Volume 153 — California Reports

<p>Husband and Wife—Power to Transmute Separate Property into Community Property.—A husband and wife may by contract transmute the separate property of either into community property.</p> <p>Id.—Action by Wife to Enforce Trust—Control by Husband of Wife’s Property—Presumption of Trust—Burden of Proof.— •In an action by the wife to enforce a trust against the husband in respect of her separate property, the mere fact that the husband, with her consent, had the management and control of her separate property, does not show any intention on her part to make a gift thereof to the husband, or to change it into community property. The presumption in such case is that it continues to be her separate property, and that the husband takes the corpus or principal of such property in trust for the wife; and the burden of proof is upon the husband to show an intended change by the wife in the' status of her property.</p> <p>Id.—Express Agreement not Essential—Circumstantial Proof—• Support of Findings for Husband.—It is not essential, in order to support findings for the husband, that the understanding between the husband and wife was that her separate money delivered to him should be treated as community property, and that the wife converted it into community property, that the husband should show an express agreement to that effect on the part of the wife. The change in the status of the property may be shown by the nature of the transaction, or appear from surrounding circumstances, if clearly evincing the intention of the wife to change such status.</p> <p>Id.—Deposit of Wife’s Money to Credit of Husband’s Account in Bank—Evidence of Husband—Use' as Community Property.— The evidence of the husband that the bulk of the money derived from sales of the wife’s separate property, was deposited by the wife to the credit of the account of the husband in a local bank, where he kept his money, and that he drew from the same in payment of all general expenses of himself and wife, and for purposes of investment of property in his own name, and that it was generally understood between them, without express words, that this was a common fund, to be used indiscriminately for the benefit of the community, and that it was so treated for fifteen years, without objection by her or demand for an accounting, is sufficient, notwithstanding opposing circumstances, to sustain the finding in favor of the husband.</p> <p>Id.—Tracing of Wife’s Money into Beal Estate.—Where the record shows, without conflict, that some of the money of the wife that came into the hands of the husband, was clearly traced into other property, • a finding that none of the money could be traced is not fully sustained. If there was no change in the status of her separate property, and a portion of it can be clearly traced, she is entitled to the relief asked in respect thereto.</p> <p>Id.—Prejudicial Error in Testimony for Husband—Evidence of Good Character.—Where the evidence in support of the finding rested almost entirely upon the testimony of the husband, and there was no evidence impeaching his good character, and the case, viewed in the light most favorable to defendant, was a close one on the facts, in consideration of the burden of proof resting upon him, it was prejudicially erroneous, against the plaintiff’s objection, to-admit the testimony of witnesses for the husband to his good character for truth, honesty and integrity.</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>Taxation—Deed for Irrigation District Tax—Description of Land —Objection for Uncertainty—Evidence—Identification.—Where a tax-deed executed for non-payment of an irrigation district tax was objected to for uncertainty in the description of the land, the objection is sufficiently met by evidence showing that the description was in fact sufficient clearly to identify the land.</p> <p>Id.—Sale of Whole Interest—Least Quantity Obtainable.—Where the tax-deed described the land assessed, and stated that the collector offered for sale the least quantity or smallest portion thereof to pay the assessments, costs, and charges, and that the grantee named was the bidder who was willing to take said least quantity and pay the same, and described said least quantity or smallest portion of the said land as the whole thereof again described and granted by the deed, the deed clearly shows that the whole of the land was the least quantity which any bidder was willing to take, and that the whole was in fact sold and intended to be conveyed by the deed.</p> <p>Id.—Certificate Showing Time for Redemption—Recital in Deed.— , Where the law required the certificate of sale to show the time for redemption, and that the matters contained in the certificate must be recited in the deed, a recital in the deed showing that the certificate stated that unless the said real estate was redeemed within twelve months from the specified date of said sale the purchaser would be entitled to a deed thereof, such recital in the deed sufficiently shows that the certificate complied with the requirement of the statute in stating the time for redemption.</p> <p>Id. — Double Assessment — Bond Issue — Special Assessment for Expenses—Assessment-Boll—Tax-Deed—Prima Facie Evidence. .—The objection that the assessment-roll showed a double assessment, one for a bond issue and the other a special assessment for expenses, which were not stated separately in the notice of sale, certificate of sale, or deed, goes to matters not shown on the face of the tax-deed, and was not a good objection to its admission in evidence as prima facie evidence of all prior proceedings.</p> <p>Id.—Description of Property in Notice of Sale—Ditto Marks— Abbreviations—Statement in Notice.—Though the notice of sale is that to which the taxpayer is absolutely entitled, and is not concluded by the deed, yet the use therein of ditto marks and abbreviations which could not mislead and which are explained in the notice, do not affect its validity or the sufficiency of its compliance with the law.</p> <p>Id.—Aggregate Amount of Assessments—Aggregate of Taxes, Percentage, and Costs.-—The law does not require two assessments for the same year, on account of bond issue and for current expenses of the irrigation district, to be separately stated in the notice of sale, certificate of sale, or deed; and it is sufficient that the aggregate amount of the assessments and the aggregate amount of the taxes, percentage, and costs are correctly stated therein.</p>

<p>Municipal Corporations.—Proposal op City Council por Lighting op City—Flexible Method Proper.—In performing the duty of a city council to provide the city with adequate lights, it is not required, in its proposal for bids, to fix the absolute number of lights required, which might be increased or diminished according as the population of the city might be increased or diminished; but it was proper to call for bids for a supply of lights of a designated character and candle-power, burning for a designated time, at so much per week or month for each light required by the city, which is the usual method adopted by municipal corporations.</p> <p>Id.—Requirement op Check por Benepit op City Ended by Contract —Untenable Suit by Taxpayer.—The object of the requirement of a ten-per-cent check accompanying a bid is for the benefit of the-city, to avoid possible loss in the event that the successful bidder should refuse to enter into the contract; and where the contract is. entered into the purpose of the requirement is at .an end. A taxpayer cannot, after the contract is let under a proper method, maintain a. suit to avoid it, either on account of the method employed or for the insufficiency of the required check for ten per cent of the bid, whatever objection he might have made for such insufficiency before* the contract was let.</p>

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

<p>Action to Becover Strip op Land Used as Alley-Way—License-Findings— Plea op Easement and Estoppel — Failure to Find — Beversible Error.— In an action to recover a strip of land which plaintiffs claimed has been used as an alley-way by mere revocable license, but in which the defendants claimed an easement, and supported the claim by a plea of estoppel resting upon the authorized representations of plaintiffs’ agents in selling the property abutting thereon to the defendants, where the court found for the plaintiffs, its failure to find upon the defendants’ plea of estoppel where there is substantial evidence to support it, is reversible error, justifying a new trial.</p> <p>Id.—Beservation of Alley-Way for Benefit of " Daughters—Authorized Bepresentation to Abutting Purchasers—Support op Estoppel. —Where a plaintiff as owner had reserved an alley-way for her daughters, and had authorized her husband to employ real estate agents to sell lots for her, who, with the husband’s consent, •sold lots abutting thereon, stating the reservation so made, and that the purchasers would have the benefit of that alley-way, and in consideration thereof paid an increased price therefor, the facts show an intended abandonment of the seller’s existing right in the alley-way, which will support an estoppel in favor of the purchasers of the abutting property relying thereon.</p> <p>Id.—Exception to General Bule as to Bepresentations Baisins an Estoppel. —When the statement relates to an intended abandonment of an existing right, and is made to influence others, and they have been influenced by it, the case is a recognized exception to the general rule that a representation to constitute an estoppel must relate to an existing fact and not to a matter of opinion, or promise of future performance; and so, when purchases are made upon representations by the seller that abutting property owned by him will be maintained as a public or private way for the benefit of the purchasers, there is an expression of an intended abandonment of a seller’s existing right which will support an estoppel, if the purchasers have relied upon it.</p>

<p>APPLICATION for a Writ of Prohibition directed to the Superior Court of Marin County. Thos. J. Lennon, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>APPEAL from an order of the Superior Court of San Diego County fixing a collateral inheritance tax, and from an order distributing the estate of a deceased person. N. H. Conklin, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

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

<p>Tide-Lands—Sale by State.—All tide-lands within any incorporated city or town other than San Francisco or Oakland are excluded from the operation of the provisions of law authorizing the sale of lands.</p> <p>Id.—Tide-Lands in San Pedro—"Void Certificate of Purchase—Action by Holder to Quiet Title—Collateral Attack.—The provisions of section 3488 of the Political Code withheld from the state officers all authority to grant or sell tide-lands within the city of San Pedro; and a certificate of purchase for the same is void and may be collaterally attacked in an action by the holder of the certificate to quiet his title as against the city and other defendants, though they do not connect themselves with the title of the state.</p> <p>Id.—Possession of Tide-Lands by Defendants Immaterial.—In an action to quiet title to tide-lands, the plaintiff cannot prevail unless he shows title in himself; and the defendants, though not in possession of the lands, may effectually defend by showing that the certificate of purchase under which plaintiff claims title, is without authority of law and void, where plaintiff shows no possession of the lands in himself. [Shaw, J., non-concurring.]</p> <p>Id,—Certificate of Purchase not Void on Its Face—Prima Facie Evidence—Facts Aliunde Showing Invalidity.—If a certificate of purchase of tide-lands is not void on its face, it is only prima facie evidence of title; and the defendants in an action to quiet title, though claiming no interest in the lands, may, under denial of plaintiff’s title, show by evidence aliunde that the lands described in it are in fact tide-lands not subject to sale, and that the certificate of purchase is therefore void. [Shaw, J., non-concurring.]</p> <p>Id.—Admission of Facts by Plaintiff—Objection to Certificate of Purchase Properly Sustained.—Where plaintiff in offering the certificate of purchase admitted that the lands described therein are tide-lands within the limits of the city of San Pedro, the trial court did not err in sustaining the objection of defendants to the admission of the certificate in evidence.</p>

<p>Taxation op Street Railroad Operating in More than One County ■—Judgment Sustaining County Assessment—■ State not Aggrieved by County Assessment in Excess op Assessment by Board op Equalization.—In an action involving the question whether a street-railroad corporation, operating its lines in more than one county of the state, should be assessed by the state board of equalization and its taxes paid to the state controller, or by the county assessors and its taxes paid to the county tax-collectors, an appeal from a judgment by the state controller sustaining the validity of the county assessments and the payment to the county tax-collectors will be dismissed, when it appears that the amount received from the taxes for the benefit of the state, under the county assessments, is in excess of the amount that could be received by it, should the assessment by the state board of equalization be sustained. Under such circumstances, neither the state nor the state controller is a party aggrieved by the judgment.</p>

<p>Divorce — Willful Neglect — Failure to Support Wipe — Support from Wipe’s Earnings—Delay in Commencing Action—Laches.. —Under sections 92,105, and 107 of the Civil Code, a wife is entitled to a divorce on account of the willful neglect of her husband, if for a continuous period of one year prior to her application therefor he neglected to provide for her the common necessaries of life, by reason of his idleness and dissipation, and during that period, she did not support herself from her own earnings. And the fact that for eight years prior to such period she did support herself' from her own earnings is not a ground for denying the divorce.. Her failure during such periods to institute a prior action for divorce would not bar her right thereto under sections 124 and 125 of the Civil Code, nor operate to estop her by laches.</p>

<p>Criminal Law—Assault by Person Undergoing Life Imprisonment —Constitutional Law—Punishment by Death.—Section 246 of the Penal Code, declaring that “Every person undergoing a life sentence in a state prison of this state, who, with malice aforethought, commits an assault upon the person of another with • a deadly weapon or instrument, or by any means or force likely to produce great bodily injury, is punishable with death,” is not unconstitutional. That section neither denies to such person the equal protection of the law guaranteed by the fourteenth amendment to the constitution of the United States, nor does it contravene the provisions of section 11 of article I of the state constitution, deelar-</p> <p>ing that all laws of a general nature shall have a uniform, operation.</p> <p>Id.—Instructions as to Forms of Verdict—Evidence of but One Offense.—In a prosecution under that section, the refusal of the court, at the request of the defendant, to instruct the jury that they might, render any one of four verdicts according to their conclusion from the evidence,—viz.: guilty as charged in the indictment, guilty of assault with a deadly weapon, guilty of simple assault, or not guilty,—is not error, where the evidence as contained in the record shows that the defendant was either guilty as charged in the indictment or not guilty at all, and the jury were charged that if the evidence did not satisfy them beyond a reasonable doubt that he was guilty of the offense charged, they must find Mm not guilty.</p> <p>Id.—Form of Indictment—Court Committing Defendant.—An indictment for such crime is sufficiently specific if it charges, in the language of the section, that the defendant was then and there a person confined in and undergoing a life sentence at the state prison. It is unnecessary to charge that he was sentenced to life imprisonment in the state prison by a designated court of competent jurisdiction.</p> <p>Id.—Evidence of Commitment.—The record of the commitment of the defendant to the state prison was competent evidence for the prosecution on the trial.</p>

<p>New Trial—Adverse Party Served with Notices of Intention— Death Pending Motions — Appeals from Orders — Service of Notice.—An adverse party, to whom the notices of. intention of various parties separately moving for a new trial were addressed, and who was served therewith, became a party to each proceeding on motion for a new trial, and did not cease to be a party thereto by reason of his death after such service,- before the motions were heard; and upon appeal from each of the orders denying such motions his representative must be served with the notice of appeal.</p> <p>Id.—Representative not Appointed—Loss of Appeals—Orders not Reversible.—If a representative of the estate of such adverse party has not been appointed, and cannot be appointed in time for appeal, the appeals are lost, and the orders cannot be reversed, and if not dismissed must be affirmed.</p> <p>Id.—Service upon Attorney of Adverse Party—Termination of Authority.-—The death of the adverse party operated as a termination of the authority of his attorney, and the service of notices of appeal upon him was ineffective.</p> <p>Id.—Note Signed by Adverse Party—Motion by Secured Creditor to Dismiss Appeals Based on Record — Failure to Present Claim not Considered.—Where the adverse party was the maker of a note to a secured corporation which moved to dismiss appeals for failure to serve the adverse party with notice thereof, the motion must be determined only by what appears in the rec’ord upon appeal; and a showing that the creditor secured had not presented a claim against the estate of the adverse party cannot be considered.</p> <p>Id.—Voluntary Appearance of Executor of Adverse Party—Lapse of Time for Appeal—Jurisdiction not Conferred.—The voluntary appearance of the executor of the adverse party, after the lapse of the time for appeal from the orders denying a new trial, cannot confer jurisdiction to determine such appeals upon the merits.</p> <p>Id.-—Appeals Retained for Modification of Judgment Benefiting Appellants and Adverse Party.—Though no modification of the judgment can be allowed to the detriment of the estate of the adverse party, the appeals will be retained for modification of the judgment in favor of the creditor secured in respect of excessive interest allowed, which will benefit and not injure the estate of the adverse party, and will also benefit the appellants in the matter of an accounting between estates represented by them, which are included in the security held by such creditor.</p> <p>Id.—Excessive Interest upon Interest—Whole Interest Avoided— Construction of Code..—Under section 1919 of the Civil Code, providing that “the parties may, in any contract in writing whereby any debt is secured to be paid, agree that if the interest ... is not punctually paid, it shall become a part of the principal, and thereafter bear the same rate of interest as the principal debt,” a provision in the note secured, signed by the adverse party, making the unpaid interest on interest bear a greater rate than that of the principal sum secured, renders the whole interest void in its entirety, and not merely as to the excess of the rate agreed upon, and the judgment must be modified in so far as it allows such illegal interest.</p> <p>Id.—Severance of Illegal from Legal Interest.—Where the allowance of illegal interest continued during the maturity of the note and an agreed extension thereof, but the note provided that after maturity of the principal any unpaid principal and interest shall bear the same increased rate, such provision is legal; and in modifying the judgment there must be a severance of the illegal from the legal interest, and only the former can be deducted from the judgment.</p>

<p>APPEAL from an order of the Superior Court of Colusa County refusing an application for the partial distribution of the estate of a deceased person. H. M. Albery, 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>The facts are stated in the opinion of the court.</p> <p>W. R. Andrews, and Collier, Smith & Holcomb, for Appellants.</p>

<p>Guaranty to Bank—Percentage of All Drafts by Fruit Company —Bills of Lading—Orange Seasons—Explanatory Evidence.— A guaranty by the defendant to a bank of ninety per cent of all drafts drawn thereupon by a fruit company, with bills of lading attached, during two orange seasons, is not so plain and unambiguous upon its face that evidence is not admissible in explanation of it.</p> <p>Id.—Sufficiency of Explanation—Support of Verdict for Defendant. — Held, that the explanatory evidence introduced by the defendant to show that the guaranty was not of ninety per cent of each draft drawn, but that the bank in allowing the fruit company to draw ninety per cent of each draft was to retain the surplus as a security fund to the end of each fruit season, and that she was only to be liable for ninety per cent of the face of all drafts drawn during the season, was sufficient, if believed by the jury, to support, a verdict for the defendant.</p>

<p>Homestead—Deed of Trust to Secure Debt Not an Abandonment.— Where a homestead has been regularly selected the subsequent execution of a deed of trust by the husband and wife to secure the payment of a debt, though in the form of a grant, is not a “grant” within the meaning of section 1243 of the Civil Code providing the manner for the abandonment of the homestead, but is practically and substantially a mortgage with a power of sale, and does not constitute an abandonment of the homestead.</p> <p>Id.—Effect of Legal Title in Trustees.—In such case the legal title in the trustees is conveyed solely for the purpose of security, and carries no other incident of ownership than the right to convey upon default, but leaves a legal estate in the trustor or his successors as against all persons other than the trustees and those lawfully claiming under them.</p> <p>Id.—Homestead May Be Selected after Deed of Trust.—A trustor in possession may select as a homestead property covered by a deed of trust to secure Ms debt.</p> <p>Id.—Effect of Payment of Debt—Cessation of Estate of Trustees —Title of Becord Compellable.—Upon the payment of the debt secured by a deed of trust the estate of the trustees absolutely ceases, leaving in them nothing but the bare legal title of record, which they may be compelled to rceonvey to the owner to make the record title clear. The reconveyance is no part of the execution of the trust.</p> <p>Id.—Construction of Clause in Deed of Trust—Abandoning Homestead.—A clause in a deed of trust to secure a debt purporting to abandon all right of homestead is to be construed only as an abandonment to the trustees for the purposes of the trust, and not as divesting the homestead right absolutely. No such express abandonment to the trustees was necessary to enable them to convey the whole property free of claim of homestead to a purchaser at a trustees’ sale had in execution of the trust, and the express abandonment can have no further effect.</p>

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

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

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

<p>Deed—Intention of Parties—Boundary of Mexican Grant—Monuments—Mistakes in Courses and Distances—Errors in Map Referred to.—Where a deed by the owner of a Mexican grant called for its northwestern boundary, on which monuments were placed, but there was a mistake in the field-notes of the survey thereof as to courses and distances thereon, which, if followed, would leave a narrow strip of worthless land shaped like a churchy spire, and which was followed in a map made by a county surveyor without survey, showing a mistake in acreage, which was referred to in the deed, and its mistakes inserted therein,—held, that it was the real intention of the grantor and grantee that the actual northwestern boundary of the rancho should be the northwestern boundary of the tract conveyed, and that the grantor had no intention of reserving to himself that strip of land.</p> <p>Id.—Terminal Monuments on Boundary—Courses, Distances, and Estimated Quantity-Controlled.—The call in the deed for the boundary of the rancho must be construed as a call for its actual boundary fixed upon the ground by its terminal monuments, which must control any mistakes in courses, distances, and estimated quantity contained in the deed.</p> <p>Id.—Construction of Private Deed against Grantor.—The construction of a private deed is against the grantor and in favor of the grantee.</p> <p>Id.—Reference to County Surveyor’s Map not Controlling.—Under the circumstances of this ease the reference in the deed to the map of the county surveyor, and the adoption of its mistakes in description of boundary and quantity in the deed, is not controlling as to the land intended to be granted by the boundary of the rancho, where said boundary is called for in the deed and also in the map, which contains some reference to monuments, and is controlled as to its mistakes by the monuments known by the parties, to exist on the ground.</p>

<p>Creditor’s Bill—Proceedings Supplementary to Execution—Adequacy of Legal Remedy.—In this state a creditor’s bill in equity to reach the property of a judgment debtor and subject it to the judgment creditor’s claim will not lie when the statutory proceedings supplementary to execution afford an adequate legal remedy. On the contrary, if such supplementary proceedings are inadequate, relief by creditor’s bill may still be had.</p> <p>Id.—Supplementary Proceedings when Inadequate Remedy.—Proceedings supplementary to execution are not an adequate remedy whenever they cannot in themselves, without the aid of an independent action, result in subjecting the property, whether tangible or a mere chose in action, to the payment of the creditor’s claim. Such condition exists whenever it appears that the person who is charged with holding property belonging to the judgment debtor, or with being indebted to Mm, claims title to the property or denies the debt. In either ease an action is necessary, and the creditor may proceed by creditor’s bill without first pursuing the statutory proceeding supplementary to execution. On the other hand, where it does not appear whether or not the person alleged to hold property or to be indebted will claim the property or deny the debt, such proceedings may afford all the relief required and must be pursued.</p>

<p>Water-Eights—User of Ditch by Cotenants—Degree in Partition— Extent of User on Each Tract.—Where several cotenants who> are severally in possession of portions of a rancho, which were subsequently allotted to them in partition, constructed jointly & ditch over the lands of one of them for use on their respective lands, the extent of the easement of each over such lands is to be determined by the extent of their user at the time of the partition, decree, unless a prescriptive title to a greater user has been thereafter acquired.</p> <p>Id.—Title by Prescription—Proof of Adverse User.—Held, that the-evidence is insufficient to show that the defendant Aros had acquired a prescriptive title after the partition decree to any greater user-on his lands; but that the evidence is sufficient to sustain a finding that the defendants Ashcroft had acquired by adverse user a prescriptive title to irrigate their entire tract.</p> <p>Id.—Express Declaration of Adverse User not Essential—SufficmNOY of Proof.—In order to support a title to an increase of' water by prescription, an express declaration of the adverse user is not essential. It is sufficient that there is satisfactory proof of a continuous, open, notorious, and uninterrupted use of the waters on the lands of said defendants for the statutory period, of such a character as unquestionably to indicate that the use was being-exercised in hostility to the right of any person to interfere with its exercise.</p>

<p>Police Court—Charter op Los Anqeles—Void Provision not Validated by Amendment to Constitution.—Under the freeholders’' charter of the city of Los Angeles, ratified by the legislature in January, 1889, there being no provision of the constitution then-providing for a police court thereunder, the provision therein for a police court was void, ab initio, and was not revived or validated by the mere subsequent passage of the amendment to the constitution adding section 8% of article XI, authorizing the creation of police-courts by freeholders’ charters.</p> <p>Ib.—Permissive Amendment—Power op Legislature—Expenses op Judges—Charge upon City Treasury.—The grant made in section 8Ys of the constitution is merely permissive. If a freeholders’' charter has, pursuant thereto, created a police court, the legislature-cannot create within the city another police court maintainable at the city’s expense. But where the city has not used such permission-the legislature has power, under section 1 of article VI, to establish police or other “inferior courts” in any incorporated city or town, and to make the salaries and office expenses of the judge» or justices thereof a charge upon the city treasury.</p> <p>.Id.—Salary op Proseouting Attorney in Police Court—Municipal. Charge—Invalid Statute.-—The statute creating a police court in the city of Los Angeles, in so far as it provides that the salary oF the prosecuting attorney required to attend thereupon and conduct, all criminal cases therein, shall be a charge upon the city treasury,. - ’ is invalid. The prosecuting attorney is no part of the court for-that purpose; and in prosecuting public offenses of which it has. jurisdiction, he acts as attorney for the state, and his duties are not municipal in their nature because exercised within the city. The burden for such prosecutions is to be borne by state or county under the general law provided for in section 5 of article XI of the constitution, and cannot be made a charge upon the city.</p> <p>Id.—Violations of Charter and Ordinances—Function of City Attorney—“Municipal Affairs”-—Control of Statute.—As respects prosecutions for violations of the city charter and city ordinances, the regulation thereof by the city is a “municipal affair,” within section 6 of article XI of the constitution; and where the city charter regulates that matter, and imposes the duty upon the city attorney to prosecute all such violations, the charter must control a general statute imposing such duties upon the district attorney, and such statute is ineffective.</p> <p>Id.,—Prosecutors as Deputies of City Attorney—Salaries not a City Charge.—If the prosecuting attorney and his assistants, when acting at request of the city attorney, act as his deputies, that does not authorize them to enforce a claim against the city, where there is nothing in the charter or in any city ordinance allowing such deputies to receive salaries payable out of the city treasury.</p>

<p>Public Squares—Partition Deeds between Cotenants—Adoption of Map Showing Squares—Dedication—Abandonment to Public Use.—Where all the tenants in common of a tract of land made partition deeds thereof, in 1853, adopting a particular map of the town of Oakland, as part of their confirmatory deeds, on which two blocks of the tract were designated as public squares, which the town of Oakland was then in possession and use of as such, and which were excluded from their partition deeds, the adoption of such map by them was the equivalent either of a formal dedication of the land to public use, or at least to an abandonment thereof to such use.</p> <p>Id.—Adverse Possession of Squares by Town, City and County— Prescriptive Title Against Devisee of Cotenant.—The adverse open, notorious, and exclusive possession and use of such public squares, by the town and city of Oakland from 1852 to 1874, and by the county of Alameda pursuant to an act of the legislature, from 1874, when county buildings were erected thereon and maintained by the county adversely to all the world for the further period of more than twenty-nine years, and for twenty-seven years after the patent of the United States was issued to the original owner of the Mexican grant, under whom the cotenants making the partition deeds acquired title, gives the county a perfect prescriptive title in the squares, under the statute of limitations, as against an action thereafter by a devisee of one of its cotenants to quiet title to a fractional share therein.</p> <p>Id.—Statute of Limitations Against Cotenants.—The statute of limitations will run in favor of tenants in adverse possession, even as against their cotenants.</p> <p>Id.—Stale Demand.—The commencement of the action to quiet title to a fractional interest in the public squares after such a lapse of time, is the presentation of a stale demand, irrespective of the statute of limitations.</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>James F. Peck, Wm. 0. Parker, and Chas C. Boynton, for Appellant.</p>

<p>Life Insurance—Assessment Plan—Trust Fund—“Contract Holders” — Construction of Statute — Debenture Contracts — Options.—Under the provisions of the law of 1891 (Stats. 1891, p. 126), regulating life insurance by corporations formed to carry on the business of “mutual insurance on the assessment plan,” and requiring the deposit of a secured trust fund, the securities for which were to be deposited with the state treasurer, and the principal sum was to be “held in trust for the contract holders of such corporation,” the term “contract holders” imports holders of contracts of life insurance, and does not include general creditors, or holders of “debenture contracts,” who have loaned money thereto, with mere options at maturity to take a life annuity, or, if in health, a paid up policy, and who have no interest in the trust fund, until all holders of insurance have been paid therefrom.</p> <p>3d.—Action by Holder of Insurance to Charge Fund—Creditors’ Bill—Necessary Parties—-Action by Court—Interpleader.— All holders of contracts of insurance are entitled to share ratably in the trust funds; and they are all necessary parties to a distribution thereof, which cannot be had except upon a bill in equity in the nature of a creditor’s bill. One of them may invoke the aid of equity in enforcing his demand, but the court, with the corporation defendant and its books before it, should determine what other persons are entitled to share in the trust fund, and invite, or compel their presence and participation by interpleader.</p> <p>Id..—Power of Court upon Hearing of Creditor’s Bill—Distribution of Fund—Beceiver.—Upon the hearing of the creditor’s bill, with: all the parties interested in the fund before it, the court may make-equitable distribution of the funds, and may appoint a receiver to carry that distribution into effect.</p> <p>Id.—Substitute Method not Permissible.—The method adopted by the-courts, of appointing a receiver at the instance of one party, with-a command to all persons claiming any interest in the fund to-appear and show cause within sixty days, is not a permissible substitute for bringing them all in as necessary parties to the-distribution.</p>

<p>The facts are stated in the opinion of the court.</p> <p>Charles W. Slack, V. A. Scheller, and Adolph Loessel, for Appellant.</p>

<p>Religious Corporations—Aid to Church by Building Society—Mortgage Conditions Securing Application op Money—Statute op Limitations.—Where a Congregational church building society advanced money to aid in the erection of a Congregational church, secured by mortgage, under an instrument the main purpose of which was to secure the application of the money to compel the continuous use of the property as a Congregational house of worship and to prevent a different use, and which contained specific and general conditions for the performance of the duties of the church, upon breach of which, the money secured was to be immediately due and payable, without notice or demand, and the property sold to pay the same, the statute of limitations does not begin to run against the will of the building society for breach of specific conditions known to exist more than four years before suit, which it must overlook and waive by acquiescence; and upon foreclosure of the mortgage for alleged breach of all the conditions, which is admitted by the answer, it is to be presumed that the cause of action is not barred by the statute of limitations.</p> <p>Id.—Presumption as to Continued Use op House op Worship.:—It is to be presumed that public worship was maintained, and the general functions and work of the church performed until a time within the period of limitation. These conditions constitute the principal matters intended to be secured, and the principal inducement for the money paid in aid of the church.</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>Life Insurance—Assessment Insurance—Provision for Increase of Bate of Premium.—A provision in a certificate of life insurance, issued by an assessment life insurance association, that the “rate of the mortuary premiums may be changed to correspond with the actual mortality experience of the association,” is an unequivocal declaration of the reserved right of the company to increase its premiums as the exigencies of its business may require.</p>

<p>Counties—Expenditure op Seventy Per Cent op Fund Prior to January First—Construction op County Government Act.— Under section 36 of the County Government Act of 1903 (Stats. 1903, p. 402), whenever, for any and all purposes, in any fiscal year, seventy per cent of a particular county fund has been expended prior to the first of January of that fiscal year, or liabilities to the amount of seventy per cent have been incurred payable therefrom, no more of the fund’s money may be expended prior to January first, except only for the emergency purposes enumerated in that section.</p>

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

<p>Malicious Prosecution—Sufficienoy of Complaint—Malice—Want of Probable Cause—Criminal Conviction Procured by Fraud.— Though, to sustain a malicious prosecution, both malice and want of probable cause must be alleged; yet the averment of a criminal conviction is not inconsistent with the averment of want of probable cause, where it is alleged to have been obtained by fraud of the defendants, and their use of evidence known to be perjured and by their intimidation and coercion of the jury to render a false verdict against the plaintiff.</p> <p>Pd.—Extrinsic Fraud not Bequired.—The rule that only extrinsic fraud can be shown to set aside a judgment, does not apply to the case of a malicious prosecution and conviction of the plaintiff without probable cause, alleged to have been procured directly by fraud and perjured testimony, and unfair conduct on the part of the defendants.</p> <p>Id.—Erroneous Exclusion of Evidence.—Where the complaint states a cause of action for malicious prosecution, it is erroneous to exclude evidence in support of the cause of action alleged.</p>

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

<p>APPEAL from an order of the Superior Court of Santa Clara County directing payment of a collateral inheritance, tax. M. H. Hyland, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Mechanics’ Liens—Construction or Bailroad—Letting op Horses and Harness to Contractor—Lessor not Entitled to Lien.— One who has let horses and harness belonging to him to one who has contracted to build a railroad, at a stipulated price per month, the contractor having full control thereof during the hiring and having employed and paid the drivers thereof, cannot be held to have bestowed any labor upon the railroad, or to be entitled to enforce any lien thereon, as against the owner, under section 1183 of the Code of Civil Procedure, as a subcontractor.</p> <p>Id.—Labor Enhanced bt Use of Appliances—Rent of Appliances.— Though, in proper cases, the value of labor may be enhanced by the use of tools and appliances, and the laborer may claim a lien for said value; yet this rule has no application where one merely -rents appliances to another who labors on the structure, in which case, it can never be said that he has himself bestowed labor on that structure within the meaning of our law.</p>

<p>Pledges—Insufficient Complaint fob Redemption.—A complaint for redemption erf property pledged which shows on its face that the property has passed out of the possession and control of the pledgor, and that it has not the ability to perform the contract of pledge or to comply with a decree for specific performance thereof, and which does not allege that defendant has other sufficient shares of pledged stock in its possession out of which performance might he adjudged, and does not allege a tender of the amount secured by the pledge, or any offer to perform the contract on plaintiff’s part, the precise amount of which is shown in the complaint, fails to state a cause of action for redemption.</p> <p>Id.-—Cause of Action fob Claim and Delivery not Stated.—The complaint is insufficient to state a cause of action in claim and delivery where it does.not seek the recovery of specific certificates of stock; nor will claim and delivery lie for shares of stock merely as intangible property.</p> <p>Id.-—Cause of Action fob Damages fob Conversion—Statute of Limitations.—If the complaint he regarded as setting forth a cause of action for damages for the conversion of pledged property, or for an excess in value of the pledged property over the amount of the debt, either of such causes of action arose upon the transfer of the securities by the defendant, and when the complaint was filed, more than three years after such transfer, either of such causes of action is barred by subdivision 3 of section 338 of the Civil Code.</p> <p>Id.—Pbayeb fob Accounting of Value of Pledged Property Immaterial.—The prayer for an accounting of the value of the pledged property is immaterial to either cause alleged. The cause of action, whether legal or equitable, is determined by the sufficiency of the allegations of the complaint. Any accounting, if had, would be merely incidental to a main cause of action, if any were stated, and such incidental relief cannot be granted, without reference to any cause of action.</p> <p>Id.—Dismissal of Action upon Order Sustaining Demurrer.—Where no leave to amend the insufficient complaint was applied for, it was not error, or an abuse of discretion, to order a dismissal of the action upon the order sustaining a general demurrer to the complaint.</p>

<p>Action by Administrator to Cancel Stock—Delivery of Indorsed Shares after Death by Order of Intestate—Gift Causa Mortis —Trust.—In an action by an administrator to cancel shares of stock in defendant corporation, which were indorsed, assigned by the intestate, in the name of the deceased wife of appellant, and delivered to the latter in her lifetime, by order of such intestate, after her death, by a third person who held the same for the intestate,—held, that the transaction did not constitute a gift causa mortis, and the only, question is whether the evidence establishes a trust in favor of such wife sufficient to overcome a finding to the contrary.</p> <p>Id.—Creation of Trust in Personal Property—Parol Evidence.—A valid trust in personal property may be created by parol, if the evidence shows an intention to create a trust, and shows the subject, purpose, and beneficiary of the trust. It was possible for the intestate while retaining the legal title to the shares of stock to create a trust therein in favor of the beneficiary, by a declaration that she held the shares in trust for her benefit.</p> <p>Id.—Reservation of Power of Revocation—Postponement of Enjoyment.—The reservation of a partial or total power of revocation, is not inconsistent with the establishment of a trust; nor is it an objection that the right of enjoyment by the beneficiary is postponed, provided an immediate interest is given, subject to such postponement.</p> <p>Id.—Sufficiency of Evidence—Support of Finding against Creation of Trust.—Held, that while there may be sufficient evidence to have justified a finding that the intestate so dealt with the shares as to show an intent to immediately vest the shares in the beneficiary named which should remain at her death; yet there was sufficient evidence to sustain the finding that no trust was created. [Beatty, C. J., dissenting.]</p> <p>Id.—Question of Fact—Province of Trial Court.—In the case of a trust in personal property, it is for the trial court to determine as a question of fact whether the words and acts of the. alleged trustor indicated with reasonable certainty an intention to create a trust, and the subject, purpose, and beneficiary of the trust; and ■ if there is any evidence consistent with its finding that a trust was not created, the finding of the lower court must stand.</p> <p>Id.—Evidence Consistent with Finding—Control of Property by Trustor for Life.—Evidence tending to show that the intestate during her life did not intend to put the property out of her control, and wished to be assured that she could have the use and control of the whole or any part thereof as long as she lived, and that she told the third party who held the shares to keep the certificates for her, is consistent with the finding that no trust was created, and would justify the inference that she was not transferring any present interest in the shares, but was merely endeavoring to arrange a disposition of them to take effect at death.</p> <p>Id.—Ineffectual Gift—Ineffectual Will—Trust not Created.—An ineffectual attempt to make a gift does not create a trust, and equity will not perfect an imperfect gift by establishing a trust when none was in contemplation, nor can a trust be created by an ineffectual attempt at a testamentary disposition of property in the absence of a will duly attested, when the full control of the property was maintained during life, without intent to vest any interest therein prior to death.</p> <p>Id.—Case in Equity—Trial by Court.—An -action for the cancellation of shares of stock held by the executor of the deceased wife, as part of her estate, and to compel the defendant corporation to issue new shares in lieu thereof, is a ease in equity, which was properly tried by the court; and the appellant was not entitled to demand a trial thereof by jury.</p>

<p>APPEAL from an order of the Superior Court of Sonoma County granting an allowance to a wife for alimony in an action for maintenance. Emmet Seawell, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

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

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

<p>Will—Void Trust—Intestacy.—Where a trust attempted to be created by a will is void, if there are no other apt words in the will disposing of the property affected thereby, intestacy as to it is the result.</p> <p>Id.—Construction in Favor op Testacy.—A construction of a will which favors testacy is always preferred to one resulting in intestacy. Id.—“Distributed”—Meaning op.—The word “distributed” is not a technical word is conveyancing and is not usually found in deeds. If it has any legal technical meaning it has such meaning with reference to decrees of distribution in probate courts.</p> <p>Id.—Disposition op Property Appected by Void Trust.—Where a trust attempted to be created by a will in specified real estate is void, further provisions of the will, to the effect that in the event of the testator’s disposing of such property, his trustees should pay the proceeds thereof to the beneficiaries of the trust, and, if not so sold, the property “is to be kept and distributed to” such beneficiaries, evince an intention on the part of the testator that such property or its proceeds should, either with or without a trust, pass to the persons designated as beneficiaries.</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>APPLICATION for a Writ of Mandate directed to the Auditor of the City of San Diego.</p> <p>The facts are stated in the opinion of the court.</p>

'APPLICATION for a Writ of Mandamus directed to-Thomas F. Graham, as judge of the Superior Court of the City and County of San Francisco. The facts are stated in the opinion of the court.

<p>The facts are stated in the opinion of the court.</p> <p>William M. Sims, Albert M. Johnson, and Hiram W. Johnson, for Appellant.</p>

<p>APPEAL from an order of the Superior Court of Shasta County refusing a new trial. Charles M. Head, Judge.</p> <p>The facts are stated in the opinion of the court.</p> <p>Charles A. Garter, and Milton S. -Hamilton, for Appellant.</p> <p>Pichel, Crocker & Tourtellot, Sweeney & Tillotson, George 0. Perry, and Morrison, Cope & Brobeck, for Respondent.</p>

<p>Specific Performance—Contract for Sale and Exchange of Lands— Modifications—Substituted Oral Agreement—Novation—Part Performance.—In an action for specific performance of a contract for the sale and exchange of lands, though an unexecuted oral modification of the original written • contract cannot be enforced; yet, where it appears that the oral agreement was substituted by novation in the place and stead of a canceled written contract, and that it provided different terms, and was fully performed on plaintiff’s part, by conveyance of the lands belonging to him, he can enforce the substituted oral agreement according to its terms.</p> <p>Id.—Construction of Code — Substituted Oral Agreement not a Modification.—An oral agreement substituted by novation for a former written contract, is not an oral modification of the written contract within the meaning of section 1698 -of the Civil Code, provided the substituted oral agreement is valid and enforceable.</p> <p>Id.—Statement of Fraud—Part Performance—Acceptance of Conveyances from Plaintiffs by Defendants—Estoppel.—Where the only question is as to the validity of the substituted oral agreement under the statute of frauds, and it appears that the conveyance made by the plaintiffs to defendants was accepted under the new contract, notwithstanding the fact that it was agreed to be made under the former written contract, the defendants are estopped from claiming that such conveyance was not made in part performance of the terms of the substituted oral contract, and that the new contract was void under the statute of frauds.</p> <p>Id.—Equitable Basis of Part Performance—Prior Written Obligation.—The rule as to part performance of an oral contract for sale or exchange of lands, is based entirely on equitable considerations; and there is no hard and fast rule under which the existence of a prior written obligation bars all inquiry on the subject. It is sufficient that, under the circumstances of the particular case, the act of part performance is referable to the oral contract.</p> <p>Id.—Oral Contract to Exchange Lands—Part Performance by Plaintiffs—Legal Defense—Bulb in Equity.—Where an oral contract for the exchange of lands has been performed by the plaintiff only, though the defendants would have a legal defense to an action "against them on the contract, yet the rule in equity is that where there is an oral agreement by the terms of which each party is to convey lands to the other, a conveyance by one party on the faith of the agreement constitutes such part performance as will for the purpose of an action for specific performance take the whole case out of the operation of the statutes of fraud.</p> <p>Id.—Consideration of Oral Contract—Settlement of Disputes.—A sufficient consideration for the oral contract appeared from evidence sustaining the finding of the court that it was based upon the existence and settlement of disputes between the parties.</p> <p>Id.—Evidence—Want of Consideration for Written Contracts— Support of Pleading.—Where the defendants in their cross-complaint relied upon the previous written contracts, the plaintiffs in support of their answer to the cross-complaint, were properly allowed to introduce evidence as to a want of consideration therefor.</p> <p>Id.—Oral Evidence to Explain Ambiguity.—Oral evidence was admissible to show all the circumstances surrounding the parties at the time of the execution of a written contract, by way of explaining ambiguous clauses therein.</p> <p>Id.—Evidence—Substituted Oral Agreement.—Evidence was admissible to show that the oral agreement relied upon by plaintiffs was substituted for the prior written contract to settle disputes arising thereunder.</p> <p>Id.—Part Performance a Question of Fact—Province of Trial. Court—Support of Findings.—The question whether there has been a part performance of an oral contract on the part of the plaintiff, is one of fact to be determined by the trial court; and the question as to the credibility of witnesses, in case of conflicting evidence, is within the exclusive province of the trial court, and its findings must be deemed in such ease supported by the evidence and will not be disturbed upon appeal.</p> <p>Id.—Finding against Evidence—Amount of Incidental Expense— Avoidance of New Trial—Consent to Modification of Judgment. —Where it appears that a finding as to the amount of incidental expense allowed by the court is not sustained by the evidence, and to avoid a new trial on that particular question, the respondents’’ offer to remit the whole amount allowed from the judgment, the judgment will be modified in that respect, and the order denying a new trial will be affirmed, and the judgment as modified affirmed, at appellants’ costs.</p>

<p>APPEAL from an order of the Superior Court of the City and County of San Francisco directing payments to the widow o£ a deceased person on her family allowance. J. Y. Coffey, Judge.</p> <p>The facts are stated in the opinion of the court.</p> <p>James M. Allen, Drown, Leicester & Drown, Garret W. McEnerney, W. B. Bosley, John S. Drum, and Maurice Y. Samuels, for Appellants.</p>

<p>APPEAL from an order of the Superior Court of the City and County of San Francisco directing payment to the widow of a deceased person on her family allowance. J. V. Coffey, Judge. .</p> <p>The facts are stated in the opinion of the court in this case, and in case No. 4582, supra.</p>

<p>In answer to a petition filed by Frank B. Ogden, now a judge of the superior court of Alameda County, for a review and modification of certain statements contained in the opinion of this court in the case of Pelcin Mining and Milling Company v. James Kennedy, 81 Cal. 357, it is held that the statements in that opinion were based, of course, exclusively upon the findings made by the trial court, and were in no sense the result of an examination by this court, nor could they in any sense be construed as expressing the views of this court upon the matter; and that it is manifest that the exoneration of Judge Ogden upon the showing made in his petition is full and complete. This court also, from personal knowledge of Judge Ogden, joins in the expression of confidence embodied in the findings of the judges of the superior court of Alameda County; but, from the character and limits of the jurisdiction of this court, it is impossible for it to attempt to amend or correct the findings of the trial court, and so, impossible for it to afford the specific relief prayed for. The court orders the publication of its views in this matter, stating that it should suffice for the complete exoneration of the petitioner.</p>

<p>APPLICATION for a Writ of Mandate directed to James V. Coffey, as Judge of the Superior Court of the City and County of San Francisco to compel the settlement of a bill of exceptions.</p> <p>The facts are stated in the opinion of the court.</p> <p>Horace W. Philbrook, W. J. Bartnett, and William T. Baggett, for Petitioners.</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 Mendocino County and from an order refusing a new trial. J. Q. White, Judge. The facts are stated in the opinion of the court.

<p>Inheritance Tax—Wife’s Share of Community Property Subject To. lístate of Mofjitt, ante, p. 359, approved," to the effect that a wife’s share of the community property is subject to the inheritance tax imposed by the act of March 20, 1905.</p>

APPEAL- from a judgment of the Superior Court of Los Angeles County and from an order refusing a new trial. B. N. Smith, Judge. The facts are stated in the opinion of the court.

<p>APPLICATION for a Writ of Mandate directed to the County Auditor of the County of Sacramento.</p> <p>The facts are stated in the opinion of the court.</p> <p>E. S. Waehhorst, District Attorney, W. H. Devlin, and J. B. Devine, for Petitioners.</p>

<p>Public Schools—Teaches Holding City Certificate—Removal.— Under section 1793 of the Political Code, one holding a city certificate who is elected as a teacher in the public schools of the city for an indefinite term cannot be removed except for causes mentioned in that section and in section 1791 of that code.</p> <p>Id.—Teacher not Holding City Certificate.;—Neither section 1793 of the Political Code, nor any other provision of the general state law precludes a city board of education from removing at pleasure a. teacher who does not hold a city certificate.</p> <p>Id.—Election and Dismissal op Teachers—Municipal Affairs.—The-election and dismissal of teachers in the public schools are not. “municipal affairs,” which may, by a freeholders’ charter, be regulated in a manner in conflict with that provided by the general law.</p> <p>Id.—Charter of San Jose—Probationary Teacher—Power of Boar» of Education to Drop.—Under section 13 of article IX of the-charter of the city of San Jose, as amended in 1901, a probationary teacher, that is one in his first or second year of service in tha school department, who was appointed without holding a city certificate, can be dropped from the department by the board of education only on the adverse report of the classification committee.</p>

<p>Action to Quiet Title—Mexican Grant—Conveyance by Plaintiff— Mortgage Back — Insufficient Possession — Nonsuit. — In an, action to quiet title under a Mexican grant, where it appears that the only title the plaintiff had thereunder, he had conveyed to-third parties, who had executed a mortgage back to plaintiff, such mortgage passed no title; and where the plaintiff shows no other title or possession, except that of an adobe house, not shown to be situated on the Mexican grant, and no patent appears to have issued for such grant, the plaintiff was properly nonsuited.</p> <p>Id.—Cross-Complaint by Assignee of Mortgage—Payment Out of Sales—Constructive Trust—Limitations—Stale Demand—Non-suit.—Where the cross-complainant claimed as assignee of the mortgage, which by its terms was payable out of sales, alleging that, numerous conveyances were made, but not showing when they were-made, or what prices were realized, it must be presumed that all conveyances were made within a reasonable time, and when there-was a delay of over thirty-five years to demand an accounting, even-though a constructive trust was relied upon, growing out of a breach of a parol interest by parties in confidential relation, the statute would begin to run against such trust, from the time of such breach, and the cause of action being barred by the statute of limitations, and the suit being upon a stale demand in equity, anonsuit of the cross-complainant was properly granted.</p>

<p>Criminal Law—Murder—Motion to Set Aside Information—Date of Commitment—Question of Fact — Presumptions — Conflicting Evidence.,—Though an order holding the defendant to answer upon a charge of murder is prerequisite to the filing of the information against him, yet the date of such order is a question of fact to be determined by the trial court, upon a motion to set aside the information; and notwithstanding defendant’s counsel testified that the order was not signed when the information was filed, but it purports on its face to be indorsed on the complaint two days prior to the information, the presumptions that official duty was regularly done and that the order was truly dated, constitutes substantially conflicting evidence to the contrary, and the finding of the trial court to the contrary, in denying the motion, is conclusive upon appeal.</p> <p>Id.—Voluntary Confession—^Preliminary Proof—Question op Pact —Discretion of Trial Court—Impossibility of Pixed Bule.— Though it is essential that the preliminary proof must show that the confession by the defendant was voluntarily made, without previous inducement or intimidation, yet the question whether such preliminary proof is sufficient to show that the confession was free' and voluntary, is one of fact addressed to the trial court, and a considerable measure of discretion must be allowed in the determination thereof. The admissibility of such a confession depends so largely upon special circumstances, that no fixed rule can be formulated covering all eases.</p> <p>Id.—Statement of Defendant Upon Confession of Co-Defendant.— The statement of the defendant voluntarily made, while in custody, ' upon being informed of the confession of a co-defendant voluntarily made by the latter, implicating the defendant with himself, made in the presence of the co-defendant, and admitting the truth of what he said, if shown not to have been induced by fear or promises, was properly admitted in evidence.</p> <p>Id.—Confession While Under Arrest.—The mere fact that the confession of defendant was made to a police officer, while under arrest, does not necessarily render it involuntary; nor does the mere fact that the defendant was informed, in the presence of his co-defendant that the latter had confessed, make the defendant’s subsequent confession necessarily involuntary.</p> <p>Id.—Murder in Bobbery op Bank—Evidence—Possession and Expenditure op Money—Corroboration of Confessions.—Where it appears that the murder was committed upon a bank officer, in pursuance of a conspiracy by the defendants to rob the bank, which robbery was successfully accomplished, evidence of the sudden possession by the defendants of large sums of money, and expenditures made therefrom, corresponding to the facts stated in the confessions made by the defendants, was admissible in corroboration of such confessions, without necessary preliminary proof that they were impecunious before the robbery.</p> <p>Id.—Statement by District Attorney not Misconduct.—It appearing that the alleged confessions by both defendants were admissible in evidence against the defendant, it was not misconduct on the part of the district attorney in his opening statement to refer to the confession made by the co-defendant and to state its purport, and that he would prove it.</p>

<p>Criminal Law—Murder—Plea of Guilty—Application for Withdrawal—Discretion.—Where the defendant charged with an atrocious murder in pursuance of robbery, had, contrary to the advice of several attorneys, and under the advice of his father, pleaded guilty of the crime charged, it was within the discretion of the court, when the defendant was called for sentence to be hanged, to refuse leave at that time to withdraw the plea of guilty and to substitute the plea of not guilty, where there is nothing in the evidence to mitigate the atrocity of the crime.</p> <p>Id.—Disappointed Hope—Prior Good Character—Cold-Blooded Murder not Mitigated.—Neither the fact that the defendant had hoped to receive a life sentence, if he pleaded guilty, in which he was disappointed, nor the fact that he was young, and had borne a prior good character, could mitigate a cold-blooded, deliberate, and atrocious murder.</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>Louis H. Brownstone, and B. A. Herrington, for Appellant.</p>

<p>Place op Trial—Action against Public Officers — Act Done by Virtue op Office.-—Section 393 of the Code of Civil Procedure,, providing that actions against a public officer for an act done-by him in virtue of his office, must be tried in the county where-the cause, or some part thereof, arose, applies only to affirmative-acts of the officer which directly interfere with the personal rights- or property of the person complaining, such as wrongful arrest, trespass, conversion, etc., and does not apply to mere omissions of neglect of official duty.</p> <p>Id.—Enjoining Performance op Illegal Contract—County op Residence op Defendants.—An action by a taxpayer against the-secretary of state, the assistant attorney-general and the state-printer, and the members of a firm to which a contract for the furnishing of paper for use in the state printer’s office had been-awarded by such state officials, to enjoin further action in regard-to or under said contract, upon the ground that the same was-illegal and void, is not an action against public officers for an act done by them, but is an action against them and the other persons-to prevent the doing of certain acts in the future. The proper county for the trial of such action, subject to the power of the-court to change the place of trial on statutory grounds, is the county in which the defendants, or some of them, reside at the commencement of the action.</p>

<p>Partnership—Purchase by Partnership and Individual Member.— A member of a partnership as an individual may unite with the partnership in the purchase of property for the joint benefit of the partnership and himself personally."</p> <p>Id.—Action Against Partnership and Individual Member—Pleading.—An action to recover the purchase price of goods sold to a partnership and one of its members individually, is properly brought against all the members of the firm as partners, and such member individually; and a complaint therein which properly alleges such a sale, is not uncertain, ambiguous, or unintelligible, and does not misjoin causes of action or parties.</p> <p>Id.—Form op Judgment—Evidence Showing Mere Sale to Partnership.—In such an action, where the evidence shows merely a purchase by and delivery to the partnership, there is no liability on the part of the defendant sued individually except such as the law imposed upon him as a member of the partnership for a partnership debt, and judgment should not be entered against him for an individual as distinguished from a partnership debt.</p> <p>Id.—Modification of Judgment on Appeal. — Where, in such an action, judgment is entered against the partnership and also against the member individually sued, and the evidence shows merely a sale to the partnership, the court has power, on appeal, under section 578 of the Code of Civil Procedure, without directing an entire reversal of the judgment, to order its modification so that it shall be merely a judgment against the members of the partnership on their partnership liability.</p> <p>Id.—Evidence—Reasonable "Value.—The evidence reviewed and held to show that the amount for which judgment was rendered was the reasonable value of the goods sold.</p>

<p>APPEAL from a judgment of the Superior Court of Fresno County and from an order denying a new trial. H. Z. Austin, Judge.</p> <p>The facts are stated in the opinion of the court.</p> <p>H. U. Brandenstein, and Stanton L. Carter, for Appellants.</p>

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

<p>Negligence Causing Death—Law of Foreign State—Transitory Action.—A cause of action to recover for a death occasioned by negligence, created by the statutes of another state, or of the United States, is transitory in ifs nature, and may be enforced in this state, but only for the purpose and upon the terms permitted by the lex loei.</p> <p>In.—Action in this State—Foreign Law Must be Pleaded and Proved.—As at common law there was no right of action for an injury causing death, and as the courts of this state do not take judicial notice of the laws of foreign states, it is necessary for the plaintiff, in an action in this state to recover for an injury causing death in a foreign state, to allege and prove the law of such foreign state giving a right of action for the death.</p> <p>Id.—Bight of Plaintiff to Sue.—In such an action, the law of the foreign state must be pleaded not only to show that in that forum there existed the right of action sued upon, but also to show that the action is brought by the person in whom, under the laws of the foreign jurisdiction, the right of action is vested.</p> <p>Id.—Laws of Foreign State Contained in Briefs.—The presentation of the laws of the foreign state in the briefs of counsel cannot on appeal be considered the equivalent of a presentation of them in evidence.</p> <p>Id.—Dismissal of Action—Befusing Leave to Amend—Harmless Irregularity.—The ordering such action dismissed without leave to amend, upon sustaining a demurrer to the complaint for want of sufficient facts to constitute a cause of action, although technically erroneous, will not warrant a reversal on appeal, when it is apparent that the plaintiff, under the law of the foreign state, could not amend so as to state a cause of action. In such case the irregularity is without injury.</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>Wat op Necessitt—Elements Essential to Existence op Eight.— A right of way of necessity does not exist except in eases of strict necessity. That a way over the grantee’s land is too steep, or too narrow, or that other and like difficulties exist, does not alter the case, and it is only when there is no way through his own land that a grantee can claim a right over that of his grantor. It must also appear that the grantee has no other way.</p> <p>Id.—Eight op Wat Passes with Land.—A right of way which is . appurtenant to land passes with the transfer of the land.</p> <p>Id.—Pleading—Findings—Existence and Ownership op Eight op Wat.—An allegation in a complaint to establish the plaintiff’s title to a designated right of way, to the effect that he is the owner of such right of way over the defendants’ land, and that such easement is appurtenant to his land, is a sufficient averment of the ultimate fact of the existence of the right of way and of his ownership, and findings in accordance therewith are sufficient to support a judgment in favor of the plaintiff declaring him to be the owner of the right of way, and enjoining its obstruction.</p> <p>Id.—Appeal prom Judgment—Findings op Ultimate and Probative Facts.—Upon an appeal on the judgment-roll alone, a judgment based upon allegations and findings of sufficient ultimate facts cannot be successfully assailed merely because the complaint and the findings contain in addition a showing of probative _ facts which, taken alone, might not support the judgment.</p> <p>Id.—Ultimate When Controlled bt Probative Facts.—Findings of probative facts can be used to overcome an express finding of the ultimate fact only where the probative facts found are inconsistent with the ultimate fact found, or where it appears that the trial court made the alleged finding of ultimate fact simply as a conclusion from the particular facts found.</p> <p>Pleadings—Complaint—Statute op Limitations.—A demurrer to a complaint, on the ground that the plaintiff’s cause of action is. barred by the statute of limitations is not good unless the complaint, affirmatively shows that the statutory period has run since the accrual of the cause of action.</p> <p>Id.—Date op Obstruciton op Wat.—In an action to establish the plaintiff’s title to a right of way and to enjoin its obstruction by the defendant, a demurrer to the complaint on the ground that the cause of action is barred by the statute of limitations should not be sustained, where the complaint fails to show when the defendants first obstructed the road or interfered with plaintiff’s use of it.</p> <p>Id.-—Extinguishment of Eight of Wat.—If plaintiff’s right of way was extinguished by disuse, and such extinguishment did not appear on the face of the complaint, the fact, if it existed, was matter of defense to be set up in the answer and proved by the defendant.</p>

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

<p>The facts are stated in the opinion of the court.</p> <p>Percy B. Lloyd, for Plaintiffs, Respondents and Appellants.</p> <p>E. C. Bower, and Enoch Pepper, for Pepper Hotel Company, Appellant.</p>

<p>Action to Quiet Title—Bight of Possession Under Contract—Unsupported Bindings.—In an action to quiet title to twenty-five acres of land, where defendant pleaded a right of possession of "the whole thereof under a contract, and proved only a right of possession of 13.08 acres, a finding that he was entitled to the possession of the residue, is without support; and a new trial must "be ordered.</p> <p>Id.—Cost-Bill—Improper Costs — Motion to Betax — Execution Wrongfully Issued—Involuntary Payment.—Where, pending a motion to retax costs improperly included in the cost-bill, an execution was "wrongfully issued and the improper costs collected thereunder, the payment of such costs was not a voluntary payment, though there was no seizure of property of the defendant making the payment; and the entry of the costs in the judgment, and execution thereof being without authority, the court erred in refusing to recall the execution and in refusing to tax the costs.</p>

<p>Boundary Line of City Lots—Uncertain Position—Agreed Line Confirmed by Occupation-—True Line in Law.;—When adjoining owners of city lots, being uncertain of the true position of the boundary line between them, agree upon its true location, mark it upon the ground, build up to it, and occupy on each side of it for more than thirty years, under such circumstances that substantial loss would he caused by a change of its position, such line becomes, in law, the true line called for by the respective descriptions of the lots, regardless of the accuracy of the agreed location, as it may appear by subsequent measurements.</p> <p>Id.—Object of Rule—Repose Against Strife—Rule Binding upon Successors..—The object of the rule confirming occupation according to an agreed line, for a period up to or beyond the statute of limitations, is to secure repose against strife, and make titles permanent; and the rule not only binds the parties, but also their successors by subsequent deeds.</p> <p>Id.—Oral Agreement for Division Line — Statute of Frauds —Division Line Attached to Deeds — Title to Excess. — An oral agreement upon a division line, which is established by actual occupation of the parties for the requisite period is not within the statute of frauds. Title is not thereby transferred; but the division line, when established, attaches itself to the deeds of the respective parties, and simply defines the lands described in each deed, and if more land is given to one than the calls of his deed actually require, he holds the excess by the same tenure that he holds the main body of his lands. •</p> <p>Id.—Lots Occupied by Buildings for Statutory Period—Lease of Large Lot with Option to Purchase—Presumption—Estoppel.—• Where the adjoining lots were occupied by buildings for the statutory period, the grantee of the lot containing the excess is presumed to take up to the agreed line, and the grantor is estopped from withholding from the grantee possession up to the agreed line; and a subsequent conveyance from his heirs to the appellant for the excess carried no title, unless the purchaser is estopped from claiming the contrary.</p> <p>Id.-—Equitable Estoppel of Purchaser — Pleading — Evidence in Reply to Answer.—Where the plaintiff relied upon an equitable estoppel of the purchaser to claim up to the agreed line, pleaded in the answer, he was entitled to offer evidence in reply to the answer without being called upon to plead such equitable estoppel.</p> <p>Id.—Equitable Estoppel not Proved—Deed under Option Attached to Agreed Boundary—Settlement with Different Possession.— Where the grantor of the option to purchase held by his building up to the agreed boundary the purchaser under the option took title up to that line, as attaching to his deed, without reference to its description; and a mere agreement by the holder of the option to soil a smaller strip on the other side of the lot to an adverse possessor thereof, against whom the grantor of the option laid no claim, the price of which was merely fixed as the estimated cost of a suit to quiet the title of the adverse possessor, did not prove an equitable estoppel of the purchaser, as grantee, to take title to the agreed lines, he not having been put by the grantor or his heirs to any election as to that matter. [Beatty, C. J., dissenting.]</p>

<p>Insane Persons—Restoration to Capacity—Construction of Code— Guardianship.—The provisions of section 1766 of the Code of Civil Procedure, respecting the restoration of an insane person to capacity, are not applicable to one who has been confined in an insane asylum without having been put under guardianship.</p> <p>Id.—Certificate of Discharge from State Hospital—Want of Authority—Collateral Attack.—A certificate of discharge from a state hospital by an official having jurisdiction to make it, under section 2189 of the Political Code, is made by that section evidence of an adjudication that the person discharged had recovered; but it is open to collateral attack for want of authority to make it, and it may be shown that when it was made the apparently discharged person was not an inmate of the hospital, nor within the control of the superintendent when the certificate was made; and upon such showing, the certificate is ineffectual for any purpose.</p> <p>Id.—Trust Under Will—Construction—Actual Recovery from Mental Incompetency.—Where a trust under a will provided for title in trustees to provide an income for the support of an insane person, “so long as he shall be incompetent to hold and properly manage his affairs and property,” the principal to be turned over to him upon his restoration “to mental soundness and capacity,” the trust is to be construed as continuing until the actual recovery, in fact, from mental derangement or incompetency, rather than the mere making of an order purporting to declare such recovery.</p> <p>Id.—Certificate Prima Facie Evidence.—A certificate of discharge granted under the act of 1897 (Stats. 1897, p. 331), or under the act of 1901 (Stats. 1901, p. 639), is merely prima facie evidence of sanity, and may be overcome by proof to the contrary.</p> <p>Id.—Bight to Terminate Trust Under Will—Proof Bequired—Support of Finding.—In order to terminate the trust under the will the discharged person must prove restoration to a condition of competency in fact to manage Ms affairs. On this issue, the finding of the court was against him, and is supported by sufficient evidence.</p>

<p>Specific Performance—Contract for Location of Railroad Station—■ When Enforceable.—A contract for the location of a railroad station may be enforced specifically, where it is fair and just and leaves the railroad free to serve the public interests by the location of additional stations as they might be needed, without limitation of number or location.</p> <p>Id.—When not Enforceable.—Specific performance of a contract for such location will not be enforced, to subserve mere private interests, in such manner as to hamper the railroad in the performance of its duties to the public, or if the contract is to establish no other stations within a given distance of the agreed location, or where the enforcement of the contract would impose a great burden on the defendant without corresponding benefit to the plaintiff, or would be detrimental to the interests of the public.</p> <p>Id.—Showing of Fairness and Justice Required—Adequacy of Consideration.—A complaint for specific performance of a contract must, in order to be sufficient as against a general demurrer, state facts from which the court may determine that the consideration is adequate, and that the contract is as to the defendant, fair, just, and reasonable, and that it would not be inequitable to enforce it. Id.—Insufficient Complaint to Enforce Specific Performance of Contract for Station.—Where the complaint for specific performance of a contract for the location of a railway station lacks the showing of fairness, justice, and reasonableness of the contract, or the adequacy of its consideration, and does not state the value of the right of way conveyed to the company as the consideration for the contract, nor allege the cost to the defendant of compliance with the contract, nor show that plaintiffs are the owners of any land near the proposed station, and fails to show that the recovery of damages for breach of the contract would not be an adequate remedy, it is wholly insufficient, as against a general demurrer.</p> <p>Id.—Allegation of Past Ownership—Presumption of Continuance Inapplicable.—The allegation in the complaint that plaintiffs owned land adjoining the right of way in 1881, is not an allegation that they owned it at any later date. The presumption of the continuance of facts shown to exist, is merely a rule of evidence and not of pleading, and cannot dispense with the averment of the fact of continued ownership.</p>

<p>Franchise—Street Railroad—Grant of Right, Title, and Interest. —An instrument whereby the grantor grants “his right, title and interest in and to and' under” certain street-railroad franchises in a municipality, is a transfer of the estate or property rights created - by the original grant of the franchises and not merely of the document containing the grant.</p> <p>Id.—Franchise is Incorporeal Hereditament.—The right to use the streets of a city as a way upon which to build and operate a street railroad is a right in real property, an incorporeal hereditament.</p> <p>Id.—Grant Equivalent to Quitclaim Deed—Want of Title in Grantor.—A grant whereby the grantor purports to convey only his right, title, and interest in certain street-railroad franchises, with no covenants of title, is in effect a mere deed of quitclaim, and in the absence of fraud or mistake, the grantee is not relieved from the obligation of paying the purchase price merely because the grantor had no title to the franchises. The same rule would obtain if the grant were regarded merely as a transfer of the instruments by which the franchises were granted.</p> <p>Id.—Covenant or Warranty — Recital in Grant—Franchise “ Duly Given.”—The law will not imply a covenant or warranty that the franchises purporting to be conveyed were valid from a mere recital in the instrument of transfer that they had been “duly given” to the grantor and his assignors. A covenant or warranty is never implied from a mere recital. Words sufficient to create an agreement are essential.</p> <p>Id.—Law of Foreign State—Presumption.—In the absence of proof to the contrary, it is presumed that the law of another state respecting the transfer of a street-railroad franchise, is the same as the law of this state.</p> <p>Id.—Presumption Applies to Statutory Law.—The presumption in this state as to the similarity of the laws of a foreign state applies to statute law as well as to the common law.</p> <p>Id.—Transfer of Street-Railroad Franchise.—In this state a street-railroad franchise may be transferred whether held by a corporation or a natural person, and no formal or express consent of the state is necessary. And in the absence of proof to the contrary, the law of Nevada is presumed to be the same.</p> <p>Id.'—Consent of State not Necessary to Transfer.—A provision in a grant of a street-railroad franchise requiring the grantee to form a corporation to build and operate a street-railroad and "to cause corporate bonds to be issued to the grantor in payment for the franchise, is not contrary to public policy or of such eifeet as to make the entire contract void.</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>Foreign Corporation is Person within Meaning op ’Fourteenth Amendment.—A corporation, although organized under the laws-of another state, is a “person” within the meaning of the fourteenth amendment of the constitution of the United States, providing that no state shall deprive any person of property without due-process of law, nor deny any person within its jurisdiction the equal; protection of the laws.</p> <p>Id.—Statute Curtailing Bight to Maintain or Depend Actions— Construction.—A statute which purports to curtail the privilege-of foreign corporations to maintain or defend actions in this state, and to impose conditions upon compliance with which alone they may be permitted to do so, will not be construed to extend beyond the plain meaning of its terms considered in connection with its? object and purposes.</p> <p>Jd.—Starts Prohibiting Maintenance of Action—Bight to Defend >not Affected—Failure to File Copy of Articles of Incorporation—Constitutional Law.—Section 410 of the Civil Code, providing that no foreign corporation doing business in this state, which fails to file copies of its articles of incorporation with the secretary of state, and with the county clerk of the county where its principal place of business is located and where it owns property, as required by section 408 of such code, “can maintain any suit or action in any of the courts of this state until it has complied with said section," does not forbid a foreign corporation which has failed to comply with such provisions from defending an action brought against it in the courts of this state. Notwithstanding the provisions of those sections, to prevent such a foreign corporation from defending any action brought against it, would be to deny it the equal protection of the laws and to deprive it of its property without due process of law.</p> <p>Id.—Failure -to Designate Person for Service of Process.—-Where it appears from the record, that a judgment against a foreign corporation was rendered upon its default after striking out its answer, solely for the reason that it had failed to file certified copies of its articles of incorporation as required by sections 408 and 410 of the Civil Code, the action of the court cannot be sustained by reason of the provisions of sections 405 and 406 of that Code, which purport to declare that a foreign corporation doing business in this state, which neglects to file .in the office of the secretary of state a designation of some person residing within the state upon whom process may be served, cannot maintain or defend any action or proceeding in the state courts until it has filed such designation.</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>M. P. Goodrich, City Attorney of San Pedro, J. S. Chapman, and Ward Chapman, for Appellants.</p> <p>George A. Skinner, City Attorney of Long Beach, and Lawler, Allen, Van Dyke & Jutten, for Respondents.</p>

<p>The facts are stated in the opinion of the court.</p> <p>- L. P. Puter, Denver Sevier, and Page, McCutchen & Knight, for Appellant.</p>

<p>The facts are stated in the opinion of the court.</p> <p>Percy V. Long, City Attorney, W. I. Brobeck, Assistant City Attorney, Jesse H. Steinhart, Assistant City Attorney, Wm. G. Burke, City Attorney, and A. S. Newburgh, Assistant City Attorney, for Appellant.</p>

<p>Negligence—Dangerous Push-Car Left Unguarded—Known Use by Children—Injury to Boy—Sufficient Complaint.—A complaint by a young boy of twelve years of age for injuries alleged to have been sustained by the negligence of the defendants in leaving a push-ear unguarded and unlocked standing on rails on a public street, which alleges that children were accustomed to play thereon with the knowledge and consent of the defendants, and that plaintiff had his foot crushed while endeavoring to stop the car while in motion, states a cause of action, and a general demurrer thereto was improperly sustained.</p> <p>Id.—Duty to Use Ordinary Care to Prevent Injury to Children— Imputed Knowledge.—Those who place an- attractive but dangerous contrivance in a place frequented by children, and knowing or having reason to believe that children will be attracted to it and subjected to injury thereby, are chargeable with knowledge that they are usually unable to foresee, comprehend, and avoid the danger into which they permit them to be allured, and owe the duty to use ordinary care to prevent injury to them.</p> <p>Id.—Contributory Negligence Precluded on Demurrer.—Where the complaint alleged that the plaintiff was too young and inexperienced to foresee the danger, the question of contributory negligence on his part is precluded, where the defendants rest upon their demurrer to the complaint.</p> <p>Id.—Age of Accountability for Contributory Negligence—Question of Fact.—There is no precise age at which, as matter of law, a child is to be held accountable for all his actions to the same extent as one of full age. There is no conclusive presumption that a twelve-year-old boy was able to foresee the danger attending his action which led to his injury, as against an admitted averment to the contrary. The question is one of fact, to be shown by the-evidence.</p> <p>Id—Contributory Negligence Matter op Defense. — Contributory-negligence is matter of defense where it does not appear upon the-face of the complaint, or by the evidence for the plaintiff.</p>

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

APPEALS by plaintiff from a judgment of the Superior Court of Los Angeles County, and from an order refusing to vacate the judgment, and to increase the amount thereof, and cross-appeal by defendant from the whole of said judgment and from an order denying new trial. N. P. Conréy, Judge. The facts are stated in the opinion of the court. Herbert Cutler Brown, for Plaintiff, Appellant in L. A. No. 2132, and Respondent in L. A. No. 2139.

<p>Legal Holidays—Constitutional Law—Transaction op Judicial Business.—Section 5 of article VI of the constitution, declaring that the superior courts of the state “shall be always open (legal holidays and non-judicial days excepted),” but “injunctions and writs of prohibition may be issued and served on legal holidays and non-judicial days,”—authorizes the legislature to allow or disallow the transaction of all or any class of judicial business upon legal holidays, by an act not in itself obnoxious to other restrictions of the constitution.</p> <p>Id.—Special Holidays—Amendment op 1907 to Section 135 op Code op Civil Procedure Unconstitutional.—That portion of the amendment of section 135 of the Code of Civil Procedure, enacted at the special session of the legislature on November 23, 1907, and providing that on all “special holidays” declared by the governor of the state, the courts shall be open for the transaction of all judicial business “except the trial of an action or the rendition of a judgment based upon a contract, expressed or implied, for the direct payment of money,” is unconstitutional in that it confers a special privilege upon a class; not founded upon any constitutional, rational, or legal distinction. The exception is so integral a portion of the statute as to render the entire amendment void.</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>Consolidated Placer Mineral Location—Conveyance of Specific Portion of Claim—Discovery of 'Oil by Grantee—Effect of Discovery on Balance of Claim.—Where eight persons, as associates, enter upon ancl locate a tract of one hundred and sixty acres of vacant, unoccupied mineral lands of the United States under the placer mining laws, mark the boundaries of the consolidated claim, and proceed with the work of development to make an oil discovery, but before any discovery of oil had been made by them they all join in conveying a specific portion of the consolidated claim to a third person, who prosecutes the work of discovery on the portion so conveyed, and subsequently makes a sufficient discovery of oil thereon, the effect of such conveyance, in the absence of any contrary understanding or agreement between the parties, is to surrender to the grantee all of the rights which the grantors formérly enjoyed in the portion conveyed, and to constitute it a separate and independent claim; and the subsequent discovery of oil thereon by such grantee would not inure to the benefit of such associates or their grantee of other portions of the consolidated claim, so as to perfect the location of the remaining portions of the consolidated claim.</p> <p>Id.—Agreement Making Work by Grantee Operate for Benefit of Entire Claim—Consideration-—Parol Evidence.—If as a part of the consideration of the deed by the associates to the specific portion of the consolidated claim it was understood and agreed between the parties that the labor done and money expended by the grantee on the portion conveyed should operate for the benefit of the land remaining in the possession of the associates, such effect will be given it, and the value of the work and the resulting discovery would then inure to the benefit of the land remaining in the possession of the associates, and of all their subsequent grantees. That such an agreement was part of the consideration of the deed may be shown by parol.</p>

<p>Tenants in Common—Purchase of Encumbrance and Adverse Title —Enforcement of Trust within Reasonable Time.—One tenant in common of land, who purchases an outstanding encumbrance or an adverse title, will be chargeable as trustee for his companions in interest, if they choose within a reasonable .time to claim the benefit thereof, by contributing or offering to contribute their proportion of the purchase money.</p> <p>Id.—Lapse of Reasonable Time—Laches in Equity.—Regardless of the question of the statute of limitations, if the right to enforce the trust as against a cotenant is not asserted within a reasonable time, and the plaintiff is chargeable with laches in equity, a court of equity will refuse to entertain the suit.</p> <p>Id.—Principal Factors of Laches—Discretion of Court of Equity.— The principal factors in determining whether the plaintiff has been guilty of laches, are acquiescence and lapse of time; but other circumstances are also material, such as a change in the value or character of the property. The matter is one which is left to the sound discretion of the court of equity, in each case.</p> <p>Id.—Laches of Cotenant—Presumed Repudiation and Abandonment. —Unless a cotenant claiming the benefit of a purchase, makes his election to participate within a reasonable time, and contributes or offers to contribute his ratio of the consideration actually paid, he will be deemed to have repudiated the transaction and abandoned its benefits.</p> <p>Id.—Laches of Appellant Against Respondent-—Deed of Trust by Cotenants—Special Trust by One—Title under Sale.—Where defendant’s husband and appellant’s grantor, as tenants in common of a tract of land, executed a deed of trust to secure a large loan from a bank, and appellant’s grantor subsequently executed a special .trust to appellant for his use for life, and for other uses specified, and the respondent wife, paid one half of the debt secured by the deed of trust and, upon a sale under the deed of trust, the title obtained was transferred in equal shares to defendant husband and respondent wife, who subsequently purchased her husband’s interest at a large price, the property having greatly increased in value, and after the lapse of two days less than four years, from the date of the sale under the deed of trust, and over nineteen months after respondent’s acquisition of her husband’s title, she having since made improvements on the land and cultivated it in crops, the appellant as trustee for the beneficiaries under the deed of the other eotenant, sought to charge respondent as trustee of the title, held, that the suit of appellant as against the respondent, was properly decided by the court below to be barred by laches.</p>

<p>Action upon Contract to Purchase Stock—Independent Agreement •—Evidence—Variance not Shown.—In an action upon an alleged contract to purchase fifty shares of stock in a corporation at sixty dollars per share, in ease of any default in the payment of an annual dividend of not less than three and one half per cent on each of said shares, at that price, it being alleged that no dividends were paid, where the contract offered in evidence to prove the cause of action alleged, contained an independent agreement to make good each annual dividend, in event of non-payment thereof at the rate of three and a half per cent upon plaintiff’s investment, it does not establish' any variance.</p> <p>Id.—Want of Consideration of Contract of Purchase—Performance of Plaintiff’s Obligation,—Where plaintiff had only paid seven hundred and fifty dollars on account of the purchase of fifty shares of stock at a price of three thousand dollars, and the contract was made by defendant to repurchase the stock, to induce the defendant to perform his obligation to pay up his subscription to the stock, neither the existence of that duty, nor the performance of it by the plaintiff would constitute any consideration for the contract by defendant to purchase the stock.</p> <p>Id.—Contract Induced by Fraud—Evidence—Question for Jury.— Where there was some evidence tending to show that the contract by the plaintiff to buy the stock was induced by defendant’s fraud, and the evidence was conflicting as to whether the fraud was connected with defendant’s agreement to buy the stock, the court should have left the question to the jury under proper instructions.</p> <p>Id.—Erroneous Instructions—Fraud Bearing on Consideration.— After the-court had properly instructed the jury as to the insufficiency of plaintiff’s obligation to pay up his subscription to stock as a consideration, it was erroneous to instruct them, in effect, that the mere existence of the fact, if found by - them, that plaintiff was induced to buy the stock from the company solely by the fraud ‘ of the defendant, constituted a sufficient consideration for defendant’s subsequent contract to buy the stock, without providing for any finding as to the connection of the fraud with such contract.</p>

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

J. V. Coffey, Judge. The facts are stated in the opinion of the court. Further facts are stated in Estate of Dolbeer, 149 Cal. 227, [86 Pac. 695]. Darwin C. De Golia, Bart Burke, Charles J. Pence, and S. C. Denson, for Appellant.

<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>New Trial—Motion for Must be Prosecuted Diligently.—A motion for a new trial is an independent proceeding in an action, in which the burden of acting is at all times upon the moving party, and it devolves upon him to proceed with diligence.</p> <p>Ib.—Dismissal for Want of Diligence—Discretion.—A motion for a new trial may be dismissed for lack of due diligence in its prosecution, and the determination of the question as to whether there has been due diligence is one necessarily largely within the discretion of the trial court.</p> <p>Id.—Delay of Four Months in Settling Statement.'—An inexcusable delay for almost four months in having a proposed statement on motion for a new trial heard and settled, is sufficient to warrant the trial court in finding that the moving party had not proceeded with due diligence, and justifies it in dismissing the motion.</p> <p>Id.—Fixing Date for Settlement of Statement.—The right of the prevailing party to have a motion for a new trial dismissed on account of the failure of the moving party to prosecute it diligently by having the statement settled could not be affected by the action, of the court of its own motion or by the ex parte application of the moving party in fixing a day for the settlement.</p>

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

<p>Deformation of Deed—Mutuality of Mistake as to Description of Land-—Sufficiency of Proof—Conflict.—In an action to reform a deed for mutuality of mistake as to the description of the land, caused by the mistake of a draughtsman carried into the deed, giving the defendant about sixteen acres more land than was contemplated by the parties, although the proof of the mistake and its mutuality must be clear and convincing, yet a mere conflict in the evidence, does not necessitate a denial of the relief, but the court’s finding of the mistake and its mutuality, upon conflicting evidence, if well supported by sufficient evidence, will not be disturbed, notwithstanding the denial of the mistake by the defendant, who is seeking to hold more than he is justly entitled to.</p> <p>Id.—Erroneous Description by Metes and Bounds—Excess of Acreage—Specific and Different Valuations.—Though a description of land in a deed by metes and hounds conveys the legal title to all the land included therein, yet a court of equity is not precluded from reforming the deed so as to express the true intent of the parties, where there is an excess of acreage, and it is clearly shown, throughout, that the tracts and parcels of the land were not valued as a whole, but were specifically and differently valued in acreage valuation in accordance with the quality and location of the land.</p> <p>Id.,—Segregation of Land Erroneously Conveyed — Pleading and Proof.—Where the specific tract of land decreed to have been erroneously conveyed is supported by the complaint showing just what the error in the deed was, and the exact description of the land erroneously conveyed, and by the evidence clearly showing the specific acreage and its situs, as pleaded, the court properly decreed the reformation of the deed in relation thereto.</p> <p>Id.—Demand for Correction of Deed before Suit.—A sufficient demand for the correction of the deed before suit, is shown by a request for a correction deed, reconveying the property, made by the engineer and surveyor of the plaintiff upon the defendant, and its refusal by him, upon the ground that no mistake had been made.</p>

<p>Action to Redeem from Deed Intended as Mortgage—Parol Evidence—Sufficiency of Proof—Conflict—Review upon Appeal.— In an action to redeem from a deed absolute upon its face alleged' to have been intended as a mortgage, parol evidence is admissible-to prove such intention. Although the rule is that such evidence-must be clear and convincing to change the character of the deed, yet, whether the evidence offered is clear and convincing, is a question for the trial court; and where the plaintiffs’ evidence was sufficiently clear and convincing to satisfy that court, notwithstanding conflicting evidence to the contrary by numerous unimpeached witnesses for the defendants, its decision in favor of the plaintiffs is not subject to review upon appeal.</p> <p>Id.—Mortgage Indebtedness—Application for Loan—Request Acceded to—Implied Promise.—An indebtedness is essential to a mortgage, and where it appears that application had been made for a loan from defendants by the plaintiffs, and the defendants acceded to the-request, and the deed was intended to secure the same, it cannot, be urged that there was no direct evidence of a promise by plaintiffs ■ to repay the loan, as such promise is implied in fact as well as-in law.</p> <p>Id.—Lease—Rental Equivalent to Interest—Loan from Sister to-Pay Mortgage and Other Debts—Promise of Quitclaim.—Where the loan was from plaintiff’s sister to pay a mortgage on home-property and other debts, and the transaction was in the form of a deed, and a lease for a year at a rental equivalent to interest,, and a promise to reconvey if the principal loan was repaid within the year, and a promise of a quitclaim by plaintiffs, if unable to-pay, the intention being to avoid foreclosure proceedings, the promise to quitclaim shows an intention of plaintiffs to retain an equity which would not be lost by the mere failure to repay the loan within. the time specified in the lease; and the court properly held that, the transaction was in effect a mortgage to secure, the loan, and that plaintiffs wére entitled to redeem therefrom after the expiration of the lease.</p>

<p>Action to Foreclose Mortgage—Notice of Appearance Complete without Filing—Consent to Judgment—Filing Required only for Jurisdiction.—Where defendants in an action to foreclose a mortgage by deed were served with summons, and gave notice to the plaintiff of their appearance and consent to judgment, the appearance was complete when the notice thereof was served; and no particular time was required within which to file the same, the only object of filing the notice and consent being to give the court jurisdiction to render judgment against the defendants.</p> <p>Id.—Excusable Delay in Piling Notice and Consent—Bequest for Delay by Defendants.—Where the plaintiff delayed filing the notice of appearance and consent to judgment at defendants’ request, they hoping that the property would increase in value, and sanctioning sales by plaintiff at any time, the delay in filing the same until after three years was excusable.</p> <p>Id.—Death of One Defendant—Appearance of Co-defendant, and as Executrix by Attorney—Consent to Judgment—Trial—Submission—Error in Dismissal.—Where one defendant died before the stipulation was filed, and the co-defendant appeared by attorney for herself and as executrix of her deceased husband, and consented to foreclosure under stipulation against the docketing of any deficiency judgment, and the case was tried accordingly and submitted for decision, before a motion for dismissal was made, it was error for the court thereafter to dismiss the action under subdivision 7 of section 581 of the Code of Civil Procedure, for want of prosecution, on motion of a second mortgagee claiming under the defendants, and of a creditor of the estate of the deceased defendant, the defendants themselves being the only parties to the action.</p>

<p>Insane Persons—Liability for Care in State Hospital.—An action may be maintained by a state hospital by its treasurer, against an insane person confined therein under a regular order of commitment, who owns property, to recover judgment for his care, support, and maintenance, under the act of the legislature, known as the “Insanity Law,” approved March 31, 1897.</p> <p>Id.—Evidence—Regularity op Commitment—Collateral Attack— Preliminary Steps—Presumption.—Upon a collateral attack upon the order of commitment, in such action, made many years subsequent to the order, which shows upon its face that the examination was had while the insane person was before the judge at the hearing, it is unnecessary to prove the requisite preliminary steps, but it will be presumed in the absence of contrary proof, that such steps were regularly had.</p> <p>Id.—Name op Person Committed and Person Sued—Presumed Identity-—Difference in Spelling—-Idem Sonans.—Where the commitment was of “Emanuel Tasso,” and the person sued was “Emanuello Dasso,” and it appears that the difference in the given name was merely the difference between the English and Italian method of spelling, the court properly treated the surnames as idem sonans.</p> <p>Id.—Action Brought under Act of 1897 Unaffected by Repeal.— Where the action was brought under the act of 1897 it was unaffected by the repeal of that act pending suit, there being an express reservation of pending actions previously commenced, which must be prosecuted to final determination in the manner and form in which it was brought.</p> <p>Id.—Constitutional Law—Special Legislation as to Private Corporations—Public Corporations Unaffected.—The provisions of the constitution forbidding the organization of private corporations by special legislation are inapplicable to the formation of public corporations organized for governmental purposes, and which are state agencies, subject to the control and government of the state.</p> <p>Id.—Constitutionality of Insanity Act.—The Insanity Act of 1897 is constitutional and valid. The right conferred therein upon state hospitals to recover for the care and maintenance of insane persons confined therein, is not special or class legislation.</p>

<p>APPEAL from a judgment of the Superior Court of Sonoma County and from an order denying' a new trial. Albert G. Burnett, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Mandamus—Street-Bailroad Franchise—Discretion of City Council—Advertisement of Application.—Under the act of March 22, 1905, regulating street railroad and other franchises in counties and municipalities, the mayor and common council of a municipality have discretion whether or not to advertise an application for a street-railroad franchise, and to determine whether or not the franchise or privilege shall be granted at all, the only purpose of the act in this regard being to prevent the granting thereof in any other manner than that prescribed. Mandamus will not lie to control the discretion of the governing body of the municipality, as to whether they will advertise an application for such franchise.</p> <p>Id.—Writ of Mandate not Anticipatory.—A writ of mandate cannot be issued which shall be effectual only in the event that the inferior tribunal or board shall subsequently determine a matter then pending before it in a certain way. The act which will be compelled ■must be one to the performance of which the complaining party is entitled at the institution of his proceeding; and it is the refusal ■or neglect to perform an act which is enjoined by the law as a present duty, that serves as the foundation for the proceeding.</p>

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

<p>Title Insurance—Record Title—Tenure op Occupants Excepted—: Title by Adverse Possession not Insured against. :—Where a policy of title insurance, by its terms, only insured the record-title to the property, and expressly excepted the “tenure of the present occupants,” a title to a portion of the property acquired by adverse possession, is not insured against,' and constitutes no breach of the covenant of title set forth in the policy.</p> <p>Id.—Action for Breach op Covenant—Defects in Title—Title op Adverse Claimants Quieted—Trust-Deed by Stranger to IjrEcU ORD Title.—In an action to recover damages for alleged breaches o£ the covenants in such policy of title insurance, "for specified defects, in the title, there can be no recovery either for the expense of defending an action to quiet title in which adverse occupants of a portion of the property prevailed, nor can a deed of trust executed by a stranger to the record title, constitute a defect in the record title-insured against.</p> <p>Id.—Effect of Recording Act.—The provisions of section 1213 of" the Civil Code, that every conveyance of real property acknowledged, and recorded is from the date of recordation constructive notice-to subsequent purchasers and mortgagees, are inapplicable to a conveyance by one who is not in any manner connected with the-title of record.</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>Jesse W. Lilienthal, and J. E. Pemberton, for Appellant.</p> <p>McNab & Hirsch, D. M. Delmas, and Henry C. MePike, for Respondents.</p>

<p>■Writ op Beview—Order Directing Payment to Beceiver op Insolvent Bank—Final Adjudication—Bembdy by Appeal.—A writ of review will not lie to annul an order directing the payment of money by the plaintiff to a receiver of an insolvent bank, notwithstanding the claims of third parties to part of the funds who had been allowed to intervene, where the order, however erroneous, was in effect a final adjudication of the rights of all parties, an appeal from which will afford the petitioner for the writ an adequate remedy.</p> <p>Id.—Appealable Order in Excess op Jurisdiction.—An appealable order, even if in excess of jurisdiction cannot be reviewed in certiorari proceedings.</p>

<p>Libel—False Charge of Official Corruption Against Candidate for Re-Election—Privileged Communication no Defense.—The publication of a false charge against a candidate for re-election to office, that while in office he was guilty of official corruption, in soliciting and accepting personal benefits as a consideration to influence Ms officials acts, as a member of a city council, is libelous per se; and there is no privileged communication under the code, or general law, which will exempt the defendant publishing such charge, from responsibility for falsehood.</p> <p>Id.—Truth of Charge the Only Justification.—A libel is no more justifiable when published against a candidate for public office, than if published of him on any other occasion. Though the publication of the truth is justifiable; yet the publication of a.falsehood finds no justification whatever under the law. The law does not permit the character of those seeking position to be destroyed under any guise of privileged publication. One can justify the publication of a libel against a candidate for public office upon privilege, only by proof that the accusation is true.</p> <p>Id.—Error in Instructions—Privilege—Libelous Charge.—It was error to instruct the jury that the publication was privileged, where there was no evidence to sustain it, but the facts and circumstances connected with the publication negatived tne existence of such privilege. The question being one of law, it was the court’s duty, if requested, to instruct the jury that the publication was not privileged. The court also erred in refusing to instruct the jury that the article set forth in the complaint was libelous upon its face.</p> <p>Id..—Failure to Prove Plea of Justification—Aggravation.—The court also erred in refusing to instruct the jury that where the defendant reiterates the alleged libelous charges in his answer, and offers no evidence to prove their truth, if the jury were satisfied that it is made with a knowledge of its falsity and maliciously, and not in good faith, such plea of justification is an aggravation of the wrong done to the plaintiff, and may be considered by the jury in assessing damages.</p> <p>Id.—Question of Damages—Want of Malice—Erroneous Instruction.—There is" responsibility for actual and substantial damages for loss of reputation, etc., even where there is no actual malice. What the responsibility should be is a question for the jury under instruction explicitly declaring the rule under which it should be ascertained. It was error to instruct the jury, that “if an honest mistake is made in an honest attempt to enlighten the public it must reduce the damages to a minimum, if the fault itself is not serious, and. there should be no reasonable responsibility where there is no malice.”</p> <p>Id.—Errors in Evidence—Duty of Appellant—Absence of Reference to Transcript.—It is the duty of counsel for appellant properly to index the transcript, and to point out therein the rulings of the court objected to in the admissibility of evidence, upon which he relies as erroneous; and where he fails to enlighten the court in his argument, as to where the alleged errors may be found, it will be assumed that they were not deemed of sufficient importance to undertake the task; and this court will not assume the burden of doing it.</p>

<p>APPLICATION for Writ of Habeas Corpus to the Sheriff of Los Angeles County to test the validity of a conviction in the Justice’s Court of Los Angeles Township. E. E. Selph, Justice of the Peace.</p> <p>The facts are stated in the opinion of the court.</p> <p>Philaletha S. Miehelsen, and Gavin W. Craig, for Petitioner.</p>

<p>Action to Quiet Title under McEnerney Act—Grantor of Trust-Deed as Security.—The grantor of a deed of trust intended as security for a loan of money may maintain an action under the provisions of the act of June, 1906, entitled “An act to provide for the establishment and quieting of title to real property in case of the loss or destruction of public records,” where the plaintiff’s title is decreed subject to the provisions of the deed of trust.</p> <p>Id.—Legal Title in Trustee — Estate of Inheritance Left in Trustor.—The legal title under a trust-deed intended as security for a loan passes to the trustees solely for the purpose of enforcing the security according to its terms, but when the debt is paid the-legal title becomes vested in the trustor or his successors in interest,, and pending the existence of the security, the trustor retains an estate of inheritance, which may pass by devise or descent as-against all persons except the trustees and those lawfully claiming, under them.</p> <p>Id.—Deeds of Trust Provided for in Statute.—Under section 5 of the act of 1906, the provision that the affidavit shall set forth, among other things, “a statement of any and all subsisting mortgages, deeds of trust, and other liens,” unquestionably has reference to deeds of trust intended as security, and the legislature has thereby manifested its intention that the existence of such deeds of trust should not operate to deprive the trustor of his right to maintain the action.</p> <p>Id.—Possession Remaining in Trustor.—The right to bring the action is limited by section 1 of the act, to any person who is by himself or his tenant or other person in the actual and peaceable possession of the property. The trustor has such possession, under a deed of trust, which conveys no right of possession to the trustee; and the trustor may maintain the possession and right of possession of the property, until the execution of the trust, when the trust-deed is silent upon the subject.</p>

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

<p>Attorney and Client—Good Faith in Transactions Between.—In all dealings with his client the highest degree of fairness and good faith is required of an attorney, and the courts view all such transactions with suspicion and examine them with the utmost scrutiny, and if they present even a suggestion of unfair dealing, the burden of proof is on the attorney to show the honesty and good faith of the transaction and that it was entered into by his client freely and voluntarily. Tested by this rule, it is held that the evidence was sufficient to warrant the trial court in concluding that the honesty and good faith of the transaction involved herein had been shown, and that it had been entered into by the defendants freely and voluntarily.</p> <p>Homestead—Lands Held by Tenancy in Common.—In this state, land held by tenancy in common or joint tenancy cannot be selected or claimed as a homestead.</p> <p>Evidence—Questions Already Answered.—The refusal to permit a. witness to answer questions, the subject-matter of which had been, covered by her previous testimony, is not error.</p> <p>Id.—Exception Must be Taken to Exclusion op Evidence—Appeal.. :—The ruling of the trial court in excluding testimony of a witness cannot be reviewed on appeal where no exception to the ruling wa» reserved.</p> <p>Id.—Striking out Evidence—Grounds for Stated in Conjunctive.— Where a motion is made to strike out evidence on several grounds-stated in the conjunctive, it is not the law that the motion must, be denied unless all the objections are well founded.</p>

<p>Specific Performance—Adequacy of Consideration—Fairness of Contract—Pleading—Finding.—Specific performance of a contract for the conveyance of land cannot be had by a vendee where it is neither alleged nor proved that the vendor had received an adequate consideration for the contract, and that as to him it was just and reasonable, nor that facts exist which would justify the inference that such conditions existed. In the absence of such allegation and proof, a finding that the contract was fair and reasonable will not sustain a judgment decreeing specific performance.</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>