Volume 14 — California Appellate Reports

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

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

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

<p>Action fob Services—Support op Finding—Nature op Employment.— la an action by an assignee of claims for labor performed for the defendant, where the cause was tried by the court, which found that there was no dispute as to the value of the services, and that defendant employed the laborers at an agreed price, and the sole point in dispute was as to the nature of the contract of employment, whether the men were employed directly by the defendant or were employed under a “force contract” by one Howe, who was to' furnish the men and pay them, leaving it to the company to pay Howe, who testified to the contrary, it is held that there is no such inherent improbability in Ms testimony as would justify its rejection, and require a reversal of the finding sustained by his evidence.</p> <p>Id.—Conflicting Evidence—Province of Trial Judge—Credibility of Witnesses.—The credibility of the witnesses, as well as the matter of reconciling a conflict in the testimony, was matter to be determined by the trial judge; and it is held that there is no warrant in the record for taking from him this responsibility.</p> <p>Id.—Understanding of Laborers—Benefit of Services—Employment by Defendant.—There was evidence that the laborers themselves understood that they were working for the company; and that the defendant received the benefit of their services under an agreement to pay to them the wages charged.</p>

<p>APPEAL from an order of the Superior Court of Tuolumne County granting an injunction to restrain the levy of a writ of attachment. G. W. Nicol, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

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

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

<p>Action on Note—Cross-complaint—Cancellation for Fraud—Surrender of Oil Stock—Support of Findings.—In an action on one of two notes executed in consideration of a transfer of stock in an oil company, of which the comaker was manager, in which the other maker defended the note and sought by cross-complaint to cancel the notes for fraud and misrepresentation in the procurement of the notes to the payee for a transfer of worthless stock from him, by agency of the manager whose false and fraudulent representations procured the notes, it is held that the findings that both notes were procured by the alleged fraud and misrepresentation were sufficiently sustained by the evidence, and that an attack upon its insufficiency is wholly devoid of merit.</p> <p>Id.—Inconsistencies in Testimony of Defendant Defrauded—Bule as to Discredit not Imperative.—The rule embodied in the maxim, “Falsus in uno, falsus in omnibus,” as applied to inconsistencies in the testimony of the defendant claiming to have been defrauded, is not imperative, and does not mean that the entire testimony of the witness must necessarily be disregarded or disbelieved, because there may be found falsehood in certain parts of his testimony, but it merely means that when the witness has sworn falsely in part, his entire testimony may for that reason be disregarded. But a jury or trial judge trying a ease has the right to believe and credit certain parts of the testimony of the witness, who has sworn falsely as to certain other material parts thereof.</p> <p>Id.—Presumption as to Action of Judge—Determination Conclusive upon Appeal.—It is to be presumed that the trial judge in the case at bar reconciled and accounted for to his own satisfaction any and all inconsistencies which might be made to appear in the testimony of the comaker defrauded, and from aught that appears in the record to the contrary, it may be that what seems to be contradictory statements in his testimony were not the result of a desire to make a false statement, but were due to a mistake or to a treacherous memory. But whatever may be the ground of the determination by the trial judge, his findings, so far as based upon the testimony of such witness, are conclusive upon this court.</p> <p>Id.—General Bule as to Fraud Based on Opinion—Qualified Bule-^ Opinion Based on Facts.—As a general rule, fraudulent. representations cannot be predicated upon a mere expression of opinion, however erroneous such opinion may be; but this rule is subject to-the qualification that an opinion based upon alleged facts known by the party stating them to be nonexistent will not be permitted to escape responsibility by the plea that he was merely declaring his opinion.</p> <p>Id.—Bule as to Executed Contracts—Opportunity to Investigate Fraud—Diligence Bequired.—Where one undertakes to secure, on the ground of misrepresentations and fraud, restoration of the consideration which supported an executed contract, he cannot prevail, if it be made to appear that he could, by the exercise of ordinary prudence or diligence, have detected the fraud, or have ascertained facts which would have disclosed that the representations were false and fraudulent.</p> <p>Id.-—-Absence of Means Accessible to Opposer of Note in Equity— Bight to Believe Bepresentations as to Unknown Facts.— Where it cannot be said that the defendant, seeking to be relieved in equity against the enforcement of a promissory note, had any accessible means of ascertaining whether the representations made by the manager of the oil company were false or true, owing to the situation of its lands and business in other counties, and to his having no experience in the oil business, such defendant had the right to rely upon the representations of the manager of the oil company, who had been engaged in the oil business for many years, as to facts which were not, and could not be, expected to be within such defendant’s own knowledge.</p> <p>Id.—Distinct Rule as to Defense in Equity to Executory Contract —Diligence not Required.—Where the plaintiff seeks to recover upon a promissory note as an executory contract, and the defendant appeals to the equity side of the court and declares that the plaintiff should not be permitted to enforce the contract because, as he charged, the same was procured by fraudulent representations, the rule as to executed contracts is inapplicable. A court of equity is a court of conscience, and will under no circumstances enforce or permit to be enforced the terms of a contract founded in fraud, even if there existed and were accessible to the defendant the means and opportunity to detect such fraud by the exercise of. ordinary prudence.</p> <p>Id.—Counterclaim—Support of Findings.—It is held that a finding in favor of the defendant against the plaintiff upon a counterclaim pleaded by defendant, in the sum of $5,000, is amply supported by the evidence.</p> <p>Id.—Testimony of Wife of Defrauded Party—Declarations of Manager of Corporation—Agency for Plaintiff.—The testimony of the wife of the defrauded defendant as to a conversation heard between the manager of the corporation and her husband would be admissible only upon the ground that his declarations made in her presence were made by him as agent for the plaintiff, whose oil stock was purchased by her husband upon false representations made by said manager, to induce the purchase of plaintiff’s stock.</p> <p>Id.—Declarations of Agent, When Binding Principal—Scope of Employment as Agent.-—-The declarations of a party can bind no one but himself, unless such declarations are made in his capacity as agent of another party and are within the scope of his powers or authority as such agent. A party dealing with an agent, who is acting within the scope and authority of his employment, is to be considered as dealing with the principal himself. In the case of a contract, if the agent, at the time of making the contract, makes any representation, declaration, or admission, whether true or false, touching the matter of the contract, it is treated as the representation, declaration or admission of the principal himself.</p> <p>Id.—Agency of Manager of Corporation for Plaintiff at Time of Conversation Proved.—It is held that from the whole evidence contained in the record the trial court was justified in drawing the inference that the manager of the corporation was acting as agent for the plaintiff, to induce the defrauded defendant to purchase the plaintiff’s stock by means of false and fraudulent representations made in his behalf, when the conversation testified to occurred.</p> <p>Id.—Date of Conversation Brought Out on Cross-examination— Motion to Strike Out.—Where the date of the conversation heard by the defrauded defendant’s wife between her husband and the manager of the corporation, who was endeavoring by his statements to induce him to buy the plaintiff’s stock, did not appear until the cross-examination of such wife, the objection that authority to sell plaintiff’s stock at the time of the testimony was not shown could only be taken by motion to strike out the testimony, which motion was not made.</p> <p>Ib.—Harmless Rulings as to Evidence.—The overruling of objections to evidence of statements, which were subsequently substantially proved, and the overruling of objections to evidence of a fact admitted by the pleadings, were harmless.</p> <p>Id.—Absence of Prejudicial Rulings on Evidence.—Held, there were no prejudicial rulings made by the court in the admission or rejection of evidence, conceding that some of them were not strictly correct.</p> <p>Id.—Motion for New Trial — Newly Discovered Evidence — Impeachment of Witness—Diligence not Shown.—A motion for a new trial on the ground of newly discovered evidence tending only to impeach the testimony of an adverse witness was properly denied on that ground, as well as upon the ground that there is not a sufficient showing of diligence in the efforts put forth by the moving party to procure such evidence before the trial.</p> <p>Id.—Surprise—Resulting Injury.—A party moving for a new trial on the ground of surprise must not only show “surprise” as used in the statute, but must also show that injury resulted to him from the cause of such surprise; and this can only be done by showing that he could establish an entirely different case favorable to himself in the event that a new trial be granted; and where it appears that he suffered no such resulting injury, the motion for new trial on the ground of surprise was properly denied.</p>

<p>Mining Claims—Essentials of Making and Maintaining a Valid Location—-Discovery—Appropriation—Development.—A general and comprehensive statement of what is required to make and maintain a valid location of a mining claim is found in the language of the supreme court of the United States, that “In all legislation, whether of Congress or of the state or territory, and by all mining regulations and rules, discovery and appropriation are recognized as the source of title to mining claims, and development by working as the condition of continued ownership until a patent is obtained.”</p> <p>Id.—Ordinary Mode of Appropriation — Posting and Record of Notice—Marking of Boundaries.—Ordinarily, an appropriation of a mining claim is effected by the posting of a notice of location at or near the point where the ledge is exposed, the record of .the notice, and the marking of the boundaries of the claim.</p> <p>Id.—Order of Acts Immaterial Before Adverse Claim.—It is a universal rule that the order of the acts constituting an appropriation is immaterial, when every act necessary to complete it is done before an adverse claim has accrued.</p> <p>Id.—Marking of Boundaries—Main Act of Original Location.— Under section 2324 of the statutes of the United States, providing that “The location must be distinctly marked on the ground, so that its boundaries may be readily traced,” the distinct marking of the boundaries is the main act of original location.</p> <p>Id.—Purpose of Posted Notices—Aid in Marking Ground.—The purpose of the posted notices is that they may be an aid in determining the situs of the monuments, and therefore constitute a part of the marking of the boundaries of the ground, as does every other object placed on the ground for the purpose of marking it, or otherwise, if it in fact does help to mark it.</p> <p>Id.—Credibility of Prior Locator as Witness—Prior Discovery and Marking of Boundaries—Findings—Province of Trial Court.— The credibility of the prior locator as a witness to his prior discovery of the ledge in controversy and as to his prior marking of boundaries of his claim, was for the consideration of the trial court, and where there is nothing inherently improbable in his testimony, the findings based thereon will be accepted as establishing such priority.</p> <p>Id.—Prior Notice of Opposing Location—Subsequent Discovery and Marking of Boundaries.—The mere priority of the notice of location under which defendants claim cannot avail, where the assignors of plaintiffs had the prior discovery and the prior marking of boundaries, and posted their subsequent notice before the opposing claimants had marked their boundaries. In such case, the plaintiffs have the better right.</p> <p>Id.—Discovery the Source of Title—Prior Bight to Complete Location—Seasonable Time.—The discovery is the source of title, and vests the first discoverer with the prior right to complete his location. He could only lose this prior right to perfect his claim by a failure within a reasonable time to mark his location so that the boundaries could be traced upon the ground, and where this was done within a reasonable time, and before any effort was made to mark the boundaries of the opposing claims, the priority of the first discoverer was preserved.</p> <p>Id.—Prior Posting of Notice not a Test of Priority—Absence of Mining Customs—Construction of Federal Statutes.—In the absence of evidence of the existence of any mining custom or regulation of the district relative to the subject of a notice of location, there is nothing in the federal statutes prescribing the posting of a notice on the day of discovery or prescribing where it shall be posted on the claim, or at all. The mining law of the United States does not require the notices of location to be posted or recorded, and it is only where the local customs and rules of the miners of the district require these steps that they are necessary.</p> <p>Id.—Performance of Annual Work—Support of Finding.—It is held that the evidence amply sustains the finding that the prior locator and the plaintiffs, as his assignees, performed fully all the annual labor required under the laws of the United States to preserve their prior rights.</p> <p>Id.—Quieting Title—Joinder of Plaintiffs.—The owners of three-fourths of a mining claim may bring an action to quiet their title against opposing claimants thereof, under section 738 of the Code of Civil Procedure, without being required to join the owner of the remaining one-fourth thereof as a coplaintiff. The rule is that tenants in common may, but need not, join as plaintiffs.</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>APPEAL from a judgment of the Superior Court of Santa Barbara County, and from an order denying a new trial. S. E. Crow, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Veterans’ Home—Constitutional Law—Special Act.—The act of March 11, 1897, accepting from the Veterans’ Home Association of Mapa County a conveyance of its title to its tract, improvements and furnishings, and making the same a state home for aged and indigent ex-soldiers, sailors and marines of the United States army and navy, is a valid special law in a ease where a general law could not be made applicable.</p> <p>Id.—Power of Legislature Over Conditions of Membership—Delegation to Governing Board.—The legislature, having power to make the “Veterans’ Home” a state institution, had the power to regulate the conditions of membership therein, either directly or by delegating power over such conditions to the governing body of the state institution.</p> <p>Id.—Construction of Statute and Amendments With Begulattons of Board Begolating Membership.—The act of March 11, 1897, and the acts amendatory thereof of March 20, 1905, and of March 16, 1907, are to be taken in connection with the regulations of the board, in determining the conditions on which applicants may enter and remain as members of the State Veterans’ Home.</p> <p>Id.—Disposition of Pension Money of Members Dying Intestate After Amendments—Administration not Permissible.—Where an applicant for admission to the State Veterans’ Home on March 20, 1903, was lawfully required to deposit all pension moneys with the state treasurer, and to agree to be governed not only by the laws of the state and the rules of the board then existing, but also by all amendments to such laws and rules, and he died subsequent to the amendment of March 16, 1907, and to an amended rule in pursuance thereof, requiring all pension moneys of a deceased member not disposed of by will to be distributed, without probate, to a widow, minor children, or dependent mother or father, in the order named, within five years, and if no such relative appears within that time the same shall escheat to the state, there can be no administration of pension moneys of a member dying intestate.</p> <p>Id.—Reasonableness of Amended Statute and Rule.—The provision of the amended statute and rule is not harsh or ungenerous, as applied to an indigent applicant for membership, supposed to have no one under legal obligation to support him, and to the terms of which he agreed when admitted. The pension money being exempt from execution, no rights of creditors are to be considered in its distribution; and the law wisely provides that it shall not be subject to the fees and commissions of the public administrator and his attorney.</p> <p>Id.—Disposition of Trust Fund—Avoidance of Administration.— The pension moneys agreed to be deposited were a trust fund, to the disposition of which the owner had consented in writing, reserving only the retained right to withdraw it in his lifetime, but with lawful directions for its disposition, in ease of his dying intestate, as specifically directed. This he had the right and power to do; and such disposition of the fund negatived a testamentary intent, and constituted a gift in trust during life to avoid administration after death.</p>

MOTION to dismiss an appeal from a judgment of the Superior Court of Stanislaus County. L. W. Fulkerth, Judge. The facts are stated in the opinion of the court.

<p>Counties—Bonded Indebtedness—Construction op Code—Specifications in Published Order—General Statement on Ballot.— Where a county called an election to incur bonded indebtedness for specified improvements under an order made and published in pursuance of section 4088 of the Political Code, specifying all of the particulars for which each specified amount of bonds was to be appropriated, and submitting to the electors a general statement of the total amount required for each general purpose, the order of the board was jurisdictional, without which the election would have no validity; the published order formed an essential part of the proposals to be submitted to the vote of the electors, and it was the order which was ratified by them.</p> <p>Id.—Nature and Construction of Order—Terms Part of Law— Limit of Power of Board.—The published order has the force of an ordinance, though not so called; and as it was passed in pursuance of the statute, has the force and effect of a law of the state, and is to be construed as if its terms had been incorporated in the statute. No discretion is reserved to the board in the expenditure of money, because of the lawfully permitted general form of the ballot; but the specific purposes defined in the order are as binding as if expressed in the ballot; and though the bonds form distinct funds for a distinct set of purposes specified, the order still remains as the limit and measure of the board’s power to expend the money.</p> <p>Id.—Money Properly Set Apart by Auditor—Bridge Fund—Mandamus not Permissible.—The money was properly set apart by the auditor to each distinct fund for each distinct purpose for which the bonds for that purpose were sold, pursuant to the order, and he has no power to issue a warrant to be paid out of the bridge fund for expenditure on any one bridge in excess of the amount appropriated therefor; and mandamus will not lie to compel him to make such payment.</p> <p>Id.—Surplus—Statutory Application to Bonds.—Where any "surplus” remains in the bridge fund, the statute expressly applies it toward the payment of bonds, and any surplus of money unexpended in the construction or repair of a particular bridge must be so applied, and cannot be appropriated to make up a deficiency arising on a different expenditure in excess of the amount allowed therefor.</p> <p>Id.—Provision for Liabilities in Excess of Appropriation.—The board had no power to expend any part of the bridge fund in violation of the statute by making a contract therefor in excess of the amount appropriated; and if the board had incurred liabilities for this purpose in excess of that amount, such excess must be paid, if at all, out of some other fund.</p>

<p>Criminal Law—Assault With Deadly Weapon—Support op "Verdict.—Upon a review of the evidence, it is held that it shows that, while defendant was roaming the streets at an unusual hour, he, without plausible reason, accosted the prosecuting witness and his companions, and without provocation knocked one of them down, and a few moments later shot at and seriously wounded the complaining witness, without any apparent necessity or justification; that, from the record, defendant might have been prosecuted for a more serious offense than the one charged; and that, at all events, the question of his guilt or innocence of the offense of an assault upon the complaining witness with a deadly weapon was for the jury, and its verdict of guilty cannot be disturbed for insufficiency of the evidence to support it.</p> <p>Id.—Requested Instruction—Absence op Motive—Matter op Fact. Á requested instruction that “if you find from the evidence that the defendant had no motive for the commission of the offense charged in the information, the absence of a motive is a circumstance in favor of one accused, which must be added to the presumption of innocence, and which you should take into consideration in deliberating upon your verdict,” involved a matter of fact, and the court was not bound to give the same;, and though the giving of it would have been harmless, the refusal to give it was not error.</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>Criminal Law—Authentication of Record Essential—Review upon Appeal.—Before the proceedings of the trial court in a criminal case can be reviewed by the appellate court, such proceedings must be authenticated in the manner prescribed by the law or the rules of the appellate court; and where there is no legal authentication of the record, the evidence contained in the transcript cannot be considered.</p> <p>Id.—Conviction of Robbery—Unauthenticated Record—Insufficiency of Evidence—Review Precluded.—Where the defendant was convicted of robbery, the question as to the insufficiency of the evidence to support the verdict cannot be considered, where the evidence is neither contained in a bill of exceptions settled by the judge, nor contained in any authenticated transcript.</p> <p>Id.—Instructions not Reviewable.—Instructions neither indorsed nor certified as required by section 1176 of the Penal Code, nor contained in any settled bill of exceptions, constitute no part of the record on appeal, and cannot be considered by the appellate court.</p> <p>Id.—Effect of Amended Code—Section 1176 Unaffected.—Even if the appeal were governed by the law as amended by the acts of April 22, 1909, those acts do not modify or affect the provisions of section 1176 of the Penal Code, requiring the judge to indorse upon the written charges requested his action thereon, and to certify to the correctness of the reporter’s transcript of the oral charge. The indorsement of the judge must appear upon the charge requested, for in no other way can it be known what instructions requested were given or refused.</p>

<p>Criminal Law—Eight of Defendant to Compel Attendance of Witnesses—Befusal by Court—Prejudicial Error.—Where the defendant, at the commencement of the trial, having learned that some of his witnesses were not present, moved the court for compulsory process to compel their attendance from an adjoining county, upon affidavits showing the facts and the materiality of their testimony, it was prejudicial error for the court to refuse such compulsory process, and compel the defendant to proceed to trial without the personal attendance of his witnesses, merely because the district attorney offered to allow their testimony taken upon a previous trial to be read, which offer the court allowed merely in the interest of economy.</p> <p>Id.—Superiority of Oral Testimony of Witnesses.—The testimony of witnesses given in court is much more effective and far superior to that read to the jury in the form of a deposition. As much may be frequently collected from the manner in which the evidence is delivered as from the matter of it.</p> <p>Id.—Constitutional Eight to Compel Attendance.—On account of the superior value of such oral testimony to the accused, and in order to cure a defect in the common law in this regard, the constitution of this state, in section 13 of article I thereof—like the constitutions of nearly all other states of the Union—provides that defendants in criminal cases shall “have the process of the court to compel the attendance of witnesses in his behalf.” It would ill accord with the spirit of that right, when the witnesses are within the reach of the process of the court, if the defendant is compelled to take a mere written statement as the equivalent of the personal appearance contemplated by the use of the process guaranteed by the constitution.</p> <p>Id.—Reasonable Time Allowed to Secure Attendance—Absence of Bad Faith.—The defendant, having a constitutional right to have his witnesses examined in court, in the absence of a showing that the motion was made in bad faith, was entitled to a reasonable time to secure their attendance.</p> <p>Id,—Diligence and Good Faith Shown—Constitutional Eight Infringed.—Where the defendant had regularly subpoenaed the witnesses in question, and their testimony was material and important to him, by the ruling of the court that he was not entitled to the process of the court to an adjoining county to compel their attendance, and forcing the defendant to submit his case to the jury without the benefit of their oral testimony, it is clear that the defendant was deprived of a constitutional right for which a new trial must be granted.</p>

<p>Criminal Law—Appeal—New Method—Amended Code—Jurisdiction—Be view upon Appeal.—Reid, that notwithstanding the forcible objection that this court has no jurisdiction of the appeal from the judgment in a criminal ease, because it was pronounced after the amendment of 1909 to section 1239 of the Penal Code went into effect, and that the defendant failed to take his appeal under the new method, as prescribed by the amended section, yet, inasmuch as the judgment was pronounced only a few days after the amended section went into effect, and as the judgment must be affirmed in view of the errors assigned, the objection will not be considered as precluding a review of the record.</p> <p>Id.—Instruction as to Distrust of False Witness.—An instruction in the language of section 2061 of the Code of Civil Procedure, that “a witness willfully false in a material part of his testimony is to be distrusted in others,” involves a correct statement of a principle of the law of evidence which it is not improper to declare to the jury, and the giving of which is not ground for reversal</p> <p>ID.—Grand Larceny—Instruction as to Possession of Stolen Property Unexplained.—The instruction ordinarily given upon a charge of grand larceny on the question of the possession of stolen property which is the subject of the crime charged usually contains a statement that "the mere possession of stolen property unexplained by the defendant, however soon after the taking,” is not of itself, and standing alone, sufficient to justify a conviction, even though it be shown beyond a reasonable doubt that the crime charged was committed. It would be a mistake to omit such statement from an instruction as to the effect of the possession of stolen property.</p> <p>Id.—Criticised Instruction as to Unexplained Possession—Construction With Other Instructions.—An instruction to the effect that if the property charged to be stolen was found in the possession of the defendant after being feloniously taken, the failure of the defendant "to account for such possession, or to show that such possession was honestly obtained, is a circumstance tending to show his guilt, and the accused is bound to explain the possession as a circumstance to be considered in connection with other suspicious facts,” is subject to criticism for omitting the usual statement; yet it does not require the defendant to take the witness-stand to explain his possession, when taken with other instructions on the presumption of innocence, on the degree of proof required to justify a conviction, and on the right of the defendant to refuse to become a witness in his own behalf without prejudice.</p> <p>Id.—Bight of Court to Charge Jury on Unexplained Possession.— The court has the right to say to a jury that possession of stolen property, while not sufficient, standing alone, to warrant a conviction, is a circumstance which, unexplained, may be considered by the jury as tending to establish guilt.</p> <p>Ib.—“Accused Bound to Explain Possession”—Substantial Equivalent of Approved Language.—There is little, if any, material difference between the language, “the accused is bound to explain the possession,” and the approved language that “the circumstance of such possession, unexplained by the defendant, may, with other inculpatory circumstances, be considered by the jury in determining the question of the guilt or innocence of the defendant.”</p> <p>Id.—Instruction as to Plight of Defendant—Bequest Modified— Weight of Evidence—Beversal not Justified.—Where the court, at defendant’s request, instructed the jury that the circumstance of flight “is not strong presumptive evidence of guilt, as no such presumption could arise as matter of law,” and that “it is not sufficient alone to justify the jury in convicting a defendant,” to which the court added: “But the flight of a person immediately after the commission of an offense with which he is charged is a circumstance to be weighed by the jury as tending in some degree to prove consciousness of guilt, and is entitled to more or less weight according to the circumstances of the particular case,” etc., such added language has often been substantially given in this state, and though it has been justly criticised as an instruction as to the weight of evidence, it has never been regarded as sufficient cause for reversal.</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>APPEAL from a judgment of the Superior Court of Los Angeles County, and from an order denying a new trial. Frank R. Willis, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>APPEAL from a judgment of the Superior Court of Marin County, and from orders denying a new trial, and denying a motion in arrest of judgment. Thos. J. Lennon, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Criminal Law—Grand Larceny—Swindling Transaction.—Where plaintiff was deprived of the sum of $100 as the result of a barefaced swindling scheme inaugurated by the defendant, to secure a subscription to pretended mining interests in Alaska which had no existence, the defendant was properly convicted of grand larceny.</p> <p>Jj>.—Evidence—Conspiracy—Acts and Declarations of Co-conspirators.—Evidence was admissible to show that defendant conspired with others in furtherance of the swindling scheme, and to show material acts and declarations of the co-conspirators, during the life of the conspiracy, and in relation to it.</p> <p>Id.—Letters from Land Departments Statins Absence of Defendant’s Ownership—Exhibition to Defendant—Implied Acquiescence.—Letters procured by the police from the land office departments of Canada and of the United States, stating that defendant owned no mines in Alaska, which were read to the defendant, were admissible, not as independent proof of the truth of their contents, but to show an admission against interest by defendant by his implied acquiescence in the truth of the statements contained therein.</p> <p>Id.—Bight of Defendant to Instruction.—The defendant had the right to an instruction, if he had requested it, to the effect that the letters were not admitted as substantive evidence of the truth of the facts stated in them, but to show the attitude of the defendant when they were read to him.</p> <p>Id.—Sufficiency of Evidence—Proper Befusal of Bequested Instruction.—Seld, that the evidence was abundantly sufficient to go to the jury, and that the court properly refused ■ a requested instruction that the evidence was insufficient to prove the offense charged.</p> <p>Id.—Order of Proof—Conversation With Accomplices Before Proof of Conspiracy.—The rule that declarations of a conspirator cannot be given in evidence before proof of the conspiracy goes to the order of proof, which is in the discretion of the court, and the evidence being sufficient to show the conspiracy, the departure from the' order of proof is matter of no moment, no injury being shown to have resulted therefrom. ,</p>

<p>Contract to Sell Special Automobile—Damages for Fraud—Support of Findings.—In an action to recover damages for fraud of the defendant, under a contract to sell the latest improved automobile of a specified model for the current year, where the court found that plaintiff was not familiar with automobiles, while defendant had been for years engaged in the business of selling them, and was familiar with their value, and showed plaintiff a model of the previous year, which he falsely and fraudulently represented was the latest improved automobile of that model for the current year, which he sold and delivered to plaintiff as such; that the value of such automobile was $530 less than the value of the one contracted for, for which sum judgment was rendered, it is held that the findings are sufficiently supported by the evidence, and that the judgment rendered was just.</p> <p>Id.—Bights of Purchaser.—One desiring to purchase an article is entitled to the precise thing he contracted for. Aside from this there is evidence tending to show that an automobile of the preceding year is not as valuable in the open market as the same model containing the improvements of the succeeding year.</p> <p>ID,—Evidence—Absence of Prejudicial Error.—It is held that there is no prejudicial error in the admission or exclusion of evidence warranting a reversal of the judgment.</p>

<p>Criminal Law—Embezzlement—Support of Verdict—Conflicting Evidence—Review upon Appeal.—Upon a prosecution for embezzlement, where the jury found a verdict of guilty, and the record shows a decided conflict of evidence, but the jury accepted as true the statements of the prosecuting witness, and the court, in passing upon the motion for a new trial; justified the action of the jury, it is not the province of the appellate court to disturb the verdict, if any evidence in the record warrants the same.</p> <p>Id.—Proof of Embezzlement—Monet and Property Held as Security for Contract of Employment—Termination of Contract —Misappropriation.—Where the record shows that defendant obtained possession of money and property belonging to the prosecuting witness under an agreement that the same should be held only as security for the faithful performance of certain duties connected with a contract of employment between the parties, and that upon termination of such employment defendant refused to return the same or any part thereof, and appropriated such money and personal property to Ms own use, the crime of embezzlement as defined in section 503 of the Penal Code was thus made out, and the verdict of guilty was a righteous one, and should be sustained.</p>

<p>Negligence—Injury to Spine or Passenger upon Collision—Evidence or Medical Expert—Cross-examination—Harmless Killing.—In an action for injury to a passenger from the negligent collision of cars running in opposite directions on the same track of defendant, where the only question was as to the extent of plaintiff’s injuries, and a medical expert testified for plaintiff that he found symptoms of spinal injury about the lower portion of the spinal column more pronounced on the right side than on the left, and that the injury was of a permanent character, and testified on cross-examination that, as a rule, paralysis of the spinal column exists on both sides, and that he never heard or read of a case where it existed on one side only, it was not prejudicial to refuse to allow a further question whether every authority that he had read did not state that injury to the spinal column, with resulting paralysis, must exist on both sides.</p> <p>Id.—Rule as to Examination of Medical Expert—Contents op Standard Books—Limited Application.—The rule affecting the examination of an expert medical witness, which permits a showing of the contents of the books of standard authors skilled in that particular profession, is limited. It is permissible only to show what such authors have declared upon a subject, when a witness has based his opinion wholly or in part upon his reading of books of that character, and then only when statements found in such hooks are not in harmony with the testimony of the witness.</p> <p>Id.—Answer in Apfirmative to Question Asked not Contradicting Testimony.—The medical witness having expressly testified that he had neither heard nor read of a case where there was spinal injury with resulting paralysis on one side of the body only, an answer in the affirmative to the question propounded by defendant’s counsel would not have contradicted in any degree any testimony of the witness based upon his reading the works of medical authors, since his opinion as to the spinal injury being more pronounced on one side than the other was based upon medical observation, and not upon anything that he had before heard or read.</p>

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

<p>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>APPEAL from a decree of the Superior Court of Los An» geles County setting, aside an order of adoption. Charles Monroe, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Municipal Ordinance—Street Excavations—Deposit of Bond or Money for Restoration—Eee as Condition of Receipt—Conflict With General Law.—That portion of a municipal ordinance relating to street excavation - which requires the payment of a fee to the street superintendent, as a condition of the obtaining of a receipt for a deposit of a bond or money in lieu thereof to secure the restoration of the street, is invalid, as being in conflict with the general law embodied in section 2075 of the Code of Civil Procedure, that “whoever pays money, or delivers an instrument or property, is entitled to a receipt therefor from the person to whom the payment or delivery is made, and may demand a proper signature to such receipt as a condition of the payment or delivery.”</p> <p>Id.—Notice to City of Intention to Excavate—Basis for Computation of Cash Deposit.—That portion of the municipal ordinance requiring written notice to be given to the city of an intention to excavate is intended solely as a basis for computation where a cash deposit is made.</p> <p>Id.—Notice, When not Required—Waiver—Giving of Bond.—Notice to the city is waived when the city fixes the amount of the deposit without notice; and no notice is required when a bond is given, the amount of which is arbitrarily fixed by the statute.</p> <p>Id.—Notice not a Basis fob Constitutional Right of Water Company to Excavate.—In no event can notice be required as a basis for the right of a water company to enter upon a street for the purpose of making excavations in which to lay pipes for the distribution of water to the citizens of the municipality. That right is by virtue of a constitutional franchise, and it cannot be withheld by the city.</p> <p>Id.—Bower of City to Make General Regulations for Damages— Uniformity Essential.—The only power possessed by the city, in the ease of a water company, is to make general regulations for damages and indemnity for damages, and to require the work to be done under the direction of the street superintendent. Its regulations must be uniform in their application to all who desire to exercise this privilege.</p> <p>Id.—Regulations not Uniform—Conditions of Deposit More Onerous Than of Bond.—The regulations provided by the ordinance are not uniform in their operation. The one depositing money as an indemnity for damages is subjected to a penalty by which the city arbitrarily retains a large portion to the credit of the street fund, while if another person or corporation desiring to excavate in the streets should file a bond, he avoids this penalty, and is only subjected to the obligation of replacing the street in as good condition as before and in the manner provided by the ordinance.</p> <p>Id.—Criminal Law—Alleged Violation of Ordinance—Insufficient Complaint—Habeas Corpus.—Where a complaint for a violation of the ordinance merely alleges that an employee of a water company violated those portions of the ordinance which provide for giving notice, filing of a bond and securing a receipt therefor, and does not negative the fact that no deposit was made, which would obviate the bond, nor state facts showing that any notice was required, and the ordinance being invalid as to the conditions of securing a receipt, and as to want of uniformity in its regulations, the complaint states no offense under the ordinance, and the defendant is entitled to be discharged upon habeas corpus.</p> <p>Id.—Statute Forbidding Act Without Existence of Either of Two Conditions—Criminal Pleading.—Where a statute forbids the doing of a particular act, without the existence of either one of two conditions, the criminal pleading must negative the existence of both of these conditions before it can be supported.</p>

<p>APPEAL from an order of the Superior Court of Los Angeles County denying a motion to dismiss an action. Walter Bordwell, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

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

<p>Beal Estate Brokers—Oral Agreement to Share Commissions.—A valid oral agreement may be made between real estate brokers to share their commissions upon the sale of land for the owner, regardless of which broker may be instrumental in obtaining a purchaser for the land.</p> <p>Id.—Object of Statute of Frauds.—The object of the statute of frauds embodied in section 1624 of the Civil Code, requiring a written agreement authorizing or employing an agent or broker to purchase or sell real estate for compensation or upon commission to be signed by the party to be charged, is only to protect owners of real estate against unfounded claims of brokers; and that statute has no application to an agreement between brokers to divide commissions received for the sale or purchase of real estate.</p>

<p>Appeal from Judgment and Order—Appeal After Sixty Days—Insufficiency of Evidence Unspecified — Review upon Appeal.— Where an appeal from the judgment is taken after the lapse of sixty, days, the insufficiency of the" evidence is not reviewable therein, and where the bill of exceptions does not specify, either generally or specially, the particulars wherein the evidence is insufficient, its insufficiency cannot be reviewed upon appeal from the order denying a new trial.</p> <p>Id.—Duty of Party Moving for New Trial.—It is the duty of a party moving for a new trial on the ground of insufficiency of the evidence to justify the verdict or decision, to specify and point out wherein the evidence is insufficient.</p> <p>Id.—Errors of Law in Bill of Exceptions—Specifications not Esquired.—When the appellant presents his record in the form of a bill of exceptions, which presents the objection and rulings in such manner that no more particular presentation is needed to call the court’s attention to the errors relied upon, the particular errors need not be specified in the bill.</p> <p>Ib.—Appeal Limited to Judgment-roll—Sufficiency of Proper Findings to Sustain Judgment.—Where the appeal is limited in its efficacy to the judgment-roll, the only inquiry that can be properly made is whether the findings made by the trial court, within the issues made by the pleadings, sustain the judgment.</p> <p>Id.—Action upon Acceptances of Bills of Exchange — Finding— Place of Acceptance—Code Provision.—In an action upon acceptances by the defendant of four bills of exchange, in which the court found that defendant signed his name on each bill at the lower right-hand corner of each, instead of across the face of the bill as indicated by the stamped word “accepted” across the same, the signature as made was not such an irregularity as to invalidate the acceptance. Under section 3195 of the Civil Code the holder of the bill may treat the acceptance as sufficient if “written upon any part of the bill or upon a separate paper.”</p> <p>Id.—Findings and Judgment for Defendant—Failure to Find upon Material Issue as to Bona Fide Purchase by Plaintiff.— Where the court, after finding that the defendant signed his name to the bills of exchange when they were incomplete, and contained blanks which were afterward filled in, and that defendant was misled when he signed them and did not intend to execute anything more than a mere memorandum form to be retained by the payee in connection with purchases of goods by defendant from the payee, rendered judgment for the defendant, the failure of the court to find upon the material issue tendered by the complaint, whether plaintiff was a bona fide purchaser of the bills of exchange before maturity for value, made the judgment without support, since a finding in favor of plaintiff upon that issue would entitle plaintiff to judgment.</p> <p>Id.—Negotiable Paper Issued in Blank—Insufficient Defense.— Where negotiable bills of exchange are sought to be recovered upon against an acceptor, it is no protection to the acceptor to say as against the claim of an innocent holder before maturity, that he did not intend to create any liability against himself. One who makes himself a party to an instrument intended to be negotiable, but which is left wholly or partly in blank, for the purpose of filling in afterward, is liable thereupon to an indorsee thereof in due course, in whatever manner and at whatever time it may be filled, so long as it remains negotiable in form.</p>

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

<p>Criminal Daw—Assault With Intent to Murder—Sufficiency of Information—Human Being.—An information charging that defendant, at a time and place specified, did feloniously and with malice aforethought, assault one Celia Skehan with intent then and there to kill and murder said Celia Skehan, is sufficient without stating that she was a “human being.”</p> <p>Id.—Technical Objection.—The objection to the information is technical. Technical objections to pleadings are no longer to be regarded as serious, unless they are so thoroughly supported by authority that they cannot be disregarded even under the latitude of the statute relating to the subject.</p> <p>Id.—Information Satisfying Code Requirement—Knowledge of Person of “Common Understanding.”—An information is sufficient when it satisfies the requirement of subdivision 2 of section 950 of the Penal Code, that the information must contain “a statement of the acts constituting the offense in ordinary and concise language, and in such a manner as to enable a person of common understanding to know what is intended.” No person of common understanding would or could fail to know that the district attorney intended to charge the defendant with making the assault upon a human being. This is indicated by the name itself, but is placed beyond controversy by its use in connection with the term “murder.”</p> <p>D>.—Definition of Murder.—“Murder” has a well-defined meaning, which is “the unlawful killing of a human being with malice aforethought.” When the term “murder” is used in an information, it necessarily implies a human being.</p> <p>Id.—Challenge to Panel of Jurors—Bias of Officer—Impanelment of Unprejudiced Jury.—Where the defendant, before and after the summoning of a panel of trial jurors, expressed confidence in the fairness of the sheriff, the court did not err in overruling his offer to show that the sheriff must be biased because he summoned the jurors from the city where the feeling and prejudice against him were strong; as a ground of challenge to the panel, the conclusion of bias did not follow from the offer; and where a jury of impartial jurors, without prejudice against the defendant, were chosen from such panel, it is manifest that he has no cause of complaint as to the challenge to the panel.</p> <p>Id.—Evidence—Employment by Family of Counsel to Aid Prosecution — Interest of Witness — Amount Paid Immaterial.— Where a brother in law of the prosecuting witness testifying for the prosecution admitted his interest as a witness and stated that Ms family had employed special counsel to aid in the prosecution, the court properly excluded a question on cross-examination, “How much did you pay?” The exact amount to be paid by the family or any member thereof would add nothing to the testimony.</p> <p>Id.—Defense of Insanity—Evidence—Improper Questions—Reasoning on Special Topic—Peculiarity.—Where the defense was insanity, the court properly excluded a question whether the defendant could or did reason with a witness as a sane man on the particular topic of his love for the prosecuting witness, as not being in the form of a question as to sanity authorized by the code or decisions. The court also properly excluded the question, “Did you observe anything peculiar and unnatural in reference to tMs defendant?”</p> <p>Id.—Proper Evidence of Insanity.—Evidence that the defendant was insane on a particular subject, and acted in an irrational manner, and other evidence that his conduct and statements particularly detailed led a witness to believe him irrational and insane, was properly admitted.</p> <p>Id.—Rebutting Evidence—Observation of Sanity by Under-sheriff. The evidence of the under-sheriff in whose custody the defendant had been for three months, with special opportunity for observation of Ms conduct and conversations twice each day for the whole period, was properly admitted in rebuttal of the evidence of insanity for the prosecution to show Ms continued sanity during such period.</p> <p>Id.—Other Rebutting Evidence of Sanity—Intimate Acquaintance —Discretion of Trial Court.—Where other rebutting evidence of witnesses for the prosecution was introduced to establish their opin- ■ ion of his sanity, the question of whether they had sufficient intimate acquaintance with him to express such opinion was within the discretion of the trial court. Held, that it cannot be said that the discretion was abused in any manner, or that the evidence was insufficient to justify the ruling.</p> <p>Id.—Mere Manner or Appearance of Person at Particular Time.— Evidence of the mere manner or appearance of a person at a particular time does not fall within the rule which requires the witness to be an intimate acquaintance in order to testify to Ms sane conduct at that time.</p> <p>Id.—Charge upon Insanity—Admonition.—While an admonition contained in the charge upon insanity “that this defense is sometimes simulated and interposed because the facts render hopeless all other means of avoiding punishment,” might well have been omitted, yet it is given only in the abstract, and has been given so often in the past and approved upon appeal, that it will not be held prejudicially erroneous, especially where, as in tMs ease, the court fully and accurately instructed the jury as to insanity, and declared to them that “This defense must be considered and weighed fully, fairly and justly; and when proved, must recommend itself to the sense of humanity and justice of the jury.”</p>

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

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

<p>Insolvency—Jurisdiction of Superior Court—Petition—Amendment of Facts—Relation—Essentials of Original.—While a petition in insolvency in conformity with the statute is essential in conferring jurisdiction upon the superior court to adjudicate the insolvency of a debtor upon the petition of his creditors, yet, under the statute as now existing, such jurisdiction may be conferred by amendments to a defective petition, which by relation are taken as embraced in the original, such amendments, however, being confined to the facts stated in the petition, which presupposes, of course, that a petition signed by authority of the requisite number of creditors, properly verified, has been filed.</p> <p>Id.—Signatures and Verification of Corporations.—Where the petitioning creditors were four corporations and one individual, the insolvent law being silent as to the character or class of officers authorized to affix the corporate name, the petition may be signed or verified by any one of the officers or agents of the corporation in its behalf.</p> <p>Id.—Petition and Verification upon Face—Authority—Change After Signatures—Questions of Fact.—Where upon their face the petition and verification were sufficient in form and substance, assuming, without deciding, that anyone other than the insolvent may question, before adjudication, the authority of the parties to sign the petition for adjudication, or that such petition has been altered or changed after the signatures thereto were attached, the matter of such authority or the change in the petition still remain questions of fact for the superior court to hear and determine.</p> <p>Id.—Amendments of Facts to Petition—Questions of Law.—The question what amendments are comprehended within the term amendment of facts, and the effect which should 'be given amendments, remains a question of law, after the ‘trial court has determined the facts.</p> <p>Id.—Prohibition to Prevent Adjudication—Appeal from Judgment— Adequate Remedy at Law.—If the petitioner for a writ of prohibition to prevent any adjudication in insolvency is a party to the proceedings in insolvency, and is prejudiced by error of the trial court in connection with the judgment of adjudication, an adequate remedy at law exists by appeal from that judgment. Prohibition will not lie when such adequate remedy exists.</p> <p>Id.—Supposition op Noninterest in Proceedings—Prohibition not Allowable.—If, upon the other hand, petitioner is not a proper party, who may so appeal, he is not interested in the proceeding in insolvency, and cannot be heard in an application to arrest the order of the court in a case to which he is a stranger.</p>

<p>Reclamation District—Public Corporation—State Agency—Limited Powers.—A reclamation district is a public, as distinguished from a private, corporation. It acts as a state agency, invested with certain limited powers, and restricted to the doing of a particular work, public in its nature. It is not a municipal corporation, possessing in any degree general powers of government, but nevertheless, within the limits of the authority granted to it, it exercises public functions.</p> <p>Id.—Scheme op Organization—System of Reclamation.—The scheme of the organization of a reclamation district comprehends a complete system for the doing of reclamation work, with all of the incidental power to compel the payment of assessments levied, and secure the accomplishment of the intended project of reclamation.</p> <p>Id.—Public Corporations—Collateral Attack upon Organization not Permitted.—The existence of public corporations can only be called in question by the power from which they derive their right to be. An attack, collaterally made, with a view to testing the regularity of their existence or organization, will not'be permitted.</p> <p>Ib.—Action to Compel Payment for Bonds of Reclamation District —Collateral Attack upon Petition for Organization.—In an action to compel payment for bonds of a reclamation district purchased by the defendant, a collateral attack upon the sufficiency of the petition for organization of the reclamation district, the petition of which was approved by the board of supervisors, is collateral and unauthorized, where there is nothing in the terms of his bid which would allow him to question its organization collaterally.</p> <p>Id.—Bid for Bonds—Condition as to Legality and Validity—Charge upon Property—De Facto Corporation.—A bid for bonds of a reclamation district “contingent upon the bonds being legal and valid,” is satisfied, as a condition, if the bonds are binding upon the property of the district. That condition is met where the district had a de facto existence when it issued the bonds. As a de facto corporation, the acts of its officers and trustees were binding; and the purchaser of bonds of such a district would acquire a lien against the property thereof; and it matters not to him whether the district was duly organized or not.</p> <p>Id.—Untenable Objection to Organization of District—Sufficiency of Description in Petition—Reference to Maps.—An objection to the sufficiency of the description of lands in the petition for the organization of the reclamation district is not tenable, where the description of a ranch by name refers to a map as an exhibit, which renders it sufficiently certain to sustain a deed thereof, and where the description of town lots therein refers to a map as an exhibit, from the scale of which can be calculated exactly the quantity of land contained in each lot.</p> <p>Id.—Substantial Compliance With Statute.—A substantial compliance with the statute is all that is required to render the petition for the formation of an irrigation district sufficient.</p>

Prank J. Murasky, Judge. This was an application for a writ of mandate brought by the plaintiff, a corporation organized under the laws of California, for the prevention of cruelty to children and animals, to compel the board of police commissioners of the city and county of San Francisco to issue written permits to the authorized agents of the plaintiff to carry weapons similar to those that other peace officers are authorized to carry.

<p>Prohibition—Purchase by Supervisors of Furnishings for Hall of Records—Award of Contract' to Highest Bidder—Open Market. Prohibition will not lie to restrain the board of supervisors of a county from awarding a contract for the purchase of furnishings for the hall of records to the highest bidder, where no sealed bids were asked; but each bidder was required to furnish his own plans and specifications, and to present samples of his material and workmanship with prices, and the language and provisions of the advertisement and plans indicate as the real intention upon the part of the board to purchase in the open market.</p> <p>Id.—Power and Discretion of Supervisors in Procuring Furnishings.—It is undisputed that the board of supervisors may, in their discretion, go into the open market and purchase furnishings for a public building, where such furnishings form no part of the structure. Their authority to do so has been judicially determined.</p> <p>Id.—Fraud Disclaimed in Petition for Prohibition—Difference in Price Explainable.—Where no fraud is averred in the petition for the writ of prohibition, but on the contrary counsel for petitioner disclaims any intent to charge the same, the great difference in the price between the offers of the dealers may be occasioned on account of perfectly legitimate reasons, and such as would warrant the payment of the higher price.</p> <p>Id.—Prohibition not Allowable in Case of Proper Discretion.— Where jurisdiction and authority are given to a public board to exercise its discretion, and no facts appear showing an abuse thereof, it is not within the province of the courts to review such discretion in a proceeding in prohibition.</p>

<p>Criminal Law—Bobbery—Identity of Defendant—Support of Verdict.—Upon a review of the evidence, upon a trial for robbery, it is held that the contention of the defendant, upon appeal, that the verdict is not supported by the evidence, as not sufficiently identifying the defendant as the person who committed the robbery, is entirely without merit.</p>

<p>Prohibition—Appeal prom Justice’s Court—Jurisdiction.—A writ of prohibition will not lie to prevent the superior court from taking any further action in a proceeding on an appeal from a justice’s court than to dismiss the same, where it appears that the superior court has jurisdiction of the appeal.</p> <p>Id.—Motion to Dismiss Appeal—Failure op Sureties to Justify— Failure op Excepting Party to Attend.—A motion to dismiss an appeal from the justice’s court for the alleged failure of the sureties on the appeal bond to justify within five days after service of notice of exception thereto, where it appears that the excepting party failed to attend at the time fixed, was properly denied.</p> <p>lb.—Conflicting Affidavits—Determination op Superior Court Conclusive.—Where there were conflicting affidavits as to whether the surety had appeared in the justice’s court at the proper time for justification, but it is reasonably certain that the excepting party failed to appear, it was for the judge of the superior court to determine, on the hearing of the motion to dismiss the appeal, whether the surety had justified or not, or whether justification had been waived. In so far as that question depended upon a conclusion of fact to be drawn from conflicting evidence presented by the affidavits, its finding cannot be reviewed.</p> <p>Id.—Waiver op Justification—Rights op Undertaking Party.—The justification of sureties on undertakings may be waived by the failure of the party excepting to appear at the time set for justifiea- ' tion. In case of nonappearance on the part of the excepting party, the party giving the undertaking may either rest upon the default as a waiver of the exception, or he may present his sureties and take a formal approval.</p> <p>lb.—proper Time for Justification—Five Days After Filing Notice op Exception.—A justification of the sureties on the appeal bond within five days after the filing of the notice of exception in the justice’s court, though more than seven days has elapsed after service of the notice, is in proper time.</p> <p>Id.—Construction op Code—Completion op Exceptions by Filing Notice.—Construing the several provisions of the code relating to justices’ courts and the practice therein together, it is held that a party excepting to the sufficiency of sureties on an undertaking on appeal therefrom must file his notice of exception with the justice, and that no such exception will be deemed complete until such notice is filed.</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 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>APPEAL from a judgment of the Superior Court of the City and County of San Francisco. George H. Cabaniss, 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. Wm. P. Lawlor, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

APPEALS by several defendants from several judgments of the Superior Court of the City and County of San Francisco, and from orders denying their several motions for new trial. Wm. P. Lawlor, Judge.

<p>Criminal Law—Embezzlement—Wrongful Cashing of Check—Misappropriation—Statute of Limitations.—Where the defendant was intrusted with a check payable to him by the prosecuting witness with instruction not to draw it until she should send for it on her visit in Australia, and the defendant wrongfully cashed the check on the following day, and misappropriated defendant’s money to his own use, an information filed charging embezzlement of the money three years and five months after the date of misappropriation of the money, and two years and six months after the discovery of the misappropriation by the prosecuting witness, is barred by the statute of limitations.</p> <p>Id.—Demand not Essential to Put Criminal Statute in Motion.—It is held in this case that a demand upon the defendant for the money misappropriated was not essential to put the criminal statute in motion upon the charge of embezzlement, which commenced to run from the date of its misappropriation, and expired at the end of three years thereafter with no attempt at prosecution, though known by the prosecuting witness to have existed long before the expiration of the statute.</p>

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

<p>Action upon Note—Last Day for Filing Complaint—Omission of Signature—Statute of Limitations.—In an action upon a note, where the complaint was filed on the last day to prevent the bar of the statute of limitations, the statute of limitations is hot plead-able by demurrer or by answer merely because the signature to the complaint was omitted.</p> <p>Id.—Unsigned Complaint not Void, but Amendable.—An unsigned complaint is not void, but is sufficient as instituting an action, and may be amended.</p> <p>Id.—Decision of Former Supreme Court.—The decision of a former supreme court in this state unreversed and unmodified must be followed by this court.</p> <p>Id.—Weight of Authority Against Invalidity of Unsigned Pleading—Amendable Irregularity.—While there is some authority in other jurisdictions that an unsigned pleading is a nullity, yet the weight of authority is to the effect that the omission of the signature to a pleading is but an irregularity that does not affect the jurisdiction of the court, and may be cured by amendment.</p>

<p>Contract to Sell Land—Defective Title—Sufficiency of Complaint to Recover Deposit.—Where a contract to sell land provided that if the title thereto “prove defective, and cannot be perfected within a reasonable time,” then the vendors would return and pay back to the purchaser the deposit made on account of purchase money, a complaint to recover the deposit, which sets up the contract and alleges that the title is defective, in respect of perpetual easements, upon part thereof, and" in that a minor had the right to disaffirm and rescind a conveyance of thirty-one and one-half acres thereof, and in that there is a judgment lien thereupon for $3,195.76, and alleges that plaintiff informed defendants in writing of each of said defects, and that they failed to cure the same within a reasonable time, or at all, and that a reasonable time had elapsed, states a cause of action, and dp'demurrer thereto was properly overruled.</p> <p>Id.—Unnecessary Averment—Beadiness to Pay in Pull for a Good Title.—It was not necessary that the complaint should aver, in such case, that the plaintiff is ready, willing and able to pay the full amount agreed to be paid for a good title, or that he offered to pay the purchase price and demanded a deed. Such averments are only required to be made to put the vendor in 'default, where there is no valid objection to the title.</p> <p>Id.—Nature of Case Made—Burden upon Defendants.—The complaint shows a state of facts where the title is defective, and defendants, upon notice and request to cure the defects specified, could not, and did not, obviate the defects within a reasonable time; and it is clearly sufficient to put the burden upon the defendants to show a legal reason why the plaintiff is not entitled to the return of his deposit.</p> <p>Id.-—Insufficient Answer—Legal Excuse not Shown—Proper Judgment upon Pleadings.—Where the answer is insufficient to show a legal excuse to prevent the recovery of the deposit, the court properly gave judgment for plaintiff upon the pleadings for the recovery thereof.</p> <p>Id.—Admission of Easements in Answer—Absence of Exception in Contract—Knowledge of Easements by Plaintiff Immaterial.—Where the answer admits the existence of the perpetual easements described in the complaint, and does not show that they were excepted from the terms of the contract, the mere averment therein that when defendant entered into the contract he knew of the existence of those easements discloses no legal defense to the action to recover the deposit, since plaintiff’s knowledge resting in parol cannot vary the terms or legal effect of the contract.</p> <p>I'd.—Permission to Purchaser to Connect With “Sewer”—Notice of Outstanding Easements in County not Given.—A permission given in the contract to the purchaser to make specified connections to “sewer” is perfectly consistent with the theory that the “sewer” referred to was the property of the vendor, and cannot constitute notice that there was an outstanding perpetual easement in the county twenty-two feet in width for sewerage and other purposes.</p> <p>Id.—Policy to Hold Parties to Terms of Written Contract.—It is, the best policy to hold the parties to the terms of their agreement as expressed in their written contract, and to allow of no exceptions not expressly stated therein.</p> <p>Id.—Ineffective Offer to Convey Title Eree from All Encumbrances and Easements Still Existing.—An offer by the defendants to convey a title free from all encumbrances while the encumbrances and easements still continued to exist was ineffective. Such offer was of nothing more than the agreement made by them in the first place.</p> <p>Id.—Right of Plaintiff to Perfect Title.—The plaintiff, as purchaser, had the right to a title free from litigation, palpable defects, or grave doubts. It does not appear that he has been able to get such title, or that any such title was tendered him, at or before the time when the answer was filed, or at any time.</p>

<p>Corporations—Lease op Land por Building—Authority—Control op Building — Payment op Bent — Pinal Dispute — Corporation Bound.—A written lease of land agreed to be taken by the trustees of a corporation duly assembled, but without a formal resolution, which was executed in the corporate name, and under the corporate seal, by its president and secretary, the rent of which was to begin when a building to be erected upon the land, for the use of the corporation, was completed, which then controlled and sublet the building, and paid rent under the lease for fifteen months, and then for the first time disputed its authority to make the lease, and refused to pay more rent, is binding upon the corporation. Honesty and fair dealing require that the corporation be held to the terms of the lease, and it may be enforced by the lessor against it.</p> <p>Id.—Formal Resolution of Directors not Essential to Authorize Lease—Proof of Votes by President.—Under the circumstances disclosed by the record, it was not necessary to show a formal resolution in writing, signed by the board of directors, authorizing the lease. The testimony of the president, who was at the meeting of the trustees, that the lease was both authorized and ratified by the trustees, is sufficient evidence of authority.</p> <p>ID.—Doctrine of Ultra Vires—Distinction Between Executory and Executed Contracts.—The doctrine of ultra vires as applied to executory contracts of a corporation, in violation of its charter or entirely outside of the scope and purpose of its creation, is regarded very differently than it is when it is relied upon by a corporation as a shield to escape just liability under an executed contract. In such ease, it is regarded with disfavor; and the rights of the party with whom the corporation has made the contract and the consequences to him will be carefully weighed before the court will hold the contract void.</p> <p>Id.—Reception of Benefits Under Executed Contract—Estoppel in Pais.—In passing upon the claim of ultra vires, as applied to executed contracts, the courts will simply consider the facts as to the circumstances of the contract, as to whether or not the corporation has received benefits under it; as to whether or not the doctrine of estoppel in pais may be invoked.</p> <p>Id.—Policy of Law—Contracts of Corporations.—It is the policy of the law and the endeavor of the courts to hold corporations as well as natural persons to their contracts, and make them liable for the obligations they have incurred. The rule is based upon the strongest principles of justice and public policy, that a contract should' be enforced against a corporation when it has received the consideration or the benefits of the contract.</p> <p>Id.—Contracts not Enforceable—Doctrine of Ultra Vires Limited. As to contracts of corporations that are malum in se, or malum prohibitum, they will not be enforced; but as to contracts not thus objectionable, justice and public policy require that the doctrine of ultra vires should be limited in its scope and application.</p> <p>Id.—Lease Necessary for Business of Corporation not Ultra Vires.—A lease of property which is at all times reasonably necessary for the transaction of the business of the corporation lessee, as a builder upon the leased premises, and for the purpose of subletting the building in the legitimate transaction of its business, is not ultra vires.</p> <p>Id.—Legitimate Purchase of Lot for Building—Legitimate Lease for Like Purpose.—Where it would not have been unlawful for the corporation to have purchased a lot and erected a building upon it so as to have a place in which to dispose of its wares, it was not unlawful to lease a place and erect a building thereupon for the transaction of business germane to the purposes of the corporation and not foreign thereto.</p>

<p>PETITION for writ of habeas corpus.</p>

<p>APPEAL from an order of the Superior Court of San Benito County denying a new trial. M. T. Dooling, 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. Leon F. Moss, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Pleadings—Amendment of Answer Before Hearing of Demurrer— Original Superseded.—An amendment of the answer after the filing of a demurrer thereto, and before the hearing of the same and determination of the issue of law raised by the demurrer, is authorized, as of right, by section 472 of the Code of Civil Procedure; and when the amended answer is so filed, the original answer is superseded.</p> <p>Bx—Amended Answer Piled Pending Motion for Judgment on Pleadings—Motion Determinable on Amended Answer.—Where such amended answer was also filed pending a motion for judgment upon the pleadings, and before the time for submission of briefs thereon had expired, such motion cannot be determined upon the original answer, but must depend upon the sufficiency of the amended answer.</p> <p>Id.—Effect of Stipulation to Submit Motion upon Briefs.—The effect of a stipulation to submit the motion for judgment upon the pleadings upon briefs is a submission thereof upon the filing of such briefs.</p> <p>Id.—Proper Judgment on Pleadings-—Insufficient Amended Answer to Complaint—-Condition to Pat Other Monet for Patent —Nonpayment not Averred.—Where the complaint for money loaned alleged that no time was fixed for payment, and the amended answer took issue thereon and alleged that the money was only to be paid when plaintiff and his associate should pay $6,000 upon the procuring of a patent for certain land, and merely alleged that no patent had been issued, but failed to aver nonpayment of that sum, no defense is alleged, and the court properly granted a judgment upon the pleadings.</p> <p>Id.—Event Maturing Loan.—The event which should mature the loan under the answer was the payment of the $6,000 as agreed, to obtain the patent.</p> <p>Id.—Answer to be Construed Against Pleader—Presumption.—Construing the answer under the rule “that the pleading is to be construed most strongly against the pleader, and that no intendments can be indulged in its aid,” it must be presumed that if the $6,000 had not been paid, that fact would have been averred, and its payment not being negatived, no error appears in the judgment as rendered, and it must be affirmed.</p>

<p>APPEAL from a judgment of the Superior Court of the City and County of San Francisco. J. M. Seawell, Judge.</p> <p>The facts 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. Wm. P. Lawlor, 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>APPEAL from a judgment of the Superior Court of Los Angeles County. N. P. Conrey, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>APPEAL from an interlocutory decree of the Superior Court of the City and County of San Francisco. E. P. Mogan, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

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

<p>Ditch of Irrigation District Crossing Creek—Judgment for Waste-way—Noncompliance—Obstruction With Boards—Damages for Overflow—Injunction.—Where plaintiff’s predecessor in interest had obtained a judgment requiring an irrigation district, the ditch of which crossed Sand creek, forthwith to place on the upper and lower side of the ditch a wasteway one hundred feet wide, for the reception and flow of said creek in time of high water, and it failed to comply with said judgment, but made the wasteway only forty feet wide on the upper side, and twenty feet on the lower side, and obstructed the lower side with boards, causing an overflow on plaintiff’s land, to his damage in the sum of $600, he is entitled to judgment therefor, and to enjoin the obstruction of the wasteway with- boards.</p> <p>3b.—Double Violation of Right by Irrigation District.—The evidence being sufficient to show that the overflow of plaintiff’s land, and the damage to his trees, was caused by the acts of the irrigation district, such acts were not only clearly in violation of the valid order of the superior court, but were also in noncomplianee with the statutory duty imposed upon it by section 38 of the Wright Act, requiring its board, when the route of its canal crosses any stream of water, to “restore the same when so crossed or intersected to its former state as nearly as may be, or in a sufficient manner not to have impaired unnecessarily its usefulness.”</p> <p>Id.—Just Judgment.—The injury to plaintiff being the direct result of a breach of obligation on the part of the irrigation district and its board of officers, defendants, and the evidence showing that the award of damages was not excessive, the judgment is manifestly just, and should be upheld, where no prejudicial error appears or is pointed out in the record.</p> <p>Id.—Injunction Impairing Usefulness of Canal—Res Adjudicata.— The question whether the injunction to prevent obstruction of the wasteway with boards will impair or destroy the usefulness of the canal was determined by the former adjudication, the judgment in which is conclusive between the parties to this proceeding.</p> <p>Id.—Findings Supported by Evidence.—It is held that all of the findings in favor of the plaintiff and against the defendants are supported by the evidence.</p> <p>Id.—Peaceable Possession of Defendants—Absence of Evidence or Plea.—Where there is no evidence to show that the ditch of the irrigation district had been permitted peaceably to remain in the condition shown by the evidence when the injuries were committed, and there is no plea on that subject, an interruption of possession could neither be proved by plaintiff in chief, nor in rebuttal, there being nothing to rebut. If defendants had desired to rely upon peaceable possession, they should have put it in issue.</p>

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

<p>Unlawful Detainer—Judgment for Treble Rent—Motion to Vacate—Objection to Complaint—General Appearance—Waiver of Jurisdiction.—In an action for unlawful detainer, where judgment was rendered for increased treble rent, and defendants, who had not been served with summons, moved to vacate the judgment, such defendants, by objecting to the sufficiency of the complaint, and filing a demurrer thereto, with an affidavit of merits, made a general appearance, and thus waived the objection that the court was without jurisdiction to render the judgment because such defendants were not, or might not have been, served with summons.</p> <p>Id.—Affidavit of Merits not Required.—A motion to vacate a judgment based upon want of jurisdiction of the person does not rest upon section 473 of the Code of Civil Procedure, and does not require the filing of an affidavit of merits.</p> <p>Id.—Piling of Demurrer.—The filing of the demurrer is a move addressed to the merits of the case by the defendants demurring.</p> <p>Id.—Objection to Insufficiency of Complaint — Demurrer in Effect.—The objection to the insufficiency of the complaint, in the motion to vacate the judgment, is itself in effect a demurrer to the complaint, and the defendant thereby challenges the judgment on a ground other than that of want of jurisdiction of the person of the defendants.</p> <p>Id.—Result of Objection on Nonjurisdictional Ground—General Appearance.—Where a motion to vacate the judgment challenges it on any nonjurisdictional ground, though it may be also challenged on jurisdictional grounds, the appearance to challenge it on a non-jurisdictional ground is general in its nature, no matter what the party making the motion may call it, though he may name it as a special appearance. •</p> <p>Id.—Order Vacating Judgment as to Partnership not Sued—Absence of Cause of Action—Void Judgment.—Where it appears not only that the complaint states no cause of action against a partnership, but also that the partnership is not a party to the action and is not sued as such, the judgment rendered against it is void and was properly vacated.</p> <p>Id.—Complaint Against Individuals—Descriptive Words of Partnership.—Where the complaint is against persons individually named, and merely adds descriptive words: “And as partners doing business under the firm name and style of the Petaluma Transportation Company,” such descriptive words do not and cannot make such partnership a party defendant to the action.</p> <p>Id.—Proper Mode of Suing Partnership.—The only proper mode of suing a partnership is where the action is expressly against it as such, under the terms of section 338 of the Code of Civil Procedure, in which case the service of summons on one or more of the partners is sufficient to make the judgment binding not only upon “the joint property of all the associates,” but upon “the individual property of the party or parties served with process.”</p> <p>Ib.—Differing Effect upon Partnership Where Partners Only are Sued.—Where the action is against the members of the partnership in their individual character, and not against the partnership by its partnership name, the effect of the service of summons on one member or on all the members is not to summons the partnership, but only the member or members upon whom service is had, and in such case, in order to bind all of the members of the firm by any judgment obtained in the action, service of summons must be made upon all.</p> <p>Id.—Judgment Against Partnership Coram Non Judice.—Where the complaint is only sufficient as against the members of the partnership sued individually, and is no complaint against the partnership transportation company, a judgment rendered against it would be obviously coram non judice, and may be vacated as such.</p> <p>Id.—Execution of Judgment for Restitution of Premises—Money Judgment for Treble Rent—Proper Vacation as to Partnership.—Notwithstanding the fact that the judgment for the restitution of the premises has been executed as to all parties in possession, yet the money judgment for treble rent not having been executed, and having been rendered against the partnership without jurisdiction, the court properly vacated it.</p> <p>Id.—Rights of Other Defendants—Rehearing.—Though if the motion to vacate the judgment was not clearly denied as to defendants who are respondents, they are entitled to have it acted on in the court below, yet where the judgment here is as broad as the order appealed from as to the partnership, this court cannot on rehearing determine a matter as to the individual defendants about which there is silence in the record.</p>

MOTION to dismiss an appeal from a decree of the Superior Court of Sacramento County, distributing the estate of a deceased person. Peter J. Shields, Judge. The facts are stated in the opinion of the court.

<p>Action to Quiet Title to Irrigating Ditch—Basement—Obstruction—Injunction—Damages—Sufficiency of Complaint.—In an action to quiet title to an irrigating ditch running through and upon defendant’s land, as an easement thereon, which has been obstructed and injured by defendant, and to enjoin defendant from further obstruction or interference therewith, and to recover the damages suffered from such injury, it is held that the complaint states facts sufficient to constitute a cause of action and to entitle the plaintiff to the relief asked for, and that a general demurrer thereto was properly overruled.</p> <p>Id.—Special Demurrer—Question of Parties—Assignees of Irrigating Eights—Showing of Irreparable Injury.—Where the complaint avers that the water is valuable for irrigation, and that depriving plaintiff thereof, unless interference with the ditch is restrained, will result in irreparable injury to plaintiff, that plaintiff has sold portions of his land, and has assigned to his vendees irrigating rights from said ditch, and that a failure to restrain interference therewith will subject plaintiff to liability for damage and litigation on account of such assigned rights of irrigation, and that it would also result in irreparable injury to deprive plaintiff’s remaining land from irrigation, a special demurrer raising, in different forms, the objection that such assignees are necessary parties to the action, was properly overruled. The complaint makes no averments calling for any relief to such assignees, and they are neither necessary nor even proper parties.</p> <p>Id.—Support of Findings Sustaining Complaint.—It is held that all findings relative to the cause of action stated in the complaint, including the charge that defendant prevented, and threatens to continue to prevent, the plaintiff and his grantees from using the ditch, are amply supported by the evidence.</p> <p>Id.—Issues as to Validity of Eeservation of Ditch in Plaintiff’s Deed to Defendant—Contract of Sale — Special Agreement — Conflict—Support of Finding.—Where issues were raised by defendant’s answer and cross-complaint- as to the validity of a reservation of a ditch in favor of the plaintiff and his heirs and assigns, in a deed of land from plaintiff to defendant purchased under a contract of sale not providing therefor, a finding that the reservation of the ditch was specially agreed to, the ditch having been commenced before the money was fully paid and the deed signed, is held to be sufficiently sustained by the corroborated testimony of the plaintiff, notwithstanding the conflicting testimony of the defendant, the question of veracity between them not being determinable by the appellate court.</p> <p>Id.—Agreement to Convey Land “Free and Clear of All Encumbrances”—Construction.—An agreement in the contract of sale to convey the land “free and clear of all encumbrances” only relates to the encumbrances defined in section 1114 of the Civil Code, viz., “taxes, assessments and liens,” the “liens” being such as are defined in section 1180 of the Code of Civil Procedure and section 2872 of the Civil Code. Such agreement is not inconsistent with a special agreement to reserve the easement of a ditch from the deed under such contract, which is not an “encumbrance” within its meaning. If the vendee desired to exclude such visible easement, he should have expressly so declared in the agreement, and his failure to do so implies that such was not his intention.</p> <p>Id.—Bule as to "Visible Physical Burdens—Absence of Express Agreement—Presumed Contract.—In cases where there is a physical burden upon property conveyed which is visible, there is a fair and reasonable presumption, in the absence of an express agreement, that both parties act with reference to this plain existing burden; that the vendor on the one hand demands and the vendee on the other hand pays, only the fair value of the land, as visibly encumbered; and such burdens by way of notorious physical easements are not really “encumbrances” within the meaning of the covenant against encumbrances, because the real subject matter of the dealing between the grantor and grantee is the land subject to the visible easements.</p> <p>Id.—Presumed Contract not Overcome — Means of Knowledge of Ditch and of Contents of Deed Reserving Easement.—Held, that the presumed contract is not overcome, but confirmed and strengthened by the evidence supporting the findings as to the agreement for the reservation of the ditch, and as to the means of knowledge by the defendant both of the existence of the ditch and of the reservation thereof in the deed.</p> <p>Id.—Estoppel of Grantee to Plead Ignorance of Covenants in Recorded Deed.—A grantee will not be permitted to plead ignorance of the covenants of a deed executed to him after it has been accepted and recorded, as a ground for defeating the force and effect of such covenants, where there is no evidence that the grantor in any way prevented a personal inspection of its contents by him.</p> <p>Id.—Presumed Reading of Deed by Grantee—Notice from Record.— Every person is presumed to read the deed under which he holds, and a failure to -read recitals therein- cannot avail him as a defense when it is sought to charge him with notice thereof. If a man will under certain circumstances be presumed to know the contents of a deed to another, how much more reasonable is it to' presume that he has knowledge of the contents of his own deed. For the law will not permit Mm to deny notice by insisting that he has not read the deed.</p>

<p>Order Granting New Trial — Ground not Specified — Grounds of Motion—Review upon Appeal.—Where an order granting a new trial does not specify -the particular ground upon which the order Is based, it must be affirmed upon appeal, if it can be justified upon any of the grounds upon which the motion for a new trial was made.</p> <p>Id.—Recital of Grounds of Motion in Order—Insufficiency of Evidence.—Where the order granting the motion generally recites two of the grounds of the motion, one of which is insufficiency of the evidence, there can be no doubt that the order can be justified on the ground of insufficiency of the evidence to sustain the verdict.</p> <p>Id.—Discretion of Trial Court—Decision or Verdict Against Evidence.—The granting or denying of a motion for a new trial on the ground that the decision or verdict was contrary to the evidence is largely within the discretion of the trial court, and its action in this respect will not be reversed, unless its discretion has been abused, whether this be the only ground upon which the motion is made or one of several statutory grounds.</p> <p>Id.—Discretion not Abused—Conflicting Evidence—Duty of Trial ■ Judge.—If there is a substantial conflict in the testimony, it cannot be held that the trial court abused its discretion in granting a new trial; but it must be assumed that the showing made by the respective parties carried conviction to the mind of the trial judge that the verdict was wrong, and holding to this belief, it was his duty to grant the motion for a new trial.</p> <p>Id.—Trial Court not Bound bt Verdict.—Where the evidence is conflicting, the trial court, in passing upon the motion for a new trial, is not bound by the verdict of the jury, and cannot rest upon the conflict of evidence, but must weigh and consider the evidence for both parties, and determine for itself the just conclusion to be drawn from it.</p>

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

<p>Negligence of Electric Power Company—Lines Broken by Snowstorm;—Insufficient Inspection-—Action for Death.—Where the lines of an electric power company in a municipality were caused by a heavy snowstorm to sag and break, and the power was turned off during an inspection of the lines which was partial and incomplete, and then the power was turned on again, so as to charge in full a broken line which it failed to inspect or repair within a reasonable time, and thereby caused the death by electrocution of one who was .moving the broken wire out of the way, believing it to be harmless, such failure fully to inspect its lines throughout the municipality, and to discover and repair the broken wire, was actionable negligence.</p> <p>Id.—Company Put upon Notice by Storm—Unreasonable Delay.— The company was plainly put upon notice by reason of the storm, and in view of the ageney with which it was dealing, and the importance of the safety of citizens, the company could not be held blameless for its failure to ascertain and avert the obvious peril. While a reasonable time would be allowed to make an investigation, yet the proximity of the scene of the accident and its accessibility to the company’s office rendered the delay of two days after the storm unnecessary and unreasonable.</p> <p>Id.—Duty of Operator of Electric Plant—System op Inspection.— The owner or operator of an electric plant is bound to exercise reasonable care in maintaining a system of inspection by which any change in the physical condition of the plant which could tend to increase the danger to persons lawfully in pursuit of their business or pleasure may be reasonably discovered.</p> <p>Id.—Care to be in Proportion to Danger.—The care which the law exacts from any person, firm or corporation engaged in operating an instrumentality is always in proportion to the degree of danger reasonably to be apprehended from the use of the means employed.</p> <p>Id.—Contributory Negligence—Burden op Proof.—In this state the burden of proving contributory negligence is east upon the defendant.</p> <p>Id.—Contributory Negligence a Question of Pact for Jury.—Contributory negligence is a question of fact for the jury, and while there is evidence from which the jury might be warranted in finding against the existence of contributory negligence, yet it cannot be said that the freedom of the deceased from contributory negligence is so clear that an adverse finding is entirely unsupported.</p> <p>Id.—Aimless or Needless Seizing of Wire.—Where there is evidence that the deceased picked up the wire with both hands, and the inference is not unreasonable that there was no occasion for him to take hold of the wire either for his own safety or that of others, even if he had reason to believe that the wire was harmless, yet if he aimlessly or wantonly or unnecessarily seized it and thereby received a shock, it would still be competent for a jury to find that his unnecessary or reckless act was inexcusable, and to hold him legally responsible for the consequences.</p> <p>Id.—New Trial—Newly Discovered Evidence—Witness Present at Trial.—The court did not err in refusing to grant a new trial for newly discovered evidence, where it appears that the witness was on the stand during the trial, and the evidence might have been produced with reasonable diligence at the trial.</p> <p>Id.—Pleading—General Charge of Negligence—Specification—Instruction Excluding Issue as to Negligent Construction.— Where the complaint alleged negligence generally, with specifications as to the dangerous condition of the wire, and defendant’s negligence in failing to discover and remove it, or to turn ofE the current of electricity therefrom, and in permitting it to remain on the ground heavily charged with electricity for an unreasonable time, and that defendant’s death resulted from such negligence, without specifying anything as to the negligent construction of cross-bars, an instruction that the complaint tendered no issue as to such negligent construction was properly given.</p> <p>Id.—Rule as to Allegation and Proof—Evidence of Condition of Cross-bar as Part of Res Gestae.—The instruction given was in line with the familiar rule requiring 9 correspondence between allegation and proof, and-it was not ground for reversal, notwithstanding evidence as to a cross-bar received without objection, as part of the res gestae, as to the appearance of the cross-bar attached to the pole nearest to the deceased. Such evidence does not constitute or show any acquiescence in the theory that the complaint charged negligence as to the construction of the cross-bars nor conflict with the rule that the recovery must be confined to the allegations made and the proof thereof.</p> <p>Id.—Requested Instruction as to Negligence Based on Snowstorm —Exclusion of Inadequacy of Power Line — Abstract Error Without Prejudice.—A requested instruction as to negligence of the defendant based on injury to its wire from a snowstorm, which is abstractly erroneous by its indication that negligence consisting of inadequacy, insecurity and insufficiency in the installation and maintenance of its power line was immaterial, was not prejudicially erroneous, in view’of other instructions given, and also in view of the fact there is no evidence of any imperfection of any kind in the construction or maintenance of the power line, but, on the contrary, the evidence shows without conflict that they were not faulty in any respect.</p> <p>Id.—Prejudicial Instruction—Presumption of Knowledge of Dangers of Electricity—Invasion of Province of Jury.—An instruction that “a man of ordinary prudence and understanding, who has lived in a city, neighborhood, or community where electricity is conveyed by means of power and pole lines for purposes of heat, light and power, and where electric power transmission lines are installed and maintained, and who has been around electrical power lines, transmission lines, service lines, machinery and appliances, is presumed to know the powers, dangers and potentialities of electricity and electric power,” is prejudicially erroneous, as invading the province of the jury, and ignoring the question of fact whether deceased had reason to believe that the wire was not charged with electricity.</p> <p>Id.—Presumption in Opposition to Pact—Province of Court.—The presumption stated in the instruction is in opposition to the fact. No ordinary man is presumed to know the “powers and potentialities of electricity.” Nor is it one of the unquestioned data of general knowledge that the ordinary man who lives in a neighborhood where there are electric plants, or who has been around the machinery and appliances, can be presumed to know the “dangers and potentialities of electricity”j nor is a court so permitted to declare to a jury.</p> <p>Id.—Determination of Knowledge of Danger by Deceased—Question for Jury.—The determination of the knowledge of danger on the part of the deceased should have been left to the jury without any direction unfavorable to plaintiffs.</p> <p>Id.—Request by Plaintiffs—Absence of Negligence of Deceased— Proper Test Belief of Ordinarily Prudent Man—Modifications —Suspicion.—A requested instruction by plaintiff that if the jury find that deceased, “when going to or coming from his work, found a wire in his way, and that he did not believe it was carrying a current of electricity, and that an ordinarily prudent man in his situation would not have believed that said wire was carrying a current of electricity, then if you find that he placed his hands on said wire in an endeavor to get it out of his way he was not guilty of negligence,” was in proper form, and a modification introducing an element of suspicion might well have been omitted. The proper test is whether an ordinarily prudent man, under the same circumstances, would have believed there was danger.</p>

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

<p>APPEAL from a judgment of the Superior Court of Los Angeles County, and from orders denying a new trial and refusing to set aside the information. George R.' Davis, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Public Lands—State Certificate of Purchase of Lieu Lands—Title not Acquired Before Listing to State.—The grant by the United States of lands in lieu of sixteenth and thirty-sixth sections lost to the state was not in presentí, and could not vest title until such lieu lands were listed from the United States to the state; and a state certificate of purchase of lieu land vests no title, legal or equitable, prior to the approval of the selection by the United States, and if the selection is rejected there is no possibility of title under such certificate.</p> <p>Id.—Action by Holder of State Lieu Land Certificate to ¡Recover Taxes Paid by Mistake.—The holder of a state certificate of gurchase of lieu land which has been rejected by the United States, and under which no possession was ever taken, and who has by mistake paid state and county taxes thereon, and who has presented a claim therefor, as required by the terms of the Political Code, which has been rejected by the board of supervisors, may maintain an action against the county under section 3804 of that code, to recover the taxes paid, with interest from the date of rejection of the claim.</p> <p>Id.—Certificates of Purchase of Lieu Lands not Taxable.—Certificates of purchase of lieu lands, apart from the land, which convey no title thereto, legal or equitable, are not taxable as property.</p> <p>Id.—Sufficiency of Complaint.—It is held that the complaint states sufficient facts to constitute a cause of action under section 3804 of the Political Code, and that a demurrer thereto was improperly sustained.</p> <p>Id.—Certainty of Averment of Title—Deraignment not Required.— The complaint is not uncertain in not giving the names of the persons to whom the certificates of purchase were issued. It was sufficient to allege possession and ownership of the certificates by assignment, and plaintiff was not required to plead his deraignment of title.</p> <p>Id.—Listing Certificates for Taxation—Absence of Estoppel.— Plaintiff is not estopped from asserting the invalidity of the assessment of the certificate in the action to recover taxes paid thereon by mistake, merely because he made a verified statement in listing them for taxation. The case lacks the elements of estoppel.</p> <p>Id.—Plaintiff Misled—State the Greater Offender—Prejudice Essential to Estoppel.—The facts show that the plaintiff was misled by the action of the state in selling the certificates of purchase of lieu land, and that the state in so doing was the greater offender. It cannot be said that the state was injured or prejudiced by the payment by plaintiff of taxes upon such certificates. Injury or prejudice arising from plaintiff’s conduct is of the essence of an estoppel.</p> <p>Id.—Equitable Estoppel—Exceptional Cases—General Bulb as to Belief.—An estoppel in pais is of equitable cognizance, and it is only in exceptional eases that it will be enforced where equity and good conscience forbid the relief sought. This ease is not of such exceptional character, but the general rule applies granting the relief sought.</p> <p>Id.—Restitution of Unauthorized Taxes—Authority of Law.—The state, in receiving unauthorized taxes on its certificates of purchase of lieu lands, got something for nothing, and is asked to make restitution, which is expressly authorized by section 3804 of the Political Code in such a ease as this.</p>

<p>Estates of Deceased Persons—Void Holographic Will—Blank Date Hnfilled—Probate Properly Denied.—A holographic will, with the year only written, and with blanks for the day and month left unfilled, is not dated within the meaning of section 1297 of the Civil Code, defining a holographic will, and by reason of the incompleteness of the date, it does not meet the requirements of the statute prescribing the requisites of a holographic will, and the court properly denied a petition for its probate.</p> <p>Ib.—Wills Purely Statutory—Substantial Compliance With Statute Essential.—Last wills and testaments are entirely creatures of' the legislature, and while some of the formalities with which they are required to be executed may appear to be immaterial and unnecessary, yet the right thus to dispose of one’s estate being purely statutory, the manner of such disposal as prescribed by the statute must be observed with at least substantial strictness.</p> <p>Id.—Substantial Departure from Statute — Void Will — Administration.—If there be a substantial departure from the formalities prescribed by the statute in an attempted testamentary disposal of one’s property, there is no last will, in law, and the decedent’s estate must go to the administrator.</p> <p>Id.—Common Meaning of “Date”—“Year, Month and Day”—Omission of Any One Fatal to Holographic Will.—The term “date,” in its common and accepted signification, means the “day, month and year,” the omission of any one of which is fatal to a holographic will.</p> <p>Id.—Mental Sounúness and Capability of Testamentary Disposition Immaterial.—The fact that during all of the year 1906, in which the holographic will was written, the testatrix was mentally sound and capable of making a testamentary disposition of her estate, is immaterial, and cannot justify the omission of an essential requirement of the statute.</p>

<p>Street Railroad Corporations—Formation—Provisions as to Railroad Corporations Inapplicable—Mandamus.—Sections 291, 293, 294 and 295 of the Civil Code, applying to the formation of railroad corporations, do not apply to the formation of street railroad corporations, and the articles of incorporation of the latter are not required to set forth subdivisions 2, 3 and 4 of said section 291, nor is a street railroad corporation required to file with the Secretary of State the affidavit of the payment of ten per cent of the subscribed capital stock provided for in said section 295; and where a street railroad corporation otherwise complies with the law of its incorporation, and the Secretary of State has refused to file its articles of incorporation upon tender of the fees therefor, mandamus will lie to compel him to file the same upon payment of such fees, and to issue the proper certificate of incorporation.</p> <p>Id.— Powers Stated in Articles—Motive Power—Extension op Street Railroad—Construction op Code.—Where the street railroad corporation, in its articles, enumerated as its powers, “To construct, or acquire by purchase or lease or otherwise, and to operate, control, maintain, improve or extend street railroads propelled or operated by electricity or other motive power within the city of Los Angeles, California, and within the territory immediately adjacent thereto, in the county of Los Angeles," the provision for the use of other motive power was not improperly inserted, in view of the possible contingency of steam power, under sections 497 and 509 of the Civil Code, without making it a commercial railroad; and the authority to operate beyond the city of Los Angeles does not take from it the essential character of a “street railroad.”</p> <p>Id.—Policy op Law Against Customary Use op Steam Power.—It is the policy of the law, for good reasons, that street railroads shall not customarily be operated by steam power, and such power may be used only upon the happening of the contingency provided for in the Civil Code.</p> <p>Id.—Construction of “Other Motive Power” in Articles.—It is not to be assumed that the provision in the articles as to “other motive power” than those expressly enumerated in section 497 is intended to invest the corporation with power in that respect, in any measure • in excess of that prescribed by the several code sections on that subject.</p> <p>Id.—Distinction Between Street Railroads and Commercial Bail-roads—Length and Local Character.—There is a clear .and marked distinction between street railroads and commercial railroads. The termini of a commercial railroad may be' hundreds of miles apart, while a street railroad is local in its origin, nature and character, whether it operates its road wholly in a city, or partly in the city and partly in the country, under distinct franchises constituting one continuous local line of street railroad.</p> <p>Id.—Distinct Modes of Business, Objects and Purposes.—The street railroad and the commercial railroad are distinct, both as to the mode and manner of doing their business and in their object and purposes. They are in no sense competitors.</p> <p>Id.—Distinct Eights in Use of Streets and in Nature of Franchise. An ordinary railroad obtains its franchise by incorporation for the purpose of extending its line between its termini, and its right to use a street is no part of its franchise, but is a mere right of way constituting part of its roadway. But the right which a. street railroad obtains from the city to lay its track and operate its road in its streets is the most valuable part of the franchise. It does not receive it from being incorporated, but obtains it afterward by special grant from the municipality, which includes both the roadway and the franchise.</p> <p>Id.—Distinct Nature of Traffic—General and Local.—A commercial railroad company engages in a general traffic, and is unfitted to engage in the purely local traffic which characterizes the street railroad company.</p> <p>Ib.—Distinction as to Estimated Length of Boad.— The requirement that a railroad company shall make an estimate of its length is very easy of accomplishment; while such an estimate of length cannot be required of a street railroad company, whose line must vary in length according to the requirements of local business, both in and outside of the limits of the city, to be determined by the local authorities.</p>

<p>Estates of Deceased Persons—Removal of Executors — Effect of Appeal—Suspension from Office.—Where a will has been proved and the executors have been removed for failure to publish notice to creditors within the required time, pending an appeal from the order removing them they are suspended from office, until the final determination of the appeal.</p> <p>Id.—Jurisdiction of Court Pending Appeal—Appointment of Special Administrator — General Administration not Permissible.— Pending such appeal the court may appoint a special administrator to collect and take charge of the estate, but has no jurisdiction to appoint a general administrator, until the order appealed from has become final.</p> <p>lb.—Appointment of Administrator With the Will Annexed—Reversal of Order.—The court had no power, pending such appeal, to appoint an administrator with the will annexed on nomination of the widow, and such order must be reversed.</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>Negligence — Injury to Servant — Defective Platform — Falling upon Knives — Adjusting Machine in Motion — Evidence — Order not to Stop Engine.—In an action for injury to a servant of defendant employed in its planing mill, in falling through a defective platform and against knives, while adjusting the gauge of the machine in motion, evidence that, owing to the engine being too small for its burden, so that if it were stopped and started again the increased burden upon the engine would reduce the steam pressure, strict orders were given that the engine should not be stopped unless absolutely necessary, was competent, not to show that the defendant was negligent generally, but to explain why the plaintiff did not stop the engine before attempting to adjust the gauge of the machine.</p> <p>Id.—Instruction—Preponderance of Evidence.—An instruction that if the evidence tending to prove the facts plaintiff is required to prove is of more weight than the evidence tending to disprove such facts, then the plaintiff has proven such facts by a preponderance of evidence, does not imply that he can recover without a preponderance of evidence, ‘especially where in the same instruction, as well as in other instructions, the court directly stated that in order for the plaintiff to recover he must establish the facts by a preponderance of the evidence, and elsewhere stated that if the evidence was equally balanced, the verdict must be for the defendant.</p> <p>Id.—Request Properly Refused—Discovery of Prevention After Accident—Negligence—Admitted Defect in Platform.—The court properly refused a requested instruction that: “After an accident has occurred, it may be easy to see what would have prevented it, but that of itself does not prove that reasonable or ordinary care would have anticipated and guarded against it. For plaintiff to show what would have prevented the accident is not proof of negligence,” since such instruction is not in point, in case of an admitted defect in the platform which had been called to the attention of the party charged, and upon the knowledge of which by the defendant and its superintendent the whole cause of action of the plaintiff is based.</p> <p>Id.—Proper Instruction in Lieu of Refused Instruction—Unforeseen Accident—Reasonable Prudence.—The court, in lieu of such refused instruction, properly charged the jury that “the defendant in this ease cannot be held guilty of negligence, if the- evidence shows that he failed to provide against an accident that would not have been foreseen by a reasonably careful person or against an accident such as reasonable prudence would not have anticipated the need of guarding against.”</p> <p>Id.—Bequest Properly Defused— Duration of Promise to Bepair Defect.—The court properly refused a requested instruction that an employee may rely on the promise of his employer to repair the defect existing in a machine which the employee is operating, only for so long a time as is reasonably necessary to repair the defect.</p> <p>Id.—Change of General Bule as to Assumption of Bisk—Assumption by Employer Promising to Bemedy Defect.—The general rule, that one who remains in the service of the employer after knowledge of a defect in a machine operated by him assumes the risk of the increased danger, does not apply, but the relations of the parties undergo a change when the employee gives notice of the defect to his employer, and he promises to remedy the same, in which case the employer assumes the risk, according to the nature of his promise.</p> <p>Id.—Extent of Assumption of Bisk by Promising Employer.—When the promise of the employer that the danger will be removed names no definite time, it is in effect an agreement that he assumes the risk for a reasonable time; but when the promise is that the repair shall be made upon the happening of a certain event, the master assumes the risk until the event has happened, and for a reasonable time thereafter.</p> <p>Id.—Promise to Bepair at Time of “Bush Orders.”—Where the promise to repair was made and repeated during a time when the defendant was engaged in “rush orders,” which were not completed when the accident happened, the assumption of the risk of the accident was upon the employer.</p> <p>Id.—Support of Verdict.—It is held that, under the principles of law applicable to the facts of the case, the evidence is sufficient to support the verdict in favor of the plaintiff against the defendant.</p> <p>Id.-—Plaintiff not Bequired to Bepair Platform — Duty Devolved upon Another Employee.—Where the defective platform had been broken by a falling timber, and the plaintiff was not provided with any material to repair the same, he owed no duty to do so, especially where it appears that the authority and duty to make such repairs would devolve upon another employee of the defendant, if ordered to make them.</p> <p>Id.—Submission of Issues to Jury.—It was not error for the court to refuse to submit a special issue to the jury which is fully covered - by another special issue submitted to them.</p> <p>Id.—Amount of Verdict not Excessive.—It is held that a verdict for $5,000 damages for the loss of a right arm at the elbow was not excessive.</p>

<p>Water Rights—Reservation in Deed—Amount in Use at Time of Deed.—Where the grantors of a deed reserved “the right to take and use the water as now taken and used by the parties of the first part, and the right to enter upon said land to repair and maintain proper flumes, pipes or conduits necessary to conduct and lead onto the lands of the parties of the first part, the amount of water now appropriated and used by said parties of the first part that are accustomed to flow on, upon and across the lands hereby conveyed,” such reservation includes only the amount of water in use by the grantors at the time o'f the deed, for beneficial purposes, and not the carrying capacity of their flume at that time.</p> <p>Id.—Evidence for Defendant — Finding as to Amount of Use — Plaintiff not Injured.—Where the evidence for the defendant variously estimated the amount of water applied to a beneficial use by the plaintiff at the time of the deed as amounting from two hundred and fifty to seven hundred and twenty-five gallons per day, and as there is no evidence in the ease that a greater amount than one thousand gallons per day flowed through the flume, the plaintiff cannot successfully complain that he is injured by the liberal allowance by the court to the plaintiff of the amount of one thousand gallons per day as having been appropriated and used by him at the time of the deed.</p> <p>Id.—Extravagant Claim of Plaintiff and Advisory Verdict Set Aside.—Where plaintiff claimed all of the waters of the creek, and an advisory verdict of the jury, based on the right of the plaintiff to the full carrying capacity of his flume, found that he was entitled to seven hundred thousand gallons of water per day, the court properly set aside the advisory verdict, and found the amount of the water taken and used by plaintiff at the time of the conveyance, and rendered judgment accordingly.</p> <p>Id.—Construction of Reservation—Ordinary Flow not Included.— It is held that under the proper construction of the reservation, plaintiff was entitled, not to the amount of water that ordinarily flowed through the flume, but to the amount thereof that he was accustomed to use at the time of the conveyance.</p> <p>Id.—Effect of Reservation—Appropriation to Beneficial Use.—The words, “taken and used,” and “appropriated and used,” found in the reservation, may well be given the ordinary legal meaning of the word “appropriated” as used in connection with the acquisition of water rights, in. which the appropriator’s rights are measured, not by the capacity of his conduit, but by the amount actually applied to a beneficial use.</p> <p>Id.—Construction of Reservation—Amount of Water Presumably Used—Estoppel of Plaintiff.—It is held that the court correctly construed the reservation in the deed by limiting the plaintiff’s rights (in the absence of evidence of the exact amount of water used by him at the time of "the conveyance) to about the amount of water presumably so used; and that the plaintiff cannot be heard to complain of such construction, especially as the court was quite liberal in computing the amount of water on this basis.</p> <p>Id.—Conduct of Plaintiff and Grantee Inconsistent With Plaintiff’s Complaint.—The evidence shows that the conduct of the plaintiff and his grantee was inconsistent with the claim made in the complaint to all of the waters of the creek, in that such grantee under the deed shortly after its execution took water from the creek through a three-inch pipe from a point above the intake of plaintiff’s flume and no claim was then made that he had reserved all the waters of the creek.</p>

<p>Criminal Law—Forgery of Lease—Uttering and Publishing—Record—Support of Verdict.—A verdict of guilty of the crime of forgery of a lease and the subsequent uttering and publishing thereof as true is supported, in the absence of evidence for the defense, by the evidence for the people that the lease was not signed by the lessor, that the signature thereto was in defendant’s handwriting, that the acknowledgment thereof was fraudulently procured by defendant, and that it was subsequently uttered and published by the filing of the forged lease for record in the recorder’s office, at defendant’s request and on payment of the requisite fees therefor.</p> <p>Id.—Sufficiency of Information—Single Offense.—An information charging the forgery of a lease of a specified date set forth in the information, and the uttering and publishing thereof as true, on a subsequent date, sets forth but one single offense under section 470 of the Penal Code.</p> <p>Id.—Question of Law not Raised upon Sufficiency of Evidence.— Inasmuch as the evidence appearing in the record tends to support every material' allegation of the information, no question of law in connection therewith is presented.</p> <p>Id.—Exemplars of Handwriting by Experts—Order of Proof.—The fact that certain exemplars of the handwriting of the defendant submitted to experts had not theretofore been established as genuine signatures is of no consequence, where their genuineness was subsequently established by uneontradieted testimony. When the court was satisfied that the exemplars were genuine, it was proper to submit the same to the witness or to the jury for comparison.</p> <p>Id.—Province of Jury as to Comparisons and Opinions of Experts. When the exemplars were in evidence, a comparison thereof may be made by the jury with or without the aid of experts. The weight and effect of the opinions of experts, or the result of comparisons, was a matter for the jury.</p> <p>Id.—Admission of Photographs of Signatures and Papers—Discretion of Court.—The admission in evidence of photographs of signatures and papers was within the discretion of the court, when no abuse of its discretion appears.</p> <p>Id.—Comparisons Showing Guilt.—It is held that, after an examination of the exhibits on file in the appellate court, no reasonable doubt can exist as to who wrote the signature upon the lease.</p> <p>Id.—Evidence of Witnesses Familiar With Signature of Lessor—Improper Cross-examination as Experts.—Where witnesses were admitted, not as experts, but as familiar with the handwriting of the lessor to testify that the signature was not that of the lessor, a cross-examination of such witnesses as to their qualification as experts was properly disallowed.</p> <p>Ib.—Communication by Defendant to Notary not Privileged.—The communication by the defendant to the notary stating that the signature to the lease was the genuine signature of the lessor was not privileged, and was properly admitted in evidence.</p> <p>Id.—False Statements by Notary — Explanation — Credibility for Jury.—The notary was properly permitted to explain previous false statements made by him, and to give his reason for making them. His credibility was for the jury to determine.</p>

<p>PETITION for writ of habeas corpus after conviction for a misdemeanor in the Juvenile Court of Los Angeles County.</p> <p>The facts are stated in the opinion of the court.</p>

APPEAL Iron a judgment of the Superior Court of the Cits'- and County of San Francisco, and from an order denying a new trial. Frank H. Dunne, Judge. The facts are stated in the opinion of the court.

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

<p>Corporations—Action Affecting Land—Failure to File Articles— Matter of Abatement—Waiver/—In an action by a corporation affecting the title to land, its failure to file its articles of incorporation in the county does not forfeit its property, or deprive it of its cause of action, or bar another suit, nor go to the jurisdiction, but is merely matter of abatement of the action, the right to maintain which 'is suspended until the statute is complied with. Such matter of abatement is a special defense which must be urged by a plea in abatement, which is waived, unless it is affirmatively pleaded.</p> <p>Id.—General Rule—Articles to be of Record at Time of Plea.— It is the general rule that the articles of incorporation must be of record in the clerk’s office at the time the plea in abatement is interposed, otherwise the plea is good.</p> <p>Id.—Exception to Rule—Failure to Plead Abatement in Original Answer—Allowance of Amendment—Agreed Condition—Proof of Articles.—The general rule does not apply, where, after failure to plead abatement in the original answer the court allows it by way of amendment upon the agreed condition between the court and the parties that plaintiff may before submission of the cause prove that the proper copy of the articles is filed for record in the county; and that proof of such filing shall be deemed a compliance with the statute for the purpose of maintaining the action.</p> <p>Id.—Effect of Proof of Filing Under Agreed Condition—Relation to Agreement — Disallowance of Plea—Proof in Rebuttal.— Proof of the filing of the articles in compliance with the agreed condition may be deemed to relate to the agreement, which antedated the plea, or it may be regarded as a disallowance of the conditional plea, or as competent testimony in rebuttal of the plea, as either would have the same effect of maintaining the action by such proof.</p> <p>Id.—Quieting Title of Corporation—Title Under Naked Trustee— Judgment Lien Against Trustee Ineffective—Title of Defendant Thereunder Void.—Where the corporation plaintiff derived its title from the owner through a naked trustee, no judgment lien could be acquired against such naked trustee, and no title could be acquired by the defendant under a sheriff’s sale by virtue of such judgment lien, and the plaintiff corporation may quiet its title against the defendant.</p> <p>Id.—Nature of Judgment Lien.—A judgment can operate as a lien only on the interest of the judgment debtor, and a mere naked trustee has no interest in the land upon which a judgment lien can attach.</p> <p>[d.—Husband and Wife—Sale of Community Property by Husband —Presumption Against Fraud.—A wife not a party is not presumed to have been defrauded by a sale of the community property by the husband, for a valuable consideration, through a trustee of the naked legal title, to pass the same to a purchaser. It must be presumed that the husband received in return an adequate consideration, though he received a less sum then he had originally asked.</p>

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

<p>Criminal Law—Lewd and Lascivious Acts With Boy—Sufficient Information—Conjunctive Pleading—Single Offense.—An information charging the defendant, in the language of the statute, conjunctively, with the offense of willfully and lewdly committing certain described lewd and lascivious acts upon and with the body and private parts and members of a boy named under fourteen years of age, with the intent to arouse the passions of the child and of the defendant, states but one offense. The commission of any or all of the acts described in, and with the intent stated by, the statute constitutes but one and the same crime or offense, and not different offenses. A demurrer to the information on the ground that more than one offense was charged in one count was properly overruled.</p> <p>Id.—Evidence—Previous Acts of Sodomy—Result of Aroused Passions—Intent as to Offense Charged.—Evidence was admissible to show that, prior to the commission of the offense charged, acts of sodomy had been committed by the boy with the defendant, after the déíendant had committed lascivious acts with the private members of the boy, which aroused his sexual passions, so that sodomy was the resulting act, and that these several acts in each case were connected and inseparable. Such evidence would tend to show what the purpose and intent of the defendant was on the occasion charged in the information, and was competent for that purpose.</p> <p>Id.—Instructions as to Accomplice—Rule as to Young Boy.—The instructions as to an accomplice were correct in law as to an adult accomplice, but were more favorable to the defendant than he was entitled to, since the boy was thirteen years of age, and the instruction might well have contained the statement of section 26 of the Penal Code, providing that children under the age of fourteen are incapable of committing crimes, in the absence of clear proof that at the time of committing the act charged against them they knew of its wrongfulness.</p> <p>Id.—Request Properly Refused—Matter of Pact—Difficult Proof of Charge.—An instruction asked by defendant, that charges like the one made against defendant were easy to make and hard to prove, was not an instruction as to matter of law required to be given by the court to the jury.</p> <p>Id.—Immaterial Variance in Name—Idem Sonans.—Where the information charged that the improper acts were committed with a boy named “William Strandberg,” and the proof showed that the boy’s name was “William Elmer'Standberg,” the variance is not sufficient to vitiate the judgment. These names were so similar as to make the' doctrine of idem sonans applicable.</p> <p>Id.—Misconduct of Jury not Shown—Note to Jury Stating Death —Prejudice not Presumed.—The mere fact that while the jury were deliberating on their verdict a card was handed in stating “Aunt Sophia is dead,” and that shortly thereafter they agreed upon their verdict, does not establish misconduct of the jury, where it was not shown from what source the card came, or for whom it was intended, or that it had any effect upon the minds of the jury or any of its members, or that it tended to induce an agreement upon the verdict. In the absence of such showing, no' prejudice can be presumed to have resulted to defendant.</p>

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

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

<p>Corporations—Lease op Booms—Furniture—Unauthorized Security por Bent—Attachment—Action Against Sheripp—Unsupported Finding.—Where one corporation leased rooms from another owning the building and was in default for rent, and the lessor took possession of the lessee’s furniture by locking the rooms, but allowed a meeting of directors of the lessee to be held therein, after which it was stated as the sense of three or four of the directors talking about it that the lessor should hold the furniture as security for the unpaid rent, whereupon it reloeked the rooms, after which, at suit of a creditor of the lessee, the sheriff seized and removed the property, and an action was brought by the lessor against the sheriff and his surety, in which the lessor recovered judgment, it is held that a finding in such action that the corporation lessee delivered the furniture to the lessor as security for rent is unsupported by the evidence.</p> <p>Id.—Burden op Proop upon Plaintipp—Bight op Possession.—The burden of proof was upon the plaintiff, in order to sustain the action against the sheriff and his surety for seizure of the leased furniture, to show not only that it had possession thereof at the time of the levy, but also some right of possession. But it is held, upon the facts, that the plaintiff failed to show any right of possession of the furniture.</p> <p>Id.—Authority op Oppicers op Corporation—Pledge op Property por Antecedent Debt.—The executive or managing officers of a corporation have not the authority, except upon power from the board of directors, to pledge or mortgage the property of the corporation for an antecedent debt. No director of the corporation has such power.</p> <p>Id.—Power op Board op Directors—Vote When Assembled as a Board Essential.—The board of directors of a corporation may pledge its property for an antecedent debt, but that it may authorize such act it is necessary that the board shall be in session at a meeting lawfully assembled.</p> <p>Id.—Burden op Plaintiff to Show Lawful Action op Directors.— Plaintiff, relying upon the right of possession as conferred by the board of directors of the corporation lessee, must affirmatively show facts from which such authority may be reasonably inferred. Seven members out of eleven would have no authority to pledge the corporate property for an antecedent debt, if it is not shown that they were legally assembled for the transaction of corporate business.</p> <p>Id.—Vote or Resolution of Directors Essential—Record not Essential.—Some formal action of the board of directors by vote or resolution of a majority of the members of the board lawfully assembled is necessary to warrant the pledging of the corporate property. The vote or resolution need not be spread upon the minutes, if it is shown to have actually passed.</p> <p>Id.—Informal Conversation Showing Sense op Majority Insufficient.—The mere statement of a conversation between four out of seven directors, there being no proof that the other three were present or participated therein or were aware thereof, is far from showing any resolution or authority upon the part of the board.</p> <p>Id.—Seizure op Possession by Landlord.—A landlord who has no lien reserved for rent, or for the value of the use and occupation, cannot acquire right of possession of the tenant’s personal property for rent by forcibly taking possession thereof.</p> <p>Id.—Rights op Lessee and op Attaching Creditor.—If the corporation lessee - could have legally maintained claim and delivery of the property against the lessor, the right of possession thereof being in the lessee at all times, the writ of attachment against the lessee would be a sufficient justification without further proof of its lawful issuance or of the debt sued upon.</p> <p>Id.—Averment op Justification in Complaint.—Where the complaint in the action against the sheriff alleges that the writ of attachment was duly issued, such averment can receive no other construction than that the action was based upon a debt and upon an affidavit required by the statute, which establishes the justification, in any point of view.</p>

<p>Unlawful Detainer—Possession by Stranger After End of Lease— Bemoval of Tenant—Absence of Collusion—Support of Findings.—Where the theory of an. action of unlawful detainer was that defendant took possession of plaintiff’s premises by collusion with the lessee, and issue was joined thereupon, and the only evidence upon the subject was that of the defendant; who testified that the lessee removed from the premises at the end of the lease, and that defendant’s possession was not taken with the lessee’s inducement or consent, and had no relation whatever to the lease, findings for the defendant, based upon such testimony in the absence of any contradiction thereof, are fully supported by the evidence.</p> <p>Id.—Estoppel of Tenant and Privies—Strangers not Bound.—The rule of estoppel which prevents a tenant and those claiming under him from denying the landlord’s title does not bind a stranger who claims possession of the land in his own right, and does not enter under the tenant or use the tenant’s possession as a means of acquiring the possession for himself.</p> <p>Id.—Bembdies—Unlawful Detainer—Absence of Tenancy—Forcible Entry and Detainer—Possession Over a Tear.—The remedy of unlawful detainer cannot be maintained under section 1161 of the Code of Civil Procedure against one who does not hold either under the landlord nor his tenant. Nor can the remedy of forcible entry and detainer be maintained under section 1172 of that code against a stranger who has been in the quiet possession of the premises for a period of more than one year.</p>

<p>Appeal from Justice’s Court—Limit of Time to Perfect Appeal— Undertaking—Notice.—No jurisdiction, is acquired of an appeal from a justice’s court, unless all of the steps required to perfect the same, including the filing of the undertaking and the giving of notice thereof, are completed within the limit of thirty days after the rendition of the judgment fixed by section 974 of the Code of Civil Procedure.</p> <p>Id.—Construction of New Provision—Further Condition of Perfecting Appeal—Object of Provision as to Undertaking.—The new provision added by section 978a that the undertaking must be filed within five days after the filing of the notice of appeal, and that notice of the filing of the undertaking must be given to the respondent, has only the eiEeet to add a further condition to the perfecting of the appeal, and all the steps required to perfect it must be completed within thirty days. The object of the new provision as to the time for filing the undertaking and giving notice thereof ivas to correct an abuse that formerly existed, without adding to the limit of time in which to perfect the appeal.</p> <p>Id.—Appeal from Recorder’s Court—Want of Jurisdiction—Refusal of Superior Court to Dismiss—Certiorari to Annul Judgment. While the code does not provide for appeal from a recorder’s court, yet under the provisions of the municipal corporation bill, as amended March 16, 1907 (Stats. 1907, p. 272), appeals from a recorder’s court may be taken in like manner as appeals from justices’ courts, and where the superior court refused to dismiss an appeal from a recorder’s court, of which it had no jurisdiction, and rendered judgment therein for the appellant, such judgment will be annulled upon writ of review.</p> <p>Id.—"Void Order Granting Rehearing in Supreme Court—Absence of Consenting Judge from State—Vacation.—A void order granting a rehearing after judgment in the appellate court, while one of four consenting judges was absent from the state, must be vacated, and the matter must be remanded to the appellate court for further proceeding. [By the Supreme Court in Bank, February 28, 1911.]</p>

Wm. P. Lawlor, Judge. The facts are stated in the opinion of the district court of appeal, and in the opinion of the supreme court in bank.

<p>Building Contract—Action for Breach—Damages—Sufficiency of Complaint.—A complaint against a building company and its surety to recover damages in the sum of $3,500 for breach of its contract to construct a building, which alleges that it failed and refused to build said building, but abandoned the work and left said building in an uncompleted condition and refused to continue under its contract, and “that the reasonable cost to complete said building over and in excess of the contract price was $3,300,” and concludes with a prayer for judgment for damages in the sum of $3,500, states a sufficient cause of action as against a general demurrer.</p> <p>Id.—Construction of Complaint—Words “Said Building.”—The words “said building,” as used in the complaint, fairly mean the building as contracted for and not any other building.</p> <p>Id.—Facts Sustaining Judgment—Prayer for Damages.—Where the facts stated in the complaint would sustain a judgment for damages, the demand in the prayer of the complaint is a sufficient statement of the amount of damages sustained.</p> <p>Id.—Special Demurrer for Uncertainty—Failure to Refer to Original Plans and Specifications—Argument upon Appeal.—Alleged error in overruling a special demurrer for uncertainty of the complaint in failing to allege that the building was completed according to the original plans and specifications, or that the reasonable cost of completing it in excess of the contract price was the cost of completing it according to the original plans and specifications, should be urged in the opening brief of appellant, and will not otherwise be considered without urgent reasons for the omission.</p> <p>Id.—Absence of Reversible Error—Sufficiency of Proof—Averment Treated as Sufficient on Trial.—There is no reversible error in overruling the demurrer for uncertainty, where the evidence shows that the building was completed according to the original plans and specifications, and where the allegation as to the reasonable cost of completing “said building” was treated in proof on the trial as an allegation as to the reasonable cost of completing it according to the original contract, and the jury so found.</p> <p>Id.—Sufficiency of Evidence—Reasonable Cost of Completion.— Where plaintiffs proved that the actual cost of completing the abandoned contract was $3,300 in excess of the original contract price, that plaintiffs gave a contract to complete the work to the lowest bidder, which brought the total to the sum of $3,300 in such excess, and no evidence was given to show that the reasonable cost of the completion of the building was less than s.uoh actual cost, or that it could have been completed for any less amount, the evidence was sufficient to prove the reasonable cost. The actual cost is evidence of the value or reasonable cost, in the absence of any evidence to the contrary.</p> <p>Id.—Measure of Damages in Original Contract—Delay in Performance—Absence of Reference to Damages for Abandonment.—A measure of damages per diem for delay in performance beyond the time fixed for completion has no bearing upon the measure of damages for an abandonment of the contract and failure to complete the work at all.</p> <p>Id.—Action not Prematurely Brought.—The action for damages was not prematurely brought because brought before the building was completed. The cause of action accrued as soon as the building company abandoned the contract.</p> <p>Id.—Right of Plaintiff to Treat Contract as Abandoned—Absence of Contention at Trial—Submission of Issue by Defendants.— Where there was no contention at the trial as to the fact that the building company did abandon the contract, and the defendants conceded such abandonment by submitting an issue as to when the abandonment took place, which was specifically found, and the finding was not assailed, the right of the plaintiffs to treat the contract as abandoned and to complete the contract themselves was fully established.</p> <p>Id.—Construction of Contract—"Three Days’ Notice”—Failure to Furnish Materials or Men Under Contract—Abandonment not Included.—A provision in the contract that if the contractor during the progress of the work refuses or neglects to supply a sufficiency of materials or workmen to complete the work within the time limited for a period of more than three days after notice in writing from the owner to furnish the same, the owner may furnish the same to finish the contract, and the reasonable expense thereof shall be deducted from the contract price, only applies where the contractor is proceeding under the contract but fails to provide for its completion within the time limited, and has no application where the contractor entirely abandons the contract.</p> <p>Id.—Rights of Owner After Three Days’ Notice.—The provision for three days’ notice was intended to allow the owner, after giving such notice, under the circumstances provided for, to take the completion of the work into his own hands, and to deduct the cost from the contract price.</p> <p>Id.—Payments Under Contract—Certificates by Architect—Nonprofessional Architect Employed by Owner.—Where the building company agreed to erect the building “in conformity with the plans and specifications of the same made by the authorized architect of the owner, and signed by the parties,” and the contract provided that when payments shall become due “certificates in writing shall be obtained from said architect,” the fact that the person referred to was not a professional architect, but was a builder employed by defendant to draw the "plans and specifications,” is immaterial. It is sufficient that he was the only authorized architect employed by the owner, and his certificates were sufficient warrants for payments made under the contract.</p> <p>Id.—Payment “When Building Inclosed” not Premature—Surety not Released.—A payment to be made “when building is inclosed” is shown by a majority of the witnesses, including architects and builders, to mean “when roughly inclosed,” and was not premature where the board roofing and siding of the house were done, though the tin roof was not on, and though the windows or sashes and doors were not in, and a payment thus made would not discharge the surety.</p> <p>Id.—Notice of Default of Builder to Surety—Reasonable Time— Lapse of Four Days—Explanatory Facts—Question for Jury.— The requirement of the bond that notice of the default of the builder shall promptly and immediately upon knowledge thereof be given to the surety is to be interpreted as requiring only that it shall be given within a reasonable time. Where it appears that four days int rvened between the suspected cessation of work and the giving of the notice, but the explanatory facts were shown that without act ial knowledge thereof and fruitless search for two days to interview the building company to ascertain, their intentions, and after Sunday had intervened, notice was given to the surety on Monday, the court properly left it to the jury to determine whether the notice was within a reasonable time.</p>

<p>Mining Claims—Application for. Quartz Patent—Contest in Land Office—Adverse Claim—Rights Under Township Patent— . Jurisdiction of Superior Court.—Where the owner of a quartz mining claim applied for a patent therefor, and a mining corporation claiming under a townsite patent covering sevepty-seven feet on the dip of the ledge, upon which it had mined, protested against such patent, although the land office fixed a hearing before the register and receiver of the local land office to determine whether the quartz claim antedated the townsite entry, yet the superior court had jurisdiction under section 2326 of the Revised Statutes to determine the merits of the case, and to award damages in favor of the applicant for the patent against such mining corporation for trespass upon his quartz claim, and the conversion of large quantities of valuable minerals taken therefrom.</p> <p>Id.—Jurisdiction of Court to Try Case and Refuse Stay—Prohibition.—The superior court had jurisdiction to try the case, and to deny a motion to continue the case until decision of the question referred to the local land office, whether such decision be right or wrong. A writ of prohibition cannot issue to restrain the exercise of jurisdiction, however erroneous.</p> <p>Id.—“Protest Against Issuance of Patent”—Question of “Adverse Claim”—Jurisdiction.—If the paper filed by the mining corporation petitioner for the writ of prohibition in the land office, merely denominated a “protest against issuance of patent,” could not be said to constitute an "adverse claim” within the meaning of the statute, in that event there was no controversy to be settled by the land department, and it was proper for the superior court to determine the whole issue between the parties.</p> <p>Id.—Title Under Townsite Patent—Ownership of Mining Claimant—Question of Law for Court.—Where there is no controversy that title had passed under the townsite patent, the question whether the quartz claimant had the better right of ownership as against a townsite patentee is a question of law, not for the land department, but for a court of competent jurisdiction which has power to determine who is in fact the owner of the land.</p> <p>Id.—Control of Land Department Removed by Patent—Exclusive Jurisdiction of Superior Court.—If, as claimed by the mining company in its answer, a patent to this land was issued in 1875, then, of course, the control of the land department over it must have ceased, and the issue as to whether the defendant or plaintiff had been the owner of the land for many years was within the exclusive -jurisdiction of the superior court.</p> <p>Id.—Prohibition — Adequate Remedy at Law.—The writ of prohibition should not issue where there is a plain, speedy and adequate remedy at law.</p> <p>Id.—Remedy by Appeal—General Rule.—It is the general rule that where there exists an opportunity for a review and correction of the wrong complained of in a higher court on appeal, prohibition will not lie. It is only in exceptional eases that an appeal is not deemed an adequate remedy.</p> <p>Id.—Appeal from Judgment for Damages.—Where the trial court - could only render a judgment for damages, an appeal would correct any wrong that might be done to petitioner for the writ of prohibition.</p> <p>Id.—Time Taken by Appeal.—The remedy by appeal does not fail to be speedy and adequate because by passing it through the ordinary course of law more time would be consumed than by the writ of prohibition.</p>

<p>Negligence—Loss by Dire—Nearness oe Power Line to Telephone Line—Besetting Telephone Poles—Blowing Over op Telephone Wire in Storm—Pleading.—In an action for alleged negligence of a power company in connecting its power line within three feet of a telephone wire, and in resetting the telephone poles to lean away from the power line, and that owing to their proximity the telephone wire was driven by a storm against the power line, causing the loss of plaintiff’s property by fire, the recovery by plaintiff must be limited to the charges of negligence stated in the complaint. No recovery can he had on any acts of negligence not alleged.</p> <p>Id.—Burden of Proof to Show Loss from Negligence.—The burden of proof is upon the plaintiff to show that the contact of the two wires which caused the loss was caused by some negligent act or acts alleged in the complaint.</p> <p>Id.—Support of Findings.—Where the trial court found that the fire was caused by the contact of the telephone line with the power line, hut was not caused by the proximity of the lines, nor by any wrongful acts or negligence of the defendant, it is held that upon a careful consideration of the evidence the findings of the trial judge are amply supported, and are beyond disturbance by the appellate court.</p> <p>Id.—Proximity of Lines — Undisputed Fact — Negligence not Presumed in Law.—The mere undisputed fact that the defendant constructed and maintained its power line of twenty thousand volts, which is a much higher voltage than that of the telephone line, within a distance of three feet from the telephone line, does not warrant a presumption of negligence on the part of the defendant per se, as matter of law.</p> <p>Id.—Cause of Contact of Wires—Question of Fact—Negligence— Superhuman Cause—Conclusive Findings.—The question of fact which necessarily arises, in view of the proximity of the wires, is as to the cause of the contact between them, whether the actual negligence of the defendant, or an “invisible superhuman cause.” The findings upon that question of fact are conclusive that it was not caused by any negligence of defendant in resetting the telephone poles, but was the result of a heavy wind storm in December several months after the completion of the power system, which caused the breaking of a telephone pole and threw the telephone wire against the power line, thus proximately causing the fire.</p> <p>Id.—Order Denying New Trial—Discretion.—The trial court had discretion to deny a new trial on the ground of insufficiency of the evidence, and where there is evidence which supports its findings, the order denying a new trial must be affirmed.</p> <p>Id.—Vacation of Order of Supreme Court Granting Hearing in Bank—Absence of Judge from State.—Where an order granting a hearing in the supreme court, after decision in the district court of appeal depended upon the concurrence of four justices, one of whom was absent from the state when the supreme court made its order, the order granting the rehearing is void, and must he vacated.</p>

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

<p>Election Contest—Rejected Ballots—In closure in Envelope Otherwise Marked—Burden of Proof upon Plaintiff.'—Where the plaintiff contesting the election of one holding the certificate of election asked that an envelope marked “Spoiled, canceled and unused ballots” be opened as containing rejected ballots, the burden is upon the plaintiff to show they were in fact rejected ballots, and to show to the satisfaction of the court that they had been erroneously rejected.</p> <p>Ip.—Waiver of Proof—Taking Benefit of Ballots.—Where defendant failed to object to plaintiff’s statement that the envelope contained rejected ballots, and not only permitted them to be introduced without objection to the sufficiency of the proof, but also claimed and received the benefit of such portion thereof as appeared to be in his favor, his action was equivalent to a stipulation of the fact that they were rejected ballots, or was at least a waiver of the required proof on the part of the plaintiff.</p> <p>Id.—Absence of Indorsement of Rejected Ballots—Failure to Object—Estoppel upon Appeal.—Where the defendant appealing, at the time when the ballots claimed to have been rejected were offered in evidence, failed to object to their introduction on the ground that they were not indorsed as rejected, as required by section 1257 of the Political Code, he should not be heard to object upon appeal on that ground.</p> <p>Id.—General Rule—Waiver of Objection to Evidence not Specified. The general rule is that a party objecting to the admission of evidence must specify the grounds of his objection when the evidence is offered, and he will be considered as having waived all objections not specified.</p> <p>Id.—Proper Denial of Motion to Strike Out Evidence of Ballots.— The court properly denied a motion of the defendant, at the close of plaintiff’s testimony, to strike out the evidence of the ballots contained in the envelope as not having been identified as rejected ballots. Had such objection been made at the proper time, plaintiff would no doubt have been given leave to call the election officers to prove the character of the ballots; and to have granted such motion would have deprived plaintiff of the right to make such proof.</p> <p>Id.—Directory Provisions of Code as to Defacing Spoiled Ballots and Indorsement of Rejected Ballots.—The provisions of section 1209 of the Political Code as to the mode of defacing spoiled ballots, as well as to the indorsement of rejected ballots required to be made on the envelope by section 1257 of that code, are directory merely.</p> <p>Id.—Provisions not Going to Substance of Election—Electors not to be Disfranchised.—The electors of a precinct should not be disfranchised merely because the election officers have failed to comply with provisions not going to the substance of the election. Mere irregularity on the part of the election officers, or their omission to observe mere directory provisions of the law, will not vitiate the poll.</p> <p>Id.—Duty of Court as to Erroneously Rejected Ballots.—It was the duty of the court, if in fact voted ballots had been erroneously rejected, and such fact was duly established, or proof thereof waived, to count them for the persons for whom they were voted, regardless of mere noncompliance with directory provisions on the part of the election board.</p> <p>Id.—Prima Eacie Correctness of Returns—Recount—Proof of Integrity of Ballots.—The prima facie correctness of the returns and canvass of the ballots should not be overturned by a resort to a recount of the ballots, save and except upon sufficient and satisfactory evidence of the integrity of the ballots.</p> <p>Id.—Conclusion of Trial Court Sustained.—Where there is nothing disclosed by the record which would justify the appellate court in disturbing the conclusion of the trial court as to the result of the recount, and ballots have been admitted upon evidence satisfying the trial court as to their integrity, this court cannot disturb its ruling, where it is not well satisfied that the evidence does not warrant it.</p> <p>Ib.—Showing by Defendant’s Certificate of Election—Voted Ballots Rejected.—Where defendant introduced his certificate of election, which stated that one hundred and thirty-four ballots were east, that seventeen of them were spoiled, and that one hundred and nineteen votes were cast for the opposing candidates, it shows on its face that at least fifteen out of seventeen ballots spoiled were actually voted ballots cast, being included in the one hundred and thirty-four ballots certified to have been east, and such fifteen ballots were therefore voted ballots rejected, which also appears from their removed numbers.</p>

<p>Mandamus—Petition by 'Corporation and Secretary—Delivery Up op Seal, Books and Papers—Burden op Proof on Secretary Sustained.—Upon a petition by a corporation and its alleged secretary to compel the delivery up of its seal, books, papers and records, where the official character of the alleged secretary is put in issue by the answer of the alleged ex-secretary, the burden of proof is cast upon the alleged secretary petitioner to establish his official relation to the corporation, that he is the legally appointed secretary and entitled to the custody of its seal, books, papers and records for the corporation petitioner. It is held that by the report of the referee appointed by this court such burden of proof has been sustained.</p> <p>Id.—Foreign Corporation—Business in This State—Meeting op Stockholders—Refusal of Board—Service of Mandamus—Jurisdiction of Foreign Court.—-Where a corporation organized under the laws of Arizona was doing business wholly in this state, and its board of directors resident therein desired continued control, and refused the request of the stockholders to call a meeting thereof to elect directors, the district court of Arizona acquired jurisdiction of a writ of mandamus at suit of the stockholders by service of the alternative writ upon the corporation, through its agent resident in Arizona, it appearing that all other officers and agents thereof were beyond the reach of its process, though copies of the alternative writ were sent them by mail.</p> <p>Id.—Duty of Corporation as to Stockholders’ Meetings.—While it is made the duty of certain corporate officers to call stockholders’ meetings, the imposition of that duty upon them does not relieve the corporation from the liability of causing the duty to be performed. It is not the policy of the law that the corporation should be helpless in the hands of insubordinate agents, or that the creature of the corporation is higher than the corporation itself.</p> <p>Id.—Assumption of Contempt of Court—Proceedings not Void.— Assuming that the bond when filed was effectual as a stay, and that the subsequent proceedings at the stockholders’ meeting were in contempt of court, nevertheless the proceedings were not void, and cannot be collaterally assailed in the present proceeding by mandamus on petition of the corporation and the secretary appointed by the new board of directors elected at such stockholders’ meeting, to compel the production of the books and seal of the corporation from the person wrongfully withholding the same.</p> <p>Id.—Cessation of Functions of Old Board upon Election of New Board.—When the new board was elected at the stockholders’ meeting, the functions of the old board ceased to exist, and they were powerless to accept the resignation of their former secretary and to elect a new secretary in his place.</p> <p>Id.—Secretary Elected by Defunct Board not a De Facto Officer. In order to constitute a de facto officer, he must hold under some appearance or color of right, and there was no color of right in the election by individuals whose functions as a board had wholly ceased to exist.</p> <p>Id.—Jurisdiction of Foreign Court to Enforce Judgment—Appointment of Commissioner to Call Meeting upon Notice.—The district court of Arizona had jurisdiction to make its judgment in mandamus effective by appointing a commissioner to give notice of the time and place of calling the stockholders’ meeting.</p> <p>to.—Meeting of Stockholders—Election of Directors—Presumption of Proper Notice.—Where a meeting of the stockholders was held at which directors were elected who chose the petitioner as secretary, it must be presumed, in the absence of evidence to the contrary, that proper notice of the meeting was given to the stockholders by the commissioner.</p> <p>Id.—Petition in Error and Bond—Not Operative as a Stay—Judgment Functus Officio.—It is held that under the laws of Arizona a petition in error and bond on appeal from the judgment of the district court of Arizona did not operate per se as a stay without an order from the court, and that prior to such writ of error the judgment had become fully performed as to the commissioner by the performance of the judgment as to the meeting of stockholders upon the notice required of him, before any stay was ordered.</p> <p>Id.—Service of Alternative Writ upon ex-Secretary—Wrongful Transfer of Seal, Books and Papers—Supplemental Petition —Jurisdiction.—When this court issued the alternative writ of mandate and caused it to be served upon the ex-secretary of the old board, who was then the custodian of the seal, -books and papers of the corporation, and directed him to turn the same over to the secretary petitioner or to show cause, it acquired jurisdiction not only of the ex-secretary respondent, but also over the property in controversy, and he cannot, by dispossessing himself of the property to one having no rights, affect the jurisdiction of this court, and, upon the transferee being made a party by supplemental petition, the peremptory writ of mandate will run against both respondents.</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>Negligence—Collision op Passenger Cars—Damages—Loss op Earning Power op Physician—Instruction.—In an action for injuries sustained by the collision of passenger cars, where plaintiff alleged that at the time of the injury she was a physician, and that by reason of her injuries she has been unable to follow her profession since the accident, to her damage in the sum of $600, and alleged general damages in the sum of $25,000, where the evidence showed that she had practiced her profession for a number of years prior to the accident, but did not show the amount that she had earned, a requested instruction that the jury, in the absence of proof of such amount, could not take into account the less of earning power, if any had been suffered by the plaintiff, in estimating the amount of damages to be awarded, was properly refused.</p> <p>In.—Failure op Court to Limit Loss op Earning Power—Other Limiting Instructions—Presumed Action op Jury.—Though the court did not specifically, in its instructions, limit the loss of earning power to $600, yet where they were instructed repeatedly that the amount of damages awarded should not exceed the amount sued for, and the jury had the complaint before them in which the claim for damages for loss of earning capacity was limited to $600, it must be assumed that in estimating the total amount of damages to be allowed, the jury took into consideration the claim of $600 made by plaintiff, and in fact allowed no more than that sum on that account.</p>

<p>Building and Loan Association—By-laws—Maturity Reserve Fund —Credit on New Shares.—Where the by-laws of a building and loan association in force when certificates of stock were issued required a payment of two dollars per share into its maturity reserve fund, to be applied only as a credit on a new share of stock purchased, an assignee of five hundred shares of stock originally issued to members who have withdrawn, on which there was a credit of $1,000 in the maturity reserve fund, an assignable certificate of the amount of which was given after the passage of a statute changing the amount of the reserve fund, the assignee of such original certificates and assignable certificate cannot maintain an action to recover any part of such original maturity reserve fund contrary to the term of its creation.</p> <p>Id.—Condition Made by By-laws Part op Contract.—The condition made by the by-laws when the stock was issued as to the reserve fund was part of the contract from which no subsequent assignee of the stock can escape.</p> <p>Id.—Facts at Date op Receipt Showing Amount op Original Reserved Fund Immaterial.—The fact that at the date of the assignable receipt showing the amount in the reserve fund, the statute as well as the by-laws had been changed as to the amount of the reserved fund thereafter to accrue, cannot affect the questions involved as to the amount and conditions of the original reserve fund as fixed by the by-laws in force when it was created.</p>

<p>Action fob Breach of Parol Contract for Peach-tree Stock—Order Granting New Trial—Conflicting Evidence—Discretion.—In an action for damages for delivery by defendant to plaintiff of budded peach-tree stock of a kind other than and inferior to that agreed upon by a parol contract, when the findings and judgment were for the defendant, and the evidence was substantially conflicting, and the court granted a new trial, it cannot be said that there was an abuse of discretion in granting a new trial for insufficiency of the evidence to justify the decision.</p> <p>Id.—Delivery of Trees—Performance of Oral Contract After Year —Plea of Statute of Frauds not Tenable—Object of Statute. Where the defendant delivered the trees to the plaintiff, he cannot rely upon the plea of the statute of frauds on the ground that the oral contract was not to be performed within one year. The statute of frauds is for the prevention of fraud, and not in aid of the perpetration of fraud. It is to be used as a shield, and not as a sword.</p> <p>Id.—Statute When Inapplicable—Oral Agreements Voluntarily Performed.—The statute of frauds as to the performance of oral contracts within one year does not apply to oral agreements voluntarily performed.</p> <p>Id.—Implied Coyen í. *t.—When such oral agreement is fully performed there is a coveT'*i.i. of good faith and absence of fraud or deceit implied by law on the part of the performing party and this implied covenant is not within the statute.</p> <p>In.—Duty of Defendant as to Fair Dealing.—In the exercise of good faith and fair dealing, defendant should have acquainted the plaintiff with the fact that the trees delivered were not in accordance with the oral agreement.</p>

<p>Criminal Law—Arson—Joint Indictment—Dismissal of Two Defendants for Want of Evidence—Corroboration of Accomplices. Where the deféndant appealing and four other persons were jointly indicted for arson, and the indictment was dismissed as to two defendants for want of evidence to connect them with the crime, the state by such dismissal does not admit that they were accomplices, and where the two remaining accomplices testified to the commission of the crime by the appellant, the dismissed defendants, who were amply shown to have had no connection with the crime, were qualified to’ give independent testimony tending to connect the appellant with the commission of the crime, in corroboration of the testimony of the accomplices.</p> <p>Id.—Instruction as to “Accomplice”—Disjunctive Terms.—The court properly instructed the jury that “an accomplice is one who willfully and knowingly aids, encourages or assists another in the commission of crime.” Each of the disjunctive terms is qualified by the words “willfully and knowingly,” and the court committed no error in the form of the instruction.</p> <p>Id.—Appellant not Prejudiced by Form of Instruction as to Accomplice.—The appellant not having been prosecuted as an accomplice, but as the one who directly committed the crime of arson, could not be prejudiced by the form of the instruction as to an accomplice, which] if faulty at all, could only be to the detriment of the people.</p> <p>Id.—Argument of District Attorney—Absence of Misconduct.—It is held that the district attorney, in his argument, was guilty of no misconduct that invaded the right of the appellant to a fair trial; that he made no statement of fact in his address which was not fairly deducible from evidence in the record. Counsel have the right to present to the jury their view of the proper deductions or inferences which the facts warrant. Any fault in the reasoning of counsel is matter for the jury to determine, and is not a subject for exception on the part of opposing counsel.</p>

<p>Improper Action — Joinder op Dependants — Cause op Action not Stated Against Either—Unauthorized Proceeding.—A complaint showing that the action is brought upon the theory that plaintiff has sustained damages from the wrongful acts of one or the other of two defendants, but not both of them, and, not knowing which is liable, impleads them together, and asks the court to fix the liability, without stating a cause of action against either, shows on its face a wholly unauthorized proceeding. It cannot be justified under section 379 or 389 of the Code of Civil Procedure.</p> <p>Id.—Counterpart of Bill of Interpleader not Permissible.—The law recognizes no procedure in the nature of a counterpart of the bill of interpleader.</p> <p>Id.—Assumption of Distinct Causes of Action—Unnecessary Parties.—Assuming that the plaintiff, which derived title by deed from one defendant, has a cause of action upon its implied covenant against the encumbrance of a lease to the other, such other defendant is not a necessary party to such a cause of action. Assuming that, without authority from its grantor, the other defendant has trespassed upon its rights by removing crops to plaintiff’s damage, the grantor is not a necessary party to such a cause of action. The two actions, not only as to parties, but also as to subject matter, are entirely independent and distinct one from the other.</p> <p>Id.—Change of Venue—General Bule as to Parties.—When an action is brought against two defendants, one of whom resides in the county where the action is brought, and the other is a nonresident, the change of venue depends upon the necessity of the parties. If the resident defendant is not a necessary party, the nonresident is entitled to the change, otherwise both defendants must join in the demands.</p> <p>Id.—Test as to Necessary Parties must be Determined from Complaint.—The question as to who are necessary parties must be determined from the complaint alone unaided by affidavits.</p> <p>Id.—Complaint Showing Both Parties Unnecessary—Belative Positions—Bule of Necessary Parties.—Where the complaint shows on its face that both defendants resident and nonresident are unnecessary parties, the defendants occupy the same relative position to each that they would if both were necessary parties, and hence their respective rights are to be determined by the rule which denies the right of the nonresident party to a change of venue when both defendants are necessary parties.</p> <p>Id.—Bights of Besident Defendant.—Conceding that no cause of action is stated against either defendant, yet no good reason appears why the resident defendant should be deprived of the right to have the action disposed of as against it in the county wherein it is commenced, rather than to have it transferred to another county upon demand of another defendant against whom no cause of action is stated, and who likewise is an unnecessary party.</p> <p>Id.—Title of Property in Another County not Involved.—There is no merit in the contention that the action involves the determination of an estate or interest in real property situated elsewhere. It does not appear that either defendant when the action was commenced claimed any interest in the land or was in the possession thereof.</p>

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

<p>Criminal Law—Murder—Support op Verdict — Close Case — Error Deemed Prejudicial.—Although there is evidence tending to support the verdict of guilty of murder in the second degree, yet the case is such a close one, that if the jury had acquitted the defendant, it could not be said with assurance that such a verdict was not in accordance with the evidence, or that there had been a miscarriage of justice. In such a close case, any error in the reception or exclusion of evidence must be deemed prejudicial.</p> <p>Id.—Evidence — Stoppage of Garbage Team Over Body—Statements op Bystander to Driver—Dependant not Identified—Prejudicial Error.—Where on a dark night a garbage team of three animals stopped over the body of deceased, who died shortly afterward, with his ribs crushed in, whereupon the driver descended and removed the body out of the way, and asked a bystander who approached, whose features he could not recognize, where an officer could be found, evidence of statements made by him in reply showing a harsh demeanor, and a brutal and unfeeling disposition, and unwillingness that an officer should be called, was prejudicially erroneous, where the only evidence of identification of defendant as such bystander at the trial was that he was “about the build, just the build.” This was not sufficient evidence of identification upon which to permit such proof.</p> <p>lb.—Impeachment op Witness — Contradictory Statement at Preliminary Examination—Proof not in Record.—It cannot be said that the testimony of a witness was successfully impeached by evidence of a contrary statement at the preliminary examination, where such evidence is referred to but not incorporated in the record upon appeal, so that it can be considered upon appeal.</p> <p>Id.—Improper Evidence op Medical Expert.—Where a question is asked of a medical expert which was not clear or intelligible, and the answer to which would involve the assumption of many different conditions, and also called for an opinion upon a matter not properly within the scope of expert testimony, the admission of an answer in reply thereto was erroneous.</p> <p>Id.—Argument op District Attorney — Misapplied Inference prom Evidence—Prejudice not Shown—Instruction.—An argument of the district attorney based upon an inference from evidence misapplied by mistake was not prejudicial, where the court properly instructed the jury that inferences which they were entitled to make from the evidence must be founded on a fact legally proved.</p> <p>Id.—Absence op Error in Instructions.—It is held that the instructions given covered sufficiently all matters upon which the defendant asked instructions, and fully and correctly stated the law to the jury.</p>

<p>APPEAL from a judgment of the Superior Court of Butte County, and from an order denying a motion to amend the complaint after trial. Eugene P. McDaniel, Judge presiding.'</p> <p>The facts are stated in the opinion of the court.</p>

<p>Mining Corporations—Mortgage op Mining Ground—Power op Directors Limited—Ratification by Stockholders Essential.—The act of 1880 "for the further protection of stockholders in mining companies,” as amended in 1897, providing that “it shall not be lawful for the directors of any mining corporation to . . . mortgage . . . the whole or any part of the mining ground owned or held by such corporation . . . unless such act he ratified by the holders of at least two-thirds of the stock of such corporation then outstanding,” goes to the power of the directors, who have no authority to convey or encumber such mining ground without the consent of holders of two-thirds of the stock given as prescribed by the act.</p> <p>Id.—Power to Raise Question of Want op Ratification.—The question of the want of ratification of a deed or mortgage of the mining ground of a mining corporation may be raised by anyone who connects himself with the title of the corporation or shows an interest therein by a valid mortgage or lien, as well as by the stockholders.</p> <p>Id.—Consent op Stockholders not Presumed prom Corporate Seal. The consent of the stockholders cannot he presumed from the mere fact that a deed or mortgage of the mining ground of a mining corporation is under the corporate seal. Such consent, may be given in due form after the execution thereof, and is not necessarily or presumptively involved in such execution, whether under the corporate seal or not.</p> <p>Id.—Foreclosure op Prior Mortgage on Mining Ground—Objection by Second Mortgagee — Absence op , Power —.Ratification op S . 0 Either not Shown.—Under a complaint to foreclose a first mortgage on the mining ground of a mining corporation, making a second mortgagee a party, who sought to foreclose the second mortgage by cross-complaint, where neither the complaint nor cross-eomplaint alleged a ratification of the mortgage by the stockholders, and neither of the mortgagees proved such ratification, the second mortgagee is in no position to avail himself of the objection that the holder of the prior mortgage has not shown a ratification by the stockholders, nor to question any of the rulings of the trial court in favor of the first mortgage.</p>

<p>APPEAL from a judgment of the Superior Court of Los Angeles County, and from an order refusing to vacate the judgment and render a different judgment upon the findings. W. P. James, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Deed op Interest in Ranch—Consideration—Presumed Adequacy.— Where the plaintiff, owning a ranch of four hundred and eighty acres, and his wife conveyed an undivided half interest therein to the wife defendant, in consideration of which the husband defendant agreed to pay off a mortgage of $3,000- on the property, to build a ten-room house thereon, to be used as a residence by plaintiff’s wife and defendant’s wife and their children, and to divide the proceeds of the farm equally, all of which covenants were performed, though certain other personal covenants were not performed relating to the development of mining property, the profits of which were to be shared, it is to be presumed, in the absence of a charge of fraud or mistake when the deed was executed, that the covenants performed were a fully adequate consideration for the grant.</p> <p>Id.—Cancellation op Deed not Permissible—Absence op Condition Subsequent—Breach op Personal Covenant.—No cancellation of the deed is permissible where there is no condition subsequent in the deed to the wife or in the contract of her husband, by which it is provided that a failure to-comply with his contract should work a forfeiture of the estate vested in the wife as grantee, or in her successor. A mere breach of the personal covenant of the defendant husband, in reference to a mining project of speculative value, without any definite claim of damage arising from its nonperformance, cannot justify a cancellation of the deed.</p> <p>Id.—Nature op Personal Covenant—Cause op Action por Damages for Breach.—A personal covenant binds only the parties to the contract. Any cause of action for damages for the breach of the personal covenant with reference to mining would, if sufficiently stated, lie only against the contracting husband defendant, and not against the grantee or her successors in interest.</p> <p>Id.—Creation op Conditions Subsequent—Forfeiture—Construction. Conditions subsequent, when relied on to work a forfeiture, must 'be created by express terms or clear implication, and are to be construed strictly against a forfeiture, which is not favored in law. Conditions providing for a forfeiture are to be construed liberally in favor of the holder of the estate, and strictly against an enforcement of the forfeiture.</p> <p>Id.—"Vendor’s Lien not Enforceable—Absence op Unpaid Purchase Money—Personal Service not Included.—No cause of action to enforce a vendor’s lien is stated in the complaint, which shows no part of the purchase money left unpaid. A vendor’s lien does not reach any personal service to be performed by the vendee.</p> <p>Id.—Nature of Vendor’s Lien—Equitable Bight upon Failure to Pay Debt Due.—A vendor’s lien is not a specific charge upon the property, but a mere equitable right to resort thereto upon the failure of the vendee to pay a debt due which constitutes the consideration of the transfer. In order that the lien may exist, it is fundamental that there should be an ascertained, fixed consideration of money or its equivalent, whereby there arises a certain absolute debt of the vendee to the vendor from the transfer of the land.</p> <p>Id.—Difficulty of Separation of Purchase Money — Confusion of Personal Services.—"Where there is a confusion of personal services constituting the sum total of the promises representing the consideration for the conveyance, so that it is difficult to separate the purchase money, the vendor's lien will not exist.</p> <p>Id.—Cause of Action not Stated Against Successor of Vendee.—No cause of action for damages is stated against the successor of ¡he vendee, or indeed against any of the defendants. No cause of action is stated against such successor, either for cancellation of the deed, or to enforce a vendee’s lien against him.</p> <p>Id.—Judgment Properly Bendered for Successor—Findings—Failure to Sustain Burden of Proof.—No cause of aetion having been stated against such successor, judgment was rendered practically upon the pleadings in his favor for costs, there having been a complete failure of plaintiff to sustain the burden of proof against him. If findings were required, they would necessarily be against the plaintiff.</p> <p>Id.—Error not Shown in not Allowing Amendment to Complaint.— No error is shown in not allowing an amendment to the complaint, where it does not appear that any application was made to amend, and where it is difficult to peregive how it could be so amended as to state a cause of action against the respondent.</p>

<p>Conversion or Mortgaged Personal Property—Special Issues—Finding as to Invalidity—General Verdict—Consistency— Construction.—In an action against a sheriff for the conversion of mortgaged personal property attached and sold under execution for a creditor of the mortgagor, where the jury found upon sufficient evidence that the sum of $449.90, part of the mortgage, was advanced to pay a prior valid mortgage, and rendered a special and general verdict for that sum, but found upon special issues against other items included in the mortgage, a mere negative finding as to the validity of the' mortgage as a whole, raising the question whether or not a mortgage would be void as to creditors, where only the good faith of the mortgagee is called in question, is to be construed in connection with all the special findings and general verdict, and . so construed, an inconsistency claimed between the findings and general verdict because of such negative finding does not exist.</p> <p>Id.—Erroneous Judgment — Reversal.— Where, because of such asserted inconsistency between the findings and the general verdict, the court erroneously rendered a judgment for the defendant, and it appearing that under the evidence and the admissions in. the case, the jury could not have intended that the plaintiff should have a verdict for any less sum than $449.90, and as the plaintiff is satisfied with a judgment for that amount, the judgment will he reversed with directions to the trial court to enter judgment in favor of plaintiff upon the general verdict, for that sum.</p>

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

<p>Specific Performance—Vague Contract for Lease—Agreement Upon Specific Terms—Draft of Lease Unsigned—Statute of Frauds. Under a complaint alleging a vague contract for a lease, of which specific performance is sought, and also alleging a specific agreement upon the terms of a lease embodied in a draft thereof, which was unsigned by the defendant, such draft is within the statute of frauds, and is void and unenforceable.</p> <p>Id.—Vague Contract Unenforceable.—A contract, to be susceptible of specific enforcement, must be certain and unequivocal in its terms; and a vague and uncertain contract is not capable of specific enforcement.</p> <p>Id.—Uncertain Contract for Lease—Average Monthly Rental to be Graduated—Future Negotiation.—A receipt for deposit for a lease, calling for an average monthly rental to be graduated, and leaving the installments of the rent and the times of payment incomplete and uncertain, and leaving the amount of rent to be paid per month to be settled at some future negotiation between the parties, is too vague and uncertain to be specifically enforced.</p>

<p>Action to Quiet Titus to City Lots—Defense—Title Under Street Widening Assessment—Prima Facie Evidence—Rebuttal—Insufficient Affidavit.—In an action to quiet title to city lots, in which the defense is of a title under an assessment for a street widening under the street opening act of 1903, the deed under which is prima fame evidence of title, the plaintiff was entitled to rebut the same by producing the affidavit filed with the board of public works, to show that it was insufficient to warrant a. deed for failure of the same to show a compliance with all the provisions of section 28 of said act, without which compliance it is provided that no deed shall be made thereunder.</p> <p>Id.—Affidavit Required to Show Due Diligence to Find the Owner of Property Assessed.—To warrant a deed to the purchaser under the street widening assessment, and to foreclose the owner’s right of redemption upon constructive service by posting a notice upon unoccupied property, an affidavit must be filed showing, not merely stating, that due diligence was used to find the owner.</p> <p>Id.—Nature of “Showing of Due Diligence.”—Whether or not there has been an exercise of due diligence must necessarily depend upon the doing of certain acts which, if performed, constitute “due diligence,” and evidence of the fact of performance constitutes the “showing.” There is an obvious and material distinction between showing a fact and stating it. Stating that “due diligence was used” merely alleges the fact, while “showing it” is to state the evidentiary facts which make it manifest or prove it.</p> <p>Id.—Search to Find Owner Insufficient.—An ineffective search for a former owner, who appears from the record to have parted with the ownership of the lots to the plaintiff nearly four years before the posting of the notice on the property shows no diligence to find the real owner of the property. Merely making inquiries of persons near the property for such former owner was insufficient.</p> <p>Id.—Invalid Title of Defendant to Lots—Lien of Assessment— Condition of Quieting Title.—When the title of defendant to the lots was invalid for want of compliance with the statute, his only interest in the lots was the lien of the assessment, and the court properly rendered a decree quieting the title of the plaintiff on condition of paying into court for the benefit of the defendant the amount of such assessment, which fully protected the defendant in all of Ms rights.</p>

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

<p>Public Highway—Action to Condemn Land—Pleading—Jurisdiction —Finding op Supervisors on Report op Viewers—Apparent Ownership—Collateral Attack.—In an action to condemn land for a public highway, where the facts showing a compliance of the board of supervisors with the statute are affirmatively pleaded in the complaint so as to warrant the proceeding and to show that the money had been set apart out of the proper fund to pay the damages awarded by the viewers, a finding by the supervisors, upon the report of the viewers, as to the apparent ownership of certain land taken, was within the jurisdiction of the board, and cannot be collaterally assailed to defeat the proceeding, on the ground that the person in possession, as apparent owner, in fact represented himself individually, and two estates of which he was executor.</p> <p>Id.-—Power op Board to Adjudicate Jurisdictional Facts—Conclusiveness Against Collateral Attack.—An inferior board may determine conclusively its own jurisdiction or power by adjudicating the existence of facts upon which its jurisdiction or power depends. In all cases where private property is required for highway purposes, it is the province and duty of the board of supervisors to determine conclusively, as against a collateral attack, all facts affecting its jurisdiction to authorize the institution of a condemnation suit, including the necessity for the use, its public character, the route and terminus of the road, the land necessary therefor, its apparent ownership, and the matters of fact passed upon in approving the report of the viewers.</p> <p>Id.—Viewers Only Required to Show Apparent Ownership.—While the finding of the viewers and of the board as to ownership is final as far as constituting a basis for new or further proceedings, yet the viewers are not required to be sufficiently familiar with the facts and the land to determine with precision who is the owner of the property, or to adjudicate title, which is a question for the superior court. The viewers are only required by the statute to act in good' faith and report the apparent ownership of the property. They serve notice upon the occupant of the property and report their findings as to who is the apparent owner.</p> <p>Id.—Mistake op Viewers as to Ownership—Objection Waived— Correction by Suit—Appellants not Prejudiced.—Appellants were not prejudiced by the mistake of the viewers in supposing that the party in possession was the sole owner of the property and in not segregating the amount of compensation allowed to him individually from interests represented by Mm as executor, where he, as such owner and representative, personally knew of the acts of the viewers, and made no complaint, but rejected the award without demanding any segregation of the compensation to the different interests represehted by him; but, upon suit brought, such represented interests were set forth and determined according to the facts, and the damages were apportioned to the respective owners.</p> <p>Id.—Irregularity not-Affecting Substantial Eights.—At most, the fact that the viewers were misled as to the ownership of the property was, under the circumstances, a mere irregularity not affecting the substantial rights of the parties.</p> <p>Id.—Causes of Actions not Misjoined.—The causes of action in the condemnation proceedings in favor of the county against the defendant individually and the interests represented by him as executor were not misjoined. Causes of action in condemnation proceedings are governed by section 1244 of the Code of Civil Procedure, wMch allows a joinder of all parcels lying in the county required for the same public use, in one action, at the option of the plaintiff, subject to the power of the court to consolidate separate actions or to require separate trials.</p> <p>Id.—Statutory Construction—Intention of Legislature—Ordinary and Popular Sense of Terms.—In construing section 1244 of the Code of Civil Procedure, effect must be given to the intention of the legislature, to be determined primarily by attributing the ordinary and popular sense to its terms, in the absence of any technical expression therein.</p>

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