Volume 140 — California Reports

<p>Deposition—Subpcena or Notary Public—Contempt or Court—Case Overruled.—The superior court in which an action is pending has jurisdiction, upon a proper showing by affidavit, to punish as a contempt the disobedience of a witness to the subpcena of a notary public requiring him to attend and give his deposition to be used as evidence in such action. The case of Lezinsky v. Superior Court, 72 Cal. 510, overruled, in so far as holding to the contrary. [Angellotti, J., McFarland, J., and Lorigan, J., dissenting.]</p> <p>Id.—Previous Order or Court—Obligation or Witness.—The previous order of the court requiring the witness to attend in obedience to the subpcena of a notary adds nothing to the legal obligation of the witness to obey the notary’s subpcena, where the action is in a court of this state.</p> <p>Id.—Inherent Power or Court.—Aside from statutory authority, a court of general jurisdiction has inherent power to punish for contempt persons who obstruct or interfere with the proceedings.</p> <p>Id.—Construction or Code—“Proceedings or Court”—Deposition or Witness.—The ninth clause of section 1209 of the Code of Civil Procedure is intended to invest the superior court with power to prevent interference with any and all proceedings taken by the court or agencies acting in its behalf; and the word “proceedings” used therein should be given a meaning broad enough to embrace its intended purpose, and to include the taking of the deposition of a witness to be used in an action as a “proceeding of the court” in that action.</p>

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

<p>Vendor and Purchaser—Contract of Sale—Rescission for FraudLaches.—It is of the essence of the right to rescind a contract for the sale of real estate, on the ground of fraud in its procurement, that prompt notice of the rescission shall be given, and that the action shall be brought within a reasonable time. An attempt to rescind the contract for the first time nearly five years after the making of the agreement, and several years after knowledge by the purchaser that he had been defrauded, shows such laches as will bar equitable relief to enforce a rescission.</p> <p>Id.—Notice of Fraud in One Matter—Duty of Investigation-Waiver of Election to Rescind.—Upon discovery by the purchaser that he had been defrauded by the vendor as to one material matter, notice was brought home to him that he may have been defrauded in all other material matters; and it was incumbent upon him to make full investigation. He had but one election to rescind, and must exercise it with reasonable promptness after discovering the fraud; and by conducting himself after such discovery as though the contract were still subsisting he waived all right of election to rescind.</p> <p>Id.—Action to Foreclose Contract of Sale—Defense of Fraud-Statute of Limitations—Failure of Consideration.—The statute of limitations which applies to an affirmative cause of action to enforce a rescission of a contract of sale, on the ground of fraud, has no application to a defense on the ground of fraud in an action to foreclose the contract of sale. Fraud vitiates all things; and if, by reason of fraud of the plaintiff, there has been a total or partial failure of consideration of the contract- sought to be enforced, the defendant is entitled to be relieved from payment to the extent of such failure.</p>

<p>The facts are stated in the opinion of the court.</p> <p>Henry U. Brandenstein, and Percy Clarke Church, for Appellant.</p>

MOTION to dismiss appeal from a judgment of the Superior Court of the City and County of San Francisco. J. M. Seawell, Judge. The facts are stated in the opinion of the court.

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

<p>Trust Deed—Invalid Trust to Convey—Devisees of Trustor.—An express trust to convey real property, after the death of the trustor, to certain beneficiaries named in a deed of trust, is void under the ' laws of this state; and a conveyance made thereunder passes no title as against devises of the property under the will of the trustor.</p> <p>Id.—Presumption of Consideration.—The presumption of consideration for a deed cannot affect the invalidity of the express trust to convey contained in the deed of trust.</p> <p>Id.—Common-Law Bule Abolished—Statute of Uses—Powers in Trust to Convey.—Neither the English statute of uses and trusts nor the common-law rule relating to “powers in trust to convey” has any application in this state. The intention of the legislature in enacting the code provisions was to abolish the whole doctrine of uses and trusts at common law.</p>

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

<p>Like Insurance—Payment of Premiums—Extensions of Time—Conflicting Evidence—Presumption.—In an action upon a life-insurance policy containing the usual forfeiture clause for failure to pay the annual premium, where the evidence was conflicting as to whether extensions of time were given in which to pay the premium, and as to whether the death occurred during the unexpired period of an extension of time, it will be presumed in favor of a verdict for the plaintiff, which in that respect is not attacked, that the jury found in favor of such extensions."</p> <p>Ed.—Decision upon Former Appeal—Law of Case—Admissibility of Evidence.—A decision upon a former appeal by plaintiff from a judgment in favor of the defendant, under the same facts as shown upon this appeal by the defendant from a judgment in favor of the plaintiff, that by the extensions of time for payment of the . premium granted by the manager of the company to the insured there was no forfeiture of the policy, and that it was in full force at his death, is not the law of the case upon this appeal, upon the question of admissibility of the evidence to prove the extensions of time.</p> <p>Id.—Proof of Extensions of Time—Parol Evidence.—Extensions of time for the payment of the annual premium may be proved by parol evidence. The effect of such evidence is not to vary the terms of the written contract of insurance, which contained no agreement to pay the premium, but only a condition for its payment, that the company or its agents were competent to waive.</p> <p>Id.—Oral Waiver of Condition—Benefit of Insurance Company.— The condition in the policy, that it should become void if the premium should not be paid, was solely for the benefit of the insurance company, and may be orally waived. Such oral waiver does not vary the contract, but merely indicates the election of the company to continue the policy in force, and not to claim the benefit of the forfeiture.</p> <p>Id.—Waiver of Benefit—Statutory Provision.—The insurance company could not only waive any condition in the contract by parol, but may equally waive any statutory provision intended for its benefit.</p> <p>Id.—Consideration of Waiver—Estoppel.—A waiver of the condition of forfeiture for non-payment of the premium by an oral extension of the time of payment is not required to rest upon a consideration, or new agreement, nor need it be created by such acts or conduct as would create a technical estoppel, though the insurance company may be estopped by its acts from disputing that it has waived a forfeiture, as against one who has been permitted to act in reliance upon its oral agreement to extend the time, without notice to the contrary.</p> <p>Id.—Implied Promise.—The implied promise to pay the premium within the extension of time granted at the request of the insured was a sufficient consideration for the promise to extend the time.</p> <p>Id,_Letter of General Agent to Principal.—A letter from the general agent of the insurance company addressed to his principal, and informing it of the death of the insured and of a promise of the insured to make the payment in a few days, was admissible against the company.</p>

<p>Action to Enforce Trust and Lien—Support of Adverse Findings— Order Denting New Trial.—In an action to enforce a trust in money, and a lien therefor upon certain stocks and bonds alleged to have been deposited by an assignee for the benefit of the creditors of an insolvent stockbroker with the defendant bank, with alleged notice of the trust and lien,—where the court, upon sufficient evidence, found that no trust existed, that the bank did not receive the alleged money, and was a bona fide pledgee of the stocks and bonds, without notice of any equity, that plaintiff had only a general judgment against the assignee as such, and that the accounts of the administrator of the deceased assignee had been fully settled by judgment at suit of a succeeding assignee, which was paid, and was still in force, and where no error appears in the record, an order denying a new trial to the plaintiff will be affirmed.</p>

<p>Action upon Note—Insufficient Defense—Deed of Trust—Purchase by Corporation—Sale by Directors and Stockholders.— In an action upon a note for a "balance due, a defense that a deed of trust was executed to secure it, and that at a sale thereunder two of the trustees were directors and stockholders of the corporation creditor, which became the purchaser, does not state a defense, in the absence of any averments showing fraud, irregularity, or misconduct of the trustees in making the sale, or that it was not made to the highest bidder, or that the amount thereof was not credited upon the note, or that there was an offer to pay the balance. The sale was made, not to the trustees, but to the corpotion, and the seller and purchaser not being the same person, the sale was valid, if not shown to be invalid on other grounds.</p> <p>Id.—Belaxation of Bulb—Power of Sale for Security.—The rule as to the validity of purchases for the benefit of trustees, under a power of saje in a mortgage or deed of trust given as security for loans, is much relaxed. The mortgagee himself may be the trustee to sell under a mortgage.</p> <p>Id.—Accounting—Inconsistency—Insufficient Defense and CrossCoaeplaint.—A defense and cross-complaint for an accounting of the gains derived by the trustees from the trust property, is inconsistent with the defense that the sale was void and that the security must be first exhausted by a resale before suing on the note. But no defense or cause of cross-complaint for an accounting against the trustees is tenable in an action by the corporation for the balance due on the note; and where no facts are stated showing an obligation of the corporation plaintiff to any accounting beyond the purchase money paid, and applied on the note, the pleadings in relation to an accounting are insufficient.</p> <p>Id.—Sale under Deed of Trust—Unsatisfied Balance—Title of Trustees—Query.—It is clear on principle that after a sale has been made under a deed of trust an action may be maintained for any unsatisfied balance of the debt. But the question whether, since a trust-deed is distinct from a mortgage, in that it passes the legal title to the trustees, an action may be maintained on the debt, independently of a sale under the deed of trust, is discussed but not decided.</p>

<p>Appeal—Order Befusing to Vacate Prior Order—Settlement of Beceiver’s Account—Bond—Supersedeas.—On appeal from an order refusing to vacate a prior order settling the account of a receiver, and directing him to pay a large sum of money upon certain claims, the ordinary bond on appeal merely stays the order appealed from, but can have no effect to stay proceedings on the prior order; and a writ of supersedeas will not be granted to stay the execution of such prior order.</p> <p>Id.—Effect of Beversal—Bond to Stay Execution—Distinction between Appeals.—Though the reversal of an order denying a new trial has the direct effect to vacate the judgment, and a special bond to stay execution of the judgment may be given upon appeal from such an order; yet the reversal of an order refusing to vacate a former order for the payment of money by a receiver does not have the effect, ipso facto, to vacate the former order, but it stands until set aside by the court below pursuant to the direction of this court after the remittitur is returned; and the ordinary appeal bond cannot have the effect to stay execution of the former order.</p> <p>Id.—Dismissal of Motion to Vacate Order.—The dismissal of a motion to vacate an order is in legal effect the equivalent of a denial of the motion, for the purposes of appeal.</p>

The facts are stated in the opinion of the court. Geis & Albery, and Mastick, Van Fleet & Mastick, for Appellant. The general objection to the evidence was not sufficient, it being in effect that the matter was not pleaded. (Wise v. Wakefield, 118 Cal. 107, 110; Clarke v. Huber, 25 Cal. 593, 598; Howland v. Oakland etc. R. R. Co., 110 Cal. 513, 519-521; Burlington Ins.

<p>Contract—Employment op Vessel—Parol Evidence.—Under a written contract for the employment of a vessel for the conveyance of a cargo for three voyages from Portland, Oregon, to Redondo, California, at a fixed compensation per voyage, parol evidence is inadmissible to show a separate, oral, collateral agreement, contemporaneous with the written contract, for an interim voyage to San Francisco at a less compensation, consisting of regular San Francisco rates.</p> <p>Id.—Variation of Port—Fixed Compensation—Burden op Proof.— Where the employer of the vessel, in violation of the terms of the contract, varied the voyage from the port designated in the contract to an intermediate port, the owner of the vessel, not being in default, is prima facie entitled to recover the agreed compensation to the designated port. If he was entitled to recover less than this, the burden of proof was upon the defendant, who was the wrong-doer, to show it, and, in the absence of such showing, the stipulated rate must control.</p>

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

The main facts are stated in the opinion of the court. Further facts are stated in the dissenting opinion of Van Dyke, J.

The facts are stated in the opinion of the court. Otto turn Suden, and Webber & Rutherford, for Appellants. Thomas B. Hutchinson, and Percy S. King, for Respondents.

<p>Venue—Action to Recover Damages for Injury to Canal—Place of Commencement—Principal Place op Business of Corporation-Construction of Constitution.—Section 5 of article VI of the constitution, limiting the place for the commencement of certain real actions, is to be strictly construed, and does not include an action to recover damages for injury to a canal, where there is nothing in the complaint to indicate that the defendant claims any right or title to the easement of the canal. Such an action may be commenced in the county of the principal place of business of the corporation defendant; and the jurisdiction of the superior court therein is not divested merely because the answer of the corporation makes it appear that the action will involve the question of title to or possession of real property. [Beatty, O. J., dissenting.]</p> <p>Id.—Change of Venue—Convenience of Witnesses—Discretion.—A motion for a change of venue on account of the convenience of witnesses is addressed to the discretion of the court, and its action on the motion will not be interfered with on appeal unless there has been a clear abuse of discretion.</p> <p>Id.—Affidavit as to Physical Condition of Witness—Chronic Bronchitis-Judicial Notice—Ruling without Prejudice.—An affidavit of a physician to the physical condition of a witness afflicted with chronic bronchitis, and as to its being dangerous for him to be in the climate of San Francisco at the season of the year when the affidavit was made, cannot be material upon the question of the change of the place of trial, however material it might be upon the question of time for trial. This court cannot take judicial notice that the climate of San Francisco is at all times dangerous for such a witness; and the exclusion of such affidavit upon the motion to change the place of trial was without prejudice to the defendant.</p> <p>Id.—Rebutting Affidavit—Part of Original Case.—The exclusion of part of a rebutting affidavit, which was clearly a part of the original ease for the defendant, was not erroneous.</p> <p>Id.—Affidavits to be Limited to Issues.—Affidavits on a motion for a change of the place of trial, to be considered should be limited to the issues made, and if issue is not joined upon an amended pleading, which had been served long prior to the hearing of a motion, affidavits to the contrary are not material.</p> <p>Id__Objection to Affidavits—Ground not Specified—Support of Ruling.—Although the ground of an objection to affidavits was not specified, yet, if they were excluded, the ruling must be affirmed if any reason appears for which the evidence should have been excluded.</p>

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

<p>Criminal Law—Utterance of Forged Check—Sufficiency of Evidence.—Although it will not be inferred that a person intends to present a forged cheek in the absence of evidence to that effect, yet the tender of a cheek purporting to be signed by a certain person is in itself a representation that the cheek is genuine; and where a representation was made that the son of the purported maker had signed his father’s name thereto in his father’s absence and the evidence shows that the check was in fact forged, a verdict to the effect that the defendant feloniously and falsely uttered and passed the forged cheek as genuine, is supported by the evidence.</p> <p>Id.—Evidence—Declarations of Defendant.—The declarations of the defendant that he had been working for the person named as maker of the. check were competent evidence against him.</p> <p>Id.—Testimony op Dependant—Impeachment—Contradictory Statements.—Where the defendant testified in his own behalf that he bought the cheek from a third person, believing it to be genuine, he may be asked on cross-examination if he had not made contradictory statements, to lay the foundation for impeachment by proof that such statements were made.</p> <p>In.—Voluntary Statements—Confession.—Assuming, without deciding, that the contradictory statements proved were in the nature of a confession made to officers while under arrest, that fact does not render them inadmissible, where the proof shows affirmatively that the statements were voluntary, and that no threats were made or inducements held out to procure them.</p> <p>Id.—Immaterial Beperence to Another Check.—An immaterial reference to another check in the question asked of the defendant on cross-examination, to lay a foundation for impeachment, which check was not indicated to have been forged or uttered, could not have harmed the defendant.</p> <p>Id.—Instruction—Bepresentation of Genuineness of Signature—Immaterial Defect.—An instruction that in order to convict, the jury must believe that in passing the check, the defendant represented either that it was signed by the maker or for him by his son named, is correct with the possible exception that it was improperly limited to such son, there.being some evidence that there was another son. But such defect being more favorable to the defendant than otherwise, must be regarded upon appeal as immaterial.</p> <p>Id.—Befosal of Bequest—Misleading Instruction—Signature of Maker.—A requested instruction that if the defendant when passing the cheek told the transferee that the assumed maker did not sign the cheek, they must find the maker not guilty, was properly refused as misleading, in view of the evidence that the defendant then stated that the maker’s name had been signed by his son. The cheek would have been as valid and binding if signed by the son with the maker’s authority, as if personally signed by the maker.</p>

<p>Vendos and Pub chases—Contract of Sale—Offer—Insufficient Consent—Burden of Proof—Exclusion of Evidence.—In an action by an alleged purchaser of land to enforce a contract of sale, the burden of proof is upon the plaintiff to show a written contract between the parties. When the proof offered merely showed a written offer by the proposed vendor, which the proposed purchaser in effect rejected by a less offer, and a subsequent acceptance of the original offer, to which no consent was communicated by the proposed vendor to the purchaser, no written contract appears; and letters and telegrams showing counter proposals, but no meeting of minds in any written contract, were properly excluded from evidence; and judgment was properly rendered for the defendant for want of proof to support the action.</p> <p>Id__Reference to Agent—Pabol Negotiations.—Where the correspondence offered shows that the defendant insisted throughout that final negotiations should be made with defendant’s agent; and nothing appears to show that the terms of credit or of interest on deferred payments were settled in any writing, the agreement could not be considered finally settled. Evidence of parol negotiations with the agent was inadmissible.</p> <p>Id.—Part Performance—Land in Possession of Tenant—Survey. — Where the land was in possession of a tenant of the defendant, and was to remain in his possession until the expiration of the lease, the mere permission by the tenant to plaintiff to enter and make a survey was not such a taking of possession of the land as would show part performance of a verbal contract.</p>

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

<p>Appeal—Order Granting New Trial—Review—Support of Judgment. —Upon an appeal from an order granting a new trial, in the absence of an appeal from the judgment, the sufficiency of the complaint and findings to support the judgment cannot be reviewed.</p> <p>Id.—New Trial—Decision against Law.—A new trial is a re-examination of an issue of fact; and the only cases in which the ground that the decision is against law may be urged upon motion for a new trial are where it constitutes a reason for the re-examination of an issue of fact, and where the court has failed to find upon a material issue raised by the pleadings. The moving party cannot be granted the right to re-examine an issue of fact to correct a wrong judgment upon facts correctly determined.</p> <p>Id.—Failure to Find upon Issue—Ground not Urged.—The failure to find upon a material issue is not ground for a new trial, if not specifically urged, as a particular in which the decision is against law, in the statement, 'nor if there is no evidence in the record on such issue.</p> <p>Trespass—Injunction—Insolvency op Dependants—Presumption— Immaterial Issue.—In an action to enjoin a trespass upon the lands of plaintiff in constructing a wall thereon, where the court fails to find upon the alleged insolvency of the defendants, they will be presumed solvent; but even if they are solvent, they will not be permitted to forcibly enter upon plaintiff’s land, dig up the soil, and place a brick wall thereon to the exclusion of the plaintiff from the possession thereof; and the failure to find upon the issue as to their alleged insolvency is not material.</p> <p>Boundaries—Monuments—Courses and Distances.—In determining the boundaries ■ of city lots the lines as originally located on the surface must govern; and a line shown by monuments as platted by the city authorities and acquiesced in for many years must control courses and distances, and cannot be overturned by measurements alone.</p>

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

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

<p>United States Homestead Law—Conveyance of Water-Right— Priority to Homestead Entry—Good Faith.—The United States Homestead Law prohibiting an agreement by the homestead claimant to sell the “land” or any part thereof, or the “timber” thereon, does not apply to prohibit the conveyance of an undivided portion of the water flowing in a ditch or canon on the land, and of the right of way for the same, made long prior to the homestead entry, where it does not appear that either of the parties thereto then contemplated that the land should be obtained from the government by a homestead entry on the part of the grantor, or that the parties were not dealing in a fair and honorable way.</p> <p>Id.—Public Policy—Encouragement of Water-Rights.—Such conveyance of part of the water-right and of the right of way therefor not made in contemplation of the homestead entry, so far from being prohibited by the acts of Congress, or being against public policy, is favored and encouraged both by the legislation of Congress, and by the decisions of the courts, federal and state.</p>

<p>Officers—Contest of Election—Incumbency under Certificate-Eight to Salary Pending Contest—Mandamus.—The provision of section 936 of the Political Code that the person holding the certificate of election, who discharges the duties of the office, shall receive the salary of the office, notwithstanding a pending contest of the office, the same as if no such contest or proceeding were pending, is too clear for construction; and the right to receive such salary will be enforced by mandamus.</p> <p>Id.—Validity of Statute—Protection of Auditor and Treasurer.— Section 936 of the Political Code is not unconstitutional. The drawing of a warrant by the auditor in favor of the incumbent under the certificate of election, pending a contest, will relieve those officers and their bondsmen from any further liability in the premises.</p>

<p>FORECLOSURE OF MORTGAGE—AMENDMENT OF DECREE—APPOINTMENT OF Commissioner—Validity of Sale.—A minute order amending a decree for the foreclosure of a mortgage so as to allow a commissioner to sell the property, does not change it in matter of substance; and such amendment, together with an order appointing a commissioner to make the sale, in effect superseded the appointment of the sheriff by the original decree. A sale made by the commissioner so appointed is valid, and will not be set aside merely on that ground.</p> <p>Id.—Ex Parte Appointment—Notice not Required.—The court is authorized to appoint a commissioner to make a sale under foreclosure, by its judgment, or at any time after judgment. The statute does not require notice of the appointment, and the order appointing the commissioner may be obtained ex parte.</p> <p>.Id.—Stay of Execution—Piling of Remittitur.—A stay of execution of a decree of foreclosure pending an appeal therefrom, ceases to operate when the remittitur from the supreme court is filed in the cierk’s office of the superior court. The failure of the clerk to follow the directions given in section 958 of the Code of Civil Procedure, cannot deprive the superior court of its jurisdiction, nor keep alive the stay of execution.</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. M. T. Allen, Judge.</p> <p>The facts are stated in the opinion.</p>

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

<p>Action foe Goods Sold—Order Granting New Trial—Sufficiency of Specifications—Settlement. —In an action for goods sold, where defendant moved for a new trial, specifications of the insufficiency of the evidence to justify the decision that no settlement was made between the defendant and the agent of plaintiff’s assign- or, and that at the time of the assignment there was a balance due, are sufficient to support an order granting a new trial, where there was evidence from which the court might have concluded that there Was such a settlement upon which it was determined that nothing was due.</p>

MANDAMUS from this Court to a Judge of the Superior Court of Los Angeles County. N. P. Conrey, Judge. The facts are stated in the opinion of the court. Hunsaker & Britt, and Mastick, Van Fleet & Mastick, for Petitioners. Clarence A. Miller, George J. Denis, for Respondent; L. L. Boone, and Oscar A. Trippet, Amici Cur ice, also for Respondent.

<p>The facts are stated in the opinion of the court.</p> <p>Arthur C. Huston, Charles W. Thomas, William S. Wall, and Benjamin A. Martin, for Appellant.</p>

<p>Vendor and Purchaser—Action upon Notes—False Representation as to Profits—Cross-Complaint—Damages for Fraud.—In an action by a vendor upon notes given in part payment of the purchase price of land, the defendants may by answer and cross-complaint recoup from the notes the amount of damages sustained by false and fraudulent representations of the vendor and others in conspiracy with him as to profits made in the management of the property, whereby the purchaser was induced to purchase the property; and where the action for damages for the fraud is brought within the period fixed by the statute of limitations, it was error to refuse to .admit proffered evidence to prove the fraud and damages' alleged.</p>

<p>Municipal Ordinance—Prohibition of Burials in City Limits—Police. Power—City Charter—Constitutional Law.—An , ordinance of the city and county of San Francisco, prohibiting interments of dead bodies within the city limits, exclusive of those portions belonging to the United States, under a penalty for violation of its provisions, is a valid exercise of the police power of the city vested in it by section 11 of article XI of the state constitution. The word “necessary” in the grant of power contained in the city charter does not limit or restrict the police power conferred by the constitution upon its legislative body, which exercises within the city limits all of the police power of the state, subject only to the control of general laws. -</p> <p>Id.—Ordinance not in Conflict with General Laws.—Such ordinance is not in conflict with any general law. It does not conflict with the statute for the incorporation of rural cemetery associations, and allowing them to hold three hundred and twenty acres of land to be occupied exclusively for cemeteries, nor with the provisions of the Penal Code regulating burials.</p> <p>Id.—Nuisances—Limit of Police Power.—The police power of the-board of supervisors of the city and county of San Francisco vested in them under the constitution, is not confined to the regulation or suppression of those things which the law declares to be nuisances, in themselves. Whenever a thing or act is of such a nature that it may become a nuisance, or may be injurious to the public health if not suppressed or regulated, the legislative body may, in the exercise of its police power, make and enforce ordinances to regulate- or prohibit such act or thing, although it may never have been offensive or injurious in the past.</p> <p>Id.—Future Conditions to be Considered.—In the enactment of police-regulations the legislative body is not confined to present conditions alone, but may look to the future, and make such provisions as may be reasonably expected to be necessary to promote and preserve the-public health and welfare in the immediate growth and progress of the city.</p> <p>to.—Reasonableness of-Regulation—Power of Courts—Decision of Legislative Body.—Except where the court can see, in the light of facts properly brought to its knowledge, that a given police regulation has no just relation to the object which it purports to carryout, and no reasonable tendency to preserve or protect the public safety, health, comfort, or morals, the decision of the legislative body as to the necessity or reasonableness of the regulation, is conclusive.</p> <p>Id.—Property Held Subject to Police Power.—All property is held subject to the exercise of the police power; and the provisions of the constitution forbidding laws impairing the obligation of contracts, and declaring that property shall not be taken without due process of law, have no application in cases where the police power is exercised.</p> <p>Id.—Motives oe Legislative Body.—Where there is nothing on the face of the ordinance to show that it was passed for private purposes, and from improper motives, no inquiry or proof to show the motive impelling its passage can be allowed,</p>

<p>Estates or Deceased Persons—Accounts or Executor—Advances to Beneficiaries under Will—Distribution.—In the settlement of the accounts of an executor, whether the account he intermediate or final, when not accompanied by a petition for distribution, advance payments made by the executors under their own construction of the terms of the will, to the beneficiaries named therein, upon their own judgment, without an order of the court, cannot he considered. Credits for such payments can only be determined upon distribution of the estate, and the court properly retired such items from the accounts, to he considered only when the petition for distribution is heard.</p> <p>Id.—Action at Peril of Executor.—When an executor undertakes to construe the provisions of a will or to make payments thereunder in anticipation of the decree of distribution, he does so at his peril.</p> <p>Id.—Doty of Court in Settling Account.—Independent of objections urged by any person to items in the account of an executor, it is the duty of the court in settling the account carefully to scrutinize the same, and to reject any improper items therefrom, whether objections are interposed or not.</p> <p>Id.—Question of Interest in Estate—How Determined.—The question whether a person claiming an interest in an estate is entitled to any standing in contesting items of the executor’s account for advances made to beneficiaries is a matter which should be determined on the hearing for distribution.</p>

<p>Husband and Wife—Mistaken Belief of Death—Second Marriage after Five Tears—Validity—Probate Homestead.—Under the law of this state, a second marriage contracted in good faith by the wife of a former husband, who was absent and not known to her to be living, or was generally reputed and believed by her to be dead, for the space of five successive years immediately preceding such second marriage, is valid until its nullity is adjudged by a competent tribunal; and if not so annulled, the wife cannot claim a probate homestead in the estate of her former husband as his widow.</p> <p>Id.—Law of Another State—Absence of Proof—Presumption.— Where the second marriage took place in another state, under the law of which it is claimed to be absolutely void; if the law of such state is not proved as a fact, it must be presumed to be the same as the law of this state.</p> <p>Id.—Duty of Husband to Inform Wife—Wife not Bound to Inquire —Bightful Belief of Death.—It was the duty of the former husband to keep his wife advised as to his whereabouts. The wife was not required to endeavor to ascertain his whereabouts; but she had the right to believe, from his silence for ten years prior to the second marriage, that he was dead.</p>

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

<p>Benevolent Order—Sick Benefits of Insane Member — Violation of Boles—Jurisdiction of Court.—Although, as a general rule, one who has become a member of a benevolent order, is not entitled to appeal to the courts for redress until after he has adopted the lawful procedure and exhausted the lawful remedies prescribed by the constitution and by-laws of the order; yet where sick benefits were sought on behalf of an insane member by his wife "as guardian of his person and estate, and the order violated its own laws, in not giving her any notice or opportunity to produce testimony in behalf of her husband before an adverse decision against him in the order, and on appeal to the great council, the court has jurisdiction' to hear and determine the merits of the controversy.</p> <p>Id.—Merits of Controversy—Forfeiture of Bights by Intemperance —Conflicting Evidence—Appeal.—Where, upon the merits of the controversy, the question whether the insane member had forfeited his right to sick benefits by intemperance was determined by the court sitting as a jury, upon conflicting evidence, in favor of the plaintiff and adversely to the order, its finding is conclusive upon appeal.</p>

<p>Foreclosure of Mortgage—Deed to Trustee for Bank—Findings— Collateral Attack—Action to Quiet Title—Presumption.—In an action to foreclose a mortgage evidenced by a deed of grant, bargain, and sale to a trustee for a bank, in which the court found and decreed that at the time of its execution it was, and was intended to be, a mortgage to secure the bank for past and prospective loans, it will be assumed on collateral attack, in an action to quiet title to the property against the trustee and the bank, which became purchaser under the decree of foreclosure, that all the facts and circumstances justifying the conclusion were in evidence.</p> <p>Id.—Parties—Judgment Creditor—Levy of Execution—Lis Pendens —Subsequent Purchaser. —Where subsequent judgment creditors of the mortgagor, grantee in such deed, who prior to the foreclosure suit, had levied execution upon the mortgaged property, were made parties defendant to the foreclosure, and a proper notice of Us pen-dens was filed with the recorder, a subsequent purchaser under the execution after such notice of Us pendens was filed took with notice of the action, and is bound by the judgment therein, though not made a party thereto.</p> <p>Id.—Belation of Title under Foreclosure—Priority.—The title acquired by the bank under the decree of foreclosure related back to the date of the mortgage lien, and was prior and paramount to that of the purchaser under the execution sale, who took with notice of the foreclosure suit.</p>

PETITION for Writ of Habeas Corpus to test the validity ■of letters of guardianship issued by the Superior Court of the ■City and County of San Francisco. T. F. Graham, Judge. The facts are stated in the opinion of the chief justice.

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

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

<p>Estates of Deceased Persons—Distribution—Petition to Vacate— Pretermitted Grandchild.—The superior court has power, under section 473 of the Code of Civil Procedure, to relieve a pretermitted minor grandchild of a deceased testator from the effects of a decree of distribution under the terms of the will, which omits any provision for such grandchild, who appears to be the sole issue of a deceased son, not living at the time of the execution of the will, and to be but twelve years of age, and to have had no actual notice of the proceedings in the estate, and not to have been represented therein, and whose existence was not known to the court, though known to the executrix and other devisees, and whose application for such relief was promptly made and diligently prosecuted after discovery of the rights of the minor to an interest in the estate.</p> <p>Id.—Want of Diligence not Imputed to Child.—Want of diligence in ascertaining the rights of a minor in an ancestor’s estate is not to be imputed to a child of tender years, when moving to set aside a deerée in the statutory time; nor can such child, though knowing of the will, and that it was being probated, be deemed to have known the legal effect of its provisions upon her rights, or be concluded by the decree'of distribution.</p> <p>Id.—Liberality of Courts.—Courts are always inclined to be liberal in relieving parties laboring under a disability from the effect of a decree which appears to be unjust, and which deprives a party of his rights; and the lower court is warranted in vacating it upon diligent application and a reasonable showing. Under such circumstances stringent rules should not be applied to sustain a wrong but liberally applied to protect a right.</p> <p>Id.—Sound Discretion.—In such cases, whether good and sufficient cause ' is shown for setting aside the decree, is a matter addressed to the sound discretion of the court; and this court will not interfere unless for clear and manifest abuse of discretion. In this case, discretion was wisely exercised in setting aside the decree.</p> <p>Id.—Evidence—Death op Father op Grandchild—Presumption.— Held, that the evidence is sufficient to show that the father of the omitted grandchild was dead at the time of the execution of the will, and that, as he had not been heard from as living for more than live years prior thereto, the presumption of law is that he was then dead.</p> <p>Id.—Construction op Code—Eights op Pretermitted Grandchild-Mistakes—Legacy to Deceased Father.—Under section 1307 of the Civil Code, where the omission of a testator to provide in his will for the issue of any deceased child does not appear to have been intentional, such issue must have the same share in the estate by succession as if the testator had died intestate. The fact that the testator, under mistake, made a legacy to the father, whom he believed to be living,-but who was in fact then actually dead, is immaterial, since such legacy lapsed under section 1343 of the same code, and cannot affect the omission to provide for the omitted grandchild.</p> <p>Id.—Distinction between “Devise” and “Legacy.”—The Civil Code everywhere distinguishes between a “devise” of real property, and a pecuniary “legacy.” Section 1310 of the Civil Code providing for the taking under the will by lineal descendants of a child or other relation of the testator, to whom estate is “devised,” has no application to a ease of lapsed legacy to a deceased child, constituting an omission to provide for his issue.</p> <p>Id.—Redistribution to Omitted Heir—Epfect op Specific Devise.— The devisee of a specific devise who is a stranger in blood to the testator, is not protected against contribution to the share of an omitted heir on redistribution, under section 1308 of the Civil Code, where such devise is unattended by any language manifesting an obvious intention that under all circumstances such devise must be kept intact, and where the only obvious intention expressed is that the testator created the devise in favor of such devisee.</p>

<p>The facts are stated in Estate of Harrington, ante, p. 244.</p>

<p>Action fob Death—Negligence—Insecure Derrick—Suppiciencv op Evidence.—In an action for damages for the death of an employee of the defendant, brought by the widow and children, where there was ample evidence to show that the proximate cause of the death was the insecure condition of the platform upon which a derrick-car rested, and to which it was clamped, and the insufficiency of the counterbalance, and from the fracture of a east-iron pintle or pivot arising from a sudden jar to the mast and boom in falling upon the deceased, the evidence was sufficient to support a verdict for the plaintiff.</p> <p>3d.—Expert Evidence as to Derrick—Civil Engineers.—Derricks, being of such limited use and complicated construction that an ordinary person is not familiar therewith, civil engineers of long experience who are familiar with the mechanical principles on which they are constructed and operated and with their strength and use, are competent to testify as expert witnesses in relation thereto, and as to the sufficiency and security of the counterbalancing and fastening of the derrick in question.</p> <p>Id.— Demote Prior Accident—Absence op Repairs.—Evidence that about five years prior to the fall of the derrick which killed the deceased, a similar accident occurred with a hand derrick on the same platform, and that no repairs had since been made upon the platform, was admissible to show the insecure condition of the substructure on which the derrick in question rested, and the defendant’s knowledge of it and inattention to it. The difference in the derricks, and in the mode of their operation and the remoteness of the prior accident, are not tenable objections to such evidence.</p> <p>Id.—Harmless Instruction—Naming Witnesses.—While it is advisable for the court not to name witnesses in an instruction, yet where an instruction as to the effect of the testimony as to the prior accident named the only witnesses who testified on that subject, the naming of them was not matter of prejudice.</p> <p>Id.—Evidence not Objected to.—Though, as a general rule, evidence of changes and repairs made subsequent to the accident is inadmissible, yet where evidence of such changes and repairs was admitted without objection or exception, error in admitting the same cannot be considered.</p> <p>Id__Evidence—Condition of Ties Eemoved by Workmen.—Testimony was admissible to show that the ties removed from the substructure by the men employed by the defendant to take it down after the accident were so decayed that when carried away by them and thrown down, some of them broke in two. The incidental mentioning of facts from which the jury may infer that repairs were being made did not render the evidence as to the condition of the ties removed from the substructure inadmissible.</p> <p>Id.—Instructions—Admission of Pleadings as to Support—Damages.—An instruction that if the verdict be in favor of plaintiffs the jury may consider the admitted fact that the deceased was the sole support of the plaintiffs, and that he contributed all of his wages to their support, cannot be objected to on appeal, where the admission was expressly made in the pleadings, and no objection was made to the instruction in the court below, and the cause was tried on the theory that the admitted fact was proper matter to be considered by the jury in estimating the damages.</p> <p>Id.—Loss of Society, Comfort and Care.—It was proper to instruct the jury that in estimating the pecuniary loss to the plaintiffs the jury had a right to take into consideration the loss of society, comfort, and care suffered by them in the death of the husband and father.</p> <p>Id.—Master and Servant—Duty of Master to Inspect Appliances. —The duty of a master to inspect the machinery and appliances furnished to his servants is affirmative, and must be continuously fulfilled and positively performed. In ascertaining whether this has been done or not, the character of the business should be considered, and anything short of this would not be ordinary care.</p> <p>Id.—Instruction—Wooden Structures—Matter of Common Knowledge.—An instruction to the jury that they may consider the liability of all wooden structures to get out of repair and unfit foi use, which is matter of common knowledge, cannot be prejudicial.</p>

The facts are stated in the opinion of the court. William H. Jordan, for Kennedy & Shaw Lumber Company, Appellant. The consent of J. S. Antonelle was a condition precedent of the liability of the defendant under the contract with plaintiff. (Civ. Code, sec. 1436; Van Horne v. Dorrance, 2 Dall. 304; Fed. Cas. No. 16,857; Northup v. Northup, 6 Conn. 196; Cohey v. Lehman, 79 Ill. 173; Packard v. Van Schoick, 58 Ill. 80; Hambly v. Delaware Ry.

<p>Libel—New Trial—Excessive -Verdict—Insufficiency of Evidence —Lack of Specifications.—A verdict for the plaintiff in an action for libel cannot be set aside as excessive, on motion for a new trial, where the statement of the case fails to specify any particulars in which it is claimed that the evidence is insufficient to justify the verdict.</p> <p>Id.—Libel Per Se—Verdict not Excessive.—Where the article published was clearly libelous per se, charging in effect that plaintiff was a swindler, a forger, and a double thief in a large sum, and the evidence shows that it was wholly false, and that the defendant took no pains to verify the article before publishing it, a verdict for one thousand dollars for the plaintiff was not excessive.</p> <p>Id.—Delay in Bringing Suit—Immaterial Evidence.—The plaintiff was entitled to bring his suit under section 340 of the Code of Civil Procedure at any time within one year from the date of the publication; and an inquiry as to why he delayed suit until the day before the expiration of the year, and did not commence it sooner, was irrelevant and immaterial, and was properly excluded.</p> <p>Id.—Complaint of Falsity of Article.—A question as to whether the plaintiff had complained in writing that the article was untrue, before commencing suit, was properly overruled; but the defendant cannot complain where he was allowed to testify without objection that no complaint of any kind, oral or written, was made before the filing of the complaint.</p> <p>Id.—Instruction—Exemplary Damages—Responsibility of Proprietor.—An instruction that if the jury should find that the article in question was published wantonly, recklessly,- and with an utter disregard as to whether it was true or false, the plaintiff is entitled to recover exemplary and also compensatory damages, correetly states the law; but where the jury were elsewhere told in effect that nothing but compensatory damages could be allowed as against the defendant proprietor who was absent at the time of the publication, unless they found from the evidence that in publishing the article the defendant was actuated by malice in fact, actual or presumed, the defendant cannot complain of the instructions given.</p> <p>Id.—Circulation and Influence of Paper—Character and Standing of Proprietor.—The court properly instructed the jury they could consider the influence of the paper and of the defendant, arid the circulation of the paper, where its extensive circulation was an admitted fact. The greater the circulation the greater the wrong, and the more reason why greater care should be exercised in the publication of personal items. The character and standing of the defendant proprietor may be considered on the question of damages.</p> <p>Id.—Actual Damages—Shame and Mortification—Loss of Reputation—Pleading—Evidence—Province of Jury.—Actual damages for libel include shame and mortification of the plaintiff, and loss of reputation, which need not be alleged in detail, and may be recovered in the absence of actual proof, and to the amount that the jury estimates will actually compensate. The jury may consider the natural and necessary consequences of the publication upon the plaintiff.</p>

<p>Board of Education—Superintendent of Schools—Membership Ex-Officio—Power, of Deputy—Mandamus.—Although the superintendent of schools has power to appoint deputies to discharge the duties of that officer, yet his membership ex officio in the board of education is a distinct office, which cannot be delegated, and he is not entitled to a writ of mandate to compel the board of. education to receive his deputy as a member ex officio during his absence from the meetings of the board.</p> <p>Id.—Duties of Board—Delegation of Power.—The duties of the board of education are legislative and quasi-judicial in their character j and the general rule is that such duties cannot be delegated.</p>

<p>PETITION for Writ of Mandate to a Judge of the Superior Court of Los Angeles County. Waldo M. York, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Guardian and Ward—Incompetent Person—Findings—Definition— Immaterial Constitutional Question.—Where the petition for ' the guardianship of an alleged incompetent person proceeds upon unobjectionable sections of the Code of Civil Procedure ■ relating thereto, and the findings of the court, sustained by sufficient evidence, support the petition, it is immaterial whether the definition of an incompetent person, enacted in section 1767 of the Code of Civil Procedure, in 1891, is unconstitutional; and the fact that the court in a subsequent finding followed that definition cannot affect its other findings which support the petition.</p> <p>Id.—Testimony of Attending Physician s—Privileged Communications—Waiver of Objection.—Any error in the rejection of the offered testimony of the attending physicians of the alleged incompetent person, is not prejudicial, where, upon her subsequent written waiver and consent, the court permitted the witnesses to testify, and they testified in her favor.</p> <p>Id.—Cross-Examination.—Questions asked as to the ability of the appellant to take care of her property, upon cross-examination of the attending physicians, who had testified as to her competency, were in the bounds of proper cross-examination; and where the answers to them were not prejudicial to the appellant, they cannot constitute ground for reversal.</p>

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

<p>Id.—Findings of Fact—Erroneous Conclusion of Law—Modification of Judgment.—Where the findings of fact by the court conclusively show, as matter of law, that the bonds are not enforceable against the land of the intervener, nor against the intervener at all, and that such lands are not a part of the district, a statement in the last finding of fact that an assessment when levied to obtain revenue for the payment of the liability of the district, will become a lien upon the land of the intervener, is an erroneous conclusion of law, and a judgment merely exempting the land from the lien of the judgment rendered in favor of the holder of the bonds, and following the erroneous conclusion of law, will be modified upon appeal, to accord with the true conclusion of law.</p> <p>APPEAL from a judgment of the Superior Court of Kern County. J. W. Mahon, Judge.</p> <p>The facts are stated in the opinion.</p>

<p>Guardian and Ward—Settlement op Accounts—Petition to Vacate Orders por Fraud—Equity Jurisdiction—Appeal prom Decree.— A petition by a ward after majority, to set aside orders settling the accounts of the guardian for alleged fraud in his accounts, and in omitting to account for moneys received, though entitled in the matter of the estate, will be deemed a bill in equity, of the subject-matter of which the superior court has jurisdiction, as a court of equity, where the pleadings on both sides are drafted in effect as they would be in a suit in equity, and the findings and decree are such as would follow the trial of such an action, and the defendant waived objection to the jurisdiction of his person by answering the petition. An appeal from the decree in such case will be deemed to be taken, not from a probate order, but from a decree in equity.</p> <p>Id.—Judgment-Boll—Documents not Authenticated.—Upon an appeal in such case taken from the judgment-roll, documents inserted in the transcript which are not part of the judgment-roll, and are not authenticated by any bill of exceptions, cannot be considered.</p> <p>Id.—Insuppicient Petition—Special Demurrer.—Where the allegations of the petition of the ward relative to overcharges in the accounts of the guardian are of the most general character; and where no facts or circumstances constituting the fraud alleged are stated, but it is merely charged that the guardian fraudulently and wrongfully charged given sums; and where there is no particularity in the averments concerning the guardian’s failure to credit the ward for services rendered, and no averment that the ward rendered services, or as to the nature of them, and the averments related to items embraced in and disposed of in former accounts,— a special demurrer to the petition should have been sustained.</p> <p>Id.—Support op Judgment — Insufficient Findings.—Where the court made no findings upon the issue of fraud, nor that the guardian received any money belonging to the ward’s estate for which he did not account, and the only items of account dealt with in the findings are exclusively those contained in the settled, accounts, the findings are insufficient to sustain a judgment modifying the accounts.</p> <p>Id.—Beview op Settled Items of Account—Conolusiveness op Order —Jurisdiction op Court.—The court had no power to re-examine and revise settled items of the guardian’s former accounts, nor to reduce the settled compensation for services of the guardian, which had been previously examined and passed upon and approved by the court. As to the items so passed upon, the orders settling the accounts in which they were contained were final and conclusive.</p>

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

MOTION to dismiss an.appeal from an interlocutory decree of the Superior Court of the City and County of San Francisco in an action for partition. James M. Seawell, Judge. The facts are stated in the opinion of the court.

The facts are stated in the opinion of the court. D. E. Alexander, C. F. Gardner, and W. S. Goodfellow, for Appellant. The court erred in permitting the defendant to prove any other acts of exclusion from the race-track not alleged in the complaint. No special damages are alleged, and only the proximate actual damage for the act complained of can be recovered.

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

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

<p>Appeal from Judgment—Stipulation for Reversal.—Where it is stipulated upon appeal from a judgment, that in case an order granting a new trial should be affirmed the judgment should be reversed, and such order has been affirmed, the judgment will be reversed accordingly.</p>

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

<p>Deed Intended as Mortgage—Clear Proof Esquired—Findings—Conflicting Evidence.—The proof must be clear and satisfactory to establish that a deed absolute on its face was intended as a mortgage; and where the trial court finds that it was not so intended, the judgment cannot be reversed unless the evidence is overwhelmingly the other way. Where the evidence is substantially conflicting, the finding that the deed was not intended as a mortgage cannot be disturbed.</p> <p>Id.—Joint Note for Kent—Consideration.—Where it appears that the joint note in suit was given by the husband and wife, appellants, to the respondent, for rent due under a lease of the premises to the husband by the respondent for one year, with the privilege of repurchasing the same within that period, and that the respondent, by accepting the joint note, extended the time of payment and waived the forfeiture of the lease, and allowed both of appellants the desired privilege of remaining in possession, the note is supported by a sufficient consideration as to both of the appellants.</p> <p>Id.—Note of Husband and Wife—“Coercion” —Pleading Facts not Averred—Demurrer.—In an action upon such joint note, an averment made in an amendment to the wife’s answer that her husband “coerced” her to sign the note, without the averment of any facts constituting undue influence or duress on his part, was insufficient, and a demurrer thereto was properly sustained.</p>

<p>Easement—Flume Across Ditch—Construction op Grant—Obstruction to 'Flow op Water.—A grant of a right of way for a flume across plaintiff’s ditch to defendant’s grantor, providing that the CXL. Cal—25 crossing should “be made in such a way as not to stop or impede the flow of all the water which the canal or ditch may or can carry, or any future enlargement of said canal or ditch,” the word “all” used in the proviso is intended to import, not that the flume is not an obstruction, unless it obstructs all of the water, but that there should be no stoppage or impediment to the maximum quantity of water which the ditch then, or in the future, was capable of carrying.</p> <p>Id.—Prescriptive Title to Obstruction—Punning op Statute.—Where it appears that the flume was as much an obstruction to the flow, of water in the ditch when it was originally constructed as when the action was commenced to restrain the obstruction, the cause of action accrued when it was constructed, and the statute of limitations then began to run; and if the defendant and his grantor have since maintained the flume as constructed, during all the period required by the statute, not under license, but as of right, the defendant has a prescriptive title to maintain it as constructed, and cannot be required to do any other act as a condition to its continued future maintenance.</p> <p>Id.—Promise by Dependant’s Manager.—A promise of the defendant’s manager to cause a truss-bridge to be constructed across the canal to support the flume, made after the defendant had acquired a prescriptive title to maintain the flume as originally constructed, and made without the authority of the defendant, cannot prove a license, or affect the prescriptive title.</p> <p>Id.—Enlargement op Ditch—Increase op Volume—Annual Cleaning.—The prescriptive title of the defendant to maintain the obstruction, once acquired, cannot be affected by any increase in the-flow of the water, either by a future enlargement of the ditch or by an increase of its volume caused by an annual cleaning of the ditch.</p>

<p>Estates of Deceased Persons—Contest of Will—Dndtje Influence not Shown.— Upon the contest of a will in favor of the wife of the testator, on the alleged ground of undue influence of the wife over the testator, where it appears that the testator was a lawyer of sound mind and in the active management of Ms affairs, and that the will was holographic, and remained in his possession for three years from the date of its execution until his death, and there is no evidence that the wife was present when it was executed or requested its execution or knew of its existence until after her husband’s death, no undue influence is shown.</p> <p>Id__General Influence of Wife—The mere general influence of a wife over her husband, not shown to have been brought to bear directly upon the testamentary act, nor to have destroyed the free agency of the husband in the very act of maMng the will, is not undue influence such as will afford ground for setting aside the will of a person of sound mind.</p> <p>lb.—Opportunity and Inducement—Undue Influence of Wife not Presumed.—It cannot be presumed, because the wife has ample opportunity and inducement to exert undue influence over her husband, that she has done so; but it must be shown that she has exerted her influence for an improper purpose. The fact that the will was in her favor, and that each of the children by the present wife, and a former wife, received only one dollar each, does not raise a presumption that undue influence was exercised by her over her husband.</p> <p>Id.—Fairness of Will—Province of Jury—Power of Testator.— The jury have no right, under the stimulus of their sympathy, to substitute their views of a fair will for that which, under the law, the testator had a right to make. A testator of full age and sound and disposing mind and memory, and not under restraint, may make such disposition of his property as does not conflict with the law; and the fact that he makes a foolish, unnatural, or unjust will does not show that undue influence caused the will.</p> <p>Id.—Declarations of Husband—Hearsay.—Where the soundness of the testator’s mind was not in issue, the declarations of the testator, bearing upon the question of the influence of the wife over the husband, are inadmissible hearsay.</p>

<p>APPEAL from an order of the Superior Court of Los Angeles County settling the final account of an administrator and distributing the estate of a deceased person. Lucien Shaw, Judge.</p> <p>The facts are stated in the opinion.</p>

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

<p>APPEAL from orders of the Superior Court of Los Angeles County fixing the compensation of a receiver and of a referee in an action for partition. Lucien Shaw, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

The facts are stated in the opinion. James A. Devoto, Devoto & De Martini, and Devoto & Richardson, for Appellants. The evidence overwhelmingly proves that Mrs. Cord was unconscious when the deed was made, and did not, and could not, request the notary to sign her name to the mark, and did not, and could not, acknowledge the execution. This overcomes the certificate of the notary, which is only prima facie, and not'conclusive evidence of the facts recited.

<p>The facts are stated in the opinion of the court.</p> <p>W. W. Foote, T. M. Osmont, and J. B. Mhoon, for Appellant.</p> <p>Campbell, Metson & Campbell, Garber, Boalt & Bishop, and William Rix, for Respondents.</p>

The facts are stated in the opinion of the court. Garret W. McEnerney, W. S. Tinning, Robert C. Porter, W. B. Treadwell, and John S. Drum, for Appellant. The superior court of San Francisco had no jurisdiction, as deceased was living in Lake County when he died, and there registered and voted. (Code Civ.

The facts are stated in the opinion of the court. W. R. McQuiddy, Austin & Jones, George W. Jones, Reddy, Campbell & Metson, and Campbell, Metson & Campbell, for Appellants. The discovery of mineral is sufficient to protect a location. It need not be found in paying quantities. (Castle v. Womble, 19 L. D. 455; Tam v. Story, 24 L. D. 442; Book v. Justice Min.

<p>Contract—Adoption—Heirship—Specific Performance—Estate of Deceased Person—Evidence—Declaration of Decedent.—In an action against the estate of a deceased person to enforce specific performance of a contract made by the decedent in his lifetime, to adopt the son of another person, and to accept him as sole heir of his property, the declarations of the decedent against his interest are admissible in favor of the plaintiff in support of the alleged contract.</p> <p>Id.—Self-Serving Declarations.—The self-serving declarations by the decedent, made outside of the presence of the plaintiff, that he was only the guardian of the plaintiff, are not admissible as evidence for the defendants.</p> <p>Id.—Bes Gest®.—Self-serving declarations, made long subsequent to .the contract sought to be enforced, are not admissible as being part of the res gestee. A declaration to be admissible as part of the res gestee, must be an incident, or the natural and spontaneous out* growth of the main occurrence in question, and must exclude the notion of deliberation; or calculation, or design to make evidence for future purposes.</p> <p>Id.—Prejudicial Error—Estoppel.—The defendants having insisted upon the admission of improper evidence, over an objection to its admissibility, cannot defend their cause by contending that the error was harmless. Prejudice is presumed from such error; but where it appears that the improper evidence actually influenced the decision of the judge in favor of the defendants, prejudicial error is plainly apparent.</p>

<p>.Estates of Deceased Persons—Contest of Will—Petition to Revoke Probate—Order Denying New Trial—Appeal.—Under section 963 of the Code of Civil Procedure, as amended in 1901, an order refusing to revoke the probate of the will of a deceased person is appealable to this court; and where there is an appeal from a judgment or order in a contest over the probate of a will, an appeal lies from an order denying a motion for a new trial therein.</p> <p>Id.—Refusal to Settle Statement—Mandamus.—Where the judge? refused to settle the statement on motion for a new trial, after a. decision against the petition to revoke the probate of a will, on. the ground that a new trial thereof could not be granted for want, of jurisdiction to grant it, the proper remedy is by mandamus to-compel the settlement of the statement.</p>

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

<p>The facts are stated in the opinion.</p> <p>W. L. Pierce, Bishop, Wheeler & Hoefler, and William Rix, for Appellant.</p> <p>The action is a mixed action in equity, which must be tried in the county of the residence of the defendants. (Smith v. Smith, 88 Cal. 572; Moore v. Superior Court, 64 Cal. 345; Le Breton v. Superior Court, 66 Cal. 27; Mock v. City of Santa Rosa, 126 Cal. 330; Ah Fong v. Stearns, 79 Cal. 33; Smith v. Davis, 96 Cal. 25-32; Warner v. Warner, 100 Cal. 11; Golden Cross Min. etc. Co. v. Spiers, 115 Cal. 247; Ashurst v. Gibson, 57 Ala. 584; State v. Superior Court of Kings County, 7 Wash. 306; Suffold v. Scottish Am. Mfg. Co., 98 Ga. 785; McCallister’s Admr. v. Louisville Savings Bank, 80 Ky. 684.)</p>

<p>Divorce — Interlocutory Decree — Postponement of Final Judgment-Constitutional Law—Regulation of Practice.—The act of the legislature of March 2, 1903, adding sections 131 and 132 to the Civil Code, providing for an interlocutory decree in divorce cases, where the court finds that a divorce should be granted, and postponing the entry of final judgment for one year, though regulating the practice of courts in a special class of eases which is sui generis, and in which the state has an interest, is constitutional, and not in violation of subdivision 3 of section 25 of article IV of the constitution, prohibiting local or special laws regulating the practice of courts of justice.</p> <p>Id.—Power of Legislature to Classify.—The legislature, though it may not classify arbitrarily, has the power and right to enact laws applicable only to one class of its citizens, when the classification is authorized by the constitution, or is based on intrinsic differences requiring different legislation; and it may regulate the practice of courts of justice, in various classes of actions or special proceedings, when made necessary by the nature of the objects and purposes of the various classes regulated.</p> <p>Id.—Dissolution of Marriage—Interest of State—Proper Classifi- ■ cation.—Cases of divorce in which it is determined that one of the parties has a right to the dissolution of the marriage relation are intrinsically different from those in which a divorce is denied; and since the state has a special interest in the dissolution of the marriage relation, the legislature has the power to regulate the practice of courts of justice in the former class of cases, as to the time and manner of giving interlocutory and final judgment of divorce therein.</p> <p>Id.—Applicability of General Laws—Uniformity of Operation.—The classification made being intrinsically proper, the act providing for interlocutory and final judgments in all actions in which the right , to a divorce is adjudged is general in its nature, and is therefore not in violation of subdivision 33 of section 25 of article IV of the constitution, which prohibits special legislation in all other eases in which a general law can be made applicable, nor in violation of section 11 of article I of the constitution, providing that all laws of a general nature shall have a uniform operation.</p> <p>Id.—Title of Act—Provisions “Kelating to Actions for Divorce.”— The title of the act being simply to add two new sections to the Civil Code, “ relating to actions for divorce,” is sufficient to embrace every provision of the act, with possible exceptions, not " important or necessary here to decide, which can in no way impair the validity of the remaining provisions, which clearly relate to actions for divorce. It cannot be held that the title does not state the subject of the act with a sufficient degree of particularity.</p> <p>Id.—Addition to Civil Code—Amendment.—The Civil Code was the appropriate place for the addition of the legislation in question, notwithstanding it relates to procedure. That code has always contained all provisions of law specially applicable to divorces and divorce cases, including special rules relating to procedure therein. The act simply adds two new sections to the Civil Code, and is in no proper sense an amendment to any code; and if it amends any law, it does it only by implication.</p> <p>Id.—Presumption in Pavor of Validity—Reasonable Doubt.—An act of the legislature should not be declared unconstitutional by the courts unless it is clearly inconsistent with the fundamental law; and where there is a reasonable doubt as to its validity, its constitutionality should be affirmed.</p>

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

<p>Quieting Title—Contract to Sink Well—Option as to Payment— Breach—Insufficient Answer and Cross-Complaint—Evidence. —An action to quiet title is founded upon plaintiff’s title to the land; and the land is the subject of the action. Where the answer and cross-complaint of the defendant disclose merely a cause of action for damages for breach of a contract to sink a well on the land of the plaintiff, the payment for which was to be in land or money, at the plaintiff’s option, which contract gave the defendant no lien upon the land and no claim to any particular part of the land,— and where the pleadings show no mechanic’s lien,—they are insufficient to show any interest of the defendant in the land in controversy, or to constitute a cross-complaint or counterclaim to that sort of an action; and the court properly refused to allow evidence in support of them.</p> <p>Id.—Counterclaim.—The claim of the defendant cannot be considered as a counterclaim within the definition of subdivision 1 of section 438 of the Code of Civil Procedure. There is no transaction set forth in the complaint out of which a counterclaim for damages could arise, and it has no connection with the land which is the subject of the action.</p>

<p>Mechanics’ Liens—Labor in Tunnel—General Employment.—Laborers who have actually performed work in the construction of a tunnel are entitled to a lien thereupon for the value of the labor so performed, notwithstanding their original employment was general, and not for that particular work.</p> <p>Id.—Notice op Lien—Change op Ownership—Statement in Notice-Separate Notice not Required.—A notice of lien is sufficient if it states only who was owner when the lien was filed; but where there was a change of ownership during the work the statement is not rendered insufficient because it stated the name of all who were owners and reputed owners during all of the times stated in the notice, and did not state at what time the title passed from one owner to another. A separate notice of lien was not required because of the change of ownership, nor because of mortgages executed by the new owner to the former owners.</p> <p>Id.—Foreclosure—Priority op Liens—Parties—Rights op Mortgagees.—The claim of a laborer’s lien is preferred to that of a mortgage lien which attached subsequent to the time when the work was done; and when the mortgagees were made parties defendant to the foreclosure of the lien they had the opportunity to present any interests acquired by them, and to have whatever protection the law gives them.</p> <p>Id.—Employment by the Month.—The method by which the compensation for the labor performed is measured is immaterial where the labor is continuous; and the fact that the laborers were employed by the month did not make it necessary to file the notice witMn thirty days from the end of each month, so long as the employment in the tunnel does not actually terminate.</p> <p>Id.—Option to Purchase—Contract against Liens—Absence op Notice-Liability op Owner.—The fact that the work of developing water by means of the tunnel on which the liens were claimed was begun by the contractor under an option to purchase, which stipulated that the owner and the land should not be liable for material purchased or labor performed under the contract, does not operate to relieve the owner from liens filed upon the tunnel and land convenient for its use and occupation for labor performed subsequent to the expiration of the option, in the absence of the statutory notice, or of any notice equivalent thereto, from the owners to the laborers limiting the liability of the owners for liens for such labor.</p> <p>Id.—Attorneys’ Fees upon Foreclosure—Pleading—Finding.—In order to warrant the allowance of attorneys’ fees upon the foreclosure of liens under the Mechanic’s Lien Law, no allegation or finding in relation thereto is necessary; and the sufficiency of an allegation or finding in relation thereto will not be reviewed upon appeal.</p>

The facts are stated in the opinion of the court. J. N. Gillett, E. & D. Sevier, Van Ness & Redman, and E. S. Pillsbury, for Appellant. The master was not responsible for the negligence of the engineer or of the superintendent in operating the machinery. (Civ. Code, sec. 1970; Stevens v. Doe, 73 Cal. 26; Donnelly v. San Francisco Bridge Co., 117 Cal. 417; Daves v. Southern Pac.

PETITION for Writ of Certiorari to review an order of the Superior Court of the City and County of San Francisco dismissing a contest of probate of will. J. V. Coffey, Judge. The facts are stated in the opinion of the court.

<p>PETITION for Writ of Certiorari to review an order of the Superior Court of the City and County of San Francisco dismissing a contest of probate of will. J. V. Coffey, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

The facts are stated in the opinion of the court. Bicknell, Gibson & Trask, and Dunn & Crutcher, for Appellant. The contributory negligence of the deceased bars recovery. (Civ. Code, sec. 1714; Bolin v. Chicago etc. Ry. Co., 84 N. W. Rep. 446; Tesch v. Milwaukee Ry. and Light Co., 84 N. W. Rep. 823, 826; Watermoler v. Fox River Electric etc. Co., 85 N. W. Rep. 663, 665; Everett v. Los Angeles etc. Ry.

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

<p>Vendor and Purchaser—Contract of Sale—Action for Purchase Money—Joint and Several Promise—Presumption.—In an action against one only of two purchasers, under a contract for the sale of land, in which the two purchasers have an equal interest as tenants in common, their promise to pay the purchase money must be presumed to be joint and several, under section 1659 of the Civil Code, in the absence of evidence to show a contrary agreement.</p> <p>Id.—Demurrer to Complaint—Conditions in Contract—Litigation— Delay—Matter of Defense.—Where the complaint shows the title was in litigation and a supposed outstanding title actually belonged to the vendor, and was included in the litigation, and shows an agreement that the vendor should procure a renunciation of the adverse claim or procure a dismissal of the suit within a reasonable time, and the suit was finally adjudged in favor of the vendor’s title, the fact of long delay in allowing the suit to stand, is matter of defense, and does not render the complaint subject to a general demurrer.</p>

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

<p>Irrigation District—Illegal Exchange or Bonds—Knowledge or Illegality.—An action cannot be maintained upon bonds of an irrigation district illegally issued in exchange for water-right certificates, or for warrants given in payment of claims for labor and salaries, by a plaintiff who knew when he took the bonds that they were issued in violation of the statute.</p> <p>Id.—Recital in Bonds—Protection of Bona Fide Purchaser—Knowledge of Fact Showing Illegality.—The principle that the recital in the bonds of cunpliance with the statute is sufficient to protect a purchaser, as hona fide, without further inquiry, has no application where the purchaser has actual knowledge of a fact, which, in connection with the statute, which he is presumed to know, establishes the illegality of the issue.</p>

<p>. Promissory Note — Action against Administratrix —Evidence — Prima Pace Case—Execution—Consideration—Burden of Proof. —In an action against the administratrix of a deceased person, upon a note executed by the deceased to the plaintiff as payee, the plaintiff makes a prima facie ease by evidence of the signature of the deceased thereto, and of the presentation and rejection of the note as a claim against the estate, and its production in evidence, and the burden of proof rests upon the defendant to show non-execution and want of consideration.</p> <p>Id.—Findings against Evidence.—A note produced in evidence by the payee with no indorsement thereon is prima facie evidence of ownership and of a valuable consideration; and findings that the note sued upon was not agreed to be a note, and was without consideration, are against the evidence, where no proof was given by the defendants to impeach the execution of the note or its consideration.</p>

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

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

The facts are stated in the opinion of the court. E. W. Freeman, John T. Jones, and Lucius. K. Chase, for Appellant. The defendant was not bound to investigate the premises of the electric company, which alone, as proprietor of the premises, was bound to exercise reasonable care toward the servant of its customer or contractor.

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

<p>Appeal—Dormer Decision—Law op the Case.—A decision rendered upon a former appeal becomes the law of the case upon a subsequent appeal where the facts and evidence are the same upon both appeals, with an immaterial exception.</p> <p>Id.—Action by Administratrix—Sale of Personal Property by Widow—Defense—Mutual Mistase of Law—Eescission.—In an action by an administratrix of the estate of a deceased person to recover personal property of the estate sold by the widow individually to the defendant, an amended answer interposed on the last trial setting up that the sale was under a mutual mistake of law, and that defendant is entitled to rescind the contract of sale, to which the administratrix was not a party, presents no defense; and evidence of such mutual mistake is not a material exception affecting the law of the case as fixed upon a former appeal, where the facts and evidence are otherwise the same upon both appeals.</p> <p>Id.—Reversal of Judgment fob Defendant—Eight to Shake in Estate.—The reversal of a judgment for the defendant in such action, on account of a departure from the law of the case as determined upon a former appeal, cannot affect the right of the defendant to such share in the estate as may be distributable to the estate or successor of the widow.</p>

<p>Trusts—Conveyance by Wife to Husband—Fiduciary Relation— Violation of Farol Promise—Constructive Fraud,—A husband stands in a fiduciary relation to Ms wife, and where he received a conveyance from her of her real property, without consideration other than a parol promise by him to carry out an oral trust by ousting a tenant from her property, his violation of the terms of the trust is a constructive fraud, and makes him an involuntary trustee of the land for the use of Ms wife, and gives her the right to have the deed declared void, and to a decree that the land is her property notwithstanding the execution of the deed.</p> <p>Id.—Conveyance by Husband—Want of Consideration—Notice of Trust.—Where the husband, instead of personally carrying out the terms of° the parol trust, conveyed his wife’s land to a third person, upon the same oral trust upon which his wife had conveyed the property to him, who thereafter fraudulently claimed the property as his own, said third person stands in no better position than the husband, and the wife may enforce her rights as against him.</p> <p>Id.—Complaint—Charge of Conspiracy to Defraud—Findings— Support of Judgment.—A charge in the complaint by the wife of conspiracy between her husband and such third person to defraud her, wMch is negatived by the findings, is not necessary to support a judgment enforcing her rights in the property conveyed. It is sufficient that the facts admitted and found show that the husband could not hold and treat the property as his own against the wish of Ms wife, in violation of Ms promise, express or implied, to fulfill the terms of the oral trust created by her, and that the grantee of the husband took without consideration, and with notice of the trust.</p> <p>Id.—Conveyance Induced in Part by Attorney.—The fact that the conveyance to the husband was induced in part by an attorney does not affect the case, whether the attorney was her own or that of her husband. In either case the husband cannot be thereby exonerated from his implied promise to fulfill the purpose of the trust reposed in him by the wife.</p> <p>Id.—Form of Decree — Reconveyance — Cancellation — Quieting Title.—Though the decree adjudging that the plaintiff was the owner of the land might have been drawn for a reconveyance, or might have ordered a cancellation of the deeds, it was not necessary to do either; and the defendants, neither of whom- had any beneficial interest in the land, cannot be injured by a decree declaring plaintiff the owner and quieting her title as against them.</p>

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

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

<p>Divorce—Extreme Cruelty—Denial of Divorce—Pacts not Pound. —Where the complaint of the plaintiff seeks a divorce for alleged extreme cruelty, and sets forth specific acts of cruelty, a finding merely that the acts alleged in the complaint did not inflict upon the plaintiff grievous bodily injury or grievous mental suffering, is not a finding of any ultimate fact, and does not warrant a judgment denying a divorce to the plaintiff. The court should not leave it to inference or surmise what acts alleged in the complaint were established by the evidence; but must specifically find upon the issues of fact presented by the complaint, and for failure to find thereupon, the judgment must be reversed.</p>

<p>Order of Building Contractor—Contingent Acceptance—Completion of Building—Destruction Before Completion.—An order by a building contractor upon a building and loan association in favor of a lumber company for materials furnished to he used in the building, which was accepted payable upon completion of the building, is not payable where the building was never completed, but was accidentally destroyed by fire before completion without fault of the lumber company or the contractor, and nothing becomes due from the owner to the contractor.</p> <p>Id.—Intention of Parties—Money to Become Due to Contractor.— It appearing that at the time of the conditional acceptance of the order, the building and loan association had no existing indebtedness to the contractor, and could only advance for the owner to the contractor such money as might become due to him under the contract, it must he deemed the intention of the parties that the acceptor should retain such money as might so become due in its hands for the benefit of the lumber company, and where nothing became due from the owner to the contractor there was no liability upon the order.</p>

<p>Insolvency—Fraudulent Transfer—Gift by Insolvent—Invalidity against Creditors—Intention to Defraud not Required.—Under section 3443 of "the Civil Code as amended in 1895, 'a voluntary transfer without valuable consideration, by one who is insolvent, or who acts in contemplation of insolvency, is void as against existing creditors, and it is not required that an intent to defraud such creditors should be shown.</p> <p>Id.—Action by Trustee in Bankruptcy—Pleading.—In an action by a trustee in bankruptcy to recover against the donee of the bankrupt, the complaint need not aver an intent of the bankrupt to defraud his creditors; nor need it state facts constituting insolvency under the Bankrupt Act. It is sufficient to allege that the bankrupt was insolvent; and the allegation that the transfer was for the purpose of preventing the creditors from collecting any indebtedness duo them by the bankrupt, may be regarded as equivalent to an allegation that it was with intent to hinder or delay his creditors.</p> <p>Id.—Bankruptcy of Partnership—Consent to Adjudication—Collateral Attack.—The adjudication by the federal court of the bankruptcy of a partnership, made upon the admission and consent of the partners, each of whom was adjudged a bankrupt, cannot be collaterally attacked, in an action by the trustee in bankruptcy to recover a gift made to his wife by one of the partners.</p> <p>Id.—Gift to Wife—Payment upon Mortgage upon Homestead.—Where a portion of the money given by one of the bankrupt partners to his wife was applied toward the payment of a mortgage upon his homestead, no fraud results from such payment, and the trustee in bankruptcy cannot enforce a lien upon the homestead for the amount so applied.</p> <p>Id.—Preference of Creditor—Joint Note of Husband and Wife— Liability of Transferer—Debtor not Liable—Liability of Wife.—Where a portion o£ the money given by a bankrupt debtor to Ms wife was applied toward the payment of a joint note signed by the husband and wife, such payment becomes a preference of one-of the creditors of the bankrupt, for which an action lies against the creditor preferred but not against the bankrupt. The wife,, being liable as having received the money without consideration from her insolvent husband, and having paid it over to the creditor who is not a party to the action, is liable to judgment for the amount so received and paid over.</p> <p>Id.—Individual Creditoes of Partner—Firm Debts.—An insolvent partner who makes a preference out of his interest in the firm assets, cannot limit consideration to his individual creditors, in respect of such preference. Each partner is liable in solido for all the firm debts, and they must be so considered.</p> <p>Id.—Money Used fob Living Expenses.—Though money to be .used for living expenses is not exempt, yet where it has been actually used in the purchase of provisions and necessaries of life for the period of three months, which are not unreasonable in amount, the money so paid cannot be recovered by the trustee in bankruptcy.</p>

<p>Sale of Prunes—Action for Breach of Contract—Counterclaim —Special Demurrer—Trial upon Merits.—In an action far breach of a contract for the sale of prunes, where the answer demurs and sets up an alleged counterclaim, or cross-complaint, for loss on resale of the prunes, after refusal of plaintiffs to receive them, to which a special demurrer for ambiguity and uncertainty was interposed and overruled, such ruling is without prejudice where the causo was fully tried upon the merits, and whatever of ambiguity or uncertainty appeared in defendant’s pleading was cleared up by the evidence, and plaintiffs were not misled in respect of the alleged ambiguity.</p> <p>Id.—Findings—Tender—Ground op Befusal—Waiver—Immaterial Finding.—Where, in such action the court found a tender of prunes of the quality and grades in accordance with the contract, which plaintiffs refdsed to accept, solely on the ground that the prunes ■were not sound and merchantable, and of choice quality of Visalia prunes properly cured, and that all other objections were waived, a finding on the question whether the goods were graded from five to seven point, as provided in the contract, was immaterial, and the refusal to accept them was a waiver of such finding.</p> <p>Id.—Befusal to Beceive Fruit at Warehouse—Delivery.—A refusal of the plaintiffs to receive the fruit at their warehouse was a refusal to receive a delivery at the town specified in the contract.</p> <p>Id.—Sacking of Prunes—Finding of Express Waiver— Sufficiency of Denial—Befusal of Prunes in, Bulk.—Where the court found an express waiver of the provision of the contract as to the sacking of the prunes, and the denial in the answer was sufficiently specific in view of such finding, and the plaintiffs refused to receive the prunes after examining them in bulk, the provision of the contract as to such sacking was immaterial.</p> <p>Id.—Evidence—Declarations of Defendant’s Agent.—The declarations of an agent of the defendant employed to superintend the preparation of the prunes for sale, but not shown to have any authority connected with the sale of the prunes or to have been an agent in the transaction of their purchase by the plaintiffs, are not admissible against the defendant to show that the prunes sold were not merchantable, if not introduced to impeach the evidence of the agent on cross-examination.</p> <p>Id.—Declarations by Member of Firm—Immaterial Buling as to Agent’s Opinion.—Declarations made by one of the firm of plaintiffs, that if the market had not gone down they would have taken the prunes, are admissible against the firm; and where such declarations were proved without objection, the admission of the declaration or opinion of their purchasing agent to a similar effect, against objection and a refusal to strike it out, is without prejudice.</p> <p>Id.—Immaterial Bulings upon Evidence.—Other specific rulings upon evidence examined and held to be immaterial, or without prejudice.</p> <p>Id.—Value of Prunes not Shown—Beport of Packer—Finding not Sustained.—The report of an expert packer of the defendant showing that he boxed the prunes in question, but not disclosing how many boxes of each grade were packed, is not admissible evidence of the value of the prunes sold, and where there is no other evidence of such value, a finding of the value thereof, necessary to support the counterclaim or cross-complaint of the defendant, cannot be sustained.</p> <p>Id.—Correspondence of Defendant with Third Persons—Subpcena Duces Tecum.—The court properly refused to allow a subpcena duces tecum to compel the production of correspondence of the defendant with third persons in reference to the prunes sold by defendant to the plaintiffs.</p> <p>Id.—Support of Findings—Conflict of Evidence.—Where the evidence was substantially conflicting upon the question of the merchantable quality and condition of the prunes, and market value of different grades, the findings thereupon cannot be reviewed upon appeal. Id.—Finding of Non-Payment.—Where the plaintiffs did not allege nor claim payment for the prunes, they cannot object to a finding of non-payment, as not supported by the evidence. Proof of nonpayment was not necessary to support such finding.</p>

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

<p>Election Contest—Supervisors—Consolidation of Separate Contests —Discretion.—The trial court has discretion to consolidate for the convenience of trial fifteen separate contests of the election of eighteen supervisors under the charter of the city and county of San Francisco, instituted by candidates who were not declared elected.</p> <p>Id.—Effect of Order for Consolidation—Pleadings—Findings and Judgment—Costs.—The order of consolidation of such separate contests for the purpose of trial, does not have the effect to make any contestant responsible for the pleadings or proceedings of any other contestant; and the findings and judgment must determine the right of each party with respect to his particular proceedings the same as if there had been no consolidation, except as to an equitable apportionment of costs jointly incurred, or provision for one payment only of costs awarded for the same sum in favor of different parties.</p> <p>Id.—Control of Proceedings by Contestants—Dismissal.—Notwithstanding the consolidation of the contests for the convenience of trial, the contests remain distinct and several, and any one of the contestants may dismiss his contest if he chooses, or may, under ordinary circumstances, dismiss as to such of the contestees as he may choose.</p> <p>Id.—Burden upon Contestant—Ouster of Appealing Contestes.— The contestant, in order to succeed to the office, has the burden of showing title in himself, and he cannot oust an appealing eontestee, unless he shows that such appealing eontestee is not one of the eighteen elected.</p> <p>Id.—Bights of Appealing Contestes—Pleadings—Full Count of Ballots—Erroneous Contest.—Where the original eighteen supervisors declared elected were made contestees in each statement of contest as originally filed, though the scope of the inquiry is limited by the pleadings, and contestees not pleading the rights of third parties not before the court, cannot rely upon such rights to defeat a contestant; yet, when the pleadings in favor of each contestant put in issue the relative vote of each original eontestee, as compared with that of the contestant, each appealing eontestee has the right, notwithstanding dismissals of other contestees, to insist upon a full count of all the ballots in favor of all the original contestees for the purpose of showing, if possible, that though the appealing eontestee appears to have less votes than a contestant respondent, that another original eontestee received fewer votes than such appealing contestee and that the contestee must therefore fail, because his contest is against the wrong party.</p> <p>Id.—Error, of Court—Refusal to Count Ballots.—It was error for the court to refuse to count all ballots which purported to be votes for some one of the original eighteen eontestees declared elected, though not containing any vote for either of the parties finally remaining before the court, after dismissal of some of the eontestees.</p>

<p>Action to Quiet Title—Possession of Defendant.—Title not Shown by Plaintiff—Support of Findings.—In an action to quiet title, where it appears that defendant is in possession, and there is no evidence to connect the plaintiff with any paramount title, an attack by the plaintiff upon a paper title of the defendant is sufficiently answered by the possession of the defendant, and findings that defendant is the owner and in possession and that plaintiff has no title, are sufficiently supported.</p>

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

<p>APPEAL from an order of the Superior Court of the City and County of San Francisco refusing to modify the judgment of sentence for the crime charged. William P. Lawlor, Judge.</p> <p>The facts are stated in the opinion.</p>

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

<p>The facts are stated in the opinion of the court.</p> <p>R. Clark, for Appellant.</p>

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

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

<p>Landlord and Tenant—Waste under Lease—Treble Damages—Discretion op Court—Willful or Malicious Action—Honest Claim of Eight.—In an action by a lessor against an assignee of a lease which was procured by fraud of the lessee, and was subsequently rescinded by the lessor for such fraud, the recovery of treble damages for waste committed by the assignee in. taking oil from the premises, which was not provided for by the lease, is in the discretion of the court, under the terms of section 732 of the Code of Civil Procedure. The trebling of the damages should only be allowed where it appears that the waste was committed willfully and wantonly or maliciously; and should not be allowed where it was committed under an honest claim of right, or as the result of an honest mistake.</p> <p>Id.—Construction op Code—Use of Word “Mat.”—The word “may” as used in section 732 of the Code of Civil Procedure is not mandatory; and that word is not to be construed to mean “must” where there is nothing in the connection of the language or in the sense or policy of the provision, to require an unusual interpretation.</p>

<p>Oil Lands—Lease—Royalty—Implied Condition fob Diligent Operation—Forfeiture for Breach.—Where the sole consideration for a lease of oil lands was a royalty of ten cents per barrel of oil produced and payable on the 5th of each and every month during the existence of the lease, and the lessee covenanted to complete two wells in ninety days, and ten wells within one year, there is an implied covenant or condition for diligent operation of the wells sunk, to the best advantage of both parties, which is as effective as if expressed in the lease, and is of the essence of the contract; and for a substantial breach of such implied condition, the lessor may re-enter and claim a forfeiture of the lease.</p> <p>Id.—Cessation of Operation—Execution Sale of Appliances and Leasehold—Entry for Condition Broken—Termination of Lease.—Where, after sinking and operating two wells as agreed, and paying royalties therefrom for two months, the lessee ceased to operate the wells sunk, for several months, and allowed the appliances and oil stored in the tanks, and the leasehold interest to be sold under execution, and allowed the purchaser to take possession and exclude the lessee, the lessor had the right to enter for condition broken, both as against the lessee and the purchaser under execution sale, and to terminate the lease.</p> <p>Id.—Redemption by Lessee from Execution Sale.—The attempt of the lessee to redeem from the execution sale, long after the lessor had entered and declared a forfeiture of the lease for condition broken by the lessee, cannot affect such re-entry and declared forfeiture.</p> <p>Id.—Tender of Royalty—Action of Ejectment.—The tender by the lessor of royalty for the oil which was sold under execution, whatever effect it might have upon an action in equity by the lessee to be relieved from the forfeiture of the lease, cannot sustain an action of ejectment brought by the lessee against the lessor and his subsequent lessees, after the re-entry of the lessor for condition broken by the lessee.</p>

<p>Statute op Frauds—Parol Agreement between Parties to Mortgage —Performance beyond Tear.—Where a mortgagee had assigned the mortgage, a subsequent parol agreement made between the holder and the mortgagee that the mortgagee should furnish money and merchandise to the mortgagors from time to time during a period of several years, to enable them to take proper care of the mortgaged property,' and make it produce profitable crops, and to pay taxes and insure the buildings thereon, and that he should be reimbursed out of the proceeds before any payments should be made to the holder of the mortgage, is an agreement which, in the contemplation of the parties, was not to be executed within a year, and is invalid under the statute of frauds.</p> <p>Id.—Creation op Lien.—The parol agreement could not operate to create a lien by way of mortgage upon the mortgaged property in favor of the mortgagee for advances superior to that of the holder of the mortgage. Such lien could only be created by writing executed with the formalities required in case of a grant of real property.</p>

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

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

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