Volume 15 — California Appellate Reports

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

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

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

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

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

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

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

<p>APPEAL from a judgment of the Superior Court of Lassen County. H. D. Burroughs, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>APPEAL from a judgment of the Superior Court of Lassen County. H. D. Burroughs, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Ejectment Against Tenants Under Verbal Lease—Defense of Renewal—Support of Finding—Conflicting Evidence.—In an action of ejectment against tenants who had been holding from year to year under a verbal lease, where the defense was of renewal for another year, and the trial court sustained the defense, and found upon the evidence for the defense that the lease had been renewed for another year, it is held that it is sufficiently supported notwithstanding the conflicting evidence of plaintiff to the contrary. It was for the trial court to determine the weight of the evidence.</p> <p>Id.—Time of Leasing for Current Year—Construction of Answer— Finding Within Issues.—Where the answer pleads verbal leases from year to year, commencing January 1st in each year from the year 1905 to and including the current year 1909, it does not affirm or negative the time of making the verbal lease in any year, and a finding that the answer is true, and that the verbal lease for the current year was made February 3, 1909, is within the issues. A verbal lease may be made for any current year after its commencement; and the position is not tenable, that the lease pleaded in the answer in ejeetment is not proved, and that the verbal lease proved is not pleaded.</p> <p>Id.-—-Absence of Special Demurrer—Indefinite Averment—Definite Proof.-—-If the plaintiff in ejectment had desired a more specific and definite averment in the answer as to the time of making the verbal lease for the current year, he might have secured it by specially demurring to the answer; but in the absence of such demurrer, the defendants were entitled to render such time specific and definite by proof.</p>

<p>Election Contest—Tie Vote—Special Election—Certificate to Appellant—Reversal of Judgment-Final Judgment for Relator—Estoppel not Pleaded—Quo Warranto.—Where the first judgment in an election contest resulted in a tie vote, and the supervisors immediately ordered a special election, which resulted in the election of the appellant herein, and the relator herein appealed from the judgment, which was reversed, and on a second trial final judgment was rendered in favor of the relator, and on such second trial no estoppel was pleaded by reason of the relator having taken part in such election, and the appellant, having received a certificate of election, refused to yield possession of the office, whereupon the people, upon relation of the prevailing party, brought an action of quo warranto to oust the appellant, he will not be permitted in such action collaterally to impeach the final judgment by asserting such estoppel against the state.</p> <p>Id.—People not Bound by Acts and Conduct of Relator in Consenting' to Special Election.—The people are not bound by the acts or conduct of the relator in another proceeding between different parties. The action of quo warranto is in no legal sense under the control of the relator, and the people could not be estopped therein by the action of the relator in consenting to a special election under a former judgment erroneously establishing a tie vote, or from inquiring into the validity of the certificate of special election given thereunder.</p> <p>Id.—Pendency of Contest—Bight to Office Pending Appeal from Final Judgment.—Where the superior court, in an election contest, has finally declared a person entitled to the highest number of votes, the person declared elected is entitled under section 1123 of the Code of Civil Procedure to receive a certificate of election; and under section 1126 of the same code, “during the pendency of proceedings on appeal and until the final determination of such proceedings, the person so declared elected shall be entitled to the office in like manner as if no appeal had been taken.”</p> <p>Id.—Supervisors Pending Contest Without Power to Call Election. Section 1124 of the Code of Civil Procedure provides for a contest when the body canvassing the returns declared that no person has received the highest number of votes for the office contested; and during the pendency of the final determination of such contest, the board of supervisors were without authority to call a special election under an erroneous judgment sustaining a tie vote, which was subject to reversal upon appeal and was so reversed.</p>

<p>APPEAL from a judgment of the Superior Court of Lassen County. H. D. Burroughs, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Lease—Breach of Covenant of Quiet Possession—Damages to Crops by Cattle of Rightful Tenant—Finding Showing Breach. Where defendant, as the present owner of land, leased three hundred and fifty acres thereof to plaintiff for twenty-two months from January 1, 1907, which was included in a prior lease from former owners to another tenant of eight thousand acres for herding, pasturing and raising cattle thereon, whose right of possession continued until March 6, 1907, and plaintiff brought an action for damages against his lessor for breach of the implied covenant for quiet possession for destruction of his crops by such cattle, it is held that a finding in such action that such cattle, between January 1, 1907, and March 6, 1907, were not in fact herded on said three hundred and fifty acres, but escaped from their herders and damaged the crops of plaintiff, shows a breach of defendant’s implied covenant for quiet possession.</p> <p>Id.—Conclusion of Law Against Eviction—Erroneous Judgment.— It is held that a further finding “that the intrusion of the cattle upon the land so let to plaintiff did not constitute an eviction of him from the said lands, either by the owner of the cattle or by the owner of the land, but were acts of simple trespass committed by said cattle,” was the statement of a conclusion of law; and that the judgment for defendant based upon such conclusion against an eviction, actual or constructive, was erroneous and must be reversed.</p> <p>Id.—Rights of Tenant of Larger Tract—Nonliability fob Damages.—Since the tenant of the larger tract had the right of possession of the whole of plaintiff’s leased premises from January 1 to March 6,1907, he could not be a trespasser upon the lands leased to plaintiff, nor be subject to any action for damages for trespass thereon by Ms cattle or injury to plaintiff’s crops. It matters not whether he herded his cattle on such land or whether they escaped thereon. He had the right to pasture them thereon, if he had wished to do so, since he had the right of possession, and had not consented to the leasing thereof to the plaintiff.</p> <p>Id.-—Sole Remedy of Injured Lessee Against Lessor.—The sole remedy of the injured lessee was against his lessor, under whom he held the premises, and who could not maintain that the relation of landlord and tenant did not exist between them; and if he was entitled to any damages at all, he was compelled to look to his lessor.</p> <p>Id.—Implied Covenant for Quiet Possession Statutory—Nature of Breach—Actual or Constructive Eviction—Complete Ouster not Required—Disturbance.—The implied covenant for quiet possession is embodied in section 1927 of the Civil Code, and extends “during the term of the hiring, against all persons lawfully claiming the same.” To constitute a breach of this covenant there must be an actual or constructive eviction; but no actual ejectment or ouster of the tenant from the whole premises is required. It is enough that Ms possession has been disturbed to his damage by a person entitled to use or possess the property.</p> <p>Id.—Guaranty of Lessor Against Rightful Disturbance—Cause of Action.—The guaranty of the lessor is that he will see that his tenant is not disturbed by anyone having the right to the possession; and any interference with the possession of the tenant by any such person establishes a cause of action in favor of the tenant against the landlord.</p> <p>Id.—Time Limit of Possible Disturbance—Judgment for Lessor in Action to Quiet Title—Stay Bond on Appeal.—Though in the judgment in favor of the owner in an action to quiet title against the tenant of the former owners his right was limited to March 6, 1907, yet where he gave a stay bond upon appeal, he remained in rightful possession pending such appeal, and his position toward the plaintiff as tenant of the defendant would be the same pending such appeal as it had been prior to March 6, 1907; and a disturbance of the possession of the plaintiff by the tenant of the former owners, during either of these periods, would be a disturbance by a person “lawfully claiming the same” within the meaning of section 1927 of the Civil Code.</p>

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

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

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

<p>Criminal Law—Murder—Long Deliberation op Jury—Request por Further Instructions—Prejudicial Remarks op Judge—Opinion op Guilt Intimated.—Upon a prosecution for murder and conviction of manslaughter, where after long deliberation by the jury they requested further instructions, which were given, it was prejudicial error for the judge further to remark to them, “I suggest to you that there is no reason why twelve honest, intelligent^ reasonable men should not reach a conclusion in this case, and I am surprised that you have not done so already,” and “Now, go out and do your duty,” as intimating that the evidence in the case warranted a verdict of guilty, and that the jury should so find.</p> <p>lb.—Reliance op Juries on Fairness and Correct Views op Judges—■ Duty op Judge.—It is well known that juries rely with great confidence upon the integrity and fairness of judges, and the correctness of their views; and for this reason a judge should never throw the weight of his judicial position into a ease either for or against the defendant, unless satisfied that the evidence is insufficient to justify any conviction, in which case it is his duty so to advise the jury. But where it has not so advised them, to intimate the opinion of the judge that the jury ought to agree is to intimate his opinion that the defendant is guilty, and that they should” so find.</p> <p>Id.—Practical Decision op Cause by Judge.—A judge who intimates his opinion on the facts to the jury, of which they are the exclusive judges, practically decides the cause in violation of the constitution, while appearing to avoid the responsibility of such a decision.</p>

<p>APPLICATION for writ of prohibition to the Recorder’s Court of the city of Calexico, Imperial County. James B. Hoffman, City Recorder.</p> <p>The facts are stated in the opinion- of the court.</p>

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

<p>Action on Nontransperable Miners’ Checks Assigned by Drawee— Support op Finding — Agreement op Parties. — In an action against a mining company on miners’ labor cheeks assigned by the drawee, it is held that the evidence fully justified the court in finding that the checks were by the agreement of the parties, including the consent of the mining company, assignable by the drawee, though in terms made nontransffirable for the protection of the drawee.</p> <p>Id.—Non-negotiability — Subjection to Defenses. — Such checks in their form are not negotiable, and are subject to defenses interposed by the mining company against plaintiff’s assignor thereof.</p> <p>Id.—Defense of Offset—Ignorance of Plaintiff Before Answer— Proof of Countervailing Debt in Avoidance.—Since new matter in the answer is deemed controverted, and an offset pleaded therein against plaintiff’s assignor was unknown to plaintiff before answer, he is not precluded from proving in avoidance of such offset a countervailing debt of defendant to his assignor, which is more than sufficient to counterbalance the same.</p> <p>Id.—Countervailing Debt Transferred to Federal Court—Assignment to Plaintiff’s Assignor—Jurisdiction.—Where the countervailing debt sued upon by its then owner in the state court was by the mining company defendant transferred to the federal court, and the cause of action therein was transferred to plaintiff’s assignor, the federal court would give effect to section 385 of the Code of Civil Procedure, providing, in case of a transfer of plaintiff’s interest, that the action may be continued in the name of the original party or in the name of the party to which the transfer is made. It was not an evasion of the jurisdiction of the federal court, when an offset was pleaded in this action by defendant against plaintiff’s assignor, to prove such countervailing debt in avoidance of such offset.</p> <p>Id.—Effect of Offsets—Remanding of Mining Company to Counterclaim in Federal Court—Jurisdiction not Affected.-—The effect of such offsets by way of avoidance, the avoiding claim being larger than the offset, was to remand the mining company defendant to its relief by counterclaim or setoff in the federal action, and not to deprive the federal court of jurisdiction.</p>

<p>Mandamus—Prerogative Writ—Eight to Belief—Duty to Perform Act Bequired.—The writ of mandate is a prerogative writ, and in order to entitle the petitioner to such writ, it must plainly appear that he is entitled to the relief demanded, and that it is the duty of the inferior board, tribunal or person to perform the act which it is claimed that the same refuses to perform.</p> <p>Id.—Election of One Justice of the Peace—Certificate to Minority Candidate not Compelled — Bight to Two Justices — Filling Vacancy.—A petition for a writ of mandate will not lie to compel an election certificate to issue to a minority candidate for justice of the peace, where it plainly appears that but one justice of the peace was voted for, and one elected, even if the township should be determined as matter of law to be entitled to two justices of the peace. In such ease, if a vacancy exists, the usual procedure would be for the supervisors to fill it by appointment.</p> <p>Id.—Insufficient Petition to Appellate Court — Application to Lower Court not Shown—Exigency not Shown Under Bule.— A petition to this court is insufficient to justify a writ of mandate to a county board of supervisors to compel a certificate of election to a township officer, when it nowhere appears in the petition that any application has been made to the lower court for such writ, nor are there any circumstances set forth which would render it proper that the writ should issue originally from this court, as required by Buie 26 governing such petitions.</p>

<p>Criminal Law—Grand Larceny of Livestock—Improper Conviction —Subsequent Deception and Sale of Stolen Property.—A defendant accused of grand larceny of livestock, who is shown to have had no connection with the original taking thereof, nor to have aided or assisted therein, but who wholly subsequent to the taking received the stolen property in the county of the taking, and transported the same to another county in which he sold the same, cannot be convicted of grand larceny either in the county of the taking nor in the county of the sale, but can only be punished under seetion 496 of the Penal Code for receiving and selling personal property knowing the same to have been stolen.</p> <p>Id.—Selling Stolen Property With Intent to Defraud Owner.—The subsequent sale of the stolen property by the receiver thereof, with intent to defraud the owner of its value, does not make the receiver guilty of the crime of grand larceny.</p> <p>Id.—Essential Elements of Larceny.—In order to constitute the crime of larceny, it is essential that the accused should have taken or aided and abetted in taking the property from the possession of the owner. No subsequent connection with the property can make one guilty of theft who had no connection with the original taking. Id.—Conflicting Evidence—Duty of Court to Instruct Jury Fully. Even if there had been some evidence tending to connect defendant with the original taking, yet in ease of conflicting evidence tending to show only the reception and disposition of stolen goods, it would be the duty of the court to instruct the jury that the defendant was not on trial for receiving stolen property, and that unless they were satisfied that he was actually concerned in the commission of the larceny, or not being present advised and encouraged its commission, they should find the defendant not guilty.</p> <p>Id.—Venue of Crime of Receiving Stolen Property.—Receiving stolen property is not one of the crimes which may be tried in any county to which the receiver thereafter removes the same, under section 786 of the Civil Code, and the defendant should be indicted for receiving the stolen property in the county where he received the same.</p>

<p>Contract to Sell Improved Lot in Ninety Days—Surplus Profits— Insufficient Complaint.—Where a builder of a cottage on a lot selected by the plaintiff took the title in his own name, and by agreement plaintiff obtained a loan of $1,500 secured by the builder’s mortgage on the lot, which included payment for the lot and cottage except the last payment of $1,100 on the cottage, which was to be paid out of the proceeds of a sale to be made by the plaintiff within ninety days, any surplus profits on such sale to be the plaintiff’s, and if no sale was made in that time the property was to belong to the defendant builder, a complaint which alleges no sale, but merely a tender of the $1,100 within ninety days, and the refusal of the defendant to sell or convey the property, without alleging any contract to convey, oral or written, states no cause of action.</p>

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

'APPEAL from a judgment of the Superior Court of Fresno County, and from an order denying a new trial. H. Z. Austin, Judge. The facts are stated in the opinion of the court.

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

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

<p>Negotiable Paper—Demand Note Bearing Interest—Apparent Maturity.—A demand note bearing interest is a negotiable instrument, the apparent maturity of which, under section 3135 of the Civil Code, is one year after its date.</p> <p>Id.—Indorsement by Payee—Issue as to Guaranty—Binding Against Evidence.—Upon an indorsement of such note by the payee, where the complaint alleges a contract of guaranty, and the court found upon issue joined in favor of the plaintiff, it is held that there is no evidence in the record tending to support such finding, or any contract other than that created by law on account of the indorsement of negotiable paper.</p> <p>Id.—Insufficient Complaint Against Indorser—Proper Presentment and Notice of Dishonor not Alleged.—The complaint against the indorser, as such, is wholly insufficient, in that it does not allege presentment of the note to the maker as required by the terms of the note, nor any notice of dishonor thereof to the indorsor.</p> <p>Id.—Demand upon Maker Essential Only to Charge Indorser.—No demand upon the maker is required to charge him; but it is essential that it be properly made upon him, in order to charge the indorser with notice of its dishonor.</p> <p>Id.—Demand not Made at Proper Place—Insufficient Evidence of Letters.—Where there is no evidence of any demand made at the place fixed by the terms of the note, letters addressed to the maker at a different place, requiring payment by him, are inadmissible, as having no legal effect as a demand upon him for the purpose of charging the indorser.</p> <p>Id.—Demand upon Indorser—Notice of Dishonor not Implied—Form of Notice.-—-A mere demand upon the indorser for payment is not notice to him of a like demand upon the maker, or of dishonor by him. Under the terms of section 3143 of the Civil Code, it is provided that the notice of dishonor is sufficient when it is in a form which describes the instrument with reasonable certainty, and substantially informs the party receiving it that the instrument has been dishonored.</p> <p>Id.—Notice of Dishonor not Excused.—It is held that there is nothing in the record indicating that notice of dishonor was excused.</p> <p>Id.—Implied Guaranty by Indorsement—Limitation to Non-negotiable Paper.—An implied guaranty by indorsement is limited to the indorsement of non-negotiable paper, and has no application to an indorser of negotiable paper whose undertaking is not absolute hut conditional, requiring notice of dishonor to make it effectual.</p>

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

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

<p>APPLICATION for writ of habeas corpus to A. B. Lang-ford, Sheriff of Santa Clara County.</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 Los Angeles County, and from an order denying a new trial. N. F. Conrey, Judge. The facts are stated in the opinion of the court.

<p>Sale Under Trust Deed—Contract for Renewal—Purchase of Debtor’s Title by Plaintiff—Agency for Defendant—Oral Contract fob Profits on Resale—Statute of Frauds.—Where defendant agreed to a friendly sale under a trust deed, in the interest of the debtor, at suggestion of plaintiff, who was defendant’s agent, to shut off mechanics’ liens on the property, under contract for a new trust deed, under which sale title was taken in the name of a trustee for defendant, though the new trust deed was not executed, and plaintiff secretly acquired the debtor’s title, and made an oral agreement with such trustee for profits on a resale of the property after paying the debt, and obtained purchasers at such profit, but the oral contract with plaintiff was repudiated, and the property was sold by defendant, through another agent, to the same purchasers, such oral contract was invalid under the statute of frauds, and cannot be enforced by plaintiff.</p> <p>Id.—Nature of Oral Agreement—Agency to Sell Real Estate— Writing Essential.—The agreement relied upon, conceding it to have been made with a person having authority to act for the defendant, must be considered to be one merely of employment of the plaintiff as an agent to sell real estate, which is' made invalid, under subdivision 6 of section 1624 of the Givi] Code, unless expressed in writing.</p> <p>Id.—Oral Contract to Modify Written Contract not Executed.— If the agreement sued upon be regarded as an oral modification of the written agreement for a new trust deed, it is nevertheless invalid under section 1968 of the Civil Code, which provides that a contract in writing may be altered by a contract in writing or by an executed oral agreement, and not otherwise, the oral modification not having been executed.</p> <p>Id.—Absence of Good Eaith of Defendant’s Agent—Title Acquired as Trustee for Defendant.—No injustice arises against the plaintiff in applying the statute strictly against him. His conduct toward the defendant in acquiring the title of the debtor under the trust deed secretly, without informing defendant thereof as its agent, was not characterized by the good faith and fair dealing required of an agent toward his principal; and it might be held that plaintiff could not acquire any interest in the property without the consent of the defendant, and that any interest so acquired would be held by him as trustee for defendant’s benefit.</p>

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

<p>APPEAL from part of a judgment of the Superior Court of San Luis Obispo County, awarding attorney’s fees and engineering fees. E. P. Unangst, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>APPEAL from an order of the Superior Court of Humboldt County denying a new trial. Clifton H. Conniek, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

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

<p>Taxation—Assessment Prima Facie Invalid—Insufficient Description.—An assessment of city lots as "In Los Angeles city, in Los Angeles county, in Clifton Tr., lots 6, 7 and 8,” separately assessed, is insufficient to identify the lots, and, standing alone, it is prima facie invalid as to each lot.</p> <p>Id.—Overcoming Prima Facie Case.—Notwithstanding the fact that such description is, when considered alone, insufficient, the party relying upon the assessment containing such incomplete description may supplement his case by showing that the description in the assessment is in fact sufficient to identify the property.</p> <p>Id.—Map not Referred to in Assessment or Tax Deeds—Reference to Prior and Subsequent Private Deeds—Presumption Inapplicable—Proceedings in Invitum.—Where no map was referred to in the assessment or tax deeds to and from the state, the reference to a recorded map of the “Clifton Tract,” in a deed in plaintiff’s chain of title prior to the assessment, and in subsequent deeds in defendant’s chain of title, and a rule of presumption of the existence of the map at the date of the assessment, claimed to be based upon such private deeds, can have no application to cases where it is sought to divest an owner of Ms title by proceedings in invitum.</p> <p>Id.—Identification of Description in Assessment—Introduction of Map With Proof Essential.—In order to identify the description in the assessment, mere proof of the existence of a map at its date raises no presumption of its integrity or authenticity; but, in addition to such proof, the map itself, with proof that it was the only map of any tract in the city of Los Angeles known as the “Clifton Tract” existing at the date of the assessment, and showing that the lots in question were delineated thereon, should be presented to the court.</p> <p>Id.—Absence of Sufficient Proof—Prima Facie Invalidity not Overcome—Order Granting New Trial.—Where there was the absence of sufficient proof at the trial to overcome the prima fade invalidity of the description in the assessment and tax deeds, and the court erred in sustaining the tax proceedings, it did not err in granting a new trial.</p> <p>Id.—Absence of Sufficient Proof not Waived.—It is held that the record discloses no admissions or concessions on the part of the plaintiffs, either express or implied, which could be deemed a waiver of the proof conceded to be necessary in order to apply the description to the lot.</p> <p>Id.—Action to Quiet Title—Pleadings—Tax Title not Set Forth— Tender op Taxes not Required.—In an action to quiet title where there is nothing in the complaint or answer referring to a tax title, it cannot be urged that plaintiff should have tendered the taxes as a condition of maintaining the action. If it should appear as the result of the proof on a new trial that plaintiff should pay the taxes as a condition of recovery, it is to be assumed that the court will impose such terms as the facts disclosed by the trial may warrant.</p>

<p>APPEAL from an order of the Superior Court of the City and County of San Francisco, revoking letters of guardianship and appointing another guardian. J. V. Coffey, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Estates of Deceased Persons—Dejected Claims of Daughter—Services as Nurse—Pleading—Uncertainty—Construction—Admission—Finding—Waiver of Variance.—Where a rejected claim of a daughter against the estate of her deceased mother was “for services as nurse for 204 days,” between certain dates, “at $2.50 per day, $510,” and the complaint thereon alleged services between said dates “as nurse to Mary J. James, at her request and for her use and benefit, performing at such time and times in said capacity of a nurse all the duties of a nurse, including the cooking, housekeeping, laundering, and earing for the said Mary J. James, during her last illness, which services were and are reasonably worth the sum of $2.50 per day,” it is held that the duties of a nurse do not include the particular services specified, but that, in the absence of a demurrer for uncertainty, and in view of the admission of defendant and the finding of the court that her services as a nurse were worth $2.50 per day, during the time claimed, the complaint may be construed as so asserting, and defendant has no cause to complain that there is a variance between the claim filed and the complaint.</p> <p>Id.—Compensation fob Services of Child—Kule and Exception— Contract for Services.—Though, as a general rule, a child who lives with a parent is not entitled to compensation for services rendered to the parent, even if an adult, yet the parent may contract to pay for such services, especially when the parent and child do not live together.</p> <p>Id.—Support of Finding as to Express Contract.—A finding as to an express contract of the. sick mother, in this ease, to pay her daughter for her services as nurse, is sufficiently supported by evidence that when the mother became afflicted with paralysis she requested her neighbor to call a doctor and a nurse, and the daughter, who lived in another county, was sent for, as a nurse, and after she came the mother told the neighbor to request her to remain and she would pay her for her services, and she remained and served as a nurse until her mother’s death.</p> <p>Id.—Direct Contract by Daughter With Mother Ingapable of Proof. It is no objection to such finding that the evidence shows no direct contract between the daughter and her mother, as no such evidence is admissible under section 1880 of the Code of Civil Procedure, which closes the lips of the plaintiff, and does not permit her to testify thereto.</p> <p>Id.—Absence of Suspicious Circumstances as to Claim for Services —Presumption.—It is held that no suspicion can arise as to the claim of the daughter for her services as a nurse to her mother under the facts appearing; and it must be presumed that any unknown circumstances, not disclosed by the record, were such as supported the fairness of the contract, and repelled any suspicion of its not having been made in good faith.</p>

<p>Criminal Law—Robbery—Misconduct op District Attorney—Improper Questions—General Bad Character op Dependants.— Where several Chinese defendants were jointly charged with robbing another Chinaman, and the evidence was conflicting, it was prejudicial misconduct of the district attorney to persist in asking improper questions relative to the general bad character of the defendants as to other matters disconnected with the robbery charged, which could only tend to, make the jury believe that men of such bad character would be likely to commit the offense charged; and it requires reversal of the judgment notwithstanding such questions were overruled, and the jury instructed to disregard them.</p> <p>Ib.—Duty op District Attorney—Fair Trial por Dependant.—A fair trial for the defendant should invite and receive from the district attorney the same solicitous consideration as the conviction of the guilty, and it is as much his duty to safeguard the defendant’s constitutional rights as to seek a conviction; and if he violates his duty in that respeet for the sake of winning a victory in the lower court, he should expect a reversal upon appeal.</p> <p>Id.—Review op Misconduct upon Appeal.—The misconduct of the district attorney can be reviewed only upon appeal from the judgment, and cannot be regarded upon a motion for new trial, and though the reversal of the judgment for misconduct of the district attorney has the same effect to require a new trial, yet that must be the proper procedure; and the order denying the new trial must be affirmed and the judgment reversed.</p>

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

<p>Criminal Law—Assault With Intent to Murder—Serious Nature of Wounds—Pertinent Fact—Evidence of Physician—Opinion. Where a defendant is charged with an assault with intent to murder, the seriousness of the injury actually produced is a pertinent fact to be considered; and the evidence of a physician who attended the wounded man is admissible to describe fully the nature and course of the wounds produced, to show their seriousness, although his expert opinion of the seriousness of a breast wound, fully described, was probably unnecessary.</p> <p>Id.—Evidence—Opinion of Witness as to Conclusion of Brother— Bemembering Part of Conversation—Error not Prejudicial.— A question asked of a witness on cross-examination whether he and his brother did not conclude that it was necessary for the witness to remember parts of a conversation testified to by him was objectionable, as calling for the opinion of the witness as to the conclusion of his brother; but the error was harmless, where the only answer given was nonresponsive and without injury, and the question asked was not answered.</p> <p>Id.—Complaint for Murder—Cross-examination of Complainant— Objection of District Attorney — Explanatory Statement— Misconduct not Prejudicial.—Where a complaint had been filed against defendant for murder, and the person who swore to it was being cross-examined in relation to the same, and the district attorney made objection thereto, and in doing so stated that the first information at the county seat was that the wounded man was killed, and that such complaint was dismissed, and the present complaint filed, the explanatory statement of the district attorney, though improper, was not prejudicial misconduct where it was apparently made in good faith, and was promptly remedied by the action of the court in overruling the district attorney’s objection, and stating to the jury promptly that the district attorney’s statement was not evidence, and in instructing them to disregard it, and in requiring the witness to answer the question objected to.</p> <p>Id.—Judgment of Imprisonment and Fine — Additional Imprisonment to Satisfy Fine Void—Bbmedy by Striking Out.—Where a judgment of imprisonment has been rendered upon conviction of the offense of assault with a deadly weapon, included within the offense charged and also imposing a fine for such offense, that portion of the judgment which orders additional imprisonment for nonpayment of the fine is void; but this court is not required to reverse the entire judgment for such error, but will remedy the same by ordering the court below to strike out the void provision for further imprisonment.</p>

<p>PETITION for writ of prohibition to the Superior Court of Solano County. A. J. Buckles, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

MOTION to dismiss an appeal from an order refusing to vacate an order of the Superior Court of the City and County of San Francisco directing the interment of a deceased person. Thomas F. Graham, Judge. The facts are stated in the opinion of the court.

<p>Criminal Law—Assault With Deadly Weapon—Support op Verdict. In a prosecution for an assault with a deadly weapon, where the jury found a verdict of guilty as charged, and the evidence shows that from the nature and severity of the wounds produced, and that one of them was a clear cut to the bone, and another through the skull, it is held that the jury were warranted in concluding that a deadly weapon was employed in producing such wounds.</p> <p>Id.—Instruction as to Guilt op Aider and Abettor op Crime— Omission op Qualification of Eeasonable Doubt—Inclusion Elsewhere.—An instruction as to the guilt of one who aids and abets a crime, as being that of a principal in the crime, is not erroneous for omitting the immediate element of reasonable doubt therein, where the court elsewhere explicitly instructed the jury that “in order to convict this defendant of the crime charged in the information, it is incumbent upon the prosecution to satisfy you beyond a reasonable doubt of the truth of every material allegation thereof,” and also gave a charge preceding the instruction given, that “if after a full and careful consideration of all the evidence in this case you are not satisfied beyond a reasonable doubt that the defendant committed any one of the offenses defined in these instructions, then it will be your duty to acquit him.”</p> <p>Id.—Repetition of Charge not Required.—When a material charge is once given, it is not necessary to repeat it in a different form; nor is each sentence of the charge required to contain all the conditions and qualifications which are to be gathered from the entire text.</p> <p>Id.—Instruction Given at Defendant’s Request.—When an instruction is given at defendant’s request, he cannot complain thereof.</p>

<p>PETITION for writ of mandate to the controller of state.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Election Contest—Time for Notice of Filing Statement—Construction of Code—Public Interest and Policy of Law for Speedy Trial Considered.—In determining the proper construction to be given to section 1118 of the Code of Civil Procedure, in providing that “within five days after the end of the time allowed for filing statements, the county clerk must notify the superior court of the county or city and county of all statements filed,” the public interest concerned, and the policy of the law to have such contests determined as speedily as possible, in order that the rightful claimant may enjoy as nearly as practicable the entire term for which he has been chosen, should not be laid out of view in determining the meaning of that provision, which is also to be construed with another section 1118, as importing that “notice must be given of the filing of the statement,” but that it must be given “not later than five days after the end of the time for filing statements.”</p> <p>Id.-—Mandamus to Compel Trial of Contest.—Where the trial court directed the citation of the contestee to be quashed on the ground that the court had no jurisdiction of the person of the contestee, for the reason that the notice given and the order of court fixing the session for trial were made prematurely and the citation was issued prior to the time fixed by the statute, such action amounted to a refusal to proceed with the trial of the contest; and an alternative writ of mandate to compel the trial of the contest will be made peremptory, upon the ground that the judge upon a prelimi- • nary matter decided contrary to the law and the facts, while he had jurisdiction of the person of the contestee and to determine the contest, and it was his plain duty to proceed with the trial of the contest at the time appointed therefor.</p> <p>Id.—Absence of Conflict as to Facts Conferring Jurisdiction.— Where there is no conflict as to the facts, and in the judgment of this court those facts confer jurisdiction and make it the clear duty of the lower court to proceed with the trial of the cause, if there is no other adequate remedy the writ of mandate will issue commanding such action.</p> <p>Id.—Appeal not an Adequate Remedy in an Election Contest.— Conceding without deciding that an appeal would lie, it should not be considered a speedy and adequate remedy in election contests, in which the public are interested, and when the term may expire before the final determination of the contest in the appellate courts.</p>

<p>Criminal Law—Assault With Deadly Weapon—Question of Loaded Gun—Support of Verdict—Conflicting Evidence—Facts and Circumstances.—Though an assault with an unloaded gun is not an assault with a deadly weapon for want of a present ability to do a violent injury, yet the question whether the gun was loaded was one of fact for the jury, and, notwithstanding the testimony of the defendant to the contrary, it is held that the facts and circumstances in proof were such that the jury had the right to disregard his testimony, and find from such facts and circumstances, connected with his course of conduct, acts and threats that the gun was loaded, and to justify their verdict of guilty of the offense charged.</p> <p>Id.—Pointing of Loaded Gun—Result of Quarrel.—The jury having found that the gun was loaded, under evidence that it was obtained as the result of a previous quarrel, the pointing of it toward the other party to such quarrel with the threat shown, constituted, under the circumstances, an assault with a deadly weapon.</p> <p>Id.—Distance of Assailant from Intended Victim.—The distance of the assailant from the intended victim is immaterial, provided it be near enough to effect his unlawful intent. A distance of about twenty feet is sufficiently near to justify a conviction for an assault with a deadly weapon.</p> <p>Id.—Instruction—Self-defense in Previous Quarrel.—An instruction as to self-defense in the previous quarrel before defendant went after the gun is not relevant to the offense of an assault with a deadly weapon which occurred later, for which the defendant was being tried, though the evidence of the previous quarrel was material as bearing upon what followed. But no instruction as to the relative rights and duties of the parties in- connection with the previous quarrel could affect the responsibility of the defendant for his subsequent acts, though it is held that the instruction was not prejudicial to the defendant.</p> <p>Id.—Refusal of Instruction Elsewhere Given.—Where the jury were fully and correctly instructed on the point contained in a requested instruction, the refusal to give it was without prejudice.</p>

<p>Criminal .Law—Time and Mode op Appeal—Date op Judgment— Code Amendment not Retroactive.—The amendment of sections 1239 and 1240 of the Penal Code, approved April 22, 1909, as to the time and mode of taking an appeal from a judgment or order, by announcement in open court, only applies to judgments and orders rendered after the time when said amendment took effect, and has no retroactive effect, or application to any judgment rendered prior to its passage, and appeals from prior judgments are governed by the law applicable thereto, though not taken until after that amendment became effective.</p> <p>Id.—Appeals by People Governed by Same Rule as Appeals by Dependant.—There is no difference as to the effect of an appeal taken by the people from a judgment rendered prior to the amendment, though taken subsequent to the amendment, and one taken by the defendant in the like case. The language of the statute concerning the time and method of appeals by the defendant and by the people is the same, and must be given the same effect.</p> <p>Id.-—General Rule op Statutory Construction as to Remedy by Appeal.—As a general rule, unless it is evident from the terms of a statute which gives or takes away, or modifies, the remedy by appeal, that it was intended to have a retroactive effect, it applies only to eases pending and undetermined at the time it goes into effect, and has no application to causes in which judgments have been entered prior to that time.</p> <p>Id.—Rule Especially Applicable to Constitutional Jurisdiction op Subject Matter op Appeal.—Especially should the rule of statutory construction apply where the jurisdiction of the subject matter of the appeal in the appellate court is constitutional, and does not depend upon statutory enactment.</p> <p>Id.—Appeal by People prom Judgment on Demurrer to Indictment —Dismissal Properly Repused.—Where an appeal was taken by the people from a judgment rendered on demurrer to the indictment, prior to the amendment of 1905, but taken subsequently to its -passage in the mode provided by law when the judgment was rendered, a motion to dismiss the appeal on the ground that it could not be so taken was properly refused.</p> <p>Id.—Claim of “Once in Jeopardy” not Ground of Dismissal—Consent to Discharge of Jury Without Verdict—Waiver.—The claim that the defendant was “once in jeopardy” is not ground for dismissing the appeal, where the record shows that defendant both personally and by his attorney consented to the discharge of the jury without verdict, and waived the claim of “once in jeopardy,” in order that he might interpose the demurrer to the indictment which was sustained by the court and from which the appeal is taken.</p> <p>Id.—Sufficiency of Indictment—Charge Against Bank Officer— Knowingly Exhibiting False Report to Deceive Bank Commissioners.—An indictment under section 558 of the Penal Code, charging that the defendant, as officer of a specified banking corporation, knowingly exhibited to the bank commissioners an instrument of evidence, consisting of a false report of its affairs with intent to deceive them in respect to its affairs, charges a distinct offense under that section, the language of which is not limited to one “proposing to organize a corporation, or to increase the capital stock of any corporation.”</p> <p>Id.—Title of Section not Conclusive.—The title of the section headline as “Frauds in Procuring Organization of Corporation or Increasing Its Capital” is not conclusive, and cannot limit the effect of any independent offense made penal by the terms of the section.</p> <p>Id.—Materiality of False Report of Affairs to Bank Commissioners.—Under the bank commissioners’ act a verified report may be required by them showing “the actual financial condition” of the bank, verified by oath of its president, secretary or cashier, and stating the total amount paid in money by stockholders for capital stock; and where the indictment alleges a report stating that the amount of capital paid in coin was $102,245, though it was not greater than the sum of $50,000, it shows a false report of its affairs intended to deceive. Coin is money, and a statement that a false amount has been paid in coin is misleading and deceiving to the bank commissioners.</p> <p>Id.—Offense Akin to Perjury.—The crime denounced by the portion of the section under which the indictment was framed is akin to perjury, in which any fact which tends to disprove the ultimate fact in issue is material, and a general averment that the false testimony was material is sufficient, unless it affirmatively appears from other averments that it was immaterial. This rule applies to the indictment in question, which fully complies therewith.</p>

<p>Nonsuit—Nature of Motion—Question of Law—Demurrer to Evidence.—A motion for a nonsuit, to prevent the submission of a case to the jury, presents a question of law for determination by the court. The motion is equivalent to a demurrer to the evidence, or an objection that, admitting all of the proved facts to be true, they do not in legal effect operate in favor of the plaintiff or entitle him to the relief asked for by him.</p> <p>Id.—Effect of Evidence—Prima Facie Case—Motion to be Denied. The evidence on a motion for a nonsuit,. at the close of the plaintiff’s ease must be given its full probative force, whether it has been erroneously admitted or not; and on such motion the evidence must be taken most strongly against the defendant; and if the plaintiff has introduced proof enough to make out a prima fade case under his pleading, the motion for a nonsuit at the close of his case should be denied.</p> <p>Id.—Proceeding to Contest Will—Bules of Nonsuit in Civil Cases Applicable.—In determining whether or not, in a proceeding to contest a will, the evidence produced by the contestant is sufficient to require the submission of the case to the jury, the same rules apply as in civil eases. Every favorable inference fairly arising from the evidence produced must be considered as proved in favor of the contestant; and where the evidence is fairly susceptible of two constructions, the court must take the view most favorable to the contestant; and if there is any substantial evidence tending to sustain the contest, the contestant is entitled to have the ease go to the jury upon its merits, and a nonsuit is improper.</p> <p>Id.—Contest by Mother of Will to Stranger After Probate—Un- ' due Influence—Improper Nonsuit.—Where a will in favor of a stranger was contested after probate by the mother of deceased, for undue influence, and the evidence shows that he went to live with such stranger, while ill and weak in body and mind, to be cared for by her, and while on his way thither with a friend, he requested him to prepare a will to give his poultry to her for her care, and his farm to his mother, brothers and sisters in Ireland, and when he came to see him the next day to talk further about the will he found him unconscious, and previously said stranger had sent for an attorney to prepare a will in her favor, and after the friend had left for inability to talk with him the will so prepared was executed, and the deceased died the next day, in view of such facts, and other facts and circumstances in proof, the inference is fairly deducible that deceased did not execute the will of his own volition, but by her influence over Ms debilitated mind; and a nonsuit of the contestant was improperly granted.</p>

<p>Order Based upon Conflicting Affidavits—Review upon Appeal.— In the consideration of an appeal from an order made upon conflicting affidavits, involving the decision of a question of fact, this court is bound by the same rule that controls it when oral testimony is presented for review; and, in such case, the affidavits in favor of the prevailing party must be taken as true, and the facts stated therein must be considered as established.</p> <p>Id.—Order Refusing to Change the Place of Trial—Conflicting Affidavits as to Residence of Defendant.—Where, in an action of divorce brought by the wife in Tuolumne county, the defendant appeared without summons, and filed a demurrer and demand for change of the place of trial to San Francisco as his residence, and the order refusing to grant it was made upon conflicting affidavits, and plaintiff presented affidavits setting forth detailed probative facts showing that his residence had been changed to Tuolumne county, and that he resided there when the action was commenced, the order cannot be disturbed upon appeal.</p> <p>Id.—Affidavits Stating Conclusions Without Facts—Lack of Probative Value—Decision must be Based on Probative Facts. Affidavits merely setting forth the conclusion that defendant is a tona fide resident of San Francisco, without setting forth any facts upon which the conclusion is based, have no probative value. The court must decide the question of residence upon probative facts; and it is not for the witnesses to decide it.</p>

<p>Banks—Check, of Depositor—Nature and Effect—Nonliability of Bank for Unaccepted Check.—The holder of the check of a depositor upon a bank is the mere bearer of an order drawn by the depositor, the making and delivery of which does not work an assignment of the deposit fund or any part of it, and it is not binding on the bank unless accepted by it. The check-holder has no right of action against the bank upon a cheek which it refuses to accept.</p> <p>Id.—Refusal to Pay Sufficient Deposit—Liability Limited to Depositor—Liability of Depositor to Check-holder.—Even though a bank refuses to pay a sufficient deposit to cover the amount of the face of the check, it becomes charged with no liability to the bearer of the check. The bank is, in such case, responsible to the depositor only, and the depositor is liable, in turn, to the person to whom he issues his checks.</p> <p>Ib.—Effect of Attachment Against Check-maker—Garnishment of Bank—Right of Counterclaim.—The effect of the service of a writ of attachment at suit of the holder of the check against the maker thereof, and the garnishment of the bank under such writ, is merely to place the attaching creditor in the shoes of the maker of the check, and gives the bank the right to counterclaim or set off any past due indebtedness of the depositor to the bank which it could counterclaim in an action by the depositor against the bank to recover his deposit.</p> <p>Id.—Setoff of Secured Note—Pledge.—Though no setoff to the deposit could be made of indebtedness of the depositor to the bank secured by a mortgage upon real property, yet the bank may set off thereto a matured note secured by a pledge of personal estate, consisting of a dividend by the pledgor upon a future sale of real property to be converted into money, the pledgor’s dividend therefrom being assigned to the bank as pledgee. As pledgee the matured note may be set off against the depositor, and as against a garnishment of the deposit by the attaching creditor of the depositor, without proceeding to collect on the security.</p> <p>Ib.—Pledge Secured by Trust Agreement for Sale Assigned as Security—Judgment for Delivery to Plaintiff of Securing Papers.—Where plaintiff sought to obtain judgment against the bank as garnishee for the full amount of the attachment in his suit against the depositor against whom he recovered judgment for the full amount of the check, and the trial court ordered the securing papers, consisting of a trust agreement for sale and dividend assigned as security of the note set off against the deposit, to be delivered to plaintiff “upon this judgment becoming final,” though such relief is not specifically prayed for in the complaint against the bank, plaintiff can scarcely complain of this fact.</p> <p>Td.—Modification of Judgment—Improper Condition.—The court improperly attached as a condition to the delivery of the documents showing the pledge securing the note set off against' the depositor, that they should be delivered “upon this judgment becoming final,” and the judgment will be modified by striking out those words, and as so modified will be affirmed.</p>

<p>APPEAL from an order of the Superior Court of Tehama County granting a motion to retax costs. John F. Ellison, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>APPLICATION for writ of mandate to the city council of the city of Los Angeles.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Estates of Deceased Persons—Failure of Executor to Publish Notice to Creditors in Time—Revocation of Letters—Excuse— Discretion of Court.—Although the provisions of section 1511 of the Code of Civil Procedure, taken literally, lend support to the decision of the trial court that it is mandatory upon it to revoke the letters testamentary of an executor for failure to publish notice to creditors within two months, regardless of excuse, the more reasonable view is that the legislature intended to vest the trial judge with á wise discretion in the revocation of letters, and to confer upon it the power to decline to revoke the letters if it appears that the failure to publish the notice within the statutory period is satisfactorily excused.</p> <p>Id.—Policy of Law to Give Effect to Will—Nomination of Executor.—It should be and is the policy of the law to give effect, as far as it can be legally done, to the expressed will of the deceased. The nomination of the executor is evidence of the confidence reposed in Mm by the testator, and the deliberate purpose and desire thus solemnly expressed as to the administration of the estate should not be thwarted unless the plain provisions of the law or the interests of justice demand it. The provisions of the will reposing special confidence in him should not be laid out of view where there may be a question as to what the legislature intended in a provision as to the removal of an executor; and it should rather incline the court to give to the law a construction as favorable as possible to the executor, where he has not shown himself to be incompetent, corrupt or grossly negligent.</p> <p>Id.—Purpose of Law to be Considered.—When the purpose of the law is apparent, it should be given effect, since whatever is within the purpose of the lawmaker is as much part of the statute as if it was within the letter. To carry out the purpose of the law it is held in many cases that the words “shall” and “must” may be considered directory merely.</p> <p>Id.—Use of Word “Neglects” in Statute.—The use of the word “neglects” in section 1511 of the Code of Civil Procedure indicates clearly the purpose of the law to clothe the court with some discretion. “To neglect” and “to omit” are not synonymous. “To neglect” is to omit by carelessness or design.</p> <p>Id.—Duty of Executor to Publish Notice—Burden to Show Excuse. It is the duty of the executor to publish the notice as the law requires. He has no discretion in that regard; but if by excusable neglect he omits to do so, the burden is upon him to show such excusable neglect, and if such excuse appears and the estate has suffered no loss by reason thereof, the excuse should be accepted.</p> <p>Id.—Endeavor of Executor to have Letters Published—Direction of Attorney to Stenographer.—Where it appears that the executor honestly endeavored to have the notice published, and requested his attorney to prepare and publish it, and the attorney delegated the work to his stenographer, who by oversight omitted to publish it in time, the oversight of the stenographer, though regrettable, is not of sufficient gravity to authorize the. removal of the executor.</p> <p>Id.—Forfeiture of Office not Favored.—The forfeiture of an office is not favored, and provisions having that effect are to be strictly construed to avoid such forfeiture; and if the statute can be reasonably interpreted to avoid the forfeiture, it should be so construed.</p> <p>Id.—Reversal of Order Removing Executor.—It is held that under all the circumstances appearing, the trial court was not justified in revoking the letters of the executor for an honest mistake which was not the result of gross carelessness, and which was productive of no positive injury to the estate, and that the order must be reversed.</p>

<p>Action fob Services—Verified Complaint—Facts Presumptively Known to Defendant—Denials on Information and Belief— Judgment upon Pleadings.—In an action for services rendered to defendant, where the complaint is verified, and the facts therein stated are presumptively within the knowledge of the defendant, and all of the denials are merely upon information and belief, or for want of information and belief, such denials admit the allegations of the complaint, and judgment was properly rendered upon the pleadings.</p> <p>Ib.—Positive Answer Required to Raise an Issue—Evasive Answer Insufficient.—Where the facts stated in such complaint are presumptively known to the defendant, a positive answer is required to raise an issue. An evasive answer on information and belief raises no issue, but admits the verified allegation so answered.</p> <p>Id.—Lack of Knowledge in Fact—Explanation Essential.—If the defendant presumed to know the facts has a lack of knowledge in fact, an explanation is essential how it happens that he is without such knowledge.</p> <p>Id.—Rules of Pleading in Answer to Verified Complaint Applicable to Corporations.—The rules of pleading in answer to a verified complaint as to facts presumptively known apply as well to corporations defendant as to individuals.</p> <p>Id.—Implication Against Knowledge of Corporation not Permissible.—The implication that the defendant corporation has no positive knowledge whether it entered into a contract with plaintiff to board its employees and to furnish it with a team at a certain price, and to perform services for it, at its request, and whether it has not paid therefor is not to be tolerated, and is opposed to common observation and experience.</p> <p>Id.—Object of Rules of Pleading.—The rules of pleading under our system are intended to prevent evasion and to require a denial of every specified averment in a sworn complaint, and whenever the defendant fails to make such denial, he admits the averment.</p> <p>Id.—Immaterial Averments as to Assignment and Reassignment— Probative Matters.—Averments as to an assignment by plaintiff and a reassignment to him, which left his claim as it was originally, involve probative matters that have no place in the pleadings, and are wholly immaterial, as the complaint is sufficient without them.</p> <p>Id.—Order Denting Motion to Set Aside Judgment for Amended Answer—Review upon Appeal—Absence of Bill of Exceptions.—An order denying defendant’s motion to set aside the judgment and for leave to file an amended answer, in the absence of a bill of exceptions, cannot be said upon appeal to have involved an abuse of discretion.</p> <p>Id.-—-Affidavits Appearing in Record—Denial of Motion Justified.— If it be assumed that the affidavits appearing in the record are sufficiently authenticated, it cannot be held that the affidavits and counter-affidavits so appearing are the only ones used at the hearing; but it is held that such affidavits show that the court was fully . justified in denying the motion.</p>

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

<p>APPEAL from a judgment of the Superior Court of Imperial County dismissing an election contest. Franklin J. Cole, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

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

<p>APPEAL from a judgment of the Superior Court of Inyo County dismissing a writ of review. F. F. Oster, Judge presiding;</p> <p>The facts are stated in the opinion of the court.</p>

<p>Order Granting New Trial—Grounds op Motion—General Order— Review upon Appeal—Insufficiency op Evidence.—Where a motion for a new trial was made on various statutory grounds, and among them specified that the evidence was insufficient to justify the decision of the court, and the discovery of new evidence material to the plaintiff’s case which she could not have produced with reasonable diligence, and the order granting the motion is general, it must be presumed that all of the grounds of the motion were considered by the court in granting the motion, and the order may be sustained on the ground of insufficiency of the evidence to justify its decision.</p> <p>Id.—Argument at Hearing—Rights of Respondent.—The respondent may justify the order granting the motion for a new trial upon any ground involved in the motion, whether such ground was argued at the hearing or not; and if it be a fact that all of the argument at the hearing was addressed to the ground of newly discovered evidence, that fact cannot preclude the support of the order on the assigned ground of insufficiency of the evidence to justify the decision of the court.</p> <p>Id.—Discretion not Abused.—If the order as made can be sustained on the ground that the court did not abuse its discretion in granting the motion for insufficiency of the evidence, it must be affirmed. It is held that upon the evidence given at the trial, and as shown in the bill of exceptions, it cannot be said that the court improperly exercised its discretion in making the order complained of on that ground.</p>

<p>Criminal Law — Murder, — Conviction of Manslaughter — Self-defense—Question for Jury—Conflicting Evidence—Support of Verdict.-—Where a defendant charged with murder and convicted of manslaughter claims self-defense, and that the verdict is against the evidence—the killing being admitted, and the conduct of the defendant being free from fault prior to the shooting—it was a question for the jury to determine, from all the circumstances, whether the conduct of deceased preceding and at the time of the killing was sufficient to justify defendant in an honest belief, as a reasonable man, that he was in danger of his life or of immediate bodily harm from the hands of deceased; and where the evidence is substantially conflicting on that question, and the jury might infer from sufficient evidence that the killing was not justified, but was the.result of passion suddenly inflamed from vile epithets hurled by deceased at defendant, the verdict is sufficiently supported.</p> <p>Id.—Justification Under Plea of Self-defense.—The acts which a defendant may do and justify under a plea of self-defense depend primarily upon his own conduct, and secondarily upon the conduct of the deceased.</p> <p>Id.—Immaterial Evidence—Injury to Defendant from Accident to Head.—Where the only plea was self-defense, and no defense of insanity was interposed, evidence that the defendant had at one time suffered from an injury to Ms head as the result of an accident was prima fade immaterial to the defense interposed, and where no specific purpose of such evidence was stated, the court did not err in excluding the evidence.</p> <p>Id.—Puling upon Question not Answered.—This court is not, called upon to consider or discuss a ruling upon a question not answered by a witness.</p> <p>Id.—Narrative of Past Event—Absence of Defendant.—A question calling for testimony which could only have been the narrative of a past event as to certain conduct of deceased not in the presence of the defendant, and which could not be part of the res gestae of the offense charged, was properly excluded.</p>

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

<p>action for Lumber Sold—Use on Five Buildings—Sufficiency of Evidence.—In an action for lumber sold to be used on five different buildings, where the uncontradieted evidence of defendant’s agent shows that the whole amount of lumber sued for was sold and delivered to the defendant, the fragmentary evidence of the defendant’s secretary as to the amount of lumber required on one of the jobs was properly disallowed as not affecting the proof of the whole quantity of lumber sold and delivered to the defendant and of the value of the quantity delivered.</p>

<p>Contract to Furnish Iron and Steel for Building—Construction— Maturity of Payments—Local Custom for Monthly Payments. A contract to furnish the iron and steel for a six-story a.nd basement building in San Francisco, where the general custom is for monthly payments, which provides for $75 per ton for cast-iron and $85 per ton for steel, ninety per cent of which was to be paid for the work at delivery, and the balance thirty-five days after the completion of the wo.rk, “Provided, that when each payment or installment shall become due, and at the final completion of the work, certificates in writing shall be obtained from said architect, stating that the payment or installment is due or work completed as the ease may be, and the amount then due,” is to be construed as providing for payment in installments, the period for the installment to be left probably to the general custom.</p> <p>Id. — Removal of Ambiguity — Contemporaneous Construction by Parties—Monthly Payments.—Any possible doubt or ambiguity in the contract as to when payments were due was settled by the contemporaneous acts and conduct of the parties in following the usual custom as to monthly payments, and during a period of several months certificates were issued by the architect and payments made by the defendant.</p> <p>Id.—Action for Breach of Contract—Recovery of Unpaid Installments—Cross-complaint for Damages—Support of Finding.— In an action by the contractor to recover monthly installments which the defendant left unpaid in breach of the contract, wherein the defendant claimed by way of cross-complaint damages for increased price of iron and steel in the market and for rental value of the building during delay in completion, through the fault of the plaintiff, the finding by the court, which is amply sustained by the evidence, that the stoppage of the work was owing to defendant’s failure to make payments when due is a complete and sufficient answer to defendant’s position in the cross-complaint. Under such finding, the delay in the work was not the fault of plaintiff.</p>

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

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

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

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

<p>APPEAL from a judgment for defendant upon demurrer to a complaint in mandamus in the Superior Court of Lassen County. F. D. Burroughs, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>APPEAL from orders of the Superior Court of Los Angeles County denying motions to vacate a judgment and to dissolve an attachment. ,W. R. Hervey, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

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

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

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

<p>Action for Malicious Prosecution—Refusal of Motion of Plaintiff to Change Venue—Improper Influence of Defendant—Conflicting Affidavits—Review upon Appeal.—Where the plaintiff in an action for malicious prosecution moved to change the place of trial from the place of residence of both parties, on the ground that no fair trial can be had within the county, owing to the improper influence of defendants over any jury, and over the citizens of the county, where the affidavits are substantially conflicting as to the existence of such improper influence, the order refusing the motion cannot be disturbed upon appeal.</p> <p>Id.—Malice and Want of Probable Cause—Burden of Proof upon Plaintiff.—In an action for malicious prosecution the burden is upon the plaintiff to prove both malice and want of probable cause on the part of the defendants.</p> <p>Id.—Nature of Probable Cause—Questions of Law and Fact.—Probable cause is a suspicion founded upon circumstances sufficiently strong to warrant a reasonable man in saying that the charge is true. What circumstances amount to probable cause is a pure question of law, but whether they exist or not in any particular case is a pure question of fact.</p> <p>Id.—Prosecution for Perjury in Civil Action—Verdict of not Guilty—Want of Probable Cause of Prosecuting Officers not Shown.—Where the action for malicious prosecution is brought against a prosecuting attorney and his deputy, who prosecuted plaintiff upon a charge of- perjury, upon the trial of which he was acquitted, it is held, upon a review of the evidence, that a want of probable cause for the prosecution is not shown, but that, on the contrary, it reveals sufficient facts and circumstances known to the defendants to constitute reasonable grounds for believing that the charge of perjury was true.</p> <p>Id.—Actions for Malicious Prosecutions not Favored in Law— When Dpheld.—Actions for malicious prosecution are not favored in law, although they have been readily upheld when the proper elements have been presented.</p> <p>Id.—Arrest and Prosecution in Good Faith—Mere Acquittal not Ground for Damages.—Where an arrest and prosecution of a defendant by a prosecuting officer or by any citizen is made in good faith, with reasonable grounds to believe that an offense has been committed, he is not to be subjected to damages merely because the accused is not convicted.</p> <p>Id.—Evidence—Judgment-roll in Prosecution Immaterial—Incarceration Admitted.—Where the incarceration of the defendant is admitted, the judgment-roll in the prosecution for perjury was immaterial.</p> <p>Id.—Judgment-roll in Civil Action—Materiality of Testimony.— Where the judgment-roll in the civil action was read to show the immateriality of the testimony to the issue if it were immaterial, it would show a want of probable cause for the prosecution, but it being in fact material to the issue, the evidence failed to show a want of probable cause, but established that there was probable cause for the prosecution.</p> <p>Id.—Facts Leading to Civil Suit Immaterial.—The court properly excluded evidence of the facts leading up to the institution of the civil suit in which the alleged perjury was committed, as being immaterial.</p> <p>Id.—Evidence of Witness Presented to Grand Jury—Admission of Correctness in Transcript.—The appellant cannot object to testimony of a witness read before the grand jury, where he admits the correctness of such evidence as set forth in the transcript, which shows that it was proper to be considered by the grand jury upon the question of probable cause.</p>

<p>APPEAL from an order of the Superior Court of Kern County denying a motion to vacate a judgment by default. J. W. Mahon, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Promissory Notes—Consideration—Legality—Settlement of Shortage of Accounts by Manager of Corporation—Threat to Recover upon Official Bond.—Promissory notes executed by the manager of a corporation to cover a shortage in his accounts, who was under a bond for the faithful discharge of his duties as such manager, were upon a sufficient consideration, and the consideration was not rendered illegal or void by a mere threat of the corporation, within its rights, that if the shortage were not settled, it must be recovered upon his official bond, unaccompanied by any threat of arrest or of criminal prosecution for embezzlement; and the mere fact that the manager feared such a prosecution from the bonding company cannot affect the legality of the consideration.</p> <p>Id.—Threat of Criminal Prosecution not Implied from Reliance on Bond.—No threat of a criminal prosecution could be implied from the statement to the manager that he would rely upon the bond if the shortage was not settled.</p> <p>Id.—Duty of Manager to Pay Shortage—Settlement by Secured Notes Valid.—It was the immediate duty of the manager to- pay the shortage at once; and where he was unable to do so, a settlement of the shortage by the giving of secured notes to cover every claim of the corporation against its manager was valid and effective.</p> <p>Id.—Repayment of Dividend Declared Without Profits—Compromise of Doubtful Claim—Consideration.—Where the manager was to share in dividends from net profits, and one was mistakenly declared without profits, the inclusion of such dividend in the settlement is valid as constituting the compromise of a doubtful claim asserted in good faith, which became a sufficient consideration for the promise to repay it, whether it eould be lawfully recovered back or not. Moreover, the settlement made, upon an extension of time, and the waiver of further claim upon the bond, was a sufficient consideration for the repayment of such dividend.</p> <p>Id.—Failure of Proof—Finding or Order not Supported.—The absence of a finding upon an issue not proved, or the failure of the court to act in the absence of evidence sustaining its action, constitutes no error.</p>

<p>Action by Administbator—Defective Title Cured by Complaint.—■ The omission of the word “as” in the title of an action by an administrator is cured by clear and distinct averments in the complaint showing that the action is not brought by the administrator in his individual capacity; but as the duly qualified and acting administrator of the estate to recover moneys claimed to belong to the estate, and alleged to have been demanded by him, “as such administrator,” and to have been refused to be delivered to him “as such administrator.”</p> <p>Id.—Judgment fob Administrator—Undisputed Facts—Legal Effect of Findings—Support of Judgment—Review upon Appeal.—Although judgment was for the administrator and against the personal defendant, who claimed the legal right to the money, yet where the facts are undisputed, and the single question presented upon appeal is as to their legal effect, and as to whether the findings of the undisputed facts warrant the conclusions of law and support the judgment, it is held otherwise, and that judgment should be ordered for defendant upon the findings.</p> <p>Id.—Transfer of Bank Deposit—Joint Ownership of Father and Son—Survivorship of Besidue—Direction to Bank—Intention.—Where a bank deposit in the name of a father was transferred to the account of himself and his son as “joint owners,” with the unrestricted right of either to make withdrawals during their joint lives, with direction to the bank to pay the residue of the deposit to “the survivor” upon the death of the other, the intention of the father is thereby clearly manifested that, upon his prior death, the whole residue of the deposit should vest solely in the son.</p> <p>Id.—Nature of Transaction—Creation of Trust.—While the transaction lacks the essential elements of a gift either inter vivos or causa mortis, yet the manifest intention of the father can be sustained through the agency of a trust, giving the son the right to share in the deposit during their joint lives, and upon the father’s death, to receive from the bank, as trustee, the remainder of the deposit in his sole and exclusive right.</p> <p>Id.—Trust Fairly Implied.—If a trust can be fairly implied from the language used, as the intention of the parties, the intention will be executed through the medium of a trust. It is not essential to create a trust to use the words “trust” or “trustees”; yet there must be some words, it matters not what they are, which indicate with reasonable certainty a purpose to create a trust.</p> <p>Id.—Facts Proved and Found—Creation of Trust Under Law.— Under our law, the father was authorized to create a trust for himself and his son, in the manner and form disclosed by the evidence; and testing the facts proved and found by the law, there appears one capable of creating a trust; the subject, purpose and beneficiary thereof clearly manifested; the acceptance of the trust by the bank as trustee, by accepting the deposit, subject to its conditions and provisions; and the acts and language of the father as trustee, indicating, with reasonable certainty, an intention to create a trust.</p> <p>Id.—Valid Trust Subject to Withdrawal of Deposits.—A valid trust in money may be created, subject to be diminished or practically revoked by the authorized withdrawal of the trust fund, until it may be completely exhausted before the right of survivorship can exist in the survivor as an exclusive beneficiary.</p> <p>Id.—Intention of Trustee to Create Trust—Duty of Courts.— Where the intention to create a trust is indicated with reasonable certainty by any words or acts of the party having the right to create a trust of the personal property involved in the transaction, it is the duty of the courts to so construe such transaction as to execute such intention.</p> <p>Id.—Meaning of Word “Survivor.”—The word “survivor,” employed by the father in the transfer of the deposit to himself and his son, must be accorded the meaning it naturally would have when used in connection with the disposal of one’s estate to take effect after the death of the owner.</p> <p>Id.—Satisfactory Method of Creating Trust.—Giving the word “survivor” its proper meaning, the father adopted the most satisfactory method of making his son a joint beneficiary with himself during their joint lives in the deposit and the sole beneficiary after Ms death of the remainder of the deposit with which this litigation is concerned, and tMs being so, it is the duty of the courts to respect and execute Ms intention through the medium of a trust in harmony with the facts proved and found.</p> <p>Id.—Conclusion of Law to be Disregarded.—The finding that the father was the owner of the deposit at all times until his death is a mere conclusion, not affecting the proper judgment to be rendered upon the findings of fact.</p>

<p>Husband and Wife — Divorce — Judgment for Alimony—Partial Exemption — Earnings ' for Support of Husband’s Indigent Mother—Besidence.—Where a wife, who had obtained a divorce from her husband, was seeking to enforce a judgment for alimony out of the whole of the earnings of the husband, it is held that the court properly made a partial exemption out .of such earnings for the support of the husband’s indigent mother, who was shown to be old and in poor health, and unable to maintain herself, and to have to look to her son for her sole means of support, and to be a resident of the state, and that, being so dependent on her son for support, she was a member of his family within the meaning of section 690 of the Code of Civil Procedure allowing such exemption, though not residing with her son.</p> <p>Id.—Family of Judgment Debtor—Common Abode not Essential.— It is not essential, to constitute a member of the family of the judgment debtor, that they should occupy a common abode. The debtor’s wife and children may not be living with him, and yet they form part of his family. Though in a narrow and strict sense, a mother not living with her son is not a member of his family by virtue of their relationship, yet, where she is indigent and helpless, and dependent on him for support in this state, she forms part of his family, though not having the same abode.</p> <p>Id.—Legal Duty of Child to Support Indigent Parent.—Under section 206 of the Civil Code, the legal obligation is imposed upon a child to support an indigent and helpless parent, to the extent of his ability.</p> <p>Id.—Test of Constitution of Family.—It is the relation, and dependence of the relation, and not the aggregation of the individuals, that constitutes a family.</p> <p>Id.—Insufficient Proof of Former Partial Exemption—Bevbrsal of Order upon Appeal—Bes Adjudicata—Subsequent Order upon Proper Proof,—Where a former order allowing a partial exemption was made upon insufficient proof and was reversed upon appeal, such reversal is not res adjudicataj in the sense that it precludes a subsequent order upon a motion presenting new evidence sufficient to sustain the order.</p> <p>Id.—Principle of Res Ad judicata not Applicable to Motions.—The court committed no error in permitting the defendant to prove the proper facts to sustain the subsequent order. Such permission was no more in effect than allowing him to renew his motion for an order of exemption. The principle of res adjudicata is not, in a strict sense, applicable to motions.</p> <p>Id.—Renewal of Motion a Matter of Discretion.—In this state the granting or denying of permission to renew a motion is matter of discretion with a trial judge.</p> <p>Id.—Effect of Reversal of Former Order—Liberal Exercise of Discretion—Abuse not Shown.—It is held that the defendant having had the benefit of a hearing in the trial court, and of an appeal from the trial court’s order, the permission accorded him by the trial court to make the proof in question was a very liberal exercise of judicial discretion, yet this court is not prepared to say that such discretion was abused.</p> <p>Id.—Question Proper to be Decided—Propriety of Exemption from Alimony.—The question whether statutory exemptions from execution have any application to an award of alimony, raised in argument, is too important to pass without decision. (Per Beatty, J., dissenting from order denying rehearing.)</p>

<p>Husband and Wife—Judgment fob Alimony—Partial Exemption— Support of Former Husband’s Indigent Mother and Second Wife.—Where a former wife had obtained a divorce from her husband, and was seeking to enforce a judgment for alimony out of the whole of his earnings, it is held that the court properly made an order of partial exemption out of such earnings both for the support of such former husband’s indigent mother residing in the state, who was dependent solely on her son’s support, and also for the support of his second wife, with whom he was living, thus showing that he undoubtedly came, within the exemption of the statute.</p> <p>Id.—Principles of Law Same as in Case No. 935.—It is held that the principles of law involved are the same as in case No. 935, supra, and that upon the authority of that case, the order appealed from is affirmed.</p>

<p>San Francisco Charter—Police Pension Fund—Retirement of Disabled Officer on Life Pension—Widow not Entitled.—Under the terms of the San Francisco charter, a widow is entitled to a pension only when her husband is killed in the service, and where he was not so killed, but was retired on a disability pension for his Ufe, which by the terms of the charter ceased with his death, his widow can claim no pension under the charter.</p> <p>Id.—Injury to Officer in Performance of Duty—Disability After Seven Tears—Death After Two Tears’ Retirement.—An officer who merely receives an injury in the performance of his duty, and does not retire as disabled upon a pension for life until seven years thereafter, and who dies two years after his retirement, cannot be said to have been “killed while in the performance of his duty,” so as to entitle his widow to a pension on that ground.</p> <p>Id.—Nature of “Killing Officer in Performance of Duty.”—A poUce officer may be said to have been “killed in the performance of his duty,” who dies soon after receiving an injury in the performance of his duty.</p> <p>Id.—Construction of Charter.—Construing all of the provisions of the charter together, the intention is manifest to exclude a widow from claiming a pension under it, as the widow of an officer killed in the performance of his duty, where such officer has retired under a disability pension to continue only until his death and then to cease.</p> <p>Id.—Cardinal Rule of Construction.—It is a cardinal rule of construction of statutes that some effect must be given to every word and clause, if possible. Words in a statute should never be construed as unnecessary and surplusage if a reasonable construction can be adopted which will give force to all the words of the statute.</p> <p>Id.—Addition of Words of Pension “to Cease at Death”—Claim of Widow Shut Off.—The addition of the words of the statute “to cease at his death,” as applied to a disability pension to an officer, adds nothing to its meaning, unless it be to cut off the widow’s claim to any pension. It must be given this effect.</p> <p>Id.—Hearing of Widow’s Petition Properly Disallowed.—The petition of the widow for a pension, after the cessation of her husband’s disability pension by his death, was properly disallowed by the police commissioners, without any hearing thereon.</p>

<p>APPEAL from an order of the Superior Court of Lake County refusing to change the place of trial for the convenience of witnesses. Y. S. Sayre, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Boundary—Evidence—Hearsay—Declarations of Deceased Person —Bule of Admissibility Based upon Necessity—Protection of Private Bights.—The rule that the declarations, on a question of boundary, of a deceased person who was in a position to be acquainted with the matter, and who was at the time free from any interest therein, are admissible as hearsay evidence, is based upon necessity, for the protection of the rights of private parties.</p> <p>Id.—Acquaintance of Deceased Person With True Boundary Essential.—It is essential to the admissibility of hearsay evidence of boundary that the deceased person be shown to be acquainted with the true boundary line between the parties.</p> <p>Id.—Declaration of Deceased Surveyor Inadmissible—Line Fixed by Government Survey—Nonacquaintance With Boundary.—Where the monuments and lines, including the contested boundary line, were those of an original government survey, the field-notes of which were in evidence, and it appears that the deceased surveyor whose declarations were relied upon did not retrace the government lines, or re-establish their corners, and was not in a position to be acquainted with th'e matter involving the true line between the parties ' as fixed by the government survey, his declarations as to the boundary between the parties were properly excluded as inadmissible hearsay.</p> <p>Id.—Material Conflict as to Location of Boundary—Support of Finding.—Where there is a material conflict in the evidence as to the true location of the disputed boundary line, the finding of the trial court for the defendants should not be disturbed.</p> <p>Id.—Motion for New Trial—Newly Discovered Evidence—Discretion in Denying Motion—Abuse not Shown.—The denial of plaintiffs’ motion for a new trial on the ground of newly discovered evidence cannot be said to be an abuse of discretion, where from aught that appears in the record the evidence may have been cumulative merely or was not of such a character as, taken with the other evidence, would have the effect to change the findings.</p>

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

Frederick W. Houser, Judge. It appears from the minutes of the district court of appeal that the appeal was dismissed January 30, 1911. A petition for rehearing of the order of dismissal was filed in due time.

<p>Building Contract—Order from Contractor—Deduction from Completion Payment — Conditional Acceptance — Abandonment of Contract — Nonliability of Owner.—An order from a building contractor upon the owner to pay a claim “on completion when house accepted, the sum of $900, and deduct same from my payment,” is conditional on the contractor’s earning the completion payment, under the contract, and the acceptance thereof by the owner is likewise conditional; and where the contractor abandoned the contract before completion, and the prior payments made, with the cost of completion and valid liens, left nothing further due to the contractor, the owner is not liable upon the order.</p> <p>Id.—Finding Against Evidence.—The finding of the trial court that the owner “promised and agreed to pay to this plaintiff said sum of $900 when the said house was accepted,” is held unsupported by and contrary to the evidence.</p> <p>Id.-—Construction of Written Contract.—The order and its acceptance constituted a written contract, which is not susceptible of- the construction fixed by the finding of the court. The acceptance by the owner was merely by his signature, which added nothing to the terms and conditions of the order. The “completion,” “acceptance” and “payment” referred to in the order related to the completion, acceptance and payment specified in the original contract, and, so construed, the form of acceptance imposed no other or greater obligation than to pay to plaintiff whatever money might be due to the contractor upon the happening of all of the conditions specified in the order.</p> <p>Id.—Effect of Completion by Owner Under Contract—Payment of Liens Pro Eata—Nothing Due Contractor—Absence of Further Liability.—Though, when the contractor abandons the work, and the owner completes it under a right reserved in the contract, the work of completion is deemed to be done under the contract, yet the contractor is entitled to receive only any surplus over and above the cost of completion, and where any residue is required to pay lien claims pro rata, including the pro rata of the lién claim for $900, out of the last payment, and nothing becomes due to the contractor, there is nothing left whereupon any further liability can attach under the order for the payment of the residue of that sum.</p> <p>Id.—Evidence—Consideration for Acceptance of Order—Terms not Modified.—Evidence tending to show a consideration for the acceptance of the order could not have the effect to modify or vary the terms and conditions expressed in the order upon which the acceptance was based.</p>

<p>Building Contract—Order op Contractor—Conditional Acceptance —Abandonment op Contract-—Completion by Owner—Liens Prorated— Nothing Due Contractor.—Where an order by a contractor to the owner to pay a subcontracting plasterer was conditionally accepted to be paid out of the completion payment, but the contractor abandoned the contract, and the owner was compelled to complete it, and the residue of the contract price was distributed pro rata among lienholders, including the lien of the plasterer, in satisfaction of their liens, and there was no residue due to the contractor, there was no 'further liability on the part of the owner to make any further payment to the plasterer- under such conditional acceptance.</p> <p>Id.—Case Determined upon Authority op Preceding Case.—It is held ' that the questions of law involved in this appeal are substantially the same as those involved in the preceding case of O’Brien v. Garibaldi, Civ. No. 725, supra, and this ease is determined upon the authority of that case, except that this case is decided correctly by the trial court, upon the facts and the law, which requires affirmance.</p>

<p>Brokers’ Commissions — Sale op Beal Estate — Willing Purchaser Found—Deal not “Complete”—Fault op Vendor—Improper Non-suit.—While a contract for the sale and purchase of real estate, and for commissions thereon “when the deal is complete,” contemplates the performance of some future act intended to constitute the completion of the deal, yet the provision for brokers’ commissions constituted a contract in writing for their benefit, and when they have found a purchaser ready and willing to make full payment and a contract was signed on deposit between the parties, and for the purpose of a nonsuit the court assumed that an offer of the brokers to prove that the deal was rendered finally incomplete through the sole fault of the vendor was proved, it is held that the nonsuit was improperly granted.</p> <p>Id.—Beview op Nonsuit upon Appeal—Grounds op Motion.—In determining the propriety of the nonsuit upon appeal, this court is limited in its consideration to the particular grounds upon which the motion for a nonsuit was made; and where the sole grounds stated in the motion were the want of any showing of any employment of plaintiffs by the defendant, and that the contract offered in evidence was not a contract made expressly for the benefit of the plaintiffs, nor was the contract made for the benefit of plaintiffs, a nonsuit on those grounds was improperly sustained.</p> <p>Id.—Assumption op Evidence upon State op Becord — Failure to “Complete Deal”—Fault op Vendor—Performance by Brokers Excused.—Upon the state of the record, in view of the offer of proof by the brokers treated as proved by the court, it must be assumed that evidence was given tending to prove that the failure finally to “complete the deal” was due to want of performance on the part of defendant as vendor, and hence under section 1512 of the Civil Code the due performance of the “completion of the deal,” upon which the payment of the plaintiff’s brokers was made contingent, was excused.</p> <p>Id.—Contract Sued upon Existing for Benefit op Plaintiffs—Implied Consideration—Prevention op Performance No Defense.— The contract sued upon was an existing one in writing expressly made for the benefit of plaintiffs, and implying a consideration; and it is an untenable defense thereto on the part of the defendant vendor, who in so far as it imposed obligations upon him had made default, thereby preventing performance on the part of plaintiff, the want of which he pleads against recovery in the action.</p>

<p>APPEAL from a judgment of nonsuit entered in an action of- claim and delivery in the Superior Court of Alameda County. F. B. Ogden, Judge. v</p> <p>The facts_ are stated in the opinion of the court.</p>

<p>Venue—Change of Place of Trial—Residence of Defendant—Issues Joined—Convenience of Witnesses—Materiality to Issues. No question of convenience of witnesses can arise where a change of the place of trial is sought upon demurrer filed; and if the same change is sought upon issues joined and the change is resisted for the convenience of witnesses, it is the duty of the court to disregard the testimony of any witness for that purpose whose testimony is not material to any issue of fact raised. The plaintiff cannot successfully resist defendant’s motion, where his affidavits show that the witnesses whose convenience is sought to be subserved would not be material or competent upon the trial of the issues involved; and an order retaining the cause based upon such affidavits must be reversed.</p> <p>Id.—Action for Conversion of Goods—Denial of Complaint—Absence of Affirmative Issue—Immaterial Witnesses.-—Where the plaintiff brought an action in Los Angeles county for the conversion of goods by a corporation having its principal place of business in San Francisco which demanded a change of the place of trial after answer filed, which merely took issue upon the allegations of the complaint, without presenting any affirmative matter, and filed an affidavit of merits, affidavits of witnesses for the plaintiff, whose testimony related solely to the nondelivery and forgery of the indorsement of a check, not made any issue in the case, cannot justify the retention of the cause for convenience of witnesses.</p>

<p>APPEAL from an order of the Superior Court of Orange County sustaining demurrers to a complaint in intervention. Z. B. West, Judge.</p>

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

<p>Appeal — New Method — Nonconformity of Transcript to Rules—• Motion to Dismiss.—It is held on the appeal taken according to the new method under sections 953a, 953b and 953c of the Code of Civil Procedure, that but for the fact that the record is not so voluminous or bulky as to require in its examination more than ordinary labor, a motion of the respondent to dismiss the appeal for serious nonconformity of the transcript to rules 7 and 8 of the supreme court would, without reluctance, be granted. Rule 8 is reproduced, to which the transcript does not approximately conform.</p> <p>Id.—Ruling Against Dismissal in This Case No Guide as Precedent. It is held that the ruling against dismissal in this case is no guide as a precedent for any future ease showing inexcusable breach of the rules of the court, such as appears in this case.</p> <p>Id.—Action by Assignee of Broker’s Commissions on Exchange of Real Estate—Support of Findings.—In an action by the plaintiff as an assignee of broker’s commissions earned in the exchange of real estate, it is held that defendant’s letters to one member of the firm constituting plaintiff’s assignors, who personally negotiated for exchange, clearly show defendant’s employment of him for that purpose, and support the findings both as to the employment and the amount of the broker’s commissions earned thereunder and recovered by plaintiff.</p> <p>Id.—Basis of Commissions—Part Cash and Part Exchange.—Where the commissions agreed upon were to be more for cash than for a mere exchange, and the terms agreed upon were part exchange and part cash, the court properly computed the commissions upon that basis.</p> <p>Id.—Terms of Contract Modified—Recovery Limited to Common Count Pleaded.—In view of the modification of the terms of the contract for sale or exchange, and the basis of compensation being partly for cash and partly for exchange, the recovery was limited to the common count pleaded in indebitatus assumpsit for the sum recovered.</p> <p>Id.—Settled Rule—Modification of Agreement—Form of Action.— It is a settled rule in this state, that where the terms of a special contract have been varied or modified by the agreement of the parties, the action for the amount earned should be in the form of indebitatus assumpsit, and not upon the contract.</p> <p>Id.—Contract as Evidence.—In such case the contract may be introduced in evidence by either party as an admission of the standard of value or as proof of any other fact necessary to the recovery, and should be allowed to go to the jury whenever it can aid them in attaining a sound conclusion.</p> <p>Id.—Count in Indebitatus Assumpsit—Contract Sotitcient Evidence op Reasonable Value.—In support of the count in indebitatus assumpsit, it is not essential that witnesses shall be called to prove that the services were reasonably worth the amount recovered. The contract itself was competent evidence of the standard of value, and was sufficient to authorize the court to fix the sum that it deemed, under the circumstances, would amount to reasonable compensation.</p>

<p>APPEAL from an order of the Superior Court of Santa Cruz County settling the final account of an administrator. Lucas P. Smith, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

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

William D. Dehy, Judge presiding. Judgment reversed upon stipulation of the parties for reversible error appearing on the face of the record.

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

<p>Indemnity Insurance—Loss or Jewelry from Safe—Pleading—Conjunctive Denials—Admission of Loss by Tools—Sole Issue as to Consent.—In an action on a policy of insurance indemnifying the owner of a safe against felonious abstraction of its contents by tools or explosives directly applied, where the complaint avers that by tools directly applied to said safe, on a specified date, persons unknown to the plaintiff feloniously abstracted jewelry and precious stones therefrom, of a specified value, against the will and without the consent of plaintiff, it is held that the answer by conjunctive denials admitted the abstraction of its contents by tools directly applied, and took issue only on plaintiff’s want of consent, and specially averred that the abstraction of its contents was by plaintiff’s connivance and consent, and raised no other issue.</p> <p>Id.—Bules of Pleading—Denials of Sworn Complaint—Admissions. The rules of pleading, under our system, require a denial in an answer to a verified complaint of every specific averment thereof, in substance and spirit, and not merely a denial of its literal truth, and whenever the defendant fails to make the requisite denial, he admits the averment.</p> <p>Id.—Bill of Exceptions Showing Entry by Key—Absence of Issue as to Tools Directly Applied.—Where there is no issue as to the use of tools directly applied to the safe, the fact that the bill of exceptions shows entry to the safe by a key does not require the determination upon appeal of the question whether a key is a tool, within the meaning of the policy.</p> <p>Id.—Evidence of Value of Jewelry and Precious Stones Taken— Books in Court—Use of Memorandum from Books—Discretion. In proving the value of the jewelry and precious stones taken from the safe, where plaintiff had his books in court, his use of a memorandum taken therefrom to refresh his memory as a witness to the extent of the loss suffered thereby was properly allowed in the discretion of the court, leaving further proof from the books to be shown on cross-examination, if required, and where no further proof was required, the allowance of the use of the memorandum was without prejudice.</p> <p>Id.—Use of Leading Questions—Discretion.—The allowance of leading questions upon the trial was within the discretion of the court, and where nothing in the record indicates an abuse of discretion, no prejudicial error in the allowance of such questions will be presumed.</p> <p>Ij>.—Action on Policy Issued—Evidence as to a Different Form of Policy Talked of Properly Excluded.—In the action on the policy issued, evidence to show that a different form of policy was talked of before its issuance was properly excluded, where the policy issued is in no sense ambiguous or uncertain in its terms, and the rights of the parties are concluded thereby.</p>

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

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

<p>Action for Malicious Prosecution by County Officers—Order Denying Change of Venue—Possibility of Pair Trial—Conflicting Affidavits—Review upon Appeal.—In an action for a malicious prosecution of the plaintiff upon a criminal charge by defendants as officers of the county in which it is brought, where plaintiff moved for a change of venue upon affidavit that he could not have . a fair and impartial trial in that county before any jury, the contents of which were controverted by counter-affidavits for defendants, and the voir dire examination of the jurors is not in the record, it cannot be held, in view of the action of the court in denying the motion, upon the conflicting affidavits, that a single citizen liable for jury duty in the county was disqualified from giving the plaintiff a fair and impartial trial, and the order denying the motion must be affirmed.</p> <p>Id.—Malicious Prosecution for Subornation of Perjury—Gravamen of Action—Want of Probable Cause—Lack of Knowledge or Information.—The gravamen of the charge of malicious prosecution of the plaintiff' by the defendants, upon the criminal charge of subornation of perjury is that the defendants instituted the criminal prosecution without probable cause—that is, without having such knowledge or information as would superinduce in the mind of an ingenuous and unprejudiced person a reasonable belief that plaintiff was guilty of the charge.</p> <p>Id. — Defense — Reasonable Grounds to Believe Charge Well Pounded.—The defense must be that defendants did believe, and had reasonable grounds to believe, that the accusation was well founded.</p> <p>Id.—Nature of Probable Cause.—Probable cause does not depend on the actual state of the case in point of fact, but upon the honest and reasonable belief of the party prosecuting.</p> <p>Id.—Judgment for Defendants—Appeal—Review of Evidence—Probable Cause for Prosecution Established.—Where the judgment was for the defendants, it is held in view of the evidence and circumstances appearing in the record, that no appellate court can say that the district attorney had no legal right to believe that plaintiff was guilty of the crime of subornation of perjury, for which he was indicted, and that it was his duty to prosecute him for that offense.</p> <p>Id.—Absence of Proof of Conspiracy.—It is held that the charge of conspiracy between the officers of the county is not proved,, that it appears that the acts of the officers defendant other than the district attorney were taken in good faith in the line of their official duty, and were dependent upon and subordinate to the action of the district attorney in prosecuting plaintiff for the offense for which he was indicted.</p> <p>Id.—Burden upon Plaintiff to Make Want of Probable Cause Appear.—The burden of proof is upon the plaintiff both to prove a want of probable cause and to make it appear in the record upon appeal.</p> <p>Id.—Improper (Question to Grand Juror—Collateral Impeachment —Irrelevance to Issues.—The court properly disallowed a question by plaintiff to a grand juror whether he intended to find the indictment against plaintiff. The grand juror could not thus be collaterally impeached as to his official action; nor had the question any relevance to the issues of probable cause or conspiracy.</p> <p>Id.—Statement of Perjury by Witness Suborned—Relevance to Probable Cause.—A written statement showing the admission of perjury by the witness alleged to have been suborned by plaintiff, proved to be in his handwriting, was admissible as showing information upon which the district attorney acted, and as bearing upon the question of probable cause.</p> <p>Id.—Sources of Information by District Attorney—Hearsay.—The proof of probable cause depending upon the honest and reasonable belief of the district attorney may involve, in part at least, hearsay declarations imparted to the district attorney prior to the prosecution. It was competent for the district attorney to testify to the sources of his information, as well as to state facts within his own knowledge.</p> <p>Id.—Absence of Prejudicial Error in Rulinqs—Probable Cause Established.—It is held that there was no prejudicial error in evidence, or in the instructions of the court, for the reason that the only conclusion warranted by the evidence is that there was probable cause for the' prosecution, and that the court would have been authorized to instruct the jury to find a verdict for defendant for the same reason.</p> <p>Id.—Prevailing Rule as to Effect of Conviction—Conclusive Evidence of Probable Cause—Reversal Immaterial.—The prevailing rule is that when a person is charged before a competent court having jurisdiction of the matter, and is tried and found guilty, the judgment rendered, if not obtained by fraud, is conclusive evidence of probable cause for making the charge, even though it is afterward held to be unauthorized and reversed upon appeal.</p> <p>Id.—Absence of Evidence of Fraud or Conspiracy to Produce False Evidence.—It is held that there is no evidence worthy of the name to prove the charge that the defendants conspired together to produce false evidence before tie grand jury and to punish plaintiff by means of false evidence.</p>

<p>Taxes—Sale for Excessive Amount—Recitals in Deed to State— Items Shown—Void Deed.—Although the law does not require that a deed for delinquent taxes to the state shall contain anything more than the insertion of a statement of the total amount of the taxes, penalties and costs, yet, where such deed does contain an itemized statement of taxes, penalties and costs, showing a segregation thereof, with a designation of the amount of each, going to make up the total sum for which the property was sold, and thus shows that the sale was for an excessive amount, the deed is void upon its face.</p> <p>Id.—Small Amount of Excess Immaterial—Maxim De Minimis Inapplicable.—The fact that the excess of the penalties and costs thus shown was the sum of $1.40 does not affect the invalidity of the deed. It is not enough to say that the excess is trifling. The maxim de minimis has no application to proceedings to transfer title by virtue of statutory proceedings for the enforcement of a tax in invitum.</p> <p>Id.—Deed from State Void.—The sale being void, no title passed thereunder to the state, and a tax collector’s deed from the state would be equally void and pass no title to the purchaser.</p> <p>Id.—Action by Owner to Quiet Title—Proper Exclusion of Deeds. In an action by the owner to quiet his title as against the purchaser from the state, the court properly excluded both of the void tax deeds from evidence.</p> <p>Id.—Evidence of Assessment-book-—Exclusion not Prejudicial— Showing of School Tax.—Where the assessment-book offered in evidence showed that a school tax had been improperly included in the penalties, and that if it had been properly included as a tax and penalties computed thereon the total sale would be for fourteen cents more than the amount included in the deed, the exclusion thereof was without prejudice, and would not justify the excessive amount of penalties stated in the deed.</p> <p>Id.—Payment of Taxes Under Void Deeds not Required as a Condition of Quieting Title.-—Where the tax deeds under which the defendant claims are void upon their face, no payment of the taxes due from the state is required as a condition of quieting title against the defendant.</p> <p>Id.—Offer Before Suit to Pay Taxes—Refusal.—Where plaintiff offered before suit to pay the taxes, penalties and costs, but the latter refused the same and put plaintiff to the costs and expenses of a suit, the defendant has no ground in equity to claim such reimbursement as a condition of relief in the suit.</p>

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

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

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

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

<p>Certiorari—Appeal from Justice’s Court—Questions of Law and Fact—Dismissal Without Trial—Want of Prosecution—Judgment for Respondent—Excess of Jurisdiction.—Where a judgment rendered in the justice’s court against the defendant was appealed by the defendant to the superior court on questions of law and fact, the dismissal of the appeal for want of prosecution by the appellant and the rendition of the judgment appealed from in favor of the respondent without trial, was in excess of the jurisdiction of the superior court, and its action will be annulled on certiorari.</p> <p>Id.—Eight of Trial De Novo—Duty of Superior Court.—When an appeal from a judgment of the justice’s court is taken and duly perfected by a defendant upon questions both of law and fact, the case is removed to the superior court for a trial cíe novo, and the superior court must try the case as if there had been no trial in the justice’s court.</p> <p>Id.—Plaintiff the Actor in Superior Court.—In such case, the appeal being duly perfected, the plaintiff is the actor in the superior court, as he was in the justice’s court, and it is his duty to bring the case on for trial, and no duty in that respect devolves upon the defendant, though he is the appealing party.</p> <p>Id.—Remedy fob Dismissal of Appeal in Justice’s Court—Excess of Jurisdiction—Appropriate Remedy.—Where an appeal upon questions of law and fact has been duly perfected, the superior court exceeds its jurisdiction in dismissing the appeal, and its action may be controlled by the appropriate remedy. If there is no other judgment, mandamus may lie to compel the trial of the case.</p> <p>Id.—Judgment for Plaintiff Without Trial—Writ of Review—Annulment of Order and Judgment.—Where, in addition to the dismissal, judgment was rendered for plaintiff without trial, the appropriate remedy is to vacate and annul both the order of dismissal and the judgment by writ of review, when the case will stand for trial de novo in the superior court.</p>

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

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

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

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

<p>PETITION for writ of prohibition to the Superior Court of Sacramento County. C. N. Post, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

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

<p>Statutory Penalty—Refusal of Gas to Consumers—Distance of Building from Main—Presumption—Proof at Time of Trial.— In an action under section 629. of the Civil Code to recover the statutory penalty therein prescribed for the refusal of a gas company to supply with gas the building and premises occupied by the plaintiff, distant not more than one hundred feet from any main, where it appears that the main was laid several years prior to the application, which was one year before the trial, as no evidence was introduced to the contrary, it will be presumed that no change was made in the location of the main, but that its condition as laid continued at the time of the trial, at which it was proved by a civil engineer without conflict that both the building and premises were less than one hundred feet from the main, and such proof was sufficient to sustain the action.</p> <p>Id.—Support of Binding of Location When Application was Made.— It is held that under the facts proved and presumed, evidence of the location of plaintiff’s building and premises shown to exist at the time of the trial sufficiently shows its location and distance from the main at the time of the application for gas, and supports the finding made by the court in this regard.</p> <p>Id.—Arbitrary Discrimination Against Plaintiff—Requirement of Security—Support of Finding.—Where the defendant’s answer admits and the testimony of its secretary shows that the gas company had no rules or regulations as to the exaction of a deposit or bond as a condition of supplying customers with gas, a finding that the exacting from plaintiff of a cash deposit or bond as a condition of supplying him with gas was an arbitrary discrimination is sustained by the evidence.</p> <p>Id.—Purposes of Use of Gas—Question as to Lighting Purposes— Objection for First Time upon Appeal—Finding.—Where, when the demand for a supply of gas was made, defendant raised no objection that it was not specified for lighting purposes at the trial, such objection should not be allowed upon appeal for the first time, even assuming, as claimed by the defendant, that the statute has reference only to the supply of gas for lighting purposes, especially when the court made a finding, which is not assailed, that at the time when the demands were made, plaintiff was without illuminating gas.</p> <p>Id.—Improper Order Granting ISTew Trial—Reversal.—The court having committed no error, and its findings being sufficiently supported by the evidence, it is held that it improperly granted a new trial to the defendant, and its order must be reversed.</p>

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

<p>Mining Law—Assessment Work—Forfeiture of Bights of Co-owners-—Construction of Federal Statute.—Section 2324 of the Be-vised Statutes of the United- States, which provides for a proceeding for the forfeiture of the rights of co-owners of a mining claim who have failed and refused to contribute to the assessment work required thereby, must be strictly construed, as imposing a forfeiture.</p> <p>Id.—Sufficiency of Notice to Co-owners—Good Faith-Ignorance of Unrecorded Deed.—The service of notice, under the terms of the statute, by the co-owners who have done the whole of the assessment work upon the mine, upon those who had for a long time been co-owners with them, and who were believed in good faith to be still such co-owners, requiring them to contribute thereto, without knowledge of anything to the contrary of their ownership, or of the existence of an unrecorded deed made by them, is sufficient. They were not required to serve notice upon anyone not known to be an owner.</p> <p>Id.—Knowledge by Grantee of Deed—Delivery of Notice by Co-owners Notified—Bights Concluded.—Where a corporation was the grantee of part of the co-owners under an unrecorded deed, and upon service of notice upon such co-owners such corporation received immediate knowledge of the same by the delivery of such notice by such co-owners served to its president, such corporation had thereby an opportunity to protect itself from forfeiture by contributing under such notice, and it cannot now be heard to complain of consequences produced by its own neglect.</p> <p>Id.—Insufficient Work by Go-owners Notified — Unwatering of Mine for Inspection by Proposed Purchaser.—Where the only work attempted to be done by co-owners notified to contribute to the assessment work during the assessment year, consisted of the unwatering of the mine for inspection by a proposed purchaser, such work constituted no improvement upon the mine, and was no contribution to the assessment work contemplated by the Eevised Statutes of the United States.</p>

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

<p>Carrier of Passengers — Injury to Passenger — Presumed Negligence—Burden of Proof.-—In an action by a passenger for damages on account of personal injuries alleged to have been occasioned through the negligence of the carrier of passengers, the presumption of negligence which attaches to the carrier when a passenger is injured by the use of the instrumentalities employed by the carrier and under its care requires the carrier to prove that the injury was without negligence on its part, and that the damage was occasioned by inevitable casualty, or by some cause which human foresight could not prevent.</p> <p>Id.—Stage-coach Overturned—Verdict for Plaintiff—Evidence— Eright of Team—Order Granting New Trial—Discretion not Abused.—Where plaintiff was injured by the overturning of a stagecoach in which he was a passenger, and, after verdict for plaintiff, the court granted to the defendant a new trial, its order cannot be said to be an abuse of discretion, where there is evidence in the record tending to prove that the accident was occasioned by the stage-coach team becoming frightened and unmanageable, in view of a loose horse running in the highway; that the team used by the carrier was otherwise safe and gentle; that the driver was competent, experienced and careful, and did all a prudent man could do to avert the accident, and that the vehicle used was fit and proper for the purposes intended.</p> <p>Id.—Province of Court in Granting New Trial.—The court having heard the evidence, and having had ample opportunity to judge as to the demeanor, manner and credibility of the witnesses, may, if he is dissatisfied with the verdict, and is of opinion that it is clearly against the weight of the evidence, set it aside and grant a new trial, even though there be a substantial conflict in the evidence.</p> <p>Id.—Wide Discretion of Trial Judge—Action Warranted.—A wide discretion reposes in the trial judge to grant a new trial for insufficiency of the evidence to sustain the verdict, and except an abuse thereof is apparent, his order will not be disturbed. It is held, from an examination of the entire record upon the appeal, that he was fully warranted in his conclusion as to the order made, and it must be affirmed.</p>

<p>Action fob Divorce—Validity of Final Decree—Permission to Answer After Interlocutory Decree — Void Order — Absence of Notice.—In an action for divorce, where it is claimed that the final decree was ineffective on the ground that the interlocutory decree was vacated, though it appears that it was not vacated in terms, yet, conceding that the filing of an answer with the permission of the court was in effect tantamount to an order vacating the interlocutory decree, still such order would be void, and could not have that effect, where it was made without notice to the plaintiff.</p> <p>Id.—Decree Valid on Face—Vacation—Notice and Hearing Essential.—It is certain that a decree valid on its face cannot be set aside without notice and a hearing.</p> <p>Id.—Service of Summons by Publication—Ground of Belief Under Section 473—Lapse of One Year from Interlocutory Decree.— Though the service of summons upon the defendant in the divorce case was by publication, and by the terms of section 473 of the Code of Civil Procedure she may be allowed one year after the rendition of any judgment in said action, to answer to the merits of the original action, she must make application for such relief within one year from the entry of the interlocutory decree, and when she failed to apply within that time, she is entitled to no relief from the date of the final decree, but that decree must be permitted to stand.</p>

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

<p>APPEAL from a judgment of the Superior Court of Monterey County, and from an order denying a motion to strike out plaintiff’s cost 'bill. B. V. Sargent, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

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

<p>Water Rights—Action to Enjoin Diversion—Preliminary Injunction—Discretion—Review upon Appeal.—Where the object of an action is to obtain a permanent injunction against the diversion of a watercourse above plaintiff's lands, to its injury, the question whether a preliminary injunction should be granted therein pendente lite is a matter resting largely in the discretion of the trial court to whom the application for such order is presented; and if it does not appear from the record upon appeal from an order granting such preliminary injunction that the discretion of the court has been abused, the order will not be disturbed, regardless of the question whether conflicting affidavits do or do not preponderate against such order.</p> <p>Id,—Application upon Verified Complaint—Averment of Ultimate Pacts Sufficient.—Under section 527 of the Code of Civil Procedure, an injunction pendente lite may be applied for upon a verified complaint, without other affidavits, which is only required as a pleading to state the ultimate facts, and not the probative facts. If the ultimate facts pleaded warrant, the temporary injunction applied for, then, in the absence of such a counter-showing as would fully overcome or impeaeh the averments of the complaint, it would be the duty of the court to grant such relief upon the verified complaint.</p> <p>Id.—Sufficiency of Complaint to Warrant Preliminary Injunction —Grounds for Relief.—Where the complaint for an injunction to restrain the diversion of water by defendant’s dam from plaintiff’s lands alleged as ground for relief both that the lands of the plaintiff were riparian to the stream diverted and that the plaintiff was entitled to the amount of water stated in the complaint by appropriation thereof for mining purposes, as against the defendant, and also alleged that the diversion of the water by the defendant has compelled plaintiff to suspend mining operations upon its lands to its irreparable injury, such averments of the complaint, uneontradicted, are sufficient to warrant and sustain the action of the court in granting a preliminary injunction, and it cannot be said that it abused its discretion in granting the same.</p> <p>Id.—Affidavits fob Defendant—Legal Conclusions—Province of Court.—Where defendant, besides denials of the complaint, set up an appropriation, the allegations of which involved, at best, only legal conclusions or the conclusions of the affiant, and the only other affidavit on his behalf merely declared that the statements in defendant’s affidavit “are true and correct,” such affidavit could have no greater force than to corroborate defendant’s conclusions; and it was within the province of the court to determine that such affidavits were insufficient to overcome the verified complaint used both as a pleading and as evidence.</p> <p>Id.—Consistency of Grounds for Relief to Plaintiff.—If there be deemed united in the complaint two causes of action or grounds for relief, seeking practically the same ultimate object, it does not follow merely because certain averments of the one cause of action so pleaded may be in some material particulars inconsistent with those of the other that the temporary injunction should be refused, if either or both causes disclose a reason for the granting thereof. It is held that there is no inconsistency fatal to plaintiff’s right to a temporary injunction, between the claims to a riparian right to the waters of the stream diverted and a claim thereto by appro- ■ priation.</p> <p>Id.—Rule as to Consistency of Evidence.—There is no rule that a party cannot prevail unless the evidence adduced to establish his case or his defense should be “harmonious and consistent throughout all its parts.” The general rule is that it is for the trier of the facts to determine the weight and effect of evidence, from whatever source it may come.</p> <p>Id.—Ground of Riparian Rights—Use not a Criterion.—The rights of a riparian proprietor, as such, are not to be tested by the use or uses to which he puts the riparian waters, or whether he uses them at all or not. If one’s lands are riparian to a stream of water, the owner of the lands cannot be divested of his rights as such merely because he may either put the waters flowing in such stream to other than a riparian use or not use them for any purpose. The riparian right to the flow of the water over his land in its customary flow is a right of property which is part and parcel of the land itself.</p> <p>Id.—Diversion of Tributary Stream.—The diversion of a tributary-stream which flows into the stream on which the plaintiff’s lands are riparian is an interference with or ¿Aversion of the waters of the stream itself.</p>

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

<p>Townsite—-Approval op Plats by Legislature—Encroachment upon Street—Public Nuisance—Action por Removal.—Where the original survey of a townsite made in 1853 showed a street eighty feet in width on which defendant’s lot was bounded, and the plat thereof was in 1860 approved by the legislature, and all streets and alleys thereon “declared to be highways,” which was confirmed, as to said street, by another official survey thereof, approved in 1861, it is held that an action will lie at suit of the town to declare that defendant’s fence inclosing over nine feet in width of such street is a public nuisance and an unlawful encroachment upon said street and to have the same removed.</p> <p>Id.—Highways on Public Domain—Power op Legislature—Policy op General Government.—The state legislature had power to declare a street in a town situated upon the public domain a public highway if it took no private property except as against the federal government; but it is the declared policy of the federal government to sanction highways upon the public domain on land not expressly reserved.</p> <p>Id.—Townsite on Public Domain—Federal Patent in Trust for Occupants—Title to Highways not Intended.—The grant of a patent by the federal government in 1866 to the county judge, “in trust for the several use and benefit of the occupants” of a town-site on the public domain, was not intended to give to any private individual an equitable or any kind of a title to those parts of the townsite that were then legally constituted public highways, but only a title to be deeded to such ~bona fide occupants of other parts of the town as should be ascertained to be such under appropriate regulations prescribed by the legislature.</p> <p>Id.—Effect of Settlement on Public Domain—Subjection to Highways.—Here occupancy of part of the public domain by one who does not connect himself with the government title confers no rights against the government or its grantees, and his rights are subject to a highway created thereon.</p> <p>Id.—Absence of Occupancy at Time of Ratification of Highway.— It is held that the evidence does not show that the defendant or any one of his predecessors in title were in possession of any part of the street, when the same was ratified by the legislature as a public highway eighty feet in width, and that defendant’s grantor did not encroach upon the street until after the legislature had ratified the street as a public highway in 1860 and 1861.</p> <p>Id.—Burden not Sustained to Show Interest in Public Highway.— Where the patent was in trust for those who were in possession of land on the twentieth day of September, 1866, the burden was upon the occupant to show that some predecessor in interest was an occupant of the disputed land when the highway was created, which he failed to do; and where he took his certificate of title to his lots showing nothing beyond the boundaries of the lots as laid down upon the official plat of the town, he failed to connect himself with his claim to an interest in the highway.</p> <p>Id.—Effect of Nonuser of Full Width of Street.—The town did not lose its right to the full width of the street by mere nonuser of its full width for a long period of time.</p> <p>Id.—Acquiescence and Estoppel not Shown.—It is held that the evidence fails to show such acquiescence in the occupation of the street as to estop the town from claiming its full width.</p> <p>Id.—Unauthorized Action of County Surveyor.—The court properly ■ excluded evidence to show a consent of the county surveyor to the possession of the defendant, where no authority was shown to have been given to him by the board of supervisors to narrow the street, which in point of fact ordered the roadmaster to open the streets and alleys.</p> <p>Id.—Action not Barred by Adverse Possession.—The land inclosed being part of the public street, title thereto cannot be acquired by adverse us.e, and the action by the town to remove the obstruction to the street as a public nuisance cannot be barred by occupation of part thereof for the period of ten years.</p> <p>Id.—Exception to Bule.—The only exception to such rule is where the land has ceased to be a public street and is held by the city merely as a proprietary interest.</p>