Volume 147 — California Reports

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

ACCUSATION in. the Supreme Court for disbarment of George D. Collins as an attorney at law. The facts are stated in the opinion of the court.

<p>Injunction—Bowes of Court of Equity—Interference with Municipal Board.—-While a court of equity may interfere with and enjoin the action of a municipal corporation or board when acting or proposing to act in excess of jurisdiction and without authority, where the injury would be irreparable, it has no jurisdiction to interfere with or restrain its political or legislative or governmental acts within the scope of its powers.</p> <p>Id.—Brohibition—Organization of Reclamation District—Legislative Discretion—Exclusive Bower of Supervisors.—The organization of a reclamation district is a legislative act, involving discretion; and the board of supervisors, after acquiring jurisdiction of an application therefor, has exclusive power to determine whether or not the lands therein are unreclaimed, and are the subject of independent reclamation. Brohibition will lie to prevent the superior court from proceeding with the trial of a suit to enjoin such board from acting on the application, on the alleged ground that the lands were reclaimed.</p> <p>Id.—Remedy by Appeal Inadequate.—In such case, the court having no jurisdiction to prevent a legislative act by a municipal corporation, an appeal following the delay, trouble, and expense of the trial of a question of fact over which the court has no jurisdiction is not an adequate remedy which will preclude the remedy by prohibition.</p>

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

<p>Bankruptcy—Action to Set Aside Sale—Purchase by Creditor— Fraudulent Preference — Support of Order Granting New Trial—Presumption upon Appeal.—In an action by the trustee-of a bankrupt to set aside a sale as a fraudulent preference of a creditor in anticipation of bankruptcy, although the testimony fov the defendant shows a fair purchase of the property by the creditor for an adequate price in cash, which would be legitimate, yet it must be presumed upon appeal in support of a general order granting a new trial, that the court discredited the testimony for the defendant, and found that there was no sale, but merely an attempted transfer in satisfaction of a debt due the defendant, working a fraudulent preference.</p> <p>Id.—Transfer Out of Course of Business—Burden of Proof as to Good Faith.—Where the transfer was out of the usual course of business, the burden of proof was upon the defendant to establish good faith, and where there was abundant evidence that the debtor was insolvent, and that defendant knew of his insolvency, the court was not bound to accept their evidence as to a sale, and its order granting a new trial cannot be disturbed upon appeal.</p> <p>Id.—Transfer of Interest in Partnership Business-—Bight of Possession.—Where the action by the trustee in bankruptcy was not brought to recover the possession of the property transferred, but to have the transfer adjudged invalid as to the creditors of the bankrupt, the fact that the transfer was of an interest in partnership business, of which the defendant has the right under the Bankrupt Act to continue in possession, does not entitle the defend- ' ant to a dismissal of the action.</p> <p>Id.—Parties—Bankrupt—Review upon Appeal.—The bankrupt debtor is not a necessary party to the action in any view. The defendant could not be prejudicial by his absence; and the question of proper parties is not involved upon appeal from an order granting a new trial,-</p>

APPEALS from a judgment of the Superior Court of Mariposa County and from orders denying a new trial. J. J. Trabucco, Judge. The facts are stated in the opinion of the court.

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

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

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

<p>APPEAL from a judgment of the Superior Court of the City and County of San Francisco and from an order denying a new trial. Carroll Cook, Judge. ' -</p> <p>The facts are stated in the opinion of the court. 1</p>

<p>APPEAL from a judgment of the Superior Court of Contra Costa County and from an order denying a new trial. A. J. Buckles, Judge presiding.</p> <p>The facts are stated in the opinion of the court.</p>

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

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

<p>Injunction—Judgment Based upon Illegal Contract—Lottery— Pleading—Want oe Equity—Judgment upon Demurrer.—A complaint for an injunction to restrain the execution of a judgment which shows on its face that the contract upon which the judgment was based was illegal and opposed to public policy, as being a contract to engage in the unlawful business of conducting a lottery, is wholly without equity; and a judgment was properly rendered upon demurrer thereto, and an appeal therefrom will be treated as frivolous.</p>

<p>APPEAL from a decree of the Superior Court of the City and County of San Francisco establishing due notice to creditors, settling the final account of an executor, and distributing the estate of a decedent. James M. Troutt, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

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

<p>Contracts—Illegal Restraint op Trade—Void Agreement.—A contract in consideration of a specified sum that all salt shall be purchased from the Federal Salt Company for the period of two years, and not to purchase any salt from any other parties, and not to import or cause to be imported or bring any salt to the Pacific Coast of North America, other than such as may be purchased from such company, and to discourage any such shipments or importations by other parties, is in illegal restraint of trade and void, as being in violation both of the Civil Code and of the Sherman Anti-trust Act of Congress.</p> <p>Id.—Action upon Checks—Consideration op Illegal Agreement— Contemporaneous Agreement.—Where the parties executed another contemporaneous agreement, under the terms of which the plaintiff sold all of the salt to the defendant upon agreed terms, and assigned all rights of purchase and options then existing or which might exist within two years, and the defendant agreed to pay plaintiff in addition the same sum as that specified in the other contract as its consideration, for which sum the checks in suit were given, the cheeks, together with both the written agreements form substantial parts of one transaction, and are to be construid together, and the terms of the illegal contract not being severable, it is wholly void, and an action cannot be maintained upon the cheeks.</p>

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

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

MOTION to dismiss appeals from a judgment of the Superior Court of Nevada County, from six orders made before judgment, and from three orders made after judgment. F. T. Nilón, Judge. The facts are stated in the opinion of the court.

<p>Divorce—Alimony Pendente Lite—Enforceable Decree for Maintenance—Presumption.—Where a wife sued for divorce has an enforceable decree for maintenance against the husband such decree must be considered upon an application by her for alimony pending the suit for divorce, and,-in the absence of any showing of necessity for an increased allowance, must be presumed continuously adequate for her support until final judgment is rendered in the divorce suit.</p> <p>Id.—Erroneous ■ Duplication of Allowance.—The allowance of the same monthly sum as alimony in the divorce suit which was allowed in the decree for maintenance, thus duplicating the allowance, under a probable misapprehension as to the enforceableness of the decree for maintenance, and without any showing of necessity for such duplication or for an increase of maintenance, is erroneous, and will be reversed.</p> <p>Id.—Discretion of Court not Arbitrary.—The discretion of the court in allowing alimony pending a suit for divorce is not arbitrary, and must be exercised along legal lines, taking into consideration the circumstances of the parties, their necessities, and the financial ability of the husband.</p>

<p>Wills—Construction—Besiduary Devise—Validity op Trust.—Under a will containing a residuary devise to a wife and children named, and providing that a specified lot shall be kept and rented by the executor for their benefit until the youngest child attains a specified age, or “twelve years from the date of this will,” if the trust is valid as to such lot, the title would be left at its termination in the residuary devisees; and if it contains a void trust, the title passes immediately under " the residuary devise, and grandchildren who have specific legacies can claim no share in such lot as heirs at law.</p> <p>Id.—Presumed Intention of Testator—Ineffectual Bequests—Construction of Besiduary Clauses.—The presumption is that the testator intended to dispose of all of his property by the will, and to include all ineffectual bequests in the residuary devise, if the intention to exclude them does not appear by appropriate language or by clear implication. Besiduary clauses are to be construed broadly and liberally with a view to prevent intestacy as to any portion of the estate.</p>

<p>Contempt out of Presence of Court—Insufficient Affidavit—Void Judgment—Certiorari.—Where a contempt is committed out of the presence of the court the affidavit, upon which a judgment of punishment therefor is based, must show upon its face a case of - contempt. If the affidavit is insufficient, regardless of what maybe shown or found at the hearing, the judgment is void, and will be annulled upon certiorari.</p> <p>Id.—Intent to Commit Forbidden Act not Alleged.—Quasi-Criminal Proceeding.—Contempt proceedings are quasi-criminal in their nature, and an intent to commit a forbidden act is as essential to guilt as in the ease of a charge of a criminal offense; and the absence of any such allegation in the affidavit renders it fatally defective and the subsequent proceedings absolutely void.</p> <p>Id.—Violation of Injunction not Shown—Arrest.—An injunction restraining the police force from picketing and blockading a restaurant and intimidating persons patronizing the same cannot be construed as decreeing immunity from arrest of all patrons thereof; and where the affidavit does not allege that the arrest of a woman patronizing the restaurant was made because she was a patron thereof, or for the purpose of keeping her away 'therefrom, it does not show a violation of the injunction.</p> <p>Id.—Misbehavior in Oitice not Involved.—"Where the affidavit against a police commissioner who ordered such arrest does not show any willful disobedience of any judgment, order, or process of the court, subdivision 3 of section 1209 of the Code of Civil Procedure, making misbehavior in office a contempt of court, has no application to the facts of the case. The misbehavior in office, to constitute a contempt of court, must be in respect to such court or some proceeding therein. The mere malicious taking part in an arrest not authorized by the facts, if not disobedient to any judgment, would not be a contempt of the authority of any court.</p>

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

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

<p>Appeal from Justice’s Court—Jurisdiction—Deposit of Money in Lieu of Undertaking—Prohibition.—An appeal from a justice’s court to the superior court is perfected by the deposit with the justice of money in lieu of the undertaking 'on appeal, under the authority of section 926 of the Code of Civil Procedure, which is a general provision broad enough in its terms to include the ease of such appeal; and prohibition will not lie to prevent the superior court from entertaining the appeal.</p>

<p>Divorce — Denial op Decree — Separation op Parties — Findings — Maintenance.—In an action for a divorce brought by the husband, where the application is denied, and the court finds that the parties have lived separate and apart since a certain date and that the wife did not desert her husband, but there was neither averment in the answer nor finding that the husband deserted the wife or was at fault for the separation, the court cannot award a permanent maintenance or permanent alimony to the wife.</p>

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

<p>APPEAL from an order of the Superior Court of Marin County granting a new trial. F. M. Angellotti, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>.Wills—Contest apter Probate—Burden op Proop—Nonsuit.—Upon the contest of a will which has been admitted to probate, the burden of proof is upon the contestants to show the grounds alleged for revocation of the probate; and when the evidence for the contestants is so insufficient that it would have been the duty of the court to set aside a verdict for the contestants, a nonsuit was properly granted.</p> <p>Id.—Presumption op Sound and Disposing Mind—Evidence—Old Age and Feebleness.—The testator is presumed to have been of sound and disposing mind, and where the court so found upon admission of the will to probate, evidence showing that the deceased at the time he made the will was eighty-three years old and feeble, and that Ms memory was not perfect, cannot justify the court or jury in setting aside the will.</p> <p>Id.—Competency op Testator.—Old age alone, however great, cannot invalidate a will, nor need the memory of the testator be perfect. It is sufficient that at the very date of the execution of the will he knew his property and the manner in which it was invested, and his relatives who were the objects of his bounty.</p> <p>Id.—Residence op Testator—Conclusive Adjudication—Collateral, Attack upon Jurisdiction.—It is not ground for the contest of a will which has been admitted to probate that the court had no-jurisdiction to admit it to probate, and the determination of the probate court as to the residence of the deceased testator in the county at the time of his death, which was not appealed from and has become final, cannot be attacked collaterally by the contestants-by claiming non-residence of the deceased testator in such county and his residence elsewhere at the time of his death.</p>

<p>Lease—Title of Grantee of Lessor.—A lease carves out an interest or estate in the premises leased, and a grantee of the lessor, who takes with notice of the lease, takes only the remaining estate of the lessor, and cannot lawfully exclude the lessee from possession during the remainder of the term.</p> <p>Id.—Lease of Quarry—Reservation of Right—Ouster of Lessee by Grantee of Lessor—Sufficiency of Complaint for Damages. —A complaint by one who has the right of possession under a lease of a limestone quarry for the period of five years, conferring an exclusive right to mine and take lime-rock therefrom in any quantity desired, subject to a reservation of the right of the lessor to mine and take rock for the purpose of burning the same and making lime on the land, which alleges that the defendant took as grantee of the lessor with notice of the lease,,and wholly excluded plaintiff from any occupation of the quarry, and that he had been compelled thereby to abandon negotiations instituted for the sale of rock, and that defendant, in exclusive occupation of the quarry, had taken out and converted 4,800 tons of rock to plaintiff’s damage in the sum of $4,800, states a cause of action, and a demurrer thereto was improperly sustained.</p> <p>Id.—Damages—Object of Action—Permanent Right of Plaintiff— Inapplicable Rule as to Nominal Damages.—Even if defendant had the right to take out 4,800 tons of rock, the complaint does not show that the plaintiff suffered only nominal damages, and he is not precluded from proving actual damages; but the object of the action for damages being to determine a permanent right of the plaintiff to mine and quarry during the whole term of the lease, the rule that where the complaint shows only a right to recover nominal damages, a judgment will not he reversed, has no application.</p>

<p>Master and Servant—Defective Machinery—Notice to Master— Promise to Repair—Direction to Servant—Liability of Master.—Where a defect in machinery arises during its operation, of which the servant gives notice to the master, who promises to repair it, the servant does not assume the risk of its continued operation pending such promise, if it was operated prudently and slowly without obvious danger; and where the employer, without fulfilling the promise, ordered the servant to operate the machine more rapidly, if the increased peril was not so glaringly obvious that no pruaent man would have undertaken it under the promise and direction given, the employer is liable for the resulting injury.</p> <p>Id.—Questions of Fact—Conclusiveness of Verdict.—The question whether the servant in continuing' to operate the defective machinery under a promise to repair, acted as a reasonable and prudent man would act, and whether the peril was so obvious that no prudent man would hazard obedience to the order given, and whether the plaintiff understood and appreciated such peril are questions of fact for the jury, upon which the verdict for the plaintiff is conclusive.</p> <p>Id.—Contributory Negligence—Burden of Proof—Appreciation of Peril.—The burden was upon the defendant to show the contributory negligence of the plaintiff, and to show not only his knowledge of the defect, but also that in obeying the order of the defendant to "operate the machine more rapidly the plaintiff appreciated and understood that he was incurring an obvious peril which no prudent man would hazard.</p> <p>Id.—Definiteness of Promise to Repair — Presumption — Injury within Time Promised.—A promise by the defendant to repair when sufficient boards were stamped to keep the box-makers busy while the repairs were being made must be presumed to have been made with special reference to a time understood by both parties, and to be sufficiently definite; and where the injury happened on the same day the promise was given and while the plaintiff, under order of the defendant, was operating the machine under an endeavor to keep up with the box-makers, pending the fulfillment of the promise, the employer is liable.</p> <p>Id.—Complaint of Defect—Reliance upon Promise—Inferences.— The servant’s complaint of the defect need not state an apprehension of danger, nor that the servant will leave the service if the defect is not remedied. It is sufficient if it can be fairly inferred that the servant is complaining on his own account, and that he was induced to remain in the service by reason of the promise.</p> <p>Id.—Mode of Operation with Defective Screw—Estoppel of Defendants.—Where the mode of operating the machine with a defective screw was approved by one of the defendants, who assured plaintiff it was all right so to work it and to go ahead, with the promise to remedy the defect later, the defendants are estopped to urge that plaintiff’s method of operation was unauthorized or improper.</p> <p>Id.—Replacement of Defective Screw.—The plaintiff was not bound to replace the defective screw with another where it appears that he asked and made search for another and that no such screw was available in the city, and that it was the fault of the defendant that it was not replaced.</p> <p>Id.—Proximate Cause op Injury—Question of Pact.—Where negligence of the plaintiff in the use of defective machinery, in. the use of which he was injured, is alleged, the question whether the defect was the proximate cause of the injury was a question of fact to be determined by the jury.</p> <p>Id.—Instructions—Jury not Misled.—All of the instructions given are to be construed together, and when they state the law fairly and fully when taken together, the jury cannot be deemed to have been misled by isolated instructions not embodying the whole law upon the subject which the jury could not have misunderstood.</p> <p>Id.—Requested Instruction—Adjustment of Machine.—A requested instruction as to the adjustment of the machine, which assumed the duty of the plaintiff to adjust it, and asked for á verdict on that subject, omitting any consideration of defendant’s promises, was properly refused.</p> <p>Id.—Amputated Hand—Evidence.—The'amputated hand of the plaintiff, bearing marks of having passed under the stencil of the defective machine, was properly admissible in evidence as tending to show that fact.</p>

<p>APPEAL from an order of the Superior Court of Humboldt County setting off judgments pro tcmto. E. W. Wilson, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

PETITION for Writ of Prohibition to the Superior Court of Monterey County. B. Y. Sargent, Judge. The facts are stated in the opinion of the court. The petition was denied without appearance for respondent.

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

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

<p>Action to Enforce Verbal Trust—Laches—Demurrer to Complaint. —In an action by surviving heirs of a deceased father to enforce an alleged verbal trust declared thirty-five years before by a deceased son in favor of his father’s heirs, where the complaint shows on its face that the cause of action against the administrator of the deceased son is barred by the laches of the plaintiffs, the defense of laches may be raised upon general demurrer to the complaint.</p> <p>Id.—Long Acquiescence in Hostile Acts—Good Faith and Diligence not Shown—Construction of Pleading—Presumption.—Where the complaint shows great lapse of time without the assertion of any claim, and long-continued acquiescence in acts of the alleged trustee hostile to the plaintiffs’ claim, and does not allege circumstances showing good faith and diligence on the part of plaintiffs, the complaint must be construed most strongly against the pleader, and it must be presumed that they do not exist.</p> <p>Id.—Stale Demands—Inexcusable Delay—Laches in Case op Express Trust.—Stale "demands will not be aided where the complainant has slept upon his rights for so long a time, and under such circumstances as to make it inequitable to enter upon an inquiry as to the validity thereof. Where inexcusable delay is shown, consideration of public policy and the difficulty of doing entire justice obtain; and the doctrine of laches may be invoked in every class of cases, even in the ease of an alleged express trust.</p> <p>Id.-—Averment op Continued Verbal Acknowledgment—Want op Equity in Complaint as a Whole.—In determining the sufficiency of the complaint, the whole of its averments must be taken together, and an averment that the deceased son always during his lifetime verbally acknowledged the trust and never repudiated it is not conclusive where it appears that the complaint as a whole presents a case in which all of the acts of the alleged trustee had been openly and notoriously hostile to the claim of the plaintiffs; and taken altogether the case is clearly one where a court of equity is justified in refusing on the ground of laches to even enter upon an inquiry as to the merits of the claim.</p> <p>Id.—Sustaining op Demurrer—Refusal to Allow Amendment—Discretion.—Where the demurrer to the complaint was sustained, the court did not abuse its discretion in refusing to allow an amendment of the complaint, where the record does not show in what manner plaintiffs desired to amend or that they specified the nature of the proposed amendment.</p>

<p>APPEAL from a decree of the Superior Court of the City and County of San Francisco making a partial distribution of the estate of a deceased person. J. Y. Coffey, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Quieting Title—Deed from Husband to Wife—Defense of Fraud ‘ upon Creditors—Support of Findings—Appeal.—In an action by a wife to quiet title under a deed from her husband against a subsequent purchaser under execution sale against him, who defended on the alleged ground that the deed was made to defraud the husband’s creditors, where the court found upon sufficient evidence that the husband was solvent when the deed was executed, and that it was not made with intent to defraud any creditor, and there was conflicting evidence as to the validity of the defendant’s claim, an order denying a new trial will not be disturbed for insufficiency of the evidence to support such findings.</p> <p>Id.—Validity of Defendant’s Claim—Judgment not Conclusive— Pleading — Finding — Conflicting Evidence — Conclusion of Coup.t.—The plaintiff was not bound by the judgment by default against her husband; nor was she concluded thereby from contesting the validity of the claim upon which the judgment was founded. Where the meritorious character of the cause of action against the husband was not alleged in the answer, the court was not required to find thereupon; and, where the validity of the claim was contested upon the trial, and the evidence was conflicting, there was nothing to preclude the conclusion that the court considered the judgment as not founded upon a meritorious cause of action.</p> <p>Id.—Plaintiff’s Deed not Void for Uncertainty—Evidence.—The fact that the deed to the plaintiff described the land in controversy as being “a lot 90x450 on the northwesterly corner” of specified streets, in a specified city, county, and state, does not render it void for uncertainty where the evidence showed that the ■ grantor owned a lot of land at that corner ninety feet by four hundred' and fifty feet, and owned no other land in that neighborhood.</p>

<p>PETITION for Writ of Prohibition to the Superior Court of the City and County of San Francisco, William P. Lawlor, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

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

<p>Negligence—Contributory Negligence—Alighting prom Oar while in Motion—Support op Verdict—Instructions.—In an action to recover damages for injuries sustained by plaintiff through the alleged negligence of a street-railway company in consequence of the sudden starting of the car while she was alighting therefrom, where the preponderance of the evidence shows, and the jury found, that the injury was caused by her own negligence in attempting to alight from the car while in motion, the verdict for the defendant is supported; and where there was no error of law and the instructions as a whole fairly presented the case to the jury upon the evidence adduced at the trial, and fully guarded the rights of the plaintiff, the court was justified in denying plaintiff’s motion for a new trial.</p>

<p>Injunction—Injury to Business—Protection of Houses of Prostitution—Common Passageway—Interference by Police Officers.—An injunction cannot be maintained to prevent interference by police of6eers to the injury of the plaintiff’s business as the proprietor of a restaurant and cigar-stand, where it clearly appears that the business is established in a common passageway which is the sole entrance, by means of swinging doors, to houses of prostitution, and that the object of the application is the protection of the houses of prostitution against the officers of the law.</p> <p>Id.—Public Nuisances—Duty of Police Department—Bight of Access — Swinging Doors. — Houses of prostitution are public nuisances, which it is the duty of the police department of the city to prohibit and suppress by all reasonable, legitimate, and peaceable means; and they have the right of access thereto through any public entrance used by visitors. The fact that there are swinging doors across the sole passageway leading thereto does not make the approach less a public one.</p> <p>Id.—Proper Inquiries of Visitors—Legitimate Object—Incidental Injury to Business -upon Passageway.—The police department violated no rights of the plaintiff in placing police officers near the entrance to such houses of prostitution, or in making inquiries of persons about to enter therein, where their action was aimed solely at the houses of prostitution and to procure evidence relating thereto, and was legitimate and proper to that end, without intimidation or coercion, or preventing any persons from entering upon the public passageway or upon the premises of the plaintiff if they chose to do so. If the presence of the officers or their inquiries had the further effect of deterring persons from entering the premises or patronizing plaintiff’s business, it was but an incident to the location of his business upon the public passageway to houses of prostitution and his reliance in large measure for support from patrons thereof.</p> <p>Id.—Failure to Find upon Material Issues—Answer—Evidence— Beversal oe Judgment and Order.—Where an injunction was granted upon findings in support of the allegations of the complaint for interference of the police officers with plaintiff’s busily ness, and the court failed to find upon material issues raised by the answer that plaintiff’s premises were the entrance to places in the rear thereof used and resorted to nightly for purposes of prostitution by a large number of lewd, vicious, idle, and vagrant characters, who assembled on said premises, and were a constant menace to the peace and quiet of the neighborhood; that suppression thereof by the police department was necessary, and that the acts of the defendants had been done to enforce the law of the state and the ordinance of the city and county, and the evidence without conflict supported the answer and showed that the police had done no act warranting an injunction, the judgment and order denying a new trial must be reversed for failure to find upon such material issues.</p>

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

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

<p>PETITION for Writ of Habeas Corpus to the Chief of Police of the City of Oakland.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Divorce—Interlocutory Decree—Entry in Judgment-Book—Time tor Appeal—Final Degree.—Upon the proper construction of section 132 of the Civil Code, as recently amended, an interlocutory decree of divorce must be entered in the judgment-book one year before a final decree can be granted, and the time for appeal from the interlocutory decree of divorce continues for six months after such entry.</p> <p>Id.—Entry op Order in Minutes—Mandamus.—A mere order for an interlocutory decree entered in the minutes after a hearing, with nothing further done, is not sufficient t,o sustain a writ of mandate to compel the court to enter a final decree within one year thereafter.</p>

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

<p>Estates of Deceased Persons—Letters of Administration—Nomination by Widow—Conclusiveness of Order—Conflicting Claim to Widowhood.—An. order regularly made upon legal notice granting letters of administration upon nomination of a person whom the court found to be the surviving wife of the deceased is eon-elusive against another person subsequently applying for letters under a conflicting claim to be the surviving wife of the deceased. .</p> <p>Id.—Proceeding in Eem—Notice.—An application for letters is a proceeding in rem, and requires no other notice than the statute prescribes; and the fact that the subsequent claimant of widowhood had no actual notice of the prior application is immaterial.</p> <p>Id.—Construction of Code.—Section 1383 of the Code of Civil Procedure only allows the appointment of an administrator to be superseded by one of a superior class, and does not apply to the conflicting claim of one person to be the surviving husband or wife, or one of the other persons named therein, after there has been an adjudication in favor of another claimant of the same class.</p>

PETITION for removal of cause to the Supreme Court after judgment of the District Court of Appeal of the Third District affirming a judgment appealed thereto from the Superior Court of Placer County. J. E. Prewett, Judge. The facts are stated in the opinion of the court.

<p>Lease—Trade Fixtures—New Lease—Silence" as to Removal—Injunction.—A lessee for years who, during the term, has annexed trade fixtures to the realty, and who, without removing the same, has, after the expiration of the term, accepted a new lease for. years containing different terms and conditions, and which is silent as to trade fixtures, and which covenants to repair the premises and to surrender them at the expiration of the new term in good state and condition, takes such new lease as one of land and fixtures; and an injunction will lie to prevent removal of the trade fixtures at the end of the new term.</p>

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

<p>PETITION for settlement of exceptions disallowed in the Superior Court of the City and County of San Francisco. J. V. Coffey, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>APPEAL from a judgment of the Superior Court of Santa Barbara County. D. K. Trask, Judge presiding.</p> <p>The facts are stated in the opinion of the court.</p>

PETITION of attorney for restoration who was disbarred for professional misconduct committed in a probate proceeding pending in the Superior Court of Solano County. A. J. Buckles, Judge. The disbarment is reported in 101 Cal. 624. The restoration was recommended by Judge Buckles and other judges and by many attorneys. No counter petition was presented. Further facts are stated in the opinion of the court.

MOTION to dismiss appeal from a judgment of the Superior Court of Sonoma County. Emmet Seawell, Judge. The facts are stated in the opinion of the court.

<p>APPLICATIONS for Writ of Mandate to the City Clerk of the City of Stockton.</p> <p>The facts are stated in the opinion of the court.</p>

MOTION to dismiss an appeal from an order of the Superior Court of Santa Cruz County refusing to vacate an order granting a writ of assistance. Lucas F. Smith, Judge. The facts are stated in the opinion of the court.

<p>Public Nuisance — Tippling and Gambling Boom — Municipal Ordinance—Abatement—Pleading—General Demurrer. — A complaint in an action brought by the district attorney in the name of the people to abate a public nuisance consisting of a tippling and gambling house maintained in a town within the county in violation of an ordinance declaring it a public nuisance, which, in addition to setting forth the ordinance, sets forth facts indicating a public nuisance in fact, independently of the declaration of the ordinance, which is threatened to be continued, and alleges that such room has been so conducted that keeping the same is injurious to the health, is indecent and offensive to the senses, interferes with the free use of property, the comfortable enjoyment of life and property at said town, and is a public nuisance therein, sufficiently states a cause of action to abate a public nuisance, as against a general demurrer for want of facts, without considering the effect of the declaration in the ordinance. [McFarland, J., Henshaw, J., and Angellotti, J., dissenting.]</p> <p>Id.—Jurisdiction op Superior Court.—The superior court had jurisdiction of the subject-matter of the action so brought to abate the public nuisance in such town.' The superior court is the only court in which such an action may be maintained.</p>

<p>Public Nuisance — Violation op Fire Ordinance — Abatement — Pleading.—A complaint in an action by the district attorney in the name of the people to abate a public nuisance for maintaining a wooden building within the fire limits of a town, with a sheet-iron pipe, in violation of an ordinance declaring it a public nuisance, which also alleges that its maintenance is a menace to the safety of the town from fire, and has thereby endangered and now endangers the public safety in the town, and constitutes a public nuisance in fact, and that defendant threatens to continue to maintain it in the present condition,—is sufficient as against a general demurrer. [McFarland, J., Henshaw, J., and Angellotti, J., dissenting.]</p> <p>Id.—Jurisdiction op Superior Court.—The superior court has jurisdiction of the subject-matter of such action.</p>

<p>Foreclosure op Mortgages — Deeds to Secure Indebtedness and Future Advances—Parol Evidence.—In an action to foreclose mortgages consisting of absolute deeds parol evidence is admissible to show that the deeds were given to secure all future as well as existing indebtedness.</p> <p>Id.—Conplicting Evidence—Conclusiveness . op Finding.—The evidence upon the question being conflicting, the finding of the trial court that the deeds were given to secure all future indebtedness, as well as existing indebtedness, is conclusive upon appeal from an order denying a new trial.</p> <p>Id. — Construction op Code — Mortgage in Writing — Doctrine op Equity as to Absolute Deeds.—Section 2922 of the Civil Code, providing that “A mortgage can be created, renewed, or extended only by writing, executed with the formalities required in the ease of a grant of real property,” cannot be construed as opposing the well-established doctrine that a deed absolute on its face may in equity be shown by parol evidence to have been intended as security for a debt, and hence only a mortgage lien.</p> <p>Id.—Consideration op Deed Immaterial—Limit op Future Indebtedness not Essential.—Whatever consideration may be expressed in the purported conveyance, it will be effectual to secure both any existing indebtedness and any future indebtedness, however evidenced, shown by parol evidence to have been intended and agreed to be secured thereby; and it is not essential that the limit in the amount of such future indebtedness should be specified in the agreement.</p> <p>Id.—Deeds to Manager to Secure Bank—Title not Conferred— Trust Provisions op Code Inapplicable.—The general equitable principles applicable to deeds intended as mortgages apply to all cases of deeds to secure money due or to become due, whether due to the grantee or another. Where the deeds were made to the manager of a bank to secure the indebtedness of one of the grantors to the bank and future advances by it, they conferred no title, and created only a mortgage lien. The provisions of the Civil Code relative to trusts in real property apply only to express trusts, and do not affect the case.</p> <p>Id.—Foreclosure by Bank — Beal Party in Interest — Manager as Party.—The action to foreclose the mortgages, consisting of the deeds to the manager of the bank to secure indebtedness thereto, was properly brought by the bank as the real party in interest. Without deciding whether the manager could have foreclosed as the trustee oi¡ an express trust under section 369 of the Code of Civil Procedure, if he could do so, such action would be only permissive, and not exclusive of the right of the bank as the real party in interest. Where the manager was made a defendant and consented to the foreclosure by the bank, there can be no question as to its propriety.</p> <p>Id.—Pledge Securing Future Advance—Residue after Sale Secured by Deeds.—Where warehouse receipts for barrels of cement were given as special security for a note evidencing a future advance, without excluding the transaction wholly from the agreement for security under the deeds, the residue of the note after sale of the pledged property must be deemed a future general advance secured by the deeds under the parol agreement.</p> <p>Id.—Sales of Pledged Property—Bad Condition of Residue—Sale without Notice to Best Advantage—Evidence as to Value— Cross-Examination.—Where sales of most of the pledged cement were made by the pledgeor with consent of the pledgee at a fixed price per barrel, to be credited on the note, and the residue, being in a bad condition, was sold by the pledgee to the best possible advantage without notice, and the proceeds credited, and the pledgeor, without trying to show that the residue sold had at the time of sale any greater market value, merely asked the manager of the bank on cross-examination generally as to the value of the cement, it was not error to exclude such evidence.</p> <p>Id.—Rulings as to Evidence without Prejudice.—Rulings sustaining objections on cross-examination, the subject-matter of which, so far as proper, was fully covered by other questions and answers upon further cross-examination of the same witness, were not prejudicial.</p> <p>Id.—Allowance for Taxes—Absence of Specifications—Record not Showing Impropriety—Stipulated Credit.—The question as to whether the amount found due by the court includes any improper charge for taxes, or does not make full allowance for taxes paid by appellant, cannot be considered where there is no specification of insufficiency of the evidence covering that question and where the record does not show that full allowance was not made for taxes or that a stipulated credit for taxes paid by appellant did not adjust the matter of taxes correctly.</p>

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

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

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

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

<p>Criminal Daw — Child-Stealing — Gist of Offense — Intent.—The gist of the offense of child-stealing consists of the taking and enticing away of a minor child with intent both to detain and to conceal such child from the person having legal charge of it. If either intent is lacking, the offense is not made out.</p> <p>Id.—Intent to Detain Xnd Conceal Child—Question of Daw—Insufficiency of Evidence—-Reversal.—"Where all of the evidence is in the record, and is without conflict, and wholly fails to show any intent of the defendant both to detain and to conceal the child, or any evil intent, a question of law is presented, and a reversal will be ordered for insufficiency of the evidence to sustain the verdict.</p>

<p>Action por Damages and Injunction—Removal op Water-Pipe—Appeal—Support op Judgment por Injunction.—In an action for 'damages and for an injunction to restrain the removal of a water-pipe laid in a street to the land of plaintiffs, where the complaint is sufficient and the findings of fact support the judgment for an injunction, it is immaterial whether it is supported in all respects by the conclusions of law. The judgment is the real conclusion of law, and supersedes any conclusion of law embraced in the decision.</p> <p>Id.—Action by Co-Plaintiffs-—Ownership of Pipe—Appurtenance— Judgment for Owner of Land—Support of Finding.-—Where the court found that one of two co-plaintiffs was the owner both of the land and of the water-pipe as an appurtenance thereto, judgment was properly rendered in his favor only; and where the finding of his ownership of the land is not assailed, and the evidence shows that the pipe was used in connection therewith as an appurtenance, the finding of his ownership of the pipe is supported, and evidence that one of his grantors constructed the pipe is not sufficient to overcome such finding.</p> <p>Id.—Motion for New Trial upon Minutes of Court—Notice not Part of Eeoord — Specifications of Insufficiency of Evidence. — A notice of motion for new trial printed in the transcript on appeal which is no part of any statement or bill of exceptions cannot be considered; and where the motion was made upon the minutes of the court, the only specifications of insufficiency of the evidence that can be considered are those embodied in the settled statement or bill of exceptions, which are presumably the only ones urged on the hearing of the motion.</p> <p>Id.—Support of Finding as to Wrongful Acts—Agency of Co-Defendant.—Where the defendants are husband and wife, a finding that the wife participated in the wrongful acts complained of is supported by evidence that the wife claimed to own the street in which the pipe was laid, and that the husband had authority to protect her alleged interest therein, and that the wrongful acts alleged were done by him as her agent.</p> <p>Id.—Affirmative Defense—Omission to Find—Absence of Evidence. —The omission to find upon a defense set up in the answer does not render the decision against law, where the record, purporting to contain all the evidence, shows that no evidence was introduced thereupon.</p>

<p>Exchange of Land fob Oil Stock—Action fob Rescission—Fraudulent Bepkesentations not Belied upon.—In an action to rescind an executed contract exchanging land for oil stock on the ground of alleged fraudulent representation, where the court found upon sufficient evidence that no representation was made for the purpose of inducing the exchange, and that plaintiff did not act upon the faith of any false representations made by the defendants, and consented to the exchange and made his conveyance without regard to any such representations, and that there was no actionable fraud, actual or constructive, on the part of the defendants, judgment was properly rendered for the defendants.</p> <p>Id.—Constructive Fraud — Agency for Sale of Land — Separate Transaction—Offer of Exchange by Plaintiff.—Though the exchangers of the stock were agents for the sale of plaintiff’s land, yet where the exchange of the land for the stock was a separate transaction, originating in an offer of the plaintiff upon independent inquiry to exchange the land for the stock, and plaintiff did not rely upon or believe that they were his agents in respect of the stock or for the exchange, and they acquired no information by reason of their agency affecting the proposed exchange, there was no constructive fraud therein by reason of their separate agency for sale of the land.</p> <p>Id.—Evidence—-Representation as to Agency for Stock—Ruling Without Prejudice.—Where there was a representation by such agents that the stock held by them belonged to another person, conceding that evidence, as to what effect it would have had upon him if he had been told that the stock belonged, to them, was erroneously excluded, the exclusion was without prejudice, where plaintiff subsequently testified in effect that he did. not rely upon such representation, but relied upon other representations, in respect of which reliance the court discredited him.</p> <p>Id.—Evidence as to Value of Assets—Market Value of Stock— Stipulation.—Where there was a stipulation that the market value of plaintiff’s land was five hundred dollars in excess of the market value of the stock, in case the court should find for plaintiff on the question of fraud, and there was no representation that the market value of the stock was based upon its intrinsic value, the exclusion of evidence to show the value of the assets' of the corporation, and that the quoted market value was greater than the intrinsic value of the stock, was immaterial, upon the question of damages, or upon the question of motive or intent of the defendants who exchanged the stock for the land.</p> <p>Id.—Rulings without Prejudice — Evidence Otherwise Given. — Rulings excluding questions were without prejudice where the evidence asked for was otherwise given or the question otherwise-substantially answered.</p> <p>Id.—Incompetent Evidence—Books of Original Lessees—Opinion Evidence.—Evidence of what the books of original lessees showed who sublet to the incorporation was incompetent as being too remote; and a question as to the effect upon the market of selling the amount of stock exchanged was incompetent, as calling for improper opinion evidence.</p>

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

<p>Estates of Deceased Persons—Contract of Deceased to Convey to Administratrix—Statutory Specific Performance.—It is clearly within the power of the legislature to prescribe a specific performance in the probate court of a contract of a deceased person to convey real estate; and an administratrix with whom, as an individual, a valid contract to convey was made by the deceased, may individually petition such court to order her, as administratrix, to execute the conveyance to her.</p> <p>Id.—Judge Guardian of Estate—¡Resignation not Required.—The judge of the probate court is the guardian of the estate, and an executor or administrator simply acts under his order and direction; and the law does not require that the executor or administrator should first resign as such in order to have a claim allowed or enforced against the estate.</p> <p>Id.—Appointment of Attorney for Estate—Opposition by Heirs.— The court may properly appoint a separate attorney to represent the estate, upon petition made for a specific performance by an executor or administrator, but was not required to do so where the heirs appeared and opposed the petition.</p> <p>Id.—Error in Description — Omission of Boundary — Mistake of Decedent—Possession of Lot—Parol Evidence.—Where the contract was drawn by the decedent, and had an evident error in the omission of the rear boundary line, making the description impossible, the court properly admitted testimony to show that the lot had been inclosed by a fence and improved for eighteen years prior to the agreement, and that the petitioner had had possession thereof from the date of the agreement, and that the rear line of the lot had the same width with the front line and was occupied by a barn, and that the premises so occupied were the premises mentioned in the agreement.</p>

APPLICATION to prove exceptions to be inserted in a settled statement on motion for new trial. A. J. Buckles, Judge. The facts are stated in the opinion of the court.

<p>Prohibition—Local Action—Trespass upon Mine in Another State —Injury to Ledge on Dip—Injunction.—An action involving damage for trespass upon a quartz ledge in another state, by mining upon the dip thereof upon ground in the possession of the defendants, and involving an injunction to prevent further mining thereupon, is local in its nature, and is beyond the jurisdiction of the superior court of this state; and prohibition will lie to prevent the trial thereof.</p> <p>Id.—Trover—Transitory or Local Action—Ore prom Dip op Ledge— Fundamental Question op Title.—Ordinarily a mere action for the value of timber cut or ore taken from plaintiff's land is transitory; yet if any part of the damages claimed is for trespass committed upon the land, the action is local. Trover will not lie for ore taken from the dip of a ledge in ground in possession of the defendants under claim and color of title in good faith. In such ease the question of title is not incidental, but fundamental, and cannot be litigated in a transitory action.</p> <p>Id. — Presumption op Good Faith — Allegations op Complaint.—• Where the complaint shows that the defendants are mining outside of the surface lines described in the complaint, either upon public land or within the surface lines of another claim, the title to everything beneath such surface is grima facie in the claimant thereof, and his claim to any body of ore found therein, when asserted, must be presumed to be a claim in good faith, preventing an action of trover therefor.</p> <p>Id.—Remedy by Appeal Inadequate.—Where the court has no jurisdiction of the subject-matter of the action, and the remedy by appeal is inadequate for the reason that the trial would involve heavy expense for transporting witnesses which could not be recovered as legal costs, prohibition will lie, notwithstanding the remedy by appeal.</p>

<p>New Trial—Motion on Minutes—Preparation op Statement— Excusable Neglect—Belief prom Default—Discretion.—Notwithstanding the failure of one who has moved for a new trial on the minutes of the court to prepare and serve his proposed statement within ten days after the denial of the motion, of which he is hound to take notice, yet the court has discretion to relieve him from default upon a showing of inadvertence and excusable neglect. Where no abuse of discretion appears, the action of the court will not he disturbed, especially where it is exercised in favor of granting the relief, as it tends to bring about a conclusion on the merits, which is always to he desired.</p> <p>Id.—Order of Belief not Premature — Belief from Subsequent Order Befusing Settlement.—The order granting relief from the default in preparing the statement was not premature, and must stand as the final order for relief, notwithstanding relief granted on the same ground from a subsequent order refusing to settle the statement to avoid a contention that the relief must be made from an order.</p> <p>Id.—Appeal from Judgment — Beview — Statement Settled after Belief Granted.—Notwithstanding there is no appeal from the order denying a new trial, the statement settled thereupon, after relief properly granted from default, may he considered on appeal from the judgment.</p> <p>Action for Death of Motorman—Collision—Contributory Negli- . gence—Disobedience to Instructions—Nonsuit.—The heirs of a motorman of a work train cannot recover in an action for his death resulting from collision with another train if caused by his own negligence in disobedience to known rules and instructions obedience to which would have prevented the collision; and where such contributory negligence appears affirmatively as matter of law, in the evidence for plaintiffs, a motion for a nonsuit was improperly denied.</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 of the court.</p>

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

<p>Guardian and Ward—Will of Guardian—Direction to Pay Wards— Waiver of Statute of Limitations—Recovery by Ward.—Where a deceased father who was the guardian of property of his children had invested it in his business, and had directed his executors to pay the balance due to each, besides willing to each a large sum of money, and had expressly provided in his will that the benefit of the statute of limitations was expressly waived and repudiated as to all of his obligations, his executors cannot urge the statute of limitations against the claim of a ward for the balance due to him as such, and he may recover such balance by virtue of the will.</p> <p>Id.—Commingling of Funds—Allowance of Compound Interest— Disallowance for Services.—The guardian not having accounted with the wards during his lifetime, and having mingled their funds with his own, it was not error to allow interest on the amounts found due, at the rate of seven per cent per annum, compounded annually, and to disallow any deduction for services of the guardian.</p>

W. S. Day, Judge. The main facts are stated in the opinion rendered in Department Two, affirmed by the. court in Bank. Further facts are stated in the dissenting opinion of Beatty, C. J.

<p>Automobiles—County Ordinance Prohibiting Night Use—Reasonableness— Habeas Corpus — Burden op Proof.—A county or'dinanee prohibiting the use of automobiles on the public roads at night-time is not unreasonable on its face; and the burden of showing its unreasonableness is on one convicted of its violation who petitions to be discharged upon habeas corpus.</p>

<p>Prohibition—Jurisdiction—Accusation against „ Chief o'e .Pólice—■ Misconduct—Corrupt Failure to Suppress Gambling.—The superior' court ■ has ■ jurisdiction' of an - accusation ' presented' by the grand jury against the chief of police of a city, under section 758 of the Penal Code, charging him with willfully, unlawfully, corruptly, and intentionally failing, refusing, and neglecting to inform against and prosecute illicit gaming and gambling, with knowledge of the facts; and prohibition will not lie to prevent the trial of such accusation.</p> <p>Id.—Construction of Penal Code—Private Accusation-—Definition of “Misconduct.”—It is immaterial what refusal and neglect of an officer to perform his official duties are covered by the provisions of section 772 of the Penal Code for private accusation, where the facts alleged show “willful misconduct” within the meaning of section 758 of that code. The phrase “misconduct” is broad enough to include any wilful malfeasance, misfeasance, or nonfeasance in office.</p> <p>Id.—Misdemeanor of Police Officer—“Willful Misconduct.”—All police officers refusing and neglecting to inform against and diligently prosecute persons whom they have reasonable cause to believe are offenders against the acts prohibiting gaming and gambling are guilty of a misdemeanor under section 335 of the Penal Code; and an accusation showing facts constituting such misdemeanor by a chief of police sufficiently charges him with “wilful misconduct” in office.</p> <p>Id.-—Municipal Officers — Concurrent Jurisdiction of Superior Court—Administrative Jurisdiction under Freeholders’ Charter not Exclusive.—The provision in a freeholders’ charter for removal of municipal officers by administrative proceedings instituted by the mayor before the municipal board is not exclusive in its nature, and does not supplant the concurrent jurisdiction given to the superior court to try an accusation against a municipal officer presented by the grand jury under section 758 of the Penal Code.</p> <p>Id.—“Municipal Affair.”—Conceding that the removal of officers under the freeholders’ charter is a “municipal affair” within the meaning of section 6 of article XI of the constitution, that cannot affect the concurrent jurisdiction of the superior court conferred upon it by general law applicable to municipal officers in all municipal corporations, however constituted.</p>

<p>APPLICATION for Writ of Mandate to the Superior Court of the City and County of San Francisco. James M. Seawell, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Change of Venue—Residence—Time of Demand—Waiver of Right.— A defendant who fails to demand a change of the place of trial to the county of his residence until after he has appeared and demurred thereby waives his right.</p> <p>Id.—Convenience of Witnesses—Conflicting Affidavits.—Upon a motion to change the place of trial on the ground of convenience of witnesses, where the counter affidavits sufficiently controvert all of the facts alleged in support of the motion, this court cannot reverse the ruling of the court below in denying the motion.</p> <p>Id.—Verification of Affidavit — Objection upon Appeal — Sufficiency.—An objection not urged in the superior court to the form of verification of a counter affidavit cannot be urged upon appeal for the first time. A verification stating that the affiant is personally familiar with the matters stated in the foregoing affidavit, and that said affidavit is true, sufficiently verifies the facts stated in the affidavit.</p>

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

<p>Criminal Law—Murder—Defects in Complaint for Arrest—Legality of Commitment — Setting Aside Information.—Where the charge of murder against the defendant was examined by the committing magistrate, and the evidence taken warrants the holding of the defendant to answer, any defects in the complaint for arrest are cured, and the commitment is legal; and the information cannot be set aside for such defects.</p> <p>Id.—Appointment of Stenographer—Presumptions of Regularity.— The presumptions are that the proceedings for the commitment were regularly conducted in the absence of any showing to the contrary; and the stenographer who acted at the preliminary examination will be presumed to have been regularly appointed where no irregularity is made to appear.</p> <p>Id.—Qualifications of Jurors—Assessment of Estate—Insufficient Showing.—A juror- in whose name no property appears upon the assessment-roll was properly excused, notwithstanding a statement that he was an heir of a deceased person whose estate had real property on the assessment-roll of the county, in the absence of a showing that any part of the property belonged to him, or that he would upon final settlement of the estate become the owner of any of the property.</p> <p>Id.—Rulings upon Challenges for Bias.—It was proper to overrule challenges for bias where the jurors would try the case impartially upon the evidence, notwithstanding opinions based upon public rumor or statements in public journals. Nor was it error to sustain a challenge for cause by the defendant merely because the prosecution concurred in it; nor to sustain a challenge by the prosecution to a juror unwilling to find a verdict resulting in death based upon • circumstantial evidence.</p> <p>Id.—Improper Question as to Defendant’s Testimony.—In the examination of jurors on their voir ¿lire it was proper to disallow a question, as to whether they would give weight to the defendant’s testimony on a material point if reasonably uneontradieted and not impeached.</p> <p>Id.—Argument oe District Attorney—Zeal oe Counsel.—Something must be allowed to the zeal of counsel on either side in arguing a criminal ease to the jury; and where the comments of the district attorney upon the evidence against the defendant did not transcend .the bounds of propriety or tend to prejudice the defendant in . - respect of any substantial right an objection thereto will not be sustained upon appeal.</p>

<p>Beal Property—Life Estate—Estate in Bemainder.—An estate in remainder in real property is distinct from that of a preceding life estate; and the tenant in remainder cannot be in any way affected or defeated by any act of the life tenant or his grantee.</p> <p>Id.—Adverse Possession—Statute of Limitations.—The possession of the tenant or his grantee cannot be deemed adverse to the remainderman; and the disseizin of the life tenant cannot affect the remainderman; nor can the statute of limitations begin to run against the remainderman until the termination of the life estate, when he becomes entitled to the possession.</p> <p>Id.—Construction of Code Provisions.—The code provisions relating to the statute of limitations are to be construed together, and in view of the presumption that the legislators are acquainted with well-settled principles of law, and legislate with reference thereto.</p> <p>Id.—Foreclosure of Mortgage against Life Tenant—Parties'—Default of Bemaindermen — Paramount Title.—Notwithstanding the remaindermen were made parties defendant to the foreclosure of a mortgage executed by the life tenant, under an allegation that they claimed some interest subject to the mortgage, and made default, their estate in remainder was not subject to the mortgage, but is a paramount, independent title, which could not be determined in the action, and is not bound by the decree and sale thereunder.</p> <p>Id.—Judgment in Ejectment against Administrator of Testator— Bemaindermen not Concluded.—A judgment against the administrator of the testator (who devised the life estate and estate in remainder) in an ejectment suit brought by such administrator to oust the purchaser under foreclosure, of the mortgage of the life tenant, cannot conclude the holders of the estate in remainder. Such administrator is not a trustee for the remaindermen.</p>

<p>Taxes—Deed to State—Defective Description of Land—Injunction ■—Pleading—Equity not Shown—Offer to Pay Just Taxes.— A complaint in equity to restrain the execution of a tax-deecl to the state on account of a defective description of land in the assessment of taxes, which does not show the doing of equity by alleging payment or an offer to pay plaintiff’s justly proportionate share of the taxes, states no cause of action in equity, and a demurrer thereto was improperly overruled.</p> <p>Id.—Eorm of Belief Immaterial—Moral Obligation to Pay Tax— Power of Legislature.—The form of relief sought in equity is immaterial in the application of the rule that the plaintiff must do equity; and the rule, is equally applicable where it appears that a part only of the tax against which relief is sought is justly payable and where the whole tax appears to be just. The moral obligation to pay the tax arises on the first Monday of March of the year for which the taxes in question are levied, and such obligation continues notwithstanding the subsequent assessment is rendered invalid by an uncertain description therein of the land assessed. In such a ease the legislature could cure the assessment by authorizing an amendment thereof.</p> <p>Ib.—Enforceable Obligation — Lien of Annual Tax — Effect of Cure of Assessment.—There is an enforceable obligation to pay a general annual tax, which is in a sense legal as well as moral; and a lien therefor is established by law, irrespective of the regularity of the assessment. The assessment is enforceable when any irregularity therein is cured by authority of the legislature; and such cure imposes no new obligation, but is merely a step in the enforcement of the original obligation to pay the tax.</p>

<p>Taxes—Deed to State—Irregularities in Proceedings—Injunction —Pleading—Tender of Just Tax Essential.—A complaint in equity for an injunction to restrain the execution of a tax-deed to the state, on account of irregularities in the description of the land assessed and in the levy and sale, which contains no allegation or showing that the plaintiff has paid or offers to pay the amount of the tax justly chargeable against the land, states no cause of action for equitable relief and a demurrer thereto was improperly overruled.</p> <p>Id.—Certificate of Sale — Constructive Hotice to Purchaser.—. "Where the certificate of sale to the state contained a correct description of the land, and was not subject to the defects alleged in the assessment, its record imparted constructive notice to a purchaser of the land, and the title taken is subject thereto, and the purchaser is subject to the requirement upon the original owner, that he who seeks equity must do equity.</p>

<p>PETITION for Writ of Prohibition to the Superior Court of the City and County of San Francisco. W. P. Lawlor, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

PETITION to settle exceptions upon appeal from a judgment of the Superior Court of the City and County of San Francisco admitting a will to probate. J. Y. Coffey, Judge. The facts are stated in the report' of the chief justice, approved by the court.

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

<p>PETITION for Writ of Mandate to Charles F. Curry, Secretary of State.</p> <p>The facts are stated in the opinion of the court.</p>

<p>APPEAL from a judgment of the Superior Court of San Diego County granting a nonsuit and dismissal of a contest of a will, and from orders admitting the will to probate and appointing executors. N. H. Conklin, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Conditional Sale of Mining Stock-—Delivery—Payment upon Condition — Executory Contract — Construction. — In determining whether a sale of stock in a mining corporation is absolute or conditional the intention of the parties 'must be gathered from all the language used. The use of the word “sells" is not conclusive, when, considering the contract as a whole, the sale was executory and conditional, and the stock was delivered to enable the conditional purchaser to obtain control of the stock and the mine, and the purchase money was to be paid upon condition of such control and the making of a certain sum from the mine or the proceeds of sale thereof within four years.</p> <p>Id.—Title to Stock not Passed.—In such case title to the stock did not pass, notwithstanding such delivery, unless the conditions of the sale and purchase were fulfilled, and if unfulfilled the executory contract would be at an end, and the ownership of the stock would be where it was before.</p> <p>Id.—Practical Construction of Contract.—-Where the parties practically construed the contract by recognizing the stock as the property of the seller until the conditions were fulfilled, such construction will prevail where the language used will reasonably allow it.</p> <p>Id.—Written Modification of Contract—Extension of Conditions—■ Consideration.—A written modification of the contract executed during the life of the previous contract, extending its conditions indefinitely until the requisite proceeds were realized from the mine, or by sale, rested upon a sufficient consideration.</p> <p>Id. — Presumption of Consideration from Contract — Burden of Proof.—-There is presumption of consideration to support a written contract, and the burden is upon the party assailing it to show a want of consideration.</p> <p>Id.—Evidence—Impeachment of Witness—Conviction of Crime not Amounting to Felony.—A witness cannot be impeached by a judgment of conviction of crime, though properly authenticated, where it does not show a conviction of felony.</p> <p>Id.—Evidence—Execution of Modifying Contract—Recognition of Bights.—Evidence bearing upon the issue as to the execution of the modifying contract, and to show the conduct of the appellant before and after the second contract, is indication of the recognition of the right of the respondent under both contracts.</p> <p>Id.—Control of Stock Immaterial.—Where no rights of third parties are involved, the manner in which the appellant used her stock or manipulated other stock to get control of the corporation is immaterial, it appearing that possession of the stock was given for that purpose.</p>

<p>PETITION for Writ of Prohibition to 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>APPEAL from a decree of the Superior Court of San Diego County, distributing the estate of a deceased person. N. H. Conklin, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>WRIT of Habeas Corpus to the Sheriff of the City and County of San Francisco.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Guardian and Ward—Settlement op Accounts—Statute op Limitations.—If there is any statute of limitations which constitutes a bar to a proceeding by a ward after attaining majority to compel a settlement of accounts by the guardian, it is section 343 of the Code of Civil Procedure, and not subdivision 1 of section 338 of that code. [Beatty, C. J., and Henshaw, J., dissenting.]</p> <p>Id.—Action on Bond op Guardian—Defense op Laches—Prejudice not Shown.—In an action by the ward brought upon the bond of a guardian, which is not barred by section 1805 of the Code of Civil Procedure, the defense of laches based on the previous delay of the ward in procuring settlement of the guardian’s accounts, Which is short of the period of limitation applicable thereto, cannot be sustained in the absence of proof that the sureties were prejudiced by the delay.</p> <p>Id.—Bight op Sureties—Question Undecided.—The sureties of the guardian have an equal right with the ward to institute proceedings to compel the guardian to account. The question whether they can urge laches against the ward in that respect suggested, but not decided.</p>

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

<p>Creditor’s Bill—Directors op Insolvent .Bank—Proceeds op Compromise—Action por Benefit op Creditors Joining—Rule Inapplicable.—The rule that a creditor who, in filing a creditor’s bill, makes himself a trustee for the benefit of all the creditors of an insolvent corporation cannot avail himself exclusively of funds obtained by compromise of the action, has no application to a creditor’s bill against the directors of an insolvent bank brought for the benefit of particular creditors and of others who should join in the action; and in such ease any other creditor not joining cannot recover any part of the proceeds of a compromise of the action.</p>

<p>APPEAL from an order of the Superior Court of Siskiyou County denying- a new trial and dismissal of appeal from the judgment. J. S. Beard, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Habeas Corpus—Toid Statute—Police Power—Labeling of Bruit Shipped—Criminal Offense.—The act of 1903 requiring all fruit shipped or offered for shipment to be labeled with the .county and locality where the same was grown, and making it a crime to violate the act, is void, as being an unconstitutional invasion of liberty and not a proper exercise of the police power; and a shipper of fruit convicted and sentenced for a violation thereof will be discharged on habeas corpus.</p> <p>Id.—Limitations upon Police Power—Object of Statute.—The legislature cannot under the guise of police regulations enact laws not pertaining to the public welfare, public health, or public morals, and which impose onerous and unnecessary burdens upon business and property. Where there is no question in the statute as to the shipping of diseased fruit or of false labeling, but the true purpose of the act is to obtain for the fruit-raisers of some well-advertised and favored localities an advantage in their own fruit, it forms no part of the police power, and is wholly beyond the prerogative of the legislature.</p> <p>Id.—Judicial Question.—It is always a judicial question whether any particular regulation of the constitutional right of the citizen to engage in an innocent and useful business is a valid exercise of the legislative power.</p>

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

<p>Lease of Town Lot—Cancellation for Fraud—Defective Complaint against Assignee—Notice not Averred.—In so far as a complaint seeks to cancel a lease of a town lot for fraud of the lessee against an assignee of the lease, the complaint is fatally defective in not alleging that the assignee took with knowledge or notice of the fraud.</p> <p>Id.—Rescission against Assignee—Change of Use from Tenement to Oil Purposes—Construction of Code.—Section 1930 of the Civil Code, which provides that where a thing is let for a particular purpose the hirer must not use it for any other purpose, else the owner may treat the contract as rescinded, applies to a lease of real property; and where a town lot was leased for tenement purposes, involving only the superficies of the soil, without reference to minerals, and the use was changed by the assignee to the extraction of oil, which is part of the realty, the owner has a right of rescission of the lease as against the assignee, who has no other right than that conferred upon the lessee, and has no authority to waste the substance of the estate.</p> <p>Id.—Cause of Action for Rescission—Fraud not Involved—Return of Rent Paid not Required.-—-The cause of action for rescission of the lease for such improper change of use involves no question of fraud; and rent paid, based upon the use of the property by the lessee and assignee prior to the filing of the complaint, need not be refunded as a condition of the rescission.</p>

<p>Appeal—Parties—Corporation Succeeding to Bights of Defendant Appealing—Protection.—Where a defendant corporation has appealed, and another consolidated corporation succeeding to the rights of the defendant corporation has also appealed, it is immaterial to decide whether the latter has a right of appeal, inasmuch as all of its rights are fully protected by the appeal of the defendant corporation.</p> <p>Id.—Order Appointing Receiver—Stay of Execution—Erroneous Order to Surrender Property.—Where the judgment appealed from formed the basis of an order appointing a receiver, and execution of the judgment was stayed pending the appeal by a supersedeas bond, the appellant has a right to insist that the status quo shall be preserved until the final adjudication of the controversy upon appeal; and it was erroneous to order the surrender of the property to the United States marshal pending the appeal.</p> <p>Id.—Action to Canoed Lease—Subsequent Action in Federal Court —Rights of Receiver not Affected.—Where in a prior action in the state court to cancel an oil lease for alleged fraud in its procurement judgment was rendered for plaintiff, and a receiver was appointed to work the oil-bearing land, and pending an appeal from the judgment the same plaintiff brought an action in the federal court to cancel the lease, both as having been procured by fraud and terminated by its terms, to which the receiver was not made a party, the rights of the receiver are not affected by the judgment in the federal court.</p> <p>Action against Receiver—Leave to Sue Jurisdictional.—The federal court would have had no jurisdiction to sue a receiver previously appointed in the state court, without previous permission by the state court that its receiver may be sued.</p> <p>Mining Corporations — Effect of Consolidation — Dissolution.— Although a new mining corporation formed by the consolidation of two or more of such corporations is a distinct entity, the consolidation does not dissolve the corporations consolidated, but they are preserved by law for the purpose of enforcing liabilities against them, whether upon contract or in tort; and each may be sued separately.</p>

<p>Municipal Corporations—Sewers and Drains—Power over Streets —Drainage of Storm-Waters on Hill Section.—The power of a municipal corporation to construct sewers and drains is incident to its power to construct and maintain streets; and it has power to provide a complete system of drainage for the purpose of concentrating and controlling the storm-waters flowing from a hill section of the city through an arroyo while constructing and laying out streets therein.</p> <p>Id.—Use of Private Property—Consent of Landowners—Power of City.—The city has power to condemn private property for such system of drainage; and the character of its construction as being a public benefit and within the municipal power is not affected by the consent of the landowners to give and of the city to accept a right of way along the arroyo for such drainage, which the city might have purchased or condemned.</p> <p>Id.—Benefit to Individuals.—The construction of the storm-drains across private property is none the less a public improvement because individual owners over whose land it was constructed were particularly benefited thereby.</p> <p>Id.—Liability for Damages to Landowner—Bursting of Drain-Pipe —Negligence of City.—Where the drain-pipe was insufficiently constructed to withstand the pressure of the drain water when full, and such defective construction, combined with negligent allowing of the outlet of the drain to be clogged with debris, caused the bursting of the pipo on plaintiff’s premises, which the city, after notice from plaintiff, neglected to repair or remedy in any manner, the city is liable to plaintiff for all damages resulting to his premises, property, and business by reason of such negligence.</p> <p>Id.—Notice of Obstructions to Outlet of Drain—Question Suggested.—Though the question is suggested, without decision, it appears upon authority that the city is not entitled to notice of obstructions at the outlet of the drain-pipe before it becomes liable for damages resulting therefrom; but that the obstructions being open only to the employees of the city, it appears to be the duty of the city to anticipate the probability of such occurrences and to guard against them by occasional examinations and cleansings.</p>

<p>APPEAL from a judgment of the Superior Court of Kern County. Paul W. Bennett, Judge.</p> <p>The facts are stated in the opinion.</p>

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

<p>Streets—Injury from Defective Sidewalk—Action against Members of Board of Public Works and Sureties—Questions for Jury.—In an action by a plaintiff, injured at night by reason of the loss of a plank from a wooden sidewalk upon a public street in San Francisco, against the members of the board of public works and the sureties upon their official bonds, where the evidence was conflicting, the questions whether the sidewalk was or was not in a reasonably safe condition, and whether the plaintiff was or was not exercising due care in walking over such sidewalk at night, were questions for the jury, and their verdict thereupon for the plaintiff is conclusive upon appeal.</p> <p>Id.—Jurisdiction of Board' of Public Works—Bepair of “Streets" Inclusive of “Sidewalks.”—Under the San Francisco charter the board of public works has jurisdiction to cause the repair of “sidewalks” as a part of the “street” fronting on the lots of the owners or occupants, and to provide what materials shall be used in such repairs, and to let a contract therefor at the expense of the owners if they fail after proper notice to make the required repairs.</p> <p>Id.—Sufficiency of Notice to Owners — Defective Wooden Sidewalk— “Repair” by Change — Delivery by Mail.—Where after knowledge of the general defective and unsafe condition of the wooden sidewalk the board gave notice to the lot-owners to repair it by constructing a bituminous rock or cement sidewalk, and it was delivered by mail instead of personally, the members of the board cannot evade liability by urging that the notice was not given in the form required by the charter. “Bepair,” in its broad sense, has been held to apply to a new construction of different material; and the notice in terms called for “repair” as well as “construction.”</p> <p>Id.—Means for Bepair.—The members of the board cannot urge that it does not appear that they had any means for the needed repair. It is sufficient that they, had the ability to force the necessary means from the lot-owners by letting a contract at their expense or by enforcing fines to be used for repairing sidewalks.</p> <p>Id.—Notice of Special Defect Unnecessary.—Where the board had full notice of the general unsafe condition of the wooden sidewalk and failed in its duty to enforce the necessary repair, it was not necessary that they should have notice of the particular defect in the loss of a plank therefrom, which occasioned the injury to the plaintiff.</p> <p>-Id.—Joinder of Parties—Dismissal of Owners.—Where the owners of the lots were sued jointly with the members of the board of public works and their sureties, and upon the demurrer of the latter for misjoinder the action was dismissed as to the owners, the other defendants cannot escape liability by reason of such dismissal. The cause of action for the tort being joint and several the plaintiff could sue all or each individually or collectively.</p>

<p>Deed—Delivery in Escrow—Claims c® Creditor—Conditional Agreement—Title not Passed.—Where a deed in favor of a creditor of the grantor was delivered in escrow, under instructions that it was not to he delivered to either party during life without the consent of the other, and that after death of the grantor it should he delivered to the grantee, and a few days thereafter it was agreed in writing that the creditor should pay the expenses of the grantor during life and funeral expenses, provided that upon payment of all legal claims of the creditors the grantor might demand and repossess the deed, and it was delivered to the grantee after the death of the grantor; held, that there was no effectual delivery of the deed, or passage of title; that the grantor did not part with all control over the deed or the title, and that the «intention was that the deed should not take effect as a present conveyance.</p>

<p>Negligence — Damage by Fire — Sparks prom Engine — Evidence— Declarations not Part op Res Gestae.—In an action to recover for damage to plaintiffs wheat crop by fire caused by sparks from a traction engine used with a combined harvester "on adjoining land, evidence is not admissible to prove declarations by defendant’s foreman, who operated the engine, made the day after the fire, that he would not take it back into the field unless it was fixed so as not to throw sparks. Such statement was not part of the res gestee.</p> <p>Id.—Evidence—Smokestack and Screens—Error in Instruction.— Where the defendant to show that the fire was not caused from sparks introduced the smokestack in evidence and one of tljree screens, which were exhibited to the jury, it was prejudicial error to instruct the jury that certain screens exhibited to the jury were not admitted in evidence and could not be considered.</p> <p>Id.—Inconsistent Instructions. — It was prejudicial error, after giving correct instructions as to the non-liability of the defendants if they used due care in the construction and management of the engine, and were not otherwise negligent, to give an instruction conflicting therewith, that if the fire started from the engine, they should find that the engine was not properly or carefully operated.</p> <p>Id.—Argumentative Instructions—Province or Jury.—It was error for the court to give argumentative instructions for the plaintiff dealing with questions of evidence and facts entirely within the province of the jury.</p> <p>Ib.—Evidence—Market Value oe Wheat Destroyed.—In such action it was proper to permit the plaintiff to prove, on the question of - damages for loss of a nearly- matured wheat crop by fire, the market value of wheat in the nearest market at the time of the fire.</p>

<p>Injunction—Flume upon Public Land—Change op Basement after Patent—Construction of Ditch,—One who has acquired an easement upon public land for a flume conveying water to his own land for beneficial use cannot change the character and place of the easement after the title to such land has been acquired subject to the easement without the consent of the owner of the land; and such owner may enjoin him from using a ditch subsequently constructed elsewhere upon his land to prevent the acquisition of a new easement thereupon.</p> <p>Id.—Pleading—Evidence—Finding—Immaterial Variance.-—In the action to obtain" such injunction, where the complaint” alleged that the ditch was constructed in a certain year, and the court found from the evidence that a few rods of it were constructed five years earlier, it was proper to find according to the evidence, the variance being immaterial.</p> <p>Id.—Time for Filing Amended Complaint—Discretion of Court— Construction of Code.—Section 1054 of the Code of Civil Procedure has no application to the time which the court may allow in which plaintiff may file an amended complaint; and the extension of time allowed therefor, more than thirty days, is within the discretion of the court, and is not subject to review if no abuse of discretion appears.</p> <p>Id—Kefusal to Dismiss for Want of Prosecution—Discretion.—A motion to dismiss an action for want of prosecution is addressed to-the discretion of the court, and an order refusing it in which no error appears will not be disturbed.</p>

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

<p>Injunction—Ex Parte Modification of Preliminary Injunction.— A preliminary injunction can only be dissolved or modified after notice to the plaintiff, and it is error to modify it in important particulars ex parte.</p>

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

<p>Action for Rescission—Mortgage Contract—Fraudulent Promise to Pay Prior Mortgage—Misuse of Funds—Equitable Lien— Sufficiency of Complaint.—A complaint alleging that defendants, less than five months before suit, obtained a loan from plaintiff secured by mortgage, under a fraudulent promise made without intention of performance, to pay and extinguish a prior mortgage, that the money was used in part to pay a mortgage on other land of defendants, and in part in purchasing another tract, that only one hundred and sixty-five dollars had been paid in interest to plaintiff, that plaintiff had before suit offered to return the note and mortgage, and praying a rescission and cancellation thereof, and for judgment for the amount thereof, to be declared an equitable lien on the other tracts, and for general relief, states a sufficient and single cause of action.</p> <p>Id.—Amended and Supplemental Complaint—Parties-—Misjoinder. —An amended and supplemental complaint setting forth the same cause of action, and properly bringing in a new party defendant upon an allegation that, subsequent to the beginning of the action, he had purchased the tract of land upon which the mortgage was paid with notice of plaintiff’s rights, does not, as to the original defendants, show a misjoinder either of parties or of actions.</p> <p>Id.—Right of Rescission—Fraud in Promise.—There is a clear right to rescind a contract obtained by a promise made without any intention of performing it, which constitutes fraud, and is ground for relief in equity.</p> <p>Id.—Laches not Shown.—Where the complaint alleges that considerable time elapsed, after the date of the mortgage contract, before the fraud was discovered, though it does not give the date of its discovery, nor of the offer to rescind, but it does not appear that the delay of five months in bringing the action prejudiced the defendants, the complaint shows no such laches on its face as to defeat the action.</p> <p>Id.—Election to Affirm Contract not Shown—Beceipt of Interest —Matter of Defense.—Where the complaint does not show on its face that the receipt of interest paid on the mortgage was subsequent to the discovery of the alleged fraud, and with a knowledge of its effect, to affirm the contract, such election is properly matter of defense.</p> <p>Id.—Beturn of Interest Money not a Condition of Bescission.—A party rescinding a contract is not bound to restore that which in any event he would be entitled to retain^ and as plaintiff is entitled to a return of the whole money loaned, with interest, he could not be required to tender the interest paid, whether he does or does not succeed in the action.</p> <p>Id.—New Party—Statute of Limitations—Supplemental Complaint not Defeating Bar.—The statute of limitations runs in favor of the new party brought in by the supplemental complaint to the date of its filing, and where it was filed more than four years after the date of the purchase, and there is nothing in the supplemental complaint to show that a notice of Us pendens was filed, or to defeat the bar of the statute, a judgment in his favor under a plea of the statute will be affirmed.</p>

<p>Action for Conversion—Conditional Sale—Evidence—Question for Jury—Support of Verdict.—In an action for the conversion of cattle sold under execution against the party in possession thereof, where there was evidence tending to show that the possessor agreed to feed them, and,to pay for them, if he took them, and that it was agreed that title should remain in the plaintiff until they were paid for, the question whether the sale was conditional or absolute was for the jury, and the evidence is sufficient to support "a verdict for the plaintiff.</p> <p>Id.—Instructions not Misleading.—Where the only controversy at the trial related to the question of fact whether there was a condition that the title should not pass until the price was paid or secured, and the court properly instructed the jury upon that question as to the law of conditional sale, and of absolute sale, according as they should find from the evidence what was the agreement of the parties, it must be assumed that other parts of the instructions relative to a “conditional sale” were intended by the court and understood by the jury as referring to the chief subject of dispute, and not to have been too general or misleading.</p> <p>Id.—Policy of Law as to Secret Liens—Inapplicable Instruction. —Where there was no evidence in reference to secret liens either by way of pledge or mortgage, an instruction as to the policy of the law on that subject was properly rejected as inapplicable and misleading.</p> <p>Id.—Instruction Included in Charge.—Where portions of the instruction refused might properly have been given if severed from the inapplicable part, but such portion was substantially included in the charge, there was no prejudice in refusing the whole of the instruction.</p> <p>Id.—Maintenance of Action by Foreign Corporation—Filing of Articles.—Where the plaintiff in the action for conversion was a foreign corporation which had not prior to the commencement of the action filed its articles of incorporation with the secretary of state, it is not precluded from maintaining the action, where it complied with such condition prior tó the filing of an amended complaint.</p>

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

<p>Mining Claim—Certificate of Purchase—Cancellation not Retroactive—Annual Work.—Where the owner of a mining claim, after having applied for a patent, has obtained a certificate of purchase, he is not required to perform any annual work, and the claim is not subject to relocation so long as the certificate remains uneaneeled, and the secretary of the interior has no power to make the cancellation of it retroactive.</p> <p>Id.—Mistake of Government Officers—Protection of Bona Pide Claimants.—Where the bona fide mining claimants had done all in their power to do, and had furnished an accurate survey with their application for a patent, and by error or mistake of the government officers, the notice was defectively published, and the certificate of purchase was canceled for such defect, upon application of a subsequent locator, without notice to such claimants, by the secretary of the interior, as of the date of such defective publication of notice, a court of equity will protect such claimants, and limit the cancellation to the date of the secretary’s order.</p>

<p>APPLICATIONS for Writs of Habeas Corpus to the Chief -of Police of the City and County of San Francisco. ></p>

<p>APPLICATION for Writ of Habeas Corpus to the Chief of Police of the City and County of San Francisco.</p> <p>The facts are similar to those stated in Ex parte Drexel and Ex parte Holland, ante, p. 763.</p>

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

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