Volume 12 — California Appellate Reports

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

<p>Criminal Law—Embezzlement—Corpus Delicti—Admissions and Confessions—Degree of Proof.—Though the confession or extrajudicial admissions of a defendant charged with a particular crime cannot be considered for the' purpose of proving the corpus delicti, or the elements necessary to constitute the crime with which he is charged, yet this rule does not require plenary proof or proof beyond a reasonable doubt of the corpus delicti before admissions or a confession of the defendant may be received and considered as evidence.</p> <p>Id.—Corpus Delicti of Embezzlement—Sufficiency of Independent Proof.—Where the defendant is charged with embezzlement of a particular fund in a bank of which he is secretary and cashier, upon which a check was drawn by a debtor of the bank to pay a loan amounting to $1,000, and the evidence shows that the transaction was personally conducted by defendant, and that he withheld the usual tag which would result in a record thereof, and that no record was ever made, but that the paid loan was left by defendant on the books as outstanding, and that there was a general shortage of $100,000 by defendant when the bank commissioner closed the bank, the corpus delicti of the particular offense charged was sufficiently proved.</p> <p>Id.—Check on General Deposit—Embezzlement of Cash Sum.— A cheek drawn against the general deposit of money in the bank by a debtor of the bank entitled to draw a cheek thereon, to pay the debt, is the equivalent of payment in cash, and the creation of a shortage in such cash to the extent of the cheek constituted the embezzlement of the cash sum of $1,000, represented by the cheek.</p> <p>Id.—Specific Purpose of Defendant Immaterial—Fraudulent Secretion of Monet.—The fraudulent secretion of the money with intent to appropriate it to the use of the defendant constituted embezzlement; and it is immaterial whether he actually drew the cash on the day on which the check was drawn, or used the shortage of that day to cover up previous defalcations to the extent of the embezzlement which was committed on that day.</p> <p>Id.-—Time of Use of Monet.—Under section 514 of the Penal Code, and under the allegations of the indictment, it is immaterial when before the filing of the indictment the money embezzled was actually used, except in so far as the question of time might be affected by the statute of limitations.</p> <p>Id.—Corpus Delicti—Defendant’s Connection with Crime.—Though the general rule is that mere proof of defendant’s connection with the crime is not sufficient to establish the corpus delicti, and it is not necessary in order to establish the essential elements of the crime to prove defendant’s connection with it, yet such rule does not go so far as to exclude, in showing the corpus delicti, proof of defendant’s connection with the crime, where the circumstances of the case are such that proof of the crime of necessity involves proof of his guilt, he being inseparably connected with every important circumstance indicating the corpus delicti.</p> <p>Id.—Circumstantial Proof of Corpus Delicti.—It is not essential, in establishing the corpus delicti, that there must be direct proof of the elements constituting the same; but it is sufficient that all of the elements constituting the crime were brought home to the knowledge of the defendant by circumstantial proof, justifying the jury in returning a verdict of guilty, irrespective of the admissions and confession of the defendant.</p> <p>Id.—Evidence of General Shortage.—Evidence as to the general shortage continually increasing until the bank was closed, under the administration, of defendant as cashier and secretary of the bank, of which the embezzlement in question formed a part, was competent proof tending to support the particular act of embezzlement charged, which, though not conclusive thereof, was an important circumstance tending to prove it, and to show guilty knowledge or a fraudulent intent in the crime charged, and that it was not due to mistake.</p> <p>Id.—Evidence of Tags and Entries by Bookkeeper Under Defendant’s Direction.—The evidence of the bookkeeper as to the tags and entries made in the books under the direction of the defendant was admissible, as tending to show defendant’s knowledge as to the condition of the books and of the shortage indicated therein.</p> <p>Id.—Evidence of Gambling Habits of Defendant.—Evidence that during the period of the transactions leading to the general shortage, the defendant was engaged in stock gambling on a very extensive scale, and that the books of the county assessor showed comparatively little property assessed in his name, was competent, as tending to show that defendant used the bank’s money for private speculation, and thus caused the enormous deficiency in the cash accounts of the institution.</p> <p>Id.—Requested Instructions—Right to Borrow Money—Absence of Evidence.—The court properly refused requested instructions relative to the right of defendant to borrow the money alleged to have been embezzled, where there is no evidence justifying such instructions.</p> <p>Id.—Requests Embodied in Charge.—The court properly refused requested instructions which were substantially embodied in the charge given by the court.</p> <p>Id.—Abstract Instruction not Prejudicial — “Criminal .Negligence”—Instruction as to Felonious Intent as to Act Charged. An abstract instruction as to crime involving “the union of act and intent, or criminal negligence,” was not prejudicial, where no “criminal negligence” was involved, and where the court properly instructed the jury as to the necessity of proof of a fraudulent and felonious intent as to the specific act charged in the indictment before defendant can be convicted.</p>

<p>Collateral Inheritance Tax:—Illegitimate Children Acknowledged as Heirs—Title of Act—Exceptions.—Under the collateral inheritance act of 1893, entitled “An act to establish a tax on collateral inheritance bequests and devises, and to direct the disposition of its proceeds,” as amended in 1899, without change in the title, illegitimate children made lawful heirs of a father by written acknowledgment duly executed as provided in section 1387 of the Civil Code are not collateral heirs within the title of the act, nor subject to the tax thereby imposed, whether they are or are not included within its exceptions of “lawful issue,” or “any child or children lawfully adopted as such in conformity with the laws of the state of California.”</p> <p>Id.—Constitutional Limitation of Tax ,by Title of Act.—By the title of the act in question, the scope of the act, so far as taxing inheritance is concerned, is limited to collateral inheritances. So far as the act attempts to require a tax to be paid on an inheritance which is not collateral, but is in the direct line, it is void under the express provisions of section 24 of article IV of the constitution regulating the title of acts.</p> <p>Id.—Decree of Distribution to Lawful Heirs of Deceased Father— Tax not Fixed.—Under a decree of distribution to the only lawful heirs of a deceased father, who had been made such by him under section 1387 of the Civil Code, which distributes the residue of the estate to them, “less the amount of the inheritance tax as required by law,” without fixing any amount in the decree, the distributees are entitled to receive the entire residue of the estate from the administrator without deduction of any tax therefrom.</p>

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

<p>Ejectment — Findings for Defendants — Conclusiveness— Review upon Appeal—Support of Judgment.—In an action of ejectment where the findings are for the defendants, and an appeal is taken from the judgment upon the judgment-roll, without a bill of exceptions, the findings must be held conclusive, and no question of fact can be reviewed; and the only question to be determined relates to the sufficiency of the findings to support the judgment.</p> <p>Id.—Findings Establishing Estoppels by Judgments and Deeds.— Where the findings show that notwithstanding a homestead declared "by a widower on his separate property as head of a family, then consisting of himself and three sons, he afterward married, and his wife was divorced in a contested suit in which her allowance against him was declared a lien upon such property, with right to sell the same in case of nonpayment, and title was obtained under such sale, without appeal from the judgment, after which the divorced wife recovered judgment for the value of the use and occupation, after such title was obtained, which judgment was never appealed from, and under which all title of the husband and sons was procured under execution sale against them, a surviving son claiming for himself, and as sole heir of his deceased brothers and father, suing in ejectment against a distributee of the estate of the divorced wife, after her death, is bound by the estoppel of said judgments, and by the titles obtained thereunder.</p> <p>Id.—Bab op Action Against Distributee.—Where the findings also show that the distributee of the titles so obtained took possession of the property distributed, and held the same under exclusive claim of right adversely to the whole world more than five years before the action of ejectment was commenced, and had during all of said period paid all taxes assessed against the property, and that he was the owner and seised in fee of the property, they establish that the action is barred by sections 318 and 323 of the Code of Civil Procedure.</p>

<p>Action for Value of Labor and Materials—Completion of Work After Time Limited—Acceptance—Pleading—Indebitatus Assumpsit.—A complaint in an action to recover for labor and materials furnished by plaintiff to the defendant in the erection of gas generators, which alleges that they were erected at defendant’s request under a written contract requiring them to be completed within thirty days, but they were not so completed, and the work was continued thereafter with the knowledge and under the supervision of the defendant, who accepted them, took possession of them when completed, and continued to use the same, and alleging the reasonable value of the labor and materials furnished, states a cause of action in indebitatus assumpsit.</p> <p>Id.—Implied Contract.—When the generators were completed and delivered by the plaintiff to the defendant, whether in time or not, or whether in accordance with the contract or not, and the defendant accepted them, the law implied that the work and material furnished in their construction would be paid for by the defendant.</p> <p>Id.—Further Cause op Action Based upon Waiver and Estoppel— Objection to Misjoinder not Urged.—The fact that the complaint also set forth other allegations relating to the acts of the defendant upon which plaintiff relied to excuse the delay, evidently intended to support a recovery on the theory that defendant had waived the time limit, and was estopped by his own acts to take advantage of the delay, cannot affect a recovery on the common count, where no objection was taken to a misjoinder of causes of action, or to the failure to state them separately, and no motion was made to strike out either as surplusage or redundant matter.</p> <p>Id.—Improper Special Demurrer.—A special demurrer addressed to the complaint generally, on the ground of uncertainty, was properly overruled.</p> <p>Id.—Ground of Recovery Immaterial.—Under the allegations of the complaint it is immaterial whether the evidence of the work which plaintiff did for defendant was under the contract, or in modification of it. The defendant, having accepted the work, must pay for it.</p> <p>Id.—Evidence—Work Done in Completion.—Evidence showing that the work was done in the completion of the generators, which defendant accepted, was admissible.</p> <p>Id.—Variance not Objected to—Waiver.—A variance not objected to is not ground for reversal; and by failure to call the trial court’s attention thereto by proper objection, it is waived.</p> <p>Id.— Counterclaim for Damages — Instructions.— Instructions requested by plaintiff, dealing with the right of the defendant to recover upon its counterclaim for damages for delay in furnishing the generators, that if the changes in the plans and delay in their completion were the acts of the defendant it cannot recover, were correctly given, and an instruction requested by defendant, making an improper assumption as to the effect of certain causes of delay, as matter of law, was properly refused.</p> <p>Id.—Evidence Under Quantum Meruit — Reasonable Value — Price Under Special Contract.—In an action based on a quantum meruit for the value of what is done under a special contract, the price agreed upon in the contract is evidence of the value of materials furnished and services rendered under the contract.</p> <p>Id.—Rule of Damages fob Breach of Contract.—Damages for the breach of an obligation arising from contract will be given only for such detriment to the aggrieved party as is proximately caused by the breach, or which in the ordinary course of things would be likely to result therefrom.</p> <p>Id.—Damages from Delay in Performance—Overloading of Plant by Defendant—Instruction.—Under the rule of damages for breach of contract stated in section 1366 of the Civil Code, injury caused, during a period of delay in performance of the contract, by the overloading of the uncompleted plant by the defendant is not proximately caused by the breach of the contract; and it was not error to instruct the jury that the mere fact that the injury and the breach were contemporaneous, or the former subsequent to the latter, did not establish that the injury was the result of the breach.</p> <p>Id.—Effect of Failure to Record Contract.—The failure to record the contract does not render it void as between the parties thereto. Ib.—Rule as to Quantum Meruit—Exceptions.—Though it is a general rule that where work is done under a special contract, the contract must be completed before any action of quantum meruit will lie, yet the exceptions from that rule are where something has been done under the special contract, but not in strict accordance with its terms. In such case, quantum meruit will lie for the reasonable value of the benefit received, subject to recoupment for damages, for the breach of the contract.</p>

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

<p>Action for Beans Sold—Loss by Fire—Bight of Selection—Passage of Title—Conflicting Evidence—Question fob Trial Court.— In an action for beans sold, in which it was undisputed that the beans had been received by defendant, and that he had the right of inspection, and to select good beans and reject bad beans, when they were destroyed in the San Francisco fire, it was a question of fact to be determined by the trial court, upon conflicting evidence, as to whether the title had passed to defendant when the beans were destroyed; and its finding that the title had not passed will not be disturbed upon appeal.</p>

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

<p>Prohibition—Jurisdiction of Justice’s Court—Action for Damages to Crops by Trespassing Animals.—The superior court properly refused a writ of prohibition to prevent a justice’s court from exercising jurisdiction, under the act of March 23, 1907 (Stats. 1907, p. 199), of an action to recover damages in a less sum than $300 for injuries to crops growing on land in the lawful possession of the plaintiff from trespassing animals belonging to the defendant.</p> <p>Id.—Construction of Statute—“Lawful Possession.”—The “lawful possession” mentioned in the statute is to be construed as importing only “peaceable or quiet possession, as contra distinguished from possession-not merely constructively tortious, but actually so.”</p> <p>Id.—Cause of Action for Injury to Personal Property of Plaintiff —Possession of Land.—An alleged cause of action which seeks to recover for the value of personal property, the injury to which was occasioned by the willful and permissive acts of the defendants in allowing their stock to break and enter upon land in plaintiff’s possession, and destroy his personal property to his damage, does not depend upon the language of the statute; and plaintiff could maintain the same regardless of the fact whether the property was situated on his own land or upon the land of another.</p> <p>Id.—Causes oe Action Under Statute—Actual Possession mat be Shown.—In the causes of action under the statute, the “lawful possession” is virtually an “actual possession” of the land, and such possession may be shown in the justice’s court, where the fact of the possession of the land is a mere incident, and not the basis of the action, which is the injury to crops growing thereon as against a trespasser thereon.</p>

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

<p>Mining Claims—Boundary by Section Line—Location op Survey— Courses and Distances—Incidental Monuments.—Where the disputed boundary of mining claims in an action to quiet title and to restrain interference with plaintiff’s claims depends upon the location of a section line of the government survey forming the boundary between them, in the ordinary course of which the sections are appar-</p> <p>ently square, as called for by the courses and distances given, yet where discrepancies appear in monuments called for, the only question is whether the calls for the monuments are clearly intended to be locative, so as to control courses and distances, or are merely incidental, or conjectural, or indefinite or conflicting, in which case the courses and distances called for in the plat of the survey will control the monuments.</p> <p>Id.—General Exceptions as to Control by Monuments—Absurdity— Inconsistency-—Unreliability.—The doctrine that monuments control courses and distances is never followed where to do so would lead to an absurdity, or where they are inconsistent with the manifest intention of the parties, or where the surrounding circumstances show the courses and distances to be more reliable than the monuments.</p> <p>Id.—Distances Between Corners to Creeks or Boads.—Distances called for between corners to creeks or roads, unless specially designated in such manner as to show the intention to make them locative, are not such, and will not ordinarily have precedence over a call for course or distance.</p> <p>Id.—Location of Section in Eorm of Trapezoid.—There is no basis for holding that in a call for a creek between corners, the United States surveyor, without reason, departed from his usual custom to make the sections square, to the extent of one thousand feet out of the usual course, and located a section in the form of a trapezoid, thereby including a larger area in one section, and a correspondingly diminished area in the adjoining section, and so introduced irregularity and inequality into the survey, where regularity and continuity are supposed to be observed as far as possible.</p> <p>Id.—Reason for Rule as to Control of Monuments.—Whenever precedence is given to a call for a monument or natural object over a course or distance, it is because the former is considered more reliable evidence than the latter of the actual survey.</p> <p>Id.—Reason for Contrary Rule.—There is reason for a contrary rule, when it is unreasonable to conclude that the surveyor made a mistake of one thousand feet in the distance, if any degree of care and skill had been exercised. If he had in view a natural object at that distance, it would be more reasonable to infer that he observed it from a remote point, and guessed at the distance, than that he actually located it by the survey.</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>APPEAL from a judgment of the Superior Court of Santa Clara County, and from an order denying a new trial. John E. Bicharás, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

Angeles County, and from an order denying a new trial.. .Walter Bordwell, Judge. The facts are stated in the opinion of the court.

<p>Action on Claim Against Decedent—Agency foe Purchase—Profits—Credibility of Witnesses—Province of Jury.—In an action on a claim of $5,000 alleged to be due from the estate of a decedent on account of profits made in the purchase by him of property, as plaintiff’s agent, where interested witnesses testified to the claim, though they were presumed to speak the truth, yet where there was evidence before the jury, upon which to determine the weight to be given to their testimony, the jury was entitled to consider their motives and interests, and the conduct of the plaintiff in failing to speak when the circumstances required in good faith he should do so, and even entitled to discredit their testimony, and to find against the existence of any agency, though there was no direct testimony in conflict with such witnesses.</p> <p>Id.—Conclusiveness of Verdict—Review upon Appeal.—If,' basing their finding upon the circumstances appearing in proof, the jury found that the testimony of the plaintiff was not entitled to any consideration, this court would not, for the purpose of reversing the judgment, say the verdict was not justified by the evidence. The jury’s estimate of the credibility of the witnesses might have been reviewed by the trial court on a motion for a new trial; but cannot' be considered by this court on appeal.</p> <p>Id.—Inference from Circumstances — Question of Fact — Eights of Jurors.—The inferences to be drawn from the circumstances of the transaction as to the credibility of the witnesses are peculiarly in the province of the jury; and the jurors are not bound to decide in conformity with the declarations of any number of witnesses, which do not produce conviction in their minds, against a presumption or other evidence satisfying their minds.</p> <p>Id.—Question as to Good Faith of Claim Against Etate.—It is held, upon a review of the evidence, that the jury might have distrusted and questioned the good faith of the claim against the estate, since plaintiff discovered all the facts claimed more than a year prior to the death, that he was well acquainted with decedent, and knew that he could not live long, and met him several times and never mentioned the claim until after his lips were sealed in death.</p> <p>Id.—Absence of Error in Evidence and Instructions.—It is held that there was no error in the rulings upon evidence, or in the instructions given; and that a requested instruction assuming an agency, as matter of law, was properly refused.</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 facts are stated in the opinion of the court'.</p>

<p>Specific Performance—Contract to Sell Land—Agency—Estoppel —Pleading.—In an action to enforce specific performance of a contract for the sale of land not signed by the defendant owner thereof, who is not named therein, but signed only by agents, not authorized to bind the owner, the plaintiff seeking to enforce the contract cannot rely upon an estoppel of the owner to deny the contract, without pleading such estoppel with particularity and precision, leaving nothing to be supplied by inference or intendment, and making it certain to every intent.</p> <p>Id.—General Bule as to Pleading Estoppel.—That a party who has an opportunity to plead an estoppel upon which his cause of action or defense depends must do so is the recognized rule in this state.</p> <p>Id.—Equitable Estoppel in Pais, How Pleaded.—Equitable estoppel in pais, applied to the prevention of fraud and injury, to estop a party from gainsaying the truth of his acts and declarations, must be pleaded by the party relying thereon with the same fullness and particularity as is required in cases involving the like subjects of inquiry in equity.</p> <p>Id.—Insufficient Finding of Estoppel — Conclusion of Law.—By the same rule which requires a pleading to state all the facts constituting an estoppel, the facts constituting the same must be found. A mere general finding that the defendant is estopped, for the purposes of the action, to deny that she executed the contract described in the complaint, is of a mere conclusion of law, and cannot be deemed a finding of fact at all.</p> <p>Id.—Estoppel of Vendor—Acts of Part Performance.—To estop the vendor, or to take the case out of the statute of frauds, acts of part performance must be done by the party seeking to enforce the contract, and with a design of carrying the same into execution, and must be done with the consent and knowledge of the owner.</p> <p>Id.—Averments in Answer not Showing Part Performance.—Averments in the answer which deny the alleged contract, that since its date the owner had expended money to keep in force a mortgage, which by the terms of the alleged contract was to be assumed by the purchaser, and that ever since its date, the plaintiff has enjoyed the use and occupation of the premises, fails to show acts of part performance, by not averring that he entered into possession in pursuance of the contract, or with the knowledge or consent of the owner.</p> <p>Id.—Effect of Use and Occupation.—The mere use and occupation alleged is suggestive as evidence; but the simple allegation thereof is not sufficient as a pleading of part performance, or of estoppel of the vendor.</p> <p>Id.—Tender of Deed Pending Suit on Condition of Payment of Specified Sum—Refusal by Purchaser.—The mere tender of a deed to the alleged purchaser by the owner on condition of the payment of a specified sum, in cash, which such purchaser refused to pay or to accept the deed on that condition, shows no element of estoppel of the owner to deny the execution of the alleged contract, the plaintiff not having taken any action thereon to his detriment or in any way, in reliance thereon, changed his condition.</p> <p>Id.—Supplemental Pleading—Plea of Readiness to Keep Offer and Tender Good—Failure to Embody in Decree.—A plea of the offer and tender and refusal of plaintiff to accept the same in a supplemental pleading, which also avers that since the date thereof the defendant “has been, and now is, ready and willing to make and keep the offer and tender good,” does not estop the defendant from denying the contract, where the terms of the record enforcing the contract do not show that the terms of such offer were incorporated in the decree enforcing the contract.</p> <p>Id.—Plaintiff’s Recovery Limited to Terms of Contract Pleaded. The plaintiff having elected to rely wholly on the alleged contract set forth in his complaint, and the alleged authority of defendant’s agents to bind the defendant, and to try the cause on that theory alone, cannot be allowed to recover on the theory of an estoppel not pleaded by him. He must recover, if at all, upon the cause of action pleaded; and not upon another cause of action not pleaded nor relied upon by him at the trial.</p> <p>Id.—Cause of Action for Specific Performance not Stated — Omitted Averments—Adequate Consideration—Just and Reasonable Contract.—A complaint to enforce specific performance of a contract for the sale of land, which omits the essential averments that the consideration to be paid thereunder is adequate, and that the contract is, as to the defendant, just and reasonable, fails to state a cause of action.</p>

<p>Case in Equity-—Action by County to Enjoin Deposit op Tailings in Stream—Order Changing Place op Trial.—An action by a county to enjoin a mining company from depositing tailings and other refuse from its mines into the Tuba river and branches named, to the special injury of the county, is a ease in equity, of which the supreme court has exclusive appellate jurisdiction, notwithstanding the appeal is taken by both parties from an order changing the place of trial of such action, and both parties have stipulated for an early hearing of the appeal. The cause and papers must be</p> <p>• transferred to the supreme court under rule XXXII.</p> <p>Id.—Absence op Jurisdiction op District Court op Appeal—Matter not Involving Merits Immaterial.—Since the district court of appeal has no jurisdiction of a case in equity under section 4 of article XI of the constitution, it is also without jurisdiction to entertain an appeal therein from an order not involving the merits of the cause.</p>

<p>Action to Enforce Trust—Foreclosure Sale of Mother’s Title-Purchase by Son of Mortgagee’s Title—Pleading.—Where a mother, who had mortgaged her property to a bank, became incompetent, and her daughter became guardian of her person and estate, and the mortgagee acquired title under foreclosure against the mother and her guardian, and a son acquired the bank’s title by purchase, in an action by the administrator of the deceased mother to enforce a trust against such son, mere vituperative epithets as to his fraudulent purpose in acquiring such title have no force, in the absence of averments of fact which would preclude the son from acquiring a title which once belonged to the mother, but of which she had been fully divested under regular foreclosure proceedings.</p> <p>Id.—Representation of Mother’s Title by Guardian.—The guardian, who represented the incompetent mother’s title, was primarily charged with the duty of earing for and protecting the property of her ward, and not the son, who had no official relation to such property.</p> <p>Id.—Defendant’s Connection with Foreclosure Suit Averred—Declarations After Title Acquired—Trust in Title not Created. Where the title of the mortgagee is not assailed, and it is not alleged or suggested in the complaint that the son, who acquired the mortgage title by purchase, had any knowledge of or was connected with the foreclosure proceedings prior to his purchase from the bank, the fact that he thereafter concealed from the other children the title acquired by the bank under foreclosure cannot make him a trustee of the bank’s title acquired by himself from the bank; and no mere oral declarations, representations or promises made after his purchase with his own money of the title of which the deceased mother had been divested prior to his purchase could impress a trust thereon.</p> <p>Id.—Defendant’s Obligation to Redeem not Shown.—Where it does not appear that defendant was intrusted with any money of the incompetent person’s estate with which he could have paid the mortgage or redeemed from the sale, and the guardian was the only person who could raise money from the property, he cannot be charged, as trustee for such estate of his purchase, with his own funds.</p> <p>3b.—No Dereliction of Duty or Fraud Alleged—Cause of Action not Stated.—Where the complaint states no facts showing any dereliction of duty on the part of the defendant, and no facts constituting fraud on his part, and it is not even alleged in general terms that he was guilty of any act or omission, wrongful or otherwise, that resulted in the divesting of the mortgagor’s title under foreclosure by the bank, the complaint states no cause of action against him.</p> <p>Id.—Pleading—Facts Constituting Fraud Essential.—The facts constituting fraud or a fraudulent breach of duty must be alleged. The existence of facts constituting fraud cannot be left to depend upon conjecture and inference in a pleading.</p>

<p>Criminal Law—Forgery—Pleading—Proof—Indorsement of Beal or Fictitious Name of Payee of Check—Construction of Code— Amendment.-—If it be assumed that the forged indorsement of the fictitious name of the payee of a check, with intent to defraud a genuine drawer thereof, falls within the terms of section 476 of the Penal Code, prohibiting the forgery of any “fictitious check”; yet, under the amendment of section 470 of the same code, as amended in 1905, the information may charge the forged indorsement of a cheek payable to a third person, without averring whether the name of the payee was real or fictitious, and without the necessity of proving whether or not the payee was a real or fictitious person.</p> <p>Id.—Effect of Indorsement of Check — “Order for Payment of Money.”—The indorsement of the name of the payee of a check is equivalent to an “order for the payment of money” within the terms of section 470 of the Penal Code.</p> <p>Id.—Evidence—Scheme to Defraud Drawee—Appeal for Charitable Subscription—Entry in Book—Bes Gestae.—Evidence that defendant and another person called upon the drawer of the check for a charitable subscription to the person named as payee of the check, and represented themselves to be a committee to raise funds for him as a person in need, and exhibited other subscriptions, whereupon the drawee of the cheek signed such subscription-book with the amount of the check, and drew it in favor of the person designated, whose name the defendant forged, such subscription-book, found in the possession of the defendant when arrested, was admissible as part of the res gestae as to the procurement of the check.</p> <p>Ib.—General Objection to Book too Broad.—A general objection to the admissibility of the book as tending to prove other offenses is too broad, the book being clearly relevant to the offense, charged.</p> <p>• The other entries did not tend to prove any other offenses, in the absence of evidence that the persons were defrauded, and the defendant could not be prejudiced merely by the fact of such other entries.</p> <p>Id.—Argument for Prosecution—Vituperation—Beversal not Bequired.—Though the argument of the assistant district attorney, in the use of vituperative language concerning the defendant, transcended the proper limits of argument, yet it is not deemed of such a grave character as to require a reversal of the judgment. .</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. Frank J. Murasky, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

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

<p>APPEAL from an order of the Superior Court of San Benito County, refusing to change the place of trial. M. T. Dooling, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Habeas Corpus—Plea of Guilty to Charge of Vagrancy.—A defendant who has pleaded guilty under a complaint charging him with the crime of vagrancy, in that, being known to be a confidence operator by his own confession, and having no visible means of support, he was found willfully and unlawfully loitering about and around a broker’s office,. and which states a public offense in the language of section 647 of the Penal Code, is not entitled to bo discharged upon habeas corpus.</p> <p>Id.—Meaning of Term “Confidence Operator.”—The term “confidence operator” used in the statute has a settled meaning, and implies that the person so designated is engaged in swindling operations in which advantage is taken of confidence reposed by the victim in the swindler.</p> <p>Id.—Police Power of Legislature.—Persons who are “confidence operators” are a menace to society; and the police power is broad enough to warrant legislation looking toward their suppression. It is certainly within -the legislative power to provide that one having no visible means of support, and who admits that he is a swindler and is found lounging about places of public assemblage, thereby becomes a vagrant.</p> <p>Id.—Valid Enactment in Penal Code.—-There is nothing in the enactment of the Penal Code under which the charge of vagrancy was made in anywise abridging privileges or immunities of citizens, nor doing or seeking to do aught than to protect well-disposed and orderly citizens from the depredations of the idle and vicious.</p> <p>Id.—Statute not Making Confession of Calling an Offense.—The statute does not make confession of the calling an offense, nor justify a conviction alone on that ground. It simply makes the admission of the truth of one of the elements of the offense sufficient to establish that element as to the defendant’s status.</p> <p>Id.—Effect of Plea of Guilty.—The plea of guilty entered by the defendant includes the -admission of every element constituting the offense of vagrancy as defined in the Penal Code.</p> <p>Id.—Question of Corpus Delicti not Involved.—Though the corpus delicti of an offense cannot be established by any mere confession, yet the plea of guilty in this case removes that question from consideration.</p>

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

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

<p>APPLICATION for writ of habeas corpus to the custodian, of the city jail of Los Angeles.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Construction of Deed—Grant of Fee—Written Habendum—Dife Estate—Remainder—Reference to Undelivered Deeds—Parts of Deed.—A deed from a husband to his wife purporting in the printed part thereof, with blanks filled, to grant an estate in fee to her and her heirs, in which the habendum, clause was qualified in writing to be held by her “during the remainder of her natural life, and upon and at the time of her death, the title to all of said property shall pass to and be vested,” in seven children named, referring to “their separate deeds to each,” executed by the husband and wife to them and each of them, must be construed as granting only a life estate to the wife, with remainder to the children named; and although the deeds referred to were undelivered and ineffective, they are nevertheless parts of the deed to the wife, and may be read as parts thereof.</p> <p>Id.—General Rule as to Reference in Deed.—A deed may refer to another document, sufficiently identified, with the same effect as if the document referred to was set forth in full in the deed.</p> <p>Id.—Construction to Effectuate Manifest Intention.—It is the tendency of the courts to construe a deed so as to effectuate the manifest intention of the parties. The entire deed must be read to get at the intention of the grantor.</p> <p>Id.—Granting and Habendum Clauses—Effect—Consistency with Intent.—Effect must be given to the habendum clause as well as to the granting clause in a deed; and effect must be given to both so as to be consistent with the evident purpose and intent of the grantor.</p> <p>Id.—Purpose of Habendum Clause — Prevalence Over Granting Clause.—The purpose and object of the habendum clause is to limit, enlarge, and make clear the estate granted by the premises. To effectuate the intention of the parties, the habendum clause will prevail over the granting clause to the extent of destroying its effect.</p> <p>Id.—Determination of Estate—Clear and Distinct Words.—Whether a life estate or an estate in fee is conveyed must be determined by considering the deed as a whole; and when the limitation to a life estate is made by clear and distinct words in the habendum clause, it cannot be controlled by less clear and distinct words elsewhere.</p> <p>Id.—Use of Word “Heirs” not Essential to Fee.—The use of the word “heirs” in the granting clause is not necessary to constitute an estate in fee not otherwise limited. That word adds nothing to the effect of the deed to a named grantee.</p> <p>Id.—Clear Limitation to Life Estate—Manifest Intent not to be Defeated.—Under a deed clearly limiting the grant to a wife to a life estate in the habendum clause, the manifest intention of the grantor is not to be defeated by the application of subtle and unsubstantial distinctions and technical and arbitrary rules.</p> <p>Id.—Possession of Life Tenant not Adverse to Remaindermen.— The possession of a life tenant is not adverse to the interests of the remaindermen or reversioner, and no prescriptive title can be acquired by the life tenant against them.</p> <p>Id.—Gift of Community Property Acquired Before Code Amendment —Written Consent not Required—Absence of Fraud.—If community property was acquired by a husband prior to the amendment of section 172 of the Civil Code in 1891, and a life estate was given therein to his wife during her life, the remainder may be given to her children, if not intended as a fraud upon his wife, without her written consent thereto.</p>

<p>High School Bonds—Notice of Election—Annual ok Semi-annual Payment of Interest Essential.—In a notice of an election for bonds to be issued by a high school district, under section 1745 of the Political Code as enacted in 1909 (Stats. 1909, pp. 488, 489), the high school board is required to specify “the rate of interest, not exceeding six per cent per annum, payable annually or semi-annually.” When the notice only expressed that the bonds “shall bear interest at four and one-half per cent per annum,” and wholly omitted the provision for annual or semi-annual payment, the defect in the notice is fatal to the validity of the bonds.</p> <p>Id.—Legal Effect of Notice Given.—The legal effect of the notice given was to depart wholly from the statute, and make the specified rate of interest not payable until the maturity of the bonds.</p> <p>Id.—Meeting- of Minds Essential to Valid Contract.—Under the law the taxpayers are made one party to the contract for the bonds and the purchaser of the bonds is another party thereto; and their minds must meet in order that the contract shall be valid.</p> <p>Id.—Market Value of Bonds Injuriously Affected.—The failure to comply with the statute must of necessity injuriously affect the market value of the bonds as the subject of sale.</p> <p>Id.—Lack of Power in Supervision to Correct Bonds Voted for.— The power given to the supervisors to order the issuance of bonds properly voted for after the return made of a proper election by the high school board does not confer upon them any authority to cure the omission to specify the time of payment of the interest in the notice of election for the bonds.</p> <p>Id.—Mandamus not Allowable Against County Clerk.—The bonds ordered issued by the supervisors being invalid, the action of the county clerk, as ex officio clerk of the board of supervisors, in refusing to sign the bonds ordered by the board, was justified, and mandamus is not allowable to compel him to sign them.</p>

<p>Venue—Residence of Defendant—Error in Refusing Change.—Where the uneontradicted evidence of the defendant shows that his only-permanent home and place of residence is in the city and county of San Francisco, the refusal of the superior court of Santa Cruz county to allow him to change the place of trial thereto was erroneous.</p> <p>Id.—Temporary Summer Home in Santa Cruz County—Place of Service of Summons Immaterial.—The fact that defendant owns a ranch in Santa Cruz county, and was making his temporary summer home there when served with the summons, cannot affect his right to demand a change of the place of trial to the county of his permanent residence.</p> <p>Id.—Nature of Residence—Meaning of Statute.—Within the contemplation and meaning of the statute, a person can have but one bona fide residence. Residence depends upon intention as well as fact; and in the ordinary acceptation it is the place where one remains when not called elsewhere on business, pleasure, or for other temporary purpose.</p> <p>Id.-—Mere Inhabiting of Summer. Home or Country House.—The mere inhabiting of a summer home or country house at certain seasons of the year or at certain times would not make the party inhabiting a resident of the county in which such house is situated, unless it be his intention to remain there permanently, so as to make it his domicile.</p> <p>Id.—Place of Residence—Fixed Home.—The place of residence, within the meaning of the statute, is the fixed home of a party, as understood by himself and his neighbors and friends.</p> <p>Id.—Affidavit of Merits.—A subsequent affidavit of merits incorporated in the bill of exceptions is part of the record.</p>

<p>Criminal Law—Obtaining Monet Under False Pretenses—Sale op Fraudulent Mining Stock—Corroboration op Accomplice.—In an action for obtaining money under false pretenses by a sale of fraudulent mining stock, where the bookkeeper of the mining corporation, as an accomplice, testified to a scheme by which the stock was fraudulently issued under a false name which defendant indorsed upon it, under which defendant was to sell the stock and divide the proceeds with him, the testimony of the accomplice was sufficiently corroborated by the independent proof of the broker and his clerk, in whose office the stock was sold and the money paid, that the defendant presented the stock for sale under an assumed name, falsely representing that he had purchased it from the first holder, and that the name given by him was his true name, thus tending to connect defendant with the commission of the offense.</p> <p>Id.—General Bules as to Corroboration op Accomplice.—The independent evidence required to tend to connect the defendant with the commission of the offense, to corroborate an accomplice who has testified to a fraudulent scheme including the commission of the offense, need not be sufficient to establish the guilt of the defendant, irrespective of such testimony, but it is sufficient if it tends to implicate the defendant and connect him with the transaction and with the crime.</p> <p>Id.—Absence op Accomplice prom State—Deposition at Preliminary Examination—Discretion.-—-Where the evidence shows without conflict that the accomplice at the time of the trial was not a resident of the state, and was not present at the trial, and could not be found at the place of his former address in this state, the court did not abuse its discretion in allowing in evidence his deposition taken at the preliminary examination.</p> <p>Id.—Telegram and Answer—Harmless Error.—Conceding that a telegram to the witness out of the state and his answer thereto were hearsay, and not admissible to justify the admission of the deposition, the error in admitting the same was harmless, where there was evidence sufficient to justify the admission of the deposition regardless of the telegrams.</p> <p>Id.—Absence op Variance as to Obtaining Money prom Stockbroker.—The averment in the information that the money obtained by false pretenses was procured from the stockbroker, to whom it was sold under false pretenses, and the proof that he procured the money by the written request of the broker by means of a check on the bank to pay the money to the defendant, which he obtained, does not show a variance requiring a reversal. The defendant obtained the money from the broker, no matter what means were used in conveying his money -to the defendant.</p> <p>Id.—Double Averment as to Ownership op Money and Intent to Defraud.—Failure op Proof as to One.—Where the information doubly averred that the money was the property of the broker, and of the mining company whose stock was fraudulently sold, and that.the intent was to cheat and defraud both, the failure of proof as to the averment that the money belonged to the mining company was immaterial, where the evidence is clear that it was the property of the broker, and that the intent was to cheat and defraud him.</p> <p>Id.—Requested Instruction Properly Refused—Presumption of Fraudulent Intent—False Pretenses Known to be Untrue.—A requested instruction to the effect that a fraudulent intent is not to be presumed or inferred upon proof of fraudulent acts or pretenses, the party making them knowing them to be untrue, was properly refused.</p>

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

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

<p>Criminal Law—Depositing Nitro-glycerine Explosive Near Dwelling—Particular Explosive—Information—Certainty.—An information under section 601 of the Penal Code, charging the defendant with depositing at, in or near a certain dwelling-house, upon the porch thereof “a certain nitro-glycerine explosive, commonly known as dynamite or giant powder,” is not uncertain as to the explosive charged. «The statement of “nitro-glycerine explosive” alone would be certain within the meaning of the statute; and the addition of particular nitro-glycerine explosives did not make it less certain, when according to the expert evidence they are the same nitro-glycerine compound, and the two terms are mentioned as synonymous by some lexicographers.</p> <p>Id.—Intent- Charged Conjunctively—Duplicity—Instruction.—The information was not bad for duplicity because alleging conjunctively the intent then and there “to injure, intimidate and terrify” certain human beings named; and it was proper for the court to charge the jury that evidence showing an intent either to injure, or to intimidate or to terrify either of the persons named in the information, was sufficient to sustain a conviction.</p> <p>Id.—Absence of Basis for Election.—Where the information is so drawn that a conviction may be had upon any one of several alleged violations of the law charged conjunctively, there is no basis for an election; and it is not error for the court to refuse to require an election by the prosecution.</p> <p>Id.—General Bule as to Conjunctive Charges.—Where, in defining an offense, a statute enumerates a series of acts, either of which separately, or all together, may constitute the offense, all such acts may be charged in a single count, for the reason that notwithstanding each may constitute an offense, all of them together do no more, and likewise constitute but one and the same offense.</p> <p>Id.—Evidence—Unsealed Letter from Defendant to Wife—Confession—Custody of Officer—Communication not Privileged—Wife not Witness.—An unsealed and uninclosed letter from defendant to his wife stating a confession of the offense charged, delivered by him to an officer to be shown to the wife, and redelivered by her to the officer at his request, and who kept the same in his custody, was admissible in evidence against the defendant, and is not objectionable as being a privileged communication either under section 1881 of the Code of Civil Procedure, or under section 1322 of</p> <p>the Political Code, the wife not having been called or examined as a witness against her husband.</p> <p>Id.—Illegal Obtaining op Letter Immaterial.—If it be conceded that the final custody of the letter was illegally obtained by the officer, this would not operate to exclude it from evidence, either on the ground that it was a privileged communication or that the evidence was self-incriminating; and the unlawful obtaining of the document which was pertinent to the issue as to the defendant’s guilt was no valid objection to its admissibility.</p> <p>Id.—Foundation por Confession—Proof op Corpus Delicti—Discretion—Order of Proof.—It is held that the order of proof of the confession and corpus delicti was in the discretion of the court; but that a sufficient foundation was laid for the admission of the confession, and that the corpus delicti was sufficiently proved before the confession was admitted in evidence.</p> <p>Id.—Corpus Delicti, How Shown.—The corpus delicti sufficiently appeared from the fact established that some one had placed the explosive on the porch of the dwelling-house, and had placed and fired a fuse so as to explode it. All the intent necessary for the offense charged could be inferred from that evidence.</p> <p>Id.—Argument of District Attorney—Comment upon Implied Admission op Dependant.—While it would not be proper for the district attorney to base an argument upon evidence excluded by the court, yet he is authorized to base an argument upon evidence admitted by the court as to incriminating facts proved to have been stated to the defendant which called for a reply, and to which he made no reply, thus implying his admission of the facts charged.</p> <p>Id.—Accusation of Crime Against Person Under Arrest.—In this state an accusation of crime calls for a reply, even from a person under arrest or in the custody of an officer, where the circumstances surrounding indicate that he was entirely free to reply if he chose to do so.</p> <p>Id.-—Accusation as to Throwing Books into Dwelling—Silence — Bebuttal op Statement.—An accusation against the defendant by the officer that he threw rocks into the dwelling, called for a reply, and such accusation and his silence may be proved against him as tending to rebut defendant’s statement that he placed dynamite upon the porch as a “harmless bluff,” without intent to injure anyone.</p>

<p>Divorce—Interlocutory Decree—Determination op Property Bights. The superior court, in the absence of an order otherwise, has jurisdiction in an action for divorce to hear and determine in its interlocutory decree the property rights of the parties in a tract of land in controversy between them.</p> <p>Id.—Extreme Cruelty—Equal Division op Homestead.—Where the husband sued for a divorce for extreme cruelty, and to establish the rights of the parties in a homestead on community property, which the wife claimed as her separate property, an interlocutory decree establishing the husband’s right to the divorce sued for, and adjudging the property to be a homestead as claimed, to be equally divided between them, awarded to the husband the least interest which could be assigned to him under section 146 of the Civil Code upon a divorce for extreme cruelty.</p> <p>Id.—Authority op Court.—The court had authority, under section 147 of the Civil Code, to make an order in the divorce proceedings relative to the community property, and, if necessary, to order a partition or sale thereof.</p> <p>Id.—Pleadings—Answer and Cross-complaint—Trial of Issues— Estoppel.—Where the wife took issue as to the character of the property, not only by her answer to the complaint, but also by her cross-complaint seeking a divorce, and to have it adjudged that the property in question was her separate property, and no- objection having been urged to the pleadings, and the parties having appeared and tried the issues presented, the wife is precluded from objecting to the jurisdiction of the court to pass upon the issues presented in rendering the interlocutory decree.</p> <p>Id.—Finality op Interlocutory Decree.-—After the lapse of six months from-the date of the interlocutory decree, it became absolutely final as to the property rights determined thereby.</p> <p>Id.—Absence op Jurisdiction to Modify Findings or Grant New Trial.—After the interlocutory decree has become absolutely final, the court had no jurisdiction to modify the findings upon which it was based, nor to grant a new trial.</p> <p>Id.—Validity op Divorce Law—Right op Plaintiff to Dismiss.—The divorce law conferring upon the plaintiff the right to dismiss the action within one year after entry, and binding the defendant six months after entry in the absence of an appeal, does not violate any principle inhibited by the fourteenth amendment to the constitution of the United States, or present any federal question.</p> <p>Id.—Equal Protection of Laws not Denied.—Where the law operates uniformly on all persons in the same category as plaintiffs in divorce suits, and applies impartially as to the rights of all defendants therein, it does not deny the equal protection of the laws.</p> <p>Id.—Jurisdiction op Divorce Courts Governed by Sovereign Law of State.—The jurisdiction of divorce courts, like the jurisdiction of probate courts, rests upon the right of a sovereign state to exercise control over all property within its boundaries, and to determine the status or condition of the inhabitants or persons found within its borders.</p> <p>Id.—Reaffirmance in Final Decree—Appeal not Allowed.—The fact that the final decree restated and reaffirmed the matter before embodied in the interlocutory decree conferred no right of appeal as to matters finally adjudicated in the interlocutory decree.</p> <p>Id.—Reservation op Execution by Partition or Sale.—The reservation in the interlocutory decree as to carrying it into execution by partition or sale at the time of the final decree does not affect the finality of th'e interlocutory decree, determining the rights of the parties.</p> <p>Id.—Dismissal of Ineffective Appeals.—A notice of appeal from the final judgment given more than six months after the entry of the interlocutory judgment cannot be effective as presenting for review any question involved therein, and an appeal from an order denying a new trial, which is too late to be effective for any purpose, cannot be considered; and such appeals will be dismissed as ineffective. Id.—Appeal from Order After Judgment—Appointment of Referees to Make Partition or Sale—Error not Appearing.—Though the appointment of referees to make partition or sale and report to the court is an order after judgment in aid of execution, the court had jurisdiction to make it, and it is not final in its nature; and in the absence of any manifest error or irregularities appearing therein, it must be affirmed.</p>

<p>APPEAL from a judgment of the Superior Court of Los Angeles County, and from an order denying a new trial. "Walter Bordwell, 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 defendant’s motion to vacate the judgment for plaintiff, and to direct judgment for defendant. John Hunt, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

CROSS-APPEALS from an order of the Superior Court of Yuba County, changing the place of trial of the action. Eugene P. McDaniel, Judge. The facts are stated in the opinion of the court, and in the opinion of the trial judge adopted by the court.

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

<p>•Criminal Law—Forgery op Lease—Uttering and Publishing by Record — Pleading — Duplicity — Surplusage. — An information charging the forgery of a lease, and the uttering and publishing, and passing the same as true and genuine, by offering the same for record, charges but one offense under section 470 of the Penal Code, and contains no substantive averment of the offense defined in section 115 of the Penal Code, of procuring any forged instrument to be recorded, which, if genuine, might be recorded, etc., and the mere description of the manner of uttering and publishing the forged lease is evidentiary, and should be disregarded as surplusage.</p> <p>Id.—Evidence op Record.—In the absence of a direct averment that the forged lease was procured or offered for record, proof that it was offered for record would constitute evidence of its alleged utterance and publication.</p> <p>Id.—Absence op Demurrer—Waiver op Objection to Information.— In the absence of a demurrer, any objection, to the evidentiary matter in the information must be deemed to have been waived.</p> <p>Id.-—Evidence—Hearsay—Declarations op Deceased Owner op Land. Declarations of the deceased owner of the land in whose name the lease was forged, made outside of the presence of the defendant, and constituting no part of the res gestae, and which were prejudicial to the defendant, were inadmissible hearsay calling for a reversal.</p> <p>Id.—Objections and Exceptions not Required to be Repeated.— Where numerous objections were interposed to such hearsay evidence, and exceptions taken thereto, they were not required to be continually repeated to similar evidence, and the objections and exceptions taken entitled the defendant to a review of each and all of like rulings.</p> <p>Jd.—Mental State of Deceased Toward Defendant Immaterial.— The mental state of the deceased toward the defendant was irrelevant to the guilt or innocence of the defendant.</p>

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

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

PETITION for writ of habeas corpus to the city marshal of the city of Upland, San Bernardino County. The facts are stated in the opinion of the court.

<p>APPEAL from a judgment of the Superior Court of Los Angeles County, and from an order denying a new trial. Frederick W. Houser, Judge.</p> <p>The facts are stated in the opinion of the court.</p> <p>G. E. Delavan, Jr., and Thomas C. Ridgway, for Appellant.</p>

<p>Contest of Bight to Purchase School Lands—Assignment of Certificate of Purchase by Defendant to Plaintiff—Insufficient Defense—Conditional Delivery.—In a contest of the right to purchase state school lands, where the complaint alleges an assignment and delivery of a certificate of purchase from the defendant to the plaintiff, and the answer does not directly deny the same, but alleges that the delivery was conditional and the assignment was not to take effect until a mortgage on the premises should be first paid by the assignee, such answer presents no defense to the assignment and delivery.</p> <p>Id.—Code Bulb Against Conditional Delivery of Deeds Applicable. The rule established by section 1056 of the Civil Code that a deed cannot be delivered conditionally is equally applicable to transfers by deed or assignment of a certificate of purchase, which represents an interest in real property.</p> <p>Id.—Interest in Certificate Subject to Sale by Deed or Assignment Executed and Acknowledged—Query.—The interest in a certificate of purchase is by section 3515 of the Political Code, subject to sale by deed or assignment executed and acknowledged before any officer authorized by law to take acknowledgments of conveyances of real property. Query, whether an acknowledgment is necessary as between the parties.</p> <p>Id.—General Bule Against Conditional Delivery not Expressed in Instrument.—If the delivery be to the party to whom it is made, though upon an express condition, not appearing upon the face of the deed, that it is to take effect only upon certain conditions, whatever may be the form of the words, the delivery is absolute, and the deed takes effect immediately.</p> <p>Id.—Written Assignment of Certificate of Purchase not to be Varied by Parol Evidence.—To permit the introduction of oral evidence tending to establish an agreement contrary to the plain import of the written assignment of the certificate of purchase delivered to the plaintiff, which on its face is absolute, would be in direct violation of the cardinal rule that the terms of a written instrument cannot be varied or altered by evidence resting in parol.</p> <p>Id.—Parol Evidence to Show Want of Delivery—Inapplicable Rule.—The rule that parol evidence is admissible to show that no delivery of any kind was effected is inapplicable to the present case, since the pleadings admit the execution and delivery of the assignment, and the only question urged is that the assignment and delivery were conditional, which can only be determined from the language of the instrument, the operation and effect of which cannot be abridged or limited by attaching thereto parol conditions and qualifications.</p> <p>Id.—Finding Based upon Inadmissible Oral Evidence Unsupported. A finding based upon oral evidence, the admission of which constituted prejudicial error, cannot be permitted to "stand.</p> <p>Id.—Rescission of Executed Assignment Untenable.—A plea and finding of the rescission of the executed assignment by consent, without a reassignment thereof to defendant, is untenable in law. Rescission for failure of consideration or breach of contract presupposes an executory contract, and cannot apply to a fully executed assignment of a certificate of purchase.</p> <p>Id.—Effect of Breach of Executory Contract to Pay Mortgage— Action for Damages.—The breach of the executory contract to pay the mortgage in consideration of the executed and delivered assignment could not warrant a rescission or revesting of the property in defendant under section 1689 of the Civil Code, but only gave to the defendant a cause of action for damages only.</p> <p>Id.—Agreement for Retransfer upon Payment of Mortgage by Defendant—Specific Performance.—An agreement for a re-transfer of the certificate of purchase upon the payment of the note and mortgage by defendant constituted a distinct transaction, giving a remedy, if at all, by an action for specific performance.</p> <p>Id.—Cause of Action for Specific Performance not Established.— The defendant has failed to establish a cause of action for a specific performance. A parol contract to convey an interest in land is not binding under the statute of frauds; and acts of part performance sufficient to take the case out of the statute are not established, for though it is alleged and found that the purchase money was paid, an issue tendered by the pleadings as to possession of the land or improvements thereon, is not passed upon in the findings.</p>

<p>Execution op Judgment—Supplementary Proceedings—Examination op Garnishee by Attachment—Denial op Indebtedness.— In proceedings supplementary to the execution of a judgment, in an action in which there was a previous garnishment under attachment of a creditor then indebted for money due to the attachment debtor, who failed to respond to the garnishment, the court had jurisdiction in such supplementary proceedings to order the payment of the debt garnished; and the mere denial by the garnishee of the indebtedness, which the other averments and admissions of the parties show to be an erroneous conclusion from the whole transaction, cannot divest the jurisdiction of the court under section 719 to order payment of the debt due to the judgment debtor.</p> <p>Id.—Payment to Sheripp under Garnishment upon Dipperent Execution—Failure to Direct Payment under Prior Attachment.— Where the money due from the creditor to the debtor was'paid to the sheriff when garnished under a different execution in favor of third persons, and the creditor failed to direct payment under the prior garnishment by the attaching plaintiff for a sum exceeding the amount owed to the debtor, it should be held, notwithstanding such payment, and the denial of indebtedness by the creditor to such attaching plaintiff in the proceedings supplementary to his execution, on account of such payment, that the creditor is in the same position, so far as the prior garnishee is concerned, as though it had retained the money due, and made no payment to the sheriff.</p> <p>Id.—Effect of Prior Garnishment—Specific Debt to be Paid to Sheriff—Continuance of Liability.—The effect of the prior garnishment was to make the creditor of his debtor, liable to the attaching plaintiff, as his debtor, for the amount of such debt, to be applied upon his larger demand, and under section 544 of the Code of Civil Procedure, unless the amount of such debt due to the attaching plaintiff be paid to the sheriff, his liability to the plaintiff for the amount thereof continues until the attachment is discharged, or any judgment recovered by him be satisfied.</p> <p>Id.—Payment to Sheriff must be as Agent of Plaintiff.—The payment .to the sheriff which is to relieve the garnishee of liability to the plaintiff to the full extent of the credit garnished must be to him as agent of the plaintiff, in pursuance of the service of the garnishment effected by the plaintiff.</p> <p>Id.—Garnishee not Believed by Failure to Disclose Debt and Payment under Later Garnishment.—The garnishee cannot be relieved from liability for the amount of the debt to plaintiff by failure or refusal, in violation of plain duty to disclose the debt due therefrom to the defendant in the attachment suit, and by the continuance to hold the money due without answer until served with another execution in favor of third parties, when the money is paid without suggestion as to the former service or appropriation of payment.</p> <p>Id.—Misleading Course—Estoppel.—The law does not permit one in such manner to deceive and mislead another as to liability, and then take refuge under the plea that the other should not have been misled.</p> <p>Id.—Bemissness Misleading Sheriff.—It does not seem just or reasonable, in view of appellant's palpable remissness, that the sheriff should be held liable because he innocently paid money to the wrong party, whbn the garnishee had refused to make answer to the sheriff under the prior garnishment, thus operating as a fraud upon the respondent, without disclosure of the true facts to the sheriff.</p> <p>Id.—Affidavit in Supplementary Proceedings—Payment in Compliance with Attachment—Opinion of Affiant.—Eeld, that in view of the undisputed facts, an affidavit filed upon the order to show cause in the supplementary proceedings, by the president of the defendant bank, stating that the money had been paid to the sheriff, in compliance with the attachment, could properly be treated as the mere opinion of the affiant, and as such disregarded.</p> <p>Ib.—Denial of Indebtedness—Conclusion of Law—Admitted Pacts —Proper Order Appealed from.—Under the admitted facts, the denial by the garnishee of any indebtedness to the attaching creditor, should be treated as of a legal conclusion, and was properly disregarded by the judge in its order in the supplementary proceedings appealed from, requiring appellant, as garnishee, to pay respondent, as attaching and judgment creditor, the amount owed t® the attachment debtor at the time of the attachment, to be applied toward satisfaction of such judgment, and such order must be affirmed.</p> <p>Id.—Remedies fob Judgment Creditors Against Third Persons.— The law provides three remedies in favor of judgment creditors against third persons: 1. By the supplementary proceedings provided for in section 719 of the Code of Civil Procedure, and adopted herein; 2. By a separate action to establish the indebtedness if it be denied, and to recover the debt as authorized by section 720 of the Code of Civil Procedure; and 3. By a proceeding to enforce the statutory liability imposed upon the garnishee by section 544 of the Code of Civil Procedure. ■ But there is no reason, under the facts here disclosed why the first course should not be pursued, where no useful purpose would be subserved by subjecting the parties to the delay of another proceeding to reach the same just conclusion.</p>

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

PETITION for discharge upon writ of habeas corpus, under a charge of violation of an ordinance of Sonoma County. The facts are stated in the opinion of the court.

<p>Dedication of Land for Specific Purpose—Use for Other Purpose— Consent Essential.—When land has been dedicated to a definite and specific purpose, the property cannot, without the consent of the grantor or devisor, or his successor in interest, be used for any other purpose.</p> <p>Id.—Dedication of Land by State in Municipality—Power of Municipality and of State.—When the state has dedicated land in a municipality for specified purposes, although the municipality , has no power to divert the property from such purposes, yet the right of the state to do so, on the other hand, is unlimited, unless there are contract restrictions, or private rights involved.</p> <p>Id.—Dedication of School Lands in San Francisco—Freeholders’ Charter—-Lease of Land not Needed for School Purposes.-— Where the state dedicated land in San Francisco for school purposes, it had power to authorize the city board of education therein to lease such land when not needed for school purposes for a term of years, and did confer such power by approving its freeholders’ charter pursuant to the constitution, conferring such power in subdivision 11 of chapter III of article YU of such charter. A lease made thereunder is as valid and effective as if the legislature, on its own initiative, had authorized and directed the board of education to execute it.</p> <p>Id.—School Land a State Affair—Construction of Political Code —Absence of Conflict with Charter.—Although the school law is a state, and not a municipal affair, yet there is nothing in chapter III of title III of the Political Code, regulating public schools, inconsistent with the charter defining the powers of the board of education in San Francisco. Section 1616 of the Political Code expressly provides that the powers and duties of boards of education elected in cities under the provisions of the laws governing such cities, are as prescribed in such laws, except as otherwise in such code provided. There is nothing in section 1617 of that code conferring general powers upon boards of trustees of school districts, and upon boards of education in cities, nor in subdivision 20 thereof, inconsistent with section 1616 thereof, nor with the freeholders’ charter of San Francisco.</p> <p>Id.—Consistent Provision in Political Code with Charter Provision—Power to Bent School Property.—Subdivision fourth of section 1617 of the Political Code is consistent with the charter of San Francisco, in conferring general power upon boards of education in cities and upon trustees in school districts “to rent . . . school property.” This provision cannot be construed as conferring power to rent property for school purposes, since property so rented would not be school property.</p>

<p>MOTIONS to dismiss appeals from a judgment of the Superior Court of Alameda County, and from order denying a new trial, dismissing proceedings for settlement of a bill of exceptions, and dismissing the motion for a new trial. F. B. Ogden, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

MOTION to dismiss appeal from a judgment of the Superior Court of Alameda County. F. B. Ogden, Judge. The facts are stated in the opinion of the court in case No. 672, supra.

MOTION to dismiss an appeal from an order of the Superior Court of Alameda County denying a new trial. F. B, Ogden, Judge. The facts pertaining to the motion are the same as art» stated in the ease numbered 672, supra.

<p>APPEAL from orders of the Superior Court of Alameda County, denying a petition for partial distribution of an estate of a deceased person, and granting a petition for final distribution. P. B. Ogden, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Unlawful Detainer—Holding Over After Term—Pleading—Three Days’ Notice to Quit not Required.—A complaint for unlawful detainer, which does not attempt to state any cause of action for detainer after default in payment of rent, but solely alleges that the tenant is holding over without the consent of his landlord, or of plaintiff as his successor in interest, after, the expiration of his term, need not allege three days’ notice to quit, which is not required in such a case.</p> <p>Id.—Option to Renew Lease—Proviso as to Higher Rent Offered—-Lease to Third Party—Good Faith—Suit for Possession.—Where the lease contained an option to the original lessees, to whom defendant was successor, to renew the lease for another two years, provided they pay as high rent as is offered by other parties, and defendant gave notice of his option to renew the lease, but before the end of the term, after such notice, plaintiff gave notice of a higher written offer made by a third party, which defendant refused to pay, plaintiff, if such offer was made in good faith, might execute a lease to such third party at the higher rental, dependent on possession, and demand and sue defendant for possession in unlawful detainer.</p> <p>Ib.—Parties to Unlawful Detainer—Demurrer for Defect Properly Overruled.—Neither the original lessors, nor the new lessee, whose lease was conditioned on possession, were required to be joined as parties coplaintiff in the action for unlawful detainer; and a demurrer for defect of such parties was properly overruled.</p> <p>Id.—Rules as to Option for Renewal.—Where a lease gives to the lessee the option of a renewal for a given term at the same rental,' a notice of election given in time, extends the term; but where the rental is not fixed, but is to be determined by what others might offer, if a higher offer is made in good faith, the refusal of the lessee to make an equal offer terminates his right under the option.</p> <p>Id.—Sufficiency of Complaint — Averment • of Rental "Value.— Upon the face of the complaint, which alleges that the offer made by the new lessee is the reasonable value of the use of the premises, which defendant declined to accept, upon general demurrer admitting such allegation, it must be presumed that the offer was made in good faith, and the court did not err in overruling the demurrer.</p> <p>Id.—Motion to Strike Out—Prejudicial Error not Appearing.—■ 3eld, that a motion to strike out parts of a complaint, which is not fully disclosed in the printed lines of the complaint in the transcript, in so far as the matter objected to can be identified in the transcript, was denied without prejudicial error.</p> <p>Id.—Trial op Issue as to Good Faith op Opper—TTncontradicted Evidence—Inferences of Fact—Support of Finding.—Where the answer denied the good faith of the offer of a higher price, and alleged that the bid was made with intent to defraud the defendant, and the court found that it was made in good faith without intent to defraud, it is held that while the evidence was without conflict, and a finding for the defendant would have been sustained; yet as inferences of fact from the evidence is matter about which fair and impartial minds might differ, the finding made will be sustained.</p> <p>Id.—Burden op Proof upon Dependant.-—As to the matter of the defense affirmatively pleaded in the answer, the burden of proof is upon the defendant.</p>

<p>PETITION for discharge upon writ of habeas corpus, under conviction of violating a county ordinance of Glenn County, in a justice’s court therein.</p> <p>The facts are stated in the opinion of the court.</p> <p>Frank Freeman, C. L. Donohue, W. T. Belieu, and G. R. Freeman, for Petitioner.</p>

<p>Writ of Review—Service of Writ or Order to Show Cause.—Upon an application for a writ of review to annul the action of a judge of the superior court, a service of the writ or order to show cause upon the officer and tribunal to whom it is directed is all that is required by the statute.</p> <p>Id.—Scope of Writ.—Though the writ of review cannot be made to perform the office of a writ of error for the correction of errors of law or fact, yet the full scope of the remedy is as described in section 1068 of the Code of Civil Procedure, to wit, to determine whether an inferior tribunal, board or officer exercising judicial functions has exceeded its jurisdiction, where there is no appeal, nor, in the judgment of the court, any plain, speedy and adequate remedy.</p> <p>Id.—Appeal from Justice’s Court to Superior Court—Absence of Bond or Sufficient Deposit—Want of Jurisdiction.—Upon an appeal from a justice’s court, where there is an entire absence of an undertaking on appeal, or of a sufficient deposit of money in lieu thereof, to cover the costs of the appeal, the superior court would have no jurisdiction to entertain the appeal further than to-dismiss it for want of jurisdiction.</p> <p>Id.—Return Showing Jurisdiction—Conflict of Evidence upon Motion to Dismiss Appeal—Sufficient Deposit for Costs.-—Where-the return to the order to show cause why the writ of review should not issue shows that the superior court upon motion to dismiss the appeal determined, upon conflicting evidence, that a deposit was made by the appellant with the justice, and returned to the superior court, of more than sufficient money to cover the costs of appeal, and that it was intended to cover such costs, in lieu of a bond on appeal under section 978 of the Code of Civil Procedure, this court is in no position to declare that the decision was erroneous, or that respondents- were without jurisdiction to-entertain the appeal.</p> <p>Id.—Excess of Cash Deposit.—It will not be disputed that if the cash-deposit made with the justice of the peace by the appellant, in the case here involved, was so made for the purpose and in lieu of the undertaking required by section 978 of the Code of Civil Procedure, the appellant thus perfected his appeal, and the superior court was thereby vested with jurisdiction thereof, notwithstanding the fact that the sum deposited greatly exceeds the amount required for that purpose.</p> <p>Id.—Determination of Jurisdiction — Discretionary Power.—Where the question of jurisdiction is determined by an inferior tribunal, board or officer, whose jurisdiction is challenged by writ of review, upon evidence aliunde the record itself, and upon evidence justifying a conclusion either for or against the jurisdiction, the court entertaining the proceedings for review cannot interfere with the conclusion thus reached, which is the result of the exercise of the-necessary discretion vested in all tribunals, boards or officers exercising judicial functions.</p> <p>Id.—Certifying Up Evidence Taken to Determine Jurisdiction.— That evidence may be taken to determine a jurisdictional fact, and that it is proper and necessary to certify such evidence up with the record is fully established.</p>

<p>Receivers—Illegal Appointment—Seasonable Remedy by Writ op Review.-—Receivers cannot be legally appointed in an action at law, or in any ease not sanctioned by section 564 of the Code of Civil Procedure; and receivers in such action cannot be made lawful by mere averments of large indebtedness and insolvency of the defendant, nor by consent of. parties interested. Upon application within a reasonable time, such appointment would be annulled upon writ of review.</p> <p>Id.—Prohibition—Writ of Right—Seasonable Remedy—Irreparable and Continuing Injury—Absence op Legal Remedy.—Under circumstances where irreparable and continuing injury is resulting from the unauthorized appointment of a receiver, and there is no plain, speedy or adequate remedy at law, and the writ of prohibition is sought seasonably, the court should not regard itself as clothed with discretion, but should treat prohibition as a writ of right.</p> <p>Id.—Acquiescence and Long Delay — Good Faith op Receivers — Large Pro Rata—Writ Giving Unjust Preference Refused.— When the petitioner for the writ of prohibition knew of the appointment of the receivers before they entered upon their duties, and that other creditors had consented thereto, and had manifested acquiescence and long delay for a year before objecting thereto, and it appears that the receivers had acted in good faith, and had carried on the business successfully, with the result that, after-paying laborers in full, a large pro rata was earned for all creditors, the petition of a judgment creditor for the writ to restrain the court in which the receivers were appointed from preventing the levy .upon and sale of property in the custody of the receivers, in order to obtain an unjust preference, will be refused.</p> <p>Id.—Unconscionable Remedy—Sacrifice op Property.—To annul the receivership as void, after the lapse of time of unquestioned administration, for the sole purpose of enabling plaintiff by his executions to take and sell the remaining property to a sacrifice-of its real value, would be unconscionable.</p> <p>Id,—Bankruptcy—Wreck of Assets.—The probable result of such-remedy would be a proceeding in bankruptcy, which would be followed by a receivership, no more promising, and the wreck of the. debtor’s assets may be conceived as the ultimate outcome.</p> <p>Id.—Writ of Prohibition—Nature and Office—Injustice or Reckless Waste not Permissible.—The writ of prohibition is classed among legal remedies, but there are points of similarity between the remedy thus afforded and the remedy by injunction against proceedings at law. Being an extraordinary remedy, the writ should not be made the instrument of injustice or oppression or reckless waste of property, which it is its office to conserve and protect.</p> <p>Id.—Remedy of Creditor by Intervention and Appeal from Order Appointing Receiver.—The creditor had an adequate remedy at law, by intervening seasonably in the action, when the receivers were applied for or when they were appointed, thus being in a position to appeal from the order appointing a receiver.</p> <p>Id.—Implied Consent of Plaintiff—Applicable Maxim of Equity.— Where it seems that all other creditors than plaintiff virtually came into the proceedings, and plaintiff, by its consent and acquiescence, placed itself in like attitude for almost a year, until after much business had been transacted and little remained to be done, when plaintiff seeks to ignore its long acquiescence, and to destroy equality and accomplish partiality by the overthrow of everything done on reliance of its implied consent, it seems that the maxim, “He who seeks equity must do equity” is applicable.</p> <p>Id.—Contempt of Appellate Court—Brief Containing Disrespectful and Contemptuous Reference to Superior Judge.— A brief upon appeal containing disrespectful and contemptuous reference to and insinuations against the superior court and the judge thereof is a contempt of the appellate court.</p> <p>Id.—Oath of Attorney—Duty to Maintain Respect Due to Courts and Judicial Officers.—Upon his admission to the bar every attorney is required by law to take an oath to “faithfully discharge the duties of an attorney and counselor,” and among such duties the statute prescribes “to maintain the respect due to the courts of justice and judicial officers.”</p>

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

<p>Principal and Agent—Monet Furnished bt Principal to Protect-Stock—Administration bt Agent—Purchase op Estate’s Stock por Assessment.—A sister who was agent both for her sister and1 for her husband, who intrusted the agent with a large sum to protect his stock, and'after his death was appointed administratrix of' his estate at her sister’s request, could not, under the circumstances,, purchase such stock at a delinquent sale and set up title in herself.</p>

<p>Street Assessment—Proper Resolution of Intention—Jurisdiction. The resolution of intention to make a street improvement in due form and properly adopted is the foundation and basis upon which all further proceedings must stand, and is the essential thing which clothes the city authorities with jurisdiction to proceed with the proposed improvements. If no resolution of intention was passed substantially as required by statute, there-was no power in the municipal authorities to let the contract, issue the assessment, or to take any other of the various steps by which a valid lien could be created upon the adjoining lots.</p> <p>Id.—Resolution Limiting Work to Intersection of Three Streets— Insignificant Area—Principal Work Done Elsewhere—Diagram and Plat.—Where the resolution of intention limited the work to the intersection of three streets, which was confined to a few square feet, wholly insignificant as compared with the total area of work done elsewhere, as shown by the diagram and plat annexed to the assessment, the assessment is unsupported.</p> <p>Id.—Judicial Notice — Streets and Boundaries — Relation.—The court was authorized to take judicial notice of the streets and their boundaries, and of their relation to each other.</p> <p>Id.—Limits of District Improved—Place of Work—Definition and Description Essential.—The resolution of intention must describe the work to be done, and define the limits of the district in which it is to be done with reasonable certainty, so that a person of ordinary understanding would know what it is proposed to do. The place or places upon which the work is to be done must be described as contemplated in section 2 of the Vrooman act.</p> <p>Id.—Improper Assessment.—An assessment for a street improvement cannot be properly made on lots situated only on one side thereof; nor can lots be assessed for improvements which the board had no power to assess under any circumstances, nor can lots be assessed which do not join or quarter upon the proposed improvement.</p> <p>Id.—Void Assessment—Appeal not Bequired.—Where an assessment for a street improvement is unlawfully made, or is assessed in a manner contrary to law, it is void upon its face, and the owners of the assessed lots are not required, in such case, to appeal to the city council for its correction, but may rely upon its invalidity when it is attempted to enforce it.</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. Chas. Monroe, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Contract to Purchase Mining Stock—Indorsement—Assignment— Escrow—Terms of Payment—Completion of Contract.—Where a contract by defendant to purchase mining stock representing a mine belonging to plaintiff’s assignor was effected by correspondence, after which it was agreed that the indorsed stock and an assignment of the mining interest should be deposited in a bank in escrow, to be delivered to defendant upon his payment of the price at an agreed time without interest, for which he was to give a note, the contract was complete upon effecting such delivery in escrow, and notifying defendant thereof, and it was not essential to its completeness that the note should be first signed by the defendant, the terms of the agreement being definite and complete independently thereof.</p> <p>Id.—Effect of Deposit for Delivery on Payment of Note.—The deposit in the bank for delivery upon payment of the agreed note as requested by defendant was equivalent to a deposit for delivery upon payment of a stipulated price.</p> <p>Id.—Delivery to Bank as Agent of Defendant as Purchaser.— The delivery to the bank by the vendor was to an agent of the purchaser designated by him, and when so delivered it was too late for either party to retract, and the sale was complete.</p> <p>Id.—Notice of Escrow by Vendor Sufficient—Notice from Bank not Required.—The notice by the vendor to the purchaser of his compliance with the terms of the escrow was sufficient, and it was not necessary that the bank should also give such notice.</p> <p>Id.—Effect of Constructive Delivery—Construction of Code.— Section 1659 of the Civil Code, making a delivery to a third person a constructive delivery, “when it is delivered to a stranger for the benefit of the grantee, and his assent is shown or may be presumed,” is in principle equally applicable to any contract.</p> <p>lb.—Passage of Title to Defendant as Purchaser.—There being no room for controversy as to the vendor’s absolute and unqualified acceptance by the vendor of the defendant’s offer, and the delivery being made, although constructively, but pursuant to defendant’s request and demand, the title passed to the defendant as purchaser.</p> <p>Id.—Remedy of Plaintiff as Assignee of Vendor upon Default of Defendant to Pay.—Where the defendant as purchaser made default in his payment of the purchase price as agreed, the plaintiff, as assignee of the vendor, has the vendor’s elective remedy to enforce payment of the agreed purchase price against the defendant.</p>

<p>Deed by Gun Club—Parcel for Building Lots—Condition Against Firearms — Covenant Binding Successors — Enforcement—Nature of Covenant Immaterial.—Where a gun club organized for mutual recreation and pleasure by means of the rod and gun, to hold real estate, and to enforce the fish and game laws of the state, had acquired three hundred and twenty acres of land for its purposes, but had, by recorded deed, conveyed one hundred and twenty acres thereof to grantees for building lots only, which “provided, that one of the conditions of this conveyance is that the use of firearms upon said premises is and shall be forever prohibited, and that the said grantees agree for and in behalf of themselves, their heirs and assigns, and all persons claiming by, through or under them to observe and enforce this provision,” it is immaterial to its enforcement against successors of the grantees whether it be considered a covenant running with the land or a covenant in gross.</p> <p>Id'.-—Notice of Covenant by Recorded Deed.—Notice of the existence of the covenant to a successor of the grantees was imparted by the record of the deed, the recital of the covenant in which was sufficiently clear to convey the requisite information, and to put the successor upon his guard as to the extent to which it affected the remaining land of the grantor.</p> <p>Id.—Covenant in Gross—Conscience of Succeeding Vendee Bound.— Treating the covenant as one in gross, it is proper to apply the rule which binds the conscience of a succeeding vendee with notice of a purely personal covenant entered between Ms vendor and the one from whom he obtains title, the effect of which if disregarded, would materially injure the remaining property of the original vendor.</p> <p>Id.—Exclusive Property Right—Hunting upon Game Preserves—• Protection by Injunction.—The law recognizes as property and entitled to protection an exclusive right to hunt upon game preserves; and also, that the destruction or impairment of such a hunting privilege, by the driving away of the birds and deterring their return, constitutes an injury wMch cannot be estimated in money damages, and on account of wMch an injunction will lie.</p> <p>Id.—Covenant for Protection of Grantor’s Remaining Lands — Grantee of Lot not Entitled to Intervene.—The covenant imposed on the grantees of the lots by the grantor was for the benefit of the remaining hunting lands of the grantor, and not for the benefit of lands granted. A subsequent grantee of one of the lots has no such interest in the subject of the action that he will either gain or lose by the direct and legal effect of the judgment, and he is not entitled to intervene, to restrain plaintiff from avoiding the covenant; and he is not entitled to recover the costs of such intervention.</p> <p>Id.—Inequity of Plaintiff’s Case.—The plaintiff has not made out a ease agreeable to eqMty; but presents a ease where a purchaser with notice of the covenant made by Ms predecessor, for the benefit of the original grantor, not only disregards the same by attempting to convey without reference thereto in subsequent deeds, but also comes to a court of equity to obtain a decree quieting title, the effect of which would be to sanction a violation of the contract and relieve Mm from obligation imposed on Mm and Ms property without showing any reason therefor other than that a disregard of the covenant would benefit the plaintiff.</p> <p>Id.-—Validity of Covenant—Right of Citizen to Bear Arms.— The restriction made by the covenant for the protection of the remaining lands of the grantor is not unreasonable or void as restricting the right of a citizen to bear arms.</p> <p>Id.—Findings — Conclusions — Support op Judgment.—Findings of fact are to be considered even though some of them are placed among the conclusions of law; and it is sufficient if the findings of fact, wherever placed, support the judgment rendered.</p> <p>Id.—Conclusion op Law as to Nature op Covenant.—The conclusion of law as to the nature of the covenant, that it is one running with the land, can in no wise affect the validity of the judgment restraining the plaintiff from violating the same. Even if the court erred in ■ that conclusion, the judgment will not be reversed where it is equally sustainable on another ground, though the reason assigned therefor is untenable.</p> <p>Id.—Judgment Properly Protecting Dependant.—Held, that the judgment properly protects the rights of the defendant, irrespective of any judgment improperly rendered in favor of the intervener.</p>

<p>Appeal—Alternative Method—Transcript op Evidence—Support op Findings.—In this case the transcript upon appeal was prepared and filed under the alternative method, and embodied all of the evidence, which evidence is sufficient to justify all the findings made by the court. It is unnecessary to consider the objection that there are no specifications of particulars in this regard.</p> <p>Vendor and Purchaser—Action to Eecover Purchase Money Paid —Void Sale by Unrecorded Map—Finding and Evidence to Contrary.—Where a purchaser’s cause of action to recover back purchase money paid upon a contract of sale of a tract of land is based upon the theory that a sale of lots according to an unrecorded map in violation of the act of March 15, 1907 [Stats. 1907, p. 290], is void as between the parties—although similar statutes in other states have been construed to the contrary—it is unnecessary to decide that question, where the court finds upon sufficient evidence that the sale was not made with reference to such a map, but was made after a visit to the land purchased, and an inspection of its exterior boundaries according to location stakes marking the same, and that a deed was tendered according to such metes and bounds.</p> <p>Id.—Construction of Statute.—The statute upon which the plaintiff relies prohibiting sales or contracts for the sale of lands by reference to an unrecorded map can only be construed as intended to include sales wherein the property was designated as being delineated upon such a map, to which express reference was made in the contract of purchase.</p> <p>Id.—Use of Preliminary Survey—Blue-print—Map not in Existence.-—Where the lots sold were staked upon the ground according to a preliminary survey thereof, and a blue-print thereof was made, showing the number of the lots, which was known to both parties not to have been intended as a map, and that no map was intended to be made and recorded, until certain rights of way were secured, there was no violation of the statute.</p> <p>Id.—Absence of Evidence for Plaintiff—Proper Findings for Defendant.—Where, upon other causes of action alleged in the complaint, .no evidence in support thereof appears in the. record, the court properly found thereon in favor of the defendant.</p>

<p>Brokers’ Commissions—Exchange of Beal Estate—Power of Parties—Usual Contract.—Where a contract for broker’s commissions for procuring an exchange of real estate provided for an agreed commission on the value of the property to be exchanged, “in the event this exchange is made,” which was modified in view of the known fact that the broker was also acting for the other party, by fixing a different commission, “in the event the trade is consummated,” while the parties had the power so to word their contract as to make it clear that the parties intended that no commissions should be paid, except upon a completed sale resulting in the execution and acceptance of deeds of transfer; yet such a contract is not the usual one between the seller and his agent or broker, and it is held that this is not the meaning of the contract in question.</p> <p>Id.—General Rule—Meaning and Effect of Broker’s Contract.— Within the meaning of a broker’s contract to sell real estate, a sale or exchange is made when the broker has procured a responsible purchaser, or one acceptable to the seller, or has brought the seller and buyer together, and they have in consequence entered into such contract, or such buyer, being able, ready and willing to buy on the seller’s terms, offers so to do.</p> <p>Id.—Construction of Modified Contract—Consummation of Trade. ■ The language of the modified contract for commissions to be paid, “in the event the trade is consummated,” must be interpreted in the light of the purposes and objects of the contract, which was to change the amount of the commissions in view of a known fact, which might lead to a binding offer from the other party; and when this should be accomplished by plaintiff, it would have consummated the trade within. the meaning of the modified contract. It was the only consummation of the trade within the power of the broker. The consummation by exchange of deeds required the further act of defendant, over which plaintiff had no control.</p> <p>Id.—Unsustainable Defense — Known Commission Received from Exchanging Party.—The defendant cannot sustain a defense on the ground that the broker had received a commission from the exchanging party, where it appears that that fact was fully known, and that the modified contract was based upon it.</p> <p>Id.—Exchange not Effected — Burden of Proof upon Broker.— Where no exchange was effected, the burden of proof is upon the broker to show that he found one who was ready, willing and able to effect the exchange on the terms proposed, or that he brought the parties together so that his vendor might have secured the exchange, if desired. On no other terms can he recover from his vendor.</p> <p>Id.—Failure of Evidence—Findings Unsupported.—Where the purchaser was nonresident, and the evidence fails to disclose any such binding offer from him, as would have enabled the defendant, if his title was perfect, to compel the exchange, on the terms proposed, findings to the contrary are unsupported by the evidence.</p> <p>Id.—Respondent not Helped by Inconsistent Defenses.—The respondent is not helped by the fact that in a separate and further defense, defendant set up an affirmative defense predicated upon his construction of the terms of the contract with the plaintiff, inconsistent with his denials in the first defense. Denials in one defense are not affected or qualified by inconsistent affirmative matter in another and separate defense.</p>

<p>The facts are stated in the opinion of the court.</p> <p>McGowan, Squires & Westlake, and Duncan McPherson, Jr., for Appellant.</p>

<p>Assumpsit—Loss of Money in Swindle — Failure in Counter-attempt of Plaintiff to Swindle—Proper Denial of Belief.— In an action of assumpsit to recover money lost in a swindling transaction, in connection with which it appears that plaintiff with others attempted to swindle the parties who swindled him, and failed in such attempt, by reason of being swindled, the court properly denied him any relief.</p> <p>Id.-—Maxims—Applicable.—The principle applicable to the denial of relief in such, cases is embodied in the maxims, “Ex pacto illicito non oritur actio,” and “Ex dolo malo non oritur actio,” in the application of which the court must deny him its aid in the pursuit of that which he has lost.</p> <p>Id.—Plaintiff Asserting His Own Turpitude—Statement Out of Court—-Victim of His Own Swindle.—When a plaintiff asserts his own turpitude he states himself out of court. If in attempting to swindle another he becomes the victim of his own arts, it may become a question of morals or of honor which is the more culpable; but courts of law entertain no discussion on the subject, but terminate the controversy by shutting its doors in the face of the intruder.</p> <p>Id.—Belief Against Executory Illegal Contract—No Belief from Executed Contract.—It is true that while an illegal contract remains .executory, relief should be awarded to one who repudiates the contract because of its illegality; yet where plaintiff did not withdraw, nor attempt to withdraw, from the transaction until after the condition on which he was to be declared winner or loser was fully executed, and until after his money was declared lost, under these circumstances the law accords no locus penitentiae.</p> <p>Id.—General Conspiracy op Swindlers to Defraud—Public Policy —Assumpsit—Individual Case.—Whatever rule of relief may be applied in an action for fraud and deceit by a person engaged regularly in a continuous scheme to defraud in various parts of the country by getting the dupe to think he is swindling others, on the ground of public policy; such a rule is not applicable in an action of assumpsit based on a single transaction in which plaintiff was engaged in a swindling scheme, and in which the only evidence of another such transaction was that of an individual case which occurred in Omaha one month later, which could not justify relief upon such ground.</p> <p>Id.—Best Promotion of Public Welfare.—In the judgment of this court, the public welfare is best promoted by adhering to the rule established in this state a half century ago, at which time-the doors of the court were declared closed against one seeking redress under circumstances identical with those presented here.</p>

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

PETITION for writ of prohibition to the Superior Court of the City and County of San Francisco. Frank J. Murasky, Judge. The facts are stated in the opinion of the court.

<p>PETITION for writ of review to annul a judgment of the Superior Court of Santa Cruz County. Lucas F. Smith, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

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

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

<p>The facts are stated in the opinion of the court.</p> <p>Benjamin K. Knight, District Attorney, and Wyckoff & Gardner, for Appellants.</p>

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

<p>Easement in Street—Recorded Contract—Marked Street—Suit to Quiet Title — Purchase with Notice — Support of Findings.— Where a recorded contract for the sale of lots was made to one defendant, who conveyed to the other, and the contract referred to a proposed map of the grantor describing the lots as “fronting one hundred feet on Burnett Avenue,” and taken off of two specified lots, and having a width of fifty feet, then marked on the ground, and the grantor sold the residue of the lots to plaintiff, expressly reserving the rights of said defendant under his contract, whereupon plaintiff refused to recognize the existence of said street on said two-lots, and sued defendants to quiet his title thereto, it is held that findings for defendants that the street was laid out when the contract was made, and that plaintiff purchased with notice of said contract and of the easement of the vendee in said street, were sustained by sufficient evidence.</p> <p>Id.—Constructive Notice to Plaintiff.—The recorded contract to which the plaintiff’s rights were expressly made subject afforded notice to the plaintiff that the sale to the defendant purchaser was made upon the representation that the lots were bounded on the east by the street named, the exact location and width of which was marked upon the ground.</p> <p>Id.—Street Appurtenant to Lots Sold.—Where lots are sold as fronting on, or bounded by, a certain space designated in the conveyance as a street, the use of such space as a street passes as appurtenant to the grant.</p> <p>Id.—Eights of Defendants not Besting in Parol.—The rights of neither of the defendants rested in parol, nor did they have their origin in parol. The easement is appurtenant to the lots purchased, and is described in the recorded contract as having a frontage of one hundred feet on the street named therein.</p> <p>Id.—Evidence — Acts of Original Owner in Locating Buildings Fronting on Same Street.-—The court properly admitted evidence of the acts of the original owner in locating buildings and other improvements upon the lots with reference to frontage upon the same named street. It was°a circumstance corroborating the location of the street upon which the improvements fronted, and which, taken in connection with the recorded contract, was calculated to notify plaintiff of the existence of the street.</p>

<p>APPEAL from an order of the Superior Court of Santa Clara County refusing to vacate a judgment by default. M. H. Hyland, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

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

<p>Divorce — Pleading — Defective Joinder of Counts — Second Count Insufficient—Property and Custody of Child—Surplusage.— Where the first count in a complaint for divorce was sufficient, and the second count stated no cause of action, and the averment as to property and the custody of the child were set forth in the second count, the phrase “for a further and separate cause of action” in the second count may be disregarded as surplusage, not affecting the substantial rights of the parties; and upon proof of the only cause of action stated, the relief as to the property and custody of the child may be granted as incidental thereto.</p> <p>Id.—Recital in Judgment as to Second Cause of Action Rejected as Immaterial.—The judgment being effectual on the first ground of relief stated, the recital and finding therein as to the right to a divorce on the second ground stated may be rejected as entirely immaterial, since the judgment is effectual without it.</p> <p>Id.—Defect Cured by Answer and Issues Joined upon Cross-complaint.—Where the answer of defendant and the issues joined upon his cross-complaint supply any deficiency in the complaint, when the second count thereof is excluded, it must be presumed, in the absence of any showing to the contrary, that evidence in support of all the material findings was received without objection, and must be held that any error of the court in overruling the demurrer to the second count was rendered entirely harmless.</p>

<p>Indemnity Insurance — Policy to Partnership — Dissolution — Agreement oe Partners—Secret Pelease—Action by One Partner—Notice—Want oe Finding—Error oe Law.—In an action by one member of a dissolved partnership to enforce a policy of indemnity insurance issued to the partnership, as an employer, to indemnify it against loss for damages to its servants, where the complaint alleges payment by plaintiff of a judgment for damages against the partners, that the partnership had been dissolved, and that the partners had agreed that the policy should be held for their joint and several protection, that his copartner had secretly released such liability to defendant, and that defendant had notice of such agreement, it is held that the failure of the trial court to find upon the issue as to whether or not the defendant had notice of such agreement, constituted an error of law, for which an order denying a new trial to the plaintiff must be reversed.</p> <p>Id.—Construction of Finding as to Want of Notice—Special Agreement for Deposit of Policy.—A finding that defendant had no notice of a special agreement to deposit the policy with a third party cannot be construed as a finding as to want of notice of the agreement to protect both partners from liability for the particular claim for damages recovered. Notice of such agreement was the material issue in the ease upon which plaintiff’s right of recovery depended, and he was entitled to a direct finding covering the same.</p> <p>Id.-—Supposed Finding as to Want of Notice of Agreement Unsupported.—Held, that if the finding should be construed to import a finding that defendant had no notice of the agreement between the partners to protect themselves against the judgment for damages in question, it would be unsupported by the evidence, which, construed with other findings, sufficiently shows that defendant had notice of such agreement, under the terms of which one partner had no power to act for the partnership in releasing defendant from its obligations.</p>

<p>Criminal law—Grand Larcen r—Stealing Sucking Calf—Evidence of Ownership of Cow and Calf—Unrecorded Brands on Cow— Distress of Cow.—Upon a prosecution for grand larceny committed in the stealing of a sucking calf, unrecorded marks and brands upon the cow, which was mother of the calf, shown to belong to the prosecuting witness, were admissible, in connection with other evidence identifying the cow; and the distress and bellowing of the cow when the calf was taken from her and killed by the defendant, was evidence tending to show tnat the cow was mother of the calf so stolen and killed.</p> <p>Id.-—Support of Verdict.—It is held that the evidence was sufficient to support the verdict of conviction of the defendant of the crime charged.</p> <p>Id.—Cross-examination of Defendant — Proper Question — Withdrawal not Prejudicial.—Where the defendant testified in chief that he had stolen no calf, and that the calf he had killed was his own, it was proper for the district attorney to ask him upon cross-examination whether, after he was arrested on charge of stealing the calf from the prosecuting witness, he did not request that one to whom he applied to go on his bond should tell his brother not to be too hard on him, and where such question was withdrawn before it was answered, the asking and withdrawal thereof could not be prejudicial to the defendant.</p> <p>Id.—Misconduct of Juror—Drinking Liquors to Excess During Recess—Conflicting Affidavits—Sobriety During Trial and Verdict—Province of Judge.—Where affidavits for defendant stated that a juror charged with misconduct drank intoxicating liquors to excess during recess of the court, and the conflicting affidavits of his fellow-jurors stated that he was sober during the trial and deliberation upon the verdict, and that he was at all times able to consider the evidence adduced, and intelligently to exercise his judgment thereon, it was the province of the trial judge, who was best able to determine the condition of the juror during the trial, to decide the question of fact upon the conflicting evidence, and his decision in support of the verdict will be affirmed.</p>

<p>Criminal Law — Violation of “Anti-trust Law” — Motion to Set Aside Information.—An information charging the violation of the anti-trust law (Stats. 1907, p. 294), cannot be set aside on the ground of an immaterial variance between the information and the offense charged in the complaint before the magistrate, nor on the ground that the complaint and evidence before the magistrate was insufficient to warrant the commitment.</p> <p>Id.—Construction of Penal Code—Grounds for Setting Aside Information.—Under the familiar rule of construction, expressio •tmivs est exclusio alterms, a trial court cannot set aside an information on any other grounds than those specified in section 995 of the Penal Code, viz.: “1. That before the filing thereof the defendant had not been legally committed; 2. That it was not subscribed by the district attorney.”</p> <p>Ib.—Insufficiency of Evidence — Presumption.—Assuming that the evidence before the magistrate was altogether insufficient to establish probable cause for believing that the offense for which the defendant moving to set aside the information was examined and held had been committed or that he committed it, that question cannot be urged and decided on such motion. But upon the filing of the information corresponding to the commitment, the presumption arises that the evidence on which the commitment was predicated was in all respects sufficient to justify the magistrate in making the order.</p> <p>Id.—Commitment Based upon Depositions—Nature of Complaint.— The complaint is in the nature of a deposition on which the warrant of arrest is based, and not a complaint in the sense that it is a pleading. The commitment is based upon the depositions as such, and not upon the complaint only. If the commitment does not of itself describe the offense, but refers to the depositions, they must describe the commission of the offense to which the commitment refers, though the finding of the magistrate as to the sufficiency of the evidence to sustain the offense is conclusive.</p> <p>Id.—Complaint not a Part of Order of Commitment.—The complaint upon which the warrant of arrest is based cannot properly be deemed a part of the order of commitment which is based upon the depositions taken at the preliminary examination.</p> <p>Id.—Absence of Variance Between Complaint and Information.— If the complaint be deemed a deposition to which the commitment refers, there is no material variance between the offense charged in the information and that stated in the complaint. That deposition states an offense under the provisions of the anti-trust law against the personal defendant. While the offense is more fully and clearly stated in the information—a requisite strictly applied to criminal pleading, but not to depositions taken before a magistrate—the offense charged in both documents is one and the same, and for the violation of precisely the same provisions of the law.</p> <p>Id.—Order of Commitment—Indorsement upon Depositions not Essential to Information.—The order of commitment is not required to be indorsed upon the depositions, as a condition of the authority of the district attorney to file an information.</p> <p>Id.—Entry of Order upon Docket Sufficient.—The order holding a defendant to answer is in fact and in law made when it is entered upon the docket of the justice, and the failure to indorse the same-upon the complaint or depositions in no manner deprives the order of its validity or affects any substantial right of the defendant.</p> <p>Id.—Sufficiency of Information—Violation of Anti-trust Law— Combination to Enhance Price of Meat.—An information substantially charging a violation of the anti-trust law in the language of the statute, and accusing the personal defendant and the Western- Meat Company, of which he is the managing agent, of having entered into a combination and conspiracy with the Sacramento-Butchers’ Protective Association and other persons, for the purpose-of destroying free and full competition in the meat business, and in requiring a meat dealer named to pay a higher price for meat than was charged to members of the combination, states an offense under that law.</p> <p>Id.—Averment and Proof of Control of Market not Essential.— It is not necessary either to allege or prove that the defendants or either of them, or any of the persons referred to in the information as being connected with the alleged combination, were in a position, to control the market in the sale and purchase of the commodity to-which the charge relates.</p> <p>Id.—Purpose of Anti-trust Law.—The purpose of the anti-trust law-is to prevent such business combinations as will result in restrictions in trade or commerce, or will prevent competition in the manufacture or sale of merchandise and other commodities for domestic-use.</p> <p>Id.—Identity of Members of Butchers’ Protective Association.— Where the Sacramento Butchers’ Protective Association, as such, is. made a defendant in the information without reference to the members composing it, the information is not rendered defective by describing them as “certain and divers persons, firms, partnerships,, corporations and associations of persons constituting and eomprising the Sacramento Butchers’ Protective Association, whose names are unknown, with whom it is alleged that the personal defendant entered into an unlawful combination and conspiracy. This was sufficient so to identify such persons as to apprise defendant appealing of the particular persons with whom he is charged with having been in league in the maintenance of an unlawful conspiracy.</p> <p>Id.—Parties to Conspiracy.—Where conspiracy is charged, it is not necessary to make all the alleged conspirators defendants in order to maintain a prosecution against one.</p> <p>Id.—Gist of Offense— Combination with Others — Persons Unknown.-—The gist of the offense is in the formation of the combination with others to do some unlawful act, and where the information charges a party with having entered into a conspiracy with others not made defendants, it is sufficient to refer to the latter in the accusatory pleading as “persons unknown.”</p> <p>Id.—Pleading—Action of Manager and of Meat Company—Defense. Where the information with clearness charges that appellant, as manager and agent of the Western Meat Company, and said company itself entered into the alleged combination and conspiracy with the Butchers’ Protective Association and the members thereof, for the purposes of the information, the showing therein is sufficient to connect both the company and its manager therewith. The alleged act of the agent must be deemed that of the company, and cannot be presumed to be without its knowledge or assent. If he in fact exceeded his authority in entering into the conspiracy, that would be matter of defense for the meat company.</p> <p>Id.—Proper Joinder of Corporation and Manager.—Upon principle, and in furtherance of sound policy, both corporations and their officers and agents who engage in the conspiracy must be held to be parties thereto, and it was proper to join both the Western Meat Company and its manager in the information.</p> <p>Id.—Dates of Execution of Conspiracy not Fixed—Probative Facts—Surplusage.—The information is not rendered insufficient because the dates upon which the acts of the alleged conspirators committed in the prosecution of such conspiracy occurred are not definitely stated and fixed in the information. The acts constituting the actual accomplishment of the object or purpose of the combination and conspiracy constitute mere probative facts of its existence, the dates of which would be matter of surplusage, and need not be-alleged.</p> <p>Id.-—Nature of Offense Under Anti-trust Law — Misdemeanor— Limit of Penalty—Exclusive Jurisdiction of Superior Court.— If the nature of an offense under the anti-trust law be deemed a misdemeanor, the limit of imprisonment being one year, without prescribing the place of imprisonment, and the limits of the fine being not more than $5,000 and not less than fifty dollars in all county seats in which the police court has no jurisdiction of such. maximum fine, the jurisdiction of the superior court under the constitution of all misdemeanors not otherwise provided for is exclusive under the anti-trust law.</p> <p>Id.—Test of Character of Crime.—The test of the nature of a crime as a felony or misdemeanor is not the characterization of it as one or the other, but the nature and mode of punishment of the crime is the sole test. The question is not decided whether the superior court has power to imprison the defendant in the state prison for the year provided for in the statute, the supreme court having expressly limited its penalty to that of a misdemeanor.</p> <p>Id.—Jurisdiction of Justices’ Courts Excluded.-—All justices’ courts being expressly limited in their jurisdiction to misdemeanors not exceeding $500 or imprisonment not exceeding six months in the county jail, their jurisdiction under the anti-trust law is excluded.</p> <p>Id.—Support of Verdict—Conflicting Evidence.—Where the evidence is conflicting, the verdict of the jury adjudging the appellant guilty of the crime charged against him cannot be disturbed where there was evidence tending to establish the truth of the charges against him.</p> <p>Id.—Evidence—Absence of Discrimination as to Smoked Meats Harmless Buling.—Where the sole charge was discrimination as to fresh meats against the Butchers’ Protective Association, evidence that they made no discrimination as to smoked meats not under their control, if its object and purpose was to corroborate the charge, was not erroneous, but if such was not its object and its admission was erroneous, the error was not prejudicial.</p> <p>Id.—By-laws of Butchers’ Protective Association.—The court properly admitted the by-laws of the Butchers’ Protective Association not only to disclose the identity of its members, but also to show the nature and purposes of the association, and the object of its connection with the Western Meat Company, and so far as tending to show the criminal conspiracy, and if there was no relevancy in either of these respects, their admission was harmless.</p> <p>Id.—Proper Cross-examination of Members of Association—Contribution of Money for Counsel for Appellant.—The court properly allowed members of the association who testified for the defendant to answer questions by the cross-examiner as to whether they contributed money toward counsel for the defendant appealing.</p> <p>Id.—Instructions—Circumstantial Evidence of Conspiracy.— Instructions by which the jury were told that the crime of conspiracy could be proved by circumstantial as well as by direct evidence were perfectly proper..</p> <p>Id.—Formation of. Conspiracy.—Held, that an instruction in regard to the formation of a conspiracy, which, in effect, and with reasonable clearness, declared to the jury that it is immaterial how or in what manner it is formed, so long as it sufficiently appears from the evidence to be formed for an unlawful purpose, is not erroneous.</p> <p>Id.—Instruction as to Conviction Based on Evidence.—An instruction as to conviction based on evidence of discrimination in sale of fresh meats, to the effect that if the jury should find from the evidence in the case that there was a discrimination in the price charged for fresh meats, so as to charge a higher price to those not members of the combination, to which the defendant was a party, they should convict the defendant, was proper.</p> <p>Id.—Untenable Objections to Anti-Trust Law.—The anti-trust law is not incompatible as to any provision of the constitution, nor with section 182 of the Penal Code relative to the subject of conspiracies. The unlawful combination here involved is made to apply to a different object from any mentioned in the code.</p>

<p>Criminal Law — Commitment for Murder — Sufficiency of Evidence—In competent Evidence.—Where there is a sufficiency of competent evidence to sustain a commitment for murder, the fact that the committing magistrate admitted -a, mass of incompetent and hearsay evidence will not affect the legality of the commitment. Id.—Office of Writ of Habeas Corpus.—The writ of habeas corpus cannot be made to perform the function of a writ of error to review the admission of incompetent evidence, upon a commitment for murder; and the petitioner will be remanded where there is a sufficiency of competent evidence to sustain the commitment.</p>

<p>Attachment—Affidavit on Behalf of Plaintiff—Code Provision— Signature not Required.—Under section 538 of the Code of Civil Procedure, the clerk is required to issue an attachment upon receiving an affidavit by or on behalf of the plaintiff, containing the required statements. In determining the sufficiency of an affidavit “on behalf of the plaintiff,” the entire affidavit is to be considered. The affidavit need not be signed.</p> <p>Id.—Affidavit by President on Behalf of Corporation—Signature of Corporate Name by President Immaterial.—A corporation plaintiff cannot make an affidavit. Where an affidavit by its president on its behalf, clearly states that he is its ’ president, and purports on its face to make a proper affidavit by him on behalf of the corporation plaintiff, the mere circumstances that he signed the affidavit in the name of the corporation by himself as president is immaterial, and raises no ambiguity, and does not affect the sufficiency of his affidavit on behalf of the corporation.</p> <p>Id!—Test of Sufficiency of Affidavit.—Such affidavit can stand the test of a sufficient affidavit that perjury can be assigned thereon, if it is falsely made.</p>

<p>Fire Insurance—Exception in Policy—Loss Directly or Indirectly Caused by Earthquake—Construction—Loss “by Fire” so Caused.—A policy of fire insurance to plaintiff for twelve months against all loss by fire, with certain exceptions, including one that the company “shall not be held liable for loss caused directly or indirectly by . . . earthquake,” is to be construed as excepting loss “by fire” caused directly or indirectly by earthquake, and not loss so caused by earthquake alone. Such exception is to be regarded as a limitation upon the causes of loss by fire, rather than a qualification of the contract of insurance; and there is to be read into the exception clause the words “by fire.”</p> <p>Id.—Action upon Contract—Bule op Damages for Breach—Seasonable Anticipation op Parties.—An action upon the policy of insurance is an action upon contract, and the rule of damages for breach of a contract applies, to the exclusion of the rule in cases of torts, limiting the recovery for such breach of contract to such damages only as may reasonably be supposed to have been within the contemplation of the parties, when the contract was executed, as the probable result of the breach. No remote damages can be allowed in such action.</p> <p>Id.—Distinct Bulb as to Torts—Proximate Cause—Anticipation Immaterial.—The rule of damages, on the other hand, in cases of torts is distinct, that the injured person may recover all damages proximately caused by the injury whether they could have been anticipated or not.</p> <p>Id.—Applicability op Contract Bule.—The rule in cases of action upon contract applies equally where the plaintiff seeks to recover upon a covenant in the contract, and where the defendant is seeking to evade liability under the contract.</p> <p>Id.—Untenable Defense to Policy Under Earthquake Clause— Breaking of Water-mains—Prevention of Extinction of Eire. Averments by way of defense to the policy under the earthquake-exception, that the earthquake broke the water-mains and the water so escaped that the fire department of San Francisco had no water to extinguish the fire which on the following day caused the loss, of the insured premises, are insufficient to show that the earthquake was, in legal contemplation, the direct or indirect cause of the-loss by fire to the plaintiff, and disclose no defense to the action-on the policy.</p> <p>Id.—Exceptions Construed Against Insurer and in Favor of Insured.—Where words used in the policy leave its meaning as to exceptions in doubt, the exceptions must be construed most strongly against the insurer and liberally in favor of the insured.</p> <p>Id.—Earthquake as an Excepted Peril—Origin of Fire—Pleadings.—The earthquake as an excepted peril cannot be regarded as the cause of the fire where coneededly it is not by the pleadings connected in any way with starting it.</p> <p>Id.—Loss by Destruction of Water Supply not Contemplated.—The-loss by destruction of the water supply by earthquake could not reasonably have been contemplated by the parties as the result of the breach when the policy was issued, nor as being a possible instrumentality in starting the fire which caused the loss to the plaintiff.</p>

<p>APPEAL from an order of the Superior Court of Kings County refusing to change the place of 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 the City and County of San Francisco. J. M. Seawell, Judge.</p> <p>The facts appearing in the pleadings are the same as those appearing in case No. 666, supra.</p>

<p>Habeas Corpus—Violation of Valid Municipal Ordinance—Speed. Regulation of Vehicles—Excessive Speed by Motor Vehicle.— One who has been arrested for violation of a valid municipal ordinance regulating the speed of all vehicles within the city limits, by driving a motor vehicle through its street in excess of thirty miles an hour, cannot be discharged from custody upon writ of habeas corpus.</p> <p>Id.—Ordinance not Violating “State Motor Vehicle Act”—Regulation of all Vehicles—Permission of All Acts Made Lawful.—The ordinance is not in violation of the state “motor vehicle act” of March 22, 1905; but it complies with its requirement that its penalties for violation of speed laws by motor vehicles shall bo similar to and not greater than those fixed for other vehicles, by-making the ordinance applicable to all vehicles. Neither does it prescribe any lower rate of speed for motor vehicles than is fixed by that act, nor regulate their use in the streets of the city in any manner contrary to or inconsistent with its terms, nor attempt to. exclude or prohibit any licensed owner or operator of a motor vehicle from making any use of the highway permitted by that act.</p> <p>Id.—Ordinance Punishing Greater Excess of Speed Limits.—Where the state motor vehicle act forbids motor vehicles from going at a greater rate of speed .than ten miles per hour in cities and towns where the1 contiguous territory is built up, and fifteen miles per hour elsewhere therein, a municipal ordinance punishing a greater speed for all vehicles than twelve miles per hour in such first district, and twenty miles per hour elsewhere in the city, and providing a greater penalty for any spe-ed in excess of thirty miles per hour, is not inconsistent with the state “motor vehicle act,” nor contrary to the declaration of policy of the state in punishing speeding of motor vehicles upon public highways.</p> <p>Id.—Police Power of State and Municipality.—The mere fact that the state, in the exercise of its police power, has made certain regulations does not prohibit a municipality from exacting additional requirements. So long as there is no conflict between the two, and so long as the requirements of the municipal ordinance are not unreasonable or discriminatory, both will stand. The power of the city to pass the ordinance in question was conferred by its freeholders’ charter, and the amendments thereto adopted prior to. its passage.</p> <p>Id.—Title of Ordinance not Part Thereof—Amendatory Ordinance.—The title of an ordinance is no part of the same. A title to an ordinance is not required by law; and where it is a complete enactment in itself, the fact that it purports to amend a prior ordinance does not affect the matter.</p> <p>Id.—Municipal Ordinance not Unreasonable or Discriminatory.— The municipal ordinance does not interfere with the reasonable exercise of the right of passage over public highways, nor does it discriminate against one class that they along with others should be required to conform to regulations affecting all vehicles.</p> <p>Id.—Province of Municipality—Regulation of Speed of Travel in Streets.—It is the universally acknowledged right and province of each municipality to regulate the rates of speed of travel upon its own streets in the use of private vehicles discriminating against no private owner of any kind of vehicle.</p> <p>Id.—Exception—Vehicles Operated by Police and Eire Departments.—The ordinance was not rendered invalid or discriminatory by excepting from the speed limits vehicles operated for public use by the fire and police departments of the city.</p> <p>Id.—Punishment for Greatest Excess of Speed.—The provision in the ordinance for greatest punishment for a speed limit of vehicles exceeding thirty miles an hour is not discriminatory, because motor vehicles may exceed that limit more easily than other vehicles. It cannot be assumed that an ordinance applicable by its terms to all vehicles was intended to affect only one.</p> <p>Id.—Purpose of Ordinance Protection of Life, Limb, and Property. The purpose of the ordinance would be accomplished, the protection of human life and limb, and property, by deterring every vehicle whatever its kind from passing through the streets at an excessive rate of speed.</p> <p>Id.—Basis of Reasonableness of Regulation.—The reasonableness of the regulation for speed in excess of thirty miles an hour depends upon the purpose and the condition requiring it to be made. It is intended to prohibit not to punish. The offense created by its violation is malum prohibitum and not malum in se, and the penalty must rest largely in the sound discretion of the legislative branch of the government.</p> <p>Id.—Reasonableness of Penalty for Greatest Excess of Speed.— It having appeared that the smaller excesses of speed usually escaped with a fine, it was reasonable to provide that when the speed exceeded thirty miles an hour the penalty of imprisonment must be imposed. Where the state legislature has declared that fifteen miles is a proper maximum of speed in a city, and the city has extended it to twenty miles an hour, it is reasonable to hold that one who drives his machine through the street at a rate exceeding thirty miles an hour is guilty of wantonly defying .all law and restraint, and should be imprisoned therefor.</p> <p>Id.—Harmony op Penalty With Other Penal Laws.—Where other penal laws make the endangering of human life in sport or speed a felony, the imperiling or endangering of the lives of citizens upon the streets of a city by vehicles exceeding the speed of thirty miles per hour may be made punishable with imprisonment in. the city jail for from ten to fifty days, without subjecting the ordinance imposing such penalty to the criticism that it is out of harmony with the other penal laws of the state because imposing an excessive punishment.</p>

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

APPLICATION far writ of review to annul the action of the Superior Court of Yuba County. K. S. 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 and from another order. Prank R. Willis, 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. W. H. Jamison, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>APPLICATION for writ of mandate to the auditor of San Mateo County.</p> <p>The facts are stated in the opinion of the court.</p>

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

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

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

<p>Building Contract—Uncompleted Building Destroyed by Fire— Bule op Substantial Performance Inapplicable — Basis of Bule.—The rule that when a building contract has, been substantially performed by the contractor, he may recover against the owner notwithstanding there may be some trivial imperfection in the work, is based upon the theory that the owner has received the benefit of the work, and can be protected against loss, by an allowance of damages for trivial omissions or imperfections. But such rule cannot apply when the uncompleted building was destroyed by fire, so that the owner has received or accepted no benefit from the work, and cannot recoup damages for imperfections in it, notwithstanding the value of the work remaining to be done was only $48.</p> <p>Id.—Stipulation in Contract—Loss by Fire and Earthquake—Apportionment.—Where there was an express stipulation in the contract that where the building provided for should, before completion, be wholly destroyed by fire, defective soil, earthquake or other act of God, the loss occasioned thereby should be sustained by the owner to the extent that he has made payments on the contract, or which may then be past due, and that the contractor must bear the loss of all installments not then due, and the uncompleted building was destroyed by the public calamity in San Francisco of April 18, 1906, the contractor cannot recover either the completion or final payments on the contract.</p> <p>Id.—Validity of Stipulation.—Such stipulation in the contract is perfectly lawful; and the courts should give effect to it according to its terms.</p> <p>Id.—Mechanic’s Lien not Enforceable.—No mechanic’s lien can be enforced on vacant land when the building to the erection of which the work or material was contributed was destroyed by fire without the fault of the owner.</p> <p>Id.—Rule of Implied Covenant for Value of Work on Destroyed Building Inapplicable — Express Covenant as to Loss.—The rule that there is an implied covenant that the building contracted for shall continue in existence, and that a destruction thereof before completion of the contract excuses further performance by the contractor, and entitles him to recover for the value of the work up to the time of destruction, has no application, where there is an express covenant as to how the loss should be borne, in case the building should be destroyed, as it was, by fire or earthquake.</p> <p>Id.—Lien Claimant not Entitled to Judgment Against Contractor.—Where the contract between the contractor and the lien claimant, who was a subcontractor, expressly stipulated that the work to bo done should be done by the claimant according to the terms of the contract and specifications between the owner and contractor, and a copy of that contract was attached to and became part of the subcontract, the subcontractor is bound by its terms, and cannot recover against the contractor, on deferred payments which the contractor must lose by the terms of the contract.</p>

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

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

<p>Foreclosure of Mortgage—Defense—Execution Obtained by Fraud, Menace and Undue Influence.—In action to foreclose a mortgage, a defense that the note and mortgage were not executed by the maker willingly, freely or voluntarily, and that her signature thereto was obtained by plaintiff by fraud, menace and unduoinfluence, set forth in detail in the answer, and disclosing sufficient facts to support the averments, would, if proved, render the note- and mortgage void though signed by her, and if executed, fraud,, menace, duress or undue influence would render them void. Consent is deemed to have been obtained through one of these causes-when it would not have been given if such cause had not existed.</p> <p>Id.—Support of Findings—Conflicting Evidence.—Though the testimony of the maker is a pathetic recital of the subjugation of her-will and the coercion of her understanding by the pertinacity and misstatements of the stronger personalities interested in obtaining the security, yet where the evidence is conflicting, and the testimony of the witnesses for the plaintiff is such that, in view of the-discretion as to the weight of evidence given to the trial court, which found for the plaintiff, it cannot be said, as matter of law, that there was anything in the conduct of the plaintiff which is-opposed to good morals, legitimate business methods, or any mandate of the statute, the findings cannot be disturbed.</p> <p>Id.—Testimony of Witness for Plaintiff Supporting Finding.— Where the testimony of a witness for the plaintiff was such, as this, court is required to regard it, that the only conclusion to be drawn from it is that no misrepresentation was made, no undue influence-exerted nor fraud practiced in the transaction, but that the execution of the note and mortgage was the voluntary act of the-appellant, which grew out of a guaranty made by herself of a firm of which the comaker of the note and mortgage was a member who personally agreed to protect her from loss, and that the-guaranty was surrendered to her when the note and mortgage were-executed, such testimony is sufficient to sustain findings for plaintiff.</p> <p>Id.—Distinct Elements—Persuasion—Insistence on Legal Eights —Pertinacious Zeal.—Persuasion is not coercion; insistence on one’s legal rights is not undue influence; and pertinacious zeal to-secure the payment of a just debt is not fraudulent.</p> <p>Id.—Consideration fob Note and Mortgage—Payments under Guaranty.-—Held, that the consideration of the note and mortgage was shown by proof that the principal sum thereof was exactly equal to the liability sustained by the maker under her guaranty of advances to be made by plaintiff to a firm of which the comaker was a member, and the amount of which was fully explained to her when the note and mortgage were executed, and the guaranty surrendered to her.</p> <p>Id.—Requirements of Guaranty Fully Met.—Though the guarantor’s liability is limited to the terms of the agreement, and sureties are entitled to stand on the precise terms of the bond and are not bound beyond its strict letter, yet this requirement as to the maker’s guaranty were fully met by the testimony of witnesses ' for the plaintiff as to the amount advanced thereunder.</p> <p>Id.—Delivery of Mortgage—Execution—Possession by Plaintiff.— The delivery of the note and mortgage is shown from the proof that they were signed and executed, acknowledged and recorded, and were in the actual possession of the plaintiff and produced in the evidence by him.</p> <p>Id.—“Execution” Includes “Delivery.”—The term “executed,” as applied to a note and mortgage, has a well-defined meaning and includes delivery.</p> <p>Id.—Presumption of Lawful Possession.—The possession of the note and mortgage by the plaintiff raises a presumption that they came into his possession lawfully and would be sufficient to support a finding of delivery.</p> <p>Id.—Jury Trial not Required in Foreclosure Suit.—An action to foreclose a mortgage is a suit in equity triable by the court, and the defendant was not entitled as of right to demand a trial by jury, notwithstanding a judgment for deficiency may incidentally result from a sale of the mortgaged premises.</p> <p>Id.—Evidence-—Copy of Guaranty.—Where the evidence is sufficient to justify the conclusion that the original guaranty was either lost or destroyed, the court properly admitted a copy thereof.</p> <p>Id.—Cross-examination—Motive and Interest of Witness.—It is proper to show the motive and interest of a witness on cross-examination.</p> <p>Id.—Rulings upon Evidence—Absence of Prejudicial Error.—Held, that there were no rulings upon evidence which involved prejudicial error against the appellant.</p>

<p>Constitutional Law—Search-warrant Proceedings—Summary Disposition op Property—Want op Due Process—Code Provisions Void.—The provisions of sections 1408 and 1409, in so far as they are made applicable to search-warrant proceedings by section 1586 of the Penal Code, are void, as authorizing the magistrate in an ex parte proceeding to determine the title to property taken from the possession of a third party, without any trial of hearing, and to order it delivered up to the party who instituted the search-warrant proceeding. A proceeding permitting this contravenes the state and federal constitutions providing that a person cannot be deprived of his property without due process of law.</p> <p>Id.—Possession Under Claim op Eight—Nature op Due Process— Provision for Notice and Hearing.—One who is in the possession of property under a claim of right cannot be deprived of the possession without due process of law. To constitute due process of law the statute must provide for notice of a time and place of hearing, giving to the ■ parties an opportunity of presenting in a deliberate, regular and orderly method issues of fact and law to the court, or to a court and jury, unless a jury is waived.</p> <p>Id.—Statutory Means of Enforcing Eight Essential—Discretion Insufficient.—It is essential to the validity of the statute that it furnish the means whereby one may enforce his constitutional rights. It is no answer that the court may provide for a notice and hearing; for the right of a person to have his day in court must rest upon something more substantial than favor or discretion. The essential validity of the law is to be tested not by what has been done under it, but what may by its authority be done.</p> <p>Id.—Incidental Disposition of Property in Search-warrant—Proceedings not Conclusive—Claim and Delivery.—The incidental disposition of title in search-warrant proceedings is not conclusive; and the possessor from whom it was taken may reclaim it in an action of claim and delivery.</p> <p>Id.—Statute Authorizing Transfer of Possession.—A statute purporting to authorize a transfer of possession from one person claiming a right of possession to another claiming the same right, such possession being an essential part of property, without notice and opportunity to the party from whom the possession was taken to be heard, is not consistent with constitutional safeguards. A court cannot take possession away from such party in possession, without a hearing and compel him to prove title to regain it.</p> <p>Id.—Innocent Property.—Such property as is here involved is innocent property, threatening no danger to the public welfare; and there is no reason why the possessor who claims it should not be awarded by statute an ample opportunity to make his defense.</p> <p>Id.—Lawful and Unlawful Disposition of Possession.—If it be conceded that in a criminal prosecution for larceny, the court or judge or magistrate would be authorized incidentally to award possession of the stolen property to its rightful owner, yet, where there is no criminal prosecution, and mere search-warrant proceedings are instituted apparently for the sole purpose of gaining summary possession from a third person, who claims a right of possession, without notice or hearing, a statute, so far as authorizing such summary transfer or possession, is invalid and ineffective.</p> <p>Id.—Prohibition—Affirmance of Judgment.—The superior court properly awarded final judgment in prohibition to prevent the police court from turning over the property so taken from a third person upon a search-warrant to the party obtaining the warrant'; and such judgment of prohibition must be affirmed.</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>

[APPEAL from a judgment of the Superior Court of Sacramento County, and from order refusing to vacate the judgment, and denying a new trial. Peter J. Shields, Judge. The facts are stated in the opinion of the court.

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

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

<p>Action foe Divorce—Decree Denied—Community Property Admitted —Property Eights not Adjudged—Custody op Children—Maintenance—Frivolous Appeal.—In an action for a divorce, where a decree was denied, and there was no issue as to property rights, both parties having admitted that a specified tract was community property, and the court so found, but adjudged no rights therein, and its only order was made under section 136 of the Civil Code for the custody of the children, giving the smaller children to the wife and other children to the husband, and ordering the husband to pay $12 per month for the maintenance of the wife and smaller children, an appeal by the wife on the sole ground that the judgment fixed property rights is frivolous, and the judgment must be affirmed.</p>

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

<p>Transfer of Stock—Agreement for Repurchase at Agreed Price with Interest—Validity—Constitutional Law.—A transfer of shares of stock for an agreed price, accompanied by an agreement by the vendor to repurchase the stock, on demand, within one year, at the agreed price, with six per cent per annum interest added, is valid, and does not show a gambling transaction, nor a void sale of stock on margin, or to be delivered at a future time, within the provision of section 26 of article IV of the state constitution.</p> <p>Id.—Construction of Contract—Legality Favored.—The instrument embodying the terms of the contract, under section 1693 of the Civil Code, is entitled to such a construction as will make it lawful, operative and capable of being carried into effect, if it can be done without violating the intention of the parties.</p> <p>Id.—Spirit and Object of Provision of Constitution.—Agreements of this kind are not within the spirit of the provision in section 26 of article IV of the constitution. The object of that provision was to strike down a species of gambling in mining stocks then rife in this state. It is not its purpose to interfere with legitimate business, or to make void all time contracts for the purchase of shares in corporations.</p> <p>Id.—Variance as to Legality of Contract—Burden of Proof—Presumed Legality.—Although this form of contract might be used to effect a prohibited transaction not appearing upon its face, yet, if its true character is different from that which on its face it purports to be, the burden is upon the party seeking to be relieved therefrom to show such variance. If such burden is not sustained, and there is nothing in the record indicating that the transaction is other than that which it purports to be, its legality must be presumed.</p> <p>Id.—Stipulated Return oe Property Purchased on Demand—Option oe Rescission.—In all classes of cases where a purchaser pays the price, but stipulates that he may, if he so desires, return the property and receive back the price paid, such stipulation is usually held not to be a contract of purchase, but for the exercise of an option of rescission, and the title upon the exercise of the option at once vests in the original vendor.</p>

<p>Criminal Law—Murder—Extension op Time por Sentence—Amendment op 1909.—Held, that an extension of time for passing sentence upon a conviction of murder in the first degree, made prior to the taking effect of the code amendment of 1909 to section 1191 of the Penal Code, was not limited as to the extent of time which could be allowed, and that it could properly be fixed for two weeks after the verdict, and that, after the taking effect of that amendment, the court could extend the time for ten days further for the purpose of hearing or determining any motion for a new trial.</p> <p>Id.—Incomplete Record op Extension—Proper Certificate op Full Order.—Where the transcript contained only part of the second order extending time for sentence on motion of the defendant for a further period of six days, without referring to any motion for new trial, the court properly allowed the attorney general to procure a full transcript of the record, so as to show that the exten- ■ sion was granted “so as to enable him to prepare affidavits of newly discovered evidence on motion for new trial,” thus showing that the court acted within the scope of its powers under section 1191 as amended in 1909.</p> <p>Id.—Evidence—Dying Declarations—Sense op Impending Death—Indication by Circumstances.—Dying declarations made under a sense of impending death are admissible. All of the attendant circumstances, including the seriousness of the wound, may be considered in determining whether the deceased made the dying declarations under a sense of impending death. Held, that the trial judge was justified in accepting the declarations of deceased as coming within the rule, and in letting them go to the jury.</p> <p>Id.—Corroboration op Dying Declarations.—Held, that the dying declarations of the deceased find further support and corroboration in other evidence reviewed by the appellate court.</p> <p>Id.—Alibi—Province op Jury.—The jury were authorized to discredit testimony for the defendant tending to prove an alibi on the night of the crime.</p> <p>Id.—Motive op Crime.—Held, that defendant was the only person who appeared to have had any feelings of enmity against the deceased, that defendant had made threats against deceased and that there was no evidence casting the slightest suspicion of the crime on anyone other than the defendant.</p>

<p>Negligence of Electric Light Company—Sagging Wire Left Uninspected—Appearance of Harmless Guy Wise—Action for. Death of Child.—It was actionable negligence for appellants, as an electric light company, to permit a charged wire, having the appearance of a harmless uninsulated guy wire, to sag upon the ground without inspection for two days, as the result of which plaintiff’s child was killed by contact therewith, and appellants, are responsible to plaintiff for the death so caused.</p> <p>Id.—Cause of Sagging Immaterial.—Where the wire was attached by appellants across the street to an iron pipe to which it was attached as a ground wire, it is immaterial to appellants’ responsibility that an employee of the corporation defendant, while fixing the stand-pipe, when the electricity was off, cut the wire and left it sagging, believing it to be a harmless guy wire.</p> <p>Id.—Injury to Wire by Another Person—Expiration of Reasonable Time to Repair Damage.—The fact that the injury to the wire was caused by another person of whose act appellants were ignorant merely allows them no more than a reasonable time in wMch to inspect the wire and repair the injury, and a failure to inspect and remedy the same within such time is negligence.</p> <p>Ib.—Duty and Responsibility op Appellants—Ignorance op Condition op Wire—Negligence.—It was the duty of the appellants to make frequent inspections of their electric system, and, upon reason and authority, it must be held that their ignorance of the condition of such charged wire for two days amounts to actionable negligence, with the burden of responsibility in damages for any injury resulting therefrom.</p> <p>Id.—Ground op Responsibility—Greatest Care Required in Interest op Human Life.—The ground for the responsibility of appellants is that in the use of electricity, which is dangerous to life, they are required, in the interest of human life, to exercise the greatest degree of care and constant vigilance in inspecting and maintaining their wires in perfect condition.</p> <p>Id.—Absence op Contributory Negligence op Child—Grasping op Wire Apparently Harmless.—A boy eleven years of age, who was killed by taking hold of the sagging wire, cannot be charged with contributory negligence as matter of law, when he had no knowledge of its dangerous character, and there was nothing in its appearance to indicate that it was a live wire. Such a boy is not held to the same degree of caution required of an adult, and the finding of the jury in his favor cannot be disturbed.</p> <p>Id.—Child Deceived by Appearance op Wire—Appellants Responsible—Inequity op Appellants’ Position.—Where the actions of the boy clearly showed that he was deceived by the appearance of the wire, for the condition of which appellants were responsible, and such appearance was likely to mislead even experienced electricians, appellants cannot escape responsibility on the ground that the deceased child should not have been deceived. To hold, with appellants, that such child must be charged with contributory negligence, as matter of law, would be to hold that a snare may be laid for the unwary, and that the guilty may take refuge behind the childish credulity of the innocent.</p> <p>Id.—Correct Instructions.—Seld, that the instructions given by the court, construed together, correctly stated the law applicable to the facts of the case, and to the negligence and responsibility of appellants, and their duty, beyond that of the public, to know the dangerous condition of their wires and to remedy the same.</p>

<p>Power, of Board of Education—Reassignment of Primary School Teacher—Change of Particular Grade—Discretion.—The San Francisco board of education has discretion to assign and transfer teachers of primary schools from one primary school “to another, and from one class of “A-First” grade in one primary school at a fixed salary, to another class of “B-Third” grade in another primary school, at a less salary. Such classification of primary schools into grades is made for the purpose of dividing the course of study or curriculum into different periods; but the statute does not recognize their existence.</p> <p>Id.—Statutory Grades.—The law itself recognizes but three principal grades, namely, primary, grammar and high school grades. Certificates authorizing teachers to instruct in these grades are issued accordingly as primary, grammar and as high school certificates, and qualify the teacher for service only in the grade or grades covered by the certificate.</p> <p>Id.—Statutory Sense of “Grade”—Limitation of Powers of Board. It is only in the statutory sense of the term “grade” that we must regard it as limiting the power of the board of education to transfer and assign teachers. The asserted right of a teacher to teach a particular class within a particular statutory grade, in preference to another class in the same grade, cannot be upheld without express statutory authority.</p> <p>Id.—Unlimited Power of Board.—In the absence of constitutional or statutory limitation, boards of education may exercise an unlimited discretion in the employment and dismissal of teachers, as well as in their transfer and assignment.</p> <p>Id.—Construction of Political Code.—There is nothing in section 1793 of the Political Code placing any limitation upon the power of the board of education to transfer a teacher from class to class or from school to school within the same statutory grade. All that the statute requires is that the teacher shall be retained in some class in a school of the grade expressed in the teacher’s certificate.</p> <p>Id.—Intent of Legislators—Freedom of Action by Board.—The legislators certainly intended to leave such freedom of action in the board of education to make such assignment or transfer of a teacher from one class to another within the same statutory grade to which a "slightly lower salary is attached, as is complained of in this case.</p> <p>Id.—Leave of Absence of Teacher—Unauthorized Placing upon Unassigned List—Eight to Salary.—Where a teaeher was granted a leave of absence by the board of education, they had no right to place her upon the unassigned list, and she is entitled to mandamus to compel the- payment of her former salary to such time as she was finally reassigned to another primary school.</p> <p>Id.—Refusal to Accept Reassignment—Mandamus not Permissible. Where the teacher refused to accept the reassignment lawfully made by the board of education, she is not entitled to manda/mus to compel the allowance of the salary incident thereto.</p> <p>Id.—Right of Indefinite Employment Limited to City Certificate. Section 1793 of the Political Code confers the right of indefinite employment upon those who are the holders of city or city and county certificates, and by it this right is conferred only as an incident to the holding of a city certificate as distinguished from a county, state, or special certificate. It is not determined whether the holder of a high school certificate is not the holder of a city certificate within the contemplation of that section.</p>

<p>Action upon Oral Promise of Wife to Pay Husband’s Debt—Consideration of Release—Support of Finding and Judgment.— In this action upon an alleged oral promise by the defendant to pay to plaintiff the sum of $725 in consideration of a release by plaintiff of a debt in that sum due from her husband to plaintiff, it is held that a finding that defendant never promised to pay to plaintiff that sum or any other sum is sustained by sufficient evidence appearing in the records and is controlling as to the judgment for defendant.</p> <p>Id.—Brief of Appellant—Credibility of Witnesses—Depositions— Review upon Appeal.—The brief for appellant, in so far as it discusses the credibility of witnesses, presents matters with which this court has nothing to do; and the fact that much of the testimony was read from depositions does not affect the rule.</p>

<p>Action by Actress for Services and Traveling Expenses—Pleading— Demurrer for Uncertainty—Bill of Particulars.—In an action by an actress, where the complaint shows that defendants are indebted to her for services rendered and for traveling expenses incurred under an express contract in a given sum, which it is alleged defendants agreed to pay to plaintiff, the complaint need not state how much was to be paid for services and how much for traveling expenses. Any uncertainty in that respect might be cured by a bill of particulars; and a demurrer to the complaint for ambiguity and uncertainty, on that ground, was properly overruled.</p> <p>Id.—Contract for Two Weeks’ Notice Before Dismissal—Dismissal Without Notice—Bight to Payment.—Where the actress was employed under a contract entitling her to two weeks’ notice before dismissal and she was dismissed without notice and without any fault on her part, she is entitled to recover pay for the two weeks following her discharge.</p> <p>Id.—Support of Finding.—Meld, that the finding that the defendants were indebted to plaintiff in the sum of $300 was sustained by the evidence, and that although her return fare had not yet been paid, the case was tried upon the theory that she was entitled to receive the amount of that fare, and no objection was made to the evidence upon the ground that she had not paid it.</p> <p>Id.—Advances to Plaintiff—Increase of Pay—Executed Oral Alteration of Contract.—Meld, that advances made to the plaintiff had been fully repaid by an executed oral contract for an increase of pay covering the amount of the advances made to plaintiff.</p> <p>Id.—Defendants Liable to Plaintiff.—Although none of the defendants pleaded a misjoinder of parties defendant, only such of them as were liable to the plaintiff can be held liable.</p> <p>Id.—Mere Agents for Principal Debtors not Liable.—The plaintiff is not entitled to recover against mere agents of the principal debtors who were bound to her by contract; and the judgment must be reversed as to such agents, and affirmed as to the principal debtors.</p>

<p>Criminal Law—Bobbery—Aiding and Abetting Crime—Alternative Instruction—Defect Cored.—Where defendant, charged with the crime of robbery, was convicted upon proof of aiding and abetting the crime, an instruction in the alternative to the effect that “all persons concerned in the commission of a crime, whether they directly commit the act, or aid or abet in its commission, or, not being present, advise and encourage its commission, are principals in any crime so committed,” is cured in its defect by other instructions clearly showing that the jury were instructed and understood that unless defendant criminally aided in the commission of the offense they could not find him guilty.</p> <p>Id.—Innocent Aid in Crime—Absence of Evidence—Jury not Misled.-—Although one who innocently aids in the commission of a crime cannot be guilty, yet, when there was no evidence tending to show that the defendant innocently aided in the crime, the jury could not have misapplied the instruction in the alternative.</p> <p>Id.—Evidence—Subsequent Robbery—-Absence oe Objection.—Evidence of a subsequent robbery cannot be considered where the record shows that no objection was made to the evidence.</p>

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

<p>Attachment—Insufficient Affidavit—Alternative Form.—An affidavit for a writ of attachment which literally follows the alternative form prescribed by the statute, where the claim declared arises out of a contract for the direct payment of money, that “the payment of the same has not been secured by any mortgage or lien upon real or personal property, or any pledge of personal property, or if originally so secured, that such security has, without any act of the plaintiff, or the person to whom such security was given, become valueless,” does not state either main alternative with certainty, and is insufficient to authorize the issuance of the writ.</p> <p>Id.—Improper Writ—Motion to Dissolve Denied—Reversed.—A motion to dissolve such improper writ of attachment should have been granted, and an order refusing to dissolve it must be reversed.</p> <p>Corporations—Insolvent Bank—Individual Liability of Directors. The individual liability of the directors of an insolvent bank for moneys thereof, which were wrongfully diverted and converted by them is based on section 3 of article XII of the state constitution.</p>

<p>Order Denting New Trial—Absence of Bill of Exceptions or Statement—Insufficiency of Evidence—Review upon Appeal. Upon appeal from an order denying a new trial, where the record does not contain any bill of exceptions or statement on motion for a new trial presenting the evidence or the substance thereof, the insufficiency of the evidence to sustain the findings cannot ba reviewed upon appeal from such order.</p> <p>Id.—Appeal prom Judgment.—Where the appeal is from the judgment, as well as from the order denying a new trial, in the absence of a bill of exceptions or statement, the appeal, in effect, amounts to nothing more than an appeal from the judgment upon the judgment-roll alone.</p> <p>Id.—Failure to Find upon Material Issue as to Counterclaim— Absence of Evidence—Presumed Abandonment.—Alleged error in failing to find upon a material issue as to a counterclaim of the defendant cannot be reviewed in the absence of the evidence from the record. In such case the presumption is that the defendant abandoned the counterclaim at the trial.</p> <p>Id.—Argument—Reference to Recitals of Insufficiency—ExtraJudicial Declarations.—References in appellant’s brief to folios of the transcript for evidence of the counterclaim, merely embodied in his specifications of insufficiency of the evidence, only disclose extrajudicial declarations, not embodied in a bill of exceptions or statement, of which this court can take no notice.</p> <p>Id.—Premature Action upon Building Contract not Shown.—The contention of appellant that the action upon a building contract was prematurely brought, based upon a provision therein that the payment of a sum allowed to be due to plaintiff was postponed until after the final completion of the work and after its acceptance and the filing of notice of completion in the office of the county recorder, cannot be considered where the record is wholly silent as to any evidence introduced upon that subject.</p> <p>Id.—Inapplicable Rule—Proposed Amendments to Statement.—The rule of law that if a proposed statement on motion for new trial is incorrect, it is the duty of the opposite party to propose amendments thereto, has no application where the moving party proposed no statement in the first instance.</p> <p>Id.—Refusal of Plea in Abatement After Submission of Case— Failure of Foreign Corporation to Comply With Law—Discretion.—The refusal of the court, after trial and submission of the cause, to allow the defendant to file a plea in abatement, by amended and supplemental answer, to set forth the failure of plaintiff, as a foreign corporation, to file with the Secretary of State the designation of a person upon whom process can be served as required by law, was a proper exercise of judicial discretion, with which this court cannot interfere.</p> <p>Id.—Waiver of Dilatory Plea—Abuse of Discretion.—The fact that the disability of the plaintiff to maintain the action was not pleaded before the cause had come to issue and trial may be taken as a waiver on the part of the defendant of such disability; and it would have been a clear abuse of discretion subsequently to have granted a motion to file a mere dilatory plea though not going to the merits.</p> <p>Id.—New Defense Must be Equitable.—A new defense after submission of the cause must be something more than a legal defense; it must be also an equitable defense.</p> <p>Id.—Dilatory Pleas not Favored.—Dilatory pleas are never favored, and are to be strictly construed.</p> <p>Id.—Showing of Failure to Pay License Tax—Substitution of Directors as Trustees.—Where there was a showing of a defense that the foreign corporation had failed to pay the statutory license tax, the court, under the provisions of the act of 1907 (Stats. 1907, pp. 146, 147), properly exercised its discretion to allow its directors, as trustees, to be substituted to maintain the action in behalf of the corporation.</p> <p>Id.—Proof of Directors—Depositions by Stipulation—De Facto Directors—Discretion as to Proof.—Where depositions were taken by stipulation of two of the directors testifying as to who were the de facto directors elected and acting as such, it was within the discretion of the court, after trial and submission of the cause, to refuse a motion for defendant to issue a commission to prove from the books of the corporation, as the best evidence, as to who were its directors to be substituted as trustees.</p> <p>Id.—Estoppel of Appellant.—Where defendant not only stipulated to the taking of depositions of two of the directors who had knowledge as to who were the acting directors of the corporation, but also introduced the depositions into the record, he is estopped as appellant from taking advantage of any error in such proof.</p> <p>Id.—Proper Settlement of Findings.—The court below properly used the depositions so introduced in settling and making up its findings.</p>

<p>Estates of Deceased Persons—Petition for Partial Distribution by Heirs—Answer—Trial of Issues—Will—Objection upon Appeal.—Where persons claiming to be heirs of a deceased person made a petition for. partial distribution to them as such, and an answer thereto was filed by the executor and by the devisee and legatee under the will, taking issue upon their alleged heirship, and a trial was had of such issue, and findings made thereupon against the claim of heirship, neither party will be allowed to object upon appeal for the first time, that no issue existed to be tried as to heirship, and that the matter must rest upon the terms of the will.</p> <p>Id.—Sufficiency of Petition—Absence of Demurrer—Answer— Theory of Trial—Will not Produced—Objection upon Appeal. Where no demurrer was interposed to the petition for partial distribution, and no objection was made to any testimony as not being within the issues presented by the petition and the answer thereto, and the will was not produced in evidence, and the ease was tried upon the theory that all of the material issues were properly presented, without objection by either party, an objection that there was no issue, because of the will to which the petitioners were not parties, involves an attack upon the sufficiency of the petition, which cannot be urged upon appeal for the first time.</p> <p>Id.—Claim of Heirship Based upon Void Slave Marriage—Sonshif Immaterial.—Where the conceded facts as to the claim of heir-ship show that it was based upon a marriage between slaves while</p> <p>slavery was established in Missouri, which was void under the law of that state, as it then existed, for want of capacity in law of slaves to contract a valid marriage, a claim of heirship based thereon is untenable, notwithstanding the immaterial fact of son-ship of such void marriage.</p> <p>Id.—Nature of Valid Marriage—Contract—Civil Status—Consent for Life.—Marriage, under the law of Missouri, is not only “considered in law as a civil contract, to which the consent of parties capable of contracting is essential,” which precluded the possibility of marriage between slaves, but it is also defined by the supreme court of Missouri, to he “the civil status of one man and one woman capable of contracting, united by contract and mutual consent for life, for the discharge to each other and to the community of the duties legally incumbent on those whose association is founded on the distinction of sex.”</p> <p>Id.—Nature of Slave Marriage—Tolerated Concubinage.—Considering the incompatibility of the duties of common marriage with those due from a slave to his master, and the inconsistency of a true marriage relation with the master’s superior claims, as well as the general policy of slavery, there is no essential element that could give any sort of validity to such a union. It was tolerated concubinage, but not matrimonial cohabitation.</p> <p>Id.—Disaffirmance of Slave Marriage—Separation—Second Marriage in This State.—Where the slave marriage was never affirmed, after emancipation, but, before emancipation, the slave husband came to this state in 1859, and the slave wife moved to Texas and the former slave husband, after emancipation, contracted a valid marriage in this state, while the former slave wife was still living, the slave marriage was disaffirmed, and never had validity.</p> <p>Id.—Rebuttal of Presumption of Marriage from Cohabitation and Repute.—The second marriage in this state was sufficient to rebut any possible presumption of a former marriage from cohabitation and repute. The presumption of a marriage between A and B, founded simply upon habit and repute, is overcome by proof of a second actual marriage between A and C during the lifetime of B.</p> <p>Ib.—Subsequent Law of Missouri Validating Slave Marriages— Statute not Proved.—A subsequent law of Missouri, passed in 1863, validating slave marriages and legitimating the children must be prove'd as a fact, like any other facts; and where it was not so proved, it cannot be considered.</p>

<p>Appeal—Review—Bill op Exceptions—Order Refusing to Set Aside Appealable Judgment or Order.—It is a settled rule, with some exceptions, that when a judgment or order is itself appealable, an appeal should be taken from the same, upon a proper bill of exceptions, and not from a subsequent order refusing to set it aside.</p> <p>Id.—Motion to Vacate Judgment—Settled Bill—Affidavits—Want of Jurisdiction—Excusable Neglect—Conditional Order.—Held,, that a settled bill of exceptions and affidavits used on a motion to vacate a judgment for want of jurisdiction, and for mistake, inadvertence, and excusable neglect, when carefully considered, simply justify a conditional order, which resulted in denying the motion, for failure of the moving party to comply with its conditions.</p> <p>Ib.—Appeal from Judgment—Absence of Bill of Exceptions—Presumptions.—Upon an appeal from the judgment, without any bill of exceptions, all intendments must be indulged in support of the judgment, and all proceedings necessary to its validity will be presumed to have been regularly taken; and any matters which might have been presented to the court below to authorize the judgment will be presumed to have been presented.</p> <p>Id.—Presumed Waiver of Findings.—When there is nothing in the record to show that findings were not waived, it will be presumed that findings were waived.</p> <p>Id.—Findings Unnecessary—Judgment upon Agreed Statement or Stipulation—Presumption.—When judgment is entered upon an agreed statement of all the facts, no findings are necessary; and the same rule should apply when judgment is entered upon a stipulation, since it will be presumed, if necessary to support the judgment, that the stipulation was matter of minute entry, and that it was sufficiently full and specific to authorize the entry of the judgment.</p> <p>Id.—Ejectment Against Defaulting Purchasers—Verbal Stipula tion in Court—Agreed Payments—Judgment upon Nonpayment —Extension—-Estoppel.—In an action of ejectment against defaulting purchasers, in which it was verbaEy stipulated in open court, as shown by notes of the official stenographer, that a specified-sum was unpaid, which it was agreed should be paid in specified installments, and if not so paid, judgment should go for plaintiff as prayed for, and defendants secured an extension of such time, and still made default, defendants are not at liberty to repudiate-the agreed provision for judgment, which is entered pursuant to the stipulation.</p> <p>Ib.—Attorney and Client—Executed Oral Agreement by Attorney Binding on Client—Construction op Code.—Section 283 of the Code of Civil Procedure, providing the manner in which an attorney may bind his client, refers to executory, and not to executed, agreements. When an attorney in open court verbally consents or stipulates that an order or judgment may be entered, and agreeably thereto the order or judgment is entered, it then becomes an executed agreement or stipulation, to which that section does not apply. To give to section 283 a literal construction would greatly retard the business of the court, and lead to absurd consequences.</p>

<p>Criminal Law—Grand Larceny—Evidence—Confession—Voluntariness—Conflicting Evidence—Conclusive Buling.—Upon a trial for grand larceny, wheYe evidence of a confession was admitted, which defendant testified was given under a promise of immunity, and to dismiss the case against him, while the officers to whom the confession was made denied the truth of such evidence, and testified that the confession was voluntary, the ruling of the court in admitting the confession upon such sharp conflict in evidence as to its voluntariness must be deemed as conclusive as any decision upon a disputed question of fact.</p> <p>Id.—Diamonds Stolen—Investigation by Chief of Police—Statement to Defendant Before Arrest—Immunity not Promised.— Where diamonds of the prosecuting witness were stolen from-a bathhouse, where they had been left in charge of the cashier, and the chief of police, while investigating the matter, before defendant’s arrest, stated to Mm: “I am satisfied that you know exactly where the diamonds are, and come through and tell me where they are; the game is young"—such statement cannot be construed as a promise of immuMty.</p> <p>Id.—Evidence—Letter Written to Accomplice—Voluntary Surrender.—A letter written by the defendant to an accomplice, the contents of wMch strongly tended to prove Mm guilty, and wMch there was evidence tending to show was voluntarily surrendered by the defendant, was properly admitted in evidence over Ms objection that it was procured by strategy and fraud.</p> <p>Id.—Subjects of Evidence Illegally Taken—Admissibility.—Though papers and other subjects of evidence were illegally taken from the possession of the party against whom they are offered, or are otherwise unlawfully obtained, this is no objection to their admissibility, if they are pertinent to the issue.</p>

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

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

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

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

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

<p>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. Thos. F. Graham, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Criminal Law—Appeal—Order Denting Petition for Probation—■ Discretion.—An order denying a petition for probation after the conviction of a defendant of a felony rests entirely within the discretion of the trial court, and is not appealable.</p> <p>Id.—Information for Burglary—Averments not Bequired—Capacity to Commit Crime—Negative of Exceptions—Presumption.—An information for burglary with intent to commit larceny need not allege the capacity of the defendant to commit the crime, nor negative the exceptions embodied in section 26 of the Penal Code. It is always presumed that a person intends the ordinary consequences of his voluntary act; and it is sufficient that there is nothing on the face of the information to prevent the application of this presumption.</p> <p>Id.—Use of Words “Boy” and “Man”—Age not Appearing—Presumption from Court’s Discharge of Duty.—The use both of the words “boy” and “man” by witnesses in speaking of defendant, whose age does not appear in the record, would not indicate that he was under fourteen years of age; and the presumption that the trial court discharged its duty in sending him to the state’s prison would negative any inference that he was not over fourteen years of age.</p> <p>Id.—Motion fob Continuance not Supported Properly Denied.— Where a motion for a continuance by the defendant was not supported by any affidavit, and the court did not refuse to permit him to file an affidavit, the court did not err in denying the motion.</p> <p>Id.—Verdict Supported by Evidence.—Held, that the verdict is supported by evidence showing that the crime of burglary in the first degree was committed; and the verdict settles any conflict as to the capacity of the defendant to commit the crime from the use of the terms “boy” and “man” by witnesses beyond disturbance by this court.</p> <p>Id.—Cross-examination—Testimony on Preliminary Examination— Production of Record.—Where, upon cross-examination of a witness as to his testimony on preliminary examination, an attempt is made to put into the witness’ mouth language stated to be his testimony given at the preliminary examination for the purpose of having him assent thereto, it is only fair and just to the witness that he should be permitted to see the transcript, or have the testimony read to him from the record, if it is at hand; and the court properly required this to be done.</p> <p>Id.—Different Rule as to Establishing Negative.—Where a negative answer only is the one desired and expected by the cross-examiner as to a statement assumed not to be in the voluminous record of the evidence, the giving of such answer does not require the inspection of the record to show that it was not given on the pre-' liminary examination.</p> <p>Id.—Proper Action of Trial Judge—Evasion of Ruling.—The trial judge properly called the attention of counsel for defendant to the fact that his questions were an evasion of a former ruling of the court, though the district attorney made no objection thereto.</p> <p>Id.—Duty of Judge—Conduct of Trial.—It is the duty of a judge to see that a trial is conducted in accordance with the rules of evidence and law, as the same appear to him, whether counsel object or not.</p> <p>Id.—Proper Conduct of District Attorney—Scope of Examination and Cross-examination.—The proper conduct of the district attorney in the examination of witnesses within the scope of legitimate examination and cross-examination cannot be assigned as misconduct.</p> <p>Id.—Cross-examination of Witness to General Reputation of Defendant—Discredit of Opinion.—The district attorney properly cross-examined a witness to the general reputation of the defendant, as to statements made by her relative to particular acts of defendant tending to discredit the opinion given.</p>

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

<p>Action fob Value of Metallic Disks—Use in Business College by Students—Absence of Besemblance to Coins.—An action is maintainable to recover the value of metallic disks manufactured solely for use by students in a business college conducted by defendant, in their business accounts therein, where there is nothing counterfeit in their nature, and no resemblance appears therein, except in size, to any genuine coin of any nation, and they do not purport to be money in fact.</p> <p>Id.—Absence of Defense.—It is no defense to such action either that the college would be ridiculed by the students using such disks, or that they constitute counterfeits of money against public-policy.</p>

<p>Note Executed Out of State—Statute of Limitations.—A' note executed and delivered out of the state is barred in two years from the date of its delivery.</p> <p>Id.—Note Signed by Two Makers and Dated in This State—Third Maker Out of State—Delivery to Payee by Mail.—A note signed .by two makers and dated in this state, but not delivered to the payee, a third maker being required to sign it out of the state, who was requested to mail it, when signed, to the payee in this state, was executed and delivered out of the state, within the meaning of the statute of limitations.</p> <p>Id.—Parol Evidence to Show Place of Delivery.—Where such note purports to be signed and dated by all three makers at Los Angeles, in this state, parol evidence is admissible to show that it was in fact executed and delivered out of the state.</p> <p>Id.—Delivery of Note Essential to Obligation.—The delivery of a note is the final act essential to the consummation of its obligation, and the actual place of its delivery may always be proved, though differing from the venue appearing upon its face.</p> <p>Id."—Effect of Designation of Venue in Date Line—Prima Eacib Evidence.—The effect of the designation of the venue in the date line of the note is prima facie evidence only of the fact when disputed; and in the absence of facts constituting an estoppel, the note may be shown, to have been delivered at a different place out of the state.</p> <p>Id.—Bule as to Deposit in Postoffice—Delivery.—The general rule is that the depositing of a note in the postoffice, addressed to the payee with his assent, constitutes a delivery thereof. Under the circumstances of this ease, when the note was finally executed in Chicago, and there addressed to the payee, and mailed to his address in this state with his assent, the delivery took place in the state of Illinois.</p>