered, the defendant, having been by the verdict acquitted of the charge of murder, cannot complain because the verdict was more favorable to him than the evidence warranted, and cannot urge that the verdict should have been either for murder or for acquittal.</p> <p>Id.-—Verdict for Less Offense—Question of Justification—New Trial not Warranted.—Even though the verdict for the less offense’may be contrary to the instructions of the court, and for a less offense than the evidence proves—it being for an offense included within the offense charged in the information—it must be carried out, and a new trial cannot be ordered for such reason alone.</p> <p>Id.-—Evidence—Dispute Over Mine—Question as to Possession of Tools — Answer Stricken Out — Defendant not Prejudiced.— Where the quarrel between deceased and defendant was over a mining claim, which defendant was working, and a witness for the prosecution was asked if he took possession of the tools when the dispute arose, and upon his replying in the negative was asked why not, to which he responded, “I wasn’t ready to die,” and the answer was stricken out on defendant’s motion, he was not prejudiced thereby; and it cannot be inferred that the question was asked • solely to impress the jury that the defendant was a violent and dangerous person, where the record does not justify such an inference.</p> <p>Id.—Impeachment of Witness — Contradiction — Immaterial Testimony.—It is not error to disallow the impeachment of a witness by contradictory statements, when it appears that his testimony was immaterial.</p> <p>Id.—Admissibility of Dying Declarations—Construction of Code— Bes Gestae.—Section 1870 of the Civil Code providing for the admissibility of the “act or declaration of a dying person, made under a sense of death, respecting the cause of his death,” the evidence to be so admitted is construed to be restricted to the act of the killing, and the circumstances immediately attending and forming part of the res gestae, which embraces not only the actual facts of the assault and the circumstances surrounding it, but the matters immediately antecedent to and having a direct causal connection with the assault, as well as acts immediately following the assault, and so connected with it as to form part of the occurrence.</p> <p>Id.—Matters not Part of the Bes Gestae—Narration—Suspicions and Expectations.—The dying declaration was never intended to embrace mere recitals or narrations of past events, or the suspicions of the deceased, nor his expectations of trouble with the defendant. Id.—Evidence as to Expectation of Trouble not Objected to—Absence of Prejudice.—Where no objection was interposed either to a question or the answer elicited that deceased declared that “he did not expect any trouble over the ground at all,” and the answer was covered by previous declaration testified to without objection, that deceased declared that defendant shot him unexpectedly, the admission of such evidence that he expected no trouble was without prejudice to the defendant.</p> <p>Id.—Improper Cross-examination-—Part of Defendant’s Case.—It was not error to exclude improper cross-examination of a witness for the people, on matters as to which he had not testified in chief, and which related to matters which might be made part of the defendant’s case.</p> <p>Id.—Self-defense—Imminent Danger—Bight to Stand Ground—Improper Befusal of Bequested Instruction.—Where the defendant’s evidence justified a requested instruction that “where one without fault is placed under circumstances sufficient to excite the fears of a reasonable person that another designs to commit a felony or some great bodily injury upon him, and to afford grounds for reasonable belief that there is imminent danger of the accomplishment of this design, he may, acting under these fears alone, slay his assailant and be justified by the appearances; and where the attack is sudden and the danger imminent, he may stand his ground and slay his aggressor, even though it may be proved that he might more easily have gained his safety by flight," it was ground of reversal to refuse such request.</p>

<p>Casualty Insurance—Indemnity of Defendant Against Loss from Accidents to Employees — Action for Additional Premium — Burden of Proof.—Under a policy of casualty insurance indemnifying defendant against losses from accidents to its employees at different places specified and different rates according to place and danger of employment, and providing for an additional premium for increase in their number at such places, in an action by the casualty company to recover such additional premium, the burden of proof is upon the casualty company to sustain its allegations denied in the answer that there is an increase in the number of employees in the occupations specified, and at the place or places specified in the policy.</p> <p>Id.—Failure of Proof—Mere Increase in Construction Expenses— Support of Finding—Averments Untrue.—Where the plaintiff failed wholly to show any increase in the number of the persons employed by the defendant at the place or places designated in the policy, and in the occupations therein specified, and merely showed an increase in the construction expenses of the defendant, without any proof that they were made under the terms of the policy, its failure of proof of the averments alleged to sustain the additional premium sued for was sufficient to justify a finding that such averments were untrue.</p> <p>Id.—Plea of Accord and Satisfaction—Receipt in Full—Support of Finding.—A finding sustaining a plea of accord and satisfaction, though it may not be sustained merely by a receipt in full alone, is sufficiently sustained by proof, in addition to the receipt, tending to show that the sum paid as shown by the receipt, at the expiration of the policy, was understood and intended to be a full adjustment and settlement of existing differences as to the amount due under the terms of the contract, on account of additional premiums, and that it was so received by plaintiff in full satisfaction thereof.</p> <p>Id.—Account Stated—Immaterial Finding Unsupported.—Where the answer alleging the accord and satisfaction also alleged an account stated, and was found to be true in its averments, the fact that the averment of an account stated is unsupported by the evidence is immaterial, and cannot affect the substantial rights of the plaintiff.</p>

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

<p>Homestead not Limited to “Heads op Families”—Construction op Constitution—Power op Legislature—The provision in section 1 of article XVII of the constitution that “The legislature shall protect by law, from forced sale, a certain portion of the homestead and other property of all heads of families,” is not restrictive upon the general power of the legislature to give homesteads to heads of families only; but the legislature representing the law-making power of the people may extend the homestead privileges to other persons than heads of families. The extent of the right, and the mode of its protection, with the limitation of the rights of creditors therein, are purely matters of legislative prescription, which the courts can only construe and apply.</p> <p>Id.—Homestead Declared by Widow—Validity.—A homestead declared by a widow, who resides upon her own premises claimed as a homestead, the value of which does not exceed $1,000, the declaration of which is in the form required by the statute, is valid and will be protected in equity.</p> <p>Id.—Action to Enjoin Forced Sale—Pleadings and Proof—Nonsuit Properly Denied.—In an action by the widow to enjoin a sale of her homestead under execution by a creditor, where the averments of the complaint that she was the owner of the premises and residing thereon when the homestead was declared were admitted, and the declaration pleaded and proved was in proper form, the court properly denied a motion for a nonsuit.</p> <p>Id.—Use of Home for Hotel Purposes—Mere Incident.—The fact that the plaintiff used her home, not exceeding $1,000 in value, for the purpose of making a precarious living therefrom by using the same for hotel purposes for the accommodation of boarders and guests, will not defeat her homestead claim thereto, it appearing that it would be reasonable under the circumstances to conclude that the business, rather than the home, was the mere incident.</p> <p>Id.—Presumption of Good Faith in Declaration of Homestead.— Where there is no evidence to show the contrary, it must be presumed that the declaration of homestead was made in the utmost good faith.</p> <p>Id.—Original Purpose of Public Use of Home.—Even if it was the original purpose of the house used as a home to prepare the same for the accommodation of boarders and guests, such purpose would not, under the authorities in this state, preclude the claiming of the residence of the owner as a homestead.</p> <p>Id.—Plea of Subsequent Nonresidence Immaterial—Mode of Abandoning Homestead.—A plea in the answer that the plaintiff had ceased to reside on the premises claimed as a homestead is immaterial. The homestead, once lawfully declared, can be abandoned only in the manner pointed out in section 1248 of the Civil Code, by a declaration of abandonment, or by a grant thereof.</p> <p>Id.—Judgment Lien or Execution Levy on Homestead Ineffective.— No judgment lien obtained by a creditor of the homestead claimant nor levy of an execution upon the homestead property can bind the homestead claim where there is no contention that the judgment is within the provisions of section 1241 of the Civil Code. The attempted levy of an execution upon property which is exempt from forced sale must be futile to affect any interest of the homestead claimant.</p> <p>Id.—Subsequent Transfer of Interest Pending Suit—Void Proceeding not Vitalized.—The subsequent transfer of the plaintiff’s interest pending her suit to enjoin a sale, made one year after the void and nugatory proceeding of the creditors to obtain a lien upon the homestead and to subject it to seizure and sale, cannot have the effect to vitalize such a proceeding without authority of law, and is entirely inconsequential.</p> <p>Id.—Proper Continuance of Action in Name of Plaintiff—Absence _ of Objection—Recovery of Plaintiff not Prejudicial.—Where the court truly found that, after the transfer of the interest of the plaintiff pending suit, the action was continued in the name of the plaintiff without objection, or request by defendants for a substitution, and such continuance was permitted under section 385 of the Code of Civil Procedure, defendants are not prejudiced because a righteous judgment was obtained in the name of the plaintiff, rather than that of her successor in interest.</p> <p>Id.—Evidence of Admitted Ownership not Prejudicial.—Evidence of a patent from the United States to the husband of the widow in proof of her admitted ownership would not have prejudiced the defendants.</p> <p>Id.—Trial—Beopening Case fob Further Evidence—Discretion.— Held, that the court does not appear to have abused its discretion in reopening the ease for further evidence, after submission and prior to its decision. It must be assumed that it was in furtherance of a desire of the trial judge to reach a just conclusion upon the merits.</p> <p>Id.—Judicial Notice of Manner of Using Homes in Mountain Counties—Error Without Prejudice.—The erroneous declaration of the trial court that judicial notice can be taken of the manner of constructing homes in mountain counties, so as to entertain guests and travelers, was error without prejudice to the appellants, in view of the proper conclusion reached in this particular case from the evidence before the court.</p>

<p>¡Wills—Devise in Trust — Income During Lives of Widow and Daughter—Contingent Remainder to Surviving Children and Grandchildren.—Where a will devised property to trustees in trust to pay the income to the surviving widow of the testator, and to his married daughter, and to the survivor of them during life, and devised the remainder upon the termination of the trust to the then living children of the married daughter, or her then living grandchildren by right of representation, such devise of the remainder is of a contingent remainder, which does not vest in any child or grandchild of the daughter until her death.</p> <p>Id.—Uncertainty of Right of Enjoyment.—It is the uncertainty of the right of enjoyment, and not the mere uncertainty of the actual enjoyment, that makes such remainder contingent. The uncertainty of any of the children of the married daughter surviving her renders the interest of any of them contingent.</p> <p>Id.—Distinction Between Vested and Contingent Remainders.— A remainder is vested, when there is some person in esse known and ascertained, who by the instrument creating the estate is to take and enjoy the estate upon the expiration of the existing particular estate, and whose right to such remainder no contingency can defeat; but the remainder is contingent, when it depends upon the happening of a contingent event, whether the estate limited as a remainder shall ever take effect at all.</p> <p>Id.—Vested and Contingent Gifts to Class of Persons.—If there are words of present gift to a class of persons' in existence, in remainder, the remainder is vested, though it cannot be ascertained until the determination of the particular estate who will ultimately take; but if futurity attaches to the gift, so that it is not intended to take effect until the determination of the particular estate, the remainder to a class of persons then existing is contingent.</p> <p>Id.—Preference of Vested Remainder—Language of Will Controlling.—Although the law prefers to consider future estates as vested, yet it also seeks to effectuate the will of a testator, and if the language used shows his intention not to create a vested</p> <p>estate, but expresses a contingency as to who shall take, the language of the testator must control.</p> <p>Id.—Fair Construction op Will Showing Contingent Remainder. Giving a fair construction to the will, and yielding to the intention of the testator, it is concluded that the remainder is contingent, and will only accrue to such children of the married daughter as may be living at the time of her death.</p> <p>Id.—Conveyance op Life Estate to Children in Esse—Merger not Discharging Trust.—A conveyance of the whole surviving life estate vested in the surviving married daughter to her children in esse does not create a merger discharging the trust, which must, be vested in the trustees until her death, notwithstanding such conveyance.</p> <p>Id.—Conditions of Merger Nonexistent.—The whole legal and equitable title must exist in the same person to constitute a merger of a life estate in the fee. The legal title being in the trustees, and the children in esse having no existent legal estate, there could be no merger of the life estate in the fee. There can be no merger where a life estate and a contingent estate are united.</p> <p>Id.—Rule in Equity.—Wherever it would work injustice or defeat the intention of the donor to work a merger, the two estates will be kept alive, although they come together in one person. While merger at law follows immediately upon the union of a greater and lesser estate in the same ownership, it does not so follow in equity. There the doctrine is not favored, and the estates will be kept separate where the intention of the parties and justice require it.</p> <p>Id.—Manifest Intention of Testator to Preserve Trust Regardless of Contingent Remainder.—Even if it be conceded that the remainder was vested and not contingent, it is held that it was the manifest intention of the testator that the trust should be • kept alive for the benefit of all parties concerned, and safely transmitted to the remaindermen, consisting not only of the children in esse, but all who should become the future issue of the married daughter, during her coverture, and to be transmitted to them upon her death.</p> <p>Id.—Trust in Favor of All Issue.—Where a trust is in favor of the children now living, or that may hereafter be born of certain parents, the trustees will retain the title so long as there is a possibility of issue, which, in the eye of the law, continues as long as the woman lives or coverture exists.</p>

<p>Action por Brokers’ Commissions—Sale op Orchard—Proposed Purchaser Unwilling to Accept Terms—Findings—Acreage not Warranted.—Beal estate agents are not entitled to recover commissions for procuring a purchaser for defendant’s orchard described, according to belief, as containing 28 acres, for a price of $30,000, on specified terms, where the court found, upon sufficient evidence, that the estimated acreage was mere matter of description and that it was intended to sell the orchard as a whole, upon the terms specified, without any warranty of quantity, or of acreage; and that the purchaser, upon receiving an abstract</p> <p>showing only 26.72 acres in th'e orchard, refused to purchase upon the terms proposed, and requested a modification of terms, to which the vendor did not agree.</p> <p>Id.—Sale not Effected.—Where the broker assumed to sell 28 acres for $30,000, the purchaser properly refused to accept 26.72 acres as a compliance with the broker’s contract, which he had the right to do; and it is equally true that if defendant offered his orchard as an entirety, regardless of the acreage, for that sum, then his mind and that of the purchaser never met, and defendant cannot be compelled to carry out a contract which he never made.</p> <p>Id.—Mutuality of Mistake—Omission in Findings Immaterial.— In view of the findings as to the sale of the orchard as an entirety, and not by quantity or guaranty as to area, and that the sale failed because of shortage in the acreage alone, it is entirely immaterial whether the mistake in the acreage was mutual or not, and the omission to find upon an issue as to such mutuality was not a mistrial, or ground for a new trial.</p>

PETITION for discharge of habeas corpus after conviction for violation of a county ordinance. 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, and from an order denying a new trial. J. M. Seawell, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>■Criminal Law — Conviction op Manslaughter — Self-defense — Province op Jury—Support op Verdict.—Held, that while the evidence shows that the defendant and the deceased had, prior to the homicide, been friends, and had been drinking heavily during the evening and night on which the homicide occurred, and were both intoxicated, it further shows that the death was caused by the head of the deceased striking the hard sidewalk, as the result of a fall from a blow inflicted by the defendant, and that the parties had been quarreling, and that the question whether or not the blow was or was not in necessary self-defense was one peculiarly for the jury, under all the evidence and circumstances of the case, and that the evidence sufficiently supports the verdict of manslaughter.</p> <p>Id.—Instruction as to Manslaughter—Qualification by Succeeding Instructions as to Excusable Homicide—An instruction referring to the charge in the information that the killing was willful and unlawful, stating: “If you believe from the evidence beyond a reasonable doubt that the defendant, upon a sudden quarrel or heat of passion, or in the commission of an unlawful act not amounting to a felony, killed the said Thomas C. Rowley, as charged in the information, you should find the defendant guilty of the crime of manslaughter,” is not rendered erroneous for not embodying the law of excusable homicide therein, but it is sufficient that it correctly states the law, when taken together with immediately succeeding instructions fully stating the law of excusable homicide.</p> <p>Id.—Requested Instructions Embodied in Charge.—It is not error to refuse to give requested instructions, which, in so far as they are material, are substantially given elsewhere in the charge.</p> <p>Id.—Instructions to be Considered as a Whole.—The appellate court must consider the instructions as a whole; and if, when so considered, they fairly state the law, as applied to the facts of the ease, and as applied to any plausible claim made by the defendant based upon the evidence, this court cannot interfere.</p>

<p>Criminal Law—Abduction op Girl por Prostitution—Question por Jury—Support op Verdict.—Under a charge of the abduction of an unmarried female under the age of eighteen years, for the purpose of prostitution, in accordance with section 267 of the Penal Code, the purpose for which the abduction was made is peculiarly a matter for the determination of the jury; and it is held that the evidence in the record amply supports the verdict of the jury upon this point.</p> <p>Id.—“Unmarried” State not Essential to Crime.—Section 267 of the Penal Code providing that “every person who takes away any female under the age of eighteen years from her father, mother, guardian, or any other person having the legal charge of her person, without their consent, for the purpose of prostitution, is punishable” as therein specified, does not require the abducted female to be unmarried.</p> <p>Id.—Averment op “Unmarried” State—Objection to Failure op Proop—Identity op Crime, and op Person—Surplusage.—Notwithstanding the averment of the girl’s “unmarried” state, the failure to prove the same is not material to the crime, and does not go to its identity. The identity of the girl is certainly shown by giving her correct name and that of her father from whose custody she was taken. The word “unmarried” could be stricken from the information without affecting its validity in any respect, and may be treated as surplusage.</p> <p>It>.—Sufficiency op Evidence to Show “Unmarried” State.—Even if the averment should have been proved, it is not required to be proved with the same strictness which must be made of the essential elements of the crime; and the “unmarried” state is sufficiently shown by evidence that her true name was Lizzie Wright, that at the time of the trial she was sixteen years of age, that her father’s name was Luke Wright, and her mother’s Barbara Wright, and that ever since her birth she had lived with her father and mother, and in their care and custody, there being nothing in the evidence to suggest her married state.</p> <p>Id.—Evidence—Improper Question to Police Oppicer—Duty—Opinion.—The court properly sustained an objection to a question asked of a police officer, who had testified for the prosecution: “When you met the girl along with the defendant, and you knowing that the defendant was of bad reputation, wasn’t it your duty to protect and take her home?” The officer was not on trial for dereliction of duty, and the question called for his opinion.</p>

<p>Partnership—Claim and Delivery.—One partner cannot recover in an action of claim and delivery against a copartner, who has an equal right of possession with the plaintiff.</p> <p>Id.-—Pleading — Proof op Partnership Under General Issue.^ Though no specific allegation of partnership is alleged in the answer, it is sufficient to defeat the action that the partnership was proved under the general issue to the satisfaction of the court.</p> <p>Id.—Nature op Partnership.—A partnership is a voluntary association of two or more persons for the purpose of carrying on business together and dividing the profits between them, based on the consent of the parties, as expressed in sections 2395 and 2397 of the Civil Code.</p> <p>Id.—Partnership, How Proved—Express Agreement not Bequired— Acts and Declarations op Parties.—The voluntary association of partners may be shown without proving an express agreement to form a partnership; and a finding of its existence may be based upon a rational consideration of the acts and declarations of the parties, warranting the inference that the parties understood that they were partners, and acted as such.</p> <p>Id.—Partnership in Boat—Support op Finding.—Where the court found that there was a partnership in a boat, which was the subject of the action of claim and delivery, and appellant claims that the finding is unsupported, giving full credit to the testimony of the respondent, as the appellate court is required to do, the finding is supported, when the inference from his testimony is fair and reasonable, or necessary, that a partnership existed in the boat, and the business incident 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. Geo. A. Sturtevant, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Broker’s Commissions — Pleading — Sufficiency of Complaint.—A complaint in an action to recover broker’s commission upon the sale of real estate, under a written contract, which limited no period of service, and promised a ten per cent commission for procuring a buyer at the price fixed, which alleged that plaintiff entered upon the service and procured a buyer at said price sixty-five days after the date of the contract, who was then and there ready, willing and able to pay the price fixed by the contract, and introduced him to the vendor, to whom such proposed purchaser paid a higher price for the land, sufficiently implies that the employment continued to the time of procuring such purchaser, without an express allegation to that effect.</p> <p>Id.—Evidence Admissible Under Answer—Disproof of Cause of Action.—Under an answer specifically denying all of the allegations of the complaint, and averring that the contract was intended as a mere authority at the date to introduce a purchaser then represented as known to the broker, the defendant may show any facts tending to prove that the cause of action never existed; and evidence that prior to the introduction of the purchaser the authority of the plaintiff had been revoked was admissible in disproof of any cause of action.</p> <p>Id.—New Matter.—It is only when new matter exists as a defense by way of confession of the truth of all the allegations of the complaint and avoidance of the same, for the purposes of such defense, that it must be specially pleaded in order to allow the same to be proved.</p> <p>Id.—Variance Between Complaint and Proof — Purchaser not Pound—¡-Agency for Company.—Where it appears in evidence that the purchaser introduced was not ready or willing to buy the land-for himself, but as agent for a lumber company, which was the real purchaser for the lands, there was clearly a material variance between the complaint and the proof, which defeats the cause of action alleged. The question is not one of authority to act, but of the identity of the would-be purchaser.</p> <p>Id.—Necessity that Purchaser be Pound Who has Offered to Buy from Vendor.—The broker, in order to recover his commission, must find a purchaser, who has offered in his own right to purchase the property from the vendor, upon the terms agreed upon, and is ready and willing to pay the same as a purchaser; and he must be held to strict allegation and proof as to who was the intending purchaser, and he cannot prevail upon the theory that he produced the agent of an undiscovered principal.</p> <p>Id.—Support of General Verdict.—The general verdict for the defendant is sufficiently supported both by the evidence that plaintiff’s authority had been revoked before any proposed purchaser was introduced, and by the evidence that no proposed purchaser was found, as alleged in the complaint.</p>

<p>Rescission of Purchase of Lots—Breach of Contract for Reimbursement — Cause of Action — Judgment — Foreclosure in Equity.—A complaint alleging a contract by three individual defendants to reimburse to plaintiff the price paid for the purchase of lots, the purchase of which was rescinded, in which one of said defendants held the entire original equity, the title being held in trust by the corporation defendant, and alleging that the others had agreed to resell the lots, and to repay plaintiff by a specified date, which had expired, and alleging that no part of the money so reimbursed had been paid, states a cause of action for a personal judgment against the three defendants, and to foreclose their equity in the lots for the sum agreed to be repaid.</p> <p>Id.—Construction of Contract bt Persons Agreeing to Resell and Repay—Resale not Conditional.—The contract of the persons agreeing to resell and to repay by a specified date is not to be construed as an agreement to repay only on condition of resale; but as a contract absolutely binding them to repay by that date, and allowing a repayment when a resale was made prior thereto, enabling such repayment.</p> <p>Id.—Reference to First Contract of Purchase in New Contract Based on Rescission—Required Selection of Lots Superseded.— A reference in the new contract for reimbursement upon rescission of the purchase, to the original contract, does not incorporate in the new contract an original agreement for the selection of the lots by the purchaser, which was superseded by the new contract to reimburse the plaintiff as agreed.</p> <p>Id.—Absence of Material Issue in Answer.—It is held that the answer of the individual defendants raised no material issue, that its denials are of conclusions of law, and as to immaterial matter rendered unimportant by the new contract made by them. The complaint having alleged that the original contracts were surrendered according to the agreements, it did not affect her right to recover, because of a denial that defendants canceled them as they agreed to do.</p> <p>Id.—Acceptance of New Agreement by Trust Company Immaterial. It is immaterial whether the trust company corporation, defendant, accepted a trust under the new agreement. That corporation was not a party thereto, and no additional burden was placed upon it thereby, if it did not assent to the provisions; but, as trustee for the benefit of plaintiff and defendants, and to secure plaintiff her money interest in the lots, the trust company could have made the conveyances necessary to carry out the new agreement, without additional authorization.</p> <p>Id.—Relief in Equity Determined by Rights of Real Parties in Interest.—The relief which a court of equity may grant in such a case as this is determined by the respective rights of the real parties in interest as found and adjudicated by the court; and is not affected by the fact that the title to the property which is given as security is held by a trustee.</p> <p>Id.—Foreclosure of Lien Unaffected by Trust—Power of Sale not Given.—Under the allegation of the complaint the trust company held the title to the lots in question to secure to plaintiff thq repayment of the price paid, which was unpaid under the contract, and no power of sale being given for this purpose to the trustee, the court may foreclose the lien or trust for the purpose of applying the proceeds of sale upon the indebtedness.</p>