Volume 152 — California Reports

<p>Practice—Continuance or Trial — Imposition op Terms t- Acceptance.—Where an order granting a continuance of a trial is made at the request of a party, on the condition that he pay certain items of costs imposed by the court, the acceptance of the continuance under such conditions is in effect an agreement to pay the sums upon obtaining the desired postponement, and he cannot thereafter be heard to say that the imposition of a particular item was beyond the power or discretion of the court.</p> <p>Id.—Mandamus to Set Cause for Trial—Discretion.—Where a continuance of a trial was granted at the request of a party, on condition that he pay certain designated items of costs, but actual payment of such sums was not exacted at the time of the postponement, it is within the discretion of this court to refuse to issue a writ of mandate at the instance of such party to compel the trial court to set the cause for trial so long as such items remain unpaid.</p>

<p>Municipal Corporation — Unauthorized Deposit op Money — Tax payer May Enjoin.—A taxpayer of the city and county of San Francisco may maintain an action against the treasurer thereof to enjoin him from depositing money of the municipality in his custody with banks and banking corporations doing business therein, when such deposit is forbidden by law.</p> <p>Id.—Freeholders’ Charter—San Francisco.—The freeholders’ charter of the city and county of San Francisco, adopted in 1899 (sees. 2, 3, chap. 3, art. IV,—Stats. 1899, p. 272), in terms prohibits the deposit of municipal funds in banks or banking corporations.</p> <p>Id.—Municipal Appairs — Constitutional Law. — The provisions of that charter prohibiting certain uses of municipal moneys, requiring the municipal officers to keep the same in their possession, and prescribing the manner in which they shall keep them, relate purely to municipal affairs; and under the “municipal affairs” amendment to section 6 of article XI of the constitution, adopted in 1896, such provisions in a freeholders’ charter are paramount to any law enacted by the state legislature, and the legislature is without power to enact any law infringing thereon.</p> <p>Id.—Deposit op Money in Banks—Power op Legislature to Authorize.—Section 16% of article XI of the constitution, adopted November 6, 1906, declaring that “all money belonging to the state, or to any county or municipality within this state, may be deposited in any national bank or banks, within this state, or in any bank or banks organized under the laws of this state, in such manner and under such conditions as may be provided by law,” does not empower the legislature to enact a law, such as the act of March 23, 1907, which would authorize a municipal corporation, such as the city and county of San Francisco, organized under a freeholders’ charter, to deposit its municipal funds in such banks contrary to an express provision of its charter denying it such power.</p>

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

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

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

<p>Appeal—Notice Must Be Served on Adverse Parties.—In order to confer jurisdiction upon an appellate court to entertain an appeal, all adverse parties to the controversy whose interests would be injuriously affected by a reversal of the judgment must be brought before the court and served with notice of the appeal.</p> <p>Id.—Mechanic’s Lien—Judgment against Contractor and Owner— Appeal by Owner.—In an action by a subcontractor to foreclose a mechanic’s lien, brought against the original contractor and the owner of the building, who had retained in his hands a part of the contract price more than sufficient to satisfy the claim of the subcontractor, a personal judgment was rendered in favor of the plaintiff against the original contractor for the amount claimed, and the judgment further decreed that a lien on the lot of the owner existed in favor of the plaintiff for said amount, and provided for a sale of the lot and the application of the proceeds to the payment of the judgment, and in the event that the proceeds were insufficient for that purpose, that there be docketed a judgment against the contractor for the amount of such deficiency, and that the plaintiff have execution against the contractor for the amount thereof. Held, on an appeal by the owner of the lot from the judgment, in so far as it decreed a lien, and provided for a sale thereof and the application of the proceeds to the satisfaction of the plaintiff’s claim, that the original contractor, against whom the personal judgment was rendered, was not an adverse party who would be injuriously affected by a reversal of the judgment against the owner, and need not be served with notice of the appeal.</p> <p>Id.—Jurisdiction—Judgment eor Less than Three Hundred Dollars. —When the superior court acquires jurisdiction of a suit to enforce a mechanic’s lien, it has jurisdiction to render a personal judgment for the amount claimed, although the right to the lien is denied and the amount claimed is less than three hundred dollars.</p> <p>Id.—Contract with Subcontractor—Warranty in Main Contract.— Where the contract between a subcontractor and the original contractor for the erection of a building related solely to the doing of a particular portion of the work on the building according to the requirements of the specifications in the main contract as to such work, the subcontractor is only bound by the terms of his agreement in that respect, and is not affected by other provisions in the main contract between the owner and original contractor expressly warranting that the latter would deliver the building properly and entirely finished and “in an undamaged state.”</p> <p>Id.—Implied Warranty—Work Done According to Specifications.— Section 1770 of the Civil Code, providing that “One who manufactures an article under an order for a particular purpose warrants by the sale that it is reasonably fit for that purpose,” has no application where the article to be furnished is to be supplied under a contract requiring that it be made according to a certain plan or certain specifications.</p> <p>Id.—Work in Building—Plastering.—A subcontractor who contracts to do the plastering and hard-finish work in a building according to certain plans and specifications, and does so in a workmanlike manner, using the materials called for by the specifications, does not impliedly warrant that the completed work will be of a particular color.</p> <p>Id.—Attorneys’ Pees not Allowable.—The statute purporting to allow attorneys’ fees in an action to enforce a mechanic’s lien is unconstitutional.</p>

<p>Criminal Law—Assault on Officer with Deadly Weapon—Intent to Murder—Beview upon Appeal.—Where the defendant was convicted of an assault upon an officer -with a deadly weapon with intent to commit murder while the officer was attempting to arrest him, though an order denying a new trial cannot be reviewed upon appeal where, the bill of exceptions does not show that motion for new trial was made, yet such review is of no practical consequence where all of the assignments of error are reviewable upon appeal from the judgment.</p> <p>Id.—Besistance to Unlawful Arrest—Evidence—Lawful Attempt to Arrest for Vagrancy.—The right of a person to resist an unlawful arrest cannot be denied; but the prosecution, in view of the circumstances of the case, was justified in introducing evidence to show that at the time of the alleged assault upon the officer he was attempting to make a lawful arrest of the defendant and his co-defendant for vagrancy.</p> <p>Id.—Distinct Offense.—The fact that such evidence shows the defendant guilty of a distinct offense, for which the attempted arrest was made, is no objection to the evidence.</p> <p>Id.—Bight of Officer to Arrest without Warrant—Knowledge of Vagrancy.—Where the arresting officer had actual knowledge of a series of continued acts constituting vagrancy by legal definition on the part of the defendant for a period of three months prior to the arrest, such vagrancy is a species of misdemeanor in which the officer having such complete knowledge was justified in making an arrest without a warrant as fully as in case of any misdemeanor committed or attempted in his presence.</p> <p>Id.—Defendant not Confining Himself to Vagrancy.—The admitted fact that the defendant would not have been arrested had he confined himself to vagrancy, and that he was believed to have assaulted and beaten a man on the street, cannot make illegal his arrest for vagrancy.</p> <p>Id.—Nature of Vagrancy.—Vagrancy differs from most other offenses in the fact that it is chronic rather than acute, that it continues after it is complete, and subjects the offender to arrest at any time before he reforms.</p> <p>Id.—Irresponsive Answer of Officer—Hearsay—Proper Arrest— Motion too Broad—Harmless Buling.—Where the sergeant of police testified, without proper response to a question, to hearsay evidence of the act of defendant in beating a man, but properly testified to his instructions to the officer to arrest the defendant for vagrancy, a motion to strike out the whole answer as non-responsive and incompetent was correctly overruled; and the evidence being responsive as to the vagrancy, the ruling, whether erroneous or not, was harmless.</p> <p>Id.—Testimony of Woman of Ill-Repute — Corroboration of Vagrancy.—The testimony of a woman of ill-repute that defendant would come to her house four or five times a week was admissible as corroboration of the charge of vagrancy; but whether technically objectionable or not, such evidence could not have been prejudicial, as the officer had knowledge of his association with prostitutes and having no lawful occupation.</p> <p>Id.—Testimony of Defendant—Cross-Examination—Unlawful Business.—Where the defendant testified that he had sublet premises for purposes of prostitution, at a considerable profit, and had purchased a mining location in Nevada, upon which he intended to work when his lease expired, he was asked on cross-examination what other business he had, and was properly compelled to answer that it was gambling; his effort being to show that he was not a vagrant, it was permissible to show out of his own mouth that he had no lawful business.</p> <p>Id.—Sufficiency of Evidence — Instruction Properly Refused — Where there was evidence of every element of that species of vagrancy defined by subdivision 6 of section 647 of the Penal Code, the court properly refused an instruction that as matter of law appellant at the time of the assault was not a vagrant.</p> <p>Id.—Absence of Warrant for Arrest—Erroneous Request—Assumption of Disputed Pact.—Where the defendant was arrested for vagrancy on instruction of the sergeant of police, or upon knowledge of his vagrancy by the arresting officer, an instruction requested by defendant, that the misdemeanor of the co-defendant for vagrancy was not in the presence of the arresting officer and that the assault for an unlawful arrest of the co-defendant was justified was erroneous, as assuming a disputed fact, and was properly refused.</p> <p>Id.—Misconduct of District Attorney.—Held,, that there was no prejudicial misconduct of the district attorney, and no reason to suppose that he had intentionally misrepresented the testimony, though mistaken as to a matter of fact, of which the jury were the judges, and that his argument as to the offenses of the defendant did not pass the bounds of legitimate censure.</p>

<p>Taxation—Assessment-Roll—Absence of Dollar-Mark—Invalidity of Sale and Deed.—An assessment of land, which shows on the face of the assessment-roll that there was no dollar-mark or other mark, sign, word, or abbreviation, or explanation to indicate what was meant by the figures in the column designed to show the value of the property and the amount of the taxes, is void, and a sale for delinquent taxes and deeds made thereunder are likewise void.</p> <p>Id.—Certificate of Sale to State—Repeal of Law Requiring—Recitals of Deed.—Upon the repeal of section 3776 of the Political Code, providing for a certificate of sale for land sold to the state for delinquent taxes, the provisions of section 3786 of that code, to the effect that the deed to the state must contain a recital of the matters contained in the certificate, became nugatory.</p> <p>Id.—Time of Redemption—Error in Recital—Curative Act of 1903. —An imperfection in a deed to the state of land sold for delinquent taxes, in stating the time when the right of redemption had expired, was cured by the confirmatory act oi February 28, 1903.</p> <p>Id.—Corrected Deed to State.—When a tax-deed to the state does not conform in its recitals to the facts, the tax-collector is authorized to execute a second and corrected deed, but he has no power to execute a second deed which misstates the facts respecting any proceeding prior to its execution. Such a deed would be void.</p> <p>Id.—Presumption as to Regularity of Corrected Deed.—If an order of the board of supervisors, as provided for by section 3805b of the Political Code, were necessary to authorize the tax-collector to execute an amended tax-deed, it will be presumed, in support of such a deed, that it was' executed by that officer under proper authority and direction.</p> <p>Id.—Corrected Deed after Conveyance by State.—It is no objection to a corrected tax-deed to the state that it was executed after the state had parted with its title to the land.</p> <p>Id.—Deed Based on Assessment of Mortgage Interest.—Under section 4 of article 13 of the constitution, a tax-deed, which described the property assessed and conveyed as a mortgage interest in a specifically described tract of land, is sufficient to convey the land described.</p> <p>Id.—Failure to Note Delinquent Sale on Subsequent Assessment.— Where land had been properly sold to the state for delinquent taxes for the year 1894, the failure of the fiscal officers to stamp upon the assessment-book for the year 1895 the fact that it had been sold for taxes and the date of the sale, as required by section 3801 of the Political Code as enacted in 1895, did not affect the validity of such sale.</p> <p>Id.—Notice of Delinquent Sale.—The words “sold to the state,” stamped on the assessment for the subsequent year, were sufficient to impart notice of such sale to the fiscal officers and also to the owner of the land.</p> <p>Id.—Insufficient Description of Land in Assessment.—Under the existing revenue laws, by which all property delinquent for taxes is sold to the state, a description in an assessment of real property, as follows, “ In Los Angeles County. In Electric By. Homestead Assn. Tr. Lot 17 Block 20,” is ‘prima facie insufficient to identify the land assessed, and there is no' presumption that there is any map in existence a reference to which might serve to identify the land.</p> <p>Id.—Evidence to Identify Land.—In an action to quiet title, brought by a party relying on a tax-deed based upon such a description in the assessment, evidence of a map showing the location of the land is admissible dehors the deed to show that the assessment was in fact sufficient to identify the land. In the absence of such identifying evidence the assessment and deed are insufficient and void.</p>

<p>'Taxation—Delinquent List—Dollajr-Mark—Numerals.—In the published delinquent list of unpaid taxes, the employment of numerals to represent dollars and cents, without having prefixed thereto the dollar-mark is sufficient, where the meaning and use of the numerals were fully explained in the publication itself.</p> <p>-Id.—Notice op Sale by State—Name op Owner.—Under section 3897 of the Political Code the notice to be given by the tax-collector of the sale by the state of land sold to it for delinquent taxes need not contain the name of the delinquent owner of the property.</p> <p>'Id.—Omission op Name op Person Assessed—Conclusiveness op Deed.—The failure of the tax-collector to embody in the notice of the sale by the state of lands sold to it for delinquent taxes the name of the person to whom the property was assessed for each year on which there were delinquent taxes, as required by section 3897 of the Political Code, became immaterial after the issuance of the deed from the state. Under section 3787 of that code, by the issuance of the deed, the presumption of the regularity and sufficiency of the notice of sale became conclusive.</p> <p>Td.—Daily Newspaper—Presumption prom Name.—The court will not presume merely from the fact that the title of a newspaper contained the word “ daily ” that it was published daily.</p> <p>Ad.—Publication op Notice—Weekly Publication.—The publication of the notice of sale required by section 3897 of the Political Code, once a week for the period of three weeks, is sufficient, even if the newspaper in which the notice appeared were published daily.</p> <p>Id.—Sale by State—Highest Bidder—Entire Property to Be Sold.— The provision of section 3897 of the Political Code, requiring the tax-collector to sell the property sold to the state for delinquent taxes at public auction “to the highest bidder for cash,” means that the sale must be made to him who will pay the largest cash sum for the entire property. So construed, the section is not unconstitutional, although the law makes no provision for the return to the owner of the property of any excess of the selling price above the accrued taxes, charges, and penalties.</p>

<p>Establishment of Title — McEnebney Act — Loss of Records — Actual Possession Necessary.—In a proceeding under the act of June 16, 1906, commonly known as the MeEnerney Act, to establish and quiet the title to real property in case of loss or destruction of public records, the superior court only has jurisdiction when the affidavit required by the act shows that the party bringing the proceeding was in the actual, as contradistinguished from the constructive, possession of the property, title to which was sought to be established by him.</p> <p>Id.—What Constitutes Actual Possession.—The actual possession essential to give, the court jurisdiction of such proceeding must be an appropriation of the land by the claimant such as will convey to the community where it is situated visible notice that the land is in his exclusive use and enjoyment, an appropriation manifested by either inclosing it, or cultivating it, or improving it, or adapting it to such uses as it is capable of. It must be such an actual possession as sections 322 and 323 of the Code of Civil Procedure requires in order to sustain title by adverse possession when such title is founded upon a written instrument.</p> <p>ID.—Constitutional Law-—Special Legislation.—So construed, the act is not unconstitutional as being special legislation, in that it divides property-owners into two classes,—one having actual possession of their property, and the other only constructive possession, —without any natural intrinsic or constitutional basis for the distinction.</p>

<p>APPLICATION for a Writ of Prohibition directed to 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>Bert Schlesinger, William P. Humphreys, and D. M. Delmas, for Petitioner.</p> <p>W. H. Langdon, District Attorney, William Hoff Cook, Assistant District Attorney, Francis J. Heney, and Charles W. Cobb, for Respondent.</p>

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

MOTION to dismiss appeals from a judgment of the Superior Court of Los Angeles County and from an order refusing a new trial. D. K. Trask, Judge. The facts are stated in the opinion of the court.

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

<p>The facts are stated in the opinion of the court.</p> <p>Garret W. McEnerney, W. B. Treadwell, Seth Wellington, J. W. Goad, and William M. Pierson, for Appellant.</p>

<p>Nuisance—Action fob Damages—Judgment—Verdict.—An action at law may be maintained to recover damages caused by a nuisance without seeking an abatement of the nuisance. In such an action judgment is properly entered on the verdict of the jury and no findings of -fact by the judge are required to be made or filed.</p> <p>Id.—Non-Waiver of Findings Must Affirmatively Appear.—In a case where findings by the court are essential, and the record on appeal does not affirmatively show that findings were not waived, it will be presumed that findings were made so far as required.</p> <p>Id.—Public Streets—Abutting Lot-Owner—Obstructions to Ingress and Egress—Special Injury.—An owner of a lot abutting on public streets in a city on which he was engaged in the business of quarrying, crushing, and selling rock, suffers special injury by obstructions placed in such streets at places not immediately in front of his own property hut at other points and in such a manner as to entirely prevent all ingress and egress from his quarries by bis wagons, teams, carts, and appliances of his business, and is entitled to maintain an action to recover the damages caused him by the nuisance.</p> <p>Id.—Easement in Street Is Property.—The owner of a lot abutting upon a public street has by reason of such ownership a special easement in the street for the purpose of ingress and egress, which is property as fully as the lot itself. This right of property is as much invaded by obstructions which have the effect of absolutely preventing access to the premises along the street as it is by obstructions preventing access from the premises to the street immediately in front of the land.</p> <p>Id.—Capability of Street for Use—Sidewalk.—Such streets will be deemed as capable of use by the public if sufficient width along them was open for use as a roadway and was capable of being used as sueh and was in fact being used by the public. The fact that a portion so open for use was in what would be the sidewalk portion of the streets, if ultimately sidewalks were constructed, is immaterial.</p> <p>Id.—Action by Corporation—Loss op Time op Officers.—In an action by a corporation to recover damages for the injury occasioned it by such obstructions, no recovery can be had for the loss of time of its corporate officers in addition to the whole loss suffered by it by reason of loss of profits, expenses incurred, and injury to it resulting from the obstructions.</p>

<p>The facts are stated in the opinion of the court.</p> <p>C. H. Wilson, Peter F. Dunne, A. A. Moore, and Stanley Moore, for Appellant.</p>

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

<p>Practice—Disqualification of Judge—Bias—Hearing of Motion.— It is the duty of a trial judge to hear and determine a motion to call in another judge to try a ease, which was made on the ground that he was disqualified by reason of bias against the defendant and his attorneys and was prejudiced in favor of the plaintiff’s attorneys; and while it is his duty to grant the motion should bias or other disqualification be shown, still it is equally his duty to deny the motion and to sit in the case himself, if in his judgment the disqualifying cause alleged is not sufficiently established by the evidence.</p> <p>Pleading—Complaint—Demurrer.—If a complaint states a cause of action addressed either to the legal or equitable side of the court, it is good as against a general demurrer.</p> <p>Cancellation—Bill of Sale—Intoxication of Seller—Inadequacy of Price—Action in Equity—Jury.—An action praying for the cancellation and rescission of a bill of sale of personal property, which had been taken possession of by the defendant, to be restored to the possession of the property, and in case possession could not be had, for compensation for the value of the property withheld, brought on the ground that the defendant had knowingly taken advantage of the plaintiff while the latter was so intoxicated as to-be incapable of transacting business, and under such circumstances, had secured his signature to the bill of sale for a grossly inadequate consideration, is an action in equity, in which the defendant is not entitled to a jury trial; and the mere fact that the plaintiff has a remedy at law does not oust the court of its equitable jurisdiction..</p> <p>Id.—Contract of Drunkard—When Equity Will Set Aside.—While equity will not assist a man to avoid a contract which he has entered into when drunk merely because when in his sober senses he may wish he had not entered into it, still it will not countenance fraudulent imposition, and gross inequality in the consideration moving to and that moving from the drunken party is always received as evidence of imposition justifying the interference of equity to set the contract aside.</p> <p>Id.—Jurisdiction to Award Pecuniary Compensation.—In such an action, when the court found for a rescission of the bill of sale- and also that it was impracticable to decree a return of the property, it was within its jurisdiction thereupon to state and settle the account between the parties, and to award a personal monetary-judgment against the defendant for the difference, although such relief was not specifically prayed for in the complaint.</p>

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

<p>Statute of Limitations—Absence of Debtor from State—Open or. Secret Return.—Under section 351 of the Code of Civil Procedure, providing that if, after a cause of action accrues against a person, he departs from the state, “the time of his absence is not a part of the time limited for the commencement of the action,” a person departing from the state after a cause of action has accrued against him cannot have reckoned in his favor the time of any secret, clandestine, or fraudulently contrived visit to Ms former residence for the purpose of ascertaining the time of his absence from the-state. But if he returns openly, after the action would be barred but for Ms absence, and especially if his return is not only open- and unconcealed, but Ms visits repeated and prolonged, the fact that his creditor has not learned of his presence in the state before his departure, is immaterial.</p>

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

<p>The facts are stated in the opinion of the court.</p> <p>Page, McCutchen & Knight, and C. E. Wilson, for Appellant.</p>

<p>Appeal prom Judgment—Review of Evidence.—Under the provisions of subdivision 1 of section 939 of the Code of Civil Procedure, on an appeal from a judgment taken more than sixty days after it was rendered, the sufficiency of the evidence to support it cannot be reviewed.</p> <p>Id.—New Trial—Bill of Exceptions—Specifications of Particulars.—Under section 648 of the Code of Civil Procedure, on an appeal from an order denying a new trial based on a bill of exceptions purporting to contain the evidence, the sufficiency of the evidence to support the decision cannot be reviewed when the bill of exceptions contains no specifications of the particulars in which the evidence is alleged to be insufficient.</p> <p>Fraudulent Conveyance—Want ' of Consideration—Amendment to Section 3442 of Civil Code.—Under section 3442 of the Civil Code, as it existed prior to the amendment of 1895, a conveyance of part of the grantor’s property, made in the year 1885 in -consideration of love and affection, could not be declared void as to the existing creditors of the grantor solely on the ground that it was not made for a valuable consideration, and cpuld not be rendered void by that amendment.</p>

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

<p>The facts are stated in the opinion of the court.</p> <p>Corbet & Goodwin, and Lawrence T. Wagner, for Appellant.</p>

<p>Appeal prom Judgment—Demurrer to Complaint—Refusal to Permit Amendments.—Upon an appeal by the plaintiff from a judgment entered against him upon sustaining a demurrer to the complaint on the ground of its failure to state a cause of action, proposed amendments to the complaint which the plaintiff requested leave to make at the time the demurrer was sustained and which the trial court refused on the sole ground that if allowed the complaint would still fail to state a cause of action, will be considered in determining whether a cause of action was stated in the lower court. If the complaint and the proposed amendments stated a cause of action the refusal to allow the amendments was error.</p> <p>Id.—Bill of Exceptions—Time of Appeal prom Judgment.—A bill of exceptions to the order of the trial court refusing to allow the amendments may be considered on the appeal from the judgment, although the appeal was not taken within sixty days after the rendition of the judgment.</p> <p>Id.—Complaint for Eraud—Allegations on Information and Belief —Matters Known to Defendant.—In a complaint sounding in fraud, allegations as to matters which are peculiarly within the knowledge of the defendant, and as to which the plaintiff could learn only from statements made to him by others, may be made on information and belief, and on a demurrer to the complaint, must be taken equally with the positive allegations as stating facts confessed by the defendant.</p> <p>Real Property—Law op Situs Governs Title and Disposition— Trust.—The title and disposition of real estate is governed by the lex loci rei sites. This rule necessarily includes the proposition that the validity of a trust in real estate attempted to be created by a will must be determined by the law of the situs of the real estate.</p> <p>Id.—Void Trust in Beal Estate—Unlawful Suspension of Power of Alienation—Direction to Trustee to Convey—Will.—A trust in real estate situated in this state, attempted to be created by a will is void if it either suspends the power of alienation for a longer period than during the continuance of lives in being at the time of the death of the testator, or if it devises the title in fee simple to trustees to be conveyed by them to the beneficiaries. As to the subjeet-matter of such an invalid trust, attempted to be created by the residuary clause of a will, the deceased dies intestate, and the property descends by succession to his heirs at law, subject only to proper administration of his estate.</p> <p>Extrinsic Eraud — Probate Orders — Sham Sale of Beal Estate— Equitable Belief.—The administratrix of the will of the testator, the trustees under his will, and one of his adult heirs, in pursuance of a conspiracy between them to prevent a distribution of the real estate constituting the subject-matter of such void trust to the testator’s heirs at law, by fraudulent imposition on the court in which the probate proceeding was pending, obtained an order for the sale of such property, made a return of its sale, and obtained orders for the confirmation of the sale and for the distribution of the proceeds thereof, and thereafter the purported purchaser conveyed the property to the trustees. All of such probate proceedings, from the petition for the order of sale to and including the decree distributing the alleged proceeds of sale, were a mere sham, and were carried through by means of false representation to and concealments from the court as to the real facts and purposes of the transaction. The heirs of the testator, other than the one joining in the conspiracy, were non-residents of California, from whom the nature of the transaction was concealed, and who were wholly in ignorance thereof. Two of such heirs were minors, and the administratrix was their mother. Seld, that such facts established a ease of extrinsic fraud as against the non-resident heirs of the testator, warranting equitable relief in their behalf, and that it could not be said that no injury resulted to them from such acts.</p> <p>Id.—Party Guilty of Fraud Chargeable as Trustee.—Where the judgment or order of a probate court assailed is of such a character that a court of equity may not properly set it aside, it may nevertheless prevent an inequitable advantage being taken of it by adjudging the guilty beneficiary or his successor with notice a trustee for the defrauded party, and the order or decree from the effect of which relief is sought cannot constitute a bar to an action for such equitable relief. Such an action is a direct and not a collateral attack on the judgment or order.</p>

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

<p>Taxation — Assessment — Insufficient Description of City Dot— Evidence to Identify Property.—The description in the assessment-roll of a piece of land assessed as “lot 34 in University Addition Tract,” in the city of Los Angeles, in Los Angeles County, without any reference to any map of the tract, nor anything to indicate the character of the “ University Addition Tract,” the location in the city of the addition, nor the relative location of lot 34 thereof is prima facie insufficient to make a valid assessment, but in an action involving the validity of a tax-deed based upon such assessment, the party asserting its validity may introduce extraneous evidence to show that there is a definite tract known by the name given, that a survey and map thereof has been made, and that the lot designated by number constitutes a known and certain subdivision thereof, and when so explained the assessment will be held good.</p> <p>Id.—Delinquent Tax-List—Dollar-Mabk.—The publication of a deliquent tax-list is not rendered ineffectual because the dollars and cents were not indicated by the figures purporting to state the amount charged against the property, where there was a note at the-foot of the list fully explaining the figures.</p> <p>Id.—Sale by State—Highest Bidder for Cash.—Fox v. Wright, ante, p. 60, approved to the effect that the provision of section 3897 of the Political Code, requiring the tax-collector to sell the property sold to the state for delinquent taxes at public auction “ to the highest bidder for cash,” means that the sale must be made to him who will pay the largest cash sum for the entire property. So construed the section is not unconstitutional, although the law makes no provision for the return to the owner of the property of any excess of the selling price above the amount for which it was sold to the state.</p> <p>Id.—Assessment-Book—Statement of Year of Assessment.—A statement in the assessment-book that it was the book of assessments for the year “ 1898 ” was a proper designation of the year. There being but one assessment for that year, namely, the assessment of property that was subject to taxation on the first Monday of March, 1898, the designation made it certain that this was the assessment referred to. The fact that the fiscal year begins July 1st and includes the la=t. half of one calendar .year and the first half of the succeeding year is immaterial.</p> <p>Id.—Delinquent Tax-List—Amount of Delinquency.—It is not necessary in the delinquent tax-list to state separately the items of taxes, penalties, and costs charged against the property. A statement of the total amount is sufficient.</p> <p>Id.—Certificate of Sale—Recitals.—The certificate of sale to the state was not rendered invalid by the fact that it recited that the amount for which the property was sold, being the same as the amount charged, was for “ taxes of every kind charged against said property, and penalties, costs and charges." The addition of the word “ charges ” added nothing to the amount, nor did it change the items composing it.</p> <p>Id.—Deed by Tax-Collector.—A deed made by the tax-collector to the purchaser is a sufficient divestiture of the title of the state. A patent signed by the governor is not necessary.</p> <p>Id.—Recitals in Deed by Tax-Collector.—The sufficiency of the deed by the tax-collector to a purchaser at a sale made after the title has become vested in the state is to be determined by the requirements of sections 3897 and 3898 of the Political Code, and it is only necessary that it shall recite so much of the proceedings subsequent to the execution of the deed by the tax-collector to the state as may be necessary to show that the tax-collector was authorized, as agent for the state, to sell and convey the state’s previously acquired right to the property.</p> <p>Id.—Notice of Sale—Statements in.—Where a sale by the state was made at a time when section 3897 of the Political Code did not require that the notice of sale given by the tax-collector in pursuance of the order of the state controller, should state the name of the person owing the delinquent tax that may be against the property or a statement of the taxes, costs, penalties and expenses accrued to that date, the omission of such matters is immaterial.</p> <p>Id.—Publication of Notice—Daily Newspaper.—The provision' of the statute that the notice of sale should be published “for at least three successive weeks in some newspaper published in the county,” is sufficiently complied with by a publication on one day in each of four successive weeks, in a newspaper of the county which was-published daily during that period, the days of such publication being exactly one week apart, although the notice was not inserted except for the one day in each of said weeks.</p>

<p>Street Assessment—Provisions m Specifications Increasing Burden on Property-Owner.—A provision in a city ordinance, referred to and made part of the specifications for proposed street work, that “ all loss or damage arising from the nature of the worlc to he done under this agreement, or from any unforeseen obstructions or difficulties which may be encountered in the prosecution of the same, or from the action of the elements, or from any encumbrances on the lines of the work, or from any act or omission upon the part of the contractor, or any person or agent employed by him, not authorized by this agreement, shall he sustained hy the contractor,” is unauthorized by statute and renders void an assessment for such work.</p>

<p>The facts are stated in the opinion of the court.</p> <p>Hannah & Miller, and Charles G. Lamberson, for Appellants.</p>

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

MOTION to dismiss an appeal from a judgment of the Superior Court of Los Angeles County. Curtis D. Wilbur, Judge. The facts are stated in the opinion of the court. Wright, Bell & Ward, Walter J. Trask, and Benjamin E. Page, for Appellant.

MOTIONS to dismiss appeals from a decree of the Superior Court of the City and County of San Francisco directing partial distribution of the estate of a decedent, and from an order refusing a new trial. J. V. Coffey, Judge. ■ The facts are stated in the opinion of the court. Morrison & Cope, Bradley & McKinstry, J. C. McKinstry, and U. S. Webb, Attorney-General, for Appellants. Charles S. Wheeler, Garret W. McEnerney, J. F. Bowie, and Walter Rothchild, for Respondents.

MOTION to dismiss appeals from a judgment of the Superior Court of San Luis Obispo County. E. P. Unangst, Judge. The facts are stated in the opinion of the court.

<p>Estates of Deceased Persons—Costs of Unsuccessful Contestant to Probate of Will—Payment by Estate—Discretion—Presumption on Appeal.—Under section 1720 of the Code of Civil Procedure, providing that in probate proceedings in general the superior court “ may, in its discretion, order costs to be paid by any party to the proceedings, or out of the assets of the estate, as-justice may require,” that court has power in its sound discretion to order the costs of an unsuccessful contestant to the probate of a. will paid out of the assets of the estate, and to refuse to give the successful proponents of the will judgment against the contestants for their costs; and in the absence of any showing to the contrary it will be presumed on appeal that such a direction for the payment of costs was properly made.</p> <p>Id.—Oases where Costs are Properly Payable erom Estate.—The eases are rare and the circumstances must be peculiar which would justify the trial court in ordering the costs of an unsuccessful contestant to the probate of a will payable out of the assets of the estate, and it should use great caution and make such orders only in very extreme cases presenting great hardship, and where it appears that the contestant has acted in the utmost good faith throughout the proceeding.</p>

<p>Estates of Deceased Persons—Family Allowance—Separate Property of Widow.—The fact that a widow has other property of her own out of which she might support herself without aid from her husband’s estate does not deprive her of the right to an allowance therefrom pending its administration.</p> <p>Id.—Constitutional Law-—Order for Allowance without Notice.— The provisions of sections 1464 and 1468, inclusive, of the Code of Civil Procedure, in so far as they authorize the making of orders setting apart exempt property and a homestead to the widow and for the payment of money to her out of the estate for her support without notice to- the heirs, devisees, or legatees, are not in conflict with the fourteenth amendment of the constitution of the United States or with the state constitution, because they would operate to deprive such heirs, devisees, or legatees of their property without due process of law.</p> <p>Id.—Due Process of Law—Jurisdiction of Administration.—The making of such orders without notice is a part of the statutory proceeding for the administration of the estate which is initiated by the giving of a general notice as prescribed in sections 1303, 1304, and 1373 of the Code of Civil Procedure. These notices constitute due process of law, and are sufficient to give the court jurisdiction to make all the subsequent orders in the proceedings, as to which special additional notice is not required.</p> <p>Id.—Legislative Power over Property of Decedent.—The right of inheritance and testamentary disposition is entirely the creation of statute, and the heirs, devisees, and legatees of a deceased person take the property subject to such burdens as the legislature has seen fit to impose upon it, among which is the burden of supporting the widow and children of the deceased whenever the court having jurisdiction of the administration of the estate shall make an order to that effect. The enforcement of these charges in the authorized mode is not a violation of any constitutional right of the heir, devisee, or legatee.</p> <p>Id.—Husband Cannot Deprive Widow of Allowance by Well—Emotion.—It was not within the power of the husband by any provision of his will to deprive his widow of her right to a family allowance, or in any wise to limit the power of the court in the exercise of its proper discretion to fix the amount to be allowed. The testator may, however, so frame his will that his widow cannot have the benefits thereby given her and those of the statute also, and she will then be put to her election which she will take. But when she repudiates the will she is entitled to the benefit of her statutory rights as fully as if there had been no will, and the provisions of the will attempting to limit her allowance are immaterial.</p> <p>Id.—Misappropriation of Funds by Wife.—The right of a widow to a family allowance, and to the amount thereof, is not affected by the fact that she had during the lifetime of her husband wrongfully appropriated his money to her own use.</p> <p>Id.—Discretion as to Amount of Allowance—Appeal.—The amount to be awarded the widow as an allowance is within the discretion of the lower court, and will not be interfered with on appeal, unless it appears the discretion has been abused.</p> <p>Id.—Dismissal of Application for Allowance.—An application by the widow for a family allowance which was filed by her and dismissed at her request, but which was never tried, submitted, nor decided on the merits, is not a bar to a subsequent application by' her.</p>

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

<p>Bailment—Title of Bailor May Be Disputed.—The general rule that a bailee cannot dispute the title of his bailor is not of universal application, and has its exceptions even in the usual case where the contract of bailment arises out of the simple fact that the bailor has deposited the property with the bailee, and there are no special circumstances or agreements which modify the presumption that the bailor is the owner.</p> <p>Id.—Deposit by Agent—Delivery to Principal—Insolvency op Agent. :—Where an agent deposits with a bank a box indorsed with the name of and containing property belonging to the principal, with written instructions that it was not to be delivered to anyone except the principal or the agent, the bailee has the right, although he knows of the insolvency of the agent and the transfer of his property to an assignee, to deliver the box to the principal; and in an action by the assignee to recover the property or its value the bailee may set up such facts as a defense.</p>

<p>MOTION to dismiss an appeal from a judgment of the Superior Court of Alameda County. William H. Waste, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>APPLICATION for a Writ of Prohibition directed to the Superior Court of the City and County of San Francisco. Prank H. Dunne, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>The facts are stated in the opinion of the court.</p> <p>Monroe & Cornwall, John H. Dickinson, and C. H. Wilson, for Appellant.</p>

<p>Eminent Domain—Construction of Statutes.—While statutes providing for the taking of property for public use without the consent of the owner are to be given a strict construction and the power to take must be given by the clear terms of the statute and is not to be extended by implication, still there should not be a construction so narrow as to defeat the evident purpose of the legislature.</p> <p>Id.—Railroads—Land fob Freight House May Be Condemned.—Under section 1238 of the Code of Civil Procedure, providing that the right of eminent domain may be exercised in behalf of the following public uses, to wit, “ paths and roads either on the surface, elevated, or depressed, for the use of bicycles, tricycles, motorcycles and other horseless vehicles, steam, electric and horse railroads,” etc., and subdivision 7 of section 465 of the Civil Code, giving railroad companies power to purchase lands to be used in the construction and maintenance of their roads “ and all necessary appendages and adjuncts,” or to acquire them by condemnation, a railroad company may exercise the right of eminent domain to condemn a tract of land for the purpose of erecting a freight house thereon upon a proper showing of necessity.</p> <p>Id.—Complaint—Allegation as to Antecedent Selection of Land.— Section 1244 of the Code of Civil Procedure sets forth what must be contained in a complaint for the condemnation of land, and does: not require that it shall allege that there has been a formal antecedent selection of the land involved for the purpose intended; nor need proof of such fact be made by the plaintiff on the trial.</p> <p>Id.—Allegation of Necessity for Taking.—A complaint by a railroad company to condemn a tract of land for the purpose of a freight house sufficiently shows the necessity for taking the land for public use by allegations to the effect that its business has so greatly increased that its present facilities are inadequate to meet the traffic requirements; and “that it is necessary to construct and maintain an adjunct or appendage to said railroad, to wit: a freight house, adjoining said station grounds and as part thereof, and that it is necessary that the parcel of land here involved . . . be taken for the erection of a freight house for the reception and delivery of freight.”</p> <p>Id.—Future Necessity—Growth of Neighborhood.—In determining whether the proposed taking is necessary not only the present demands of the public upon the plaintiff may be considered, but also those which may fairly be anticipated on account of the future growth of the neighborhood.</p> <p>Id.—Market Value How Determined.—In ascertaining the market value of the land sought to be condemned the facts that defendant was unwilling to sell or wished to improve it himself are immaterial. The actual market value of the land is the measure of damages, and not its value in use to the owner or to the party who is seeking to condemn it.</p> <p>Id.—Evidence of Necessity — Harmless Error. — Where a witness called by the plaintiff in the action to condemn land for a freight house testified without objection that a draymen’s association of which he was president had complained of delays in the delivery of freight, it is harmless, even if error, to permit him to further testify, over objections by the defendant, that such complaints had been made within the last year or two.</p> <p>Id.—Evidence as to Eemote Cost Price.—The sustaining of an objection to a question asked a witness for the defendant designed to show the cost price of the land over twenty years prior to the commencement of the action is rendered harmless by the witness subsequently testifying to everything of consequence that was sought to be elicited. Besides, the time of the transaction was so remote that the price paid could have little if any weight on the question of value at the date of issuing the summons.</p> <p>Id.—Evidence as to Assessed Value—Cross-Examination of Expert. —While the assessed value of the land is not admissible as original evidence of its market value, a witness who has testified as an expert may properly on cross-examination be asked what is his knowledge regarding the assessed value for the purpose of testing the value of his opinion, and may be likewise cross-examined regarding the appraisement of the property in the probate proceedings in connection with the estate of a former owner.</p>

<p>Municipal Corporation—San Francisco—Charter—Bonded Indebtedness—Repair op Streets—Application op Fund—Engineer’s Estimates.—Under the charter of the city and county of San Francisco, where at a special election held for that purpose the proposition of incurring a bonded indebtedness for the general purpose of “ repairing and improving accepted streets of said city and county ” is submitted to the electors and is affirmatively acted on, the board of supervisors in afterwards determining what streets should be repaired and paid for out of the funds realized from the sale of the bonds is not limited to such streets or portions of a street as were included in a report made to them by the city engineer before the proposition.for a bonded indebtedness was submitted, in which such engineer designated certain streets and portions thereof to be repaired and improved, and made plans and estimates of the cost of the work.</p> <p>Id.—Estimates and Plans not Necessary before Submission of Proposal.—There is nothing in the charter of the city and county of San Francisco providing that the board of supervisors before submitting a proposal for a bonded debt shall require plans and estimates of costs to be furnished by the engineer.</p> <p>Id.—Duty of Supervisors Cannot Be Delegated.—The power and duty of estimating the amount of the bonded debt necessary, of submitting a proposal to the voters, and of using the products of the bonds for the general purpose “ of repair and improvement of the accepted streets ” rested with the board of supervisors, and it could not be shifted by them to any other person, although they could call for information on the subject to aid their judgment.</p>

<p>Divorce—Bight to Interlocutory Degree.—In an action for a divorce on the ground of desertion, in which the complaint was sufficient, due service was had on the defendant, his default was duly entered, and the facts showing the desertion were established by the evidence of the plaintiff and corroborated by other testimony, it is incumbent upon the court to render an interlocutory decree for a divorce in favor of the plaintiff.</p>

<p>The facts are stated in the opinion of the court.</p> <p>U. S. Webb, Attorney General, and George A. Sturtevant, Deputy Attorney General, for Appellant.</p>

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

<p>Appeal from Judgment—Time fob Taking.—An appeal from a judgment which is taken more than six months after its entry cannot be considered.</p> <p>Findings—Conflict of Evidence.—The credibility of witnesses and the weight of evidence are matters exclusively for the trial court to pass on, and where there is a substantial conflict in the evidence the rule is absolute that a finding evolved from it by the trial court will not be disturbed on appeal.</p> <p>Id.—Agreement fob Loan—Finding against Agreement.—In an action to recover damages for the breach of an alleged agreement to make a loan, evidence is reviewed and held sufficient to sustain the finding of the court negativing the making of such agreement.</p> <p>Id.—Immaterial Findings and Exclusion of Evidence.—In such an action, where the court finds on sufficient evidence that no agreement for a loan was ever made between the parties, there is no possible theory on which the plaintiff could recover, and hence erroneous findings as to other and distinct issues and errors in the rejection of evidence in the matter of damages are without prejudice.</p>

APPEALS from an order of the Superior Court of Kern County settling the final accounts and decree of distribution of the estate of a decedent, and from an order refusing to set aside the probate of a will. J. W. Mahon, Judge. The facts are stated in the opinion of the court. O. V. Eaton, E. T. Maples, and F. D. McClure, for Appellants.

<p>Criminal Law—Conspiracy.—Where several parties conspire or combine together to commit any unlawful act, each is criminally responsible for the acts of his associates or confederates committed in furtherance of any prosecution of the common design for which they combine.</p> <p>2d.—Liability of Conspirator for Incidental Act.—Each conspirator is responsible for everything done by his confederates which follows incidentally in the execution of the common design as one of its probable and natural consequences, even though it was not intended as a part of the original design or common plan. The act, however, must be the ordinary and probable effect of the wrongful act specifically agreed upon, so that the connection between them may be reasonably apparent, and not a fresh and independent product of the mind of one of the confederates outside of, or foreign to, the common design.</p> <p>Id.—Acts for "Which Conspirator Is not Responsible.—Even if the common design is unlawful, and if one member of the party departs from the original design as agreed upon by all of the members, and does an act which was not only not contemplated by those who entered into the common design but was not in furtherance thereof, and not the natural or legitimate consequence of anything connected therewith, the person guilty of such act, if it was itself unlawful, would alone be responsible therefor.</p> <p>Id.—Common Design—Question for Jury.—Whether or not the act committed by one of the conspirators was the ordinary and probable effect of the common design, or whether it was a fresh and independent product of the mind of the one committing it, outside of, or foreign to, the common design, is a question of fact for the jury, and if there be any evidence to support its finding on this question its determination is conclusive.</p> <p>Id.—Conspiracy to Commit Burglary—Resist of Arrest—Killing of Policeman—Evidence.—Where six persons enter into a conspiracy to burglarize a particular place, but desist from their ultimate purpose upon finding the place guarded, and on returning therefrom, and while resisting arrest, one of them shoots and Mils a policeman, the facts that five of the conspirators were armed and the other had endeavored to secure a pistol before starting on .the journey, that several of them had burglars’ tools on their persons, and that on their return they divided into two parties in order to escape suspicion, are sufficient to warrant the jury in finding that the conspiracy embraced the purpose of resisting arrest in going to and in returning from the scene of the proposed burglary, even to the extent of taking human life.</p>

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

MOTION to dismiss an appeal from orders and judgment-of the Superior Court of Sacramento County. J. W. Hughes, Judge. The facts are stated in the opinion of the court.

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

<p>Instructions—Failure of Jury to Follow Erroneous Instruction— Appeal.—While the jury should conform to the instructions of the court upon matters of law, if it appear to the appellate tribunal that an instruction was erroneous, it will not disregard a verdict contrary to such erroneous instruction.</p> <p>Negligence — Master and Servant — Conflicting Instructions to Servant—Contributory Negligence.-—-Where a minor about sixteen years of age was given conflicting instructions by his employer as to the manner of operating a machine at which he was to work, one of which methods was safe and the other of which wa" dangerous, it cannot be said as matter of law that he was guilty of contributory negligence in operating the machine by the unsafe method.</p> <p>Id.—Misconduct of Attorney—Question Asked Juror on His Voir Dire.—In an action by a servant against his employer to recover damages for personal injuries alleged to have been caused by the latter’s negligence, the fact that the attorney for the plaintiff on the examination of a juror on his voir dire asked him whether he at any time had obtained a policy of accident insurance in a company in which it was understood the defendant was insured, is not misconduct warranting the defendant a new trial, if the question was subsequently withdrawn and no other question of the kind was repeated.</p> <p>Contempt—Refusal to Answer Questions on Deposition—Striking Out Complaint.—A plaintiff, regularly subpoenaed by the defendant for the taking of his deposition before a notary, who appeared and refused to answer pertinent and material questions propounded to him, may be punished for a contempt of court, and his complaint may be stricken out under section 1991 of the Code of Civil Procedure. Before, however, the complaint can be stricken out the plaintiff must be adjudged guilty of contempt; and as such contempt was committed out of the immediate presence of the court a citation and showing is necessary.</p>

<p>Criminal Law—Murder in Second Degree—Deliberation and Premeditation— Instruction. — A verdict of murder in the second degree necessarily implies a finding by the jury that the killing was without deliberation and premeditation, and hence an erroneous instruction on these subjects would be harmless if it was declared to be applicable only to murder of the first degree.</p> <p>Id.—Defendant as Witness—Instruction as to Evidence.—Where the defendant in a criminal case tried before the rendition of the opinion in People v. Mtmgfts, 149 Cal. 253, becomes a witness in his own behalf, an instruction that he had such right and that the jury should consider his testimony as they would that of any other witness, but that is was “ proper for the jury to bear in mind the situation of the defendant, the manner in which he may be affected by the verdict, and the very grave interest he must feel in it, . . . and to consider whether this position and interest may not affect his credibility or color his testimony,” will not be construed as evidence of a desire on the part of the trial judge to be unfair to the defendant. The intimation given by the supreme court in the case of People v. Maughs, that it would consider the giving of such an instruction thereafter to be evidence of unfairness on the part of the trial court prejudicial to the defendant, was not intended to have a retroactive effect.</p> <p>Id.—Jurors—Voir Dire—Contradictory Answers as to Questions Touching Opinion.—Where a juror on his voir dire gives contradictory answers to questions put to him touching Ms ability to set aside his opinion as to the defendant's guilt, it is the duty of the trial court to decide which of the answers most truly shows the juror’s mind, and its decision is binding on appeal. The trial court should be liberal in giving the defendant and the people the benefit of any doubts that may arise as to the fairness of the juror and his ability to lay aside preconceived impressions and should excuse the juror if such doubt is created.</p> <p>Id.—-Evidence op Jealousy—Immaterial Error.—In a prosecution for murder, where in the evidence offered by the defense there was no substantial proof that at the time of the killing the deceased had any feeling of jealousy towards the* defendant on account of the latter’s relations with the wife of the deceased, and no proof at all that the defendant then supposed that the deceased was moved by jealous rage, the admission in rebuttal of the evidence of the wife of the deceased to the effect that, so far as she knew, the deceased never had or pretended to have any jealousy of the defendant, was a mere technical error and was without prejudice.</p> <p>Id.—Bepusal to Allow Beoall op Witness — Testimony Already Given.—There was no error in refusing to allow a witness for the defense to be recalled, after the close of the evidence in rebuttal, to further explain parts of Ms testimony at the preliminary examination, wMeh had been introduced in rebuttal, if in his previous examination he had admitted the giving of the testimony on the former occasion substantially as proven, and had been given ample opportunity to explain and had explained in his own way certain unimportant and trivial discrepancies that had been disclosed.</p> <p>Id.—Impeachment — Hostility op Witness — Evidence op Hostile Statement.—It is competent, for purposes of impeachment, on the cross-examination of a witness for the defendant, to question him concerning a remark imputed to him wMch tended to show the ill-will of the witness towards the deceased, and in rebuttal to prove that he made the statement as imputed to him in the question.</p>

<p>Mechanics’ Liens—Contract Price—Provision for Pinal Payment on Completion of Building—Bight of Lien—Pro Tanto Payment of Price.—Under section 1184 of the Code of Civil Procedure, where the contract price for the erection of a building exceeds one thousand dollars, the effect of a provision in the contract, requiring that the final payment of one fourth of the price shall be made at the completion of the building instead of at least thirty-five days thereafter, is to give to all persons except the contractor a right of lien for the value of the labor done and materials furnished by them which are used in the building; and a person otherwise entitled to such lien does not forfeit his right thereto by the payment to him pro rata, with other persons entitled to liens, of the balance due on the contract price. The judgment foreclosing such a lien cannot provide for a personal judgment against the owner for any balance remaining due the claimant after the application of the proceeds of the property thereon.</p> <p>Id.—Substantial Departure from Statutory Bequirements. — The provision in such contract making the whole of the contract price due and payable at the completion of the building is a substantial departure from the provision of section 1184 of the Code of Civil Procedure declaring that one fourth of the price must not be payable .until thirty-five days thereafter, and that within thirty days after completion every person who has performed labor on the building or furnished materials therefor may file a notice of his claim of lien.</p> <p>Id.—Attorney’s Pees Unauthorized in Foreclosure Suit.—The provision of the Code of Civil Procedure purporting to allow attorney’s fees to a person enforcing a mechanic’s lien by foreclosure suit is an unlawful discrimination in favor of such suitors and is thoreforo unconstitutional and void.</p>

<p>Deed—Condition against Sale or Liquors.—As an abstract proposition a condition inserted in a deed that intoxicating liquors shall not be sold on the conveyed premises, and providing that for a breach thereof the estate granted shall be forfeited, is valid.</p> <p>Id.—Condition Designed to Create Monopoly — Public Policy. —■ Where the owner of land designed as the site for a town inserts in all deeds made by him a condition against the sale of intoxicating liquors on the land conveyed, solely for the purpose of reserving to himself a monopoly of such business, the condition is void as against public policy, and its breach will not work a forfeiture of the estate granted.</p>

<p>The facts are stated in the opinion of the court.</p> <p>Bishop, Wheeler & Hoefler, Charles S. Wheeler, and J. F. Bowie, for Appellant.</p>

<p>Partnership Accounting—Raisin Packing — Evidence — Findings.— In an action between partners engaged in the business of packing and selling raisins, for an accounting, the evidence is reviewed and held sufficient to sustain the findings that the defendant had been properly credited for his individual crop of raisins delivered to the firm, that the same was graded and accounted for in accordance with the regular methods of the partnership business and the partnership agreement, and that such grading was not fraudulent.</p> <p>Id.—Monet Drawn bt Partner—Interest.—The charge made against the defendant for interest on account of money drawn by him from the firm is held not sustained by the evidence contained in the present record on appeal, and as no proper adjustment of this matter can be made as the record stands, a new trial is ordered of this issue.</p> <p>Id.—Liability of Partner for Interest.—If one partner is indebted to the firm, either in respect of money borrowed or in respect of balances in his hands, he ought to be charged with interest on the amount so owing, even though on the balance of the whole account a sum might be due him. Except, however, where there has been a fraudulent retention, or an improper application, of money of the . firm, it is not the practice of the court to charge a partner with interest on money of the firm in his hands; for example, under ordinary circumstances a partner is not charged with interest on sums drawn out by him or advanced to him.</p> <p>Id.—Overdraft by Partner.—Where there has been no fraudulent retention of moneys of the firm by a partner, but a mere inadvertent overdrawing by him of his account with the firm, the partner so overdrawing should be charged with interest on the overdraft from the time he drew it down to the time of settlement.</p> <p>Id.—Partner as Creditor op Firm—Advances on Sales.—Where a partner is also an individual creditor of the firm for goods sold to it, he should not be charged interest on advances made him against such goods after the time when he became entitled to a settlement with the firm on account of such sale.</p>

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

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

<p>Pledge—Extinguishment of Lien—Statute of Limitations.—Under section 2911 of the Civil Code, providing that “ a lien is extinguished by the lapse of time within which, under the provisions of the Code of Civil Procedure, an action can be brought upon the principal obligation,” the lien of a pledge is extinguished by such lapse of time, and thereafter no affirmative action can be maintained on the part of the pledgee to enforce his lien.</p> <p>Id.—Pledgob not Entitled to Possession without Payment of Debt. That section is applicable alike to mortgages and pledges and was not designed to prevent the application of the equitable principle which has always been recognized as warranting courts in refusing to aid the debtor in the recovery of possession of his property from the mortgagee in possession or pledgee, or in removing any cloud upon his title created by an instrument in writing given as security without paying his debt. Consequently) and notwithstanding that section, a pledgor cannot recover possession of the pledged property without paying his debt, although the debt be barred by the statute of limitations. (Mutual Life Insurance Co. v. Pacific Fruit Co., 142 Cal. 477, so far as it holds to the contrary, is overruled.)</p> <p>Id.—Pledge of Life Insurance Policy—Action to Becover Proceeds —Payment of Amount Due into Court.—Where the pledgee of a policy of life insurance after the death of the beneficiary brings an action against the insurance company to recover the amount due on the policy and the company pays the same into court, and the personal representative of the beneficiary, who is made a party-defendant, files a cross-complaint claiming to be entitled to the fund on the ground that the indebtedness due the pledgee is barred by the statute of limitations, the case so presented is the same as that of a pledgor or his successor seeking to recover possession of the pledged property from the pledgee without paying the debt for which it was pledged. The money so paid into court takes the place of the policy held in possession of the pledgee, and for all the purposes of the action should be deemed to be in his possession.</p> <p>Id.—Pledgee May Collect Policy.—Under section 3006 of the Civil Code the pledgee of a policy of life insurance has the right to collect from the insurer the amount of the policy when it falls due.</p>

<p>Redemption from: Execution Sale—Expiration of Statutory Period —Relief in Equity.—As a general rule, the redemption of property allowed by statute from an execution sale cannot be effected after the expiration of the statutory period allowed therefor, but courts of equity may, upon a "proper showing of fraud, mistake, or other circumstances appealing to the discretion of the chancellor, relieve judgment debtors whose property has been sold on execution from a failure to redeem within the statutory period.</p> <p>Id.—Decree Determines Terms of Redemption.—Such a redemption, when authorized by the decree of a court of equity, finds its support not in the provisions of the statute allowing redemption within a given time as a matter of right, but in the provisions of the decree granting to a party the privilege of redeeming upon terms fixed by the court as just.</p> <p>Id.—Eedemption Conditional on Payment Within Time Limited—Tender.—In an action to redeem real property, after the statutory period of redemption had expired, a decree adjudging that plaintiffs were entitled to redeem the property within thirty days from the date of its entry, upon paying the defendant a specified sum of money, with interest thereon at the rate of seven per cent per annum until payment, subject to certain reductions, and further ordering that if the plaintiffs should fail to redeem the property within thirty days, the action might, on motion of the defendant, be dismissed, and requiring the defendant to make and deliver a deed to the plaintiffs, should not be construed as giving to the plaintiffs a right to a statutory redemption to be exercised within a new period of thirty days, so as to make a tender of the amount ordered to be paid, made pending the time the defendant had the right to appeal from the judgment, operate ipso faoto as a restoration of the title to the plaintiffs.</p> <p>Id.—Bight of Appeal Cannot be Cut off—Affirmance of Judgment —Eefusal of Payment Causes Loss of Bight of Bedemption.— The defendant in such action had the right to appeal from the judgment authorizing the redemption, and the plaintiffs could not, by a tender, compel him to waive such right, under penalty of losing the property, if he should decline to make such waiver, and the decree should be affirmed. The plaintiffs, under the decree, had a right to make the tender within thirty days after its entry, and after so doing they could not be put in default until the defendant should tender them a deed and demand payment of the amount due. After the affirmance of the judgment, the plaintiffs’ right to redeem still existed, but it was a right to redeem upon the condition fixed by the decree, which was that the money should be paid to the defendant. Upon their refusal to comply with such condition, their right to redeem was lost.</p> <p>Ib.—Option to BedeeM'—Obligation—Offer of Payment.—Such decree gave the plaintiffs a mere option to redeem, which imposed on them no “obligation,” and neither the title to the land nor its possession was an “incident” to any obligation, within the meaning of section 1504 of the Civil Code, providing that “an offer of payment . . . stops the running of interest on the obligation, and has the same effect upon all its incidents as a performance thereof.”</p>

<p>Primary Election Law Is Constitutional.—The primary election law is not unconstitutional either in not preserving secrecy in voting or in arbitrarily classifying voters and discriminating between the classes so made, or in impairing the right of citizens to assemble together and instruct their representatives, or in investing state officers with judicial functions. In none of these respects does that law violate the spirit or intent of section 2% of article II of the constitution.</p> <p>Id.—Secrecy of Ballot.—While primary elections are now conducted under the law, and are to that extent a part of the elective system of the state, it is the secrecy of the ballot which the law protects, and not secrecy as to the political party with which the voter desires to act.</p> <p>Id.—Preservation of Political Parties.—The primary election law does not destroy the right of self-preservation of political parties, for, in addition to the tests which the legislature has prescribed, it remains with the managing bodies of the political parties to require additional tests of qualification before a citizen may be allowed to vote the party ticket.</p> <p>Id.—Political Parties Regarded as Public Bodies.—By virtue of section 2% of article II of the constitution, the state has declared that political parties shall be, as to their mode of holding conventions and nominating candidates for public office, regarded as public bodies whose methods are to be controlled by the state.</p> <p>Id.—Judicial Powers of State Officers.—Sections 1188 and 1190 of the Political Code do not vest judicial powers in the secretary of state, clerks, and other officers, in that they are empowered to strike from the list of names of candidates nominated by petition the names of those who have voted at any primary election.</p> <p>Id.—Classification of Voters.—There is no arbitrary classification of voters by reason of the provision prohibiting one who has exercised the right to vote at a primary election from signing a petition for another candidate.</p> <p>Id.—Discrimination between Parties.—There is no discrimination between large and small political parties because of the provisions of section 1361 of the Political Code, extending the operation of the primary law only to such political parties as have polled three per cent of the total vote.</p>

<p>Negligence—Injury to Person in Dangerous Position—Ordinary Care.—One is bound to use ordinary care to avoid injuring a person whom he actually discovers to be in a dangerous situation, although such dangerous situation is due solely to the negligence of such person.</p> <p>Id.—Street Cable Railroad—Negligence op Gripman—Evidence.—■ In an action against a street cable railroad for damages for negligently running over a child, a verdict for the plaintiff will not be disturbed for insufficiency of the evidence, where there is a substantial conflict in the evidence as to whether the defendant’s grip-man, after actual discovery of the plaintiff’s perilous situation, could have avoided the injury by the exercise of ordinary care.</p> <p>Id.—Impeachment op Witness—Statements Made Subsequent to Injury.—In such an action, where the gripman, as a witness for the defendant, testified on his direct examination, in effect, that as soon as he saw the child he instantly let go the cable, set the brakes, and stopped the ear as soon as he could, he may be impeached, in accordance with section 2052 of the Code of Civil Procedure, by evidence that, in a conversation had with the father of the child a day or so after the accident, he stated in effect that as soon as he saw the child he rang the gong, in the expectation that it would stop the child.</p> <p>Id.—Inconsistent Statements—Evidence Otherwise Incompetent.— It is not a valid objection to evidence of inconsistent statements offered for purposes of impeachment that it also shows a declaration by the witness that would not otherwise have been competent evidence against the adverse party.</p> <p>Id.—Method of Impeachment—Variance in Questions.—Where such witness, after testifying on cross-examination as to the time, place, and persons present at the subsequent conversation with the father, answered in the negative to the question, “Did not you tell Mm that when you first saw the boy you rang the gong and thought you could frighten him?” the proper foundation is laid, under section 2052 of the Civil Code, to impeach him by showing that he did make such a statement; and where the questions asked of and answers given by the impeaching witness differed somewhat in verbiage from the statement as to which the foundation was laid, but were substantially the same in effect, and no specific objection to the method of impeachment was made, the variance will not warrant a reversal.</p>

<p>The facts are stated in the opinion of the court.</p> <p>E. W. Freeman, Herbert Cutler Brown, and George H. Moore, for Appellant.</p>

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

<p>APPEAL from a judgment of the Superior Court of Fresno County and from an order refusing a new trial. H. Z. Austin, Judge.</p> <p>The facts in this case were similar to those in the ease of Fresno Canal and Irrigation Company v. Hart, ante, p. 450.</p>

<p>Corporation—Trustee to Wind up Business—Division op Capital Stock.—After the dissolution of a partnership, by the death of one of its members, a large number of persons, who then became owners of the partnership property as tenants in common, and who were desirous of liquidating the partnership business and converting its property into money and dividing the proceeds amongst themselves, entered into a contract whereby they agreed to form a corporation to take over the partnership assets, to convert the same into money, and to divide the proceeds among the co-owners, who were to become stockholders of the corporation in proportion to their respective holdings. In pursuance of such contract a corporation was formed for the purpose stated in the contract, to which the partnership assets were conveyed, and stock therein was issued to the co-owners as fully paid up in proportion to their respective ownerships. Held, that the agreement and the conveyances to the corporation should be construed as one instrument; that the corporation so formed did not take an absolute unqualified estate in the property so conveyed to it, but that it took the legal title in trust for the purposes declared in the agreement and in its articles, and that the grantors in the deeds were the beneficiaries of the trust, and that as to such corporation the rule of law embodied in section 309 of the Civil Code, prohibiting a corporation from dividing its capital stock among its stockholders, had no application.</p> <p>Id.—Trustee for Stockholders.—A corporation may be formed for tie purpose of holding property conveyed to it as a trustee for its stockholders. 0</p> <p>Id.—Amendment to Articles.—Where such agreement and articles of incorporation further provided that amendments to the articles might be made by the vote or written consent of stockholders representing at least four fifths of the capital stock, an amendment so made requiring an annual division of a certain sum among the parties interested is binding on a stockholder who did not consent thereto.</p>

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

<p>The facts are stated in the opinion of the court.</p> <p>Edward H. Stearns, and Albert H. Elliott, for Appellant.</p>

MOTION to dismiss an appeal from a judgment of the Superior Court of Siskiyou County, and from an order refusing a new trial. J. S. Beard, Judge. The facts are stated in the opinion of the court. Gillis & Tapscott, and Charles J. Luttrell, for Appellant.

<p>Chattel Mortgage — Removal or Property to Another County— Failure to Record—Loss or Lien as to Creditors.—Under section 2965 of the Civil Code, where personal property situated and mortgaged in one county, where the mortgage is properly recorded, is afterwards removed to another county by the mortgagor, the failure of the mortgagee to record the mortgage in the county to which the mortgaged property has been removed within thirty days after such removal, has the effect ipso facto of exempting the mortgaged property for all time and wherever afterwards situated from the operation of the mortgage in so far as it concerns creditors of the mortgagor, unless the mortgagee within that time takes possession of the property. And the recordation of the mortgage after the time prescribed by the statute, in the county in which the property is then situated, does not have the effect of reviving the mortgage so as to render it operative against the creditors of the mortgagor. These results follow, although the property was surreptitiously removed by the mortgagor, and although the creditors had actual knowledge of the existence of the mortgage and its recordation.</p> <p>Id—Statutory Requirements Must Be Observed.—The authority for the creation of chattel mortgages in this state derives its force from the statutory provisions relating to the subject, and all rights accruing by virtue of such mortgages can be protected and preserved only by fully meeting the requirements of the statute and strictly observing its provisions.</p>

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

<p>Principal and Agent—Ratification of Unauthorized Act—Receipt of Benefits—Right of Principal to Rescind.—It is a general rule that the ratification of an unauthorized act of an agent is an acceptance by the principal of the responsibilities of the act and the substitution of himself for the agent. This rule is generally applied for the protection of innocent third persons who have dealt with the agent upon the strength of his apparent or .ostensible authority. The sam'e rule is applied to relieve the agent where the principal could have disaffirmed or rescinded as against the innocent third party and has failed to do so, and is limited, so far as the agent is concerned, to those cases where there remains with the principal after his first complete knowledge of the transaction the power to rescind and he has failed to do so.</p> <p>Id.—Corporation—President’s Liability for Unauthorized Sales— Bankruptcy of Purchaser — Receipt of Part Payment from Purchaser.—The president of a corporation, having ostensible authority to sell the goods of the corporation on credit, but actual authority to make such sales for a limited amount only, who, against the express instruction of his board of directors, makes-sales on credit in excess of the amount limited and receives the notes of the purchaser in payment, is liable in damages to the corporation for the loss sustained by it on the notes so taken, and the corporation does not ratify the acts of the president so as to relieve him from liability by presenting the notes and receiving from the bankrupt estates of the maker and indorser part payment of the amount due thereon. Under such circumstances the sales could not have been rescinded by the corporation, and in failing to attempt to rescind it did not ratify the president’s acts, and it was not only the right but the duty of the corporation to realize as much as it could on the notes, not to the end that the president should be relieved from responsibility for the difference, but to the end that by using every endeavor to realize upon the notes the agent’s liability by way of damages could be accurately estimated in terms of that difference.</p> <p>Id.—Books of Corporation—Knowledge Imputed from.—While as a general rule the officers and particularly the directors of a corporation are chargeable with knowledge of the facts which its books of account and records disclose, it is never applicable where the matter complained of is one between the corporation itself and any of its officers or agents.</p> <p>Practice—Motion for Nonsuit as to One Cause of Action.—Where the complaint states several causes of action and a motion for nonsuit is made directed “ to all the causes of action mentioned in the complaint,” the failure to grant the motion as to a cause of action in respect to which there was a failure of evidence is not error, unless as to all the causes of action there was a failure of evidence; and the failure to grant the motion as to such cause of action is without prejudice if the court charged the jury to find for the defendant thereon.</p>

<p>APPLICATION for a Writ of Mandate directed to the State Superintendent of Public Instruction.</p> <p>The facts are stated in the opinion of the court.</p> <p>William G. Burke, City Attorney, and A. S. Newburgh, Assistant City Attorney, for Petitioner.</p>

<p>The facts are stated in the opinion of the court.</p> <p>Wyckoff & Gardner, and Charles A. Shurtleff, for Appellants.</p>

<p>APPLICATION for a writ of prohibition directed to the Superior Court of Sacramento County. J. W. Hughes, Judge.</p> <p>The facts are stated in the opinion of the court.</p> <p>Grove L. Johnson, A. L. Shinn, C. E. McLaughlin, C. O. Busick, and C. B. Harris, for Petitioner.</p>

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

<p>Quartz Mining Claim—Conveyance of Part—Description by Surface Lines—Extralateral Dip of Outlying Veins.—Where the patentee of an entire quartz mining claim conveys without reservation a part of the claim described by surface lines, together with all mining right, property, possession, claim, and demand whatsoever of the grantor in or to the premises, the conveyance carries all the land below the surface of the earth within vertical planes conforming to the surface side-lines, including the extralateral dip of all veins having their apexes within the lines of the part of the claim that was not conveyed.</p> <p>Id.—Deed—Certainty of Description—Construction.—Where a deed is certain and unambiguous it must prevail as to the property conveyed over an inconsistent contract in pursuance of which it was given.</p>

<p>State Land—Non-Agricultural School Land—Priority of Bight to Purchase—Insufficient Application.—A qualified person who first makes a proper application for the purchase from the state of its vacant, non-agricultural school land acquires a priority of right; and one who by his own neglect or mistake makes an imperfect and uncertain application to purchase a tract of such land and whose application the agents of the state for that reason refuse to receive or file is afforded no protection and given no priority of right as against another qualified person who makes a proper application for the same land which is received and filed before the first person has again presented his application in an amended and perfect form, except in eases where such first person was occupying the land before the second party made application therefor.</p> <p>Id.—Uncertainty in Description of Land.—An application for the purchase of four hundred acres of vacant, non-agrieultural school land in which a tract of forty acres was twice described is uncertain as to the description of the land applied for and it is a proper course for the surveyor-general to return such an application with a statement of the defect.</p> <p>Id.—Contest by Subsequent Applicant—Presumptions in Favor of Holder of Certificate—Judgment.—In a contest to determine the right to purchase vacant, non-agrieultural school land, brought by an applicant who was subsequent in point of time against a prior applicant to whom a certificate of purchase had been issued, and whose papers were apparently regular on their face, the presumptions that the law has been obeyed, that the first applicant is innocent of the crime of perjury, and that official duty has been properly performed avail the defendant, and in the absence of evidence to the contrary are sufficient to establish the right of the holder of the certificate, so far as may be necessary to prevent the plaintiff from obtaining judgment establishing his subsequent claim and to require judgment that plaintiff take nothing by the action. Under such circumstances the defendant is not required to offer evidence in support of his claim.</p>

<p>Criminal Law—Habeas Corpus—Void Judgment—Discharge—Bench-Warrant.—A prisoner will not be discharged on habeas corpus merely because the judgment against him and the commitment are void, when it appears from the return to the writ that on the filing of the information charging him with the crime of which he was found guilty a bench-warrant was issued in the usual form under which he may be lawfully detained until it is superseded.</p> <p>Id.—Void Judgment Does not Vacate Other Valid Process.—A void judgment under which a prisoner could not be held does not have the effect of vacating other valid process under which he could be held.</p> <p>Id.—Constitutional Law—Debates of Convention.—Courts do not resort to the debates of a constitutional convention in construing a provision of the constitution which is not in its terms ambiguous or uncertain. When such resort is had by the courts it is less for the purpose of learning the opinion of particular members upon points of verbal construction than for informing themselves historically of the evil which it was intended to guard against or the benefit to be secured.</p> <p>Id.—Holidays—Transaction of Legal Business on.—The provisions of section 5 of article VI of the constitution, that the superior courts “ shall be always open (legal holidays and non-judicial days excepted), . . and that “Injunctions and writs of prohibition may be issued and served on legal holidays and non-judicial days,” gives full authority to the legislature to allow or disallow the transaction of all or any class of judicial business upon legal holidays.</p> <p>Id.—Superior Courts—Cannot Pronounce Sentence on Holiday.— Under section 134 of the Code of Civil Procedure as amended March 19, 1907,—providing that “no court, other than the Supreme court, must be open for the transaction of judicial business on any of the holidays mentioned in section 10, except for the following purposes: 1. To give, upon their request, instructions to juries when deliberating on their verdict; 2. To receive a verdict or discharge a jury; 3. For the exercise of the powers of a magistrate in a criminal action, or in a proceeding of a criminal nature. Injunctions and writs of prohibition may be issued and served on any day.”—the superior courts cannot upon a legal holiday transact any judicial business outside of the constitutional and statutory exceptions, and a prisoner who has been convicted of a felony cannot then be sentenced. A judgment so pronounced is void.</p> <p>Id.—Be-Arraignment of Prisoner.—Where a judgment of imprisonment is void for the reason that it was rendered on a legal holiday the prisoner is subject to be again arraigned for judgment at anytime when the court is competent to act.</p>

MOTION to dismiss an appeal from an order of the Superior Court of Marin County granting a family allowance. Thomas J. Lennon, Judge. The facts are stated in the opinion of the court.

<p>The facts are stated in the opinion of the court.</p> <p>Bishop, Wheeler & Hoefler, William Rix, and Alfred J. Harwood, for Appellant.</p>

<p>Water Corporation — Transfer of Entire Property—Legislative Sanction Essential.—A gwm-publie corporation, engaged in supplying water for public use, cannot, without legislative sanction, transfer to another the entire property devoted to such service and the business of carrying it on.</p> <p>Id.—Consent of Stockholders to Transfer of Entire Water System.—Under section 361a of the Civil Code, ás enacted in 1903, a gwcm-public corporation, such as a water company, with the consent of the stockholders thereof holding of record at least two thirds of its issued capital stock, but not otherwise, may make a transfer of its business, franchises, and property as a whole, including its-water-pipes in the streets of a municipality, and the right to use such streets, as a way, which it had under section 19 of Article XI of the constitution.</p> <p>Id.—Transfer of Franchise—Pelease of Liabilities.—Section 10 of Article XII of the Constitution, providing that the Legislature shall not pass any laws permitting “the leasing or alienation of any franchise, so as to release the franchise or property held thereunder from the liabilities of the lessor or grantor, lessee or grantee, contracted or incurred in the operation, use, or enjoyment of such franchise, or any of its privileges,” does not prohibit such a transfer by a water company, but merely forbids a transfer of a franchise “so as to relieve the franchise or property held thereunder,” from liabilities so incurred or contracted. The transferee would take the franchise and property pertaining to it subject to all its burdens, and, so long as it held it, would be obliged to continue the performance of the public service to which it had been dedicated, or to allow others to do so in its behalf.</p> <p>Id.—Public Use—Dedication of Water to—Eight to Continuance of Use—Mandamus.—In the case of the establishment of a water system to supply water for public use, all the persons to whose use the water is appropriated or dedicated are vested with a right to have the supply continued by whomsoever may be in control thereof, and may enforce such right by a proceeding in mandamus against the person in control of the supply and the works by which it is distributed, regardless of the title, to compel the continuance of the distribution, in the usual and proper manner, to those entitled. This rule is applicable, and the remedy by mandamus available, whether the person in control of the supply is a municipal or a private corporation, or an individual.</p> <p>Id.—Power of Transferee to Accept.—A transfer of property used in a public service, from one corporation to another, although made by a corporation having power to convey, is invalid unless the transferee has the power to accept the property and continue the use to which it has been devoted. If such power is wanting in the transferee, the transfer is not binding on the grantor or lessor.</p> <p>Id.—City of Pasadena—Eight to Acquire Water System—Supply of Water to Another City.—The city of Pasadena, under the provisions of its charter, (Stats. 1905, p. 1021), and under the act of 1891 (Stats. 1891, p. 102), has the power to accept the transfer of the property, business, and franchises of a water company, engaged in supplying water to certain parts of the cities of Pasadena and South Pasadena, for the use of the respective inhabitants thereof within said territories, and to -the said cities, respectively, for sprinkling of streets, and to undertake and perform the public service imposed on such property in the hands of its transferer.</p> <p>Id.—Supply to Outside Limits—Incidental Powers.—A grant of power to provide and supply water to a city and its inhabitants, authorizes a city to carry on a system and supply water to persons outside its Emits, whenever it becomes necessary or convenient to do so in order to accomplish the main purpose of supplying water to those within.</p> <p>Id.—Judicial Notice of Aridity of Eegion.—In construing what powers are necessary, incidental, or fairly to be implied from the powers expressly given to the city of Pasadena by its charter, respecting the acquisition of a water system, it is proper to consider the conditions surrounding the city at the time, and the court will take judicial notice that the two cities are situated in a comparatively arid region, the available waters of which are already applied to valuable public or private use.</p> <p>Id.—Fixing Water Bates by one City as against Another.—Under the constitution, a municipal corporation has power to fix the rates te he charged for water supplied to its inhabitants and to control the manner of laying and repairing pipes in its streets for that purpose, as against another city engaged in supplying such waters, as well as when an individual or water corporation does so.</p> <p>Id.—Performance of Governmental Functions.—In the carrying on of the water service to the people of South Pasadena, the city of Pasadena will not be acting in its political, public, or governmental capacity as an. agent of the sovereign power, equal in all respects to the city within which it operates. In administering a public utility, such as a water system, even within its own limits, a city does not act in its governmental capacity, but in a proprietary and only quasi-public capacity.</p> <p>Id.—Supplying Water Outside of City a Municipal Affair—Charter Provisions Control.—The supplying of water by the city of Pasadena to outside territory, being necessarily a matter incidental to the main purpose of supplying water to its own inhabitants, is a “municipal affair” of the city of Pasadena, within the meaning of that phrase in section 6 of article XI of the constitution, and the charter provisions relating thereto prevail over general laws, if inconsistent therewith.</p> <p>Id.—Sale of Surplus Water—Water Already Dedicated to a Particular Use.—Upon the purchase by the city of Pasadena of the property, business, and franchises of a water company, a portion of whose water was appropriated to the use of a part of the city of South Pasadena and its inhabitants, the duty devolves upon it, as a trustee, of continuing to supply such water to the part of the city of South Pasadena and its inhabitants that previously enjoyed the use. As to such water, it cannot be considered as surplus water subject to sale to others, within the meaning of the Act of March 27, 1897, authorizing a city having in the supply more water than is necessary for its inhabitants, to sell the surplus, but providing that contracts for such sales shall not run for a period longer than one year.</p> <p>Id.—Laying Mains in Streets of Another City.—Section 19 of article XI of the constitution, providing that in any city where there aro no municipal waterworks for the supply of its inhabitants, “any individual, or any corporation duly incorporated for such purpose,” may lay mains in the streets for supplying such water, should be liberally construed, so as to empower a municipal corporation on whom the duty devolves of supplying water to another municipality, to lay its mains in the streets of the latter.</p> <p>Lx—Injunction — Threat to Discontinue Supply — Adequacy of Legal Bemedy by Mandamus.—An injunction will not lie to restrain a municipal corporation from acquiring a water system, a part of which is already appropriated to supplying water to another city, upon a mere allegation that it threatens and intends, when it acquires such system, to cut off the supply from the other city and its inhabitants. Should it attempt such unlawful act, the persona injured would have an adequate legal remedy by mandamus.</p>

<p>Water-Right— Sale of Land Subject to Water Supply — Basement.—Where land is sold by a corporation, which is the owner of a water system, and whose by-laws provided that the water should be supplied to the lands which it sold, to be used thereon, and after the sale water was always supplied to such land for use thereon, the right to the use of such water is an easement appurtenant to the land.</p> <p>Id.—Injunction—Right to Water Running fob Benefit of Land.—In an action by an owner of land to enjoin the transfer of all its property and franchises by a water company, furnishing water to such land, where the record on appeal shows that it was assumed, throughout the case, that the plaintiff, and others similarly interested, have the right to receive of the waters in controversy for use on their respective tracts of land, a sufficient quantity for the need thereof, if there is enough for that purpose, and, if not, then their due share of the water available, and that this is a continuing right and still remains vested in them, it is immaterial whether the trial court found such right to be a technical easement, or a right running with the land for its benefit.</p> <p>Id.—Consent of Stockholders to Transfer.—The action of the holders of two thirds of the capital stock of a corporation in consenting to the transfer of all the property, business, and franchises of a corporation, is binding on the other stockholders.</p> <p>Id.—Case Affirmed.—The right of the defendant company to make the transfer in question is affirmed, on the authority of South Pasadena v. Pasadena Land and Water Company, ante, p. 579.</p>

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

APPLICATION to the Supreme Court for an order transferring a petition to prove an exception in a criminal ease to the District Court of Appeal. The facts are stated in the opinion of the court.

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

<p>Mortgage—Estate of Deceased Person—Foreclosure—Heirs need not be made Parties.—In an action to foreclose a mortgage against the estate of a deceased person, in which his personal representative is made the sole defendant, it is not necessary to join his heirs at law in order to divest them of the title to which they succeeded on the death of the deceased.</p> <p>Id.—Constitutional Law.'—Section 1582 of the Code of Civil Procedure, authorizing such an action to he brought against the personal representative alone, is not unconstitutional in depriving the heirs of property without due process of law.</p> <p>Id.—Legislature Has Control of Descent of Property.—The legislature has full control of the subject of heirships and descents, and the heirs take subject to the conditions imposed by the statutory law, which alone gives them any right at all.</p>

<p>CROSS-APPEALS from a judgment of the Superior Court of Los Angeles County. M. T. Allen, Judge.</p> <p>The facts are stated in the opinion of the court.</p> <p>Otis, Gregg & Surr, and H. W. O'Melveny, for Defendants, Appellants, and Respondents.</p> <p>A. P. Nichols, J. S. Chapman, and Stephens & Stephens, for Plaintiffs, Respondents, and Appellants.</p>

<p>Negotiable Instruments—Want or Failure of Consideration—Evidence.—As between the original parties to a negotiable instrument, the maker may show an original lack of consideration, or subsequent failure of consideration, and such lack or failure of consideration may be shown by parol.</p> <p>Id.—Deed Given as Security—Quieting Title—Cancellation.—As between the original parties, the grantor in a deed given to secure the payment of promissory notes, the consideration of which has failed, may maintain an action to quiet his title to the premises conveyed, and for the cancellation of the deed.</p>

<p>Estates of Deceased Persons—Ancillary Administration—Claim upon Note Executed and Payable out of State—Statute of Limitations.—Where a note was executed and made payable in the State of New York, and the maker was non-resident therein when the note became due, and afterwards resided in this state, but his whole stay therein was less than two years, and he became a resident o'f Honolulu, where he died, leaving property there, and also in this state, where ancillary administration was had, the cause of action upon the note in this state is not barred by the statute of limitations, and a claim thereon may be presented and enforced in such ancillary administration.</p> <p>Id.—Construction of Code—Origin of Cause of Action—Bar of Statute.—Section 361, of the Code of Civil Procedure, providing that “when a cause of action has arisen in another state, or in a foreign country; and by the laws thereof an action thereon cannot there be maintained against a person by reason of the lapse of time, an action thereon shall not be maintained against him in this state, except in favor of one whp has been a citizen of this state, and who has held the cause of action from the time it accrued,” refers only to the primary and original jurisdiction in which the cause of action arose, independent of the whereabouts of the maker at the time of the maturity thereof.</p> <p>Id.—Breach of Duty of Maker of Note—Cause of Action.—It is the duty of the maker of a note executed and made payable in another state, to make payment in that state at maturity, as agreed, though he had become a non-resident thereof before maturity of the note. The cause of action fully arose in that state, upon breach of that duty on the part of the maker.</p> <p>Id.—Single Cause of Action-—Local Remedies—Residence of Maker—Bab in One Jurisdiction not Affecting Another.—The original cause of action is single and cannot have two places of origin. Whatever other local remedies are given in different jurisdictions, owing to changes in the residence of the maker of the note, each must depend on the original cause of action. The fact that the local remedy has become barred in one jurisdiction cannot affect the local remedy given in another jurisdiction which is not barred by the laws thereof.</p> <p>Id.—Bar of Remedy in Hawaii—Original Administration—Ancillary Administration in California-—Remedy not Barred.—The fact that the local remedy had become barred in Hawaii by reason of the residence of the maker therein for the statutory period, prior to his death there, and that no claim could be enforced in the original administration of his estate in Hawaii, cannot affect the local remedy in California. It is sufficient that the remedy is not barred in this state, and may be enforced as a claim therein in proceedings for the ancillary administration of property situated in this state.</p> <p>Id.-—Eight op Non-Besident Creditor to Present Claim—Comity.— When the claim of a non-resident creditor is not barred in this state, there is nothing in our statutes which would deny to him the right to present a claim against the estate of a deceased person, in the course of administration in this state, whether such administration be primary or ancillary; and comity will dictate that such claim should be entertained.</p>

<p>Adverse Claim of Beal Property—Devisees of Distinct Tracts of Land—Joinder as Plaintiffs.—Devisees in severalty of distinct tracts of land under the same will have a common source of title, and under section 381 of the Code of Civil Procedure, may unite as plaintiffs in an action brought under section 738 of that Code, to remove from their title the cloud of a fraudulent deed executed by their testator, which affected the whole land.</p> <p>Id.—Misjoinder of Plaintiffs—Dismissal of Plaintiff Without Interest—Judgment.—Where a party without interest in the controversy is improperly joined as a party plaintiff, he should be dismissed from the action, and, under section 578 of the Code of Civil Procedure, a judgment should then be rendered in favor of the remaining plaintiffs, upon findings in their favor.</p>

<p>APPEAL from a judgment of the superior court of Los Angeles County, and from orders finding facts in addition to stipulated facts, and denying a motion to recite the findings, to correct the conclusions of law, and to enter a different judgment for defendant on the stipulated facts. N. P. Conrey, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

APPEAL by plaintiffs from a judgment of the Superior Court of Los Angeles County and from an order denying a new trial, and by the defendant, E. M. Boss, from parts of the judgment. M. T. Allen, Judge.

<p>The facts are stated in the opinion of the court.</p> <p>W. H. Carlin, Tuttle & Tuttle, and Solinsky & Wehe, for Appellant.</p> <p>The Mining Debris Act of Congress is constitutional and valid. (North Bloomfield v. United States, 88 Fed. 664, 32 C. C. A. 84.) Every intendment is in favor of its validity. (United States v. Gettysburg etc. R. R. Co., 160 U. S. 668, 16 Sup. Ct. 427; Fletcher v. Peck, 6 Cranch, (U. S.) 87; Ogden v. Saunders, 12 Wheat. 213; Mugler v. Kansas, 123 U. S. 623, 8 Sup. Ct. 273; Sinking Fund Cases, 99 U. S. 718.) It is for Congress to determine when its full power shall be brought into activity, and as to the regulations and sanctions which shall be provided. (Gilman v. Philadelphia, 3 Wall. (U. S.) 713.) The provision for approval of the works constructed in accordance with direction of the commission after a hearing, and for the approval of the same, is in effect a declaration by Congress that the works are lawful. (Miller v. Mayor of New York, 109 U. S. 385, 3 Sup. Ct. 228.) Damage from a public improvement which does not amount to a direct taking of the land is not actionable. (Salliotte v. King Bridge Co., 122 Fed. 383; Gibson v. United States, 166 U. S. 269, 17 Sup. Ct. 578; Bedford v. United States, 192 U. S. 217, 24 Sup. Ct. 238; Civil Code, sec. 3482; Pasadena v. Stimson, 91 Cal. 238, 27 Pac. 604; Green v. Swift, 47 Cal. 536; Green v. State, 73 Cal. 29, 11 Pac. 602, 14 Pac. 610; De Baker v. Southern Cal. Ry. Co., 106 Cal. 257, 46 Am. St. Rep. 237, 39 Pac. 610.) The constitution and laws of the United States are of paramount authority and cannot be annulled or impaired by any state constitution or statute. (1 Sprague (U. S.) 602, 30 Fed. Cas. No. 18, 273; Escanaba etc. Co. v. Chicago, 107 U. S. 683, 2 Sup. Ct. 185.) This is not a case of eminent domain, though the authorities are conflicting as to the right of eminent domain for mining purposes. (Consolidated Channel Co. v. Central Pac. R. R. Co., 51 Cal. 269. See, contra: Overman S. M. Co. v. Corcoran, 15 Nev. 147; Nash v. Clark, 27 Utah, 158, 101 Am. St. Rep. 953, 75 Pac. 371, s. c. 198 U. S. 365, 25 Sup. Ct. 676; Strickley v. Highland Boy etc. Co., 28 Utah, 215, 107 Am. St. Rep. 711, 78 Pac. 296, s. c. 200 U. S. 527, 26 Sup. Ct. 301; Butte etc. R. R. Co. v. Montana U. R. Co., 16 Mont. 504, 50 Am. St. Rep. 508, 41 Pac. 232; Hand Gold M. Co. v. Parker, 59 Ga. 419; Douglas v. Byrnes, 59 Fed. 31; New Central Coal Co. v. Georgia Creek Coal etc. Co., 37 Md. 537.)</p> <p>Lawrence Schillig, District Attorney, and Devlin & Devlin, for Eespondent.</p> <p>The permit given under the act of Congress is not given as the result of a judicial determination, and does not preclude an injunction in the courts, if the restraining works approved by the commission are not sufficient to restrain injury to the plaintiff. (People v. Gold Run etc. Co., 66 Cal. 155, 4 Pac. 1150; Woodruff v. North Bloomfield etc. Co., 9 Sawy. 441, 18 Fed. 753; Robinson v. Black Diamond Coal Co., 57 Cal. 412, 40 Am. Rep. 118; Pumpelly v. Green Bay Co., 13 Wall. 166; Hill v. Smith, 27 Cal. 476.) The object of the act of Congress is to make the restraining of debris as effective as possible, and the permit does not authorize the miner to commit a nuisance, nor does the act contemplate such effect, but permits hydraulic mining only so far as it can be done “without injury to the navigability of said river or the lands adjacent thereto.” A county may enjoin a private nuisance caused by the acts of the defendant to its property. (County of Yuba v. Kate Hayes Mining Co., 141 Cal. 360, 74 Pac. 1049.) Even if the act of Congress could be construed as authorizing the flow of debris upon plaintiff’s property to its injury, it would authorize a taking prohibited by constitutional safeguards, which is not permissible. (Pumpelly v. Green Bay Co., 13 Wall. 166; King v. United States, 59 Fed. 9; United States v. Alexander, 148 U. S. 186, 13 Sup. Ct. 529.) State authorities are to similar effect. (City of Janesville v. Carpenter, 77 Wis. 288, 20 Am. St. Rep. 123, 46 N. W. 128; Tyler v. Tehama County, 109 Cal. 623, 42 Pac. 240; Hill v. Smith, 27 Cal. 476; Hendershott v. Ottumwa, 46 Iowa, 658, 26 Am. Rep. 182; City of Aurora v. Reed, 57 Ill. 129, 11 Am. Rep. 1; Miles v. Worcester, 154 Mass. 511, 26 Am. St. Rep. 264, 28 N. E. 676; Eaton v. Boston etc. R. R. Co., 51 N. H. 504, 12 Am. Rep. 147; Conniff v. San Francisco, 67 Cal. 48, 7 Pac. 41; Trenton Water Co. v. Raff, 36 N. J. L. 335; Staton v. Norfolk etc. R. Co., 111 N. C. 284, 16 S. E. 183; Chattanooga v. Dowling, 101 Tenn. 345, 47 S. W. 700; Brodwell v. City of Kansas, 75 Mo. 213, 42 Am. Rep. 409; Kemper v. Louisville, 14 Bush, (Ky.) 92; Baltimore etc. Ry. Co. v. Reaney, 42 Md. 133; Baltimore v. Merryman, 86 Md. 592, 39 Atl. 98; Grand Rapids Booming Co. v. Jarvis, 30 Mich. 321.) If the injurious acts of the defendant are reviewable at all in the courts, the judgment must be affirmed. If defendant, by reason of the permit pleaded, can injure or destroy the property of the plaintiff, he can injure or destroy the whole Sacramento Valley, the whole defense being that the permit is an absolute bar to any kind of an action which is untenable.</p>

<p>APPLICATION for an order permitting appellants to file, as a part of the transcript and record on appeal, certain specifications which were not included in the engrossed bill of exceptions as certified by the trial judge.</p> <p>The facts are stated in the opinion of the court.</p> <p>G. G. Goucher, W. H. Larew, and J. S. Larew, for Appellants.</p>

<p>APPLICATION for a discharge on Writ of Habeas Corpus, directed to the Sheriff of Marin County.</p> <p>The facts are stated in the opinion of the court.</p>

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

<p>Mining Claims—Trespass—Boundary Line—Evidence—Inadmissible Declarations of Superintendent of Mine.—In an action to recover damages for alleged trespass by defendant on plaintiffs’ mining claims, and the removal of gold-bearing earth therefrom, where the location of plaintiffs’ boundary line is involved, it was error to admit in evidence for the plaintiffs the declarations of the superintendent of defendant’s mine, tending to support plaintiffs’ contention as to the location of the boundary line, without any showing as to the extent of his authority beyond the mere fact that he was superintendent in charge of defendant’s mine.</p> <p>Id.—Facts not Affecting Inadmissibility—Interest in Plaintiffs’ Mine—Transfer of Mine to Defendant—Declarations after Transfer.—The inadmissibility of the declarations of the superintendent of the defendant’s mine cannot be affected by the fact that he claimed an interest in plaintiffs’ mine adverse to the defendant, nor by the fact that he had conveyed to the defendant the mine worked by it, where the declarations were made after such transfer, and not while he was holding the title transferred.</p> <p>Id.—Title of Plaintiffs under Execution from Justice’s Court—■ Jurisdiction to Serve Summons out of County—Recital in Docket.—Where plaintiffs claimed, title to their mine under a sale on execution from a justice’s court, and the summons was served out of the county, the recital in the docket of the justice of the return of service of such summons by the sheriff of another county, is no evidence thereof, the justice not being required to recite the service of summons in his docket.</p> <p>Id.—Affirmative Showing Required.—In order to sustain the limited and special jurisdiction of the justice’s court to render a judgment by default upon service of a summons out of the county, an affirmative showing must be made that a. certificate was attached to the summons by the county clerk that the person issuing it was at its date an acting justice of the peace, and that such summons was properly served.</p>

<p>Water-Bights—Executory Contract to Sell Water eor Irrigation— Place or Becord—Constructive Notice.—An agreement made by a water company with the owner of land, to furnish to him, his heirs or assigns, sufficient water for irrigation thereof at ten dollars per acre, with interest, apportioned and commuted in yearly part payments until paid and settled in full, and to furnish water thereafter at a specified yearly rental, is not to be classed as a grant to be recorded in the book of “Deeds,” but is an executory contract for the sale of water, which was properly recorded in a book of “Miscellaneous Bccords”; and such record imparted constructive notice of its contents.</p> <p>Id.—Contract fob Interest in Beal Property — Easement Appurtenant to Land—Purchase of Part under Foreclosure.—The contract for the sale of the water-right was for the sale of an interest in real property, and when the water-right was fully acquired by the vendee, it became an easement appurtenant to his land according to its acreage, and would pass, as an incident, to a purchaser of part thereof, made subsequent to its acquisition, under foreclosure of a mortgage by the vendee, though executed prior thereto.</p> <p>Id.—Bights of Purchaser.—The rights of such purchaser under foreclosure of the mortgage against the vendee, are the same under the original agreement, as to the acreage purchased, as those of the original vendee.</p> <p>Id.—Foreclosure of Mortgage on Canal—Vendee not a Party.—The purchase by the plaintiff water company, under the foreclosure of a mortgage, of the canal made by the water company which executed the recorded agreement, if executed prior thereto, could not conclude the rights of the vendee, if not made a party to the foreclosure, and whatever rights it may have in the canal under such foreclosure against the mortgagors, it took subject to the rights of the vendee under the recorded contract.</p> <p>Id.—Water Flowing in Canal for Irrigation—Beal Property.—The right to water which is diverted from a stream into a canal for the purpose of conducting it to lands for irrigation, is real and not personal property; and the rights of owners of lands to have the water flow from the canal through a lateral ditch for irrigation, is a servitude upon the ditch and canal, as an appurtenance to the land irrigated, and is real property.</p> <p>Id.—Covenants Bunning with Land.—Where the agreement declared that “this contract shall have the force and effect of a covenant running to and with the land of the party of the second part, and the canal of the party of the first part,” the covenant of the water company making the agreement as to water-rights was not personal, but was an agreement for the sale of real property, which is binding upon its successor in interest, who took with notice of the agreement.</p> <p>Id.—Performance of Contract by Vendee—Bight to Yearly Bental by Part Purchaser of Land.—The agreement being sufficiently certain in its terms, and having been fully executed as a contract of purchase of the water-right by the original vendee, his successor in interest in part of the land, is entitled under the agreement to the yearly rental per acre against the plaintiff company, which cannot recover against him any greater sum.</p> <p>Id.—Public Use of Water for Irrigation—Effect of Constitution—■ Bight of Landowner to Acquisition of Bight.—If the water-right of the water company making the contract was in private ownership and nse when the constitution of 1879 was adopted, it could not have the effect to dedicate its property to public use without the consent, express or implied, of its owners. But, if it were otherwise, the constitutional provision as to the public use of water supplied for irrigation, is not intended to prevent a landowner from acquiring and attaching to his land, a right to the permanent use of water for its irrigation, subject only to the condition that the state may regulate and control the use.</p>

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

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

<p>Receiver—Order Appointing—Collateral Attack—Partnership— Pleading Appointment.—In an action brought by a receiver appointed in an action between partners, under section 564 of the Code of Civil Procedure, the order appointing the receiver is only collaterally involved, and cannot be attacked upon any ground except want of jurisdiction to make it. In the complaint in the action by the receiver, it is not necessary to aver that in the action in which he was appointed the parties were partners. An allegation that the order of appointment was “duly made” is, under the rule of pleading declared in section 456 of the Code of Civil Procedure, equivalent to an averment that all the jurisdictional prerequisites to the appointment of a receiver existed.</p> <p>Id.—Action to Recover Partnership Assets—Payment to Receiver.— In an action by a receiver so appointed, to recover a sum of money received by the defendants under an agreement between them and one of the parties to the action in which the receiver was appointed, the questions as to whether such money was partnership assets and as to its ultimate distribution between the partners, are not involved. So far as such defendants are concerned, the only questions involved are whether the fund in controversy was by the terms of the order' placed within the control of the receiver, and whether, as between themselves and the party with whom they made the agreement, the latter was entitled to demand the fund from them. A payment by the defendants to the receiver in such action would fully protect them against any claim as to the ownership of the fund asserted by the party with whom they made the agreement.</p> <p>Id.—Order Appointing Receiver.—The complaint in this action is reviewed and held sufficient to show that the order appointing the receiver directed him to take into his possession the fund in controversy.</p> <p>Id.—Partnership—Agreement Appointing Agents to Sell Land.— While the question whether or not a partnership exists is to be determined from the nature of the relation agreed upon, rather than the name which the parties have given to it, some weight must be given to the language of the parties themselves. In the present case, an agreement whereby one party appoints the other his “exclusive agents to sell and manage” a tract of land, and provides that such “agency” shall continue for a specified time, is held to create a mere agency and not a partnership, notwithstanding the parties designated as agents were to pay certain expenses of the sale, and for their services were to be paid a certain portion of the net profits.</p> <p>Id.—Payment of Agents from Profits of Sales.—Where agents are employed to sell and manage a tract of land, under an agreement whereby their agency was-to last for a specified period, and for their services they were to receive a portion of the net profits, their right to share in the profits is limited to sales made during the period their agency continued.</p> <p>Id.—Expenses to be Paid by Agents.—Where such a contract recites that the agents are appointed in consideration of their “putting in cement walks . . . building four stone pillars . . . writing all advertisements and all advertising, making out all papers and managing the sales” of the land, and further provides that “all the above is to be paid for” by them, the obligation is imposed on the agents to pay such expenses and not merely to advance the same.</p>

<p>Will—Devise ob Bequest How Created.—No particular words are essential to create a legacy or devise. The essential thing is that the intention of the testator to thereby make the gift from the property of the estate is shown. When such intention clearly appears, the courts will carry it into effect, if this can be done consistently with the rulés of law applicable.</p> <p>Id.—Inferential Bequest—Advances made to Testatrix.—A provision of a will, devising the residue of the testatrix’ real estate to certain named persons “after my son . . . has been paid what he has paid for me at various times,” constitutes a legacy in favor of such son of all amounts that he at various times had paid for the testatrix, payable out of her estate before any residuary legacy or devise is distributed.</p> <p>Id.—Estoppel to Claim as Legatee for Advances—Presentation of Claim Against Estate.—The presentation by the son of a claim against the estate of the testatrix for the full amount of the various payments made by him for her, its allowance by the executor and approval by the court for such portion thereof as was not barred by the statute of limitations, and his subsequent application to the court for a sale of the real property of the estate for the purpose of paying all approved claims, including his own, does not estop the son from claiming as a legatee as to such items of advances as-were barred by the statute of limitations.</p> <p>Id.—Construction of Will.—The provision in the will in favor of such son was not intended to take away from his rights as a creditor for such amounts as he might lawfully claim and enforce, but to give-to him those amounts of advances which he could not otherwise claim.</p> <p>Id.—Decree of Distribution—Direction for Payment of Claim.—In a proceeding under section 1664 of the Code of Civil Procedure, to determine the respective interests of the claimants under the will, the inclusion in the amount ordered distributed to the son in satisfaction of such legacy of the sum for which his claim had been allowed and approved, will be construed as practically an order for the payment of the claim.</p> <p>Id.—Construction of Will and Codicil.—The dispositions made by a will are not to be disturbed by a codicil further than is necessary to give it effect. The two are to be read together so as to make-one consistent whole.</p> <p>Id.—Codicil Creating Trust as to Property Absolutely Devised by Will.—Where a will made an absolute disposition of certain property to a married daughter of the testatrix, and a subsequent codicil subjected the property so given to a trust, of which the daughter was the beneficiary, so long as she remained the wife of her then husband, the two documents are to be construed together as devising the property absolutely to the daughter, subject only to the execution of the trust. Where the trust was terminated by the death of the daughter, her interest in the property passed, freed from the trust, to her heirs.</p> <p>Einding—Immaterial Omission—Insufficiency of Evidence.—A judgment will not be reversed for failure to find upon an affirmative defense, if the record does not show that evidence was introduced : in support thereof, and the same rule must obtain where the evidence introduced was not sufficient to support a finding in favor thereof if such finding had been made.</p>

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

<p>Municipal Corporations—Los Angeles—License Tax on Business— Gradations op Tax—Discrimination.—The provision of the charter of the city of Los Angeles (Stats. 1889, p. 457), authorizing it to impose a license tax upon occupations, business, and trades, to raise revenue for the city, “provided that no discrimination shall be made between persons engaged in the same business, otherwise than by proportioning the tax upon any business to the amount of business done,” does not require occupation taxes to be graded, in all eases, according to the amount of the business done. It forbids discrimination between persons engaged in the same business by the charging of a higher rate to one than to the other, in any case, except when it is done by grading the tax to the amount of the business, but it does not forbid the imposition of a uniform license tax upon all persons who engage in a particular calling.</p> <p>Id.—Constitutional Law—License not Tax on Property.—A license tax upon the privilege or right to carry on a particular trade within a city is not a tax upon property, within the meaning of article XIII, section 1 of the constitution, declaring that all property “shall be taxed in proportion to its value, to be ascertained as provided by law,” and that the word “property” includes “moneys, credits, bonds, stocks, dues, franchises, and all other matters and things, real, personal, and mixed, capable of private ownership.”</p> <p>Id.—Discrimination—Uniform Tax on Business.—A license tax imposing the same amount upon all engaged in the same business, regardless of business done, or the profits received therefrom, is not an unreasonable discrimination, although different persons in the business have much more capital employed and earn much more profit than others. Such uniform rate has always been recognized as a valid exercise of the taxing power.</p> <p>Id.—Gas Business—Police Power—Taxing Power.—An ordinance of the city of Los Angeles, imposing a license tax of one hundred dollars per month upon every person, firm, or corporation, conducting, managing, or carrying on the business of manufacturing, selling, distributing or furnishing gas for light, heat or power, is an exercise of the taxing and not of the police power, and is not subject to the rule that penalties or fees exacted for permits issued under police regulations must bear some reasonable proportion to the expenses of regulating the business.</p>

<p>Insane Person Committed to State Hospital—State has no Claim nor Maintenance against Insolvent.—Under section 2176 of the Political Code, to the effect that the estate of an insane person committed to a state hospital for the insane shall he liable for his care, support, and maintenance “to’ the extent it is sufficient for the purpose,” neither the state nor the state hospital has any claim against the estate of an insane person who is insolvent, and who was so at the time of his commitment.</p>

<p>Appeal eeom Judgment—Lapse op Time—Exceptions to Insufficiency of Evidence not Reviewable.—Where an appeal from the judgment was not taken within sixty days after its rendition and entry, exceptions to the decision on the ground that it is not supported by the evidence cannot be reviewed.</p> <p>Action to Rescind Exchange of Property — Fraud — Misrepresentation as to Character and Value of Oregon Land.—In an action 'to rescind an exchange of property for fraudulent representations in regard to real and personal property by defendant inducing the exchange, a misrepresentation as to the character and value of his Oregon land, to his personal knowledge, which the defendant then knew to be false, is one upon which the plaintiff was entitled to rely, and its false and fraudulent character justifies a rescission of the exchange.</p> <p>Id.—Statement as to Value not always an Expression of Opinion.— A statement as to the value of property is not always made as a mere expression of opinion upon which the other party is entitled to rely; but it may be a positive affirmation of a fact, intended as siteh by the party making it, and reasonably regarded as such by the party to whom it is made; and, when it is such, it is like any other representation of fact, and may be a fraudulent misrepresentation warranting a rescission.</p> <p>Id.—Findings Supplemented by Admission in Answer—Knowledge of Falsity.—Where the findings for the plaintiff were otherwise sufficient, but did not include a finding that defendant knew or believed that the representation as to the value of the land out of the state was untrue when made, such finding was unnecessary, where an averment in the complaint as to defendant’s knowledge that it was untrue was not denied by the answer and must therefore be taken as true.</p> <p>Ib.—Qualification of Witnesses—Value of Defendant’s Land— Insufficient Objections.—A general objection to the testimony of witnesses to the true value of the defendant’s land, that it was immaterial, irrelevant, and incompetent, did not raise the specific objection that the witnesses were not shown to be qualified; but it is held that the evidence in the record warrants a ruling that the witnesses were qualified to testify on that subject.</p>

<p>APPEAL from an order' of the Superior Court of Los Angeles County admitting a will to probate, and from an order refusing a new trial to the contestant of the will. G. A. Gibbs, Judge.</p> <p>The facts are stated in the opinion of the court.</p> <p>C. W. Davison, J. R. Wilder, and L. L. Miller, for Appellant.</p>

<p>The facts are stated in the opinion of the court.</p> <p>McD. R. Venable, Albert Nelson, and Wm. Shipsey, for Appellant.</p>