Volume 148 — California Reports

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

<p>Guaranty op Note and Mortgage—Statute op Limitations.—The liability of the guarantors of a note secured by mortgage accrues at the maturity of the note, regardless of the exhaustion of the mortgage security, and is barred within four years thereafter, in the absence óf a showing of sufficient facts to take the ease out of the operation of the statute.</p> <p>Id.—Extension op Time—Bequest by Principal—Promise by Guarantors—Absence op Acceptance.—A mere written request by the principal debtor for an extension of time for the payment of the note for one year, accompanied by a written promise by the guarantors to pay the note at the expiration of the year, cannot alone operate to save the demand from the bar of the statute, where there is no proof of any written or oral acceptance or agreement for the extension requested.</p> <p>Id.—Conditional Promise.—The promise by the guarantors to pay the note without fail at the expiration of the year’s time requested was conditioned upon the aeeeptanee of such proposal for an extension of time, and was enforceable only in the event of such acceptance.</p> <p>Id.—Part Payment — Personal Note op Guarantors — Pleading— Time not Extended por Besidue.—The part payment of the note in suit by final payment or settlement of a personal note for part thereof given by two of the guarantors for a limited period of four months for the purpose of negotiation does not. tend to show an extension of time of the entire indebtedness for the period of one year, as alleged in the complaint, there being no plea therein of an extension thereof for four months, and no proof of such extension; nor could such personal note or payment thereof operate to extend the time of payment of the residue of the original note.</p> <p>Id.—Effect of Forbearance—Finding.—The mere forbearance by the mortgagee to foreclose the mortgage on his accrued cause of action, without anything to compel the conclusion of an agreement to forbear suit for any time, cannot overcome a finding that there was no agreement for the year’s extension alleged.</p> <p>Id.—Evidence—Immaterial Question.—It was not error to rule out an immaterial question which was not such as to call for any competent evidence material to the issues being tried.</p> <p>Id.—Ruling without Prejudice—Assignment to Appellant—Finding for Appellant.—The ruling of the court in admitting certain testimony on the question of the assignment of the indebtedness to the plaintiff appealing is without prejudice where the court found in favor of the plaintiff upon that issue.</p>

<p>Election Contest—Annulment of Election—Appeal—Construction of Code—1 ‘ Commission ’’—Void “Certificate” of County Officer.—Under section 1127 of the Code of Civil Procedure, relative to the contest of elections, providing that “Whenever an election is annulled or set aside by the judgment of the superior court, and no appeal has been taken within ten days thereafter, the commission, if any has issued, is void and the office vacant,” the word “commission” includes a “certificate of election” issued by the clerk of a county under seal of the superior court, as evidence of title to office, upon the declaration of election of a county officer made by the board of supervisors sitting as a canvassing board; and upon failure of the county officer holding such certificate to appeal within ten days after annulment of his election his certificate of election is finally invalidated and annulled as evidence of title to the office.</p> <p>Id.—Title to Salary—Mandamus to Auditor—Subsequent Appeal.— After such failure, notwithstanding a subsequent appeal by the incumbent of the county office, no warrant can be drawn for any part of his salary until the contest has been finally determined; and mandamus will not lie to compel the auditor to draw a warrant therefor pending such appeal. Under section 936 of the Political Code an incumbent must hold a valid and subsisting certificate of ■ election to be entitled to salary within the exception stated therein.</p> <p>Id.—Effect of Appeal—Existing Status.—An appeal only operates at most, in the absence of express provision to the contrary, to preserve the status existing at the time of the appeal.</p>

APPEALS by several parties from a judgment of the Superior Court of Tulare County and from orders denying a new trial. W. B. Wallace, Judge. The -facts are stated in the opinion of the court. Stanton L. Carter, Maurice E. Power, Samuel Rosenheim, and E. T. Gosper, for Appellants. Charles G. Lamberson, Roth & McFadzean, Hudson & Prior, Dixon L. Phillips, and H. P. Brown, for Respondents.

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

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

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

<p>Criminal Law—Murder—Evidence—Visits to House op Prostitution —Harmless Buling — Motive. — Upon a prosecution for murder committed in a house of prostitution, where it was proved without objection that defendant was a frequenter of the house, an associate of the woman keeping it, had been ordered out of the house for disturbance therein, was jealous of other male associates of such woman, including the deceased, and had made threats against them, and had killed the deceased through jealousy, he could not be prejudiced by evidence of the number of times he had visited the house within the year preceding the trial. Such evidence was admissible, in view of the facts shown, as bearing upon the motive for the crime, regardless of the fact that it incidentally and indirectly touched upon the chastity of the defendant.</p> <p>Id.—Deeense op Insanity-—-Testimony to Sanity—Applicability op Seasons—Cross-Examination.—Where the defense was insanity, and a witness had testified without objection on cross-examination that he thought defendant, as he sat in the courtroom, capable of distinguishing right from wrong, and gave his reasons therefor, his whole testimony is to be taken together, and the reasons remaining in evidence are equally applicable to his further testimony on cross-examination that he thought defendant then capable of distinguishing right from wrong, and the court properly refused to strike it out, over an objection thereto, as not being proper cross-examination.</p> <p>Id.—Flight op Dependant — Instruction — Questions por Jury.— Where the defendant in fact fled from the scene of the homicide, it was proper to instruct the jury "that the flight of a person suspected of crime is a circumstance to be weighed by the jury, as tending in some degree to prove a consciousness of guilt, and is entitled to more or less weight according to the circumstances of the particular case.” Such instruction is not rendered inapplicable because of the defense of insanity, or because of defendant's declaration that he fled for fear of mob violence; it being for the jury to determine whether he was insane, and what was the motive of his flight.</p> <p>Id.—Flight from Mob—Self-Serving Declaration—Absence of Mob. —Though flight from a mob raises no presumption of guilt, yet the defendant cannot, by a self-serving declaration, establish that he fled because he feared mob violence, where no mob in fact existed, and it does not appear that he was fleeing from the vengeance of a mob.</p>

APPLICATION in the Supreme Court for Mandamus to the Superior Court of Sacramento County. The facts are stated in the opinion of the court. U. S. Webb, Attorney-General, and L. T. Hatfield, for Petitioner.

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

<p>Lien foe Pasturing Stock — Construction of Code — General Business.—Section 3051 of the Civil Code expressly and unconditionally gives a lien for pasturing stock, dependent upon possession. It is not necessary to the enforcement of such lien that the plaintiff should be engaged in the general business of pasturing stock.</p> <p>Id.-—Demand for Sum: Due—Refusal — Continued Pasturage — Enforcement of Lien.—Where, at a specified time before suit, a certain sum was due to plaintiff for pasturing the defendant’s horses, and the defendant then refused a demand of plaintiff that he pay said sum and remove the horses, the plaintiff was compelled to retain the possession of the horses and continue to furnish them with pasturage or lose his lien. It is sufficient that he commenced his action to enforce the lien within a reasonable time thereafter, and the court found the value of the continued pasturage.</p> <p>Id. — Tender by Defendant after Suit — Insufficient Cross-Complaint.—A cross-complaint of the defendant averring a tender after suit of the same sum which defendant refused to pay before suit, and claiming damages for refusal of plaintiff to accept such tender, which does not aver that the sum so tendered was the full amount then due, does not state a cause of action in favor of the defendant, and a demurrer thereto was properly sustained.</p>

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

<p>PETITION in Supreme Court for Writ of Mandate against E. P. Colgan, Controller of State.</p> <p>The facts are stated in the opinion of the court</p>

<p>Sea-Going Vessel—Place of Taxation—“Home Port”—¡Registration.—A sea-going vessel engaged in foreign or interstate commerce, though constructed in the state of Washington and temporarily registered there, which has San Francisco as her “home port,” as defined in section 4141 of the United States Revised Statutes, by reason of her ownership by several owners, and the usual residence of her managing owner at San Francisco, is deemed to be at her “home port” in San Francisco, for the purposes of taxation, regardless of her physical absence therefrom or of the fact that she has never been in the waters of the “home port,’* nor permanently registered thereat, as provided in that section.</p> <p>Id.—Residence of Owners—Interest of Managing Owner.—Where a sea-going vessel has several owners only the usual residence of the managing owner determines the “home port,” and the residence of the other owners, and the amount of the interest of the managing owner in the vessel, are immaterial.</p>

<p>Contract to Sell Oil—Implied Covenant to Purchase.—Where a written contract, signed by both parties, required the plaintiff to seE and deEver to the defendant aE of the oE to be used for fuel at the works of the defendant, in quantities and at a price specified, and requiring all oil delivered to be paid for on or before the 28th of each month for aE deUveries during the preceding month at the price specified, there is an impEed covenant on the part of the defendant to purchase such oE.</p> <p>Id.—Action for Breach—Pleading and Proof—Findings.—Where the plaintiff aEeged breach of a contract whereby the plaintiff agreed to sell and deEver to defendant, and defendant agreed to receive and pay for the oE in question, and defendant whEe denying such contract set up the written contract in fuff containing the impEed covenant to receive and pay for the oil, the plaintiff was not required to prove the averment of the agreement by the defendant, and it is sufficient that the findings set out the contract in fuE as pleaded by the defendant, though no finding was required upon the admission of the answer.</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>Arthur J. Thatcher, J. T. Carey, and John H. Marble, for Appellant.</p>

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

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

<p>The facts are stated in the opinion of the court.</p> <p>W. S. Goodfellow, Goodfellow &' Bells, Charles F. Gardiner, and D. E. Alexander, for Appellant.</p>

<p>Contempt—Jurisdiction—Certiorari.—A judgment of conviction of contempt of court is subject to review upon certiorari only upon the point of jurisdiction; but the jurisdiction of the court in a contempt proceeding is strictly limited, and its judgment will be held invalid unless the record of conviction shows upon its face that the matter charged was within its jurisdiction.</p> <p>Id.—Criticising Grand Jury in Newspaper—Publication by Corporation—Insufficient Affidavit against Officers.—Where the alleged contempt consisted of acts not done in the presenc’e of the court, by publication of articles in a newspaper published by a corporation criticising the proceedings of the grand jury in respect of matters then under investigation, an affidavit merely stating that one of the defendants was the president and general manager of the corporation, and that the other defendant was its vice-president and assistant general manager, without charging that they personally caused, or being in control permitted, the publication of the articles, is insufficient to connect them with the publication, or to sustain a judgment of conviction against them, and the judgment will be annulled upon certiorari.</p>

PETITION for Writ of Prohibition against the Police Court of the City and County of San Francisco. A. J. Fritz, Judge. The facts are stated in the opinion of the court.

<p>PETITION for Writ of Prohibition to a Judge of the Superior Court of the City and County of San Francisco. J. Y. Coffey, 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—Former Decision—Sufficiency of Findings—Law of Case. —Where upon a former appeal a judgment for the defendant was reversed, and judgment ordered for the plaintiff upon the findings, the sufficiency of the findings to support the judgment so ordered is the law of the case upon a second appeal from the judgment entered as ordered.</p> <p>Id.—Lien of Street Assessment—Foreclosure—Failure to Perform Contract—Appeal to Council—Conclusive Adjudication.—In an action to foreclose the lien of a street assessment a finding that plaintiff had failed to perform his contract is immaterial, in view of the law requiring an appeal to the city council, and a finding that such an appeal had been taken, and the objections of the owner thereto overruled. The decision of the council upon such appeal was conclusive upon the owner.</p> <p>Id.—Eight of Appeal from Judgment Ordered by this Court.—The party against whom judgment is ordered by this court to be entered upon reversal of a former judgment in his favor, has the right to appeal from the judgment so entered, and may correct any error in its entry, and may also present exceptions taken by him upon the trial of the action, but cannot have reviewed any matter which has become the law of the case.</p>

<p>Homestead—Selection by Husband and Wipe—Wife’s Bight of Survivorship.—Where both husband and wife declared a homestead, whether upon community or separate property, if it is not abandoned by the concurrent act of both parties in conformity to law, the homestead vests absolutely in the surviving wife upon the death of her husband.</p> <p>Id.—Deed of Husband to Wife—Trust for Husband’s Brother— Title by Survivorship not Affected.—The husband could not affect the wife’s right of survivorship by conveying the homestead ' to her upon her promise that after she was through with it it should be given to his brother. Upon the death of the husband such deed added nothing to her title by survivorship, and. she held nothing under the deed.</p> <p>Id.—Constructive Trust—Questions Behoved.—Although at the date of the husband’s deed to the wife it was a sufficient consideration for the promise of the wife, yet, subsequent to the death of the hus- . band, the wife had no property which could be the subject of a constructive trust, and all questions relating thereto were removed from the case.</p> <p>Id.—Express Trust.—No express trust could be created in the homestead property while both parties were living, in favor of a third party, except by a single written instrument executed and acknowledged personally by both husband and wife.</p> <p>Id.—Letter of Widow after Death of Husband—Absence of Consideration—Voluntary Trust not Created.—A letter written by the widow, after the death of her husband, not resting upon any new consideration, but merely in acknowledgment of the promise made to her husband in his lifetime, whatever effect it might have as evidence of a constructive trust, could not operate to create a voluntary trust under section 2222 of the Civil Code.</p>

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

<p>Homestead upon Community Property—Insufficient Declaration by Wife.—A declaration of homestead by the wife alone upon the community property, which fails to state, as required in section 1263 of the Civil Code, ‘ ‘ that her husband has not made such declaration, and that she therefore makes the declaration for their joint benefit,” is fatally defective and invalid.</p> <p>Id.—Thousand-Dollar Homestead—Construction of Code.—The defective declaration by the wife cannot have the effect to create a thousand-dollar homestead under sections 1266-1269 of the Civil Code, the provisions of which relate solely to persons other than a husband, or wife, or head of a family.</p> <p>Id.—Petition to Determine Bight to Homestead—Insufficient Notice—Want of Jurisdiction.—Where the wife filed a petition under section 1723 of the Code of Civil Procedure for a decree determining that the alleged homestead vested in her upon the death of her husband, the mere posting of a copy of an order fixing the time and place of hearing, without notice addressed to any person or class of persons, was insufficient to give the court jurisdiction to hear the proceeding or render a decree therein.</p> <p>Id.—Construction of Code—Object of Proceeding—Death of Party. —Section 1723 of the Code of Civil Procedure is only intended to have it determined that a party is dead, upon whose death the asserted right depends, and not to have the validity of' the right conclusively adjudicated.</p>

<p>Action—Negligence in Service of Summons—Dismissal for Want of Prosecution—Discretion.—Where it appeared that after filing the complaint and issuing the summons in an action no attempt was made to serve it for more than a year, though defendant was a resident of the city where suit was brought, and Ms place of residence was in the city directory, and the summons was not served until a year and four months after commencement of the action, there was no abuse of discretion in dismissing the action for want of prosecution.</p>

<p>Estates of Deceased Persons—Distribution under Will—Identity of Residuary Devisee — Finding—Conflicting Evidence.—Where the will of the decedent made his sister by name, if living at his death, residuary devisee, and otherwise made other disposition of the residue, and the court in making distribution .under the will found upon conflicting evidence that a person claiming to be his living sister was not his sister, the finding against her will not be disturbed upon her appeal.</p> <p>Id.—Reopening Case after Submission—-New Trial—Newly Discovered Evidence—Cumulative Evidence.—It was not an abuse of discretion to refuse to allow the claimant to reopen the case after submission for further evidence, or to refuse a motion for a new trial for the same evidence as newly discovered, where the proposed evidence was merely cumulative, and it appears that its admission would not have affected the result.</p> <p>Id.—-Findings for Respondent—Appellant not Interested.—Where it appears under the findings that appellant is not the sister named in the will, she has no interest to object to the sufficiency of the findings for the respondents, or of the evidence to sustain a finding that the sister named in the will had died before the death of the testator.</p>

PETITION for Writ of Mandate against the Board of Election Commissioners of the City and County of San Francisco. The facts are stated in the opinion of the court.

MOTION to vacate a judgment of the Supreme Court, the decision upon which is reported in 114 Cal. 635, [46 Pae. 742], The facts are stated in the opinion of the court.

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

<p>Trust Created by Will—Construction in Favor of Validity—Intention of Testator.—Where a trust is created by will, a liberal construction should be given to its terms, with a view to sustaining the intention of the testator, which is the matter for primary consideration. No particular form of expression is necessary to make the trust valid; and it is sufficient that, from the language used, the intention of the testator is apparent, and that the disposition in trust which he endeavors to make is consistent with the rules of law. A construction of the will in favor of testacy will obtain when the language reasonably admits of it; and it will not be held to contain a void trust unless its invalidity is beyond question, and the will cannot be reasonably construed otherwise.</p> <p>Id.—Trust to "Manage” Property—Power Implied.—Although section 857 of the Civil Code does not mention the word "manage” in connection with the trusts therein authorized, yet it is the duty of the trustee to hold the trust property and administer it; and where, if the trust provision had said nothing about managing the property, the power of the trustees to manage it for the purpose of carrying out the valid provisions of the trust would be necessarily implied, no provision of section 857 was violated in expressly conferring it.</p> <p>Id.—Monthly Payments to Wife and Daughter-—Construction of Trust—Payments out of Income.—In determining whether stated monthly payments to the wife and daughter of the testator were to be paid by the trustees out of income only, and not out of the corpus of the estate, resort should be had to all the provisions of the trust bearing thereon, and where they show an anticipated excess of income over such payments and clearly indicate the intention of the testator that the property should be so invested in income-paying seeureties that the wishes of the testator may be carried out for the maintenance and protection of the wife and daughter, it is his manifest intention that the payments to them should be made from the income only.</p> <p>Id.—Division of-Residue of Trust Estate—-Duty not Imposed upon Trustees—Devise to Beneficiaries.—Where the will imposed no duty upon the trustees to divide the trust estate after the termination of the trust upon the death of his wife, and provided that one half of the remainder should "vest absolutely in his daughter,” and that the remaining one half should "vest absolutely” in certain relatives named, and to meet the contingency of the daughter dying before the wife without issue provided that in such case the "whole residue of the estate shall be divided” among certain relatives, the use of the word "divided” in such connection is not inconsistent with an intention to devise the property to the substituted beneficiaries, but is designed rather to express such intention in view of the other absolute devises.</p> <p>Id.—Incidental Trusts not Affecting Validity of Primary Trust.— Without determining whether the trust to apply the excess of income in the improvement of unimproved property or to invest it in income-producing properties is or is not valid, it is no part of the primary trust involved on this appeal, but is wholly separable therefrom, and cannot in any event affect its validity.</p>

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

<p>Criminal Law—Murder in First Degree—Deliberate Purpose to Kill—Inference by Jury—Evidence.—In order to sustain a verdict of murder in the first degree, it is not necessary, where the killing is not denied, that there should be express evidence of a deliberate purpose on the part of the defendant to kill. Such deliberate purpose may be inferred by the jury from proof of such facts and circumstances in the case as would reasonably warrant an inference of its existence; and the making of such inference is exclusively within the province of the jury.</p> <p>Id.—Photographs of Locality of Homicide.—On a trial for murder photographs of the locality of the homicide, which disclosed upon their face the presence of certain objects placed on the ground by one of the witnesses at the time the photographs were being taken to indicate where the body of the deceased and other physical objects were located when the scene of the homicide was first visited by him, after being properly identified as being correct, are admissible in evidence as diagrams of the locality.</p>

<p>Practice—Error in Computation—Correction by Judge.—The trial court has the power of its own motion to correct a mere error in computation appearing upon the face of the record in the findings and conclusions of law without vacating the judgment and entering a new one.</p> <p>Open Account—Interest—Ascertainment op Balance.—In an action on an open account to recover the value of services rendered and of goods sold, in which the defendant controverts liability for the demand and also the value and amount thereof, and the plaintiff recovers for less than the amount sued for, the plaintiff, under section 1917 of the Civil Code, is only entitled to recover interest from the day on which the balance is ascertained, and is not entitled to interest from the time of the commencement of the action.</p>

<p>Negligence—Storekeeper—Handling Goods—Jury.—Where a person who is upon the premises of a storekeeper by invitation for the purpose of business, and while in a private passageway thereof is injured by goods thrown from above by an employee of the defendant, the question is for the jury to determine, under the evidence, whether the defendant in handling the goods failed to exercise the degree of care which the court, by its instructions, demanded.</p> <p>Id.—Degree of Care.—When any degree of care is required in the performance of an act, what constitutes the exercise of that particular degree always has relation to the nature of the act itself.</p> <p>Jury—Bias of Juror—Appeal.—Where a juror upon his voir dire makes somewhat conflicting statements as to his attitude, and there is sufficient conflict to warrant a ruling by the court either accepting or rejecting the juror, his acceptance is not ground for reversal on appeal.</p> <p>Negligence — Personal Injury — Attendance to Business — Evidence.—In an action to recover damages for personal injuries, where the evidence of the plaintiff is to the effect that because of his injuries he had been incapacitated from attending to his business, the defendant may introduce evidence to show that the plaintiff’s business continued, that it was of considerable volume, and that he regularly attended to it after the injury.</p>

The facts are stated in the opinion of the court. Further, facts are stated in the opinion of the court in 144 Cal. 677, [78 Pac. 260].

<p>Fire Insurance—Construction or Policy against Forfeiture.—Conditions in a policy of fire insurance which provide for a forfeiture of the interest of the assured or those claiming under the policy are to be strictly construed against the insurance company; and if there is any ambiguity in the policy which may be reasonably solved by either one of two constructions, that interpretation is to be adopted which is most favorable to the assured, or to a mortgagee or beneficiary under a deed of trust, to whom the loss is payable, as his interest may appear.</p> <p>Id.—Effect of Mortgage Clause—Conditions not Attached to Interest.—Where the policy provided that “If, with the consent of this company, an interest under this policy shall exist in favor of a mortgagee or of any person or corporation having an interest in the subject of insurance other than the interest of the insured as described herein, the conditions hereinbefore contained shall apply in such conditions of insurance relating to such interest as shall be written upon, attached, or appended hereto,” such provision was intended to have the effect of preventing the conditions previously mentioned in the policy from applying to such interest unless the conditions should be again written upon, attached, or appended to the policy, as applicable to such interest, .and the interest of the mortgagee is free from all conditions not so attached.</p> <p>Id.—Construction of Code.—The rule declared in section 2541 of the Civil Code, as respects the avoiding of the policy as against the mortgagee or creditor by the act of the owner avoiding it as to himself, was not intended to and does not apply to policies which are not silent on the subject, but themselves provide to what extent their conditions shall apply to the interest of the mortgagee when created.</p> <p>Id.—Forfeiture by Owner not Affecting Interest of Mortgagee.— The forfeiture of the policy by the owner, by reason of the assignment of his interest without the consent of the insurance company, cannot affect the interest of the mortgagee or holder of a deed of trust when not expressly made applicable to such interest by conditions of the policy attached thereto.</p>

<p>APPLICATION for a writ of Habeas Corpus.</p> <p>The facts are stated in the opinion of the court.</p>

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

<p>Divorce—Extreme Cruelty—Corroborative Evidence.—-In an action for a divorce on the ground of extreme cruelty consisting of successive acts of ill-treatment, it is not necessary, in order to sustain a judgment for the plaintiff, that there should be direct testimony . of other witnesses to every act sworn to by the plaintiff; it is sufficient corroboration if a considerable number of important and material facts are so testified to by other witnesses, or there is other evidence, circumstantial or direct, which strongly tends to strengthen and confirm the statements of the plaintiff. The main purpose of section 130 of the Civil Code is to prevent collusion; and this is so, although the truth of the statements of the plaintiff and his witnesses upon which the findings are based are denied by the defendant.</p> <p>Id.—Grievous Mental Suffering.—Under section 94 of the Civil Code, defining extreme cruelty, it is not necessary that there should be the infliction of bodily injury. A course of conduct which entails grievous mental suffering alone is sufficient, and whether in any case the course of conduct complained of constitutes ‘ ‘ grievous mental suffering” is a question of fact, to be determined from the facts considered in connection with the character, temperament, and disposition of the parties.</p> <p>Id.—Judgment—Findings—Evidence.—A judgment granting a divorce, based on findings of extreme cruelty and desertion, will not be reversed for the insufficiency of the evidence to sustain the finding as to desertion if the finding as to extreme cruelty is sustained.</p> <p>Id.—Immaterial Exclusion of Evidence.—In an action for divorce on the ground of extreme cruelty, the sustaining of an objection to a general question asked of a witness for the defendant, if he knew of his own knowledge what treatment was accorded the defendant by the plaintiff, is immaterial and does not warrant a reversal of a judgment for the plaintiff if the defendant did not set up in her answer any extreme cruelty on the part of the plaintiff towards her, or other marital misconduct, which, under section 122 of the Civil Code, she might have done by way of recrimination, and to defeat the claim of plaintiff for a divorce.</p>

<p>Poll-Tax—State Tax.—The state poll-tax authorized to be levied and collected by the legislature under section 12 of article XIII of the constitution, and which is required to be paid when collected into the state school fund, is a state tax.</p> <p>Counties—Judicial Notice op Classification.-—The courts will take judicial notice that Alameda County is a county of the third class, as classified by the County Government Act of 1897 (Stats. 1897, p. 452, c. 277), for the purpose of regulating the compensation of county officers.</p> <p>County Government Act of 1897—Counties of Third Class—Assessor’s Bight to. Percentage.—Subdivision 7 of section 160 of the County Government Act of 1897, providing that in counties of the third class “ the assessor shall receive no commission for his collection of taxes on personal property, . . . nor any eom.pensation ox commission for the collection of poll-taxes or road poll-taxes,” and section 215 of the same act, providing that “the salaries and fees provided in this act shall be in full compensation for all services of every kind and description rendered by the officers named; . . . provided, . . . the assessor shall be entitled to receive and retain for Ms own use six per cent on personal property tax collected by Mm . . . and fifteen per cent of all amounts collected by Mm for poll-taxes, and also five dollars per hundred names returned by Mm as subject to military duty; . . . provided, however, that in counties and cities and counties of the first, second, and third classes the assessor shall receive no commission for the collection of taxes on personal property, nor shall such assessor receive any compensation for making out a military roll of persons returned by him as subject to military duty,” are irreconcilably conflicting-in respect to the right of the assessor of counties of the third class to retain a percentage of the poll-taxes collected by him, and therefore the provisions of section 215 of the act being the latest in point of position, and the last expression of legislative intent upon the subject, must prevail.</p>

<p>Corporations — Filing Copt op Articles op Incorporation — Eight to Maintain Action.—A corporation whose original certificate of incorporation was properly filed in the county in which its principal place of business is situated prior to the enactment of section 299 of the Civil Code may subsequently maintain an action to quiet its title to land acquired by it before that date, without filing in such county a certified copy of the copy of its articles of incorporation filed with the secretary of state.</p>

<p>Receiver—Appointment.—A .party to an action should not, against his will, be subjected to the onerous expense of a receiver, except where one may be lawfully appointed and his appointment is obviously necessary to the protection of the opposite party.</p> <p>Id.—Death op Receiver.—After judgment rendered in favor of the plaintiff, the mere fact that a receiver appointed before the judgment at the request of the plaintiff has died will not warrant the appointment of another receiver at the request of the defendant.</p>

<p>Statutes — Penalties — Construction. — Statutory penalties are not favored, and a reasonable interpretation of a statute which avoids a penalty will be preferred to one even equally reasonable which . exacts it.</p> <p>Id.—Corporations—State License Tax—Act op March 20, 1905— Delinquency—Penalty.—Under the act of March 20, 1905, providing for the payment by all corporations of the state of a certain annual license tax to the secretary of state between the first Monday in July and the first Monday in August of each year, that any corporation failing to pay the tax shall, because of such failure, forfeit its charter, and that it shall be the duty of the secretary of state, on the first Monday in October in each year, to report to the governor of the state a list of all delinquent corporations, who shall forthwith issue his proclamation declaring that the charters of such corporations will be forfeited unless payment of the tax is made within sixty days from the date of said proclamation, together with a penalty of five dollars in addition thereto, although the license tax becomes delinquent for failure to pay by the first Monday in August of each year, the penalty for such delinquency does not attach until the list is turned over to the governor and he has issued his proclamation thereon.</p>

<p>State School Lands—Canceling Certificate of Purchase—-Default Judgment—Publication of Summons.-—A judgment by default, based upon a service of summons by publication, canceling a certificate of purchase for certain state school lands, and foreclosing the holders' rights thereunder in such lands on account of nonpayment of the interest on the balance of the purchase price, held not to be void on its face for failure of the affidavit for publication of summons to state facts sufficient to give the court jurisdiction to order service by publication, on the authority of Bue v. Quinn, 137 Cal. 651, [66 Pac. 216, 70 Pac. 732]; Weis v. Gain, (Cal.) [73 Pac. 980]; People v. Norris, 144 Cal. 422, [77 Pac. 998]; People v. Mason, 144 Cal. 770, [78 Pac. 1113], and Sharp v. Salisbury, 144 Cal. 721, [78 Pac. 282],</p> <p>Id.—Falsity of Affidavit for ' Publication—Pleading.—A complaint to annul such judgment of foreclosure for the reason that it was obtained by fraud on a false affidavit for publication of summons, is insufficient unless the specific allegations of specific facts contained in the affidavit are controverted by its allegations.</p>

<p>PETITION to the Superior Court for discharge on Writ of Habeas Corpus.</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>State Lands—Cancellation op Certificate op Purchase—Publication of Summons.—An affidavit for publication of summons and an order of publication in an action by the state to foreclose the rights of a purchaser of state lands unsuitable for cultivation, and to vacate the certificate of purchase on account of the default of the purchaser to make payments of'interest, held sufficient on the authority of Cargile v. Silsbee, ante, p. 259, and other cases cited</p> <p>Id.—Citizenship op Prior Purchaser—Evidence.—In an action by a subsequent purchaser of such land to quiet his title against the person whose prior right of purchase had been foreclosed, it is not error to refuse to allow evidence as to the citizenship of the prior purchaser.</p> <p>Id.—Quieting Title — Piling Judgment op Foreclosure — Presumption.—In such action to quiet title, where no issue was raised by the answer as to whether the district attorney, within twenty days after the entry of judgment in the foreclosure suit filed in the office of the register and in the recorder's office of the county in which the land is situated, certified copies of the judgment, as required by section 3550 of the Political Code, it will be concluded in accordance with the presumption that official duty has been regularly performed, that the filings were properly made.</p> <p>Id.—Pleading—Surrender op Title—-Non-Payment op Interest.—In the action to compel a surrender and cancellation of the prior certificate of purchase a complaint is sufficient, under section 3570 of the Political Code, which alleges that the defendant is the lawful holder and owner of the certificate of purchase, and has not paid the interest, without an averment that the defendant had surrendered or abandoned the title.</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>

APPEAL by plaintiff from an order of the Superior Court of the City and County of San Francisco granting a new trial of certain issues to defendant, and by defendant from an order refusing a new trial of other issues. J. M. Seawell, Judge. The facts are stated in the opinion of the court.

<p>Criminal Law—Open and Notorious Adultery—Secret Adultery.— Under the act of 1871-1872, page 381, chapter 276, in order to sustain a conviction of living “in a state of open and notorious cohabitation and adultery,” the adulterous relation must be shown to have been notorious. If such relationship is kept secret, even if it be continuous, the crime is not established.</p>

<p>Corporation—Conversion—Refusal to Transfer Stock—Purchase by Pledgee at Delinquent Sale.—Where a pledgee of the stock of a corporation buys it in at a delinquent assessment sale at much less than its real value, in pursuance of a verbal agreement then made with the officers of the corporation that if permitted so to purchase it without competition in bidding at the sale, he would continue to hold the stock as collateral security and would account for the proceeds of any sale thereof to the pledgor, the corporation constitutes itself a trustee for the purpose of seeing that the proceeds of a sale of the stock are properly applied, and is not liable as for a conversion in refusing to transfer the stock on its books in pursuance of a sale made in contravention of the terms of such agreement; and in an action against the corporation for a conversion in refusing to transfer the stock, evidence of the terms of such agreement is admissable.</p>

<p>Street Assessment—Resolution of Intention—Reference to Specifications.—A resolution of intention to construct a public sewer may be aided by reference to the plans and specifications, notwithstanding they are not physically annexed to it.</p> <p>Id.—Adoption of Specifications.—:The specifications for a public sewer need not be created by ordinance, but may be created by resolution.</p> <p>Id.—Omission of Benefited Property.—The whole assessment for a public sewer is not invalidated by reason of the omission from the assessment of benefited property, nor because the assessment district embraced only lots fronting on the sewers.</p> <p>Id.—Estimate by Engineer.—Unless required by the city council, the engineer need not furnish an estimate of the contemplated improvement.</p>

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

<p>Taxation—Franchise or Water Company—Situation.—The franchise of a water company, exercised under section 19 of article XI of the constitution, of using the streets and thoroughfares of a municipality in laying down pipes and conduits therein, and supplying such city and its inhabitants with water, and charging rates therefor, can be assessed for taxation only in the county where it is locally situated.</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 an appeal from a portion of a judgment of the Superior Court of the City and County of San Francisco. J. M. Seawell, Judge. The facts are stated in the opinion of the court. Edward Mills Adams, and Charles W. Slack, for Appellant.

<p>Injunction — Bestraining Criminal Proceedings — House-Moving — Interference with Electric Lines.—Persons engaged in the business of house-movers in a city under permits from the municipal authorities to move houses over and upon its public streets cannot obtain an injunction against the owners of electric-light or power lines properly maintained on such streets, and which are interfered with by them in the course of their business, nor against the police officers or courts of the municipality restraining them from instituting or maintaining criminal proceedings against the plaintiffs on account of such interference, under section 593 of the Penal Code, notwithstanding the plaintiffs allege that their acts are neither unlawful nor malicious.</p> <p>Id._Equity Jurisdiction—Multiplicity of Suits.—Courts of equity have no jurisdiction, either on the ground that it will prevent a multiplicity of actions or that it will prevent an injurious interference with plaintiff's business, to proceed to investigate as to the truth of criminal charges that have been or may be preferred against him, to hear the evidence in regard to his guilt or innocence, to determine in advance of the decision of the lawfully constituted criminal courts the question of his guilt or innocence of pending charges and his probable guilt or innocence of future charges, and, if found in his favor, to forestall the action of the law courts and enjoin the enforcement of a constitutional and valid law against him on the sole ground that there is not, and never will be, sufficient evidence of his guilt.</p>

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

<p>School Law—Bonds op City School District—Power op City under Charter not Exclusive.—A city school district comprising the territory of the city and certain contiguous outlying lands is a distinct corporate entity of quasi-municipal character, which is not lost or merged in that of the city; and authority given to the city by its charter to issue bonds for the erection of a sehoolhouse within the city limits as a “municipal affair’’ is not exclusive, and cannot affeet the separate and independent power conferred upon the board of trustees of the school district under the general school system of the state to provide, in pursuance of sections 1880 to 1887 of the Political Code, for the issuance of its bonds for the same purpose by the board of supervisors of the county at the instance of the school district.</p>

<p>Public Schools — Apportionment op School Fund — Average Daily Attendance — Primary and Grammar Schools. — Section 6 of article IX of the constitution, declaring that “the entire revenue derived from the state school fund and from the general state school tax shall be applied exclusively to the support of primary and grammar schools,” and the corresponding provisions of sections 1622 and 1861 of the Political Code, require that the superintendent of public instruction, in performing the duty imposed upon him by section 1532 of that code, as amended March 18, 1905, of apportioning the balance of the state school fund to the several counties or cities and counties according to their "average daily attendance," make the apportionment solely in accordance with the ‘ ‘ average daily attendance " upon the primary and grammar schools.</p> <p>Id.—-Common. Schools'—Special Schools.—The provisions of sections 5 and 6 of article IX of the constitution, taken together, contemplate (1) the establishment of a uniform system of "common schools," including solely the primary and' grammar schools, which shall be applicable and mandatory in every school district of the state, as to which all local or special laws are expressly forbidden, and to the support of which the entire revenue derived from the state school fund and the general state school tax shall be exclusively applied; and (2) the establishment, either by the legislature or by municipal or district authority, under statutes authorizing the same, of other schools, such as high and technical schools, which, however, can in no degree be supported from the state school fund, but must obtain their whole support from other sources.</p> <p>Id.—Kindergartens—Maintenance of Is Optional.—The provisions of sections 1617, 1662, and 1663 of the Political Code relative to kindergartens only show an intention on the part of the legislature to - authorize the maintenance by any district at its option of kindergarten classes. The fact that it is entirely optional with any district to maintain such classes is sufficient to exclude them from the uniform and mandatory system of common schools called for by section 5 of article IX of the constitution, and consequently from the term "primary and grammar schools," as these'words are used in section 6 of the same article in relation to the use which may be made of the general state school funds, and relegate them to that portion of the "public school system" which includes schools constituted by municipal or district authority and maintained from other sources.</p> <p>Id.—Attendance on Kindergartens.—The attendance of children upon kindergarten classes established by the educational authorities of a municipality cannot be considered as a part of the "average daily attendance" of the schools of a county for the purposes of_apportionment by the superintendent of public instruction of the state school fund.</p>

<p>Deed—Covenant to Build—Conditions Subsequent.—A provision in a deoil to the effect that it was given by the grantor and accepted by the grantee upon the express agreement of the grantee to build a house upon the granted premises of a specified value within a limited time, and that such agreement was a part of the consideration for the conveyance, creates a mere personal covenant on the part of the grantee, and is not a condition subsequent; and in an action by the grantor for a forfeiture of the grantee’s rights under the deed on account of his failure to comply with such provision, parol evidence is inadmissible to show that a condition subsequent was intended to be created.</p> <p>Id.—Conditions Subsequent not Favored.—Conditions subsequent in a deed are those which in terms operate upon an estate conveyed and render it liable to be defeated for breach of the condition. They are not favored in law, because they tend to destroy estates, and no provision in a deed will be interpreted as a condition subsequent if its language will bear any other reasonable construction.</p>

Opinion upon remittitur from the Supreme Court of the United States reversing the former judgment of this court (140 Cal. 690, [74 Pae. 284]), by which the judgment of the Superior Court was affirmed. The facts are stated in the opinion of the court.

MOTION to dismiss appeal from a judgment of the Superior Court of Santa Barbara County. J. W. Taggart, Judge. The facts are stated in the opinion of the court. Richards & Carrier, James L. Crittenden, and B. F. Thomas, for Appellant. Canfield & Starbuck, and T. Z. Blakeman, for Respondents.

<p>Water-Bights—Decree Fixing Bights in Stream—Title bt Prescription—Findings—Modification of Decree.—In an action to determine the rights of the parties in the waters of a stream, where the decree awarded defendant a prior right to only fifteen eubie feet of water per second, but the findings clearly establish de- . fendant’s title.by prescription to twenty-five cubic feet of water per second superior to any right in plaintiff to any water at all, the decree must be modified accordingly, leaving the adjudged right of plaintiff to fifteen cubic feet per second of water subordinate thereto, and paramount to a subsequent increase in defendant's appropriation.</p>

<p>Criminal Law — Murder — Shooting oe Another Person — Part of Same Transaction.—Where a defendant accused of the murder of one person also shot and killed another person first, as part of the same transaction and from the same motive, so that there could not well be an intelligent statement of the one murder which did not allude to the other, the court did not err in allowing evidence that the defendant shot and killed such other person in addition to killing the one he was accused of murdering.</p> <p>Id.—Instructions—Burden of Proof.—In view of the evidence in the case the court properly instructed the jury as to the rule embodied in section 1105 of the Penal Code respecting the burden of proof resting upon the defendant, where the commission of the homicide is proved, to show circumstances in mitigation, justification, or excuse, etc.</p> <p>Id.—Instruction as to Reasonable Doubt of Killing other Person. —An instruction that the only relation or object in considering the testimony as to the shooting of the other person was to illustrate or establish the intent or motive with which the homicide charged was done, and that before the jury could consider such shooting they must be satisfied beyond a reasonable doubt that defendant shot such other person wilfully, unlawfully, and intentionally, otherwise the testimony on that question should be disregarded, could not be prejudicial to the appellant.</p>

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

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

<p>Action to Quiet Title — Adverse Possession — Statute of Limitations.—In an action to quiet title to a block of land, where it appears that the predecessors of defendant had taken possession thereof under a written instrument nine years before the commencement of the action and had inclosed it with other property held by them with a substantial fence, and that acts of ownership had been exercised over the land by grantees claiming under them, and that defendants are the possessors of lots in the block having houses thereon, and that all taxes had been paid by defendants and their predecessors during the whole period, without interruption of possession by plaintiff prior to the suit, the court properly held that the action was barred by the statute of limitations.</p> <p>Id.—Possession under Claim of Title — Large Inclosure. — Where possession is taken under a claim of title founded upon a written instrument, it is not necessary to make it adverse that a substantial inclosure protecting it should be separately confined to the entire land granted, but the land may be contained in a large inclosure with other lands held by the claimants under claim of title.</p> <p>Id.—Grant of Block—Continuance of Large Inclosure—Possession of Grantors as Agents of Grantee.—Where after four years’ possession, under such large inclosure by the original occupants under claim of title the block granted by the written instrument was deeded to a grantee, and such large inclosure was allowed to continue for another year without further acts of possession by the grantee, there was no interruption of the adverse possession, but the continuance of the large inelosure constituted a possession for the grantee by his grantors as his agents in respect of the block so deeded.</p> <p>Id.—Acts of Possession by Grantee—Prescriptive Title.—Where the grantee commenced work on and about the land, and opened a street on one side thereof, and cleared the land of its incumbent growth, leveled a ditch thereon, and constructed a house upon it, and exercised such acts of possession of the whole block for a period extending more than five years after the possession taken by his grantors, a title by prescription is sufficiently shown in him and his successors in interest.</p>

<p>Appeal prom Judgment—Want op Jurisdiction—Judgment-Boll not' Bbviewable.—This court has no jurisdiction of an appeal from a judgment taken more than six months after its entry; and upon such appeal questions arising upon the judgment-roll cannot be "considered.</p> <p>Appeal from Order Denying New Trial—Sufficiency of Complaint not Beviewable.—The sufficiency of the complaint to support the judgment cannot be reviewed upon an appeal by the defendant from an order denying a new trial; and this principle is equally applicable upon an appeal by the plaintiff from such order where the defendant claims that the judgment should be affirmed because the complaint does not state a cause of action, especially where the alleged defect in the complaint is merely technical and can be remedied by amendment if necessary.</p> <p>Foreclosure of Mortgage—Judgment by Default—Collateral Attack — Service of Summons — Becitals — Presumptions.—Upon collateral attack upon a judgment by default foreclosing a mortgage, where the judgment recites "that defendants have been duly and regularly summoned, ’ ’ and ‘ ‘ that the default of each defendant ■for not answering has been duly and regularly entered,” all presumptions are in favor of the validity of the judgment, and the thing concerning which the record is silent will be presumed to have been properly done.</p> <p>Id.—Affidavit of Service — Venue of Notary — Ambiguity — Proof Presumed.—An affidavit of service of summons which is silent as Jo the venue of the notary will be presumed to have been made in the county for which he was appointed; and where such affidavit .is ambiguous in not showing whether a copy of the complaint and summons was delivered to each defendant at the time of service, it will be presumed that it was supplemented by other satisfactory evidence that each defendant was properly served therewith.</p> <p>Taxation—Deed from State—Becitals—State’s Title from Original Owner not Proved.—Where the state sells and conveys property acquired by deed to it for taxes, the requirement of section 3898 of the Political Code, that the deed of the state to the purchaser’ shall recite "the facts necessary to authorize such sale and conveyance, ’’ which deed "shall be prima faoie evidence of all the facts recited therein,” does not contemplate that proof of the. divestiture of the title of the former owner of the property can be made by the mere ex parte recital by an executive officer in the subsequent conveyance by the state; and the mere deed to the pm--. chaser containing such recital is not sufficient to show that he acquired the title of the original owner in the absence of independent proof that such title was acquired by the state.</p>

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

<p>Motion for New Trial—Bill of Exceptions—Service of Amendments by Mail—Time for Delivery to Clerk.—Where the service of amendments to a proposed bill of exceptions to be used on motion for a new trial is made by mail, the proponent of the bill has, under section 1013 of the Code of Civil Procedure, one additional day for each' twenty-five miles of the distance in which to deliver the proposed bill and amendments to the clerk, not exceeding ninety days in all.</p> <p>Id.—Acknowledgment by Letter—Extension of Time not Affected. —The acknowledgment by the proponent of the bill of exceptions by letter of the receipt of the proposed amendments cannot operate to deprive the proponent of the extension of time given him by statute in which to deliver the bill and amendments to the clerk, nor constitute a waiver thereof.</p> <p>Action to Quiet Title — Defense — Contract of Purchase — Agreement for Deed to Secure Debt—Findings against Evidence.—In an action to quiet title, where the uncontradicted evidence sustains the defense that defendants had a contract to purchase the land from the owners, that it was agreed between the defendants, the owners, and plaintiff’s husband that the latter should advance the balance due, and that a deed should be made to him by the owners to secure such balance, besides other indebtedness of defendants, that plaintiff’s husband deeded the land to plaintiff without consideration, and that defendants were in possession of the land, the plaintiff’s right thereto is in effect no more than a mortgage; and findings in favor of the plaintiff are against the evidence.</p>

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

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

<p>The facts are stated.in the opinion of the court.</p> <p>William Singer, Jr., H. V. Reardan, and Guy Shoup, for Appellant</p>

<p>The facts are stated in the opinion of the court.</p> <p>Collier & Carnahan, Washington & Carter, and Victor E. Shaw, for Appellant.</p> <p>E. A. Meserve, E. E. Powers, C. F. Holland, Powers & Holland, and D. M. Hammack, for Respondents.</p>

<p>San Francisco Sea-Wall Act—Submission to People—Publication —Constitutional Law—Duty op Governor.—In submitting tbe “San Francisco Sea-Wall Act/’ providing for the issuance and sale of two million dollars in state bonds, to a vote of the people, under article XVI of the constitution, in the absence of a provision in the act for the publication required by that article, the duty ±o provide for the publication devolved upon the governor as the chief executive, whose duty under section 7 of article "V of the constitution is to see that the laws are faithfully executed.</p> <p>Id.—Order to Secretary op State.—In discharging the duty of the governor it was not necessary that he should personally attend .to the publication; but it was sufficient that he provided for its publication by order to the secretary of state to make it.</p> <p>Id.—Official Attestation not Required.—It is sufficient that in making the publication a true copy of the act was published for the required time and in the manner required by the constitution, which does not require that the act as published should be officially attested.</p>

<p>Criminal Law—Mitrder—Vague Description of Assailant by Deceased—Prior Arrest of Another Person.—Upon the trial of a person charged with murder, where there is no claim of insufficiency of the evidence to justify the verdict, evidence that upon a vague description of his assailant given by the deceased another person was arrested on suspicion of the murder prior to defendant’s arrest, was properly rejected where there was no pretense that such other person did not answer such vague description as well as the defendant.</p> <p>Id.—Cross-Examination—Opinion of Witness—Correspondence with Description—Impeachment.—An inquiry on cross-examination of the witness who testified to the description given by deceased, as to his opinion whether the person first arrested answered such description, was properly excluded as immaterial and incompetent where no foundation was laid for impeachment of the witness by proof . of any contradictory statement.</p> <p>Id.—Opinion as to Identity—Statement of Another Person.—An opinion as to the identity of a person based solely upon the statement of another person is not admissible to prove identity.</p> <p>Id.—Evidence of Police Officer—Declaration of Witness as to Description-—Impeachment.—The evidence of a police officer as to a declaration made by the witness who testified to the description of the assailant given by deceased could only be admissible for the purpose of impeachment of the witness; and where no foundation was laid therefor, an objection thereto was properly sustained on that ground.</p> <p>Id.—Improper Cross-Examination—Clothing of First Person Arrested.—Where an attempt on cross-examination of the witness who testified to such description to prove that the person first arrested wore clothes which answered the description was not legitimate cross-examination, the objection on that ground was properly sustained.</p> <p>Id.—Impeachment—Proof of Wrongful Act—Arrest for Drunkenness.—A witness cannot be impeached by proof of particular wrongful acts not amounting to a felony; and evidence that the witness had been arrested for being drunk was properly excluded.</p> <p>Id. — Cross-Examination of Impeaching Witness — Defendant ' not Prejudiced.—The overruling of an objection to the cross-examination of a witness called by the defense for the purposes of impeachment is not ground for reversal where there was nothing in the answer given by the witness that was in any way prejudicial to the defendant.</p>

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

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

<p>The facts are stated in the opinion of the court.</p> <p>A. Heyneman, W. J. Hunsaker, and Graves, O’Melveny & Shankland, for Appellant.</p>

<p>Appeal — Reversal — Allowance op Amendments to Complaint— Power op Lower Court not Appeoted.—-The allowance by this court upon appeal, in remanding a cause, of certain designated amendments to the complaint, though it makes such amendments obligatory, in the absence of any showing of new facts justifying a refusal, does not in any respect affect the power of the lower court, which existed after the granting of a new trial, as well as before issue joined, to allow such amendments as justice demands.</p> <p>Id.—Law op Case—Invalid Sale under Street Bond—Validity op Bond and Assessment—Amendment op Complaint.—The decision upon the former appeal in this ease that a certificate of sale issued upon default in thd payment of a street bond was invalid, is the law of the case; and the decision that the bond and assessment are valid is also the law of the case so far as the objections there set up to their validity are concerned, but does not conclude this court with respect to objections thereto made for the first time in the subsequent amendment to the complaint.</p> <p>Action to Quiet Title—Bond and Assessment Owned by Defendant — Change of Position — Estoppel — Judgment.—Where at the time of the commencement of an action to quiet title, a -defendant who held a void certificate of sale, and who was in equity the owner of the street bond and assessment under which the void certificate was obtained, was entitled to enforce a lien therefor upon the land of plaintiffs, and to receive compensation therefor; but after its commencement, by accepting and keeping a trust fund as the assignee of plaintiffs’ grantor, who had no interest therein except upon the established invalidity of the assessment, such defendant so changed his position that he is estopped to deny its invalidity, and the plaintiffs are entitled to judgment quieting their title against such defendant, without paying him any compensation on account of such bond and assessment.</p> <p>Id.—Agreed Statement of Pacts—Waiver of Supplemental Complaint.—Where the case was submitted upon an agreed statement of facts, under a stipulation that no objection should be made to any of the facts stated on the ground of variance between the proof and the pleadings, but that the lower court and this court upon appeal should hear and determine the cause the same as if the pleadings had been by leave amended so as to make the facts come within the issues made by the pleadings, this must be understood to include such stipulated facts occurring after the commencement of the action as might properly have been stated in a supplemental complaint.</p>

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

<p>Homestead—Tenancy in Common—Stare Decisis.—Under the settled decisions of this court, no Homestead can be selected or claimed upon lands owned by the claimant as a tenant in common or juint tenant; and this must be regarded as the settled law of this state, under the rule of stare decisis, until changed by the legislature.</p> <p>Id.—Action by Trustee in Bankruptcy to Declare Homestead In. valid—Conclusion op Law—Judgment upon Pleadings.—In an action by a trustee in bankruptcy to declare invalid a homestead previously selected by the bankrupt upon an undivided half interest, where the complaint alleged the proper facts, an averment based thereon that plaintiff succeeded to and became and is the owner of the half interest previously owned by defendant, is of a conclusion of law, the denial of which raised no issue, and where the answer presented no issue of fact, judgment was properly rendered for plaintiff upon the pleadings.</p>

<p>Vendor and Purchaser—Contract of Sale—Option of Vendee— Bights of Parties.—Where a contract for the sale of land merely gives the vendee an option to purchase, in consideration of a cash payment, which is to be forfeited if the purchase is not consummated, and creates no mutuality of obligation, in that the contract imposes no liability upon the vendee to make the purchase, his rights are only to complete the purchase and compel the execution of the deed upon performance of the terms of the agreement within the time limited by it, and the correlative duties of the vendor are only to make the deed upon demand of the purchaser and a tender by him within the time specified in the contract.</p> <p>Id.—Sale by Holder of Option—Binding Contract—Deed by Vendors in Escrow—Non-Performance—Untenable Action.—Where the holder of the option made a binding contract of sale to other parties, who repaid him the cash paid, and agreed to pay the residue of the purchase money, in accordance with the terms of the option, and the original vendors deposited a deed of the land to such other parties in escrow in defendant bank, conditioned upon payment within the time limited and not otherwise, upon nonperformance of such condition by such parties, and by the holder of the option, the latter, being in default, cannot maintain an action to compel payment by such parties, and the delivery of the deed thereupon.</p>

<p>Mining Claims—Conflicting Locations—Subsequent Date of Prior Notice — Evidence — Proved Pact.—Where there are conflicting locations of the same mining claims, the rights of the parties are governed by the fact of prior location, of which the written date of the notice is, at the most, but evidence; and where the prior location notice bears a date subsequent to the date of the second location, the error in such notice, however caused, must give way to the proved fact of prior location.</p> <p>Id.—Subsequent Locators not Injured—Estoppel.—Where the location by defendants’ grantor was in fact made before plaintiffs entered upon the land, and the notice of it was there visible, and its boundaries marked, plaintiffs could not have been misled by the erroneous date of the notice, but must have known that a location prior to their attempted one had been made, and cannot be heard to say that they were in any way injured by the error in date.</p>

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

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

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

<p>Mechanics ’ Liens—Mining Claim—Contract with Lessee—Erroneous Judgment against Owner—Proof of Service of Summons —Pleading—Excessive Lien.—In an action to foreclose a mechanic’s lien upon a mining claim, under a contract with a lessee, a judgment by default against the owner is erroneous and must be reversed, irrespective of the question whether a constable’s certificate of service of the summons, which is unwarranted under sections 410 to 415 of the Code of Civil Procedure, is warranted by section 153 of the County Government Act of 1897, where the complaint fails to allege that the lessee had authority to develop the mine, or that the owner knew what was being done, and where the mine is .charged with a lien for a larger amount than the demand stated in the summons, which in this particular does not correspond with the prayer of the complaint.</p> <p>Id.—Lien upon Oil-Mining Claim—Interest of Lessee.—An eighty-acre tract of land in process of development as an oil mine is a mining claim within the meaning of the lien law; and laborers thereon under contract with a lessee thereof have a lien upon the interest of the lessee in the entire claim.</p> <p>Id.—Construction of Statute.—Construing the law upon the subject of oil locations as being placer mining claims by act of Congress passed in 1897, in connection with the State Lien Law applicable to mining claims, those who contribute to the benefit of oil claims should have the full benefit of the literal terms of the statute, which should be construed as fully as its terms will admit in harmony with the constitution, which fastens a lien upon the property improved or benefited; and oil claims being within the reason as well as the letter of the law, should be governed by the same rule.</p> <p>Id. — Work upon Oil-Well — Extent of Lien — Convenient Use — Pleading—Binding.—Work done upon an oil well upon the eighty-acre oil-mining claim creates a lien which extends to the whole eighty acres; and it is not necessary for the complaint to allege, or for the court to find, that the whole of the eighty acres is necessary to the convenient use and occupation of the well.</p> <p>Id.—Contract Exceeding One Thousand Dollars—Absence of Becord—Pleading — Special Demurrer to Complaint — Bindings — Harmless Buling.—Where no contract between the owner of the land and the contractor is recorded, those who work under the contractor have no means of knowledge whether the contract is in writing or not, or whether it is for more or less than one thousand dollars, and these facts being peculiarly within the knowledge of the owner, he suffers nd detriment from the failure of plaintiff eonjeeturally to allege them; and where the court finds, upon clear proof, that the contract was in writing, and for more than one thousand dollars, the error, if any, in overruling a special demurrer directed to this point is harmless.</p> <p>Id.—Amount Due Contractor—Void Contract.—The contract being void, payment by the owner to the contractor is no defense to the claims of lien; and it is immaterial that the complaint failed to allege that anything was due to the contractor when the lien notices were filed.</p> <p>Id.—Befusal of Continuance—Absence of Attorney—Discretion— Insufficient Showing.—It was not an abuse of discretion to deny the lessee's motion for a continuance based upon the sole ground that its counsel was detained by previous professional engagements in another county, in the absence of a showing that, under the circumstances, other professional advice was unavailable, and that there was a meritorious defense to the action which could not be effectively presented without the presence of the absent attorney.</p>

<p>Municipal Corporations—Construction op Charters.—A municipal corporation can only exercise the power granted in its charter by express wc-rds or by necessary or fair implication from the powers expressly granted, or essential to the declared objects and purposes of the corporation. Any fair, reasonable doubt concerning the existence of the power is resolved by the courts against the corporation; and the rule of strict construction applies to powers out of the usual range, or which may result in public burdens.</p> <p>Id.—Lighting op Streets—Public Business — Lighting Plant por Use op Inhabitants not Authorized.—A city charter which gives authority to the council to provide for and regulate the lighting of streets, avenues, and public places, and to provide for such lights as are necessary for the transaction of public business, does not authorize the city to establish a plant for furnishing light to the inhabitants generally for their private use.</p> <p>Id.—Power to Condemn Land por Public Use.—A power conferred by the charter to condemn land for public use cannot be construed as authorizing public utility enterprises, such as the furnishing of water, gas, and light for the general use of the inhabitants; nor does the provision that when the council shall judge it necessary to take private property for public uses, it may direct proceedings by the city attorney under title YII of part III of" the Code of Civil Procedure, make the provisions of that code part of the charter, so as to confer upon the city the power to supply light to the city and its inhabitants.</p> <p>Id.—Construction of Bond Act.—The Bond Act of 1901 does not purport to give the city power to engage in the carrying on of the public utilities therein mentioned. Its purpose and object is to give the power to issue the bonds necessary for the constitution or maintenance of such public utilities in any case where by other provisions of law or of the charter the power to build works and operate such enterprises may be conferred.</p>

<p>APPLICATION for Writ of Certiorari to annul an order of the State Board of Medical Examiners.</p> <p>The facts are stated in the opinion of the court.</p>

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

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

<p>The facts are stated in the opinion of the court.</p> <p>Charles W. Slack, E. D. Larkins, and U. T. Clotfelter, for Appellants.</p>

<p>Accounting or Mining Partnership—Damages for Fraudulent Representations — Conflicting Evidence — Support of Findings — Immaterial Omission to Find.—In an action for an accounting of an alleged mining partnership, and to recover damages for alleged fraudulent representations concerning a certain quicksilver mine, where the evidence was conflicting, and the court found upon sufficient evidence that there was no partnership, and that defendant bought the mine and received a deed from plaintiff more than three years before the commencement of the action, and had since been the owner thereof, this court will not disturb the findings, and all the material issues being covered by them, a judgment for the defendant will not be reversed for failure to find upon immaterial issues.</p>

<p>The facts are stated in the opinion of the court.</p> <p>Tirey L. Ford, Ex-Attorney-General, IT. S. Webb, Attorney-General, C. E. Sumner, and Henry M. Willis, for Appellant.</p>

<p>Will — Cancellation op Appointment op Executrix — Ink Lines — Support op Finding—Evidence—Presumptions.—A finding that the cancellation of the appointment of an executrix in the will of the testator was done by him with the intent and purpose of revoking such appointment, is sustained where it appears that the will was in the possession of the testator from the time of its execution until his death, and that immediately after his death it was found in his trunk, and that, when so found, ink lines were drawn over and through the part of the will naming the appellant as executrix, though such name was not entirely obliterated. From these circumstances presumptions arise that the cancellation was made by the testator, and was performed with the intent to revoke such appointment, if not rebutted by proof to the contrary.</p> <p>Id.—Finding not Assailed—Possession of Canceled Will by Testator.—A finding that immediately after'the death of the testator the said will was found in Ms possession, and that when so found the name and address of the executrix were found canceled and obliterated, which is not assailed by any specification of insufficiency of the evidence, must be taken as true.</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 two appeals from an order of the Superior Court of the City and County of San Francisco setting apart a homestead. J. V. Coffey, Judge. The facts are stated in the opinion of the court.

<p>Fire Insurance — Action upon Policies — Pleading — Insufficient Complaint—Occupation of Dwellings.—In an action upon fire-insurance policies on frame buildings, “while occupied as a dwelling-house,” and on furniture “while contained in the above dwelling-house, ’ ’ it is essential to a cause of action that the complaint should aver that the houses were occupied as dwellings at the time of the fire, and that the furniture was contained in the house referred to; and a complaint failing so to aver is fatally defective. Such defect is not cured by verdict and judgment, but may be taken advantage of upon appeal for the first time.</p> <p>Id.—Defects not Cured by Answer.—An answer averring that a great part of the insured furniture was removed by the plaintiff before the fire from the houses wherein it was insured, whatever effect it might have to cure the defective complaint as to the furniture, does not have any effect to cure the defective allegations as to the dwelling-houses.</p> <p>Id.—Keeping Gasoline on Premises—Policy not Substantially Violated.—A policy prohibiting the keeping of gasoline on the premises is not substantially violated by the temporary use of a small quantity of gasoline for cleansing purposes, in a bottle securely corked, which had no relation to the fire, and which was removed entirely from the house.</p> <p>Id.—Evidence—Waiver of Breach of Policy.—The court properly allowed plaintiff to prove that after a small fire the agent of the company, who had procured the insurance, and who adjusted the loss, was informed of the circumstances as to the gasoline, that he made no objection, and proceeded to adjust the loss, and the policy was allowed to continue as to the unearned premium without notice of claim of forfeiture on account of the incident as to the gasoline; and such evidence proved a waiver of any breach of the policy on account thereof.</p> <p>Id—Stipulation as to Written Waiver—Knowledge of Breach— Estoppel.—Notwithstanding a printed stipulation that any waiver must be made in writing and attached to the policy, such stipulation could not prevent the conduct of the officers of the company from constituting a waiver or estoppel of the company, based upon its presumed knowledge, when its proper officer had knowledge, where such conduct led the insured to rely upon his policy as a valid policy, although there was a breach of condition of which the company knew, in which ease it will not be heard to allege such breach against a claim for a subsequent loss.</p> <p>Id.—Pleading—Defense of Bbeach—Evidence in Eeplv.—It is not ' necessary for plaintiff in Ms complaint to allege the facts constituting a waiver or estoppel of the insurance company; but when a breach of condition is set up in the answer, plaintiff may prove the waiver or estoppel by way of evidence in reply to such defense, without any necessity of pleading it.</p>

<p>Deed to Agent—Mortgage to Plaintiffs—Foreclosure—Parties.— Where a deed intended as a mortgage to the plaintiffs as administrators of the estate represented by them was executed to one of them individually as an agent, in an action to foreclose the mortgage the plaintiffs as such administrators are the real parties in interest, and the agent to whom the deed was executed is not a necessary party to the action.</p> <p>Id.—Foreclosure against Heirs—Administrator as New Party— Summons—Time for Service.—Where the original action to foreclose the mortgage was brought against the heirs, who were properly served with summons, the court, after the subsequent appointment of an administrator, may order him to be brought in as a party, and that summons be issued and served upon him more than a year after the commencement of the action, when the time in which an action could be brought against him as personal representative of the deceased had not then expired.</p> <p>Id.—Appointment of Administrator—Plaintiffs not Obligated.— The plaintiffs were not obligated to procure the earlier appointment of the administrator. A party having a cause of action against the estate of a deceased person is not bound to cause administration to be had. The statute expressly extends his time one year after the issuance of letters.</p> <p>Id.—Eight of Action against Administrator not Waived.—Plaintiffs did not waive their right to commence action against the administrator within a year after the issuance of letters by commencing the action against the heirs before his appointment.</p> <p>Id.—Advances by Mortgagee to Discharge Paramount Liens—Note not Including Advances—Statute of Limitations.—Though advances made by the mortgagee to protect the mortgage security by the discharge of paramount liens became part of the security, under section 2876 of the Civil Code, yet where upon subsequent settlement of the indebtedness a note was given, not including the advances, and the mortgagor lived four years thereafter, such advances not being secured by writing, are barred by the statute of limitations. Portions of a debt secured by mortgage may become barred by statute, although as to other portions the statute has not run.</p> <p>Id.—Plea of Statute—Waiver of Objection.—A plea that the cause of action for the advances is barred by section 339 of the Code of Civil Procedure, without specifying subdivision 1 thereof, the only subdivision applicable thereto, is not a nullity; and objection to the manner of pleading the. statute is waived by failure of plaintiffs to urge it in the trial court.</p> <p>Id.—Mortgage for Monet to Discharge Lien.—Where the grantee in the deed made a mortgage on the property to raise money to aid in the discharge of paramount liens upon the property, the appellant should not be granted the affirmative relief of having the property cleared of the lien without repaying the amount so borrowed, and properly advanced by plaintiffs for the protection of their security.</p>

<p>Railroads—Collision at Crossing—Negligence—Contributory Negligence.—Where the plaintiff was long familiar with a railroad crossing, and while driving horses attached to a light spring wagon at a brisk trot across the track, was injured by collision with a freight-train, which plaintiff .might have avoided with ordinary care, which he failed to exercise, he is guilty of contributory negligence as matter of law, notwithstanding the negligence of the railroad company in leaving the gates open, and in approaching the crossing without whistling or ringing the bell. [Beatty, C. J., dissenting.]</p> <p>Td.—Railway Crossing a Warning op Danger.—A railway crossing is itself a place of danger, and is an effectual warning of danger which must always be heeded; and the failure to exercise ordinary care in traveling over such a place is not excused by the negligent omission of the railway company to exercise ordinary care.</p> <p>Td.—Use op Gates not a Warranty.—While the guaivtum of care which will be reasonable may be less where gates are provided and are relied upon by the traveler, still the gates themselves are not such an assurance and a warranty as to justify the traveler in going blindly ahead in total disregard of all ordinary precautions. He cannot rely wholly upon them, and cannot recover without showing more as to his own conduct than that he so relied.</p>

<p>Specific! Performance—Uncertainty as to Price of Land—Insufficient Tender of Performance.—A specific performance will not be decreed where there is an uncertainty as to the price of the land, or where, in the light of the surrounding circumstances, the plaintiff has failed to pay or tender the full amount which under the more fair and reasonable construction of the contract he was compelled to pay before being entitled to a conveyance.</p>

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

MOTION to dismiss an appeal from a judgment of the Superior Court of Alameda County dismissing an action. F. B. Ogden, Jndge. The facts are stated in the opinion of the court.

<p>Mechanics’ Liens—Law Applicable.—Mechanics’ liens are governed by the law in force when the liens attach.</p> <p>Id.—Liens upon Mining Claims—Lessee as Agent of Owner—Mining Work.—Under a lease of mining claims, by the terms of which the owner of the claims was to share in the benefits of the work and under which mining work was done by the lessees prior to the amendment of 1903 to section 1183 of the Code of Civil Procedure, the lessees were, by the terms of that section, the agents of the owner; and laborers performing work in the extraction of ore from the mine are entitled to claim a lien therefor against both the lessees and the owner.</p> <p>Id.—Improvement of Mine under Terms of Lease—Presumed Knowledge of Owner—Absence of Notice.—Where by the terms of the lease the lessees were to improve the mine by drifting and sloping for the purpose of discovering and opening up new ore bodies for the benefit of the lessor and owner, he must be presumed to know its terms, and in the absence of a notice disclaiming liability for such improvement, liens may be enforced against him for work so done.</p>

<p>School Districts—Void Annexation—Assumption op Bonded Indebtedness without Election—Constitutional Law.—An order by the supervisors annexing a school district to a high-school district upon terms of agreement, which essentially involve the assumption by the school district of a pro rata part of the bonded indebtedness of the high-sehool district, without the assent of two thirds of the voters of the school district, given at an election held for the purpose of incurring a debt therefor exceeding its income for the current year, as required by section 18 of article XI of the constitution, is ineffectual for any purpose, notwithstanding the annexation was expressly assented to by a majority of the heads of families in the school district.</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 transfer case to the District Court of Appeal, appealed to this Court from a judgment of the Superior Court of Los Angeles County, and from an order denying a new trial. Waldo M. York, Judge. The facts are stated in the opinion of the court.

<p>Mechanics’ Liens—Guaranty by Owner to Materialmen—Deduction from Completion Payment—Guaranty not a Prohibited Payment.—Where the contractor was unable to obtain credit from materialmen to complete the building, and at his request the owner guarantees his obligation to pay them, under agreement that the amount should be deducted from the completion payment due the contractor, and the owner paid the amount after the completion payment became due, and made the agreed deduction, his mere guaranty cannot be deemed a payment before maturity prohibited by section 1184 of the Code of Civil Procedure as against other creditors of the contractor, who had neither filed liens nor given notice to withhold the completion payment.</p> <p>Id.—Doctrine of Equity—Penalties and Forfeitures—Construction of Penal Statute.—The doctrine of equity that a promised performance of an act will be deemed an actual performance is applied only in aid of justice, and never in aid of the harsh rule of law exacting penalties and forfeitures, which equity abhors; and so far as the statute has the effect of compelling the owner of tho building to pay the debt twice, it is highly penal, and should be strictly construed in his favor.</p> <p>Id.—Offsets and Counter-Claims—Construction of Code.—The provisions of sections 1183 and 1184 of the Code of Civil Procedure, that the ‘1 contract shall operate as a lien in favor of all persons except the contractor, to the extent of the whole contract price,” which "shall not be diminished by any prior or subsequent indebtedness, offset, or counter-claim in favor of the reputed owner and against the contractor,” refer only to offsets and counter-claims not arising under the terms of the contract, and as to which, from an inspection of the contract, materialmen and laborers could have no notice.</p> <p>Id.—Deductions Arising under Contract — Materials Supplied by Owner—Stipulated Damages for Delay.—Tho owner should be allowed to deduct from tho completion payment materials necessarily supplied by the owner, by reason of the failure of the contractor to place them in the building, and also stipulated damages arising under the terms of the contract for delay of the contractor in tho completion of the work.</p> <p>Id.—Excess not Applicable to Final Payment—Recovery against Contractor.—Any excess due to the owner under the contract, above the amount of the completion payment, cannot be deducted from the final payment of twenty-five per cent to the injury of lien claimants; but the owner’s right of recovery for such excess is against the contractor alone.</p> <p>Id.—Notice to Withhold Completion Payment—Garnishment.—Under a notice by a lien claimant to the owner, which, though inartifieially drawn, was sufficient, under the requirement of section 1184 of the Code of Civil Procedure, to operate as a garnishment of the completion payment, it became the duty of the owner to withhold sufficient funds therefrom to pay tho claim, together with one hundred dollars attorneys’ fees and estimated costs; and his subsequent payments after service of the notice, though legal, and within the contemplation of the contract, cannot be allowed to affect so much of the fund as was thus set apart by force of the notice.</p> <p>Id.—Erroneous Judgment for Claimant not a Lien-Holder.—A judgment for a claimant who had filed no lien, against the contractor, and also providing that such claimant is entitled to have the claim satisfied out of any residue that may appear in the hands of the owner after all lien claimants have been satisfied, and from the product of the sale of the property after all lien claimants have been fully satisfied, is erroneous in so far as it directs payment out of the funds of the owner.</p> <p>Id.—Reversal op Judgment against Surety op Contractor — Void Bond.—Where the purported undertaking given by a surety company for the contractor is void a judgment against the surety will be reversed, with direction to the trial court to enter judgment in its favor.</p>

<p>Appeal from Justice's Court — Deposit in Lieu of Undertaking— Code Provision not Repealed by Implication.—Section 926 of the Code of Civil Procedure, enacted in 1878, permitting a deposit of one hundred dollars in lieu of the bond on appeal for costs in the sum of one hundred dollars, as required by section 978 of the . same code, originally passed 'n 1872, was not repealed by implication by the amendment of section 978, in 1880, which made no change as to the one-hundred-dollar bond on appeal, though concluding with a clause repealing all acts and parts of acts in conflict therewith. The provisions as to the one-hundred-dollar bond are to be considered as if enacted in 1872, and are not to be given effect as if re-enacted in 1880, either for purposes of repeal, or any other purpose; but there is no such inconsistency between the two sections, however considered, as to work a repeal by implication of section 926 by the amendment of 1880 to section 978.</p> <p>Ib.—Insufficient Deposit—Refusal to Dismiss Appeal—Prohibition. —Where the only deposit made was of the amount of the judgment in a less sum than one hundred dollars, and no undertaking on appeal was given in the sum ..f one hundred dollars, the superior court had no jurisdiction of she appeal, and was in duty bound to dismiss it, and upon refusal to do so prohibition will lie to prevent any proceeding in the superior court other than such dismissal.</p>

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

<p>Justices of the Peace—Compensation in Criminal Cases—Classification of Townships by Census—Constitutional Law.—The provision of the act of 1901, amending section 184 of the Count/ Government Act of 1897, with respect to counties of the twenty-seventh class, classifying townships therein ‘ ‘ according to their population as shown by the federal census of 1900,” so far as , affecting the compensation of justices of the peace in criminal cases therein is not special legislation, nor violative of any provision of the state constitution; and the salary therein provided for according to the population as shown by such census cannot be increased by averment of a greater actual population.</p> <p>Id.—Power of Legislature to Classify—Constitutional Distiction. —The power granted by the constitution to the legislature to classify counties for the regulation of the compensation of county officers, in proportion to their duties, implies the power of the legislature to pass a law regulating the compensation of township officers in counties of any one class, and to pass a different .law regulating the compensation of township officers in counties of another class, without violating any provision of the constitution against special legislation, or against a want of uniformity.</p>

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

<p>Water-Eights—Action to Enjoin Diversion—Prescriptive Eight of Defendants — Erroneous Judgment Esquiring Notice. — In an action to enjoin the diversion of water from plaintiff's ditch, where the findings establish a perfect and complete prescriptive right in defendants to divert the water in controversy, which is not found to have been exercised under any condition as to notice, the court had no authority, in its conclusions of law and judgment, to require the defendants to give notice to the plaintiff, as a condition of the exercise of the future enjoyment of their prescriptive right.</p>

PETITION to transfer a cause from the District Court of Appeal, appealed to that court from the Superior Court of Santa Cruz County. Lucas F. Smith, Judge. The facts are stated in the opinion of the court.

<p>PETITION to transfer a cause from the District Court of Appeal, appealed to that court from the Superior Court of Santa Cruz County. Lucas F. Smith, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Unlawful Detainee—Support of Verdict—Conflicting Evidence— Oral Lease to Sublessees—Deduction of Bate after Term.— In an action of unlawful detainer, where there was a verdict for the defendants, upon conflicting evidence, testimony for defendants that, while they were sublessees under an existing lease to a third person, an oral agreement was made with the lessor several months before the end of the term for a continuation of the term to them one year from the date of such agreement, at the former monthly rental, to the end of the former lease, and for a less monthly rental thereafter for the balance of the year, though showing an unusual agreement, cannot be said to be so improbable that the jury must disbelieve it.</p> <p>Id.—Admissions of Dependant.—The oral admissions of the defendant so testifying, and an admission made by letter, that the premises were had for another year at the lower rate, are not sufficient to require the holding, as matter of law, that his testimony should be disregarded by the jury.</p>

PETITION for Writ of Certiorari to annul an order of the Superior Court of the City and County of San Francisco. The facts are stated in the opinion of the court.