Volume 154 — California Reports

<p>Beal Estate Agents — Contract Authorizing Sales — Certificates of Clear Title — Street-Assessment Liens — Taxes.—Under a contract authorizing real estate agents to sell certain lots, and obligating the principal to furnish certificates of title that will show the lots to be clear of encumbrances, except building restrictions, “and such taxes that may be assessed but are not due and payable,” the principal was bound to furnish a certificate of title to the lot3 showing the same to be free from all liens except such state, county, and city taxes as were assessed but not due or payable, and to clear the property from all street assessments and to furnish certificates accordingly.</p> <p>ID. — Meaning of Word “Tax” — Ordinarily Does not Include Street Assessments. — While in the broad sense of the term the word “tax” may be construed to include special assessments made to pay for improvements upon streets or for the opening thereof, yet such is not the ordinary and usual meaning of the word. In the ordinary course of business, particularly among real estate dealers, that word is used to refer to ordinary taxes assessed upon property for state, county, or city purposes, and not to designate street assessments for public improvements.</p> <p>Id. — Obligation of Principal to Bemove Street-Assessment Liens— Estoppel after Lien Has Merged in Bond. — Where the principal had the opportunity, under the Bond Act (Stats. 1893, p. 33; 1899, p. 40), to discharge the assessment before the ten-year bonds had been issued therefor, and neglected so to do, he is estopped to set up his inability to discharge the liens for the bonds subsequently issued, as an excuse for non-performance of the contract on his part.</p> <p>Id. — Entire Contract to Sell Lots. — A contract authorizing and employing real estate agents to make sale within a time limited of forty-three lots at a separate pz-iee for each lot, for an aggregate specified commission, must be considered as an entire contract, where by its terms the agents are not entitled to anything except to a much smaller amount for advance commissions and discounts until the entire contract is performed, and there is no scale furnished by the contract whereby the whole amount they are entitled to for each lot can be apportioned.</p> <p>Id. — Breach oe Contract by Principal — Discharge oe Agents — Action eor Breaos. — Where the principal to such contract is under obligation, as sales of separate lots are made by the agents, to dear such lots from all street assessments and to furnish certificates of title accordingly, and he repudiates such obligation and disables himself from performance by suffering the accrual of bond liens for street assessments as to certain lots sold which could not be removed except with the consent of the bondholder, thus -preventing the agents from performing their part of the contract, such conduct amounts to the breach of a condition precedent to the performance by the agents and a wrongful discharge of the agents, and the contract being entire, the agents were entitled to sue upon the breach immediately and recover the entire damage resulting from it, without waiting for the time for full performance to lapse, and were not required to go on making sales of other lots and demanding certificates showing clear title.</p> <p>Id. — Measure oe Damages — Evidence in Mitigation. — If the agents elect to sue at once for such branch of the contract, they are entitled to recover the amount of compensation, if any, earned by them prior to the breach and remaining unpaid, and, in addition to this, the probable damages sustained by them by reason of the breach. Such damages are prima facie the whole amount of unearned compensation which they would have earned if allowed to carry out the contract; but the principal may reduce such amount of damages by showing affirmatively, the burden of proof being on him, that the agents will probably find similar employment during the remainder of the term fixed by the contract.</p> <p>Id.- — Conditional Withdrawal oe Repudiation by Principal. — Where the time of performance by the agents was limited by the contract to eighteen months from its date, during more than four months of which the principal persisted in so repudiating his obligation, with the result of preventing the completion of sales as to several of the lots, the subsequent offer of the principal to extend the life of the contract for a further period of four months, coupled with the assertion that he would not be bound to clear the title of street assessments but would do so or not at his pleasure, did not operate to remove the effect of his repudiation of his obligation under the contract.</p> <p>Id. — Measure oe Damages- — Probability oe Pereormance by Agent.— Under section 3300 of the Civil Code, the measure of damages for the breach of such contract by the principal is the amount which will compensate tbe agents for all detriment proximately caused thereby, or which in the ordinary course of things would be likely to result therefrom. The question whether or not the contract could have been performed by the agents, so as to entitle them to the full compensation provided for therein, was one of fact to be determined from the evidence, and in its determination the jury may proceed upon reasonable probabilities, and accept as sufficiently proved those results which, under like circumstances, generally come to pass.</p> <p>Id. — Agents’ Expenses in Mitigation. — In mitigation of damages, the principal is entitled to deduct from the contract price the amount which the agents would have had to expend in the future performance of the contract, and which they were excused from expending by reason of the principal’s breach and their election to treat the ■ contract as terminated.</p>

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

<p>APPEAL from a judgment of the Superior Court of Los Angeles County and from an order refusing a new trial. Waldo M. York, Judge.</p> <p>The facts are stated in the opinion of the court.</p> <p>The defendant had an equitable lien upon the property, which the plaintiff cannot divest in an action to quiet title. (Hunt v. Turner, 9 Tex. 385, 60 Am. Dec. 167; Nicoll v. Ogden, 29 111. 323, 378, 81 Am. Dee. 311; Pomeroy's Equity Jurisprudence, sec. 992; Stucker v. Yoder, 33 Iowa, 177; Carpenter V.’ Hathaway, 87 Cal. 434, 25 Pac. 549; Dupuy v. •Leavenworth, 17 Cal. 263; Bates v. Babcock, 95 Cal. 479, 29 Am. St. Rep. 133, 30 Pac. 605; Chapman v. Hughes, 104 Cal. 302, 37 Pac. 1048, 38 Pac. 109.) The contract was of such a nature that it could not expire by lapse of time. Time not being made of the essence of the contract, equity will not decree a forfeiture. (Civ. Code, see. 1492; Miller v. Cox, 96 Cal. 339, 31 Pac. 161; Daly v. Buddell, 137 Cal. 671, 70 Pae. 784; Steele v. Branch, 40 Cal. 3; Beverly v. Blackwood, 102 Cal. 83, 36 Pac. 378; Cleary v. Folger, 84 Cal. 316, 18 Am. St. Rep. 187, 24 Pae. 280; Martin v. Morgan, 87 Cal. 203, 22 Am. St. Rep. 240, 25 Pac. 350.) The plaintiff is estopped by his own acts from claiming that the contract was not. extended. (Steele v. Branch, 40 Cal. 3; Alexander v. Jackson, 92 Cal. 514, 27 Am. St. Rep. 158, 28 Pac. 593; Hanson v. Slaven, 98 Cal. 377, 33 Pae. 266; Mc-Crwy v. Pfost, 118 Mo. App. 672, 94 S. W. 998.) The contract and acts of the parties created a partnership in the land. (Gray v. Palmer, 9 Cal. 616; Carpenter v. Hathaway, 87 Cal. 434, 25 Pac. 549; Chapman V. Hughes, 104 Cal. 302, 37 Pac. 1048, 38 Pac. 109.) ■</p> <p>The contract did not create any interest in or lien on the land. (Hanna v. Flint, 14 Cal. 74; Holladay v. Frisbie, 15 Cal. 631; Price v. Sturgis, 44 Cal. 591; Heyn v. Philips, 37 Cal. 529; Byers v. Locke, 93 Cal. 493, 27 Am. St. Rep. 212, 29 Pac. 119; Snyder v. Wolford, 33 Minn. 175, 53 Am. Rep. 22, 22 N. W. 254; Michael v. Foil, 100 N. C. 178, 6 Am. St. Rep. 577, 6 S. E. 264; Lesley v. Eosson, 39 Miss. 386, 77 Am. Dee. 679; Huff v. Hardwick, 19 Colo. App. 416, 75 Pae. 593.) The contract did not establish the relation of partners between the parties. (Gleason v. White, 34 Cal. 258; Wheeler v. Farmer, 38 Cal. 203; Hanna v. Flint, 14 Cal. 73; Clark v. Emery, 58 TV. Va. 637, 52 S. E. 770; Sodiker v. Applegate, 24 TV. Va. 411, 49 Am. Rep. 252; Quackenbush v. Sawyer, 54 Cal. 439; Smith v. Schultz, 89 Cal. 526, 26 Pac. 1087; Vander-Jiurst v. DeWitt, 95 Cal. 57, 30 Pae. 94; Coward v. Clanton, 122 Cal. 451, 55 Pac. 147; Cadenasso v. Antonelle. 127 Cal. 382, 59 Pac. 765.)</p>

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

'APPEALS from a judgment of tbe Superior Court of Los Angeles County and an appeal from an order taxing plaintiff’s costs. Walter Bordwell, Judge. The facts are stated in tbe opinion of tbe court.

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

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

MOTION to dismiss an appeal from a judgment of the Superior Court of Orange County, and an appeal from an order refusing a new trial. Z. B. West, Judge. The facts are stated in the opinion of the court.

<p>Libel — Pleading Innuendo — Equivocal Publication. — In an action for libel, for the publication of an article in a newspaper which was upon its face equivocal and capable of a meaning injurious to the plaintiff, it is proper for the plaintiff, by way of innuendo, to allege in the complaint the injurious meaning which it was intended by the defendant, and was understood by the readers of the newspaper to convey.</p> <p>Id. — Publication When Libelous — Interpretation by Strangers. — It is sufficient to make a publication libelous if it is of such a character that persons unacquainted with the plaintiff and hearing of her for the first time through said article, reasonably would and do understand therefrom that she is a person of low character and guilty of improper and immoral conduct, the charge, so understood, being false and malicious. The fact that other persons who had a previous acquaintance with the plaintiff would not so construe the article is immaterial.</p> <p>Id.- — Whole Publication to be Considered. — A complaint for libel is sufficient if it appears from the article published and from the innuendo assigning its meaning that the article, as a whole, was false and scandalous.</p>

<p>APPEAL from a judgment of the Superior Court of San Diego County and from an order refusing a new trial. N. H. Conklin, 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 denying an application for letters of administration of the estate of a deceased person. N. H. Conklin, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

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

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

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

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

<p>Building Contract — Abandonment by Contractor — Payments in Excess oe Value oe Work — Bights op Lien Claimants. — Where a, valid contract in writing for the erection of a building has been executed and filed, and the work thereunder has been abandoned by the contractor before completion, the amount of the contract price applicable to the liens of other persons than the contractor is to be determined in accordance with section 1200 of the Code of Civil Procedure. Under that section, if the payments made by the owner pursuant to the contract amounted, at the time of the abandonment, to more than the value of the work and materials then done and furnished, estimated by the standard of the whole contract price, no part of the contract price is applicable to the payment of liens, and lien claimants must look to their personal claim against the contractor.</p> <p>Id. — Einal Payment not Applicable to Liens. — Under such circumstances, the final payment of at least twenty-five per cent of the contract price, which under section 1184 of the Code of Civil Procedure must be made payable not less than thirty-five days after the final completion of the contract, cannot be resorted to by the lien claimants.</p> <p>Id. — Liability cut Owner Generally Limited to Contract Price. — The general constitutional principle underlying the Mechanics’ Lien Law is that the liability of an owner, who has on his part complied with all the terms of a valid contract, is limited to the price which by his contract he has agreed to pay.</p> <p>Id. — Value oe Work and Materials, How Determined. — In determining the value of the work done and materials furnished up to the time of the abandonment, in order to comply with the provision of section 1200 of the Code of Civil Procedure requiring such value to be “estimated as near as may be by the standard of the whole contract price,” it is proper to consider not only the value of the work done at the time of abandonment, but also of that left undone. » So considered, the evidence is sufficient to sustain the finding that the payments made on account of the contract price exceeded the value of the work done and materials furnished at the time of abandonment.</p>

<p>APPEAL from a judgment of 'tbe Superior Court of Los-Angeles County and from an order refusing a new trial-Waldo M. York, Judge.</p> <p>The facts are stated in tbe opinion of the court.</p>

<p>APPEAL from an order of the Superior Court of Riverside County refusing a new trial. J. S. Noyes, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

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

APPEALS from a judgment of the Superior Court of Los Angeles County and from an order refusing a new trial. Waldo M. York, Judge. The facts are stated in the opinion of the court.

<p>District Agricultural Association — Deed of Land in Trust to Sell ob Dispose of — Sale foe Cash not Essential. — A deed of lots to a district agricultural association in trust, to be sold or disposed of by it to the best advantage for the purpose of improving its grounds and for the purpose of meeting the expenses of the trust, including the expenses of litigation, does not limit the power of disposition to a sale for cash. Under such deed the association has the power to convey a portion of the land in consideration of legal services performed and to be performed for it affecting tbe execution ' of the trust.</p> <p>Id. — Meaning of Word “Sell.”, — Though the word “sell” itself in transactions touching personal property usually has reference to a pecuniary or money consideration, yet courts have never hesitated to give the word a broader significance when the meaning of the law or of a private contract seemed to call for it, and the much more generally accepted definition of a sale is the exchange of an interest in real or personal property for money or its equivalent.</p>

<p>APPEAL from a judgment of the superior court of Los; Angeles County and from an order. refusing a new trial-N. P. Conrey, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

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

<p>Habeas Corpus — Prisoner Admitted to Bail — Return to Writ — Personal Attendance oe Oeeicer or Prisoner Unnecessary.— Since the amendment of 1903 to section 1476 of the Penal Code (Stats. 1903, p. 476), empowering the court or judge who directs the issuance of a writ of habeas corpus to admit the prisoner to bail pending the determination of the proceedings, it is unnecessary, on the return to the writ, in the ease of a prisoner so admitted to bail, for the officer who had the prisoner in custody to produce his body in court, or for the officer to attend court in person; nor is it necessary to confer jurisdiction on the court, that the prisoner should attend in person.</p>

<p>Estates of Deceased Persons — Decree of Distribution -— Omnibus Clause in Degree — Land not Particularly Described. — Where a petition for the distribution of the estate of a deceased person prays for the distribution of the residue of the estate remaining in the hands of the executor, and sets forth in its schedule certain parcels of real estate, a decree of distribution adjudging “that the residue of the estate hereinafter particularly described, and any other property not now known or discovered, which may belong to said estate, or in which said estate may have an interest,” be distributed to a particular person, passes title to lands of the decedent omitted from the particular description. Such a decree is not void for uncertainty of description, the general description being sufficient upon collateral attaek to include omitted lands which might be shown by evidence aliunde to have in fact belonged to the decedent at the time of his death.</p> <p>Id.- — Invalidity of Decree — Collateral Attack.- — On a collateral attack upon a decree of distribution, its invalidity or insufficiency in any respect must be made to appear on its face.</p>

<p>APPEAL from a decree of the Superior Court of Los Angeles County distributing the estate of a deceased person, and from an order refusing a new trial. James C. Rivers, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>APPLICATION for a Writ of Mandate directed to the Mayor of the City and County of San Francisco, and others.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Trust under Will — Invalidity Cured by Decree of Distribution— Conclusiveness of Decree. — Notwithstanding the invalidity of a trust attempted to be created .by a will, a final decree distributing the estate to trustees upon certain trusts is a conclusive adjudication of the validity of the disposition made by the testator, and is equally conclusive as an ascertainment and adjudication of the terms of the trust, and of the rights of all parties claiming any legal or equitable interest under the will.</p> <p>Id. — Decree Supersedes Will. — The decree of distribution supersedes the will and prevails over any provision therein which may be inconsistent with the decree. And in determining the rights of the distributees, the terms of the decree, and not those of the will, are to be considered.</p> <p>Id. — Distribution in Trust During Minority of Children — Bemainder to Widow — 'Vested Estate — Devolution of Estate on Death of Bemainderman. — Under a deeree distributing a residuary estate to trustees, in trust to manage, control, and care for the property during the minority of the testator’s children, “and then to go as follows,” to wit, one third thereof to the testator’s widow, etc., the words “to go” are clear words of direet devise, and the widow takes a vested estate in such one third, and upon her dying intestate during the minority of the children her interest passed to her heirs, subject to the trust and to the possession of her personal representatives for purposes of administration. The faet that her actual possession and control of her interest are postponed during the existence of the trust is immaterial.</p> <p>Id. — Express Trust in Beal Estate — Extent of Estate of Trustee. —Under section 863 of the Civil Code providing that “every express trust in real property . . . vests the whole estate in the trustees, subject only to the execution of the trust,” the estate which a trustee takes is not necessarily a fee, but only such estate as is required for the execution of the trust.</p>

<p>Bank Commissioners Act of March 24, 1903 — Constitutional Law — Sequestration of Property of Insolvent Bank — Action by Attorney-General. — Admitting the unconstitutionality of the provisions of seetion 10 of the Bank Commissioners Act of March 24, 1903, in so far as it attempts to authorize the bank commissioners, upon their own determination'that it is unsafe for a banking corporation to transact business, made without notiee, to take such control of the corporation and of its property and effects as is necessary to prevent waste or diversion, and to hold such possession pending determination of the action to be thereupon instituted, still the right of the attorney-general to bring an action under that act to obtain a decree declaring the corporation to be insolvent, and ordering it into involuntary liquidation, is not dependent upon the validity of the provisions as to seizure and sequestration of the property of the corporation by the commissioners. The commissioners are not required to take any possession or control of any property of the corporation as a condition precedent to a notification to the attorney-general of their determination that it was unsafe for the corporation to continue business sufficient to require him to immediately commence the action provided for by the act.</p> <p>Id. — Constitutional Question not Decided. — Whether the provisions, of section 10 of that act, providing for the seizure and sequestration of the property of the corporation, is or is not constitutional is not decided.</p> <p>Id. — Provisions of Civil Code Affected by All Subsequent Conflicting Laws. — Any provision of the Civil Code in force at the time of the adoption of the constitution is subject to a general law necessarily in conflict therewith subsequently passed, wherever that law may be placed, whether in one of the codes or in a separate act, and there is nothing implying the contrary in section 1 of article XXII of the constitution, declaring that all laws in force at the time of its adoption, not inconsistent therewith, shall remain, in full force and effect until altered or repealed.</p> <p>Id. — Bank Commissioners Act Applicable to All Banks. — The Bank Commissioners Act of March 24, 1903, is applicable to every banking corporation doing business in this state, whenever incorporated.</p> <p>Id. — Complaint in Action under Act — Allegation of Insolvency— Decision of Commissioners. — The complaint in an action under that act to have a banking corporation adjudged insolvent and to be ordered into involuntary liquidation, which alleged that the bank commissioners did unanimously find and determine that said corporation was insolvent and unable to pay its obligations from its own means as sueh obligations beeame due and payable in the ordinary course of business, and which further alleged the fact of its insolvency, sufficiently avers the fact that the commissioners had unanimously decided that “it is unsafe” for the bank “to continue business,” within the meaning of the act.</p> <p>Id. — Act Supersedes Insolvency Act. — Section 10 of the Bank Commissioners Act was intended, so far as banking corporations are concerned, to supersede the provisions of the general Insolvency Act, and to be applicable in all cases of insolvency of sueh corporations.</p> <p>Id. — Unanimous Decision op Commissioners — Vacancy in Oppice op One Commissioner. — Where there is a vacancy in the office of- one of the four bank commissioners provided for by the act, the remainder, constituting a -majority of the commission, in the absence of provision to the contrary, may exercise the powers and perform the duties allotted by the law, and may make the unanimous decision that “it is unsafe” for the bank “to continue business.”</p> <p>Id. — Title op Act Is Sufficient — Powers of Attorney-General.— The Bank Commissioners Act of March 24, 1903, which is entitled “An act creating a board of bank commissioners and prescribing their duties and powers,” in so far as it purports to give authority to the attorney-general to bring or proseeute the action to force a bank into involuntary liquidation, is not in conflict with section 24 of article IV of the constitution, in omitting to express in its title the duties, authority, or power of the attorney-general. The title of the act sufficiently expresses its subject and is sufficiently general in its scope.</p> <p>Id. — Appointment op Receiver Pollows Adjudication op Insolvency. —In such an action by the attorney-general, the court is expressly authorized to appoint a receiver by the terms of the act, in the event of a finding of the insolvency of the corporation, without any issue made by the pleadings in that behalf, and without any speeifie prayer for sueh relief, and without further notice. The act itself constituted full notice that sueh an appointment would be made in the event of a determination of insolvency by the court.</p>

<p>APPEAL from a decree of the Superior Court of Santa Barbara County distributing tbe estate of a deceased person. S. E. Crow, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

APPEALS from judgments of the Superior Court of San Diego County and from orders refusing new trials.- E. S. Torrance, Judge. The facts are stated in the opinion of the court.

<p>Annexation of Territory to Municipalities ■— Shape of Annexed Territory — Courts Cannot Interfere with Determination. .— Under the act of March 19, 1889 (Stats. 1889, p. 358), providing for the annexation of territory to municipalities, the question whether any particular territory of the shape, extent, and character fixed should be annexed to a municipality is purely political, for the exclusive determination of the voters of the municipality and of the territory sought to be annexed, and with the wisdom of such determination the courts have no power to interfere. They can only interfere where some substantial provision of the law has been violated, or where fraud was perpetrated in the matter of the boundaries or the extent of the annexed district.</p> <p>Id. — Annexation under Legislative Control. — The authority of the legislature to provide for the annexation of territory to existing municipalities is derived from section 6 of article XI of the constitution, under which it is left to the legislature to determine, by general laws, the mode in which either incorporation or annexation shall be accomplished.</p> <p>Id. — Limitations on Annexation — Contiguity to Other Municipalities. — Under the Annexation Act of March 19, 1889, there is no-limitation upon the size and shape of territory proposed to be annexed, its adaptability for municipal purposes, or its contiguity to another municipality except the limitation that no territory which forms any part of any incorporated city or town shall be annexed. The act neither expressly nor by any rule of construction prohibits the annexation of territory so as to make it contiguous to the boundaries of another municipality. On the contrary, the act, by providing for the consolidation of municipalities only when they are contiguous, contemplates an annexation of territory so as to-mate them contiguous.</p> <p>Id. — Consolidation of Municipalities. — Under that law a consolidation of municipalities cannot be effected without their consent, and if they consent no one has any ground to complain of the consolidation.</p> <p>Id. — Number of Votes for Annexation. — The voters of the territory to be annexed, together with the voters of the municipality, is the body to which the legislature has left the determination of the-matter of the annexation. In the present case, 213 votes cast in favor of the annexation, in the annexed territory, is a sufficiently fair and competent body to determine the matter.</p> <p>Id. — Special Election — Proceedings Determined by Legislative Act i — Charter op Municipality. — Annexation of territory to a municipality is not a municipal affair, as that term is used in the constitution, and the proceedings thereon, including all matters appertaining to the special election to determine the question, and the form and time of notice thereof, are controlled by the general aet of March 19, 1889, and not by conflicting provisions of the charter of the municipality to which the annexation is to be had.</p> <p>Id. — Manner op Ordering Election — Ordinance or Resolution. — The provision of the charter of the city of Los Angeles that all elections shall be ordered by ordinance, which shall be published ten days, ODly has relation to elections which are had entirely in the city, and has no application to an election for the annexation of territory to the municipality, which is held at once within and without the city. The Annexation Act does not provide any method by which the election shall be ordered, and the legislative body of the city might order it either by ordinance or by resolution.</p> <p>Id. — Publication op Notice op Election — Time op Notice — Opportunity por Registration. — -A notice of the special election to determine the question of annexation, which is published for four weeks prior to the election, in strict accordance with the Annexation Act, is sufficient. It is not required, by reason of the provision of section 1094 of the Political Code, that registration for any election shall cease for a period of forty days prior thereto, that notice of the special election should have been given long enough prior to such period of forty days so as to afford every qualified elector a reasonable opportunity to register in the interim.</p>

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

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

<p>APPEAL from a judgment of tlie Superior Court of Los Angeles County and from an order refusing a new trial. J. S. Noyes, Judge presiding.</p> <p>The facts are stated in tbe opinion of the court.</p>

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

<p>Homestead — Sufficiency of Description. — A description of the premises such as will serve to identify the property is essential to a valid declaration of homestead.</p> <p>Id. — Reference to Other Instrument. — Where the description is dependent for its sufficiency upon some other instrument, such as a map, the map, properly identified, must be produced, or in some manner established, or the description will fail. To make a sufficient description, however, it is not necessary that the deed should refer to a map actually of record.</p> <p>Id. — Adverse Possession of Homestead — Deed from Wife. — Where a husband,- by a deed in which the wife does not join, conveys the property on which a homestead has been declared to her, and she subsequently deeds the property to a third person, who immediately enters into possession, such possession so taken under the “deed from the wife, maintained for the statutory time and under statutory conditions, may ripen into a title by adverse possession.</p> <p>Id. — Homestead May Be Lost by Adverse Possession. — Adverse possession for the requisite time and character will extinguish a homestead.</p>

<p>Mechanics’ Liens — Lien on Threshing Machine — Action to Enforce not in rem — Effect of Judgment. — An action for the enforcement of the statutory lien on a threshing machine is not a proceeding in rem, except in the sense that the amount thereof can be collected only out of the property involved in the action, and is not a proceeding wherein a judgment for the sale of the property will bind the entire world, or affect the interest therein of any owner except those who are made parties defendant in the action.</p> <p>Id. — Lien when Exists — Employment by Person not Owner — 'Constitutional Law. — Under section 3061 of the Civil Code, one performing labor in and about the operation of a threshing machine and outfit, at the employment of one not the actual owner, but lawfully in the possession and operation of the machine under contract with the owner, can have and maintain against the property a lien for his services, and to this extent the actual ownership of the property by a person other than such employer is an immaterial circumstance. So construed, the statute is not open to any objection on the ground of violation of any constitutional right of the owner of the property.</p> <p>Id. — Owner Necessary Party to Enforcement of Lien against Him. —In such cases the owner places his property in the possession of another, knowing the purpose for whieh it is to be used by him, and knowing that the statute gives a lien for their services to those who may be employed in such use, and he voluntarily subjects it to such liens as are given by the statute. He, however, thus subjects it only to such claims as constitute liens under the terms of the statute, and is entitled to his day in court to contest the validity of any asserted claim. His interest in the property cannot be affected by a proceeding for such enforcement to whieh he is not a party.</p> <p>Id. — Owner not Privy to Purchaser under Contract for Sale. — The owner of a threshing machine, who has delivered the possession thereof to another to whom he has contracted to sell it upon payment of the purchase price, is not a privy to such other, so as to be bound by a judgment against him enforcing a lien on the property.</p> <p>Id. — Action by Owner to Becover Possession from Sheriff — Judgment against Purchaser not Justification.: — In an action by the owner of such threshing machine to recover possession thereof from the sheriff, an answer by the latter, setting up a right to the possession under the judgment and order of sale based thereon, in favor of the lienors, rendered in the action to which the owner was not made a party, constituted no defense. And a complaint in intervention in sueh action, filed by the lienors, which was based entirely on the foreclosure judgment, and which showed on its faee that the foreclosure action had been dismissed as to sueh owner, failed to state facts showing the interveners to be entitled to the possession as against the owner. If sueh complaint in intervention had contained allegations showing that the interveners had in fact, independent of the judgment, a lien on the property for their services, and the owner had thus been given an opportunity to contest the interveners’ claim, it is possible that the property might have been held subject to the judgment, so far as sueh judgment was warranted by the evidence given on the trial in support of such allegations.</p> <p>Id. — Dismissal of Owner from Action to Foreclose Lien — Judgment. —Where such owner was originally made a party defendant to the action for the foreclosure of the lien and answers therein without asking any affirmative relief, the plaintiff had the absolute right before the trial to dismiss the action as to such owner, whether the latter consented to such dismissal or not. Upon such dismissal being had, the owner ceases to be a party to the aetion and is not affected by the judgment rendered therein. The owner, after being dismissed from the action, was under no obligation to intervene for the purpose of presenting any defense it may have had.</p> <p>Id.- — Services not Connected with Threshing Outfit. — Section 3061 of the Civil Code does not give a lien on a threshing outfit for services rendered in and about a steam-engine, while it was being used for other purposes than as a part of sueh outfit.</p> <p>Id. — Default by Purchaser — Termination of Contract by Seller— Possession by Sheriff. — The owner of a threshing machine, who has delivered the possession thereof to another to whom he has contracted to sell it, under an agreement which gave him the right to terminate the contract and retake the property upon default in the payment of the purchase price, may exercise his right of terminating the contract after the sheriff had taken possession of the machine under a judgment against the purchaser.</p> <p>Findings when Insufficient. — A general finding “that all the material denials, and averments of the answer to the complaint herein are true, and all the material averments of the amended complaint in intervention are true,” is insufficient for any purpose.</p>

<p>Election Contest — Office of Superior Court Judge May Be Contested. — Unclex section 1111 of the Code of Civil Procedure, providing for a contest of the right of any person declared elected to an office “to be exercised” in a county, city and county, city, or any political subdivision of either, the offiee of judge of the superior court is a proper subject of contest.</p> <p>Id. — Promise not to Qualify as Judge — Ineligibility of Candidate.— A promise by a candidate for the office of judge of the superior court not to qualify or enter upon the discharge of the duties of such office, if elected, for the purpose of creating a vacancy in the offiee, does not render the candidate ineligible to the office, within the meaning of subdivision 2 of section 1111 of the Code of Civil Procedure, or within the meaning of any other statutory or constitutional provision.</p> <p>Id. — Illegal Votes — Motive of Voters. — Votes cast for such a candidate with knowledge of such promise and for the purpose of preventing the filling of the offiee, are not “illegal votes,” within the meaning of subdivision 4 .of that section, authorizing a contest “on account of illegal votes.” The legality or illegality of a vote, cast by a qualified elector in the form prescribed by law, does not depend upon the motive or purpose which may have actuated him.</p> <p>Td. — Promise not to Qualify Unlawful Inducement to Voters — ■' Purity of Elections Act — Contest..—Such a promise, made by a candidate for the office of superior judge, is inhibited by section 19 of the act of February 23, 1893, to promote the purity of elections (Stats. 1893, p. 12), which makes it unlawful for any person to offer to pay “any money or other valuable consideration,” to induce any voter to vote in a particular way, and is a ground of contest under that act of the right of such candidate, if elected, to hold the offiee.</p> <p>Id. — Vacancy in Office — Appointment by Governor — Pleading.—The fact that the failure on the part of the person elected to qualify would result in a vacancy, which could be filled by the governor’s appointment, does not affect the illegality of the promise, nor its sufficiency as a basis for contesting the election. And where the petition on the contest avers that the promise was made to induee the electors to vote for the respondent, and that it did induee them to so vote, it cannot, on demurrer, be presumed that the contrary is the faet.</p> <p>Id. — Judgment on Contest — Minority Candidate Cannot Be Declared Elected. — On a contest of the right of the person so elected to bold the office of superior 'judge, he having received the highest number of legal votes at the election, the court has no authority, under section 1123 of the Code of Civil Procedure, to render any further judgment than one annulling the election. It has no power to declare elected a candidate who did not receive the highest number of the legal votes.</p> <p>Id. — Failure or Person Elected to Qualify.. — The failure of such candidate to qualify does not affect the right of an elector to maintain a contest.</p>

<p>APPEAL from a judgment of the Superior Court of Santa Barbara County and from an order refusing a new trial. James "W. Taggart, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>APPEAL from a judgment of the Superior Court of Placer County and from an order refusing a new trial. J. E. Prewett, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

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

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

<p>Agency for Purchase of Land — Excessive Purchase Price Paid to Agent — Action to Recover — Rescission.—-Where an agent buys land for his principal and fraudulently represents to him that the purchase price was an amount in excess of the sum actually paid by the agent, an action by the principal against the agent to recover the portion of such excess as was paid to him in money and to cancel a note given for the balance is not one for the rescission of the contract of purchase, and the principal as a condition precedent to maintaining the action is not required to return the land.</p> <p>Id. — Finding as to Agency- — Conflicting Evidence. — In sueh an action, where the evidence as to the existence of the relation of principal and agent between the parties is conflicting, a finding that the agency existed will not be disturbed.</p>

<p>MOTION to dismiss appeals from orders of the Superior Court of the City and County of San Francisco refusing to set aside a probate homestead, or exempt personal property, or to grant a family allowance. Frank H. Kerrigan, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

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

<p>Appeal — Obder Vacating Default not Appealable. — An order setting aside a default in an action where no judgment has been entered upon the default is not the subject of a separate appeal.</p>

<p>Extension oe Corporate Existence — Constitutional Law — Legislature Cannot Extend or Authorize Corporations to Extend.— Section 7 of article XII of the constitution of 1879, providing that “the legislature shall not extend any franchise or charter, nor remit the forfeiture of any franchise or charter, of any corporation now existing, or which shall hereafter exist, under the iaws of. this state,” prohibits the legislature not only from enacting any law, general or special, extending the term of existence of any or all corporations, bnt also from enacting any general law under which corporations may themselves extend such period.</p> <p>Id. — Act on March 17, 1907, Unconstitutional. — The Act of March 17, 1907, purporting to amend section 401 of the Civil Code (Stats. 1907, p. 344), so as to permit corporations theretofore or thereafter formed and existing under the laws of the state, at any time prior to the expiration of the term of its corporate existence, to extend such term to a period not exceeding fifty years from the date of such extension, is in conflict with section 7 of article XII of the constitution, and therefore invalid.</p> <p>Id. — Corporation Solely Creature oe Legislature. — A corporation is purely a creature of the law and can exist only by permission of the state, and the legislative department of the state government is the only department empowered to form corporations or authorize their formation, or prescribe or extend their term of existence, and, except in so far as it is limited by constitutional provision, the power of the legislature in this regard is absolute.</p> <p>Id. — Extension not Authorized by Section 1 or Article XII oe Constitution. — Section 1 of article XII of the constitution, besides prohibiting the formation of corporations by special law and declaring that they may be formed under general laws, does no more than to expressly reserve the power to the legislature, in general terms, to alter or repeal any law then in force or thereafter enacted concerning corporations. It does not authorize the legislature to enact general laws under which corporations might extend their own charters.</p> <p>Id, — Constitution How Construed. — If the language used in a constitutional provision plainly and unequivocally shows a certain and definite purpose to be accomplished thereby, it is the duty of the courts to so construe it as to carry that purpose into effect.</p>

<p>Divorce — Final Judgment — Order for Support of Children — Execution Under Order — Discretion.-—Under section 685 of the Code of Civil Procedure, where a valid order has been made after final judgment in an action of divorce requiring the husband to pay to the wife at stated intervals a sum of money for the support, education, and maintenance of their minor children, the court has power, at any time after the entry of the order, to order execution to issue for the amount unpaid. The mere fact that the wife has • allowed ten years to elapse without making any effort to compel payment does not show any abuse of discretion by the court in ordering execution to issue.</p> <p>Id. — Appeal prom Order Refusing to Vacate Allowance — Collateral Attack — Jurisdiction.—A subsequent motion by the husband to vacate the order for the allowance to the wife and the order directing execution to issue thereon, is a collateral attack and on an appeal from an order denying such motion the appellant is limited to the single contention that the court, in making the order of allowance, exceeded its jurisdiction, and that, in consequence, the order itself is void.</p> <p>Id. — Subsequent Order for Support of Children by Divorced Husband. — Where a court had, in the year 1891, made a decree of divorce in favor of a wife, awarding to her the custody of the minor children, but making no provision for their support by the husband, it retained power, under section 138 of the Civil Code as it then read, after the time for appeal from the decree had passed, to make an order requiring the divorced husband to pay for the future “support, education and maintenance” of said children.</p> <p>Id. — Jurisdiction of Court after Final Judgment. — When the superior court has made a decree of divorce which has, by lapse .of time, become final, and has not, in the decree itself, reserved jurisdiction to make a supplemental decree, its only power to make further orders affeeting the property rights of the parties is that declared in sections 138 and 139 of the Civil Code.</p> <p>Id. — Modification of Decree as to Maintenance of Children.— Where the divorce is granted for an offense of the husband, and the decree requires him to provide for the maintenance of the children or the support of the wife, the court may at any time, under section 139 of the Civil Code, modify the order making provision for such maintenance or support. This section does not, however, authorize the making of any order after final judgment where the decree itself contains nothing on the subject of maintenance of children or support of wife.</p> <p>Id. — Jurisdiction to Make Subsequent Order for Support of Children. — Section 138 of the Civil Code, as it stood in 1891, is not so limited. It authorizes action by the court before or after judgment, and where an order is made after judgment, the right to make it exists whether or not the subject of the additional order was touched upon in the decree. Section 138 does not assume to deal with allowances for the support of the wife, and sueh allowance cannot be made by order subsequent to the decree of divorce where the decree itself contains no provision regarding the wife’s support.</p> <p>Id. — Order May Require Payments of Money for Support of Children. — The power to give directions for the “custody, care and education” of the children of the marriage vested in the court by section 138, involves the right, not merely to declare who shall have the custody, and what shall be the nature of the care and education of the children, but also, by necessary implication, to require the payment by one of the parties, of sueh sums as may be necessary in properly carrying out the objects contemplated by the statute.</p> <p>Id. — Terms of Order — Support, Education, and Maintenance. — The power conferred on the court by section 138 of the Civil 'Code to give directions, after final judgment, for the “custody, care and education” of the children, authorizes the court to make an order requiring payments to be made for their future “support, education and maintenance,” and an order couched in sueh terms is valid and within the jurisdiction of the court. It is not necessary that such order should give separate specific directions regarding the manner of such custody, care, or education.</p> <p>Id.' — Section 138 of Civil Code to be Liberally Construed. — Section 138 of the Civil Code is designed for the protection of the children and should be liberally construed,</p>

<p>Corporations Organized in Foreign States — Individual Liability of Stockholders — Presumption as to Foreign Laws — Pleading.— In an action against stockholders of a corporation organized under the laws of a foreign state, but which carried on its business in California, to enforce their alleged individual liability, under the laws of California, for the debts of the corporation incurred in doing business in this state, it will be presumed, in the absence of allegations as to the laws of such foreign state, that its laws are the same as the laws of California, and the defendants, if they rely upon an exemption of individual liability under the laws of the foreign state, must allege such law in their answer as an affirmative defense.</p> <p>Id. — Exemption as Defense .to Liability — Evidence and Finding in Avoidance. — Where the defendants in their answer allege an exemption of individual liability under the constitution of the foreign state, such allegation is deemed to be controverted by the plaintiff, and permits him to offer proof, without pleading the same, of any affirmative matter in avoidance of such defense. Under such pleadings it was permissible for the plaintiff to show, and for the court to find in support of a judgment for the plaintiff, that the corporation was organized under the general corporation law of the foreign state for the purpose and with the intention of doing business in California.</p> <p>Id. — Appeal from Judgment on Judgment-Boll — Fact Assumed to be in Issue. — Where an appeal is upon the judgment-roll alone, or where it appears that no objection was made to the admission, of evidence of a fact, and the trial was had upon the theory that the fact was in issue, the objection that the finding of fact was outside of the issues will not be considered on appeal.</p> <p>Id. — Foreign Corporation Organized to do Business in California— Individual Liability of Stockholders. — Where the articles of incorporation of a foreign corporation declare that it was the purpose of the corporation to do business in California, the stockholders are liable individually to the creditors of the corporation for debts incurred by the corporation in doing business in California, in accordance with the laws of that state on that subject.</p>

<p>Criminal Law ,— Practicing Dentistry without License — Act of March 23, 1901, Is Constitutional, — The act of March 23, 1901 (Stats. 1901, p. 564), entitled “An act to insure the better education of practitioners of dental surgery, and to regulate the practice of dentistry in the state of California, providing penalties for the violation hereof, and to repeal an act now in force relating to the same and known as ‘An act to insure the better education of practitioners of dental surgery, and to regulate the practice of dentistry in the state of California, approved March 12, 1885,’ ” is constitutional. The title of the act is not defective.</p> <p>Id. — Amendment of Judgment of Conviction — Clerical Error. — Where a defendant had been informed against for practicing dentistry without a license, and had been convicted of that offense and judgment rendered against him, an erroneous reeital in the entry of judgment that the defendant had been convicted of practicing medicine without a license is a mere clerical mistake, and the court may amend it to make it conform to the fact. Such an amendment is not the rendition of a second judgment.</p> <p>Id. — Municipal Police Court — City Jail Place of Imprisonment.— Under the act of the legislature relative to the city of Oakland, the place of imprisonment of those convicted of any offense within the jurisdiction of the police court is the city jail.</p> <p>Id. — Information for Practicing Dentistry without License — Exceptions Need not Be Negatived.; — An information for the offense defined in subdivision 10 of section 19 of the act of March 23, 1901, is sufficient if it in effect alleges that the defendant was guilty of “practicing dentistry in the state without a license.” It is not necessary that'the information should allege, in line with the proviso or exception contained in section 1 of the act, that he did not have the lawful right to praetiee at the time the act was passed, or any fact or facts tantamount thereto. If the defendant had such right, that fact is a’matter of defense.</p> <p>Id. — When Exceptions Must Be Negatived. — In a complaint, indictment, or information it is only neeessary to allege facts showing that an accused does not come within exceptions or provisos contained in the statute upon which the prosecution is based when the exception is so incorporated with and becomes a part of the enactment as to constitute a part of the definition or description of the offense.</p> <p>Id. — Persons to Whom Act Is Applicable. — The offense defined in subdivision 10 of section 19 of the act of March 23, 1901, of practicing dentistry in the state without a license, is not limited only to those who first commenced practice in the state after the passage of the act.</p> <p>Id. — Habeas Corpus — Discharge — Evidence that Defendant Was within Excepted Class. — A defendant, after being convicted of . the offense of practicing dentistry in this state without a license, cannot, in proceedings on habeas corpus, be discharged by showing that he had the legal right to practice dentistry under the laws of this state at the time of the passage of the act of 1901. Such a defense should have been made on the trial.</p>

<p>Criminal Law — No Appeal Lies prom Order Refusing to Postpone Trial. — No appeal lies by a defendant in a criminal prosecution from an order denying his motion for a postponement of the trial. Such order is reviewable on appeal from the judgment, but to be reviewed it is necessary to incorporate the motion, evidence, and ruling in a bill of exceptions.</p> <p>Id. — Murder—Proof of Corpus Delicti — Confession of Defendant.— On a trial for murder, the prosecution must offer evidence tending to prove the corpus delicti, and the want of such evidence cannot be supplied by proof of extra-judicial confessions or admissions of the defendant. In the present ease, the evidence is held sufficient to fully establish the corpus 'delicti, without considering any statement of the defendant.</p> <p>Id. — Order- of Proof.- — While it is ordinarily the proper practice to show the corpus delicti, before introducing evidence of any statement of the defendant, a mere variation in the order of proof would not be prejudicial to the defendant.</p> <p>Id. — Garments on Body of Deceased — Change in Condition — Skull— Evidence. — The garments found on the body of the person killed, although not in the same condition as when taken from the body, are admissible in evidence, when such changes as may have taken place are fully explained. The same rule applies to the admission in evidence of the skull of the deceased.</p> <p>Id. — Instructions as to Intention — Assault With Deadly Weapon. —In a prosecution for murder, in which the evidence tended to show that the deceased was killed through the instrumentality of a pistol fired by the defendant, it is proper to instruct the jury as follows: “A person must be presumed to intend to do that whieh he voluntarily and willfully does in fact do, and must also be presumed to intend all the natural, probable and usual consequences of his own acts. Therefore, when one person assails another violently with a dangerous weapon, likely to kill, and which does in faet destroy the life of the party assailed, the natural presumption is that such assailant intended death, or other great bodily harm, and in the absence of evidence to the contrary, the presumption must prevail. The willful use of a deadly weapon without excuse or provocation, in such a manner as to imperil life, generally indicates a felonious intent.”</p> <p>Id. — Motive Not Indispensable to Conviction — Instructions.—In such a prosecution, it is not error to instruct the jury that “proof of motive is not indispensable to a conviction.”</p> <p>Id. — Murder in First Degree — Conviction of Second Degree — Instructions.- — An erroneous instruction as to the definition of murder of the first degree is without prejudice when the defendant was convicted of murder of the second degree.</p> <p>Id. — Construction of Instructions. — In determining whether or not the law was properly declared for the guidance of the jury, the court should look, not to one isolated excerpt from the instructions, but to the charge as a whole.</p> <p>Id. — Instruction Assuming Fact of Killing. — In a prosecution for murder, where the charge to the jury, taken as a whole, repeatedly and correctly instructed them as to every element of the crime necessary to be proved beyond a reasonable doubt in order to warrant the conviction of the defendant, an isolated instruction that “in determining the intention of the defendant at the time of the transaction complained of, it is important to consider the means used to accomplish the killing,” and “the intent or intention is manifested by the circumstances connected with the offense, and the sound mind and discretion of the accused,” cannot be construed as containing an intimation that if there had been a killing, it had been done by the defendant.</p>

<p>Specific Performance — Uncertainty of Description — Aid from Extrinsic Pacts. — Where the description of the land agreed to be sold in a written contract is too uncertain in itself to admit of a specific performance of the contract, aid may be had from extrinsic facts to render it certain.</p> <p>Id. — But One Tract Owned by Vendee Answering Description. — A description of land in a written contract of sale as “56 x 155 feet to an alley, on the east side of Broadway between Sixth and Seventh streets, in the city of Los Angeles, Cal., and being a part of lot seven (7) in block 17, Ord’s survey,” while in itself too uncertain to warrant a specific performance, may, under appropriate pleadings, be made certain by evidence that the vendor owned but one piece of land which could possibly answer the description given in the contract, and that the pieee owned did answer such description.</p> <p>Id. — Mortgage to Secure Purchase Price — Uncertainty as to Covenants. — A contract for the sale of land, which provided for a mortgage to be executed by the purchaser at the time of the conveyanee of. the land, to secure payment of part of the purchase price, and which definitely fixed the amount of the notes to be secured, the rate of interest they were to bear, the time they wore to run, and the rebate to be allowed for payment of taxes by the mortgagor, is not rendered so uncertain as to prevent its specific performance merely because it did not state what covenants the mortgage was to contain.</p> <p>Id. — Delivery of Contract — Constructive Delivery. — The principles laid down in section 1059 of the Civil Code, that “though a grant be not actually delivered into the possession of the grantee, it is yet to be deemed constructively delivered in the following cases: 1. Where the instrument is, by the agreement of the parties at the time of execution, understood to be delivered, and under such circumstances that the grantee is entitled to immediate delivery; or, 2. Where it is delivered to a stranger for the benefit of the grantee, and his assent is shown, or may be presumed,” are equally applicable to any contract. Tested by these principles, the evidence is held sufficient .to sustain the finding of the delivery of the contract of sale in the present case.</p> <p>Id.- — Delivery to Agent of Vendor. — A vendor under a contract for the sale of land may make her own agent a custodian of the contract for the benefit of the vendee, so that a delivery of the contract to such agent will operate as a delivery to the vendee.</p> <p>Id. — Fraud—Inadequacy of Price — Evidence.—Upon a review of the evidence, it is held to sustain the findings that the contract in question was not obtained by fraud, and that the agreed purchase price was not inadequate.</p> <p>Id. — Time Not Essence of Contract — Default of Vendee. — Where time is not made of the essence of a contract for the sale of lands, and by its terms the parties mutually agreed to perform their respective agreements “on or before May 13” of a specified year, the vendee is not in default in failing, by a few minutes, to comply with the demand of the vendor that he perform by a certain hour on the 26th of April.</p> <p>Id. — Removal to Federal Court — Dismissal by Plaintiff — Judgment Not Bar to-Subsequent Action. — Where an aetion for the specific performance of a contract for the sale of land, originally brought in a state court, is removed by the defendant to the circuit court of the United States on account of the diverse citizenship of the parties, and thereafter, while a demurrer to the complaint therein was pending and undecided, the plaintiff: voluntarily obtains a dismissal of the aetion by the federal eourt and the entry of a judgment of dismissal, such judgment is not a bar to á subsequent aetion in the state court upon the same cause of action.</p>

MOTION to dismiss an appeal from the Superior Court of Mendocino County settling the final accounts of an administrator of the estate of a deceased person. Emmet Seawell,. Judge presiding. The facts are stated in the opinion of the court.

<p>Trust — Agreement to Develop Water-Bights Acquired by Appropriation — Confidential Belations of Associates. — Where an appropriator of water, while his rights thereto are still in existence, conveys the same in pursuance of an agreement with his grantees that they will act in concert and harmony with him and assist him in carrying on a large water enterprise which he had conceived and brought to their attention, and to that end would cause a corporation to be formed to take over the property, all the parties to the agreement become, in effeet, copartners in the enterprise of inaugurating and carrying out the proposed scheme, and occupy confidential relations each to the other, and the grantees of the water-rights are trustees of their grantor and of the partnership.</p> <p>Id. — Subsequent Appropriation by Some of the Associates — Place of Diversion. — Where the purpose of the original appropriator in posting his notices was to obtain water from a certain river and to divert it to a point where it would be practicable to carry it from the river into a particular canal, and to use such canal as a part of the proposed scheme to carry water to lands proposed to be irrigated, the exact point at which the diversion was to be made is immaterial, and sueh grantees, by making a subsequent appropriation of the same water, at a place slightly different from that where the original notices were posted, under the supposition that the rights under the original appropriation had lapsed, cannot absolve themselves from their liability as such trustees.</p> <p>Id. — Action to Enforce Trust — Identity of Schemes — Evidence.—In an action by the original appropriator against his associates and a corporation subsequently organized by them which was engaged in carrying out substantially the water scheme originally contemplated, to charge them as trustees and for an accounting, evidence is admissible to show that certain properties and leasehold interests acquired and used by the defendants were identical with those proposed to be acquired under the original scheme. Evidence was also admissible in regard to the extent, size, and value of sueh property, for the purpose of showing the magnitude of the original scheme, and the reasons for the desire of the original appropriator to obtain assistance therein, and also to show notice to the corporation defendant of rights of the plaintiff.</p> <p>Id. — Corporation Formed to Carry out Scheme. — The fact that the corporation organized by the individual defendants to carry out their scheme, differed in name from that intended to be originally formed, is immaterial.</p>

<p>Public Highways — -Unlawful Obstruction — -Liability of Person Causing.- — -An individual who erects an unlawful obstruction to the free use of a highway, in its nature a nuisance, by reason of his wrongful act, is charged in law as an insurer against accident to a person properly traveling the highway and meeting injury by reason of such unlawful obstruction.</p> <p>Id. — Obstructions Under Authorized License. — Where the highway is obstructed under license and by authority, the person responsible for the obstruction is chargeable only with ordinary care to see that the obstruction does not become a cause of injury to any person lawfully traveling the highway.</p> <p>Id. — Public Work Done by Private Contractor — Negligence of Contractor — Liability of Superintendent of Streets of Municipality. — Where public work is being done on the streets of a municipal corporation by a private contractor under contract with the municipal authorities, the responsibility of the contractor for negligence in the prosecution of the work is unquestioned, and the responsibility of the street superintendent is determined by the provisions of the General Street Law. (Stats. 1885, p. 160, secs. 22, 23.)</p> <p>Id. — Obligation to Erect Guards and Place Lights — Sufficiency of Question of Pact. — In the exercise of the due care to prevent injury by obstructions in the streets of a municipality, which the General Street Law imposes upon the contractor and the superintendent of streets, an obligation arises to erect guards and place lights. When erected, the sufficiency of these barriers or lights or other warning signals is a question of fact for the jury’s determination.</p> <p>Id. — Obligation to Beplace Safeguards After Bemoval. — If a person whose duty it is to so guard all obstructions lawfully placed in a public street as to prevent danger to persons using such street for travel in the exercise of ordinary care, performs his duty in that regard by the use of a proper light or otherwise, and the guard, after being properly placed, is removed without fault on such person’s part, and a traveler is thereby injured before sufficient time has elapsed for such person, in the exercise of ordinary care, to discover such removal and remedy it, then he is not liable.</p> <p>Id. — City Authorities May Avail Themselves of Safeguards Erected by Contractor. — If a suitable warning or barrier has been erected by the contractor in the performance of the work, it relieves the city or other authority from the necessity of taking like precaution, and the city or other responsible person may avail itself in its defense of the barriers or lights suitable in themselves and properly placed by the contractor.</p> <p>Id. — Findings as to Insufficiency of Safeguards.- — The finding that no suitable light or warning had been erected on the obstruction in question, is held sustained by the evidence. It would require a clear case to justify an appellate court in holding such a finding to be unsupported by the evidence.</p> <p>Id. — Individual Liability of Street Superintendent — Notice of Obstruction Need Not Be Personal — Notice to Deputy.- — Under the General Street Law (Stats. 1885, sees. 22, 23), notice of the obstruction in the public street and of the lack of lights thereon, need not necessarily be given personally to the superintendent of streets, in order to render him individually bable for injuries caused thereby. It is sufficient to create such liability that the defect was permitted to exist for the period of twenty-four hours or more after notice thereof given at the office of the superintendent during his absence therefrom and during office hours, to his deputy in charge of the office.</p> <p>Id. — Obstruction Merely Incidental to Work of Contractor. — In an action against the superintendent of streets, on account of his failure, after knowledge that the contractor was obstructing the street, to see that proper precautions were taken to abate the obstruction, or to warn the public of the danger of its presence, it is immaterial whether the obstruction was rightfully or wrongfully in the street, or whether it was qr was not a necessary incident to the work being done by the contractor.</p>

<p>Trust — Legal Title Taken for Benefit of Several Purchasers— Voluntary Trustee — Statute of Limitations. — Where the legal title to a tract of land purchased by several associates is taken in the name of one of them, in trust to be disposed of and the proceeds divided among the associates, the grantee becomes a voluntary trustee, and as to him the statute of limitations does not commence to run until he has made a repudiation of the trust.</p> <p>Id. — Death of Voluntary Trustee — Successor Becomes Involuntary Trustee — Running and Bar of Statute of Limitations. — Upon the death of such grantee, the person in whom the legal title vested boeame an involuntary trustee, upon whom was imposed no duty except to preserve and protect the trust property and to account to the beneficiaries for it and to turn over to them their share of it; and the statute of limitations commenced to run against such beneficiaries immediately on the death of the grantee, and the bar of the statute became complete upon the expiration of four years thereafter. No disaffirmance of the trust on the part of the successor was necessary to set the statute in motion.</p> <p>Id. — Repudiation of Trust. — In this state no repudiation of an implied or a constructive trust — as an involuntary trust always is — is necessary to set the statute of limitations in operation.</p> <p>Id. — Neither Administrator nor Guardian Can Change Nature of Trust — Promise of Minor. — Neither the administrator of the estate of the deceased voluntary trustee, nor the guardian of a minor upon whom the title to the trust property devolved, had any authority, by recognizing the existence of the trust, to change the relation of such minor to the property from that of an involuntary to that of a voluntary trustee. Nor did the promise of such minor to make an accounting when he attained his majority accomplish it.</p> <p>Id. — Oral Recognition of Trust. — No oral recognition of the trust by the successor to the property would operate to change his relation from a constructive to an express trustee.</p>

<p>APPEAL from a judgment of the Superior Court of Tulare County and from an order refusing a new trial. W. B. Wallace, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

M. T. Allen, Judge. The facts are stated in the opinion of the court. The facts established by the findings bring the case within the rule laid down in Katz v. Walhinshaiv, 141 Cal. 116; 99 Am. St. Rep. 35, 70 Pae. 663, 74 Pac. 766; McClinioch v. Hudson, 141 Cal. 281; 74 Pac. 849; Cohen v. La Cañada Land and Water Co., 142 Cal. 437; 76 Pac. 47.

<p>Irrigation District — Unused Lands or Held in Trust. — An irrigation district, organized under the act of March 7, 1887, generally known, as the Wright Act, and the Bridgeford Aet amendatory thereof,, (Stats. 1897, p. 263), is a public corporation, and the legal title to all lands of the district, including lands which, because of a change in its plans, have become unnecessary to its irrigation scheme, is-held in trust by the district, and such lands are dedicated and set apart to the uses and purposes specified in the act. The beneficial title is in the owners of the land within the irrigation district.</p> <p>Id. — Unused Lands Exempt prom Execution. — Under such aets, the-trustees of the district have no power to sell the lands which have become unnecessary to and are not used in its irrigation scheme,, and such lands cannot be sold on execution at the instance of a. judgment creditor of the district.</p> <p>Id. — Estoppel op District. — The irrigation district is not estopped! from enjoining the attempted sale of such lands on execution by any remissness of duty on the part of the trustees in failing to pay the-judgment under which the execution was issued.</p>

<p>APPLICATION for a Writ of Mandate against the Superior Court of the City and County of San Francisco. J. Y. Coffey, Judge.</p> <p>The facts are stated in the opinion of .the court.</p>

APPEALS from judgments of the Superior Court of the City and County of • San Francisco. Thomas F. Graham, Judge. The main facts are stated in the opinion of the court, rendered in Department One, April 28, 1908.

<p>Criminal Law — Obtaining Monet bt False Pretenses — Cashing of Check.- — In a prosecution for obtaining money under false pretenses, the fact that the money was obtained by the defendant is: sufficiently shown to sustain a conviction by evidence that the prosecuting witness gave a check therefor to the defendant, and further uncontradieted evidence indicating that such cheek had been cashed in the usual course of business.</p> <p>Id. — Fully Developed Mines — Instructions.—In such' a prosecution, where the false representations consisted in the statement that certain mines, in which the - prosecuting witness was induced to invest, were “fully developed,” it is not erroneous for the eourt to instruct the jury that, under the circumstances of the case, “a fully developed mine is a deposit of metals or minerals whose underground works or developments are of such an extent and nature as to permit, of the extraction of the metals and minerals therein contained with profit without further waste work.”</p> <p>Id. — Instructions Need Not Be Repeated. — The refusal to give a requested instruction is not error, if the proposition covered thereby is. included in other instructions given by the court.</p> <p>Id. — Witness Present at Time of Representation — Belief in Statements. — In such a ease, where a witness testified that she was present at the time the alleged false representations were made to the prosecuting witness, and at that time had herself paid a certain sum of money for stock in the mines, questions asked her on cross-examination by the defendant to ascertain whether or not she herself believed the representations, are immaterial and properly excluded.</p> <p>Id. — Evidence of Similar Representations — Intent.—Evidence that the defendant, prior to the transaction in question, had made substantially the same representations to other persons in an endeavor to sell to them stock in the company owning the mines, is admissible-to show that the representations were not inadvertent, but were de- ■ liberately made, with knowledge of the facts, and with intent to-deceive.</p> <p>Id. — Assayer’s Certificates — Evidence.—Certificates of an assayer, the-correctness of which are not shown, are inadmissible in evidence to. establish the value of the ore from the mines, and the same is so of the testimony of the proprietor of an assaying establishment as to assays there made, which were not made by him or under his supervision, and not under such circumstances that he had any personal knowledge whether they were correct or not.</p>

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

<p>Ejectment — Action by Lessee for Benefit of Lessor — -Verification of Complaint by Lessor Showing Title — Lessor Bound. — In an action by a lessee brought for the benefit of the lessor, who verified the complaint showing her title to the premises, the lessor is bound by the action as having been brought to determine her title, and by any judgment which might be rendered therein.</p> <p>Id. — Right of Recovery by Tenant in Common — Benefit of Cotenants — Adverse Possession. — The lessor as a tenant in common, with other owners, had the right to recover the possession of the whole premises, if at all, and such recovery would inure to the benefit of all other tenants in common, so as to prevent the defendant from acquiring title against them by adverse possession pending the action.</p> <p>Id. — Expiration op Lease — Substitution op Successor to Whole Title. — After the expiration of the lease, the court properly allowed the substitution of a plaintiff who had succeeded to the whole title of all the tenants in common, including that of the lessor whose title was represented in and bound by the original action.</p> <p>Id. — Right op Successor to Resultant Damages. — In case of recovery in the action by the successor to the title, the resultant damages for the value of the use and occupation during the period of the unlawful detention are properly awardable to him.</p> <p>Id. — Equitable Defense — Fraud of Predecessor in Title — Judgment in Separate Suit — Statute op Limitations — Effect in Ejectment. — When the defendant had originally pleaded as an equitable defense to the ejectment suit, the fraud of the predecessor in title of the lessor in imposing upon him a fraudulent deed for less property under an alleged contract for the purchase of the whole property sued for under which the purchase money therefor was alleged to have been paid, and instead of trying the equitable defense, instituted a separate suit to enforce the contract on the ground of the alleged fraud against all claimants of title in which the action was defeated under the statute of limitations, the effect in the ejectment suit is the same as if the same matter had been set by cross-complaint in ejectment, and adjudged to be barred by the statute of limitations.</p> <p>Id. — Plea of Prescriptive Title under Contract of Sal® — Payment in Full — Vendee Not Estopped. — The rule that a vendee cannot dispute the vendor’s title applies only while the contract remains executory on his part, but when he has paid the purchase money in full, his possession under the contract is adverse to the vendor, and he may plead and prove a prescriptive title acquired against the vendor by adverse possession under the contract for the requisite period before suit commenced, and it was error to disallow sufch proof.</p> <p>Id. — Testimony Showing Fraud in Aid of Prescription under Written Contract. — The circumstance that in aid of the prescriptive title under the written contract, the testimony shows the fraud of his vendor, which was adjudged against him as a separate equitable defense, cannot preelude Ms recovery under the separate plea of adverse possession under the contract as a written instrument. Such testimony was admissible to show the character and circumstances of his entry into possession under the written contract and of Ms continued possession thereunder after entry, and it was error to exclude it.</p> <p>Id. — Proof op Contents op Lost Contract — Parol Evidence. — After proof of the loss or destruction of the written contract, the defendant was entitled to prove its contents by parol evidence.</p> <p>Id. — Action Pending in Old District Court — Jurisdiction oe Superior Court.: — When an action of ejectment properly commenced in the old district court was pending in a particular county when that court was abolished,, the superior court of that county has jurisdiction to hear and determine the action, regardless of the aetual location of the land, and the substitution of an owner as plaintiff cannot affect the jurisdiction or require the transfer of the trial of the case to the county in which the land is situated.</p>

<p>APPEAL from a decree of the Superior Court of Alameda County making final distribution of the estate of a deceased person. T. W. Harris, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Mortgage — Acquisition op Pee by Mortgagee — Merger.—Under ordinary eireumstanees, where the holder of a mortgage acquires the estate of the mortgagor, the mortgage interest is merged in the fee and the mortgage is extinguished. This is the ordinary legal effect of the transaction, and ordinarily the intention is presumed to accord with the act accomplished.</p> <p>Id. — Merger Does Not Take Place as Against Junior Mortgage.— The foregoing rule is never applied where there is an intervening lien on the property, whieh it is to the interest of the purchaser to keep on foot, and where there is no evidence, direct or circumstantial, of an express intention to extinguish the first mortgage and hold subject only to the second. In such a case the legal title and first mortgage lien will he considered as separate interests whenever necessary for the protection of the just rights of the purchaser.</p> <p>Id. — Senior Mortgagee Purchasing Pee — Not Liable to Junior Lien-holders por Bents and Profits. — A mortgagee in possession under a deed of the equity of redemption from the mortgagor is not liable as mortgagee in possession to account to junior lienholders for rents and profits received after the time he took possession under the deed.</p> <p>Id. — Mortgagee Succeeds to Bights of Grantor. — By virtue of his deed, such mortgagee succeeds to all of the rights of his grantor in the land, including the right to remain in possession thereof and enjoy the use and profits until legally 'dispossessed, occupying the same position in this regard that the grantor would have occupied had he not conveyed, or that any purchaser not holding a senior mortgage would have occupied. He is in possession solely as the owner of the property subject to the existing mortgages, and there is no liability to account to any one for the value of the use and occupation thereof.</p> <p>Practice — Amendment After Close of Case. — It is within the discretion of the trial court to permit an amendment to an answer to be made, and testimony to be given thereon, after the ease has been closed and the arguments of counsel had commenced, if it deemed the amendment to be in the interest of justice, and the adverse party is afforded an opportunity to meet the amendment and the new testimony with such evidence as it desired to present.</p>

APPLICATION to prove certain exceptions alleged to have been taken at the trial in the Superior Court of Los Angeles County. W. IT. Jamison, Judge. The facts are stated in the opinion of the court.

<p>Resulting Trust — Payment of Half Price of Land. — When one who pays only one half of the price of land purchased from a third person takes the whole title in Ms own name, a trust results in an undivided one half of the land in favor of another who has paid the remaining half of the purchase money.</p> <p>Id. — Mortgage Taken from Trustee — Knowledge of Trust. — A mortgage taken from the trustee, holding the legal title, without knowledge of the trust, is not subject thereto; but if taken with knowledge of the trust is subject to the rights of the beneficiary, and its lion is subordinate to the trust.</p> <p>Id. — Action by Administratrix of Deceased Mortgagee to Quiet Title — -Foreclosure Sale — Knowledge by Mortgagee — Succession to Trust.; — In an action by the administratrix of the deceased mortgagee to quiet title obtained under foreclosure of the mortgage by her, in which the grantee of the deceased beneficiary of the trust set up a cross-complaint alleging the trust, and knowledge thereof by the mortgagee, if such trust and knowledge is shown, the title obtained by the administratrix in her representative capacity under such foreclosure, must be held by her as successor of the trustee in trust for the grantee of the beneficiary, free from the mortgage lien.</p> <p>Id. — Administratrix Purchasing Without Notice Not Protected. —If the mortgagee had notice of the trust in his lifetime, when he took the mortgage, the mere purchase by the administratrix for the benefit of the estate of the title acquired under foreclosure of the mortgage by her, without knowledge of the trust on her part, cannot make her an innocent purchaser, nor discharge the land from the trust.</p> <p>Id. — Burden of Proof upon Grantee of Benefioiary. — The grantee had the burden in such case to prove that the beneficiary made payment toward the price of the mortgaged land, and that the mortgagee had knowledge thereof when the mortgage was taken.</p> <p>Id. — Clear Proof of Resulting Trust — Conflicting Evidence as to Relative Value of Land — Presumption.—When the evidence clearly shows a resulting tr-ust by substantial contribution by the beneficiary toward the purchase of the mortgaged land, notwithstanding conflicting evidence as to the relative value of the land contributed, and as to whether plaintiff’s land equaled a full half of the purchase money, the payment of part thereof raises the presumption that a trust was intended.</p> <p>Id. — Erroneous Exclusion op Evidence op Notice. — It was prejudicial error to exclude evidence offered by the grantee of the beneficiary to prove that the mortgagor prior to the mortgage notified the mortgagee that the beneficiary owned one half of the land and that he held half of the title in trust for her, and that the mortgagee was satisfied to take his half as security for the money loaned.</p> <p>Id. — Mortgagor a Competent Witness to Prove Notice. — The mortgagor, who was not a party to the action to quiet title, was a competent witness to prove that he gave to the mortgagee notice of the facts constituting the trust held by him, notwithstanding the apparent execution of the mortgage by him upon the whole land. Neither the beneficiary nor her grantee were estopped by the mortgage, and the grantee was entitled to the benefit of such evidence of notice to the mortgagee.</p> <p>Id. — Deed to one Party no Rebuttal op Resulting Trust — Parol Evidence. — The deed to one of the parties does not tend to rebut the resulting trust. Such a deed always attends a resulting trust from contribution to purchase money; and parol evidence is admissible to explain the deed to this extent.</p> <p>Id. — Laches not Applicable to Resulting Trust. — The doctrine of laches applicable to a constructive trust, can have no application to a resulting trust, where the title is taken in trust by agreement in consideration of the payment of a part of the purchase money.</p> <p>Id. — Non-Existence op Trust — Finding against Evidence. — Held, that the finding that no trust ever existed was contrary to the evidence, whieh is clear and uncontradieted that the beneficiary paid part of the price of the land.</p> <p>Id. — Subrogation to Rights op Prior Mortgagor by Mortgagee not Involved. — Held, that no claim of subrogation by the mortgagee to the rights of a prior mortgagor is involved in the ease, as presented, under the pleadings, and that no such claim was asserted in the foreclosure suit, or in this suit, and it constitutes no bar to a judgment enforcing the trust, nor a defense to the cross-eomplaint, as the pleadings stand.</p>

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

<p>PETITION for a Writ of Certiorari to review a judgment of the Superior Court of the City and County of San Francisco convicting the petitioner of a contempt of court.</p> <p>The facts are stated in the opinion of the court.</p>

APPLICATION on Habeas Corpus to be discharged from an imprisonment on account of the petitioner’s refusal to comply with an order directing him to pay alimony. The facts are stated in the opinion of the court.

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

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

<p>Criminal Law — Plea of Guilty of Murder — Conversation between Defendant and Attorney not Part of Record. — Where a defendant pleaded guilty to a charge of murder of the first degree and was sentenced to death, a conversation which took place in the courtroom between himself, the attorney then representing him, and another person who was afterwards substituted as one of his attorneys, is no part of the judgment or of the minutes of the court, and a motion to amend the judgment or minutes by the insertion of such conversation is properly denied.</p> <p>Id. — Motion to Vacate Judgment — Collusion between Attorneys— Fear op Mob. — A motion to vacate such judgment on the ground of alleged collusion between the defendant’s attorney and the district attorney, whereby material facts bearing on the degree of the offense were suppressed, and on the further ground that the defendant was induced to enter the plea of guilty through fear of mob violence, is properly denied, when the evidence introduced at the hearing of the motion, although somewhat conflicting, fails to establish the truth of either of such grounds.</p>

<p>APPEAL from a judgment of the Superior Court of Plumboldt County. G-. W. Hunter, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

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

<p>Public Nuisance — Obstruction or Public Street1 — Removal or Buildings. — The continued occupation and obstruction of a public street by private buildings is a continuing public nuisance which no lapse of time can legalize. Such a nuisance may be abated by the public authorities, and the buildings removed.</p>

<p>Appeal — Review of Sufficiency of Evidence. — The right of appellants to have the sufficiency of the evidence to sustain the findings reviewed upon appeal from an order denying a new trial, is wholly independent of the fact that the appeal from the judgment was not taken within sixty days, and cannot be affected by the failure of the appellants to move to set aside the judgment under sections 663 and 663% of the Code of Civil Procedure, upon the ground that the facts found do not support the judgment.</p> <p>Injunction — Boycott by Labor Unions — Finding against Evidence —Combination and Conspiracy to Intimidate — Question of Law. : — In an action to enjoin labor unions and their members from boycotting plaintiff’s business, in which plaintiff recovered, — it is held, upon appeal, that a finding to the effect that defendants as individuals and as members of defendant association entered into a combination and conspiracy to injure, coerce, and intimidate the plaintiff, in order to subject its business to their control and management, is against the evidence, except in a qualified sense, and when properly understood it presents a question of law materially different from that arising upon its literal terms.</p> <p>Id.' — Lawful Combinations of Laboring Men. — Laboring men and labor unions formed by them, if not bound by any contract to continue work, and not forbidden by statute, and who use no unlawful means, may lawfully combine for their own protection, and may pledge themselves not to work for any employer of “non-union” men and not to handle any material supplied by the employer, and not to work for any contractor dealing with the employer.</p> <p>Id. — Employment of Journeyman Tinner — Befusal to Comply with Union Bules — Master’s Card Disallowed — Stock in Corporation. — The employment of a journeyman tinner by plaintiff corporation, at journeyman’s wages, who refused to take a journeyman’s card under the rules of the Tinners’ Union was properly treated by defendants as the employment of a “non-union man.” His claim of a “master’s card” at a less rate, as an employer, because owning five shares of stoek in the plaintiff corporation was properly disallowed by the union. is.</p> <p>Id. — Stockholdership Immaterial — Corporation Sole Employer.— A stockholder in a corporation, however large his holding, is not, in legal contemplation the employer of persons working for the corporation, which is a person distinct from its members, and is the only employer in the case. Nor can the holder of a minute fraction of the stock of the corporation for which he is working \ ' be deemed Ms own employer in any substantial sense.</p> <p>Id. — Use of Word “Unfair” — Technical Meaning. — The use of the word “unfair” in relation to an employer of “non-union” men, “declared unfair,” and in notices to others not to deal with an employer “declared unfair” is clearly shown to have only a teehnieal meaning as to such employment, clearly understood by all parties, merely imputing a condition upon which “union men” will not work for or deal with such employer, and not as importing any fraud, breach of faith, or dishonorable conduct on his part.</p> <p>Id.- — Combination to Secure Eavorable Conditions for Labor not a Conspiracy. — A combination of union men, the object of which is to secure higher wages, shorter hours, and more favorable conditions generally than employers of labor may be willing to concede, notwithstanding in so far as it may be successful, employers might suffer a corresponding loss, does not constitute the same a “conspiracy.”</p> <p>Id.- — -“Conspiracy” Defined. — A conspiracy is a combination of two or more persons to accomplish by concerted action a criminal or unlawful purpose, or a lawful purpose by criminal or unlawful means.</p> <p>Id. — Bad Motive of Lawful Actiqn Immai erial. — Where workmen have a legal right to quit work, their mere motive or reason in so doing cannot be questioned. A bad motive does not convert an act, otherwise lawful, into a ground of action.</p> <p>Id. — Peaceable and Lawful Strike. — In ease of a peaceable ordinary strike, without breach of contract, and conducted without violence, threats, or intimidation, the acts of the workingmen being entirely lawful, their motives must be held immaterial.</p> <p>Id. — Technical Trespass not a Ground for Injunction. — A technical trespass committed by the business agent of the labor council, in entering upon the premises of the plaintiff, for the purpose of calling the men out ou lawful strike, in the absence of any threatened repetition of the act, is not a ground for an injunction.</p> <p>Id. — Injunction Limited to Threatened Injury — Notices to Contractors Complete Before Suit not a Ground.. — Notices sent to the contractors employing union men who were dealing with plaintiff, that plaintiff had been declared unfair, which had been completely delivered to them before suit, even if supposed to be without justification, cannot .sustain the injunction, which only applies to threatened injury, and has no application to wrongs which have been completed, and for which the injured party may obtain redress by action at law.</p> <p>Id. — Right to Notify Contractors — Withholding of Patronage.— The union men had the right to notify contractors, employing union men, having dealings with their employer whom they have declared unfair for employing non-union men, that their employer has been so declared; and to withdraw patronage from such contractors as continue to deal with such employer. Such notices and withdrawal of patronage afford no ground for equitable relief.</p> <p>Id. — Violation of Contracts by Contractors — Defendants not Responsible. — The notices to the contractors being lawful and in effeet importing that if they continued to deal with sueh employer, they must do so with non-union men, the fact that some of them violated their existing contracts with such employer, cannot be deemed a wrong caused by the defendants. It was a matter for which the contractors are alone responsible to such employer.</p> <p>Id. — Jurisdiction of Equity-Injunction Relative to Work— Threat. — Equity has no jurisdiction to enjoin men from not working either for the defendant or for those dealing with him, when they have the legal right to quit work; and their threat not to work for any patrons or customers dealing with the plaintiff, affords no ground for equitable relief.</p>

<p>Bescission — Sale of Stock of Corporation — False Bepresentations —Indebtedness of Corporation — Sales—Net Profits. — In an action to rescind the sale to plaintiff by defendant of two hundred and fifty shares of stock in a corporation for misrepresentations as to the amount of its indebtedness, the amount of monthly sales, and the rate of net profit on sales, when it .appears that the misrepresentation of the amount of the indebtedness is material to the-value of the stock sold at par to the extent of nearly three dollars per share, the rescission is principally justified on that ground.</p> <p>Id. — Single Material Bepresentation Sufficient. — A single material misrepresentation knowingly made, with intent to influence another into entering into a contract, will if believed and relied upon by the-other, afford as complete ground for rescission, as if it had bden, accompanied by a multitude of other false representations.</p> <p>Id. — Support of Findings — Material Misrepresentation as to Indebtedness Affecting Value of Stock. — It is immaterial whether1 the findings as to false representations as to monthly sales and rate of profits are or are not supported by the evidence, if it appears that the evidence is amply sufficient to sustain the finding as to the materially false representation in regard to the indebtedness of the corporation affecting greatly the value of the stock sold at par.</p> <p>Id. — Reliance on Statement as to Indebtedness — Books Not Showing Statement. — Where it appears that plaintiff before purchasing the stock, looked over the books of the corporation, and was then informed by defendant that neither he nor the corporation kept any books showing the amount of its indebtedness, the plaintiff was justified in relying upon the defendant’s statement as to such indebtedness.</p> <p>Id. — Right of Purchaser to Rescind — Showing as to Value of Stocks. — It is not essential to the right of the purchaser to rescind the contract for the sale and purchase of the stoek, that he should be able to show that the property purchased was worth less than he paid for it. It is enough that he was induced by false representations to buy property which would if the representations had been true, have been worth more than it was actually worth.</p> <p>Id. — Offer to Restore Stock — Tender Before Suit — Admission of Pleadings — Indorsed Certificate Included. — An allegation of the complaint not denied that plaintiff before suit offered to transfer to defendant the two hundred and fifty shares of stoek purchased and tendered the same to him, in effect alleges that plaintiff offered to do everything necessary to restore the stock, including the delivery of an indorsed certificate necessary to accomplish the transfer.</p> <p>Id. — Form of Judgment Following Complaint — Appeal from Order Denying New Trial — Objection Not Tenable. — The fact that the form of the judgment followed the admitted allegation of the complaint cannot be made a ground of objection on appeal from an order denying a motion for a new trial.</p> <p>Id. — Delay in Rescission — Finding Against Unreasonable Delay— Question for Trial Court. — When the whole delay between the purchase and the rescission for the alleged fraud was only a few days over two months, and it appears that some delay may be properly attributable to evasive answers of the defendant when questioned as to outstanding bills, the question as to whether the delay was reasonable under the facts of the particular case, was properly one for the trial court, and when it cannot be said that its finding that the plaintiff’s delay was not .unreasonable, is against the evidence, its finding will not be disturbed.</p>

<p>Will — Bules of Construction — Insufficient Designation of Beneficiary. — A will must be so construed as to give every expression some effect, rather than so as to make any expression inoperative. If, in applying a will, it is found that no person exactly answers the description of the beneficiary, any omission in such description must be corrected if the error of omission appears from the context or from extrinsic evidence.</p> <p>Id. — Extrinsic Evidence to Identify Beneficiary — Wife of Nephew Construed to Mean Divorced Wife. — Where a testator by his will left a legacy to the wife of a specified nephew, who had no wife either at the time of the execution of the will or at any subsequent time prior to the death of the testator, the identity of the person intended by the testator under the designation of his nephew’s wife may be established by extrinsic evidence; in the present case, the divorced wife of such nephew is held to be the person intended as beneficiary.</p>

<p>APPEALS from a judgment of the Superior Court of Los Angeles County. George H. Hutton, Judge.</p> <p>The facts are stated in tbe opinion of the court.</p>

<p>Estate or Deceased Person — Family Allowance — Delay in Application.. — A widow does not lose her right to a family allowance from the estate of her deceased husband by delaying her application therefor for more than three years after the issuance of letters of administration on his estate.</p> <p>Id. — Insolvent Estate — Allowance eor Limited Period — Time oe Commencement. — Where an application for a family allowance from an insolvent estate is granted more than three years after the issuance of letters of administration, with a specific direction that it should continue for but one year, the fact that it was directed to commence from the time of the death of the deceased, instead of from the time letters of administration were granted, as required by section 1466 of the Code of Civil Procedure, is an immaterial irregularity.</p> <p>Id. — Eight Not Aeeected by Loan to Widow. — A widow’s right to an order for a family allowance is not affected by the fact that a former administrator, without authority, had loaned her sums of money belonging to the estate which she had never repaid.</p>

<p>Deed fob Illegal Trust — Legal Title Eemains in Grantor. — If a deed of land to trustees fails by reason of tbe illegality of tbe trust, tbe legal result would be that no title passed out of tbe grantor. The title would not pass to tbe grantees divested of tbe trust.</p> <p>Id. — Constructive Trust in Favor of Those Paying Consideration.— Under such circumstances, tbe legal title would remain in tbe grantor, charged with a resulting trust in favor of those who bad contributed the consideration for tbe deed.</p> <p>Id. — Grant to Trustees of Unincorporated Association. — A valid grant may be made to trustees for an unincorporated voluntary association, such as a tribe of Indians living in a communal state, and a title so conveyed will descend in perpetuity.</p>

<p>Divorce — Mother Cannot Forfeit Bight of Children to Support by Bather. — While a wife may abandon or forfeit her own claims to be supported by or from the estate of her divorced husband, she cannot forfeit or abandon the rights of her children to such support.</p> <p>Id. — Modification of Decree — Custody and Maintenance of Children. — Where by a deeree of divorce the custody of the minor children was given to the defendant husband, “subject to the further order of the court,” and he was “required to maintain and educate them,” the court rendering the decree has the power subsequently to award the custody of the children to their mother, and to order the husband to pay a monthly allowance for their maintenance.</p> <p>Id.- — Jurisdiction of Court to Order Modification — Application for Letters of Guardianship in Another Court. — The superior court of the county in which the original decree of divorce was rendered does not lose jurisdiction to so modify its decree, by the faet that in the mean time the children had been removed by their father to another county, and that at the time of the modification an application for letters of guardianship of their persons was pending in the latter county for the sole purpose of sheltering and harboring the children until some permanent arrangement could be effected for their care and custody.</p>

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

Angeles County and from an order refusing a new trial. W. P. James, Judge. The facts are stated in the opinion of the court.

<p>Community Property Acquired Prior to March, 1889 — Presumption. —Prior to the adoption of the amendment of March 19, 1889, to section 164 of the Civil Code, the presumption was that property conveyed to either husband or wife after their marriage by a conveyance other than a deed of gift was community property, and this presumption could be overcome only by a showing that the property was in fact acquired by the spouse in such a way as to make it separate property under the provisions of sections 162 and 163 of the Civil Code. In the absence of such a showing the presumption was controlling.</p> <p>Id. — Effect of Amendment of March 19, 1889 to Section 164 of Civil Code — Amendment Not Betroactive. — The amendment of Mareh 19, 1889, to section 164 of the Civil Code, changing this presumption by adding to the section the words “but whenever any property is conveyed to a married woman by an instrument in writing, the presumption is that the title is thereby vested in her as her separate property,” and providing that such presumption should be conclusive in favor of a purchaser or encumbrancer in good faith and for a valuable consideration, is not retroactive, and has no application to property acquired by husband or wife before its enactment.</p> <p>Id. — Amendments of March 3, 1893, and March 4, 1897; — Statute of Limitations. — Neither the amendment of March 3, 1893, to section 164 of the Civil Code, consisting of the addition of the following words: “And in eases where married women have conveyed real property, which they acquired prior to May 19, 1889, the husbands, or their heirs or assigns, of said married women shall be barred from commencing any action to show that said real property was community, or to recover said real property from and after July 1,1894”; nor the amendment of March 4, 1897, whieh made the amendment of Mareh 3, 1893, applicable to future as well as past conveyances, and provided that as to future “conveyances” the action must be commenced within “one year from the filing for reeord in the recorder’s office of such conveyances,” purport to change the presumption arising out of a conveyance made to a married woman prior to May 19, 1889, when the amendment of March 19, 1889, took effect. Both of such amendments are simply statutes of limitation.</p> <p>Id. — Amendments Not Applicable to Mortgage by Married Woman. —Neither the amendment of March 3, 1893, nor the amendment of March 4, 1897, has any application to a case where the married woman has simply purported to mortgage property as security for a debt. A mortgage is not a conveyance within the meaning of section 164 of the Civil Code as so amended.</p> <p>Id. — Mortgage by Administrator of Deceased Wife — Sheriff’s Deed —Running of Statute against Husband. — Conceding that such amendments are applicable to the case of a mortgage executed by the administrator of the estate of the deceased wife, under order of the court having jurisdiction of her estate for purposes of administration, a foreclosure thereof and a sheriff’s deed to the purchaser at the foreclosure sale, the statute as to a sheriff’s deed made after the amendment of 1897 would not bar the husband, his heirs, or assigns, until one year after the filing of such deed in the recorder’s office.</p>

The facts are stated in the opinion of the court. The grant of power to the board of police commissioners by section 95a of the charter, as amended in 1903, is exclusive of the exercise of that power by any other board or official (23 Cyc. 107, 108, notes 77, 79; Frandzen v. San Diego Go., 101 Cal. 317, 35 Pac. 897; Ex parte Anderson, 134 Cal. 69, 86 Am. St. Rep. 236, 66 Pac. 194.) The ordinance, as amended, is unreasonable and discriminatory.

<p>MOTION to dismiss an appeal from an order of the Superior Court of Sonoma County changing the place of trial. T. t C. Denny, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Presidio Reservation in San Francisco — Easterly Boundary Line.— In an action involving the location of the easterly line of the Presidio reservation in the city and county of San Francisco, under the act of Congress of May 9, 1876, by which a portion thereof relinquished to the city was described as “commencing at the southeasterly corner of said Presidio or Fort Point reservation, and thence running in a direct line due north to the shore line of the bay of San Francisco, thence westerly along the said shore line to a point eighty feet westerly of the easterly line of the said Presidio, or Fort Point reservation, as established by' the United States authorities, said eighty feet being relinquished for a public highway or street, named Lyon Street,” it is held, that the easterly line of the reservation, referred to in the act “as established by the United States authorities,” was the line of an old fenee extended from a certain cannon planted on May 17, 1850, on the top of the hill, near the present southeastern corner of the reservation and running thence northerly to the bay shore.</p>

Clara County and from an order denying a new trial. M„. H. Hyland, Judge. .Tbe facts are stated in tbe opinion of tbe court.

<p>Street Assessment — Unlawful Bestriction in Contract as to Liability of Contractor. — A provision in a contract for street work in a municipality, that “all loss or damage arising from the nature of the work to be done under this agreement, or from any unforeseen obstruction or difficulties which may be encountered in the prosecution of the same, or from the action of the elements, or from encumbrances on the lines of the work, or for any act or omission on the part of the contractor, or any person or agent employed by him not authorized by this agreement, shall be sustained by the contractor,” has the effect to render invalid the contract, assessment, and lien.</p> <p>Id. — Evidence that Illegal Bestriction Did Not Increase Bids.— In an action to enforce a lien, based upon sueh a contract, it is immaterial that the contractor was denied an opportunity of showing, by all who bid for the work, that sueh illegal provision had. not operated to increase the amount of their bids. Such a showing would not have negatived the possibility that other persons may have been deterred from offering to do the work at all by reason of the unlawful restriction.</p>

<p>APPEAL from a judgment of the Superior Court of 'Contra Costa County and from an order refusing a new trial. William S. Wells, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>APPEAL from a judgment of tbe Superior Court of Sacramento County. J. W. Hughes, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Montgomery Avenue Bonds — Case Affirmed, — Judgment affirmed on the authority of Union Trust Company v. State of California, ante, p. 716.</p>

MOTION to dismiss an appeal from orders of the Superior Court of the City and County of San Francisco. Thos. F. Graham, Judge. The facts are stated in the opinion of the court.

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

<p>■Criminal Law — Magistrates—Police Judges of San Francisco.— Under section 808 of the Penal Code the police judges of the city and county of San Francisco have the power to sit as magistrates.</p> <p>Lost or Destroyed Records — “Burnt Record Act”; — Special Legislation. — The statute authorizing the restoration of lost or destroyed records, commonly designated the “Burnt Record Act,” is not special legislation.</p>

<p>Tax Certificates of Sale and Deeds — Curative Act of February 28, 1903 — Retroactive Effect of. — The act of February 28, 1903, as to certificates of tax-sales and tax-deeds executed to the state for property sold and deeded thereto for non-payment of taxes, operated retroactively, and confirmed, validated, and legalized all tax-sales and tax-deeds made to the state which would have been otherwise invalid for failure to recite, among other things, when the right of redemption would expire, or whether it had expired. Under the curative act sueh a deed to the state was validated and legalized as of the date when it'was executed by the tax-collector.</p> <p>Id. — Deed from State to Purchaser Prior to Curative Act. — The confirmed and legalized title acquired by the state by reason of the validating act, as of the date of the deed to it by the tax-collector, inures to the benefit of a purchaser from the state taking his conveyance prior to the passage of the act.</p>

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

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

<p>■ APPEAL from a judgment of the Superior Court of Fresno County. George E. Church, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

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

<p>APPEAL from an order of the Superior Court of Alameda County refusing a change of the place of trial. William H. Waste, Judge.</p> <p>Tbe facts are stated in the opinion of the court.</p>

<p>Corporation — Liability op Stookhi Record.. — The provision of sect: liability of stockholders for the ing within the definition of stO' the books of the corporation ti to limit it to persons who k names to appear as stoekholdel IjLDERS — Who Abe Stockholders op 322 of the Civil Code, fixing the Ibts of the corporation, and includilders “such persons as appear by such,” should be construed so as [ngly or voluntarily permit their</p> <p>Id. — Pledgee of Stock — Unauthorized Issuance of Stock in Name of Pledgee. — A pledgee of stock cannot be made a stockholder and liable to the creditors of a corporation without his consent, simply because an officer of the corporation has without authority, or in direct violation of his instructions, entered his name upon the books of the corporation as a stockholder and caused stock to be issued in his name as such. Such entry does not preclude him from showing that in fact he was not a stockholder, and that the issuance of stock in his name was unauthorized.</p> <p>Id. — Welch v. Gillelen, 147 Cal. 571, Affirmed — Laches.—Welch v. Gillelen, 147 Cal. 571, affirmed on the question that the defendant was not a stockholder in the corporation in question, and was not guilty of laches in failing to have a ehange of the entries in the books of the corporation after discovery of the error committed by the secretary in issuing the certificate.</p> <p>Id. — Absolute Indorsement by Pledgor — Estoppel.—An indorsement by the pledgor of certificates of stock, purporting to transfer them absolutely to the pledgee, does not authorize the secretary of the corporation, in the face of express instructions to the contrary, to assume that the transfer was absolute, nor justify him in issuing a new certificate in the name of the pledgee as owner, and entering him as a stockholder on the books of the company. The rule forbidding parol evidence to vary or alter the terms of a written contract does not preclude such a pledgee from showing his true relation to such stock. In the present ease, there is nothing in the evidence to estop the defendant from showing that he was a mere pledgee.</p>

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

<p>APPLICATION for a Writ of Prohibition to 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>Estates or Deceased Persons — Latent Ambiguity in Will and Decree oe Distribution — Extrinsic Evidence. — The same rule which allows extrinsic evidence to disclose and explain a latent ambiguity in a will applies to a latent ambiguity in a deeree of distribution.</p> <p>Id. — Mistake in Middle Initial or Name — Evidence.—When the first and last names of a distributee, who was the only nephew of the testatrix, are correctly stated and his residence is correctly given, both in the will and in the deeree of distribution, but by mistake of the scrivener in preparing the will, an error in the middle initial of his name occurred in the will, and was carried into the decree, evidence is admissible to show and explain such mistake, and to prove that such nephew, with the correct initial, lived and died at the place of his residence, and that no person having the. same name, with the incorrect initial, ever lived at that place.</p> <p>Id. — Action to Quiet Title oe Deceased Distributee — Mistake in Decree — Nature oe Action — Statute oe Limitations Inapplicable. — -An action by the administrator of the estate of a deceased distributee to quiet title of land distributed against an adverse claim of the defendant, in which extrinsie evidence is admitted to show a mistake in the name of such distributee in the decree of distribution, and to explain a latent ambiguity caused thereby in the deeree, is merely an action to enforce rights under the deeree, according to its true intent and meaning, and is not an action for relief on the ground of mistake, to which the statute of limitations is applicable.</p> <p>Id. — Conditional Limitation in Decree — Determination of Life Estate — Legal Estate Vested in Possession. — A decree of distribution vesting a nephew of the testatrix with absolute title to land specified, provided one who was permitted to reside thereon for life did not commence the residence within one year or should cease to reside thereupon, does not create an estate in the life tenant upon condition subsequent, to .be divested in case of forfeiture only by an entry for condition broken or by judgment at law, and not enforceable in equity, but creates a conditional limitation of such estate, and upon her cessation to live upon the land, the absolute property therein immediately vested in the nephew by the act of the law, as an immediate legal estate in possession.</p> <p>Id. — Condition Not Void as Repugnant to Estate Created. — The conditional limitation is not void as repugnant to the estate previously vested in the tenant for life, with remainder in her heirs at law upon her death, by the deeree. The intent expressed in the decree as a whole is controlling, and shows a limitation of that estate.</p> <p>Id. — Title of Testatrix — Adverse Possession — Assessment-Rolls.— The assessment-rolls showing payment of taxes by the testatrix were properly introduced in evidence in support of a title acquired by her by adverse possession.</p> <p>Id. — Evidence—Declarations of Testatrix as to Relationship. — The declarations of the testatrix as to her relationship to her nephew by his true name and place of residence were admissible under subdivision é of section 1870 of the Code of Civil Procedure.</p> <p>Id. — Evidence of Identity of Person Named in Will and Decree.— Evidence was admissible to show the facts in regard to the existence and identity of the person named in the will and deeree of distribution.</p>