Volume 13 — California Appellate Reports

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

<p>Mechanics’ Liens—Consolidated Action—Complaint Without Issue —Stipulation—Proof of Lien—Jurisdiction—Judgment.—In a consolidated action to foreclose mechanics’ liens, when no issue was joined upon the complaint in the second action, but all parties were represented by counsel, and the second plaintiff was a defendant in the other action, and appellant was defendant in both actions, and it was stipulated at the trial that the evidence should inure to the benefit of all parties, and plaintiff in the second action proved its lien without objection, the fact that a judgment was rendered against the owner appealing in favor of the plaintiff on the second action implies that the court ascertained that it had jurisdiction both of the subject matter of the second complaint and of the person of appellant before rendering such judgment.</p> <p>Id.—Presumption in Support of Jurisdiction.—It will be presumed in favor of the jurisdiction of -the superior court that the court acted upon evidence of some kind, when the record shows nothing to the contrary; and it must be presumed that the court properly discharged its duty to determine before hearing a controversy that it had jurisdiction of the c'ause and of the parties thereto.</p> <p>Ib.—Presumption of Verity of Record.—In all matters of which the judgment contains a record, its verity, in the absence of contrary evidence, will be presumed as fully as upon collateral attack. The record is conclusive as to all matters upon which it speaks, when not impeached by the bill of exceptions.</p> <p>Id.—Recital in Judgment-roll—Appearance of Appellant—Contest of Lien.—The recital in the judgment-roll that appellant appeared by attorney impliedly to contest the claims of lien of plaintiff in the second suit is supported by the record of the proceedings at the trial, without any attempt to impeach such recital or the evidence tending to establish its truth.</p> <p>Id.—Effect of Appearance by Attorney.—The voluntary appearance of a defendant by attorney is equivalent to personal service of the summons and complaint.</p> <p>Id.—Evidence of Appearance—Judgment-roll—Bill of Exceptions —Contention Unsustained.—Though the code does not requiie that an appearance shall be made part of the judgment-roll, yet when the judgment-roll recites that appellant appeared in both actions, and there is uncontradicted evidence in the bill of exceptions tending to support such recital, the contention of appellant that the court had no jurisdiction to render the judgment for plaintiff in the second action is unsustained.</p> <p>Id.—Sufficiency of Complaint—Absence of Demurrer—Proof at Trial—Waiver of Objection.—The objection that the second complaint' is insufficient, in not averring either that any sum was due to the contractor, or that the contract price exceeded $1,000, and that the contract was not recorded, was waived, and cannot be urged upon appeal for the first time, when no demurrer was interposed thereto, and it was clearly established by proof at the trial that the contract price far exceeded that sum, and the contract was not recorded. In such case, it was wholly immaterial whether any sum was due to the contractor.</p> <p>Id.—Notice by Owner—Construction of Code.—Section 1192 of the Code of Civil Procedure does not give to the owner of the property two periods of time in which he may give the notice of nonresponsibility provided for therein. If he has knowledge of the intention to build, he must act on that knowledge within three days thereafter; and if not, he must move with like promptness upon obtaining knowledge of the construction.</p> <p>Id.—Finding As to Knowledge Rendered Immaterial—Corporation Lessee Agent for Owner.—A finding that the owner did not give notice of nonresponsibility, within three days after knowledge of the intention to build, is rendered immaterial, where a finding is sustained by the evidence that the corporation was organized by the owner and his associates as an agency for the lease of the property thereto for the purpose of constructing a building thereon.</p> <p>Id.—Finding not Inconsistent With Pleading.—The averment of ownership by the individual owner, and of a lease to the corporation, which constructed the building on his property, is not inconsistent with a finding supported by the evidence that the owner was merely using the corporation as an agency for the construction of such building.</p> <p>Id.—Owner Acting Through Agent for Building not Entitled to Give Notice.—An owner who acts through an agent to secure the construction of a building on his land in the agent’s name is not entitled to give notice of nonresponsibility under section 1192 of the Code of Civil Procedure.</p>

<p>APPEAL from an order of the Superior Court of Los Angeles County, granting 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 Orange County. Z. B. West, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Corporations—Statutory Liability of Stockholder.—The statutory-liability of a stockholder of a corporation is not based merely upon his proportion of the issued stock of the corporation, but rests upon the proportion which the whole number of shares of stock subscribed and paid for by him, whether issued or not, bears to the whole number of shares of stock subscribed and paid for by other stockholders, whether issued or not at the time when the debt sued upon was created.</p> <p>Id.—Subscription and Payment for Unissued Stock—Bonus—Executed Agreement—Ownership of Stock.—Where the directors of the corporation authorized the whole of the unissued stock to be subscribed and paid for by the stockholders, and agreed to a bonus of bonds, for which notes were afterward substituted by an executed agreement, and the whole of the stock was thus subscribed and paid for, and the subscription was deposited with the secretary for which the notes of the corporation were received, and the whole transaction was ratified by the directors, the subscribers became owners of the stock so subscribed and paid for, by such executed agreement.</p> <p>Id.—Mode of Becoming Stockholder—Informal Contract—Bonds Waived.—No formal contract is required to constitute one a stockholder in a corporation. Any agreement by which a person shows his intention to become a stockholder is sufficient. In this case, if the original agreement be disregarded, payment for the stock and the voluntary acceptance of the bonds agreed upon in the form of notes executed and delivered by thé corporation was clearly sufficient to constitute the defendant and his associates owners of the shares of stock to the extent of their respective subscriptions. The original condition for issuance of bonds was waived by the voluntary acceptance of the notes in lieu thereof.</p> <p>Id.—Absence of Entry of Subscribed Shares upon Books—Ownership not Affected.—The absence of the entry of the subscribed shares of stock formally upon the books of the corporation does not affect the ownership of the paid-up shares.</p> <p>JL>.—Statutory Liability not Confined to Issued Shares.—The statutory liability of the stockholders of a corporation does not depend upon the shares of stock being formally recorded in the name of the owners. Such a position is contrary to section 3 of article XII of the state constitution, and to section. 322 of the Civil Code, neither of which limits the liability of stockholders to those who appear on the books of the corporation to be such but include every equitable owner of stock.</p> <p>Id.—Failure of Corporation to Perform Duty to Issue Shares— Absence of Duty of Owner.—The failure of the corporation to perform its duty to issue the shares paid for cannot be imputed to the owner of the stock, who has the right to assume that the proper book entries are made. No duty devolves upon the purchaser of stock from the corporation to see that not only his name, but the names of all other purchasers, together with the number of shares owned by them respectively, are entered in the books of the corporation.</p> <p>Id.—Absence of Estoppel—Liability Unaffected.—In the absence of facts constituting an estoppel, the liability of a stockholder is unaffected by the neglect of duty of the corporation to enter his name upon its books.</p> <p>Id.—Construction of Statute — “Stockholder” or “Owner.”—The term “stockholder” or “owner,” as used in the statute, is not confined to one who appears upon the books of the corporation as such, but to the real owner, notwithstanding the fact that the stock as shown on the books appears in the name of another. The apparent book owner may be also required to respond to a creditor, but his liability is based not upon ownership, but upon estoppel to deny ownership.</p> <p>Id.—Bight of Owner to Protect Himself from Liability.—It being true that the creditor of a corporation may pursue the real owner of stock upon his statutory liability, the converse must also be true, that the real owner has the right to protect himself from statutory liability by showing the real ownership of shares of stock not appearing upon the books of the corporation in addition to those so appearing as a true basis upon which to diminish his liability.</p> <p>Id.—Issuance of Shares Immaterial.—Issuance of certificates of stock for stock subscribed and paid for is not necessary to constitute one a stockholder or owner of shares in a corporation.</p> <p>Id.—Failure of Minutes of Corporation to Show Action of Board —Parol Evidence.—It is immaterial that the minutes of the corporation failed to disclose the action of the board. At most, the minutes of the proceedings of the board are prima facie evidence only of its acts. In the absence of a minute entry of its proceedings, they may be proved by parol evidence.</p> <p>Id.-—-Agreed Statement of Facts.—It is sufficient that the agreed statement of facts upon which the case was submitted shows that the total amount of the capital stock of the corporation was subscribed and paid for, when the indebtedness sued upon was contracted, and that defendant owned 135 shares out of the $100,000, instead of 105/530 of issued stock only as claimed by appellant.</p>

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

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

<p>Action for Death—Negligence of Drayage Corporations—Collision —Negligence of Single Company—Nonsuit.—In an action for the death of plaintiff’s intestate, caused while he was engaged in his usual avocation upon a railroad box-car, by the collision of loaded drayage teams belonging to the corporations appellant, it is held, upon examination of the record upon appeal, that the liability for the death is limited ■ to the last-named corporation appellant, and that the Morton company, appellant, was entitled to a nonsuit, there being insufficient evidence to sustain the verdict as to it.</p> <p>Id.—Negligence—Construction of City Ordinance—Forbidden Use of Unlocked Dray—Question for City Authorities.—A part of a city ordinance which makes it unlawful to drive or use a truck or dray without having attached to the body thereof a suitable chain for locking its wheels, presents only a question for the city authorities, and does not involve the question of negligence.</p> <p>Id.—Statutory Negligence—Leaving Team and Dray in Street Unlocked.—A provision of such ordinance making it unlawful for any person to “leave” any animal controlled by him, if attached to a dray or truck, upon the public street, without first securely locking its wheels, when violated, presents a ease of statutory negligence, for which the owner of such team would be responsible.</p> <p>Id.—Ordinance not Violated—Absence of Statutory Negligence— Team and Dray not Left.—Where the teamster, after loading his dray, did not “leave” the same in the street within the meaning of the ordinance, but turned his horses away from the box-car, and proceeded to fasten his loaded dray with ropes, when another team negligently collided with his team, and frightening the same made them back onto the box-car causing the death, the death was proximately caused by such colliding team, and the owner of the frightened team is not chargeable with statutory negligence.</p> <p>Id.—Meaning of Word “Leave” in Ordinance.—The word ‘leave,” as used in the ordinance, is to depart or go away from, to quit; and the ordinance means to abandon for a time, to go away from the immediate charge and supervision of the animal or animals so left.</p> <p>Id.—Penal Nature of Ordinance—Construction—Ordinary Sense of Words.—The ordinance is penal in its nature, and cannot be extended beyond its plain words, and in its ordinary common sense meaning. No ordinary person would say that a teamster tying up his load had left his team.</p> <p>Id.—Burden of Proof of Negligence—Burden not Sustained.—A plaintiff seeking to recover against a defendant for negligence has the burden to prove it, either directly or by facts and circumstances from which negligence may be inferred. Held, that such burden was not sustained to show any liability of the Morton company, appellant, under the ordinance in question by reason of its teamster being engaged in fastening up his load, though not holding his lines while so engaged.</p> <p>Id.—Evidence—Sufficient Width of Space Between Teams for Passage—Harmless Error.—Any error in excluding evidence offered by the Boearde company to prove that there was an amply sufficient width of space for passage of its team between the Morton team and the railroad track, was harmless, where such proof was otherwise made, and where proof of such sufficient width made it all the more inexcusable negligence for the Boearde team to collide with and frighten the Morton team, thus' causing it to back upon the boxcar.</p> <p>Id.—Expert Evidence Properly Excluded—Matter op Common Knowledge—Province op Jury.—The testimony of experts as to how near a team may drive in relation to another team in the exercise. of care and skill in approaching the same and driving past < without danger was properly excluded, such question not being one relating to science, art or trade, but being a matter of common knowledge for the jury to determine. It is well known that most animals will shrink or retire from approaching danger, and that a team of horses, upon being run into or struck by the harness or wagon of an approaching team, would be likely to pull back or retire, so as to avert the danger.</p> <p>Id.—Amendment op Complaint—Charge op Absence of Lock on Wheels.—It was not error for the court to allow an amendment to the complaint to charge that the Morton company was negligent in driving its truck without any suitable chain for locking its wheels. The Bocarde company cannot complain of such amendment.</p> <p>Id.—Instructions—Abstract Bequest Inapplicable to Evidence.—An appellant was not injured by the refusal of a requested instruction, which, though abstractly correct, was inapplicable to the evidence, it appearing that the court gave other instructions fully covering the law applicable to such appellant.</p> <p>Id.—Bindings—Consistency—Proximate Cause op Death.—The findings of the jury upon special issues submitted to it are held not to be inconsistent with each other or with the general verdict. The court found upon sufficient evidence that the driver of the Bocarde team carelessly and negligently drove his team in front of the horses of the Morton company; that this caused the Morton company team to back, and that this was the proximate cause of the injury to the deceased.</p> <p>Id.—Immaterial Binding—Absence op Chain on Wheels op Morton Company—Negligence op Other Company not Excused.—The finding to the effect that if the Morton company had supplied its dray with a suitable chain, and that if the chain had been used and the wheels locked the accident would not have occurred, is not material, and does not in any way excuse the negligence of the Bocarde company. Unless the Morton company was guilty of negligence by reason of the violation of the ordinance, the condition and equipment of its dray was wholly immaterial.</p>

<p>APPEAL from a judgment of the Superior Court of Santa Barbara County. Samuel E. Crow, Judge.</p> <p>The facts are stated in' the opinion of the court.</p>

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

George R. Davis, Judge, The transcript shows that the demand note specified no interest, hut that legal interest was calculated from its date, April 14, 1908, to the date of the sale of hypothecated stock, November 25, 1908, and the application of the proceeds, and legal interest was allowed on the residue to the date of judgment. Further facts are stated in the opinion of the court.

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

<p>APPEAL from an order of the Superior Court of Santa Clara County, vacating a judgment by default. J. R Welch, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>APPLICATION for writ of mandate to the Superior Court of the City and County of San Francisco. E. P. Hogan, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Negligence—Moving of Timber Jam—Injury to Plaintiff’s Leasehold—Support of Verdict.—In an action for damages to plaintiff’s leasehold alleged to have resulted from defendant’s negligence in moving an immense timber jam existing in a stream above plaintiff’s property, so as to cause it to break a dike on plaintiff’s land, and causing a flooding thereof with debris from the stream, to the destruction of a great part of plaintiff’s grazing land, and to the serious injury of his dairy business, it is . held that a verdict for damages to plaintiff’s leasehold from defendant’s negligence in the sum of $.3,500 was fully warranted by the evidence.</p> <p>Id.—Questions for Jury—Dispute as to Cause of Damage—Effect of Verdict.—The questions whether the damage was caused by the logging operations of the defendant, negligently conducted, as claimed by plaintiff, or was caused by the operations of a rock quarry, as claimed by defendant, were for the jury to determine. The verdict for the plaintiff is indubitable evidence that the damage was the direct result of defendant’s negligence.</p> <p>Id.—Dispute as to Operations by Independent Contractors or by Defendant’s Agents—Submission to Jury.—The court properly submitted to the jury the question whether persons receiving a fixed compensation for their services were independent contractors or were agents acting under the supervision of the defendant, where there is a dispute and conflicting evidence on that subject; and the verdict of the jury for the plaintiff is conclusive that they were agents and not independent contractors.</p> <p>Id.—Natural Result of Operations—Knowledge and Anticipation by Defendant.—The natural result of the operations of the defendant in removing the original jam from its position above plaintiff’s land must necessarily have been known to, and anticipated by, defendant and its officers.</p> <p>Id.—Verdict Conclusive on Questions of Fact.—The verdict of the jury is conclusive on all questions of fact submitted thereto by the court or involved in the case.</p> <p>Id.—Evidence Bearing on Damages—Production of Land During Previous Year.—Evidence as to what the land leased by plaintiff produced in the year previous to that in which the damage was sustained was admissible as tending to show the adaptability of the land damaged to the cultivation of crops growing thereon, and its capacity for producing crops in such quantity as was essential to the dairy business.</p> <p>Id.—Diminished Value of Leasehold—Rental Value of Damaged Land—Cost of Restoration.—Evidence was admissible to show the diminished value of the leasehold during the remainder of the term by reason of the damage caused to the land from defendant’s negligence, and, to that end, to prove the rental value of the damaged land per acre, and the cost of restoring the land to the condition in which it was when submerged.</p> <p>Id.—Other Elements of Damage—Dairy Cows—Butter Eat—Cost of Keeping on Other Land.—Evidence of the number of dairy cows kept by plaintiff, of the quantity of butter fat produced from them in the previous year, and of the cost of maintaining them on other land which he was compelled to rent for that purpose, was admissible on the question of damages.</p> <p>Id.—All Proofs of Damage to be Considered Together.—All of the proofs relating to the .questions of damages are to be considered together, as furnishing as fair a foundation as can be shown or approximately laid to arrive at a just and reasonable assessment of damages.</p> <p>Id.—Damages Proved not Remote or Speculative—Injury to Particular Crop and Business—Loss of Prospective Profits.—The damages proved are not remote or speculative. It is always admissible to prove that land damaged is peculiarly adapted to a particular kind of crop, and what it is capable, under ordinary circumstances, of growing as to kind and quality, and to prove and recover the loss of prospective profits which would naturally flow from a business damaged, had such business not been destroyed or impaired, so as to obstruct its prosecution in the ordinary way in which it has always been conducted.</p> <p>Id.—Measure of Damages—Damage Likely to Result from Tort.— The damages which, in the ordinary course of things, would be likely to result from a wrongful or tortious injury to property are the basis or measure of compensation to which the plaintiff is entitled for the injury so inflicted.</p> <p>Id.—Instructions—Action upon Requests.—Held, that, considering the entire charge of the court, every principle of law applicable to the issues and evidence was correctly declared and explained to the jury with clearness; that correct instructions requested and disallowed were otherwise given in the charges, and that, where-requests were modified, it was either because the part modified was either inapplicable or incorrectly stated, or announced elsewhere.</p> <p>Id.—Inapplicable Request—Injuries Caused by “Act of God.”— Where there was no evidence to justify a requested instruction that if the jury found that the injuries to plaintiff’s property were caused by the “act of God,” defendant would not be liable, it was properly disallowed.</p> <p>Id.— Improper Request — Bridges for Passage of Cows — Loss — Leasehold Property—Duty of Repair.—The court properly disallowed a requested instruction that if the bridges spanning small sloughs on plaintiff’s land, for the passage of his cows, were part of the realty, plaintiff could not recover for their destruction, where it appears that such bridges were a part of plaintiff’s leasehold, and that it was plaintiff’s duty to keep the bridges and other fixtures on the land leased in repair.</p> <p>Id.—Misleading Requests—General Right to Protect Property.-— Where the court had given a proper instruction as to the right of defendant to protect its railroad trestle from injury or destruction by removing the jam therefrom with ordinary care, and with a view to the rights of others below, the court properly refused general and indefinite instructions as to the right of any person to protect his property with the use of ordinary care, which were calculated to mislead the jury that the big jam was wholly disturbed to protect property, when in truth the sole purpose thereof was to utilize part of the timber composing it, and it appears probable that if the body of the jam had been undisturbed, the winter rains would have carried the whole through the stream into Humboldt bay without injury to plaintiff’s leasehold.</p> <p>.Id.—Verdict not Excessive—Review upon Appeal.—Seld, that the face of the record does not show that the verdict was excessive, but shows that the evidence amply justified the amount of damages awarded. The appellate court is not warranted in substituting its judgment for that of the jury and of the trial judge.</p>

<p>Sale of Prune Orchard — Construction of Contract — Price per Ton, “Orchard Bun” — Warranty — “Test Accepted at 53."— A contract by plaintiff to sell • to the defendant all of the prunes in plaintiff’s orchard at $95 per ton, “Orchard Bun,” imports that all the prunes in the orchard were sold at that price, without any reference to size or grading. Where the only warranty in the contract is that the prunes shall be of “good, merchantable .quality, well dried,” the words written at the foot of the contract, “Test accepted at 53,” merely mean that the prunes have been tested, and that the result of the test was fifty-three prunes to the pound, and do not import any warranty that they shall be of that number to the pound.</p> <p>Id.—Evidence Admitted to Explain Contract—Construction Confirmed.—It is held that evidence admitted by the trial court to show the circumstances under which the contract was made, and the oral conversations leading up to it, serves to confirm the construction given by this court to the terms of the contract.</p>

<p>APPEAL from a decree of the Superior Court of Fresno County, making partial distribution under the will of a deceased person. H. Z. Austin, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

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

<p>APPEAL from a judgment of the Superior Court of the City and County of San Francisco. J as. M. Troutt, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Sales of Lumber—Collection Agent for Defendant—Delivery of Orders to Customers—Charge to Agent—Payment of Excess —Recovery by Assignee.—When a lumber company, assignor of plaintiff, stood in the position of an agent for defendant company in collecting sales of its lumber and making collections, and the lumber sold was directly delivered by defendant to each customer and the price charged to its agent, the agent can only be held chargeable with the actual contract price of the lumber shipped to a customer; and where, by mistake, an overcharge was made to the agent, and the excess was paid to defendant, in ignorance of the error, the agent company was entitled to reimbursement from defendant of the amount of the error occasioned by defendant’s act, and the plaintiff company, as its assignee, may recover judgment for such amount, where no part of it was ever paid.</p> <p>Id.—Sufficiency of Assignment.—A written bill of sale subsequently made by the agent company transferring all of its assets to the plaintiff company, including its claim against the defendant for reimbursement of the excess paid to defendant, entitles the plaintiff, to recover the amount thereof.</p> <p>Id.—Assignments of Insufficiency of Evidence—Support of Findings and Judgment.—Where the only specifications of error made by the defendant company appealing relate to the insufficiency of the evidence to sustain the findings, and there is evidence sufficient to support every finding made by the court in favor of plaintiff and its assignor, and against the answer of the defendant, and the findings support the judgment for plaintiff, the decision of the-trial court must be sustained.</p>

MOTION to dismiss an appeal from a judgment of the Superior Court of Los Angeles County. Charles Monroe, Judge. The facts are stated in the opinion of the court.

MOTION to dismiss an appeal from an order of the Superior Court of Butte County, discontinuing a family allowance. John C. Gray, Judge. The facts are stated in the opinion of the court.

<p>Water Eights—Interference With Ditch—Mandatory Injunction— Prescriptive Title of Plaintiffs — Support of Finding and Judgment.—In an action by plaintiffs to obtain a mandatory injunction requiring defendants to remove all obstructions to the flow of sixty cubic inches of water per second of the waters of a stream in controversy into the ditch of the plaintiffs for use on their lands, it is held, upon a review of the evidence, that it supports a finding that plaintiffs and their predecessors had acquired a prescriptive title to that quantity of water as against the defendants, by adverse user for the requisite period,'and that such finding is pivotal to the judgment awarding the relief sought, which cannot be disturbed.</p> <p>Id.—Effect of Stipulation as to Plaintiffs’ Long User—Proof of Adverse User.—A stipulation made for the purpose of trial, the language of which is unmistakable as to the use by plaintiffs and their predecessors of the quantity of water claimed for twenty years, leaves only the proof that such stipulated user was adverse, under a claim of right, and hostile to the interests of the defendants. Meld, that the evidence' warrants the rational inference that such stipulated user was open, notorious, and under a claim of right, and therefore adverse.</p> <p>Id.—Acquiescence of Defendants.—The court below from this long-continued use might have presumed the knowledge and acquiescence of defendants; but it had also the direct statements of witnesses clearly revealing such knowledge and acquiescence.</p> <p>Id.—Questions of Pact — Adverse User — Implied License.—-The questions whether or not the user was adverse or was with the implied license of the defendants were questions of fact to be determined by the court in the light of the surrounding circumstances.</p> <p>Id.—Means of Diversion Immaterial — Artificial and Natural Channel.—The result as to adverse user is not affected by the circumstance that the diversion was by means both of an artificial and a natural channel, such as by a ditch and slough used by plaintiffs in the present case to divert the water to use on their land; and an appropriation so made will be as effectual as if it was carried through a ditch or pipe made for that purpose and no other.</p> <p>ID.—Absence of Distinction as to Prescriptive Eight or Appropriation.—So far as respects the use both of an artificial and natural channel, there is no difference between the appropriation of water under a claim of right and for the requisite time to ripen into a title by prescription, and the ease of an appropriation specifically provided for in sections 4115-4122 of the Civil Code.</p> <p>lb.—Use of Water for Benefit of Plaintiffs—Sufficiency of Evidence.—Meld, that the court was entirely justified in concluding from the evidence that the diversion of the water and its use was for the benefit of the plaintiffs; and that they being in possession when the defendants obstructed the flow of the water are presumed to be the owners thereof in the absence of a showing by defendants to the contrary, and that the water right followed the ownership of the ditch in the plaintiffs.</p> <p>Id.—Evidence of Prior Appropriation—Low Water in Stream.—Evidence showing that when the water was low in the stream diverted at the point of diversion of plaintiffs, it would not reach the ditch of defendants by seepage or otherwise, and could not be used by them, would establish that the plaintiffs were prior appropriators, and that the defendants were trespassers in interfering therewith.</p> <p>in.—Evidence as to Amount of Water Appropriated—Admission Without Objection.—Where evidence as to the amount of water appropriated was admitted without objection, it cannot be said that the trial court was not justified in acting upon it. The estimate of such amount by a hydraulic engineer seems the best available, in the absence of contrary evidence.</p> <p>Id.—Qualification of Expert Witness as Measurer of Water—Discretion of Court.—In determining the qualification of an expert witness as a measurer of water, the trial court has quite a wide discretion, , and it cannot be said that it was abused in determining that he was not qualified and in striking out an answer made by such witness, which would not assist the court in determining the quantity of water to which respondents were entitled.</p> <p>Id.—Evidence of Claim of Bight by Plaintiffs.—Evidence was admissible to show, in aid of plaintiff’s prescriptive title, declarations made by them asserting their claim of right to use the water.</p> <p>Id.—Absence of Prejudicial Rulings.—It is held that the court made no prejudicial rulings upon evidence calling for a reversal of the case.</p>

<p>APPEAL from a judgment of the Superior Court of Calaveras- County, and from an order denying a new trial. N. D. Arnot, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

MOTION to dismiss an appeal from a judgment of the Superior Court of Tuba County. Eugene P. McDaniel, Judge. The facts are stated in the opinion of the court.

<p>Writ of Review—Jurisdiction of Superior Court to Dismiss Appeal from Justice’s Court—Erroneous Action.—A writ of review will not lie to annul the action of the superior court in dismissing an appeal from the justice’s court taken thereto on questions of law and fact, however erroneous and arbitrary the action may be; since the superior court has jurisdiction as fully to hear and determine a motion to dismiss the appeal as it has to determine the cause upon its merits.</p>

<p>APPEAL from a judgment of the Superior Court of Sacramento County. C. N. Post, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Public • Schools—Validity of Union High School District—Mandamus to County Superintendent—Certificate of Election— Calling Election of Trustees.—Upon a petition for a writ of mandate to compel the county superintendent of schools to make and file a certificate of the result of an election held on the question of the formation of a union high school district, and to call an election of trustees therefor, the primary and vital question to be determined upon such petition is whether it shows upon its face that such union high school was legally or illegally established; and when it appears to be illegally established, the petitioners have no duty to perform, which is the subject of the writ, and the demurrer to the petition therefore was properly sustained.</p> <p>;Id.—Illegal Formation of District—Boundaries Illegally Designated—Election Called Without Jurisdiction.—Where one of nine petitioning districts included in the boundaries' of the alleged union high school district did not include in the petition therefor the majority of the heads of families therein as then required by law, and another of said districts included in said boundaries belonged to another union high school district, the boundaries of the union high school district were illegally designated, and the county superintendent of schools had no jurisdiction to call an election for its formation with such boundaries; and he cannot be compelled by mandamus to file a certificate of the result thereof.</p> <p>:ib.—No Definite Legal Description of Territory—Alternative Petitions.—Neither of such two districts being legally capable of uniting in a petition to form a union high school district, those who were lawful petitioners therefor failed to unite in any request for specific and definite legal territory to be included therein, where each of the nine petitioners requested that its own territory should be included either with six other districts or eight other districts. In such case it cannot be said that such requests unite upon any contiguous or compact legal territory, which could be lawfully united in a school district; but, .on the contrary, there was a request for an election to unite with territory which could not lawfully enter into the district.</p> <p>Id.—Bequest for Definite Territory Essential—Affirmative and Negative Ballots.—The necessity for the definite character of the requests for the formation of a lawful school district is evident when the statute with reference to the election is considered, which provides that the electors shall vote “Yes” or “No” upon the question involved.</p> <p>Id.—Alternative Proposition ‘in Petition and Call not Permissible. The call for the election must be based upon the petition, and with an alternative proposition in the petition and call for the election, it would not be possible for the electors to express their assent to or dissent from the organization of a lawful district having particular and specified boundaries.</p>

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

<p>Writ of Review — Jurisdiction of Superior Court — Appeal from Justice’s Court — Notice of Filing Undertaking — Effect of Change in Code.—The service of the notice of the filing of the undertaking on appeal from the justice’s court to the superior court, as provided by section 978a of the Code of Civil Procedure, enacted November 11, 1909, is not necessary to give the superior court jurisdiction of the appeal; and an order refusing to dismiss the appeal for want of such service cannot be annulled upon writ of review.</p> <p>Ib.—Statutory Construction—Purpose of Change in Code.—Statutory provisions are to be construed with reference to the intention and purpose of the enactment. The apparent evil to be remedied by the amendment of 1909 was the necessity that the owner of a judgment in the justice’s court should watch the justice’s docket for thirty days to prevent an appeal without adequate security; and this evil was remedied by the new provision for an undertaking within five days after the notice of appeal, and that notice of its filing be given to him.</p> <p>Id.—Object of Notice of Filing Undertaking—Part of Collateral. Proceeding for Justifying.—The nature and object of the provision for notice of the filing of the undertaking is not to make it a step in the perfecting of the appeal, but to make it merely a part of the collateral proceeding to justify; its sole use being to bring home to respondent the knowledge that the appeal is already perfected prima 'fade. It merely invites the respondent to inspect the undertaking already filed.</p> <p>Id.—Penalty not Attached to Failure of Notice.—There is no provision in the statute as to the time within which the notice of the undertaking should be served, nor the effect of a failure to serve it.</p> <p>Id.—Substantial Notice—Service of Notice of Appeal—Time for Filing Undertaking Fixed by Law.—The filing and service of the notice of appeal is in legal effect a notice that under the law the appellant must file his undertaking within five days thereafter to make his appeal prima facie effective. It therefore works no hardship that the technical notice of the filing of the undertaking is not given to the appellant, so as to require him to except to the sureties within five days after filing of the same, which is in fact required of him by law.</p> <p>Id.—Absence of Change as to Time for Excepting to Sureties.— No change was made by the amendment of the code in 1909, as to the time within which the respondent must except to the sufficiency of the sureties on the undertaking on appeal. This is required to be done within five days after the filing of the undertaking, without reference to any notice of its filing. The provision for such exception is independent, and cannot be read into the prior provision.</p> <p>Id.—Justification of Sureties—Collateral Proceeding.—The justification of the sureties after exception, or of other sureties in their stead, is not a step in taking an appeal, but is a collateral proceeding in which respondent exercises the right granted to Mm to obtain adequate security for Ms protection on the appeal.</p> <p>Id.—Waiver of Eight.—The respondent may waive his right to further security; and if he fails to exercise his right to except, or fails to attend before the court, when the sureties are in attendance to justify, his right is waived; and the original qualification of the sureties operates as a full and complete justification, and the appeal remains perfected and effectual under the original undertaking.</p>

<p>Contract to Sell Land—Use op Word “Sold”—Deposit—Possession op Purchaser—Deed in Escrow—Nonpayment—Aqreed Cancellation.—The use of the word “sold” in a contract for the purchase and sale of real estate does not conclusively show a present conveyance; and where the purchaser merely made a deposit of money with an agreement to pay the residue of the price, and was allowed to take possession, and a deed was placed in escrow, to be delivered only when the full price was paid, which the purchaser failed to pay, and the whole transaction was canceled by mutual agreement, and the deed returned to the vendor, and the deposit to the purchaser, the contract, together with the conduct of the parties, can be construed only as an agreement of sale, and not a conveyance, and the title never passed to the purchaser.</p> <p>Id.—Title Under Will of Deceased Vendor—Contract of Sale not an Equitable Conversion—Cancellation During Life of Vendor.—The contract of sale cannot be deemed an equitable conversion of the land sold into money, so that the title thereto cannot pass under the will of the deceased vendor, where the cancellation of the contract was fully effected by agreement of the parties thereto during the life of the vendor.</p> <p>Id.—Equitable Conversion Precluded by Civil Code—Effect of-Will-—Remedies of Purchaser.—The doctrine of equitable conversion is precluded by the terms of section 1301 of the Civil Code, providing that "an agreement made by a testator for the sale or transfer of property disposed of by a will.previously made, does not revoke such disposal; but the property passes by the will, subject to the same remedies on the testator’s agreement for a specific performance or otherwise, against the devisees or legatees, as might be had against the testator’s successors if the same had passed by' succession.”</p>

<p>Assumpsit—Work, Labor and Materials—Pleading—Statute of Limitations—Inadvertent Finding—Clerical Error.—Under a complaint in assumpsit for the reasonable value of work and labor done and materials furnished to plaintiff’s assignor, at defendant’s request, “within two years last past,” a finding made one year later, sustaining the averments of the complaint, but following its language “within two years last past,” evidently used those words inadvertently. The form of such finding is not to be commended, and should be avoided; but where the vital questions of fact presented by the pleadings are answered by the findings, and the substance of the finding complained of is supported by the evidence, the judgment should not be reversed or a new trial granted for what so clearly appears to be a mere clerical error.</p> <p>Id.—Findings Considered as a Whole—Cause of Action Sustained— Immaterial Finding Disregarded.—The findings must be read together as a whole, and where the court found that prior to the commencement of the action the claim stated in the complaint was assigned to the plaintiff, and also found in response to a plea of the two years’ statute of limitations that the cause of action was not barred by limitation, and found the value of the work and labor done and materials furnished, and the nonpayment of the debt, such findings substantially showed that the debt accrued within two years before the commencement of the action; and, under these circumstances, the finding containing the words “within two years last past,” is immaterial, and should be disregarded.</p> <p>Id.—Proof of Contents of Destroyed Book—Admission of Copy— Untenable Objection—Absence of Prejudice.—Although a book which is not one of original entry is inadmissible, yet where a book of original entry has been destroyed by fire, the contents thereof may be proved by any witness having, knowledge of its contents, and where the bookkeeper testified that the books were correctly kept, and that a purported copy thereof was correct, the admission in evidence of such over an untenable objection cannot, require a reversal, especially where the admission is without prejudice, since the court did not base its findings or judgment thereupon, but based them upon other évidenee. Any error not affecting the substantial rights of the parties must be disregarded, under section 475 of the Code of Civil Procedure.</p> <p>Id'.—Refreshing Memory of Witness—Use of Memorandum.—A wit'ness is entitled to refresh his memory by the use of a memorandum made at the dictation and under the direction of the witness, when the facts were fresh in his memory, and he knew that the facts were correctly stated therein.</p>

<p>Parent and Child—Estate and Guardianship of Infant—Petition of Mother Eefused—Unfitness—Finding Unsustained—Reversal upon Appeal.—Upon appeal by a mother, after the death of the father, from an order refusing her petition for appointment as guardian of the person and estate of her young child three years of age, upon a finding of her unfitness to have the care and custody of the child, where the evidence fails to sustain such finding, the judgment and order denying her petition must be reversed.</p> <p>Id.—Right of Mother to Custody of Child.—Upon the death of the father, the mother is prima facie entitled to the custody of. her young child, and cannot be deprived thereof, unless shown to-be unfit by sufficient testimony. As against everyone except the father, the mother is by the law of God and man entitled as of right to the custody of her own child, and cannot be deprived thereof except upon a clear showing of her unfitness for the exercise of such right.</p> <p>Id.—Prior Right of Parents.—The prior right of parents to the custody of their children under fourteen years of age cannot be disregarded except upon the most compelling reasons proved and sustained by the court.</p> <p>Id.—Wife’s Suit for Divorce—Temporary Custody of Child— Paternal Uncle and Aunt—Explanation of Condition of GAild.—Where pending the wife’s suit for divorce the husband had placed the child with a paternal uncle, and by temporary agreement sanctioned by the court the husband was allowed to-place it with its paternal aunt, the unkempt condition of the child testified to by the aunt was explained by its coming to her from the custody of its uncle and not from the wife, who testified that, she always kept it clean.</p> <p>Id.—Failure of Mother Frequently to Visit Child Explained.— The fact the mother seldom visited the child during the life of the husband was explained by advice of her counsel not to visit it until she got her interlocutory decree, which was obtained two days before the death of the husband, after which she tried through her affection for the child to regain its custody.</p> <p>Id.—Absence of Showing as to Moral Unfitness—Health of Child. Held, that there was no testimony that the child had ever been ill, or that anything existed in the life of the, mother that would militate against the moral well-being of the child.</p> <p>Id.—General Statements by Unfriendly Witnesses—Opportunities of Observation not Shown.—General statements by manifestly unfriendly witnesses, who are the brothers and sisters of the divorced husband, to the effect that the child was always filthy and that the mother did not keep her house clean, without any showing as to the opportunities possessed by them for real knowledge, do not meet the requirements of such evidence.</p> <p>Id.—Finding Unsupported.—Such general statements are not sufficient . to warrant a finding that the mother was not a fit and proper person to have the care and custody of her own baby, there not being one word tending to show any loose (or immoral conduct upon her part, or any neglect that has ever injured the health or physical well-being of the child.</p> <p>Id.—Bight of Mother to Bear Her Own Offspring.—A mother who is both capable and willing and anxious to rear her own offspring should not be deprived of the opportunity thus to discharge the ' duty she owes to the child, without a clear showing of unfitness for the trust.</p>

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

<p>APPLICATION for writ of prohibition to 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>APPEAL from a judgment of the Superior Court of Contra Costa County. Wm. S. Wells, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

APPEALS from a judgment of the Superior Court of Los Angeles County, and from orders denying a new trial. Walter Bordwell, Judge. • The facts are stated in the opinion of the court.

¡Walter Bordwell, Judge. The facts are stated in the opinion of the court, and more fully in case No. 693, ante, p. 234, referred to in the opinion.

<p>APPEAL from an order of the Superior Court of San Francisco, denying a petition for partial distribution of the estate of a deceased person. J. V. Coffey, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>APPLICATION for- writ of prohibition to the Superior-Court of Los Angeles County. C. D. Wilbur, 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. J. R. Welch, Judge.</p> <p>' The facts are stated in the opinion of the court.</p>

<p>Action by Broker—Breach op Written Contract op Sale—Finding —Substitution op Oral Contract—Sale at Auction not Effected.—In an action by a real estate broker to recover damages for breach of a written contract to pay one-third of all profit from a sale of land at $19,000 for which $16,250- had been paid, on account of prevention by the owner of an auction sale for $20,400, a recovery cannot be had, where the court finds upon sufficient evidence that the written contract was superseded by the oral contract of the parties for a sale of the land at auction by the broker at his own expense, at which the owner was to receive $21,000, and the broker was to receive all above that sum, which might prove more profitable to him, it being expressly agreed that if $21,000 was not realized, all sales were to be declared off, which was done, with the effect that no purchaser was obtained or sale effected.</p> <p>Id.—Rescission—Novation.—The evidence sustains a rescission of the written agreement, and the substitution of the parol contract; or, in other words, it shows a clear ease of novation, which, under section 1530 of the Civil Code, is “the substitution of a new obligation for an existing one.”</p> <p>Id.—Construction op Evidence Under Finding—Question op Fact por Trial Court.—Under the construction that this court is bound to place upon the evidence, it is incontrovertible that, after the execution of the written contract, and before any services were performed under its terms, the parties thereto entered into an entirely different parol agreement respecting the same subject matter; and it is a question of fact for the trial court to determine from all the facts and circumstances whether the parol agreement was intended to be substituted for the written agreement, and whether the subsequent conduct in attempting to sell the property is referable to the parol agreement.</p> <p>Id.—Inconsistency op Terms op Contracts—Annulment op Written Contract—Loss op Compensation.—The terms of the two contracts were entirely inconsistent, and could not be operative at the same time. It is reasonable to conclude that the written contract was annulled by consent, and that, since appellant failed to sell the property for the agreed sum, he was entitled to no compensation.</p> <p>Id.-—Election by Appellant—Loss op Eights and Obligations Under Written Contract.—If appellant intended to rely upon the written contract, he should have declined to accept and act upon the proposition subsequently submitted to him by respondent. He was called upon to exercise his election, and he chose to take his chances of a larger compensation under the second parol arrangement; and by accepting respondent’s new proposal and subsequently acting thereon, the rescission of the first contract was entirely consummated, and it was then too late for him to seek a revival of the privileges and obligations of the written contract.</p> <p>Id.-—Freedom op Choice—Absence of Menace or Duress.—There was no interference with the freedom of the appellant’s choice by the statement that in the proposed auction sale, responden^ must have $21,000'as her share, or there "would be no sale; such a declaration did not amount to menace or duress, where nothing else appears calculated to inspire fear in the mind of appellant or to influence unduly his judgment. The mere threat to withhold from a party a legal right which he has an adequate remedy to enforce is not, in the eyes of the law, duress.</p> <p>Id.—Consideration op New Agreement—Mistake of Judgment.—The new agreement was supported by a sufficient consideration in the right given to appellant to retain whatever was received for the property in excess of $21,000, by which it was believed that he would be amply compensated. The fact that subsequent events proved the parties to be mistaken in their judgment does not affect the question of compensation.</p> <p>Id.—Parol Agreement not Within Statute of Frauds.—The parol agreement, having become entirely executed, was no.t within the statute of frauds, as purporting to transfer an interest in real property. Under section 1661 of the Civil Code, “an executed contract is one the object of which was fully performed.”</p> <p>Id.—Supposition op Invalidity op Parol Agreement—Purchaser not Found Under Written Agreement.-—Upon the supposition of the invalidity of the parol agreement, and the continuance of the written agreement in force, there can be no recovery thereunder,- for the reason that the broker has failed to prove that he obtained a purchaser for the property, ready and willing to make the purchase in accordance with the terms imposed by the seller.</p> <p>Id.—Duty of Broker not Performed — Dismissal of Prospective Buyer.—It cannot be said that the duty of the broker has been performed, when, by his own act, he has dismissed the prospective buyer and acquitted him of any connection with the transaction and of any obligation to purchase.</p>

<p>Wills—Construction and Effect—Lapsed Legacy—Part of Besidue —Statute of Descent Inapplicable.—Where it satisfactorily appears from the terms of a will that the testator intended that in case of legatees who should die prior to his death the legacies bequeathed to them should lapse and become part of the residue of his estate, the terms of the will must control in that respect, and the provision of section 1310 of the Civil Code, that when a devisee or legatee who is a relation of the testator dies before his death, leaving lineal descendants, such descendants shall take the same share which would have passed to the devisee or legatee had he survived the testator, is inapplicable in such case.</p> <p>Id.—Intention of Testator—Untechnical Terms Employed in Self-drawn Will.—It is sufficient that the intention of the testator as to the disposition of lapsed legacies can be readily ascertained, notwithstanding the use of inartificial terms in expressing his intention in a will drawn by the testator himself, who is a foreigner by birth, unable to express himself with technical accuracy. In order to learn his intention, the whole will may be examined, and words may be interpolated or transposed, and the use of technical words incorrectly will be taken as if correctly used.</p> <p>Id.—Use of Words “Devise” and “Bequeath”—Misuse of Words.— The words “devise,” “bequeath” and corresponding terms are frequently employed interchangeably, especially by testators who are not lawyers and who draw their own wills. Some words are so frequently misused by testators that very little argument is needed to move the court to reject them and substitute others in their place. The will in question uses the words “legacy or bequest” to include a devise, and the word “devise” to include a “legacy,” and the word “devise” with sense of “devisee.”</p> <p>Id.—Correction of Inaccurate Contingent Clause as to Lapsed Legacies.—A clause in- the will reading: “And devise so bequeathed by me should die prior to my death the legacies to them mentioned in this will shall lapse, and such legacies shall form part of my residuring estate,” evidently refers to a contingent event, and the word “If” should be inserted at the beginning of the clause, and the words “and devise,” changed to “any devisee.” ■ In view of the law applicable to lapsed legacies, and the whole language of the will, the testator evidently intended that legacies lapsing by the prior death of legatees should include all legacies mentioned in the will.</p> <p>Id.—Code Provision as to Construction of Will—“Clear and Distinct Bequest”—Inapplicability to Children not Referred to. Section 1322 of the Civil Code provides a rule applicable only to the construction of a will, where a clear and distinct devise or bequest is sought to be affected by a provision of the will not equally clear and distinct; and that section can have no application to children of a deceased legatee whose legacy has lapsed as provided in the will, and has become part of the residue of the estate, if such children are in no wise referred to or provided for as beneficiaries under the will. That section does not provide that when one may be entitled to a legacy by force of the statute, any intention of the testator to prevent the operation of the statute must be as clear and distinct as the statute itself.</p> <p>Id.—Statute of Descent in Cases of Lapsed Legacies No Part of Will—Applicability.—The statute of descent in cases of lapsed legacies, embodied in section 1310 of the Civil Code, is no part of the will itself, and cannot be affected by section 1322 of the Civil Code. The statute of descent can only apply where there is no intention to the contrary expressed by the testator in his will.</p> <p>Id.-—Partial Distribution Under Will Properly Refused.—A petition for partial distribution under the will in behalf of children of a deceased legatee, whose legacy has lapsed and become part of the residue of the estate, under the terms nf the will, was properly refused, and the order refusing it must be affirmed upon appeal.</p>

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

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

<p>Criminal Daw—Dewd and Lascivious Conduct With Child—Nonappearance for Appellant—■ Absence of Error — Affirmance.— Where a defendant convicted of the crime of lewd and lascivious conduct with a child, as provided in section 288 of the Penal Code, has appealed to this court, and no brief has been filed by appellant, and no - appearance entered in his behalf for oral argument, and it appears from an examination of the record that the evidence abundantly supports the verdict, that the instructions are correct, and that no error prejudicial to the substantial rights of appellant appears to have been committed, the judgment and order appealed from must be affirmed.</p>

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

<p>Sale of Prune Crop—Delivery—Extended Time—Tender and Resale of Rejected Part During Extension—General Demurrer to Complaint.—A complaint setting forth a written contract for the sale of the whole of a prune crop, to be delivered at an agreed price before a specified date, and an extension of time for performance, and the acceptance of the larger part, and the rejection of a specified number of pounds tendered during such extension, is not subject to a general demurrer on the ground that such rejected portion of the crop was sold upon notice before the expiration of such extended time.</p> <p>Id.—Rights Under Extended Time.—The extension of time pleaded was to give plaintiff further time to perform; and when plaintiff, within that time, offered to perform, the defendants were bound to accept, if in other respects the offer was in accordance with the contract. Upon defendants’ refusal to accept the tendered fruit, the plaintiff was justified in reselling the same.</p> <p>Id.—Special Demurrer to Complaint—Price or Value of Rejected Prunes not Shown—Uncertain Ascertainment of Deficiency. ■ The court erred in overruling a special demurrer to the complaint for ambiguity and uncertainty, in that it does not show the price or value of the rejected prunes, and that it cannot be ascertained with certainty how the alleged deficiency on resale was determined.</p> <p>Id.—Statement of Damages for Breach not Shown.—The complaint is further uncertain in that it does not contain or show any damages arising to the plaintiff from defendant’s breach of the contract, in rejecting the last tender of the residue of the prunes contracted for.</p> <p>Id.—Variation from Basis Price According to Size—-Uncertainty as to Size.—Where it appears that a basis price per pound was agreed, with an agreed variation therefrom by increase or diminution according to size, the complaint was also uncertain in not showing the size of the rejected prunes, as bearing upon the agreed price or value thereof.</p> <p>Id.—Measure of Damages for Breach of Buyer’s Agreement in Case of Resale—-Uncertainty as to Difference—Under section 3311 of the Civil Code, the detriment caused by the breach of a buyer’s agreement to accept and pay for personal property, if it has been resold under section 3049, is “the excess, if any, of the amount due from the buyer over the net proceeds of resale.” Though plaintiff probably intended to bring the. complaint within this section, yet he has failed to show with certainty, or at all, that the “deficiency” referred to is the difference between the contract price of the rejected prunes and the amount for which they were resold, or to give any data from which such difference can be determined.</p> <p>Id.—Insufficiency of Evidence to Sustain Verdict for Loss on ■ Resale.—Where the same uncertainty and insufficiency which appears in the complaint, as to the price or value or size of the rejected prunes, or as to the difference on resale, appears in the evidence, a verdict for the amount of the alleged deficiency on resale of the rejected prunes is unsupported by the evidence.</p> <p>Id.—Variance Between Averment and Proof.—Where the complaint alleges that the price of the entire prune crop was $6,004.37, and the evidence shows without conflict that defendant paid plaintiff $6,455.71 for the accepted prunes, it appears that plaintiff has been paid more than was due him for the entire crop. If the allegation of the complaint was a mistake, as suggested by plaintiff, as a witness, he made no effort to correct it.</p> <p>Id.—Evidence—Meaning of Contract—“Morrell Ranch”—Leases by Plaintiff—Quantity of Prunes.—Where the contract called for the entire crop of prunes estimated at 100 tons grown and dried on the orchard known as the “Morrell ranch,” evidence was admissible to show that the plaintiff “Morrell” was in fact working under leases three ranches, and that the contract contemplated the whole prune crop- grown by “Morrell” under his three leases, which was in fact less than the estimated quantity.</p> <p>Id.—Ambiguity in Contract—Oral Evidence to Identify Subject.— There was such an ambiguity in the contract as to authorize oral evidence to identify the subject of the contract.</p> <p>Id.—Conflicting Evidence—Sufficiency of Quality of Rejected Prunes.—Where the evidence is conflicting as to whether the rejected prunes met the requirements of the contract as,to quality, the verdict cannot be interfered with for that reason, notwithstanding the evidence seems to preponderate upon that point against the plaintiff.</p> <p>Id.—Testimony of Plaintiff—Resale of Prunes—Acceptance by Purchaser After Examination-—Restriction of Cross-examination—Error.—After permitting plaintiff to testify that the rejected prunes were bought on resale for the Presto Fruit Company, - after examination and acceptance by them, it was error for the court to restrict the right of cross-examination, by disallowing questions as to what was done with the prunes, and whether or not prunes could be used in the process employed by that company that would not be suitable for shipping in boxes.</p> <p>Id.—Object of Plaintiff’s Evidence—Lessening of Weight.—It being the clear object of plaintiff’s testimony to show that the rejected prunes were merchantable, and complied with the contract, the weight of his evidence might have been materially affected, if on cross-examination it were shown that the prunes in question were used in a process not requiring choice fruit.</p> <p>Id.—Erroneous Instruction as to Interest—Construction of Code. The court erred in instructing the jury as to interest on the amount found due on the rejected prunes from the date of their rejection, if found to be unjustifiable. The rule for damages in such ease is laid down in sections 3311 and 3357 of the Civil Code, which must be taken together, and exclude the allowance of interest, and must govern as to that subject matter, to the exclusion of the general rule of interest in section 3187, which is in a different chapter.</p>

<p>"Will—Contest op Probate—Mental Unsoundness op Testator— Insane Delusion as to Facts Respecting Children.—If a testator, against all evidence and probability, believed supposed facts respecting Ms cMldren, wMeh had no existence except in Ms perverted imagination, and conducted himself, however logically, upon the assumption of their existence, he is, so far as such facts are concerned, under an insane delusion; and if he was the victim of such a delusion when he executed Ms will cutting off his children with one dollar each, and if the provisions of the will were caused by such delusion, the instrument is not Ms will, and its probate may be contested by such children for the mental unsoundness of the testator.</p> <p>Id.—Insane Delusion not Proved—Verdict op Unsound Mind Against Evidence.—Where no witnesses other than the interested cMldren assailed the testamentary capacity of their father, and twenty disinterested witnesses intimately acquainted with Mm testified to Ms mental soundness, and the evidence of the cMldren was mainly addressed to his harsh and cruel treatment of them and of their mother prior to her divorce from him twenty-two years before his death, wherein he settled upon her the greater portion of his property, and the children sided with their mother, and for many years prior to their father’s death had no relations with him and avoided and refused to speak to him, and there is no evidence tending to show an insane delusion- respecting them, and it was proved that his will was his voluntary and intelligent act, a verdict that he was of unsound mind when it was executed is against the evidence.</p> <p>Id.-—Bad Temper No Proof of Insane Delusion.—A person may have a bad temper, and under its influence may say and do wrong and unnatural things, and still not be laboring under an insane delusion as to the objects of his hostility.</p> <p>Id.—Prejudices, Antipathies and Dislikes not Destroying Testamentary Power.—Prejudices, antipathies, and dislikes, however ill-founded or however strongly entertained, cannot be classed as an insane delusion. People may hate their relations for bad reasons, and yet not.be deprived of testamentary power.</p> <p>Id.-—Belief Against Children not Without Reason.—Whatever be-, lief or opinion the testator entertained toward his children when the will was made, the record does not show there was no reason therefor, or that he adhered to it against all evidence and argument. If the deceased had, after the divorce was granted to the wife, who obtained the largest part of the property, made a will disinheriting the children who sided with their mother, as to the residue of his property, it could not be said to be without reason, and in view of their subsequent course of conduct, his last will, so far from being the result of insanity, was a very natural thing to do.</p> <p>Id.—Belief not "Unchangeable for Proper Reason.—It does not appear that he could not have been reasoned out of his belief, upon a changed course of conduct of his children. Where the testator’s belief is not so fixed that he could be reasoned out of it, it will not be held to be a delusion.</p> <p>Id.—Residence with Nephew—Absence of Undue Influence.— Where, for many years, the testator had resided with a nephew, and had, without suggestion, showed a strong disposition to leave the bulk of his estate to his nephew and his son, and his last will was made six years before his death, and when he was in robust ' health, and was made without suggestion from anyone, as his voluntary act, free from any suspicious circumstances, and the persons named were the natural objects of his bounty, a verdict that the will was procured by the undue influence of the nephew is against the evidence.</p>

<p>Criminal Law—Robbery—Preliminary Examination—Right of Accused to Counsel—Sufficient Instruction.—Where defendants charged with robbery were, upon their preliminary examination, informed, as soon as the complaint was read, that each of them had the right to a preliminary examination, and the right to procure counsel, and the right to be admitted to bail pending the examination, they were sufficiently instructed as to their rights.</p> <p>Id.—Waiver of Right to Counsel.—When the defendants were informed of their right to procure counsel, if they so desired, they should have asked for time in which to procure the same; and where, instead of doing so, upon their being asked when they would be ready to proceed with the examination, they answered i “We will be ready at any time,” they thereby waived their right to procure counsel.</p> <p>Id.—Statutory Provision as to Procuring Counsel—Request by Defendant Essential.—The statute does not require the magistrate to appoint counsel at a preliminary examination, but merely provides that “upon the request of the. defendant” the magistrate must “require a peace officer to take a message to any counsel in the township or city the defendant may name.”</p> <p>Id.—Evidence—Criminal Attempt to Escape—Prevention .by Officer.—Evidence was admissible as tending to show a criminal attempt to secure the escape of the defendants and its prevention by an officer, proving that while defendants were in the county jail when the arresting officer opened the door to let an attendant pass in with their meals, one of the defendants with a gun in his hands immediately commanded the officer to throw up his hands, that the officer closed the door as far as possible and seized the gun, and drawing his own pistol sent a shot through defendant’s body, which killed the attendant.</p> <p>Id.—Evidence—Commission of Another Crime—Relevance to Issue. Though the commission of another crime than the offense charged may not be proved for the sole purpose of showing that the'defendant would be more likely to have committed that charged, yet if the evidence of another crime is material and relevant to the issue, the mere fact that it tends to establish guilt of a crime other than the one alleged furnishes no ground for its rejection.</p> <p>Id.—Attempt to Escape a Proper Subject of Proof.—An attempt to escape is always a circumstance proper to be shown and considered by the juiy.</p> <p>Id.—Arrest for Felony Without Warrant not Justifying Attempt to Escape.—Defendants charged with a felony may be arrested by a peace officer without a warrant, and the fact that the defendants charged with robbery were arrested by such an officer without a warrant and confined in the jail did not justify their attempt to escape on the morning following their arrest and confinement therein.</p> <p>Id.-—Sufficiency of Evidence of Bobbery.—Where two eye-witnesses testified to having seen the defendants in .the act of “going through” their victim, and watched them until they came past them into the light, where they were plainly seen, and that upon finding the "peace officer they pointed out the defendants^ who were arrested by him, the evidence is sufficient to sustain the verdict.</p> <p>Id.—Discrimination in Severity of Sentences.—Where one of the defendants appeared more culpable than the other and yet received no heavier punishment than he deserved, neither of the defendants can complain that the other defendant received a less sentence than he deserved.</p> <p>Id.—Venue of Offense.-—Held, that the venue of the offense was sufficiently and distinctly proved.</p> <p>Id.—Instructions as to Attempt to Escape.—Held, that the court fairly, fully, and correctly stated the law as to the effect of an attempt to escape by a prisoner who is arrested for a felony, as a circumstance to be considered by the jury as bearing upon the consciousness of guilt of the offense charged against him.</p>

ORDER striking out transcript on appeal from a judgment of the Superior Court of Siskiyou County, and from an order denying a motion for a new trial. J. F. Lodge, Judge.

MOTION to dismiss an appeal from a judgment of the Superior Court of Colusa County and from an order denying a motion for a new trial. H. M. Albery, Judge. The facts are stated in the opinion of the court.

<p>Action by Assignee of Bank Deposit Receipt—Non-negotiable Instrument—Effect of Assignment.—A bank deposit receipt for money locally deposited by an American Commercial Company with an International Banking Company doing business at Hongkong, repayable there with interest at five per cent, to remain until twelve months’ notice on either side expires, to be paid on return of the receipt properly indorsed by the depositors, and stamped “not transferable,’’ is a non-negotiable instrument, under the law-merchant, but is assignable, though the assignee obtains no better title to the instrument than his indorser, notwithstanding it was indorsed to him before maturity.</p> <p>Id.-—Demand of Payment at Hongkong—Refusal—Action in This State.—Where payment of the note was demanded in Hongkong by the assignee of the instrument, and payment was there refused, an action may be maintained against the International Banking Company in this state, where it has an office here, and enters an appearance and questions the sufficiency of the complaint.</p> <p>Id.—Importance of Proper Demand.—Whether or not proper demand was made at the place of payment becomes important in determining the right to bring the action in a court of this state, as well as in ascertaining upon what basis the value of the money so deposited is to be fixed, if plaintiff is entitled to recover.</p> <p>Id.—Indorsement to Plaintiff’s Assignor—Payment of Ascertained Debt of Payee—Judgment of Consular Court.—Where the indorsement of the payee to plaintiff’s assignor was in consideration of the payment of an indebtedness of the payee to the assignor, the judgment of a consular court establishing the debt established nothing more than that the corporation payee was indebted to the first assignor in the sum named in the judgment, upon payment of which the corporation payee made the indorsement.</p> <p>Id.—Ineffective Supplemental Decree — Attempt to Transfer Title.-—-A so-called supplemental decree of the consular court, attempting to transfer the title of the corporation payee to the debtor, was ineffective for that purpose, and did not affect the contract between that company and the banking corporation appellant.</p> <p>Id.-—Equitable Estoppel not Pleaded.—An agreement made between the manager of the banking corporation and the creditor of the payee that if he obtained a judgment against the corporation payee for an amount equal, to or greater than the debt of the banking corporation therein, and the debt was applied upon it, the banking corporation would make payment of the certificate to such satisfied creditor on presentation, was based upon an equitable estoppel, which is not available unless pleaded.</p> <p>Id.—Basis op Recovery.—If plaintiff, as assignee of such first assignee, recover in the action, he must do so on the theory of the enforcement of /the express contract made with the managing agent of the corporation payee, or the implied contract made by said corporation with the depositor.</p> <p>Id.—Findings on Second Dismissed Consular Action not Conclusive.—It is held that findings in a second consular action dismissed without prejudice to a new action were conclusive upon neither party, there being no finding that it was rendered for want of authority accompanying the presentation of the certificate by the plaintiff’s assignor.</p> <p>Id.—Testimony Showing Authority op Managing Agent op Payee in China.—Where the testimony clearly establishes that the vice-president of the corporation payee was its managing agent in China and transacted all its business therein, created debts against the company and paid them in its name, and that no other person acted as its agent in China, such managing agent was authorized to collect the debt, or to make an assignment thereof in payment of the -company’s debt to an assignee, as such manager.</p> <p>Id.—Concern op Dependant Bank.—The defendant banking corporation is concerned only in knowing that the assignment of the evidence of debt or chose in action against it is of such character as to bind the assignor payee.</p> <p>Id.—Incompetent Oral Contract with Payee.—The incompeteney of parol evidence to vary a writing may be considered as matter of law, though admitted without objection; and if the American Commercial Company, by its general manager, had itself presented the deposit receipt and demanded payment, no compliance with an oral contract that the managing agent should produce a resolution of the board of directors could have been made by the defendant a condition precedent to payment of the deposit to such manager.</p> <p>Id.—Authority op Managing Agent to Make Assignments.—Where the managing affairs of a corporation are intrusted to a general managing agent, he has power to transfer the chose in action of the corporation to its creditors, either in payment or as security for a pre-existing debt of the corporation, without express authority from the board of directors, and an assignment so made is valid-</p> <p>Id.—Presumed Authority op Managing Agent—Express Authority not Necessary.—The presumption is that such assignment was made by competent authority. No special resolution authorizing him to act in this respect was necessary.</p> <p>Id.—Ostensible Agency.—An ostensible agency is created when the principal intentionally or by want of ordinary care authorizes a third person to believe another to be his agent, even if not really employed by -him. The authority of such an agent is such as the principal allows such person to believe the agent to possess.</p> <p>Id.—Good Faith of Creditor Performing Services for Payee, at Request of Managing Agent.—Where there is no question of the good faith of the first assignor of the bank deposit in doing services for the corporation payee, at request of its managing agent, or in taking a receipt of its indebtedness in full payment of the bank certificate, he thereafter stood in the shoes of the American Commercial Company as the owner of the paper, subject only to such equities as the bank might set up against the company payee itself.</p> <p>Id.—Oral Contemporaneous Agreement as to Proof of Agent’s Authority not Binding on Assignee.—The oral contemporaneous agreement between defendant and the agent of the corporation payee as to proof of his authority, not being binding upon the payee, can constitute no defense to the action of the assignee of the payee, or his successor in interest.</p> <p>Id.—Acquittance by Assignee Protection to Bank.—The acquittance by the bona fide assignee of the corporation payee would be a sufficient defense in favor of the banking corporation defendant to any subsequent demand upon the bank by the corporation payee.</p> <p>Id.—Contemporaneous Oral Agreements Between Parties to Written Contract for Money.—Contemporaneous oral agreements between the parties to a written obligation to pay money, as to the manner of the negotiation, cannot be set up as a defense against payment of the money under the contract in an action by the payee or his assignee.</p> <p>Id.—Rule Against Variation of Written Contracts by Parol Evidence—Applicability to Non-negotiable Paper.—Such oral agreements come under the rule that written contracts cannot be varied by parol agreements, and this rule is applicable to such agreements, irrespective of whether the instrument be negotiable or nonnegotiable.</p> <p>Id.—In competency of Parol Evidence Distinguished from Secondary Evidence.—The rule that incompetent parol evidence to vary a writing can have no legal affect, though proved without objection is to be distinguished from the rule as to secondary evidence.</p> <p>Id.—Authority of Managing Agent—Negative and Positive Proof. The failure of the corporation payee to object at any time to the authority assumed by its managing agent in China, and the absence of any proof by the defendant that he lacked such authority, taken in connection with the positive proof that he was"sueh managing agent, and exercised all the authority of the corporation payee in China, together constitute competent proof of his authority as such managing agent.</p> <p>Id.—Testimony to Authority op Agent—Inferences—Facts Stated —Appellant not Prejudiced.—Where the assignee of the payee, in testifying to the authority of the managing agent, made statements in the nature of conclusions or inferences, hut these were accompanied by a statement of the facts from which the inferences were drawn, it cannot be said that such inferences objected to could have been prejudicial to the appellant’s case before the trial court.</p> <p>Id.—Demand Regularly Made by Assignee—Damages—Interest.— The demand having been regularly made by the first assignee at Hongkong, the damages for failure to pay are to be computed under the rule declared in subdivision 1 of section 3336 of the Civil Code, which would entitle the plaintiff to the market value at Hongkong when payment was refused, with interest, as allowed in the judgment.</p> <p>Id.—Indemnity Bond not Required upon Loss of Non-negotiable Instrument.—The rule in courts of. equity that a bond will be required upon a lost instrument has well-recognized exceptions, one of which is where the note is non-negotiable.</p>

<p>Ejectment—Pleading—Sufficiency of Complaint.—A complaint in ejectment which alleges ownership and possession by plaintiffs at the time of the entry of the defendants, and ownership at the time of the commencement of the action, and that defendants, on or about a day specified, unlawfully entered the premises, and still withhold the possession thereof from plaintiffs, contains all of the averments required in an action of this character.</p> <p>Id.—Issue Raised by Answer—Trial—Waiver of Objection upon Appeal.—Where the defendants in their answer denied that plaintiffs now are, or during all of the times hereinafter mentioned, or at any other time, or at all, were, or either or any of them, were, the owners of the land and premises, they tendered an issue as to the seisin of plaintiff up to the time the action was brought; and when that issue was tried and determined against the defendants, it is too late for them to raise the objection upon appeal that no such issue was tendered by the complaint.</p> <p>Id.—Sufficiency of Description of Land—Identity—Presumption. It is sufficient that the description of the land can be so identified that in the event of a recovery the officer executing the writ will know what land plaintiff is entitled to, and thus be enabled to effect the purpose of the' action. Where the'description is not manifestly insufficient to identify the property, so that it can be located on the ground, it must be presumed, in the absence of evidence to the contrary, that the corners referred to in the description are marked so as to be easily identified.</p> <p>Id.—Modes of Description.—The premises may be sufficiently described by a particular name, by which they are known, by their boundaries, by number, by lot and concession, or by section and township, or as part of a section of a certain survey.</p> <p>Id.—Evidence not Brought Up—Intendments in Eavor op Judgment.—Whatever may appear from the pleadings, where the evidence is not brought up, all intendments are in favor of the judgment; and it must .he assumed that the land awarded can be located with precision.</p> <p>Id.—Description Deemed Sufficient.—The description of the land in the complaint as “That portion of said lot No. 4 of said section 31, in township 8 N., ft. 1 E., H. B. & M., commencing at the southwest corner of the southeast quarter of said section 31, and running thence north two chains to a stake, thence west to where such line would intersect the westerly line of said lot four, thence southerly along the westerly line of said lot four, to the southwest corner of said lot four; thence east to the place of beginning,” must be assumed, in the absence of evidence to the contrary, to locate the corners referred to so that they can be easily identified.</p>

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

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

<p>APPLICATION for writ of mandate to the Superior Court of Alameda County. F. B. Ogden, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

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

<p>Municipal Corporation—Charter City—Private Improvements not a “Municipal Affair.”—The construction of improvements upon private property within a charter city is not a municipal affair. The-city has no interest or control .thereof, except such control as is made necessary for the protection of the public welfare.</p> <p>Id.—Police Power.—The only power which the city can exercise in relation to such private structures must come from the police power delegated by the constitution to charter cities, which is expressly-made subordinate to the general law.</p> <p>Id.—Complaint for Mandamus—Copy of Ordinance not Presented— Judicial Notice.—Where a complaint for mandamus does not set forth a city ordinance enacted by the city relating to the construction of buildings therein, the court cannot take judicial notice-thereof.</p> <p>Id.—Question of Conflict of Ordinance With General Law.—An. ordinance may simply exact requirements additional to the general law, which, if true, would not conflict therewith; but if the ordinance undertakes to make lawful that which by the state law is declared unlawful, a conflict would arise, and the ordinance must yield to the general law.</p> <p>Id.—Duty of Board of Public Works to Issue Permit—Mandamus Befused.—In order that .the duty should devolve upon the board of public works of the city to issue a building permit, it must be made to appear that no conflict exists between the ordinance and the general law; otherwise the determination of the board in refusing the permit should be sustained, and a writ of mandate thereto-was properly refused.</p>

<p>Receiver—Ex Parte Appointment—Failure to Require Bond to Dependant—Void Appointment.—Where the appointment of a receiver was ex parte, and the court failed to require the bond made essential by section 566 of the Code of Civil• Procedure, as amended in 1907, the noncompliance therewith rendered the appointment void.</p> <p>Id.-—Amendment Mandatory.—The effect of the amendment was intended to take all discretion from the court, and to make the requirement of the bond mandatory.</p> <p>Id.—Right op Appeal—Issues Under Pleadings to be Tried.—The appellant was a party aggrieved by the order, and had the right to appeal therefrom. The fact that the answer takes issue upon the complaint, and pleads agency for the intervener, cannot be considered. The issues may be found for the plaintiff, and can only be determined after trial. Neither the truthfulness of the complaint nor answer can be assumed to deprive plaintiff of the right of appeal.</p>

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

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

<p>Reclamation District—De Jure Corporation not Shown—Insufficient Publication.—Where the affidavit of publication of a petition for the formation of a reclamation district shows that the publication of notice of the hearing was insufficient to justify the hearing of the petition, it is insufficient to show a reclamation district de jure.</p> <p>Id.—Foreclosure of Assessment Lien—De Facto Corporation— Validity not Collaterally Assailable.—In an action by a reclamation district to foreclose the lien of an assessment, where the district de facto is established, its existence cannot be collaterally assailed.</p> <p>Id.-—Nature of Corporation De Facto.—A corporation de facto exists where a number of persons have organized and acted as such corporation, have conducted their affairs to some extent through the officers usually employed by corporations, and have assumed the appearance of a legal corporate body.</p> <p>Id.—Evidence Received Without Objection.—No objection having been made to evidence tending to prove a de facto corporation, upon the ground that it was not within the issues, it may be considered under the averments denied.</p> <p>Id.—Lapse op Time Immaterial.—It is not necessary that some particular period of time should elapse in order to show the de facto existence of a corporation. Such existence depends rather upon what has been done under and by virtue of the organization than upon the length of time that may elapse after its inception.</p> <p>Id.—De Facto Organization Based on Distinct Grounds.—De facto organizations are upheld on distinct grounds from those on which a de jure organization rests.</p> <p>Id.—Right op De Facto Corporation to Exist—Right Determinable Only in Quo Warranto.—Where the right of a de facto corporation to exist is shown, its right to exist- can be determined only upon quo warranto proceedings.</p> <p>Id.—Power op Corporation De Facto.—A corporation de facto may legally do and perform every act and thing which the same entity could do or perform were it a de jure corporation. As to all the world except the permanent authority under which it acts and from which it receives its charter, it occupies the same position as though in all respects valid, and even against the state, except in proceedings to arrest its usurpation of power, its acts are to be treated as efficacious.</p> <p>Id.—Reclamation Districts De Facto—Validity op Assessment.— Reclamation districts, authorized under the Wright act, are public corporations, whether de jure or de facto. That is a matter which cannot be inquired into collaterally; and the validity of the lien of an assessment thereof in no way rests upon the de jure character of the reclamation district.</p>

<p>Injunction—Disputed Demand—Payment into Court—Contract Between Partners—Mere Money Allowance—Jurisdiction -or Appeal.—Where the action was brought to enjoin a construction company from paying a residue to partners defendants, who had completed a contract to prepare a section for a railroad, and the equitable element was eliminated by the payment of the money into court, and the plaintiff is an assignee of a partner who had refused to complete the contract, and had quit work, and the case did not involve a settlement of the partnership business, but a mere money demand by such assignee, as to the amount due his assignor for work done, under a contract between the partners, and the only judgment rendered for plaintiff was for the value of the work and labor done by his assignor, this court has jurisdiction of an appeal therefrom.</p> <p>Id.—Agreement of Partners as to Wages for Quitters—Support of Finding.—Where the evidence showed an original agreement of seven partners to complete the section and share the profits equally, but also showed that afterward, when one of the partners quit the work and refused to do more, they settled with him on a basis of wages at three dollars per day, less expenses advanced, and it was then agreed between all of the remaining partners, including plaintiff’s assignor, that if any other one should quit the work before it was done he should receive the same per diem, less expenses, the court properly found, upon sufficient evidence, that the recovery of the plaintiff, as assignee of a quitter of the work before it was done, was limited to the same per diem, less such expenses.</p> <p>Id.—Agreement not Esquired to be in Writing—Evidence.—The understanding between the partners as to how quitters should be paid was not required to be in writing, and could be determined upon at any time. Evidence as to how the first quitter was settled with was admissible as tending to corroborate the agreement then made between all. the remaining partners that the rule adopted in his case was to govern if others should quit the work.</p> <p>Ip.-Agreement as to Quitters not Inequitable—Proper Sharers in Profits.—The agreement as to quitters found by the court was not unreasonable or inequitable. On the contrary, it was but just that the five partners who stood by the contract to construct the section to its completion, and took the risks of loss in the business, should alone share in whatever profits might result from their fidelity to their obligations. "</p> <p>In,—Code Section Inapplicable.—Section 2403 of the Civil Code, providing that, “In the absence of any agreement on the subject, the shares of partners in the profit and loss of the business are equal,” is only intended to reach cases in the absence of any agreement between the partners relating to the shares of partners, and does not apply to an equitable agreement between the partners as to the share of quitters in a work undertaken by the partnership.</p> <p>IP.—Appeal—Ebview of Evidence—Conflict.—Where the evidence is conflicting, the findings of the trial court will not be disturbed upon appeal.</p>

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

PETITION for discharge on writ of habeas corpus from custody of warden of state prison. The facts are stated in the opinion of the court.

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

<p>-Criminal Law—Placing Wife in House of Prostitution—Conviction " —Insufficient Brief upon Appeal.—Where, upon appeal from a judgment of conviction of a charge that defendant placed his wife in a specified house of prostitution and permitted her to remain, there, appellant in his brief merely states that defendant was eon- ■ victqd on the uncorroborated testimony of his wife, which was contradicted in every particular, and “it then became a question of veracity for the jury to determine,” and then merely states that, “the evidence presented by the people was insufficient to justify the verdict,” without pointing out in any way, nor at all, as to-what the evidence was or the respects wherein it was insufficient, it is not the duty of this court to' consider the sufficiency of the evidence, but it will regard it as sufficient.</p> <p>'Id.—Evidence of Wife — Objection to Question Sustained Overcome by Subsequent Answer.—Where the wife testified that her husband went with her first to a neighboring house, the woman in which went with them to the house of prostitution, an objection sustained to a question as to what conversation took place in the first house was overcome by subsequent answer, that she had no-conversation with any person at that first house.</p> <p>Id.—Examination of Defendant—Leaving Children in Care of Society—Statement Begarding Wife—Proper Exclusion.—Where, upon defendant’s examination after testifying that he placed his. children in care of the Society for’the Prevention of Cruelty to Children, a question as to what statement he then made to them respecting his wife was properly excluded, where nothing appeared to show its materiality; and any self-serving declaration made by him at that time to third parties would not be admissible.</p>

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

<p>Public Alley — Cul-de-sao — Pull Boundary—■ Title Deeds—Town Patent—Public Trust.—Where a public alley known as “Bose alley” formed a cul-de-sao about twelve feet wide, extending originally from Monterey street into block 13 of the city of San Luis Obispo, and terminated at the center of San Luis Obispo creek, and all of appellant’s title deeds described it accordingly, and the testimony shows that it had been used both for watering stock and for delivering goods at a-store bounding thereon, and that it was so used from 1862 to 1868, when the town patent was obtairied, the trust for which the town trustees took the title therefor was to maintain it throughout its entire length, as a public alley.</p> <p>Id.—Obstruction of Alley by Store—Gate—Long User—Prescriptive Bight not -Obtainable Against City.—Where in 1884 plaintiffs constructed a store on the alley and closed it by a gate, leading into the rear yard of their store, and used the property in that way for about twenty-three years before the city trustees and superintendent of streets ordered such gate to be removed and the ally opened to its full width, such long occupation could create no prescriptive right against the city.</p> <p>Id.—User not Deemed Adverse to Public Bight.—Any user by.plaintiffs' or their predecessors in interest of a public alley could not be presumed to be adverse to the rights of the public.</p> <p>Id.—Acceptance of Highway by User—Standard—Purpose of Way. In ascertaining whether or not a highway, public park or public place has been accepted by user, the purpose which the way, park, or place is fitted or intended to serve must be the standard by which to determine the extent and character of the use which constitutes an acceptance.</p> <p>Id.—Accepted Highway not Destructible as a General Bule—Absence of Estoppel.—A public highway cannot, as a general rule, be destroyed or acquired by adjacent private proprietors by adverse holding, where there is no element of estoppel which could bring the case within any exception thereto.</p> <p>Id. — Action to Enjoin City Authorities from Interference With Gate — Judgment of Nonsuit — Affirmance.—In an action by plaintiffs to enjoin the city trustees and superintendent of streets from interference with plaintiffs’ gate after twenty-four years’ user thereof, "it is held that a judgment of nonsuit was properly entered against the plaintiff, and that such judgment should be affirmed.</p>

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

<p>APPEAL from a judgment of the Superior Court of 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>Criminal Law—Change of Venue in Justice’s Court—Construction of Code.—Section 1431 of the Penal Code, relating to a change of venue in the justice’s court in a criminal case, is not to be given the same effect as section 833 of the Code of Civil Procedure applicable to the civil actions therein.</p> <p>Id.—Affidavit for Bias and Prejudice—Jurisdiction not Ousted— Power to Determine Sufficiency of Seasons—Remedy by Appeal.—An affidavit for bias and prejudice does not per se oust the jurisdiction of the justice’s court in a criminal case, but the court has power to determine the sufficiency of the reasons set forth, and for any error or abuse of discretion in passing thereon, the defendant has a speedy and adequate remedy by appeal.</p> <p>Id.—Office of Writ of Review.—The writ of review can only be granted where the inferior court has exceeded its jurisdiction and there is no appeal. The writ cannot be allowed to control discretion, nor to review more errors in the exercise of jurisdiction. .</p> <p>Id.—Jurisdiction not Exceeded.—The justice of the peace did not exceed its jurisdiction, either in refusing to grant the motion for the change of venue or in proceeding to trial, after denying the same, or in determining the sufficiency of the evidence to support a conviction, or in charging the jury as to the law of the ease, and any mere errors committed by the court in the exercise of its jurisdiction can be remedied only upon appeal.</p>

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

<p>Attachment—Affidavit not Signed.—To justify the issuance of a writ of attachment, there must be received by the clerk an affidavit by or on behalf of the plaintiff; but it is not necessary that the affidavit be signed by the party making it.</p> <p>Id.—Irregular Affidavit—Perjury—Authority of Notary Essential.—It is no defense to a prosecution for perjury, upon an affidavit for attachment, that the oath was taken or administered in an. irregular manner; nevertheless, the document which purports to be sworn to is not an affidavit, unless the notary had authority at the time to administer the oath.</p> <p>Id.—Notary’s Authority Confined to County of Appointment.—In the absence of statutory regulation providing otherwise, the rule is that a notary cannot act as such official outside of the county for which he is appointed. There is no provision in the codes of this state which can be construed as authorizing a notary to administer an oath outside of his county; but their provisions are inconsistent with such authority. '</p> <p>Id.—No Authority to Take Oath Over Telephone Outside of County.—Assuming, without deciding, that an oath may be administered and the obligations thereof assumed by communication had over the telephone, the validity of such act must be held to apply, only where both notary and affiant are within the territorial limits for which the notary has been appointed and commissioned. No authority exists in a notary commissioned for one county to take the oath of a person in another county by telephone, however familiar his voice may be to the notary.</p> <p>Id.—Void Affidavit for Attachment Taken Out of County.—Where an affidavit for attachment to be used in Kern county was administered by a notary of that county to an affiant in Los Angeles county, the act of administering the oath to him was a nullity, and the purported affidavit upon which the attachment was issued was void and of no effect.</p> <p>Id.—Amend ability of Affidavit—Change in Code—Irregularity— Void Affidavit not Amendable.—Prior to the amendment of 1909 to section 558 of the Code of Civil Procedure, no affidavit for attachment could be amended. But the changed law contemplates the existence of an irregular affidavit susceptible of amendment; and when the act of the notary in administering the oath was a nullity, and the purported affidavit is void, there is nothing to amend. There can be no irregularity in that which had no existence. In such case, the code amendment is inapplicable.</p> <p>Id.—Construction of Changed Law—Distinction Between Manner of Performance and Prerequisite Act.—It is only where the manner of performing the act of taking the affidavit is irregular that amendability exists, under the changed law, "to supply that which by reason of inadvertence or oversight was omitted from it. But the provision of the changed law cannot be construed as authorizing the filing of an affidavit in support of a writ of attachment before issued, in the absence of that which constitutes the substance of the act required as prerequisite to its issuance.</p>

<p>Action to Set Aside Deed by Aged Widow—Alleged Incapacity— Want of Consideration or Independent Advice—Trust Relation—Support op Findings.—In an action to set aside a deed made by an aged widow to her surviving daughter to the exclusion of children of a deceased daughter for alleged incapacity, want of consideration or independent advice, and breach of a trust relation, where the court found against all of the allegations of the complaint, and in favor of the grantee, it is apparent that if the evidence is sufficient to sustain the findings that the grantor fully understood the nature of the transaction, and that the conveyance was the effect of her untrammeled and voluntary act, the questions-as to consideration and independent advice become unimportant, ■</p> <p>Id.—Right op Owner to Dispose op Property.—Every owner has an incontrovertible right, in the absence of fraud, to dispose of his own property according to his volition.</p> <p>Id.—Conflicting Evidence as to Want op Capacity op Grantor.— Where the evidence for the plaintiffs addressed to the alleged want of capacity of the grantor was in substantial conflict with that for the respondents, which supports the findings made that the grantor thoroughly understood the nature and consequences of her deed, the findings as made on that question cannot be disturbed by this court.</p> <p>Id.—Support op Finding as to Voluntary Deed.—The finding is fully supported as to the voluntary character of the transfer by. deed by the widow to her daughter. The testimony of the defendants and of three other witnesses who were present at the execution of the deed justifies the conclusion of thg court that the grantor was free from undue or any improper influence of the grantee or any other person.</p> <p>Id.—Affection Between Mother and Daughter—Ministration of Daughter—Declaration of Grantor.—The evident affection that existed between the mother and daughter, the kindly and continued ministration of the latter to the comfort and happiness of the former, and the declaration of the grantor as to her reason for making the deed that “Mary Ann was good and kind to her, and she didn’t know how she could have got along without her, and she wanted her to have what property she had; she had deserved it all,” all tended to rebut any unfavorable inference against the grantee.</p> <p>Id.—Reasonableness of Deed.—Upon the abundantly supported theory of the uniform kindness of the daughter toward the mother, and in view of the fact that it had continued through many years, and that she was the only living child, the conveyance is easily explicable, and seems entirely reasonable.</p> <p>Id.—Presumption from Relation Between Parent and Child—Evidence Negativing Undue Influence.—The showing made by the evidence was sufficient to overcome any possible presumption of undue influence growing out of any confidential relation between the parties as aged parent and child. There was no other relation between them than that of care of the child for the parent. The daughter had no power of attorney and transacted no business for the mother.</p> <p>Id.—Relation of Parent and Child not Invalidating Deed of Parent.—The mere relation of parent and child is not sufficient to invalidate a deed from the parent to the child. It is merely a circumstance, inviting careful consideration of the transaction; but before it can justify the inference of undue influence, there must be superadded imposition, fraud, importunity, or something of that nature. Cases arising between an aged parent and child can turn only upon the exercise of actual undue influence, and not upon any presumption of invalidity. A gift from a parent to a child certainly cannot be presumed invalid.</p> <p>Id.—Independent Advice and Consideration—Questions for Trial Court.—Though the questions of independent advice and consideration are not essential to the validity of the transaction, when the deed was fully understood and voluntary, yet they are important elements to be considered by the trial court in determining the status of the property. Though the notary summoned by her was not an independent adviser in the legal sense, yet he first took her free statement of what she wished to do with the property, and when he prepared the deed accordingly, fully made her acquainted with its contents before she executed it. The evidence as to consideration, though meager, is sufficient to support the finding of the court on that question.</p> <p>Id.—Services Rendered by Daughter to Parent—Presumption op Gratuity not Conclusive—Burden op Proof.—Though services rendered by a child to the parent are presumed to be gratuitous, yet such presumption is not conclusive. The burden is on the party rendering the services to overcome such presumption, and the proof is sufficient to overcome it and support the finding of consideration for the deed.</p> <p>Id.—Declarations op Testator Showing Value of Services.—The declaration of the testator showing the value of the services rendered to her by her daughter, and that she deserved the whole of the property which she proposed to deed to her, would undoubtedly be admissible against her if she were alive and contesting the deed, and they were equally admissible against her representatives, and in favor of the representatives of the deceased grantee, as being the. best evidence 'obtainable on the question of consideration. Its weight was for the trial court.</p>

<p>APPEAL from an order of the Superior Court of Mendocino County, refusing to dismiss proceedings for a new trial. J. Q. White, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>APPEAL from an order of the Superior Court of Solano County, denying a new trial. L. G-. Harrier, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Criminal Law—Mode of Determining Sufficiency of Indictment.— The correct way to determine the sufficiency of an indictment is to take its language in its ordinary accepted meaning, and its statements as to the matters and things that defendant did, and then compare them with the statute which it is claimed has been violated, for the purpose of determining the question as to whether or not the defendant is charged in plain language with having done a particular act or thing which is made a crime by the statute.</p> <p>Id.—Obtaining Money Under False Pretenses—Sufficiency of Indictment.—An indictment stating that defendant did on a specified day, knowingly, falsely and fraudulently, pretend and represent to a person named, that he, the said defendant, was the sole owner of a mining claim described, and that there was then being erected and constructed on said mine a ten-stamp mill, and that all litigation concerning the mining claim was settled, and which avers the particular falsity of each and all of said pretenses and representations, and that such person, believing each and all of them to be true, was thereby induced to deliver to defendant the sum of $500, and that defendant fraudulently and feloniously received, took and carried away the same, sufficiently states the crime set forth in section 582 of the Penal Code.</p> <p>ID.—Unnecessary Averments—Evidentiary Facts.—It was not necessary, and would have been bad pleading, for the indictment to state what the defendant intended to do with the money, or that the money was never returned to the person defrauded, or any other evidentiary fact.</p> <p>Id.—Matter of Defense.—If the defendant did not obtain the money in the manner charged in the indictment, or if it was paid to him with full knowledge of all the facts and circumstances, or if it was a loan, or given to him for the purpose of depositing in bank, such fact or facts could be shown by him in defense.</p> <p>Id.—Purpose of Indictment Answered.—The indictment has answered its purpose when it fully and fairly informs the defendant of the acts he is accused of, so that he can prepare for his defense and defend himself as to such acts, and so that it can be determined, as matter of law, whether or not such facts as are alleged in the indictment constitute a crime under the statute; and the indictment is sufficient if the acts stated show a violation of the statute.</p> <p>Id.—Demurrer to Indictment and Motion in Arrest of Judgment Properly Overruled.—The indictment being sufficient, a demurrer thereto, and a motion in arrest of judgment for its insufficiency, were properly overruled.</p> <p>ID.—Support of Verdict.—The evidence is held sufficient to support the verdict of guilty of the offense charged.</p> <p>Id.—Defendant’s Bight to Stand Mute—Prejudicial Error in Bbfusing Instruction — Impertinent Substitution — Beversal.— The court erred to defendant’s prejudice, requiring a reversal in refusing his requested instruction that “the defendant has a legal right to take the stand as a witness, or not to do so, just as he pleases, or as his counsel may advise. The mere fact that he does not testify raises no presumption or prejudice against him, and the jury cannot draw any unfavorable inference against a defendant who does not offer himself as a witness”; and in substituting in lieu thereof section 1323 of the Penal Code, involving the impertinent right to cross-examine a defendant who testifies.</p> <p>Id.—Eight of Defendant to Fair Trial — Correct Instruction not Bobbed of Force.—The defendant was entitled to a fair trial, and to a correct instruction pertinent to the issue, without having it coupled with another statement not pertinent to the issue, which robbed it of all its force as to defendant’s rights.</p> <p>Id.—Constitutional Eights of Defendant.—The defendant has the constitutional right to stand mute, without unfavorable presumption from his silence, and to demand that the prosecution prove the case against him beyond a reasonable doubt.</p> <p>Id.—Due Administration of Justice—Absence of Prejudicial Instructions.—It. tends to the due and proper administration of justice for the trial court to leave the jury entirely free to pass upon each and every fact and phase of the case, without any prejudicial instructions, or any intimation by the court as to the weight of the evidence. When an instruction is asked for by a defendant which contains a correct statement of the law, and is pertinent to the issue and the evidence, it should be given, without being weakened or emasculated by an additional statement not so pertinent, although in the abstract containing a correct statement of the law.</p> <p>Id.—Conditional Instruction as to Cross-examination of Defendant Improper.—No occasion can arise during a trial of a criminal case for giving the jury an instruction as to the fact that the defendant could be cross-examined, if he should be a witness, when he is not a witness. If he were a witness, the court and not the jury would determine the question of his cross-examination and the extent thereof; and the jury should not be given an instruction as to substantive law which is for the court and not for the jury under any circumstances.</p> <p>Id.—Error in Effusing Instruction as to Eeasonable Doubt of False Pretenses Charged.—It was error for the court to refuse an instruction'requested by defendant as follows: “If you should have a reasonable doubt in your minds as to whether the prosecuting witness parted with her money because of the representations set forth in the indictment, or any of them, or whether, on the other hand, she so acted by reason of and induced by other or different representations, then you should give the defendant the benefit of the doubt, and your verdict should be not guilty.”</p> <p>Id.—Gist of Charge — Substance of Bepresentations Essential — Other Inducements—Main Cause of Loss of Monet.—The false pretenses stated are of the gist of the offense charged, and the substance of them must be proved beyond a reasonable doubt. It is not necessary, however, that they shall be the sole inducement, since other false pretenses may have co-operated therewith; but it is essential that the false pretenses charged should have been the main cause. that operated in the mind of the prosecuting witness when she parted with her money.</p> <p>Id.-tAppeal—Argument—Errors . not Pointed Out in Brief.—When counsel rely upon other errors in the giving or refusing of instructions, it is due to this court that the brief of the appellant should call attention to the facts and the law sufficient to show .in what way the giving or refusing of the instruction injures the defendant appealing.</p> <p>Id.—Evidence—False Representations as to Nugget Chain—Guilty Intent—Knowledge of Falsity of Statements Charged.—Evidence was admissible to show false representations by defendant to the prosecuting witness that a nugget chain shown her in the presence of a witness was made of nuggets taken from the mine. In this class of cases, evidence of similar offenses, involving the making of other false representations is admissible to. show that he is aware of the falsity of the statements made by him in the particular case on trial. The law is liberal in allowing other false statements to be shown, for the purpose only of showing guilty intent, or guilty knowledge of the falsity of statements that the party is making.</p> <p>Id.—Reopening Case to Prove Admissions by Defendant—Speculation as to Defendant Becoming Witness.—The district attorney relying upon admissions made by defendant on a former trial should have proved them in chief; and the practice should not be tolerated of his reliance upon the uncertain event of the defendant taking the stand in his own behalf, so as to make them part of his case on cross-examination. In such case the district attorney did not stand in a favorable position to ask or invoke the discretion of the court to reopen Ms ease, to prove such admissions; but the discretion of the court in allowing it is not passed upon, in view of reversal upon other grounds.</p>

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

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

<p>Criminal Law—Appeal from Judgment and Order—Failure to Reverse Order—Remedy op Dependant—Motion por Discharge— Power Over Order.—Upon a former appeal to this court, in a criminal case, from a judgment of conviction and from an order denying defendant’s motion for a new trial, where this court reversed the judgment without expressly ordering a new trial, and failed to dispose of the order, bu't did not direct the discharge of the defendant, or the dismissal of the ease, the sole remedy of the defendant was to apply to this court for such discharge, whereupon this court could dispose of the order denying his motion for a new trial, which, in effect, would have been the ordering of a new trial.</p> <p>Id.—Effect op Reversal op Judgment—Jurisdiction op Trial Court —New Trial — Dismissal not Required.—The reversal by this court of the judgment of conviction, without ordering a dismissal of the ease, or the discharge of the defendant, had the effect to leave the trial court with jurisdiction to proceed with the trial of the case, and it was not required to dismiss the action on the ground that a new trial was not expressly ordered by this court.</p> <p>Id.—General Objection to Deposition op Absent Witness — Failure to Swear Witness not Included—Objection upon Appeal. A general objection to the deposition of an absent witness taken at the preliminary examination that the testimony was “immaterial, irrelevant, incompetent and hearsay” did not include the specific objection that the “witness was not sworn,” and that objection cannot be urged upon appeal for the first time on the ground that the record fails to show that the witness was sworn, especially where the record shows that the same counsel which represented him in the trial court represented him at the preliminary examination, and cross-examined him thereon, but does not show that he there made such objection.</p> <p>Id.—Duty op Counsel to Object to Known Ground.—If in fact the transcript offered in evidence did not show that the absent witness gave his testimony under oath, it was the duty of defendant’s counsel to specifically make the objection upon that ground, in order that the court may be informed thereof, and that the record upon appeal may clearly show whether or not the absent witness was sworn.</p>

<p>APPEAL from 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>Wills—Probate of Destroyed Will—Finding as to Proof of Contents Unsupported.—Where a will destroyed in the great conflagration in San Francisco was admitted to probate under section 1339 of the Code of Civil Procedure, the necessary finding that the contents of the will were proved by two credible witnesses was unsupported, where the only credible witness was one who drew the will and knew its contents, and was qualified to prove them by parol, and the only other witness to its contents was that of one who had never seen or read the will, but had merely heard it or a copy of it read to her by the one who drew the will.</p> <p>Id. — Construction of Statute — Intention of Legislature. — The legislature intended when it enacted the requirement that two credible witnesses must be produced to prove the contents of a destroyed will, that each of them must give primary evidence, or evidence from personal knowledge as to the contents of the will, and it never contemplated that one of such witnesses might in effect multiply himself into any number of witnesses by reading a will, or stating its contents, to other persons.</p> <p>Id.—Contents of Writing not Provable by Hearer.—The contents of a writing cannot be proved by the testimony of a person who heard the writing read.</p> <p>Id.—Effect of Stipulation upon Appeal—Due Execution of Will —Waiver of Finding—Proof of Contents not Involved.—A stipulation upon appeal that “the will of said deceased was proved to have been duly executed by him before two attesting witnesses,” and waiving the assignment of insufficiency of the evidence to prove the same, has no bearing upon the assignment of insufficiency of the evidence to sustain the finding as to proof of the contents of the will. Proof of the provisions of a destroyed will is quite a different matter from proof of its due execution before two attesting witnesses.</p>

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

<p>Appeal—Notice—Judgment and Order—Sufficiency of Evidence— Becord—Judgment-roll—Absence of Evidence—Presumption— Affirmance.—Where a notice of appeal was from the judgment and from an order denying a new trial, and the appeal is based upon the sole ground that the evidence does not support the findings, but the sole record upon appeal consists of the judgment-roll comprising the complaint, answer, findings and judgment, without any evidence brought up, and the transcript fails to show that any motion for a new trial was made, in this condition of the record, it must be assumed that the evidence was sufficient to support the findings, and where the findings are sufficient to support the judgment, the judgment and order must be affirmed.</p> <p>Id.—Action by Wife upon Benefit Certificate—Presumption of Death of Husband—Diligent Search—Conclusive Finding.—In an action by a wife upon a benefit certificate payable to her upon her husband’s death, his death must be presumed from his prolonged absence for seven years, where it is conclusively found, in the absence of any evidence in the record, that the wife had made diligent search for her absent husband, and had made inquiries at all places where her husband might reasonably be expected to be found, if alive, and that she had exhausted every source of information in her efforts to locate him, but all without avail.</p>

<p>Criminal Law—Order Setting Aside Information—Nonappearance at Preliminary Examination—Conflicting Affidavits—Review upon Appeal.-—-Upon appeal from an order setting aside an information against the corporation respondent, where it appears that the trial court, upon, conflicting affidavits, determined that there was no appearance of the corporation respondent at the preliminary examination, the order appealed from cannot be disturbed.</p> <p>Id.—Rule as to Review of Questions of Pact—Conflict.—In considering an appeal from an order made upon affidavits involving the decision of a question of fact, the appellate court is bound by the same rule that controls it where oral testimony is presented for review; and if there is any conflict in the affidavits, those in favor of the prevailing party must be taken as true, and the facts stated therein must be considered as established.</p> <p>Id.—Preliminary Examination Against Corporation—Code Rules not Complied With—Question of Voluntary Appearance.— Under sections 1390-1396 of the Penal Code it is required that upon a presentment against a corporation, the magistrate must issue a summons signed by him with his name of office, requiring the corporation to appear before Mm at a specified time and place, to answer the charge, and the charge is required to be investigated in the same manner as in the ease of a natural person. Where these rules prescribed in the Penal Code were not complied with, the only question is whether the corporation voluntarily appeared before the magistrate by its authorized attorney.</p> <p>Id.—-Appearance by Attorney—Question of Authority—Disproof by Affidavits.—There can be no doubt as to the conclusion of the court from the affidavits offered on the part of the corporation defendant that it had authorized no one to appear in its behalf, and that as matter of law no one had authority to represent it at t)ie preliminary examination. Where an attorney without authority announced Ms representation of the corporation, the corporation cannot be denied the right to show by affidavits that it was not actually represented by counsel.</p> <p>Id.—Presumption of Authority of Attorney Appearing—Burden of Proof.—It is presumed in law that an attorney appearing and acting for a party has authority to do so, and to do all other acts necessary or incidental to the proper conduct of the ease, and the burden of proof rests upon the party denying such authority to sustain Ms denial by a clear preponderance of the evidence.</p> <p>Id.—Affidavits Supporting Burden of Proof.—Upon the whole of the affidavits and showing made in behalf of the corporation respondent, it is held that the trial court was justified in its conclusion that the corporation satisfied the requirement of the rule imposing upon it the burden of proof that it was not represented by counsel at the preliminary examination, and that the magistrate made a místate in assuming that the corporation was represented by counsel, who in fact only appeared for an individual defendant examined by the magistrate.</p> <p>Id.—Affidavit of Attorney Inadvertently Omitted from Transcript —Use on Hearing—Irregular Amendment—Order of Appellate Court.—Where a counter affidavit made by the attorney, alleged to have represented the respondent, was in fact used on the hearing, showing that he did not claim to represent the corporation, an amendment of the transcript by the judge without a previous order of this court was irregular, but as no prejudice can result from the irregularity, the affidavit will be ordered made part of the record.</p>

<p>APPEAL from a judgment of the Superior Court of the City and County of San Francisco. J. C. B. Hebbard, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Rape—Sexual Intercourse With Young Girl—Error in Admitting Evidence—Distinct Rape by Another Person.'-—Upon the trial of a charge of rape by the defendant committed by sexual intercourse-with a female under sixteen years of age not his wife, it was prejudicial error to admit evidence of a distinct act of rape subsequently committed by a-male companion of defendant on the same day upon the prosecuting witness at a different and remote place, for the commission of which defendant was not in any way responsible.</p> <p>Id.—General Rule as to Proof of Other Offenses.—It is a general rule that the prosecution cannot prove other offenses committed even by the defendant for the purpose of increasing the likelihood that he committed the offense charged, the only exception being where another offense actually tends to show the intent with which the act charged was done; but in no case has any court justified the admission of a distinct offense by another party, except in instances where the acts and declarations of conspirators are sought to be shown, though acts and declarations even of a conspirator are not admissible after the commission of the crime.</p> <p>3b.—Distinct and Independent Crime of Third Party—Absence of Connection With Offense Charged.—It cannot be claimed that the acts and conduct of a third party, involving an independent and substantive crime, committed after the offense charged against defendant was completed, and at a remote place therefrom, have a logical or necessary connection with the offense charged against the 'defendant.</p> <p>Id.—Act of Third Party not Part of Res Gestae.—The term “res gestae” signifies circumstances and declarations growing out of a main fact, which are contemporaneous with it, and serve to illustrate its character. The subsequent and independent act of the male companion of defendant is not part of the res gestae of the-defendant’s crime, and is not a necessary incident of defendant’s act.</p>

<p>Criminal Law—Motion to Dismiss Appeal—Failure op Original Record to Show Notice—Additional Record.—A motion to dismiss an appeal in a criminal case cannot be granted for failure of the original record to show a notice of appeal, where an additional and supplemental record filed by leave of this court shows that such notice was actually given by the defendant in open court at the proper time.</p> <p>Id.—Rape—Sexual Intercourse With Young Girl—Prejudice op Juror Against Crime Charged—Error in Overruling Challenge. Where in impaneling a jury upon a charge of rape in having sexual intercourse with a girl under sixteen years of age, not his wife, a juror examined as to his qualifications declared his prejudice against the crime charged, and that he would give the benefit of the doubt to the family, it was error to refuse to sustain the defendant’s challenge against such juror for actual bias.</p> <p>Id.—Constitutional Right to Impartial Jurors.—The right to unbiased and unprejudiced jurors is an inseparable and inalienable part of the right of trial by jury guaranteed by the constitution.</p> <p>Id.—Kind op Prejudice not Material.—There is no difference to be recognized in the application of the rule, where the prejudice exists against the defendant individually, or where a like prejudice exists on account of the offense with which he is charged.</p> <p>Id.—Challenge for Actual Bias—Duty of Court.—The challenge being for actual bias, the trial court was called upon to determine the facts.</p> <p>Id.—Discretion—Question of Law—Review on Appeal.—While, in passing upon actual bias, a large discretion is vested in the trial court, and its ruling is only reviewed in exceptional cases, yet when the evidence of the juror upon his examination presents to this court a question of law, the disallowance of a challenge for actual bias may be reviewed upon appeal. Where there is no conflict in the evidence presqpted upon the trial of a challenge for cause, the matter is resolved into a question' of law reviewable upon appeal.</p> <p>Id.—Opinion upon Cross-examination—Ability to Lay Aside Admitted Prejudice.—An opinion stated hy the witness on cross-examination, that he could lay aside his admitted prejudice and give the defendant the benefit of a reasonable doubt, does not cause a conflict in the evidence preventing the ruling upon his admitted prejudice from being reviewed upon appeal as matter of law.</p> <p>Id.—Effect of Disallowed Challenge on Peremptory Challenges— Defendant Prejudiced.—Where, owing to an error in matter of law in disallowing a challenge to a juror for cause, he was compelled to exhaust one of his peremptory challenges in getting rid of the prejudiced juror, he was thereby prejudiced by the reduction in the number of the peremptory challenges which he has the right to exercise upon his mere whim or caprice.</p> <p>Id.—Prejudicial. Error Warranting Reversal.—The error of the court in denying defendant’s challenge for cause, which had the effect to deprive the defendant of his full right to exercise ten peremptory challenges, is so prejudicial as to warrant a reversal of the judgment and order appealed from by the defendant.</p>

<p>Order Granting New Trial—Grounds of Motion—General Order— Review upon Appeal.—Where the grounds of a motion for a new trial were insufficiency of the evidence to justify the decision, newly discovered evidence based upon affidavits, and errors of law occurring at the trial, a general order granting the motion will not be disturbed upon appeal, unless it appears that the making of the order constitutes an abuse of discretion.</p> <p>Id.—Quieting Title—Contract of Purchase—Conflicting Evidence —Agency and Trust for Purchaser—Notice—New Evidence— Proper Order Granting New Trial.—In an action to quiet title, where conflicting titles rested upon a contract of purchase, and findings for the defendants were made upon conflicting evidence that the contract was not complied with, that the female plaintiff was a grantee of the purchaser, whose deed did not describe the land sued for, and that the female defendant’s deed from the vendor and original purchaser was without notice of plaintiffs’ deed, but there is evidence in the record from which the court might conclude, in its order granting a new trial to plaintiffs, that the grantee of the purchaser was a corporation which was a mere agency and trustee for the purchaser, that the defendant had actual and constructive notice of plaintiffs’ deed, and also that the newly discovered evidence conflicted with its findings, the court did not abuse its discretion in granting the new trial.</p>

<p>PETITION for writ of habeas corpus.</p> <p>The facts are stated in the opinion of the court.</p>

<p>APPEAL from a judgment of the Superior Court of Plumas County, and from an order denying a new trial. J. 0. Honour, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>APPLICATION for writ of prohibition to the Superior Court of Kings County. John G. Covert, Judge.</p>

<p>MOTION to dismiss appeal from a judgment of the Superior Court of Yuba County. Eugene P. McDaniel, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

MOTION to dismiss an appeal from a judgment of the Superior Court of Tuba County. Eugene P. McDaniel, Judge. The main facts are the same as those presented in case No. 751, supra.

<p>APPEAL from a judgment of the Superior Court of San Bernardino County. Benjamin F. Bledsoe, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>APPEAL from an order of the Superior Court of San Luis Obispo County refusing to dissolve an attachment. E. P. Unangst, 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 Barbara County. S. E. Crow, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Exclusive Agency por Sale op Motor Gars—Breach op Contract by Principal—Support op Findings.—In an action by one to whom an exclusive agency was contracted for to sell defendant’s motor ears within a specified territory, to recover from the principal damages for the breach of such contract, it is held that findings that plaintiff complied with the contract on his part and was at all times ready, able and willing to perform it in all respects, but that defendant violated the contract, to plaintiff’s great damage, by soliciting orders within the territory allotted to such exclusive agency, in violation and breach of its contract with plaintiff, are fully supported by the evidence.</p> <p>Id.—Measure op Damages por Breach op Contract.—The measure of damages for such a breach of the obligation of the contract is found in the general rule presented in section 3.300 of the Civil Code, as being that amount which will compensate the plaintiff for all the detriment proximately caused thereby, or which, in the ordinary course of things, would be likely to result therefrom.</p> <p>Id.—Deprivation op Promts not Speculative or Uncertain.—The profits which plaintiff was deprived of by the breach of the contract for an exclusive agency in specified territory are those which he would have made from the sale of machines wrongfully sold by defendant therein, had the defendant refused to invade the exclusive territory granted to him, or have referred inquiries of purchasers to him as it agreed to do in the contract. There is nothing speculative or uncertain as to the amount of the profits of which plaintiff was thus deprived, but their loss is so closely connected with the breach of the obligation that the injury is not remote in its nature or origin.</p> <p>Id.—Profits and Advantages Expressly Agreed.—When profits and advantages are expressly stipulated for in the contract, and are the real purpose and direct and immediate fruit of a contract, they are part and parcel of it and must be considered as entering into and constituting a portion of its very elements, and they cannot be said to be collateral or remote.</p> <p>Id.—Estoppel of Defendant.—The defendant violating its express contract is estopped to deny that plaintiff would have made sale of the machines sold by defendant but for its violation of the contract.</p>

<p>Action to Quiet Title—Prívate Lots Projecting into ' Street— Street Improvement—Cross-complaint to Foreclose Lien—Finding—Error in Assessment.—In an action against street contractors to quiet title to private lots projecting ten feet into a street, and where defendants sought by cross-complaint to foreclose a street assessment thereon, in which the court found that the city had no right to such strip as part of the street, where it cannot be said ihe resolution of intention to improve the street passing said lot intended to exercise jurisdiction over private property, it follows that the contractors had no authority to construct a sidewalk across such strip, and that the superintendent of streets should not have accepted the work as completed, since the sidewalk was not constructed on and in front of said lots, and that he erred in so doing, and also in including the cost of constructing the sidewalk crossing the same in the assessment. j</p> <p>3b.—Error in Assessment not Avoiding Lien.—None of the acts of the contractors or of the superintendent of streets, nor any errors on Ms part in accepting the work as complete, and including improper cost of work in the assessment, can render the assessment and lien thereof void.</p> <p>3b.—Remedy by Appeal to City Council.—Under section 11 of the street improvement act, the determination and acts of the street superintendent in relation to such errors is made the subject of an appeal to the city council by the owners or parties interested, upon the hearing of wMch the city council may confirm, amend, set aside, alter or correct the assessment in such manner as shall seem just, and may instruct the street superintendent to correct the warrant, assessment and diagram to conform to its decision.</p> <p>Id.—Failure op Plaintiff to Appeal to Council—Presumption—Order Foreclosing Lien Affirmed.—Where the plaintiff, in the action to quiet title against the contractors, failed to appeal from the determination of the superintendent of streets, as to the completion of the work and from the erroneous levy of the assessment, it must be presumed that if he had done so the city council would have ordered the errors corrected; and the order of the court foreclosing -[he lien asserted by the contractors in their cross-complaint must be affirmed.</p>

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

<p>Criminal Law—Burning “Stacks” of Hat—Construction of Penal Code—Scattered “Cocks” of Hay Excluded.—Under .section 600 of the Penal Code making it a felony willfully and maliciously to burn “any stack of hay” of the value of $25 or over, the willful and malicious burning of scattered “cocks of hay,” not gathered into any “stacks,” though of the value of $25 or over, however it may be punished, is excluded from being considered as a felony under the terms of that section.</p> <p>Id.—Distinction Between a “Stack” and “Cock” or “Shock” op Hay. There is a marked and well understood distinction between a “stack” and a “cock” or “shock” of hay. Customarily, shortly after hay is mowed or cut, it is raked into small piles or cocks, and is thus allowed to remain until it becomes thoroughly dry or “seasoned,” after which it is generally picked up and put into large piles called “stacks.”</p> <p>Id.—Construction op Penal Statute—Description op Property— General Bule.—As a. general rule, where any particular article of property is mentioned in a penal statute as the subject of an offense, only such property as is usually " designated by such terms can be regarded as having been intended by the legislature to be embraced in its provisions.</p> <p>Id.—Charge op Burning “Stacks” op Hay—Variance—Proop op Burning “Cooks” op Hay—Misdemeanor.—Under an information charging the defendant with a felony by willfully and maliciously burning “stacks” of hay of the value of $25, in violation of section 600 of the Penal Code, and the proof shows only the burning of “cocks” or “shocks” of hay, the variance in the proof is fatal, and shows only a misdemeanor committed under section 594 of that code.</p> <p>Id.—Inapplicable and Misleading Instruction—Abstract Correctness—Size op “Stacks.”—Where the evidence shows no “stack” of hay but only the burning of “cocks” or “shocks,” of the value of no more than one dollar each, an abstractly correct instruction, inapplicable to the facts that if the jury “find from the evidence beyond a reasonable doubt that the defendant did attempt to burn certain stacks of hay of the value of $25, then you will find the defendant guilty regardless of the size of the individual stacks of hay, no matter whether they were large or small,” was plainly calculated to mislead the jury.</p> <p>Id.—Instruction Erroneously Bepused.—The refusal of the court to instruct the jury, as requested by the defendant, as to the proper distinction between “stacks” and “cocks” of hay was prejudicially erroneous.</p> <p>Id.—Duty op Court Under Proops.—Under the proofs, the court should have advised the jury to acquit the defendant.</p>

<p>Action to Reform and Specifically Enforce Contract to Convey Land—Insufficient Complaint—Demurrer Improperly Overruled.—In an action in equity to reform and specifically enforce an alleged contract to convey land, where the complaint wholly omits to aver or show or to attempt to show that the consideration for which the defendant offered to sell the property involved in the contract is adequate or commensurate with the value of the property or that the contract is, as to the defendant, fair and just, as required by section 3391 of the Civil Code, it is insufficient as against a general demurrer, and a demurrer thereto was improperly overruled.'</p> <p>Id.—Settled Rule of Equity—Facts Stated must Show Adequacy, Fairness and Justice.—It is a settled rule in equity that facts showing adequacy of consideration and, as to the party against whom the specific performance is sought, the justness and reasonableness of the contract, must not only be proved but must be also stated. This rule does not contemplate mere averments in baeo verba that the contract is supported by an adequate consideration, and is as to the defendant fair and just; but the conscience of the chancellor must be satisfied on these points by a proper Statement of the facts.</p>

<p>Mechanics’ Liens—Invalid Contract—Failure to Deserve Twenty-five Per Cent After Completion.—Where a building contract fails to reserve twenty-five per cent of the contract price after the completion of the building, as required by section 1184 of the Code of Civil Procedure, and reserves only twenty per cent thereof, the contract is invalid as against the claimants of mechanics’ liens, who are entitled to enforce their liens as if there were no contract, and their work had been done or materials furnished at the special instance and request of the owner of the building.</p> <p>Id.—Constitutional Origin of Mechanics’ Liens—Legislature Dequired to Protect and Enforce Liens.—Mechanics’ liens, under the constitution of 1879, have a constitutional origin, and the legislature is required to provide for the speedy and efficient enforcement of such liens. The provisions which it has made for a fund of twenty-five per cent of the contract price for their enforcement cannot be depleted or reduced to the injury of any lien claimant without an infringement of constitutional right.</p> <p>Id.—Proof of Actual Detention of Twenty-five Per Cent Inadmissible.—The request of the owners to be permitted to show that they actually retained twenty-five per cent of the contract pricej though the terms of the contract did not provide therefor, was properly denied. An unrevealed intention to retain that amount, or the actual intention to retain the same, is not a compliance with section 1184 of the Code of Civil Procedure, which requires that, by the terms of the contract, twenty-live per cent of the whole contract price shall be made payable as therein provided. Evidence of the retention of the full amount, without such a provision in the contract, was, therefore, immaterial.</p> <p>Id.—Purpose of Verification to Notice of Lien.—The purpose of the verification to the notice of a claim of lien is not to prove the lien when it is sought to enforce it in the courts; but the claim filed with the recorder, which is required to be verified, is but a notice by the claimant that he intends to avail himself of his right to a lien in the particular case. The verification of the claim by his own oath, or that of some other person, is required as evidence of good faith, and a prima facie support to his claim for the purpose of giving such notice only.</p> <p>Id.—Purpose of Proof of Recorded Claim—Establishment of Required Notice.—The purpose of proof of the original recorded claim of liens is not to prove its contents, but to establish that notice has been given as required by law. It is entitled to admission when it is shown that it complies with the statutory requirements.</p> <p>Id.—Public Record—Admissibility.—If the signature and verification were sufficient to entitle it to be filed with the recorder, and it was so filed, it became a public record, and thereafter became entitled to be received in evidence, under the rules governing the admission of private writings which may become public records by recording under the statute.</p> <p>Id.—Objection That “No Foundation was Laid.”—-The objection that “no foundation was laid ” for the admission of an original claim of lien, which bears the certificate of record, might cover the absence of evidence in the record that the lien was recorded.</p> <p>Id.-—Specification of Particulars Required.—When an objection is made that sufficient foundation has not been laid for the introduction of a writing or other evidence, the particulars wherein the foundation is insufficient must be specified.</p> <p>Id.—Insufficient Objection—Absence of Proof of Signature or Verification.—An objection that "no evidence other than the lien itself was offered or introduced as to the signatures of the parties or verification thereof” was properly overruled. No proof of the gen-» uineness of the signatures to either the claim or the verification is a necessary preliminary to the admission in evidence of a lien properly verified and filed for record.</p> <p>Id.—Proof of Contract and Furnishing of Materials—Absence of Objection.—In the absence of any objection, the statement in the claim of lien may be accepted as proof-of the person to whom the materials were furnished and the value of the materials furnished or labor done under the agreement with him.</p>

<p>Criminal Law—Rape—Sexual Intercourse With Young Girl—Proof of Venue.—On the trial of a prosecution for rape by defendant in having sexual intercourse with a female under the age of consent not his wife, it is held that, notwithstanding defendant’s contention upon appeal that the venue was not proved, the proof was direct and satisfactory as to the county in which the crime was perpetrated.</p> <p>Id.—Evidence—Equivocal Statement of Defendant—Connection With Other Evidence—Question for Jury.—Evidence of a conversation with defendant in which he spoke of two sisters, and said he “had one of them down on the bed the other night, and had felt of her, that she first fought, and finally gave way to him, and he could have had sexual intercourse with her if he had wanted to,” was admissible, though he did not mention her name. Though he might have referred to either sister, yet such testimony was for the jury, and, taken in connection with the other evidence, the jury were justified in concluding that he referred to lewd conduct with’ the prosecutrix.</p> <p>Id.—Question as to Conduct With Gibl Thirteen Years Old—Absence of Misconduct of District Attorney.—The district attorney was not guilty of misconduct by inquiry as to conduct of defendant with a girl thirteen years old, where the question was ruled out as not referring directly to the plaintiff, where he explained to the court that defendant made such remark without stating the name or when it occurred. It must be assumed that the district attorney acted in good faith, and believed that the evidence was relevant and referred to the prosecutrix.</p> <p>Id.—Disallowing View of Premises—Discretion of Court—Premises Fully Described—Photographs and Drawings.—The court did not abuse its discretion in disallowing an inspection of the premises where the crime was committed, where the premises were fully described to the jury by the witness, and photographs and drawings of them were received in evidence.</p> <p>Id.—Request as to Conviction on Uncorroborated Testimony of Prosecutrix Properly Refused—Corroboration—Caution.—The court did not err in disallowing an argumentative instruction requested by the defendant as to a conviction on the uncorroborated testimony of the prosecutrix, where there was some evidence of corroboration, and where 'the caution it required of the jury was sufficiently covered by the instructions given.</p> <p>Id.—Request as to Failure of Prosecutrix to Make “Prompt and Seasonable” Complaint of Crime—Invasion of Province of Jury. The court properly refused a request as to the failure of the prosecutrix to make a “prompt and seasonable complaint” of the crime as involving an invasion of the province of the jury.</p> <p>Id.—Request as to “Policy of Law” as to Innocent Persons.—The court properly refused a requested instruction as to the “policy of the law” as to innocent persons. The court is required to state to the jury the law, and not the reasons for its enactment or the nature of the public opinion which sanctions it.</p> <p>Id.—Request as to Duty of Each Individual Juror.—It was not necessary to give a request as to the duty of each individual juror to be convinced of the guilt of the defendant, as that was clearly implied in the several instructions given by the court as to the duty of the jury.</p> <p>Id.—Law Covered by Charge.—It may be said that every needful instruction was given to the jury to enable them to consider and determine intelligently the facts bearing upon the question of the guilt or innocence of the accused.</p> <p>Id.—Support op Verdict.—It is held that the defendant was fairly tried, and that the evidence supports the verdict.</p>

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

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

<p>Corporation—Indorsement op Note to Bank by General Manager and Secretary—Seal and Resolution not Essential.—The possession by a bank of a note indorsed to it for value before maturity by a corporation payee, signed by its vice-president and secretary, together with uncontradicted evidence that the vice-president was its general manager, with full control of its business, and that it was the custom of the corporation to sell its notes to banks, was sufficient to show that the indorsement to the bank was in the usual course of business; and from these facts the necessary authority to indorse the note will be inferred, notwithstanding the absence of the seal of the corporation and the failure to prove a formal resolution of the directors confirming it.</p> <p>Id.—Presumption op Right Action by Corporation.—Under the operation of the presumption of right action in dealing with negotiable securities, an assignment by a corporation of a note held by it is presumed to be valid until the contrary appears, and the force of the presumption in favor of its general power to assign such instruments is that its officers exercised the power rightly in the particular instance, or in the ordinary course of its business. In the absence of any evidence to the contrary, the holder of the note of a corporation, under its indorsement by its officers, will be presumed to be the owner thereof.</p> <p>Id.—Prima Facie Title not Rebuttable by Makers.—The general rule appears to be that, in the absence of mala fides, the plaintiff’s prima facie title to the indorsed note of a corporation, by reason of possession, is not subject to rebuttal in an action against the makers, so long as they are protected from further claim by payment of the judgment recovered against them.</p> <p>Id.—Foreclosure op Pledged Stock—Interest op Bank by Indorsement—Agency or Trust op Payee—Support op Finding.—In an action by a collector for the bank to foreclose stock pledged by the makers of the note to the payee, and to obtain judgment for the residue, in which the findings and judgment were for the plaintiff,, ■it is immaterial whether there is.any evidence to sustain a finding shat the stock pledged was transferred to the bank, as none was leeessary, since the indorsement and transfer of the note by the payee carried the collateral security with it. The right thereto existed in the indorsee, independent of actual delivery thereof, by virtue of being the holder of the note. If the payee, after selling the note, should continue to hold the collateral, he would hold it as agent or trustee for his assignee.</p> <p>Id.—Harmless Finding.—If it be conceded that the transfer of the note was not sufficient evidence of the transfer of the collateral, nevertheless the finding of transfer thereof to the bank, if unsupported by the evidence, is harmless to the makers appealing.</p> <p>Id.—Counterclaim Against Payee—Insufficient Defense—Notice of Facts not Shown—Evidence Properly Excluded.—Where the answer set up a counterclaim against the payee of the note, alleging that it was given in settlement of an account, and that the amount thereof was, by mistake and inadvertence, $2,700 in excess of the amount due, but failed to allege that the bank which paid the full face of the note before maturity had any notice of such fact, or that plaintiff took with any knowledge thereof, the court properly refused to allow proof thereof as a defense to the action.</p> <p>Id.—General Bule as to Want or Failure of Consideration—Special Pleading—Notice to Assignee.—The general rule is that absence or failure of consideration is available as a defense to an action by an assignee of a note only by specially pleading it, and showing by additional allegations that the assignee is a holder with notice of the facts.</p> <p>id.—Partial Failure of Consideration—Insufficient Pleading—Notice to Bank not Averred—Inadmissible Evidence.—In the absence of an allegation that the bank had notice of the facts set up in the pleading at the time when the note was transferred to it, a counterclaim based upon a partial failure of consideration constitutes no defense to the action, and evidence was inadmissible in support thereof.</p> <p>Id.—Amendment of Complaint to Conform to Proofs—Discretion.— After the evidence was closed, the court had discretion to permit an amendment to the complaint to conform to the proofs introduced upon the trial, without notice to the defendants, it being stipulated' that the allegations of the amendment should be deemed denied. The subject matter of the amendment having been proved at the trial, it would have been idle to have required notice thereof to defendant ; and the discretion in allowing it was not abused, especially where it clearly appears that in no event could the rights of defendants be prejudiced by the ruling.</p>

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

<p>Order Granting New Trial—Grounds op Motion—General Order— Review upon Appeal.—Where the notice of motion for a new trial r specified as the grounds of the motion insufficiency of the evidence to justify the verdict, that the verdict is against law, and errors of law occurring at the trial and excepted to by the defendant, and the order granting the new trial was genera], if the cofirt could reasonably, in the exercise of a sound discretion, have granted the motion on any one of the grounds assigned, the order granting the new trial will not be disturbed upon appeal.</p> <p>Id.—Specifications of Insufficiency of Evidence.—Though specifications of insufficiency of the evidence should preferably be in the negative form, yet the substance of the specifications is to be considered rather than the form; and it is sufficient that it is readily ascertainable from the specification wherein the moving party claims that the evidence is insufficient to justify the verdict; and this is all that should be required in a bill of exceptions or statement on motion for a new trial, where the insufficiency of the evidence to justify the verdict is one of the grounds of the motion.</p> <p>Id.—Complaint upon Quantum Meruit — Proop of Express Contract—Nonsuit Denied—Excessive Recovery.—Where the complaint was based upon a quantum, meruit, and the proof disclosed that the services were based solely upon an express contract, and . not only was a nonsuit denied for the variance, but the verdict was at the rate of five dollars a day on the implied contract, while the express contract was limited to three dollars per day, the court might properly grant a new trial for insufficiency of the evidence to justify the verdict.</p> <p>Id.—Recovery Limited to Cause of Action Pleaded.—The plaintiff must recover, if at all, upon the cause of action set out in his complaint, and not upon some other which may be developed in the proof.</p> <p>Id.—Variance Clearly Shown.—That there was a variance between the implied contract declared upon and the express contract proved, there is no ground for possible doubt.</p> <p>Id.—Question as to Nonsuit Undetermined.—Whether, in view of the fact that there was evidence in the record from which the conclusion might reasonably follow that the alleged services were reasonably worth the sum of three dollars per day, the variance might be held to be fatal or of such vital importance as to have entitled the defendant to a favorable ruling on the motion for a nonsuit, need not be determined.</p> <p>Id.—Pact of Variance to be Considered With Other Testimony— Ground for New Trial.—The fact of the variance, however, whether sufficient to have warranted the granting of the motion for nonsuit or not, when considered with other testimony, possesses some importance in determining whether the court abused its discretion in its order granting a new trial upon the ground of insufficiency of the evidence to justify the verdict, and presumably from the record that was one of the grounds, if not the principal ground, upon which the new trial was granted.</p> <p>Id.—Questions Reflecting upon Right of Recovery.—In connection with other questions reflecting upon plaintiff’s right of recovery, it is further asked, if plaintiff was employed under an' express contract, why did he present a claim to the executor based on an implied contract for greater compensation than that agreed' upon and plead the latter in his action against the estate? It is held that all of the questions suggested would naturally present themselves to the trial judge in the consideration and decision of the motion 'for a new trial.</p> <p>Id.—Evidence Justifying New Trial.—It is held that, in any event, the evidence appearing in the record is such that this court cannot say that the trial court abused its discretion in granting a new trial.</p> <p>Id.—Discretion of Trial Court as to New Trial Order—Insufficiency of Evidence—Conflict.—The granting or denial of a new trial on the ground of insufficiency of the evidence to justify the order, where there is a substantial conflict in the evidence, rests so largely in the discretion of the trial court that its action is conclusive upon the appellant, unless it appears that there has been an abuse of discretion.</p> <p>Id.—Duty of Trial Court.-—When the evidence is conflicting, the trial • court is authorized to review it, and if, in its opinion, the verdict is against the weight of the evidence, it is its duty to grant a new trial.</p>

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

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

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

<p>Appeal from New Trial Order—“Statement of Case”—“Bill of Exceptions”—Specifications—Review.—Where the notice of motion for a new trial specified that it would be made upon a “statement of the ease,” and the trial judge designated it in his settlement as a “bill of exceptions,” it may be treated either as a statement or a bill of exceptions, and it is sufficient that, in either case, the specifications of the errors occurring at the trial and excepted to, for which a reversal of the order denying the new trial is asked, are sufficiently pointed out to have enabled the trial court properly to consider them, and to enable this court to review them without difficulty or inconvenience.</p> <p>Action for Goods Sold—Credits of Lumber—Sale of Lumber Business —■ Option — Executory Contract — Parol Evidence — Inadmissible Hearsay.—In an action for a balance of goods sold for supplies to defendant as a lumber manufacturer, whose lumber was delivered to plaintiff and credited on the account, in which it appears that subsequently defendant, in consideration of ten dollars paid by one Eoach, and further payments to be made by him, signed a unilateral contract to sell to him all of his timber and mill business, whether such contract was an option as testified by Eoach, or an executory contract of sale as claimed by defendant, and conceding that the contract was so ambiguous as to justify parol evidence to explain it, yet it was prejudicially erroneous to admit hearsay declarations of Eoach made after the execution of the contract, and not made in the presence of either party, that he had bought the timber and mill property and was the owner thereof.</p> <p>Id.—Supposition op Executory Contract—Operation op Mill.—If the transaction amounted to an executory contract of sale of the mill and timber on defendant’s land, with the right to operate the mill pending final sale, Eoach alone would be responsible for all supplies received while he operated the mill, and would b'e entitled to all credits for lumber delivered by him to plaintiff during such operation.</p> <p>Id.—Supposition op Option—Agency tor Owner.—If the transaction was an option on the part of defendant to sell to Eoach, and the latter assumed control and management of the property for defendant, then, -in the absence of any other agreement to the contrary, defendant continued to be responsible for all supplies furnished to the mill, necessary for its operation, and was entitled to credits of all timber delivered to plaintiff by Eoach during the period in which he operated the mill as agent for defendant.</p> <p>Id.—Declarations by One not a Party Admissible Only tor Impeachment.—Declarations made by Eoach, who was not a party to the action, and not made in the presence of either party, after the consummation of the transaction, that he had bought the mill and lumber business, constituted the plainest kind of hearsay testimony, and could prove admissible, under no conceivable theory, except, after proper foundation laid, for the purpose of impeaching Eoach as a witness. Proof of such declarations could not constitute affirmative or independent evidence contradictory to the testimony of Eoach.</p> <p>Id.—Declarations not Part op Bes Gestae.—The declarations were not admissible as part of the res gestae, after the execution of the contract, whether it be regarded as an option upon consideration conferring a right, or an executory contract of purchase and sale. The fact that a final transfer of the property had not taken place when the declarations were made would not extend the agreement to sell and buy, so as to make the declarations admissible as part of the res gestae.</p> <p>Id.—General Bule as to Ees Gestae.—Where the intention of the parties to a written contract is rendered obscure by the ambiguity of the language in which its terms are expressed, evidence of the declarations of the parties to the contract, or either of them, made contemporaneously with the negotiation and executions of the agreement, if explanatory of the purpose and intent of the same, would be admissible as part of the transaction, or res gestae.</p> <p>Id.—Narrative of Past Event not Binding—Hearsay.—Declarations made by one of the parties to the contract, not made in the presence of either of the parties to the action, but made after the transaction evidenced by the contract had been fully completed, are a mere narrative of a past event, and would constitute mere hearsay testimony, which would be inadmissible in an action between other parties; and by no known rule of law are declarations thus made binding upon a stranger to the transaction.</p> <p>Id.—Narrative Declarations not Admissible Under Code Provisions.'—Such narrative declarations of one not a party to the action are not admissible, as “prima facie evidence," within section 1851 of the Code of Civil Procedure, or as “part of an act, declaration, conversation or writing which had been given in evidence,” within section 1854 thereof, nor as a declaration “against interest," within the purview of any section of that code.</p> <p>Id.—Instrument Prima Facie a Mere Option—Prejudicial Character of Declarations Beyond Doubt.—The instrument which is the main subject of this controversy, is held to appear from its language to be nothing more than a mere option, involving only the bestowal of the right to accept or reject within a certain time the offer therein contained to buy the property mentioned at the price named, and that it could not appear otherwise without parol evidence. The court recognized this necessity to overcome the legal effect of the transaction as shown by the writing; and was, beyond doubt, prejudicially influenced to a great extent by the improperly admitted declarations made by the holder of the option, not a party to the action, after the transaction was consummated, in construing its language as an executory contract of sale, instead of an option.</p> <p>Id.—Improperly Admitted Evidence Prejudicial.—Even if some of the language in the instrument would lend color to the construction given by the trial court, the improperly admitted evidence of such declarations must nevertheless be held prejudicial. If improper evidence has been admitted, it is sufficient to require a reversal that it may have turned the scale and lost the case to appellants. This must of necessity be the rule wherever evidence has been admitted which tends in any degree to affect the final conclusion 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. George R. Davis, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Specific Performance—Contract of Sale—Real Action—Service of Summons by Publication—Jurisdiction.—An action to enforce specific performance of a contract for the sale of real property is one to determine a right or interest in real property, within section 412 of the Code of Civil Procedure, and the service of summons therein may be made by publication thereof, and such service is sufficient to give the court jurisdiction of the action.</p> <p>Id.—Motion to Vacate Order of Publication—Proper Denial.—The court did not err in denying a motion of the defendant to vacate the order for publication of the summons in such action.</p> <p>Id.—Evidence—Memorandum of Contract—Assignment—Failure to Rule on Objections—Extent of Prejudice—Proper Evidence— Findings.—The extent to which defendant was prejudiced by the failure of the court to rule upon his objections to the admission in evidence of the memorandum of the contract of sale, and the assignment of it to plaintiff, is measured by the injury which would result from their improper admission. It is a sufficient answer to such failure that they were properly admitted, and that the findings are conclusive that they were received and considered in evidence.</p> <p>Id.—Memorandum a Sufficient Contract—Signature by Party to be Charged—Mutuality—Tender and Suit.-—The memorandum was a sufficient contract on which to base the action. It named both parties, fixed the terms of sale, and was signed by the party to be charged. Mutuality attached by the tender and subsequent suit.</p> <p>Ib.—Certainty of Contract—Mode of Securing Deferred Payments —Vendor’s Lien.—The contract was not rendered uncertain from failure to specify a method of securing deferred payments. In the absence of specific agreement by which deferred payments and the interest thereon are to be secured in the sale of real property, the law fixes the security through a vendor’s lien.</p> <p>Id.—Time for Deed—Last Payment to be Made or Tendered.—The law fixes the time for a deed in a contract for payment of the purchase money in installments, with interest on deferred payments when the last payment is made or tendered.</p> <p>Id.—Contract Assignable by Purchaser.—The interest of the purchaser named in the contract of sale is assignable, and the assignment passes all of the interest of the purchaser to the assignee.</p> <p>Id.—Purchase by Partnership in Firm Name—Estoppel of Vendor.—Where, the defendant, as vendor, dealt with a partnership doing business by the firm name of the “Southern California Eealty Co.,” consisting of two partners, one of whom witnessed his signature to the contract, the defendant is not in a position to question the authority of the partnership to enter into the original contract sought to he specifically enforced.</p> <p>Id.—Beal Estate Firm—Assets Deemed Personal—Agency op One Party to Assign in Pirm Name.—The partnership being for the purpose of dealing in real estate, as between the partners, in the settlement of their equities, the assets of the firm must be regarded as personal property; and the agency of one of the partners is a sufficient authority to execute an assignment of the contract in the firm name.</p> <p>Id.—Tender op Pinal Payment—Demand por Deed—Demand por Possession not Bequisite.—Where the final tender was made, no demand for possession was requisite. The demand for a deed, if complied with, would confer a right of possession without demand.</p> <p>Id.—Agreement not Withdrawn by Vendor—Detention op Money Paid.—No withdrawal from the agreement by the vendor based upon a tender of the money received thereunder is made to appear. One cannot be said to have withdrawn from an agreement by simply expressing a desire or intention to do so, while he retains the consideration paid him on account of its execution.</p> <p>Id.—Laches not Imputable to Plaintipp.—Laches cannot be imputed to plaintiff in bringing the action because of a delay of a little over . three months after the cause of action arose before suit was brought, especially in view of the fact there is nothing in the record indicating any fluctuations in value between those dates.</p>

<p>Action for Accounting and Dissolution of Partnership — Appointment of Receiver—Discretion—Review upon Appeal.—The power to appoint a receiver in an action for an accounting and dissolution of an alleged partnership is one of sound judicial discretion; and unless it can be said that there appears from the record here-a clear abuse of such discretion in the action of the court below in making the order appealed from, the same must stand.</p> <p>Id.—Equitable Relief by Receiver When Invoked.—Equitable relief by way of the appointment of a receiver will be invoked only when the exigencies of the case clearly appear to absolutely require it for the conservation of the rights of all the parties concerned in the litigation giving rise to the application for such relief.</p> <p>Id.—Extraordinary Remedy—Showing Required for Appointment.— The appointment of a receiver is justly regarded as an extraordinary or harsh remedy; and a court of equity will never exercise its discretion favorably to a motion invoking the aid of this remedy, except upon a clear showing that such relief is necessary in order to preserve and fully protect the rights of all parties.</p> <p>Id.—Probable Right in Property—Danger of Loss.—It must be made to appear that the person seeking the appointment of a receiver has at least a probable right or interest in the property or fund involved in the litigation, and that there is danger of its being lost or destroyed or misappropriated, unless a receiver be appointed pendente lite.</p> <p>Id.—Finding upon Conflicting Testimony—Abuse of Discretion not Shown.—Where, upon conflicting testimony, the right or interest and the danger of the destruction or misappropriation of the property or fund is found to exist, a reviewing court, as a general rule, is in no position to say that the nisi prim court has abused its discretion in the appointment of a receiver.</p> <p>Id.—Formation of Partnership Prior to Incorporation — Partnership Business not Transferred to Corporation—Receiver not Disturbed.—Though the parties forming a partnership contemplated the formation of ta corporation which was in fact formed, but it appears that the partnership business never was transferred to the corporation, it does not affirmatively appear, on account of the mere formation of such corporation, that the court abused its discretion in the appointment of a receiver of the partnership business. It is sufficient that there is some showing that it was the original intention and agreement of the parties to form a partnership, and that they actually formed and carried on the business through that instrumentality, and that the showing is of such a character as to make it impossible for this court to reverse the order appealed from without an unwarranted interference with the discretion vested in the trial court.</p> <p>Id.—Lease Taken in Name of Partnership—Valuable Asset.—Where a lease was taken in the name of the. partnership for the purpose of carrying on its business, such lease is a valuable asset of the business.</p> <p>Id.—Partners not Putting Money into Business—Evidentiary Fact —Finding.—The fact that plaintiffs, as members of the partnership, did not put money into the business, does not change the situation as to the fact of partnership. It is a mere evidentiary consideration which cannot overthrow the finding as to the existence of the partnership.</p> <p>Id.—Joint Ownership of Property in Partnership not Essential to Partnership.—To constitute a partnership it is not essential that there should be property forming the capital jointly owned by the partners; nor does it follow that because one partner may not put up his share of the capital under an agreement to form a partnership, the combination so formed is any less a partnership.</p> <p>Id.—Partnership Agreement—Equal Shares in Profits—Share in Losses Implied.—Where the express agreement was that the partners should at all times share equally in the profits of the business, it is implied, in the absence of a stipulation to the contrary, that they should also share equally the burden of its losses.</p> <p>Id.—Transfer of Stock in Corporation—Unequal Shares—Partnership Assets not Inuring to Corporation.—Where it appears that no part of the business or assets of the corporation was in fact transferred to the corporation, it cannot be claimed that the partnership assets inured equitably to the corporation, where the stock was not equally distributed pursuant to the partnership agreement, but defendant, in violation thereof, demanded and had issued to himself more than one-half of the capital stock, instead of one-third thereof, under the partnership agreement for equal shares.</p> <p>Id.—Transfer of Stock not Conveying Partnership Property.—The transfer of stock by one of the partners to another cannot make the former any the less a partner in the property and business which were not transferred to the corporation, and could not inure to its. benefit on account of unequal shares issued therein.</p>

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

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

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

<p>Writ of Prohibition — Petition Under Juvenile Court Law — Preliminary Examination—Premature Order — Surplusage — Question of Jurisdiction.—Where a petition for a writ of prohibition to restrain a ’judge of the superior court from proceeding with a threatened preliminary examination of the petitioner charged with the violation of section 26 of the juvenile court law of 1909 [Stats. 1909, p. 213], shows that the judge indorsed an order of commitment on an affidavit of complaint, sworn to before a deputy county clerk, before any preliminary examination, it is evident that the order so indorsed was premature and without authority, and may be disregarded in determining the alleged want of jurisdiction of the judge to proceed with the preliminary examination as a committing ■ magistrate.</p> <p>Id.—Exclusive Jurisdiction of Misdemeanors Under Los Angeles Charter — Jurisdiction Under Juvenile Court Law.—Although the Los Angeles charter confers exclusive jurisdiction of all misdemeanors committed within the city upon the police court and the city justice’s court, yet such exclusive jurisdiction was divested as to all misdemeanors committed under the general juvenile court law, which is applicable to the superior court of Los Angeles county and all the superior courts in the state. It is immaterial, for the purposes of this decision, whether the jurisdiction of the superior court of Los Angeles county is exclusive or only concurrent as to misdemeanors under that law committed in the city of Los Angeles.</p> <p>Id.—Juvenile Court Law Constitutional.—The juvenile act violates no provision of the constitution. It is not a special act, affecting the punishment of offenses or the practice of courts of justice, but is a general law applicable to every county in the state, and to every superior court therein. While the constitution confers jurisdiction upon the superior court of all misdemeanors not otherwise provided by law, yet we have here a case where such jurisdiction is expressly conferred by a general law.</p> <p>Id.—Preliminary Examination Required for Information for Misdemeanor Under Juvenile Act.—The juvenile act making the offense charged a misdemeanor triable in the superior court, the provisions of the Penal Code applicable to information, and to a preliminary examination and commitment therefor, are conditions precedent to an information upon which only can the superior court proceed thereby to try one charged with a public offense, even though it be a misdemeanor of which it has jurisdiction.</p> <p>Id.—Duty of Judge Sitting as Magistrate as to Oaths.—Although the complaint which institutes a criminal proceeding need not be verified, yet if properly verified, and containing positive evidence of facts tending to show guilt, it may be treated by the magistrate as a deposition; yet a superior judge sitting as a magistrate must administer all oaths as such, and has no right to call in a clerk or any other officer to administer oaths. He sits as a creature of the statute, with such powers only as are conferred upon justices of the peace or police judges.</p> <p>Id.—Complaint Verified Before Deputy Clerk Ineffective.—A complaint verified before a deputy county clerk is ineffective, either as a deposition upon a preliminary hearing, or as a deposition authorizing the issue of the warrant of arrest.</p> <p>Id.—Arrest in Pact—Illegal Restraint not Involved in Prohibition Against Preliminary Examination. — When the arrest has been actually made, and the petitioner for the writ of prohibition is before the judge for preliminary examination, no question of illegal restraint is involved in his petition, and the only question to be determined is whether the judge conducting such examination can. be prohibited therefrom.</p> <p>Id.—Authority of Judge of Superior Court as Magistrate.—When the prisoner arrested is before the judge of a court having jurisdiction as a magistrate to hold a preliminary examination, he may proceed to hold the same, and if a commitment issue, a foundation is laid for an information which cannot be set aside because the depositions were insufficient to warrant the arrest.</p> <p>Id.—Insufficient Petition fob Prohibition.—Held, that the petition presents no facts sufficient to authorize this court to prohibit the preliminary examination of the defendant before the judge of the superior court sitting as a magistrate under the juvenile act.</p>

<p>APPLICATION for writ of habeas corpus.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Criminal Law—Arson—Support op Verdict.—It is held that the evidence is sufficient to sustain the verdict of conviction of the defendant of the crime of arson in the first degree as charged in the information.</p> <p>Id.—General Bule as to Beview op Verdict—Questions op Law and op Fact.-—In criminal cases, generally, this court can pass only upon, questions of law, and it is only when there is an entire lack of evidence to support the verdict that a question of law is presented. If the evidence bearing against the defendant, considered by itself, without regard to conflicting evidence, tends to support the verdict, the question ceases to be one of law, of which this court alone has jurisdiction, and becomes one of fact upon which the decision of the-jury and of the trial court is final and conclusive.</p> <p>Ed.—Corpus Delicti—Burning Insufficient—Admission of Defendant—Proof of Distinct Fires—Accident Rebutted.—-The mere-proof of the burning of a building does not establish the corpus delicti of arson; and the admissions and statements of the defendant are not sufficient, of themselves, to justify a conviction without proof of the corpus delicti. But where the physical condition of the premises showed that three separate and distinct fires had been started, and- it further appeared to be improbable that the fire was the result of accident, the corpus delicti of arson was sufficiently-established.</p> <p>Id.—Order of Proof—Defendant’s Admissions—Discretion of Court. The order of proof is in the discretion of the court. Though most of the admissions of defendant were proved subsequent to the proof of the corpus delictiif any one or more of them were proved before that proof was made, that fact will not justify a reversal of the judgment.</p> <p>Id.—Expert Evidence Stricken Out — Subsequent Statement of Facts Properly Admitted.—Where the expert evidence of the fire marshal as to three distinct fires, admitted over an objection, was stricken out, the court did not err in permitting him to state the facts observed by him which showed such distinct fires.</p> <p>Id.—Evidence—Remark of Defendant to Police Officer Arresting Him—Untenable Objection—Degrading Character of Remark.— Where defendant was charged with burning part of a hospital from which he had been discharged, evidence of a remark made by him to the police officer arresting him speaking disparagingly of attaches of the hospital, and stating that he would get even with the hospital authorities, was not objectionable on the ground that it would tend to degrade him.</p> <p>Id.—Privileged Question Confined to Examination of Witness-—Remark to Officer not Privileged.—It is only when the answer to a question asked of a witness would tend to degrade him that the answer is privileged. But where, as here, no question was asked of defendant as a witness, but the proof was confined to a voluntary statement made by him to the police officer, such statement was not privileged on that ground.</p> <p>Id.—Remark of Prosecuting Attorney — “Character of Defendant Being Degraded.”—The remark of the prosecuting attorney where the evidence of the police officer was objected to as “tending to degrade the defendant,” that “the character of the defendant is being degraded as we go along, that is our object,” while it would better have been left unsaid, is of too trivial a nature to require a reversal. What he was probably understood to mean was that the defendant was being degraded by the evidence tending to prove him guilty of the crime charged.</p> <p>Id.—Examination op Witnesses by Court—Pertinent Questions— Absence op Leaning Against Dependant.—The fact that the court took a prominent part in the examination of the witnesses does not indicate any misconduct on his part, where his questions were not only pertinent, but showed no leaning against the defendant.</p> <p>Id.—Newly Discovered Evidence op Insanity When Crime was Committed—Discretion op Court.—Where the defendant moved for a new trial on newly discovered evidence that he was insane at the time of the commission of the act charged, it cannot be said that the court abused its discretion in the matter of refusing continuances to secure such proof, or in denying the motion for a new trial.</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 H. Dunne, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Protection District—Petition for Formation—Signatures of Property Owners—Presumption—Burden upon Petitioner for Writ of Review.—Upon a petition for a writ of review to annul a proceeding for the formation of a protection district under the act of March 27, 1895, for the improvement and rectification of the channels of innavigable streams, it must be presumed that, when the petition for the formation of the district was filed, the board of supervisors required and received evidence as to the genuineness of the signatures thereto, and that the signers were “property holders of the district”; and the burden is upon the petitioner for the writ of review to overcome the presumption that the supervisors performed their duty in that regard, and to overcome their finding to that effect, and to show that the board of supervisors had no jurisdiction to form the district; and that presumption and finding must prevail, in the absence of any evidence to the contrary.</p> <p>Id.—Order of Proceeding Under Statute.—To require proof as to the signatures of property owners before the board passes a resolution of intention to organize the district is the natural order of procedure contemplated by the statute; and no reason appears why such evidence should he repeated at the time of hearing of objections of the property owners, if any, to such work or improvement, where no issue as to the number of property owners signing the petition is raised at that time.</p> <p>Id.—Objections to Work or Improvement or Extent of District— Hearing by Board.—Under section 3 of the statute, “Any person interested objecting to such work or improvement, or to the extent of the district of lands to be affected or benefited by such work or improvement, and to be assessed to pay the costs and expenses thereof, may make written objections to the same within ten days after the expiration of the time of the publication of said notice,” and thereafter such objection shall be heard by said board.</p> <p>Id.—Objections by Petitioner for Writ of Review—Adverse Finding by Board.—Where the petitioner for the writ of review specified his objections to such improvement and to the extent of the district, on the ground that the work as contemplated would injure Ms lands, specifying in what respect, and that the formation of the district would burden the taxpayers, and evidence was heard as to the objections specified, and the finding was against the petitioner, the board was not required at that time to do anything more, assuming that its prior proceedings were regular.</p> <p>Id.—Proof of Publication of Notice—Adjudication by Board-Order Establishing District—Subsequent Piling of Affidavit Immaterial.—Where the record of the board of supervisors containing the order establishing the district shows that it was adjudicated that the notice was published as required by law, and its finding is not disputed, the subsequent filing of an affidavit of publication is of no consequence, as it is merely additional evidence which does not prove, nor tend to prove, that the board did not have sufficient and proper evidence before them as to the publication of notice when the order was made.</p> <p>Id.—Answer to Objection of Petitioner for Writ of Review.—It is held a sufficient answer to an objection to the proof of publication by the petitioner for the writ of review that the statute does not require the filing of an affidavit of publication before the order is made, although this would be the usual course, that the publication was actually made as required, that the hearing was had at the proper time, and that such petitioner had actual notice and was present with his objections at the appointed time, and was duly heard by the board before the order was made establishing the district.</p> <p>Id.—Power of Supervisors to Change Boundaries of District.—The supervisors have power to change the boundaries of the district to make them more definite and certain than in the petition and resolution of intention, or to conform them to the needs of the district.</p> <p>Id.—Protection District Act Constitutional—Power of Assessment not Delegated — Report of Commissioners — Hearing upon Notice.—The act for the formation of protection districts is constitutional and valid. The supervisors are not thereby deprived of the power to levy and fix the amount of the assessment on the lands within the district. That power is not improperly delegated to the commissioners appointed to view the land, make estimates and report their investigations to the board, which sets the same for hearing upon notice and determines the assessment, being limited only as to the proportion imposed upon the county.</p> <p>Id.—Double Taxation not Involved.—The act does not involve double taxation. The tax is for the public improvement within a certain district of especial benefit to the lands therein, but incidentally of benefit to the county at large. The land owners cannot complain that part of the tax is assessed to the county; and the general scheme involves the same principle as is found-in the reclamation and irrigation district legislation which has been upheld by the higher courts.</p> <p>Id.—De Pacto Corporation—Validity Only Assailable in Quo Warranto.—The rule that a de facto corporation cannot be questioned as to its validity by private individuals, but only in quo warranto at suit of the state, applies to a de facto protection district.</p> <p>Id.—Writ os Review not Sustainable.—It is held that the writ of review is not sustainable on the merits, whether the protection district was a corporation de jure or de facto, and that, in either case, the petition for the writ must be denied.</p>

<p>Criminal Law—incest With Sister—Sufficiency op Information— Absence op Demurrer.-—An information, to which no demurrer was filed, which charges the defendant with incest, and substantially follows the language of the statute, sufficiently avers that the prosecutrix was the sister of the defendant by stating that “The said John G-. Heivner . . . did willfully, unlawfully and upon the person of one Kate Curless, a sister of the defendant, etc.” It is clear that the defendant was thereby informed that Kate Curless was his sister; and it could not have been understood in any other way. Even if it were conceded that the allegation is deficient, it could be attacked only by special demurrer.</p> <p>Id.—Evidence—Voluntary Confession by Dependant to Officers.— The confession of the defendant made in the presence of the sheriff and district attorney was properly admitted in evidence as voluntary, where both of those officers testified that no inducement was offered or coercion used, and they both relate all that occurred at the time, and it appears from their testimony that only an inference can be drawn therefrom favorable to the ruling of the court admitting the confession in evidence.</p> <p>Id.—Admonition op Sheriff to “Tell the Truth.”—The admonition of the sheriff to the defendant to “tell the truth” is not sufficient to avoid the confession.</p> <p>Id.—Absence of “Artifice, Falsehood or Deception.”—There is no evidence that the sheriff or district attorney took any advantage of the defendant, or used any “artifice, falsehood or deception” to obtain from him any statement; but their conduct seems to have been altogether decorous, and not violative of any right of appellant.</p> <p>Id.—Correctness of Instructions.—It is held that the court committed no error in giving or refusing instructions; and that every principle of law applicable to the charge against the defendant and to the evidence, and necessary for the enlightenment of the jurors, is found in the instructions given by the trial judge.</p> <p>Ib.—Support op Verdict.—The positive testimony of the prosecutrix, and the confession of the defendant, together with some circumstantial evidence, afford ample support for the verdict.</p>

<p>Dentistry Act—Misdemeanor for Violation in City and County of San Francisco—Information—Jurisdiction of Superior Court. The superior court of the city and county of San Francisco has jurisdiction of an information for a misdemeanor for violation of the dentistry act as amended in 1909 [Stats. 1909, p. 800], by practicing dentistry without a license, which is punishable by a fine not exceeding $1,000, or by imprisonment in the county jail not more than one year.</p> <p>Id.—Constitutional Grant of Jurisdiction of Misdemeanors.—The constitution gives to the superior court jurisdiction of all eases of “misdemeanor not otherwise provided for.”</p> <p>Id.—Jurisdiction not Conferred upon Police Court by Freeholders’" Charter.-—By the freeholders’ charter of the city and county of San Francisco, which went into effect on the first Monday in January, 1900, the police court created and established thereunder, as a municipal affair, is vested only with jurisdiction of the violation of municipal ordinances, and over such misdemeanors as are vested in justices of the peace under the general law. But there is no general law conferring jurisdiction upon justices of the peace of misdemeanors punishable by a fine not exceeding $1,000, or by imprisonment in the county jail not more than one year.</p> <p>Id.—Bepeal of Former Police Court Acts by Freeholders’ Charter. Although the former police court of the city and county of San Francisco, created under the act of March 5, 1889, as amended and supplemented by the act of February 3, 1893, was vested with jurisdiction of misdemeanors such as are created by the dentistry act, yet those acts were repealed upon the adoption of the freeholders’ charter by the terms of sections 6 and 8 of article XI of the constitution, and by the adoption of a police court established thereunder as a municipal affair, by the terms of section 6, and by subdivision 1 of section 8% of article XI, adopted November 3, 1896.</p> <p>Id.—Abolition of Old Police Court—-New Court not Identical.— The police court established by the charter is not the same court referred to in the acts of 1882 and 1893, but is a new court created by a different authority. When the charter court was created, the police court created by those acts went out of existence with the repeal of the acts creating it.</p> <p>Id.—Bepeal of Legislation Inconsistent With Freeholders’ Charter.—No act of the legislature can stand which is inconsistent with a provision in a freeholders’ charter in regard to the same subject matter.</p> <p>Id.—Void Provision for Concurrent Jurisdiction.—The provision in the freeholders’ charter of the city and county of San Francisco, assuming to give the superior court concurrent jurisdiction with the police court of all misdemeanors, is void.</p> <p>Id.—Original Jurisdiction of Superior Court Over Dentistry Act.— There being no other court vested with jurisdiction of the misdemeanor created by the dentistry act, the superior court has original jurisdiction thereof.</p> <p>Id.—Instruction as to Burden of Proof upon Defendant.-—The court did not err in instructing the jury that the burden was upon the defendant to prove that he either had a license from the board of dental examiners of California, or that, at the time of the passage of the act regulating dentistry approved March 23, 1901, he had the lawful right to practice dentistry in the state of California.</p> <p>Id.—Instruction as to Statute Definition of “Practicing Dentistry.”—The court did not err in giving to the jury the exact lan- - guage used in the statute defining what is “practicing dentistry,” i viz.: “That any person shall be understood to be practicing dentistry who shall for a fee, salary or reward, paid directly or indirectly, either to himself or some other person, perform an operation of any kind upon the human jaws or teeth.”</p> <p>Id.—Power of Legislature to Define Dentistry.—The legislature had the power to define what is meant by the terms “practicing dentistry,” and thus to make clear what acts it intended to make unlawful.</p>

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

<p>APPEAL from an order of the Superior Court of Butte County refusing to strike out a cost bill. John C. Gray, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Estates of Deceased Persons—Distribution—Evidence—Declarations of Deceased Brother of Intestate—Relationship—Independent Proof not Required.—Whatever may be the rule in other jurisdictions, the rule is settled in this state that evidence of the declarations of a deceased brother of an intestate sister as to the relationship between them are admissible in favor of his daughter as petitioner for distribution of the estate of the deceased sister, without requiring any independent proof as to the relationship between the deceased brother and sister.</p> <p>Id.—Proof of Paternity of Claimant—Admitted Fact—Declarations of Member of Family.—The only proof of relationship required is that of the paternity of the declaring brother to the claimant of the estate of the deceased sister; and that fact being admitted, the declarations of the deceased brother are not those of a stranger, but of a member of the family.</p> <p>Id.—Appeal—Proof of Relationship—Sufficiency to Support Findings.—It is held, upon appeal by the state from the decree of distribution, upon which the findings were assailed, that the proof fully sustains them, that it is sufficient to identify Eliza Clark, the intestate, as the same one who was sister of the father of the petitioner for distribution, and that the relationship was fully established by the direct testimony of witnesses as well as by evidence of the declarations of members of the deceased brother’s family, and also by evidence of the admissions and declarations of Eliza Clark herself, constituting an acknowledgment on her part as to the relationship.</p>

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