Volume 155 — California Reports

<p>APPEAL from a judgment of the Superior Court of Plumas County. J. D. Goodwin, Judge.</p> <p>The facts are stated in the opinion of the court.</p> <p>George L. Jones, District Attorney, and Thomas S. Ford, for Appellant.</p>

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

<p>APPEAL from a judgment of the Superior Court of Fresno County. H. Z. Austin, Judge.</p> <p>The facts are stated in the opinion of the court.</p> <p>Frank H. Short, Garret W. McEnerney, W. B. Treadwell, and Van Fleet & Mastick, for Appellant.</p> <p>L. J. Maddux, E. H. Hoar, George W. Jones, and Frank Kauke, for Respondents.</p>

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

<p>Criminal Law .— Conditional Pardons and Commutations of Sentences—Power of Governor.—Since the power of the governor of the state to grant pardons and commutations of sentences is absolute under the constitution, except in eases of prior conviction, the power to annex to a pardon or commutation any reasonable condition, prior or subsequent, is implied upon the principle that the greater includes the less. There is no consideration of public policy standing in the way of this conclusion.</p> <p>Id.—Commutation to Be Void on Subsequent Conviction of Felony. —It is within the power of the governor to annex to a commutation of sentence a condition, that if, after the day of discharge, the prisoner shall be convicted of any felony, the commutation shall be void, and that, in addition to the penalty which may be imposed for such felony, he shall be compelled to serve so much of the sentence upon his original conviction as he had not served at the time of his discharge.</p>

<p>Sale—Contract Based on Letters and Telegrams—Proposal and Acceptance.—To constitute a binding contract of sale made in the form of letters and telegrams which passed between the prospective seller and purchaser, there must be a proposal squarely assented to. If the acceptance be not unqualified, or go not to the actual thing proposed, then there is no binding contract. A proposal to accept, or an acceptance based upon terms varying from those offered, is a rejection of the offer. It is held in the present ease, upon a review of the letters and telegrams which passed between the parties, that they did not constitute a proposal squarely assented to.</p>

<p>Grant op Incorporeal Hereditament—Eight to Work and Extract Minerals—Abandonment by Grantee.—An instrument executed by an owner of land, as follows: “In consideration of one dollar</p> <p>to me paid by F. N. . . . and the further sum of twenty cents per ton, I, the undersigned, grant to said F. N. all the bituminous rock, petroleum, asphaltum and other mineral which he may choose to mine, quarry and take from my land, (describing it,) . . . In case said land fails to produce such mineral in paying quantities or of good quality said F. N. may upon thirty days’ notice given to me in writing, abandon and relinquish to me all right hereby conferred and granted . . . F. N. agrees to take at least three hundred tons a year or to pay the royalty on that amount whether taken or not,”—is not to be construed as a grant of the title in fee to all the mineral located upon the land described, but merely as a grant of a right in the nature of an incorporeal hereditament, and that such right was abandoned by the grantee by his failure, for a period of thirteen years, to either extract minerals or pay the royalty.</p> <p>Id.—Interpretation op Agreement — Uncertainty — Construction against Person Causing — Surrounding Circumstances. — Any uncertainties existing in said agreement are to be interpreted most strongly against the grantee, he being the one who prepared the instrument and caused the uncertainties to be present, and evidence of the circumstances surrounding its execution is admissible in aid of its interpretation.</p> <p>Id.—Notice op Abandonment.—It was not necessary to constitute an abandonment of the right secured by such agreement that the grantee should give notice thereof in writing. Such notice might be waived by the grantor.</p> <p>Id.—Want of Equity—Tender of Royalty—Enhanced Value of Land.—After the expiration of such thirteen years, the grantee would not be permitted to enforce any right secured to him by said agreement, without doing equity by a tender of payment of the royalty provided for therein. And evidence is admissible, under appropriate allegations, that the land during such period had enhanced in value by reason of the discovery of oil, in order to further show the want of equity in the assertion of the claim of the grantee.</p> <p>Id.—Subsequent Purchase of Land—Reduction in Price.—A subsequent purchaser of such land, by obtaining a reduction in the purchase price thereof by reason of the existence of such agreement, did not thereby admit that the agreement constituted a grant of the title in fee of such minerals.</p> <p>Id.—Quieting Title—Immaterial Error in Admission of Evidence of Abandonment.—In an action by the successors of such grantor, to quiet their title to such land, it was not a material error to admit in evidence a conversation between the grantor and the superintendent of the grantee with reference to the abandonment, when there was abundant evidence of abandonment without such conversation.</p>

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

<p>Water-Bights—Biparian Ownership—Appropriation—Temporary Injunction—Ultimate Bights Not Adjudicated—Discretion.—An order granting a temporary injunction in an action by riparian owners to enjoin an upper appropriator from interfering with their riparian rights, and limiting the defendant pendente lite to the exercise of certain reserved rights, is a matter resting largely in the discretion of the court. Such order does not adjudicate the ultimate rights of the parties in controversy, but merely determines that the court, in balancing the respective equities of the parties, concludes that defendant should be restrained pending suit from diverting the waters beyond such reserved rights.</p> <p>Id.—Review of Temporary Injunction upon Appeal—Affirmance.— In reviewing the order granting the temporary injunction upon appeal therefrom, if the record does not clearly establish any other superior rights of the appropriator beyond the rights reserved without controversy, the order must be affirmed.</p> <p>Id.—Question as to Right to Divert Extraordinary Flood Water Not Presented—Conflicting Evidence—Decision Not Disturbed.—The question as to the right of an upper appropriator to divert water, as against a riparian owner, which runs at times of unusual and extraordinary floods in such quantities that the intended diversion could not appreciably affect or substantially injure riparian rights, is not presented by the record, when, as against the evidence for defendant to that effect on the motion for the injunction there was strongly conflicting evidence, for the plaintiff, to show that all of the waters of the stream formed one continuous body at all times, passing plaintiff’s riparian land, and formed no vagrant water, and the court acted upon plaintiff’s evidence to sustain the injunction. In such case, the decision will not be disturbed upon appeal.</p> <p>Id.—Riparian Rights Against Upper Appropriator—Reasonable Use Inapplicable—Ordinary and Increased Flow.—The doctrine of reasonable use applies only as between riparian owners, and such an owner has the right, as against an upper appropriator, to have the stream flow past his land in its accustomed channels, as part of his land, without limit by any measure of reasonable use, not only with reference to its ordinary and usual flow in the dry season, but also with reference to its increased flow following the annual rains and the melting of the snow in the region about the head of the stream, if it does not cause vagrant water, but flows in a continual stream, though overflowing the banks of the channel formed in the dry season.</p> <p>Id.—Property Right's of Riparian Owners—Public Policy—Eminent Domain.—The property rights of riparian owners as against appropriates, are not subject to any mere rule of public policy, and cannot be divested without compensation under the law of eminent' domain.</p> <p>Id.—Prior Suit Elsewhere to Quiet Title to River—Plea of Prescriptive Rights—Complaint to Enjoin Acts Pendente Lite— Reservation of Less Rights—Discretion.—When a prior suit was brought in Madera County by plaintiff and another riparian owner to quiet title to Fresno River against the same defendant, who pleaded therein a prescriptive right to four hundred inches of water per second; and subsequently the present action was brought in Merced County to enjoin acts of diversion committed pending the former suit, the complaint in which did not include any prescriptive rights, the mere reservation in the temporary injunction of only two hundred and twenty inches per second as regards prescriptive rights, does not render the form of the injunction order an abuse of discretion.</p> <p>Id.—Prescriptive Bights Not Adjudicated—Besult of Prior Suit— Duty to Modify Injunction.—The mere reservation made in the temporary injunction of less prescriptive rights than were claimed in the prior Madera County suit, did not adjudicate the extent ofz those rights; and, if in such prior suit, it should be adjudicated finally that the prescriptive rights are more extensive, it would be the duty of the Merced County superior court to modify its injunction accordingly.</p> <p>Id.—Venue of Injunction Suit—Claim of Damages to Land in Madera County—Jurisdiction.—The injunction suit to restrain the diversion of water in Merced and Madera counties, though the claim for damages is for wrongful acts of diversion of water from and injury to lands in Madera County, was properly commenced in Merced County, and the temporary injunction was properly issued therein; and the Merced County superior court has jurisdiction to try the case, unless the defendant should demand the trial thereof in the county where the land injured is situated.</p> <p>Id.—Usually Beourring Floods in Accustomed Channel Part of Ordinary Flow.—When there are natural and accustomed limits to the channel of a river, though the channel for the dry season may be more limited, and that for the wet season may be customary, but more extended, and usually recurring flood waters flow in one continuous stream in the accustomed extended channel and are naturally confined thereto, the regular recurrence of such flood waters must be deemed part of the ordinary flow of the stream, and riparian rights pertain to the whole of it, and no riparian owner can be deprived thereof to his injury.</p> <p>Id.—Biparian Lands Benefited by Wider Flow.—When it clearly appears that the riparian lands of the plaintiff are greatly benefited by the wider flow of the stream, there can be no ground on which the defendant can divert the same as not being injurious to the plaintiff.</p> <p>Id.:—Construction of Beservoir by Defendant — Plaintiff Not Estopped. — The plaintiff is not estopped by the expenditure of means by the defendant in the construction of a reservoir, when the plaintiff was ignorant of any unlawful intent in the construction thereof, and took immediate steps to enjoin the unlawful diversion of water by means thereof, when such unlawful intention became manifest, and before water therein had become appropriated to any beneficial use.</p>

<p>Riparian Rights—Source and Nature.—The right of a riparian owner to the use of water hordering on his land does not arise from the fact that the water is flowing, and that any part thereof taken from the stream is immediately replaced by the water from the current above it; but it comes from the situation of the land with respect to the water, the opportunity thereby afforded to divert and use the water upon the land, the natural advantages and benefits resulting from the relative positions, and the presumption that the owner of the land acquired it with a view to the use and enjoyment of these opportunities, advantages, and benefits.</p> <p>Id.—Limitation op Rights—Reasonable Use por Irrigation.—Out of regard to the equal rights of others whose lands abut upon the same water, the use of the water for irrigation, so far as it affects the rights of others similarly situated, must be reasonable, and must be confined to a reasonable share thereof.</p> <p>Id.—Riparian Rights in Water Not Blowing.—Subject to the common limitation of reasonable use, the right of the riparian owner to use water upon adjoining land applies as well ,,to the water of a lake, pond, slough, or any natural body of water, by whatever name it may be called, as to a running stream. A current is not essential to the existence of riparian rights.</p> <p>Id.—Source op Supply..—Ordinarily a permanent non-flowing body of water, such as a pond or lake, has some source of supply. But even in the ease of a pond or lake caused by an overflow, which has no other source of supply, and which by reason of seepage and evaporation will soon disappear, the riparian owners have a right to the reasonable use of such water, both for domestic purposes and for irrigation, while it lasts.</p> <p>Id.—Slough Bed by River—Extent of Riparian Rights.—Where riparian land is situated upon a slough which is always connected with and fed by a river, the owner thereof has an equal right to a reasonable share of the water of the river with another person who owns land abutting upon the main stream, regard being had to the quantity of land of each, their respective interests, and the quantity of water in the slough, and all other circumstances affecting the ques- ’ tion of a reasonable division of the water, in ease there should not be enough to supply the needs of all.</p> <p>Id.—Origin op Slough and River Supply Immaterial.—So far as the right to a reasonable share of the water found in the slough is concerned, it is immaterial how or from what source the water comes into the slough or what causes or forces excavated the channel of the slough, provided both are the results of natural forces. When the supply comes from one river, the slough is part of that river, and riparian rights on the slough are to be determined with reference to the needs of lands riparian to that river; and when - the slough becomes a part of another river with which it is connected, the lands riparian to the slough are entitled to a reasonable share of the whole waters of that river, including the slough.</p> <p>Id.—Right of Riparian Owner upon Slough to Diversion for Irrigation—Flow of River Affected.—A corporation owning lands riparian to the slough, which is there connected with and properly a. part of the San Joaquin River, has the right to take its share of the water in the slough, including the water of that main river flowing therein, at any convenient point for the proper irrigation of its riparian land, whether such point of diversion is upon its own land or not, although it may affect the flow of the river, provided it does not injuriously affect the rights of owners abutting upon the river between the point of diversion and the company’s riparian land, and does not unreasonably waste the water, as against lower riparian owners.</p> <p>Id.—Means of Diversion and Delivery to Lower Owners Immaterial, Unless Waste Appears.—The means of diversion to riparian land at any point above the stream for reasonable use, without unreasonable waste, is immaterial; and its delivery to the use of lower riparian owners by means of a ditch crossing non-riparian lands belonging to other persons, with their consent, is immaterial and cannot be the subject of objection by such lower riparian owners, unless it appears that there is unreasonable waste by evaporation and seepage from such ditch before such delivery.</p> <p>Id.—Means of Utilizing Overflow from River During Floods by Lower Owners.—The fact that lower riparian owners on the river have used means to utilize flood waters overflowing their lands, so as to add to their value, cannot affect the rights of upper riparian owners to a reasonable use of the stream for irrigation.</p> <p>Id.—Common Law as to Flow of Stream Modified by Common Right to Reasonable Use.—The common-law rule that a lower riparian proprietor is entitled as of right to have the stream flow to his land undiminished is modified as between riparian owners in this state, to which that rule is not suited, and in which it is settled that each riparian owner has the right to a reasonable use of the water on his riparian land for the irrigation thereof, and that it is the common right of all riparian owners to a reasonable share of the water.</p> <p>Id.-—Reasonable Share a Question of Fact.,—The determination as to what is the reasonable share of each riparian owner is a question of fact to be decided according to the circumstances of the case.</p> <p>Id.—Rights of Upper Riparian Proprietor.—An upper riparian proprietor is entitled to a reasonable use of the stream for irrigation, although it may diminish the flow to a lower proprietor, and put him to a substantial inconvenience in his use of the stream.</p>

<p>Will—Acceptance op Devise Subject to Charge—Liability por Payment—Lien on Property Devised.—The acceptance by a devisee of property given to Mm by the will, charged with a payment therefrom of a certain sum of money to a third person, imposes upon the devisee a personal liability for the payment as directed by the will. As soon as the liability accrued, if it was not performed within a reasonable time, the beneficiary became entitled to bring an action to recover the money of the devisee, and to have his claim declared a lien on the property devised.</p> <p>Id..—Charge Imposed on Bemainder Interest—Accrual op Obligation op Payment.—Where a will leaves all the property of the testator to his wife, “in trust for his heirs,” and provides that the rents and issues thereof shall be used for her support during her lifetime, and upon her death should go to his children in certain designated shares, one of which was charged with the payment therefrom of a certain sum to a grandson, the liability of the remainder-man to make such payment did not mature until the expiration of the life estate by the death of the wife, and the statute of limitations did not commence to run in his favor until that time.</p> <p>Id.—Acceleration of Liability—Acquisition of Life Estate.—The liability of such remainderman to make payment of the charge was not accelerated by his acquisition of the intervening.life estate.</p>

<p>Keceiver—Insolvent Bank—Denial op Leave to Sue—Discretion. —De Forrest v. Coffey, 154 Cal. 444, approved, to the effect that the superior court having jurisdiction of an action in which a receiver of an insolvent banking corporation was appointed, did not abuse its discretion in denying leave to sue the receiver in an independent action.</p>

<p>Keceiver—Insolvent Bank—Denial op Leave to Sue—Discretion. —De Forrest v. Coffey, 154 Cal. 444, approved, to the effect that the superior court having jurisdiction of an action in which a receiver of an insolvent banking corporation was appointed, did not abuse its discretion in denying leave to sue the receiver in an independent action.</p>

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

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

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

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

<p>Municipal Ordinance Regulating Sale of Milk—-Requirements of Solids—Construction to Avoid Uncertainty.—An ordinance regulating the sale of milk and prescribing that it shall contain “Total milk solids, 12.5 per centum by weight: Butter fat, 3.5 per centum by weight, and water, 87.5 per centum by weight,” is not void on account of vagueness, uncertainty or contradiction. Properly construed, the ordinance requires that milk shall contain 12.5 per centum milk solids, of which at least 3.5 per centum shall be butter fat.</p> <p>Id.—Conflicting Ordinance Superseded by Statute.—A municipal ordinance regulating the sale of milk and providing a standard therefor, enacted under the authority of section 11 of article XI of the constitution, empowering a city to make and enforce within its limits “all such local, police, sanitary, and other regulations as are not in conflict with general laws,” is superseded by a subsequent general statute of the state in conflict therewith.</p> <p>Id.—Municipality May Impose Additional Requirements.—The mere fact that the state in the exercise of the police power has established certain regulations by statute, does not prohibit a municipality from exacting additional requirements. So long as there be no conflict between the two, and so long as the requirements of the municipal ordinance are not in themselves pernicious as being unreasonable or discriminatory, both will stand.</p> <p>Id.—Statute Regulating Sale of Milk—Ordinance Containing Different Regulations and Penalty.—A municipal ordinance requiring of milk vended a certain percentage of solids, not in itself unreasonable, but which is larger than the percentage of solids required by the act of 1907 (Stats. 1907, p. 265), is not in conflict with that act. Nor is it any objection to the validity of the ordinance that its regulatory provisions and the penalty for its violation, differ from those of the state law.</p> <p>Id.—Reasonableness of Ordinance—Natural Milk Below Requirements.—Such ordinance will not be held unreasonable merely because it establishes a standard for milk which is higher than that which may come in its natural state from cows of a certain breed.</p> <p>Id.—Ordinance for Immediate Preservation of Health.—Date of Going into Effect—Statement of Urgency Not Conclusive.— Under a provision of a municipal charter which declares that no ordinance shall go into effect before thirty days from the time of its passage and approval by the mayor, “except an ordinance for the immediate preservation of the public peace, health or safety which contains a statement of its urgency and is passed by a two-thirds vote of the council,” a statement in an ordinance regulating the sale of milk that “it is urgently required for the immediate preservation of the public peace, health and safety,” is neither conclusive nor sufficient. Such a statement, however, would not nullify the ordinance, and it would become operative after thirty days from its passage.</p> <p>Id.—Requirements for Milk Not Necessary to Immediate Preservation of Health.—It cannot be a matter for the immediate preservation of the public health, within the meaning of such charter provision, that milk vended should contain 3.5 per centum of milk fat instead of 3 per centum, and that the total amount of water shall be 84.5 instead of 85 per centum.</p>

The facts are stated in the opinion of the court. Lawler, Allen & Van Dyke, for Plaintiffs and Appellants. Calvert Wilson, and Sidney J. Parsons, for Interveners and Appellants.

<p>Covenants fob Reciprocal Basements — Enforcement in Equity — Subsequent Purchaser with Notice.—An agreement between adjoining landowners, covenanting for reciprocal easements with reference to their adjoining lands for the benefit thereof, will be enforced in equity against a subsequent purchaser of one of the tracts who had notice thereof, notwithstanding the covenants did not in law technically run with the land.</p> <p>Id.—Basements May Be Created by Covenant. — Basements for light and air may be created by words of covenant as well as by words of grant.</p>

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

<p>The facts are stated in the opinion of the court.</p> <p>U. S. Webb, Attorney-General, W. S. Day, District Attorney, and R. B. Canfield, for Appellant.</p>

<p>Estate op Deceased Person—Accounting by Executor—Title to Fund Claimed by Executor as Individual—Jurisdiction.-—-The superior court sitting in probate in proceedings for the settlement of the accounts of an executor has jurisdiction to determine as against the executor, the amount of money or property of the estate that has come into his hands, for the purpose of charging him therewith, and in determining that question to determine all issues necessarily incidental thereto, including an issue as to the title to a fund in the hands of the executor which he claimed belonged to him in his individual capacity.</p>

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

<p>Brokers—Limited Option—Failure to Find Purchaser Beady and Willing to Purchase — Introduction op Final Purchaser to Owner.—A broker is not entitled to recover commissions on a sale finally effected by the owner with one merely introduced by the broker to the owner, who was not ready and willing to contract with the owner on the terms of sale insisted upon by the owner, within the life of the option or any extension thereof, when it appears that the delay in finally effecting the sale was not caused by the negligence, fault, or fraud of the owner, but that long negotiations with other parties finally failed, before the owner at last effected a sale with the person so introduced, on much less favorable terms than those before insisted upon.</p> <p>Id.—Broker Must Be Eppioient Cause op Sale.—Before the broker can be deemed to have earned his commission, it must appear that during the written option allowed by the owner, or some extension or waiver thereof by the owner, he found a purchaser ready and willing to purchase, and became the efficient agent or procuring cause of the sale finally effected.</p> <p>Id.—Broker Subject to Risks or Written Employment.—The broker took the risks of his written employment, and was subject to the results of failure or success under the provisions of his contract of agency.</p> <p>Id..—Implied Promise Not a Basis op Recovery.—When the final purchaser was introduced by the broker, while acting under the written option, it cannot be urged that he was working under a written contract if he succeeded in filling its terms, and under an implied contract if he could not accomplish that result. No implied promise arises as a basis of recovery of a commission merely because at a time subsequent to the life of the written contract the property is sold to a person introduced by the broker, who himself effected no sale to such person.</p>

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

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

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

<p>Partition—Lands Situated in Different Counties.—Partition may be had in one action of two or more tracts of land, and the fact that such tracts are situated in different counties cannot affect this right, the action being maintainable in such a ease in any county in which a part of the property is situated.</p> <p>Id.—Partition of Several Tracts in One Action—All Parties Must be Cotenants of each Tract.—Subject to the exception hereinafter noted, while two or more parcels of land may be the subject-matter of a single action for partition, even though the interest of each cotenant is not the same in each parcel, in order to justify such union in one suit each parcel of land must be owned by the same persons. A joinder of several parcels of land in one action all of which were not so owned in common would be a misjoinder of causes, of action.</p> <p>Id.—Lands Originally held in Common—Conveyance of Interest by Cotenant—Joinder of Successor in Part of Tract.—An exception to the foregoing .rule exists in the ease where one cotenant has made a conveyance of his interest in a portion of the property held in common. In such a case, the grantor cannot prejudice the rights-of his cotenants to a partition of the common property, and his grantee or successor simply steps into the shoes of the grantor, subject to all the rights of the other cotenants and their successors as to partition. For all the purposes of partition, the whole property originally held in common by the cotenants, whether consisting of one or any number of parcels, continues to be a unit, the subject-matter of a single action, in which the respective rights of all the parties interested, original cotenants, and successors, may be determined.</p> <p>Id.—Joinder of Tracts and Parties.—In such exceptional case, a necessary party defendant may be a cotenant only as to one of the parcels involved, and the fact that he is not interested in the other parcels is no ground of objection to the joinder in one action of the various parcels of land. In such ease, there is but one cause of action stated, the partition of a single lot of real property originally held in common, and, for all the purposes of the proceeding, still so held.</p> <p>Id.—Real Property Subject to Partition in One Action—Joinder of Adverse Claimants.—The “real property” referred to in section 752 of the Code of Civil Procedure, as to which an action for partition may be brought, is real property as to which such unity of title exists as authorizes a single action under the foregoing rules. That the rights of adverse occupants of the land sought to be partitioned may be put in issue, tried, and determined, does not affeet the question of joinder as to different tracts of land.</p> <p>Id.—Judgment fob Defendant on Sustaining Demubreb for Misjoinder.—A judgment rendered in favor of the defendants, in an action for partition, upon sustaining a demurrer to the complaint on the ground of misjoinder of causes of action, the misjoinder consisting in the joinder in one action of several tracts of land, in some of which some of the defendants had no interest, would not prejudice the right of the plaintiff to maintain new actions for the partition of such lands, against such of the defendants as were cotenants thereof.</p>

<p>Mortgages—Foreclosure Sale—Return—Action upon Deficiency Judgment—Instruction to Find for Plaintiff.—In an action upon a deficiency judgment entered and docketed against the mortgagor after sale of the mortgaged premises for less than the amount of the mortgage debt and return made thereof: Held, that upon the facts established by the admissions of the answer and the uncontroverted evidence the trial court was fully warranted in instructing the jury to find for the plaintiff.</p> <p>Id.—Issue as to Sale for Any Less than Full Judgment—Admission of Return for Less Sum—Prima Facie Evidence—Disproof of Answer.—When the answer claimed that the sale of the premises was for no less than the full amount of the judgment, but did not deny that a sale was made and returned for a less sum, showing a deficiency of five thousand dollars for which a judgment was docketed, and the return of sale introduced in evidence showed that the sale was for five thousand dollars less than the amount of the judgment, such return is prima facie evidence that the sale was for a less sum than the amount of the judgment, and in the absence of any proof to, the contrary disproves the answer as to a sale for any less than the full amount of the judgment.</p> <p>Id.—Omission as to Jurisdiction of Foreclosure Suit.—When an averment that the foreclosure judgment was duly given and made was not denied, the jurisdiction of the court over the parties and the subject-matter of the foreclosure suit is admitted, and it is unnecessary for the plaintiff to prove any facts showing such jurisdiction.</p> <p>Id.—Issue as to Date of Judgment—Statute of Limitations.—When the answer joined issue as to the date of the judgment, as bearing upon the statute of limitations pleaded, it is sufficient that the evidence shows that it was entered upon a date which is within the statute.</p> <p>Id.—Judgment Appointing Beferee to Make Sale—Commissioner— Beturn—Proper Judgment for Deficiency.—When the judgment of foreclosure was for the sum of $61,184.10 and provided for appointment of a referee to make the sale of the mortgaged land and make return thereof, and that if the sum obtained was insufficient to satisfy the judgment the clerk was directed to enter and docket any deficiency against the mortgagor, who was adjudged personally liable therefor, the so-called referee was practically the commissioner provided for in section 726 of the Code of Civil Procedure to act in place of the sheriff, and his return of ■ the sale of the land is prima facie evidence of its truth; and when it shows a sale thereof for $56,184.10 only a deficiency judgment was properly entered and docketed against the mortgagor for the deficiency of five thousand dollars.</p> <p>Ib,—Defect in Appointment of “Beferee” Not Available on Collateral Attack.—Any defect in using the word “referee” instead of the word “commissioner” employed in section 726 of the Code of Civil Procedure in the foreclosure judgment is not available to the defendant upon collateral attack; and it being admitted that the court had jurisdiction, any error therein could only be available upon appeal.</p> <p>Id.—Becords Destroyed by Fire—Admission of Jurisdiction—Proof of Judgments Only,—The jurisdiction to render the foreclosure judgment being admitted, and all of the records in the foreclosure suit having been destroyed in the conflagration of April 18-20, 1906, it was unnecessary to reproduce or prove the whole judgment-roll; but it was sufficient to prove the contents of the judgment of foreclosure and of the deficiency judgment.</p> <p>Id.—Oral Proof of Contents of Burned Judgments.—The general principle that the contents of a destroyed record, of which there is no copy, may be proved by oral evidence is to be deemed applicable to the restoration of burned records destroyed by the conflagration of April 18-20, 1906, notwithstanding the act of June 16, 1906.</p> <p>Id.—Admitted Allegations as to Sale and Beturns.—The admitted allegations that the referee duly sold “the said land” and so reported to the court implies an admission that he sold all the mortgaged land and so reported to the court; and the admission of the allegation of the complaint that the referee “returned to this court his report in said cause,” showing certain enumerated things, must be taken as meaning that he made the report in all respects as required by law.</p> <p>Id.—Docketing of Deficiency—Appointment of Beferee—Sufficiency of Complaint—Absence of Special Demurrer—Prima Facie Evi: dence.—In the absence of a special demurrer it is held that the allegations of the complaint are sufficient to show the docketing of the deficiency judgment in the manner provided by law, and to show the appointment of a referee by the judgment, who subsequently sold the mortgaged property, and that the evidence made a prima facie showing in each of these respects.</p> <p>Id.—Effect of Admitted Allegations as to Sale.—The admitted allegations as to the sale imply a valid sale as against a general demurrer, and that the referee gave the proper bond and was sworn faithfully to discharge his duties according to law, and that an order of sale was issued on the judgment and placed in his hands as prerequisites to a valid sale.</p>

<p>Street-Improvement Bond—Lien Claimed upon Railroad Right of Wat—Easement—Land—Estoppel by Judgment.—When a street-improvement bond is claimed as a lien upon a railroad right of way situated upon the part of the street improved, and a sale thereof was demanded, a former judgment in favor of the railroad company against both parties to this suit enjoining the sale of the railroad company’s easement in its right of way is conclusive against the sale of such easement, but not against the sale of the fee of the land subject to the easement.</p> <p>Id.—Specific Demand for Lawful Sale Essential to Impose Duty.— In order to impose any duty upon the city treasurer to sell land subject to the lien of a street improvement, there must be a specific and definite demand for the very act to which the bondholder is entitled, and nothing further.</p> <p>Id.—Excessive and Unlawful Demand — Untenable Action upon Treasurer’s Bond.—When the only demand upon the city treasurer was that he should make a sale covering both the fee and the easement in the railroad right of way, a compliance with the demand would have been a violation of the injunction. Such demand imposed no duty upon the city treasurer; and the holder of the street-assessment bond can maintain no action upon the city treasurer’s bond for damages for refusal to comply with the excessive and unlawful demand.</p>

<p>Injunction—Person Not Party—Certiorari.—A person who has been enjoined in an action in which he was not made a party may make himself a party by moving to set aside the injunction, and if his motion is denied, may appeal from the order of denial. He is not entitled to a writ of certiorari to annul the injunction proceedings.</p>

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

APPEALS from judgments of the Superior Court of Sam Bernardino County and from orders denying a new trial-Benjamin F. Bledsoe, Judge. The facts are stated in the opinion of the court.

<p>Criminal Law—Venue of Murder near Boundary Line oe Counties. —Under section 782 of the Penal Code, the jurisdiction of a crime committed within five hundred yards of the boundary of two or more counties is in e;' her of the counties; and, upon the trial of a defendant in Sacramento County for a murder committed outside thereof, near its boundary, the venue is sustained by proof, that, by the measurement of witnesses, the body of the deceased was found on the Yolo side within 196 feet of the boundary, and that, in the immediate neighborhood, evidences were seen of a struggle, and blood marks on the ground were plentiful, and a sheath knife was found wet with blood, with which it appears that the murder was committed by the defendant.</p> <p>Id.—Evidence—Dying Declarations—Res Gestie—Facts Preceding and Following Assault.'—The dying declarations of the deceased, shown to have been made under conviction of approaching death, were admissible and competent to cover all of the res gestee, including not only the actual facts of the assault and the circumstances surrounding it, but also the matters immediately antecedent thereto and having a direct casual connection with the assault, as well as acts immediately following the assault, and so closely connected therewith as to form part of the occurrence. Under this, his statement is admissible to show that immediately after the murderous assault his body was carried and thrown into the river, and that he crawled out at about the place where he was thrown in, by means of brush at that place, of which he caught hold and climbed out, when he could go no farther and lay down.</p> <p>Id.—Instructions—Law as to Manslaughter—Conviction oe Murder—Defendant Not Prejudiced.—Although an instruction as to the law in relation to manslaughter was inapplicable to the evidence, which showed that defendant was guilty of murder, if of any crime at all; yet he could not be prejudiced by such instruction, since if it could mislead the jury, it could only mislead them to his benefit and not to his prejudice. That they were not misled thereby is shown by their verdict of guilty of murder.</p> <p>Id.—Bequest as to Presumption of Innocence—Subject Covered by Charos—Misprision in Bequest.—The court did not err in refusing a requested instruction as to the presumption of innocence containing the misprision that “the guilt of the defendant is presumed to be innocent until the contrary is proved,” when, in view of the fact that the court fully and fairly instructed the jury as to the presumption of innocence, it was not called upon to correct the proposed erroneous instruction.</p>

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

<p>Criminal Law—Assault with Intent to Commit Rape—Sufficiency of Evidence—Conflict—Review upon Appeal.—Upon appeal from a judgment upon conviction of an. assault with intent to commit rape and from an order denying a new trial, when there is a sharp conflict in the evidence as to the character and circumstances of the assault, and especially between the testimony of the prosecuting witness and that of the defendant, each of whom is to some extent corroborated by witnesses apparently disinterested and wholly unimpeached, this court must accept as proven the facts as detailed by the witnesses for the state.</p> <p>Id.—Intent a Question of Fact for Jury.—The intent with which an assault is committed is a fact to be inferred from the outward act and surrounding circumstances, and is a question of fact for the jury and not of law for the court, except in a ease where the facts proved afford no reasonable ground for the inference drawn.</p> <p>Id.—Rule as to Uncorroborated Prosecutrix and Inconsistent Proof Inapplicable.—The rule applied in cases where the testimony of the prosecuting witness is wholly uncorroborated, and when circumstances inconsistent with her testimony are clearly proved, cannot apply to the ease appearing upon this record, when the assault and its brutal and indecent character must be considered established and the only question is as to what the defendant intended.</p>

<p>Basement in Street or Way—Subdivision of Tract—Sale of Lots Bounding on Way—Estoppel of Grantors.—When the owner of a small tract of land subdivides the same into two equal lots, leaving a street, avenue, way, court, or cul-de-sae half way between them, opening on a public street, and sells and grants such lots as bounding on the same, designated as an avenue or street, he covenants to a grantee thereof or his successors, that it is such, and they are entitled to the use thereof as an easement or right of way for purposes of travel, light, and air, and as a means of ingress and egress to their respective lots, and the grantor will not thereafter be heard to deny the same as against the grantee or his successors.</p> <p>Id.—Size of Tract and Name or Nature of Street or Way Immaterial.—It is immaterial that the tract subdivided was only two hundred and seventy-five feet by one hundred feet, and that the two lots granted were one hundred and twenty feet by one hundred, and that the street between them is a mere eul-de-sac thirty-five feet by one hundred. If the boundary described in the grant is in fact a way, it is immaterial whether it is called a way, street, avenue, lane, road, place or court.</p> <p>Id.—Cul-de-Sac Described as “Avenue or Street”—Mode of Operation of Bight of Way Immaterial.—When the cul-de-sac is described in the grant as “Linden Avenue or Street,” and each lot is bounded thereon, the grantee and Ms successors have a right of way therein; and it is immaterial whether it be deemed to operate as an implied grant, covenant, warranty, or estoppel, binding on the grantor, his heirs or assigns.</p> <p>Id.—Bule of Beference in Deed to Public Street or Highway Inapplicable.—The rule that a mere reference by way of description to a public street or highway does not convey an easement nor create an estoppel is inapplicable to a grant bounded on a way established by the owner on his own land for the benefit of his grantee and successors in interest; and in such ease it is immaterial to the easement or right of way, that the land is bounded thereby, and not granted to the center of the way.</p> <p>Id.—Effect of Deed Bounded on Way—Plat Showing Subdivision of Tract.—The deed of the two lots bounded on the way located on the grantor’s land constituted a plat showing the subdivision of the tract divided by “Linden Avenue or Street,” described- therein, and the rights of the grantee under the deed are the same as they would have been if the owner had made and filed in the recorder’s office a plat of the land showing the two lots with “Linden Avenue or Street” dividing the same, and the purchase and grant was made according to such plat.</p> <p>Id.—Prior Recovery by Grantor of Oul-de-Sao Against City Immaterial.-—The prior recovery by the grantor of the right to the eulde-sae as against the city in which the land is situated is not material in the determination of the private rights of way of the grantees based on their later deeds from the grantor.</p> <p>Id.—Rights Acquired by Grant—Non-User or Way of Necessity Immaterial.—Rights of way acquired by grant cannot be lost by non-user, nor is it essential to the existence thereof, that the easement granted should be a way of necessity, and afford the only means of access to the parcels of land granted.</p> <p>Id.—Land Claimed as Homestead—Deed by Husband and Wife— Burden of Basement in Favor of Grantee.—The fact that the land granted was claimed as a homestead is immaterial, when the land granted as bounded by the avenue or street therein described was executed and duly acknowledged both by husband and wife. The husband and wife may create the burden of an easement by their joint deed duly acknowledged, as well as to abandon the homestead thereby, and the effect of such deed so far as the easement in the avenue or street is concerned, is the same as if there were no homestead.</p> <p>Id.—Immaterial Evidence.—Seld, that no material or prejudicial errors occurred on the trial, in the admission of evidence over the objection of the appellant.</p> <p>Id.—Right of Appellant to Costs on Trial—Modification of Judgment.—Where it appears that appellant owned the fee in the avenue or street as the successor in interest of the deceased husband and wife subject to the easement, and the defendants had taken issue as to such title, appellant was entitled to recover costs on the trial, but the judgment may be modified as to such costs without reversal, or allowing costs of the appeal to the appellant.</p>

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

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

<p>Divorce—Custody of Minor Child—Modification of Decree Awarding Child to Mother.—Where both the interlocutory and final judgment in an action of divorce award the care and custody of a minor child to the mother, but its actual care and custody is assumed by the father, in pursuance of an agreement with the mother, and is retained by him for upwards of two and a half years, when the wife inaugurates a proceeding to regain the custody of the child in accordance with the judgment, alleging therein her fitness and the unfitness of the father to have its custody, and that it is for the best interest of the child that it be returned to her, an answer by the father, in response to a citation issued in such proceedings, in which he sets forth the fact of his care and custody of the child, with the consent of the mother, avers that it would be for its best interests to have the child remain with him, and denies that he is an improper person to have its control, and prays that he be allowed to retain its custody, should not be stricken out. Such answer should be considered as, in substance, an application for the modification of the judgment respecting the custody of the child, which the court has authority to make under section 138 of the Civil Code.</p> <p>Id.—Welfare of Child Controlling Consideration.—The paramount consideration, where the question of the care and custody of a minor child of the marriage is presented, is the welfare of the child.</p>

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

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

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

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

<p>Election Commissioners of San Francisco—Party Casting Highest Vote for Governor—Nominee of Two Parties—Determination of Party Votes.—The mayor of the city and county of San Francisco in determining which political party had cast the highest vote for governor in such city and county at the last preceding general election, where the same person was the nominee of two regular parties for such office, for the purpose of making his appointments to the board of election commissioners in pursuance of section 1 of chapter I of article XI of the city charter, is not limited to a consideration of the evidence furnished by the official statement of the vote of the state at such general election compiled and issued by the secretary of state, in which the aggregate vote cast for such dual nominee was attributed to him under a single party designation.</p> <p>Id.—Comparison with Votes Cast for Other Offices.—Where the same person is the nominee of two regular parties for the office of governor, there could not be found, in the strictly official records of the city and county of San Francisco, or of the secretary of state, any segregated statement of his party vote, and the mayor must resort to other than strictly official records in order to determine which of two or more parties with a common nominee for that office is entitled to representation on the board. In determining such question, the mayor should consult the records of the votes cast for other candidates of such parties who received only the nomination of their respective political party.</p> <p>Id.—Mandamus against Mayor—Negligence of Officers of Party.— The duty imposed upon the mayor of complying with such provision of the city charter is one which concerns the public, and will be enforced by mandanms, irrespective of any default or negligence of the members or official representatives of the political party entitled to representation on the board.</p>

<p>Municipal Corporation—Los Angeles—Liquor License—Business op Selling Liquor—Social Club Exempt.:—The provision o£ the ordinance e£ January 27, 1908, of the city of Los Angeles, “providing for licensing and regulating the carrying on of certain professions, trades, callings and occupations, carried on within the limits of the city of Los Angeles,” which imposes a license-tax upon “every person, firm or corporation conducting, managing or carrying on the business of a retail liquor dealer,” should be construed, in view of the general purposes of the ordinance and its particular provisions regarding liquor dealers, as applying only to such persons, etc., as are engaged in the “business of selling liquor,” in the sense in which the term business is ordinarily used in that connection, and is not applicable to a tona fide social club, which, while it furnishes liquors to its members and their guests, and receives payment therefor, does so as a mere incident of the sole object of the club of furnishing to its members the conveniences and privileges of a social club.</p> <p>Id.—Prior Ordinances op Similar Import—Want op Attempt to Collect License op Social Club—Intent op City Council.—In determining such to be the proper construction of the ordinance, the court may consider the fact that prior ordinances of substantially similar import existed in the municipality for several years before the enactment of the ordinance in question, and that under such prior ordinances no attempt was made by the municipal authorities to exact the payment of a license-tax by a bona fide social club. Such an administrative construction of the prior ordinances is evidence of an intent by the city council in enacting the subsequent ordinance not to impose a license-tax upon such social club.</p> <p>Id.—Regulation and Licensing Trappic in Liquors by Social Club— Police Power.—A municipal corporation, in the exercise of the . power to regulate traffic in intoxicating liquors that is a part of the police power conferred upon it by the constitution, may enact prohibitory laws applicable not only to those engaged in the business of selling intoxicating liquors to the public, but also to such transactions of a bona fide social club, and may regulate, by license-tax or otherwise, any and all kinds of dealings with relation to such liquors, including such dealings of a social club with its members.</p> <p>Id.—Carrying on Business—Taxation por Revenue.—Such transactions of a social club with its members are of such a nature that, in the exercise of the power to impose a license-tax for revenue on any business, the municipality may treat them as the carrying on of a business that may be taxed for revenue, and impose a license-tax thereon for that purpose.</p> <p>Id.—Business Depined—Transactions op Social Club Not Business. —The term “business,” as used in a law imposing a license-tax on businesses, trades, professions, and callings, ordinarily means a business in the trade or commercial sense, one carried on with a view to profit or livelihood. A bona fide social club, if permitted by its articles of incorporation or association, may so engage in business; but in its transactions with its members in the carrying on of its club-house looking simply to the giving to them such privileges in the property devoted to bona fide club purposes as they are all, in common, entitled to under the constitution and rules of the club, it is not engaged in business at all in the commercial or trade sense, as ordinarily understood.</p>

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

The facts are stated in the opinion of the district court of appeal for the second appellate district in the case of Ex parte Murphy, 8 Cal. App. 440.

<p>Municipal Ordinance—Public Billiard and Pool Booms—Police Power.—The opinion of the district court of appeal in the case of Ex parte Murphy, 8 Cal. App. 440, denying the petitioner’s application for a discharge on habeas corpus, followed and approved.</p>

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

<p>APPEAL from an order of the Superior Court of Santa, Cruz County granting letters of administration and from an order denying a new trial. Lucas P. Smith, Judge.</p> <p>The facts are stated in the opinion of the court.</p> <p>Sullivan & Sullivan, Theo. J. Roche, and Cassin & Lucas, for Appellant.</p>

<p>Declamation District—Bepair op Break in Levee—Power op Trustees to Contract.—Under section 3459 of the Political Code, the board of trustees of a reclamation district, the original plan of reclamation of which had been carried out and completed, has authority to enter into contracts to close a subsequent break of about fifteen hundred feet in its levee, without first submitting the plan of the work to the board of supervisors. Such work is a “repair” within the meaning of that section.</p> <p>Id.—Statement to Board op Supervisors—Revision op Cost op Work. •—Under that section, when the board of trustees has presented to the board of supervisors a statement of such repair work done or to be done, and its estimated cost, and has applied for the appointment of commissioners to assess such cost upon the lands within the district, the board of supervisors has no power to review or modify the terms of the statement, and its refusal to hear evidence concerning the subject-matter thereof is without prejudice to an owner of land assessed for the cost of the work.</p> <p>Id.—Trustee Benefited by Repair—Fraud.—The fact that one of the trustees of the reclamation district would be specially benefited by the repair of the levee would not in itself constitute fraud on the part of himself or his associates, especially if he did not become a trustee until after the original contract for the repair had been made. There is nothing illegal in a landowner acting as trustee when reclamation works are in course of construction.</p> <p>Id.—Trustee as Overseer op Work—Payment por Services—Legality op Assessment.—The fact that one of the trustees of the district acted as an overseer under the contractor doing the work of repair, and received about two hundred dollars in payment therefor, did 'not invalidate the assessment for the cost of the repair, when his claim for services is allowed after the statement and report for fixing the amount of the assessment was filed. Under section 3454 of the Political Code, the trustees have power to fix their own compensation.</p> <p>Nonsuit—Failure to Rule on Motion—Harmless Error.—-The failure of the trial court to formally rule upon a motion for nonsuit, after having taken it under advisement, even if error, was harmless, when there was no merit in the motion.</p> <p>Id..—Action to Enporce Assessment—Collateral Attack on Manner op Work.—In an action to enforce an assessment for the cost of such repairs, it was not error to refuse to permit collateral attack upon the findings of the trustees that the work was properly performed. Warrants duly issued by the trustees for the work, and approved by the board of supervisors, as required by section 3456 of the Political Code, are not subject to such a collateral attack.</p>

<p>Taxation—Assessment—Solvent Credits Secured by Personal Property—Reduction of Debts to Bona Fide Residents.—Under the provisions of section 1 of article XIII of the constitution and of the Political Code regulating the assessment of property for purposes of taxation, the holder of solvent credits secured by collateral security on personal property is entitled to have his assessment upon such credits reduced by the amount of his indebtedness to bona fide residents of the state.</p> <p>Id.—Constitutional Law—Contracts Affecting Realty.—Section 4 of article XIII of the constitution, providing that “a mortgage, deed of trust, contract, or other obligation by which a debt is secured, shall, for the purposes of assessment and taxation, be deemed and treated as an interest in the property affected thereby,” has exclusive reference to mortgages, deeds of trust, contracts, or other obligations affecting realty.</p> <p>Id.—Mortgages and Deeds of Trust.—Contracts of security on personal property are not “mortgages or trust-deeds,” within the meaning of those words as used in the excepting clause of section 1 of article XIII of the constitution, declaring that “the legislature may provide, except in case of credits secured by mortgage or trust-deed, for a deduction from credits of debts due to bona fide residents of this state.”</p>

<p>Appeal—Order Denying New Trial—Adverse Party—Service op Notice.—Notice of appeal from an order denying a motion for a new trial need be served only on the parties who were adverse to the motion in the court below.</p> <p>Id.—Dismissal of Appeal.—The burden is upon a respondent moving to dismiss an appeal for want of service upon an adverse party, to show from the record that the party not served was adverse in interest.</p> <p>Id.—Presumption in Pavor op Order Denying New Trial—Absence op Showing in Eecond—Want op Jurisdiction of Motion.—On an appeal by one defendant from an order denying a motion for a new trial all intendments are in favor of the regularity of the action of the trial court, and the burden is upon the appellant to show that error exists; and where there is nothing in the record to show that another defendant, who had an adverse interest, was a party to the motion for a new trial, or took any part in the hearing of the motion, or was served with notice of intention to move for a new trial, it must be presumed that the superior court did not have jurisdiction to grant the motion, and that the motion was therefore properly denied.</p>

<p>The facts are stated in the opinion of the court.</p> <p>Charles A. Garter, and Milton S. Hamilton, for Appellant.</p>

<p>Surety on Undertaking on Appeal—Voluntary Payment op Void Judgment—Action by Principal to Compel Repayment to Surety—Multiplicity op Suits.—Where a void judgment is entered against a surety on an undertaking on appeal, on the ex parte motion of the judgment creditor, and is thereafter voluntarily paid by the surety, the .principal to the undertaking on appeal, who had given the surety an undertaking to indemnify it against loss, cannot maintain an action in equity to charge the custodians of the money as trustees for the surety, and for its repayment to the surety. Such facts do not warrant the granting of equitable relief for the purpose of preventing a multiplicity of suits.</p> <p>Id.—Action by Surety Against Principal.—Any defense the principal might have to an action brought by the surety to recover the amount so paid of the principal, could be heard and determined in such action.</p>

<p>Appeal—McEnerney Act—Dismissal op Complaint—Service op Notice op Appeal.—Under the method of taking appeals prevailing prior to the act of 1907 (Stats. 1907., p. 753), a plaintiff in an action to establish and quiet title to land under the so-called Mc-Enerney Act, who appeals from a judgment dismissing his complaint as against certain defendants who personally appeared in the action, is not required to serve notice of appeal upon the whole world. A service of the notice on the defendants who personally appeared is sufficient.</p> <p>Id..—Adverse Parties—Dismissal op Appeal.—Such a notice of appeal need be served only on the parties who appear from the record in the proceedings in which the appeal is taken to be adverse. The burden is upon the party moving to dismiss the appeal to show from the record that a party not served was adverse, and where the record does not show affirmatively that a party not served was an adverse party to the action in the lower court, the appeal will not be dismissed.</p> <p>Ib.—Defaulting Dependants when not Adverse.—Defaulting defendants are not adverse parties to other defendants when there is no joint relation alleged between them, and a judgment against each is several and independent. Under the so-called McEnerney Act, the judgment must be several and independent.</p> <p>Id.—Practice under McEnerney Act—Alternative Method op Appeals—Service not Necessary.—The rules of practice relating to appeals under the McEnerney Act are those applicable to other civil actions, and since the establishment of the alternative method of taking appeals by the act of 1907 (Stats. 1907, p. 753), notice of appeal was not required to be served on adverse parties.</p>

<p>The. facts are stated in the opinion- of the court.</p> <p>U„ S. Webb, Attorney-General, Arthur C. Huston, Hudson Grant, and C. E. McLaughlin, for Appellant.</p> <p>Devlin & Devlin, and George & Hinsdale, for Respondents.</p>

<p>APPEAL from an order of the Superior Court of the City and County, of San Francisco dismissing a proceeding to revoke the probate of a will. J. V. Coffey, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Estate of Deceased Persons—Letters of Administration—Order of Preference—Succession to Personal Estate.—Under section 1365 of the Code of Civil Procedure, specifying the order of preference in granting letters of administration on the estate of a deceased person, relatives of the deceased are entitled to administer only when they are entitled to succeed to his personal estate or some portion thereof. Such right of succession is a controlling limitation on the right of administration.</p> <p>Id.—Letters with Will Annexed—Widow not Entitled to Succeed —Preferential Eight of Child who is Legatee—Under section 1350a of the Code of Civil Procedure, providing that letters of administration with the will annexed must be issued as designated and provided in granting letters in case of intestacy, the widow of a testator, whose will made no provision in her favor, and disposed of all his estate which it declared to be his separate property, is not entitled to letters of administration with the will annexed, in preference to a child of the testator who is a devisee and legatee under the will, unless she shows that, despite the language of the will, she would be entitled to succeed to some portion of the estate. The same rule applies to a nominee of such widow.</p>

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

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

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

<p>Mechanics’ Liens—Payment of Contract Price into Court—Fund Takes Place of Land.-—In an action for the foreclosure of mechanics’ liens against a lot and a building erected thereon under a valid contract, the owner of the property may pay into court the money due from himself to the contractor, in order to save his property from sale. Under section 1183 of the Code of Civil Procedure, such unpaid balance of the contract price is a fund set apart for the satisfaction of lien claimants, and takes the place of the land, and is to be distributed among the parties entitled thereto according to their respective priorities and equities.</p> <p>Id.—Claimants Not Establishing Liens Cannot Participate in Fund—Judgment too Favorable to Appellant.—No lien claimant who fails to establish his right to a lien is entitled to share in such fund. A judgment, however, which accords him such right, after payment in full of all valid liens, will not be reversed at his instance, where neither the owner nor the contractor1 raises any objection to such disposition of the balance of the fund.</p> <p>Id.—Claim of Lien—Failure to Credit Payment—Mistake Dub to Inadvertence.—A claim of lien, in which the claimant fails to give credit for a payment which had been made him, as the result of an inadvertence and with no intent to defraud, is not invalidated by such mistake.</p>

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

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

<p>APPEAL from a decree of the Superior Court of the City and County of San Francisco for the partial distribution of the estate of a deceased person. J. V. Coffey, Judge.</p> <p>The facts are stated in the opinion of the court.</p> <p>Louis Titus, H. M. Wright, and W. E. Creed, for Appellant.</p>

<p>APPEAL from an order of the Superior Court of the City and County of San Francisco refusing to allow attorneys’ fees ■ in the estate of a deceased person. J. V. Coffey, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Conditional Sales or Personal Property—Bights op Third Parties. —The validity of conditional sales of personal property is fully recognized in this state; and even bona fide purchasers from one to whom personal property has been delivered upon conditional sale, under an executory contract reserving title in the vendor until the purchase money is fully paid, obtain no valid claim to the property superior to the rights of the original purchaser.</p> <p>Id.—Effect of Contract Reserving Title—Right of Possession upon Default.—When a contract for the sale of personal property expressly reserves title in the vendors until the purchase money is paid the title carries with it the right of possession in case of default, though such contract does not contain the usual provision to that effect.</p> <p>Id.—Claim and Delivery for Default in Payment—Ordinary Rights of Purchaser or Assignee to Complete Purchase.—Notwithstanding the recovery of possession by the owners of the legal title for default in payment, the purchasers or their assignee if the contract of sale has not been repudiated, may still complete the purchase and perfect the right to receive the property again by paying the balance due with interest. The mere retaking of the property by the vendors determines only the right to possession at that time, and does not in and of itself terminate the life of the contract, if time is not made of its essence.</p> <p>Id.—-Repudiation of Contract by Assignee of Vendees—Defense to Suit by Assignee to Enforce Purchase—Omission in Findings —Reversal.—An assignee of a contract involving a conditional sale, who stands in the shoes of the conditional purchasers and has expressly refused upon demand to pay the unpaid purchase money and denied and repudiated the title of the vendors and claimed title to the property and has unequivocally declared that he is not bound by the contract and will not perform the obligations, cannot after the vendors have reclaimed the property, come in and demand the fulfillment of the contract which he has thus repudiated; and where said repudiation is interposed as a defense to a subsequent suit of the assignee to enforce the contract, a judgment for the assignee, without any finding upon said defense, must be reversed. [Beatty, C. J., dissenting.]</p> <p>Id.—Effect of Repudiation—Discharge of Vendors from Obligation. —Such repudiation of the contract by the assignee of the vendees will relieve the vendors from all obligations to perform on their part.</p> <p>Id.—Retaking Possession—Treating Contract as Ended not Waived :—Rescission not Required.—The retaking of the possession of the property conditionally sold did not waive the right of the vendors to treat the contract as ended by reason of the repudiation of the contract by the assignee. In the face of such repudiation they were not bound to rescind but were at liberty to treat the right of purchase as ended, and to retake the property.</p>

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

<p>PETITION for Writ of Habeas Corpus to W. K. Barretto, Marshal of the town of Santa Monica.</p> <p>The facts are stated in the opinion of the court.</p>

<p>CROSS-APPEALS from a judgment of the Superior Court of Mendocino County. J. Q. White, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>The facts are stated in the opinion of the court.</p> <p>B. A. Herrington, and William A. Bowden, for Proponent, Appellant.</p>

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

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

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

<p>Insurance—Nature of Policy—Indemnity;—Actual Loss.—A policy of insurance is a contract of indemnity against loss; and the insured is entitled to recover under the policy such loss as he has actually sustained, not exceeding the sum stipulated.</p> <p>Id.—Pire Insurance—Loss of Bents—Computation—Gross Bents.— Under a policy of fire insurance indemnifying the owner of a building in a specified sum on the rents thereof, providing that if it be rendered untenantable by fire, the insurance company shall be liable to the assured for the actual loss of rent ensuing therefrom, based upon the rentals in force from the rented portions at the time of the fire, not exceeding the sum insured, to be computed from the date of the fire for the time it would require to put the premises into a tenantable condition, the assured is entitled to receive the gross loss of rents by reason of the fire, without any deduction for supposed expenses of collecting the same. '</p> <p>Id.—Uncertainties as to Net Loss—-Agreement for Gross Loss— Absence of Provision for Deduction.—Held, in view of the uncertainties in attempting to compute the net loss, and of the absence of any provision in the policy for any deduction from the gross rents, the policy fairly construed shows a competent agreement of the parties to compensate the gross loss of rents occasioned as the result of the fire.</p>

<p>Action for False Imprisonment of Married Woman—False Charge of Grand Larceny—Arrest by Constable—Parties—Wife a Necessary Party.—In an action for damages for the false imprisonment of a married woman by a constable upon a false and pretended charge of grand larceny, the husband and wife may be joined as parties; but the wife is a necessary party without whom there can be no recovery upon the cause of action alleged.</p> <p>Id.—Damages—Community Property—Form of Action—Exception to Bule of Husband’s Sole Control.—Though the right of action and the damages recovered are community property, this form of action is an exception to the rule that the husband has control of the community property and may sue or be sued alone where it is concerned.</p> <p>Id.—Death of Husband Pending Suit—Proper Substitution of Personal Bepresent attve .—The husband being a proper party to be joined with the wife, upon his death pending suit the administratrix of his estate, as his personal representative, was properly substituted as a party co-plaintiff with the wife.</p> <p>Id.—Action on Official Bond of Constable.—Though an action will not lie against the sureties on the official bond of a constable for trespasses committed not under color of office, nor in the line of his official duty, yet such action will lie when the constable arrested and imprisoned a party upon a false and pretended charge of felony, he having the right by virtue of his office to make an arrest upon said charge without a warrant.</p> <p>Id.—Sufficiency of Complaint Against Sureties.—Where the complaint against the constable and the sureties on his bond alleges that the constable, “acting in his official capacity as constable, did arrest and imprison the plaintiff on a pretended charge of grand larceny,” it sufficiently shows the official character of the constable’s acts; but even if the form of the averment be deemed of a conclusion of law, the complaint is sufficient as against a general demurrer, where other allegations show a case of trespass committed by the constable, “while attempting to perform some official act in the general line of his official duties.”</p> <p>Id.—Liability of Constable—Instructions.—The constable was liable for any wrongful act committed by him whether done officially or otherwise, and instructions based upon his acts alone that “if he unlawfully violated the personal liberty of the plaintiff, Magdalena Gomez, or if, after making the arrest, he restrained her of her liberty for an unreasonable length of time without taking her before a magistrate, such detention constitutes a false imprisonment, and the jury must find a verdict for the plaintiffs,” have relation only to a verdict as against him.</p> <p>Id.—Instruction as to Liability on Official Bond.—It is sufficient that in an instruction bearing directly on the liability of the sureties on the official bond of the constable, the jury were properly instructed that a verdict against such sureties should be rendered only if the constable was guilty of á false imprisonment of Mrs. Gomez, “while acting in his capacity of constable of the 11th township.” Such instruction removed any ambiguity in the other instructions based on the action of the constable as affecting his liability.</p> <p>Id..—Measure of Damages Against Constable and Sureties—Detriment Proximately Caused—Anticipation not Required.—The court properly instructed the jury that the measure of damages is the amount which will compensate the plaintiffs for all the detriment proximately caused by the injury, whether it could have been anticipated or not, which rule of compensating damages also applies to the sureties on the official bond of the constable, who have thereby made themselves responsible for all torts committed by the principal in his official capacity; and their undertaking cannot therefore be governed by the measure of damages for mere breach of a contract.</p> <p>Id.—Damages not Excessive—Discretion of Jury.—Held, in view of the facts proved, that it cannot be held as matter of law that the damages awarded to the plaintiff in the sum of two thousand dollars was so great as to show that it was rendered by the jury under the influence of passion or prejudice. In eases of this kind the extent to which the allowance may go must in large measure be left to the sound discretion of the jury; and where this court cannot say that the verdict is so disproportionate to the injury proved that it cannot be the result of the cool and dispassionate discretion of the jury, its verdict will not be disturbed.</p>

The judgment cancels the bond held by the defendant, E. R. Fox and enjoins him from applying for a deed of plaintiff’s property under a sale by the county treasurer for delinquency under the bond.

<p>Criminal Law—Murder—Support of Verdict.—Held, that the evidence in this case is amply sufficient to support the verdict against the defendant, convicting her of the crime of murder in the first degree for the killing of her husband by the administration of poison.</p> <p>' Id.—Impaneling of Jury—Error in Overruling Challenge to Panel —Disqualification of Sheriff for Actual Bias.—It was error to overrule a challenge to the panel of a jury for disqualification of the sheriff for actual bias in summoning the same, where it appears that he had an unqualified opinion of the guilt of the defendant, based upon his own activity in gathering evidence for the prosecution and founded upon his direct investigation of the facts.</p> <p>Id.—Sheriff in Same Position as a Trial Juror as to Actual Bias. —Under section 1064 of the Penal Code, the sheriff in summoning a jury panel is subject to the same challenge as to actual bias which would be good ground for challenge to a juror; and when he has formed an unqualified opinion of the guilt of the defendant based upon Ms own knowledge of the evidence for the prosecution, he is absolutely disqualified to summon the panel.</p> <p>Id.—Insufficient Testimony.—The testimony of the sheriff or of a juror, that notwithstanding the unqualified opinion so forméd, he could and would act fairly and impartially, is utterly without substance or weight.</p> <p>Id.—Disqualification of Sheriff Affecting Deputies.—Though a. deputy sheriff may be personally disqualified for actual bias, without affecting the sheriff, yet when the sheriff is so disqualified, his. disqualification affects all of his deputies, though they may not be personally disqualified. The order directing the summoning of any panel addressed to the disqualified sheriff cannot be executed by a. deputy not personally disqualified, for the manifest reason that the deputy can only act in the name of the sheriff, and his act is the act of the disqualified sheriff.</p> <p>Id.—Bule as to Exhaustion of Peremptory Challenges of Jurors. Inapplicable to Challenge to Panel.—The rule that an appellate court will not review a challenge imposed to an individual juror, if • it shall be made to appear that the jury was completed without the-exhaustion by defendant of all his peremptory challenges, does not-apply to the case of a challenge to the panel because of the bias of the sheriff.</p> <p>Id..—Effect of Challenge to Panel for Bias of Officer.—When a. challenge to the panel is made for the bias of the summoning officer,, every man summoned is obnoxious to the law, and is in law a disqualified juror.</p> <p>Id.—Duty of Trial Court to Determine Qualifications of Summoning Officer in Advance.—It is the duty of the trial court to determine the qualifications of the summoning officer before ordering him to summon a special venire. If the court knows the sheriff to be-disqualified he should appoint the coroner or an elisor whom he finds-to be qualified, as the ease may be, and to avoid the unnecessary delay and expense from the summoning of a jury by an officer who-is disqualified.</p> <p>Id.—Evidence of Motive—Letters Illegally Obtained—Affection Shown for Bigamous Husband.—Notwithstanding letters of the-defendant showing affection for a bigamous husband were illegally-obtained from his residence during his absence and that of defendant, without warrant or authority and in violation of the constitutional provisions against unreasonable searches and seizures, they were not for that reason inadmissible as tending to show a motive-for the crime, in connection with evidence tending to show that such, relations could not be longer concealed from the deceased.</p> <p>Id.—Evidence Showing Belief of Former Marriage with Deceased. —Evidence tending to show the belief of the defendant that she-had formerly legally married the deceased, and as bearing upon her motive to commit the crime, consisting of her declarations as tosueh marriage, of their cohabitation and repute as husband and wife, and of an original marriage license issued to them in Arizona, with the certificate of a purported clergyman endorsed therein, certifying the solemnization of a marriage between them, to which were appended their signatures as groom and bride, was admissible-, for that purpose, though such evidence could not prove bigamy-without proof of the ministerial character of such clergyman and his authority to solemnize the marriage. But it was not incumbent upon the prosecution to prove bigamy, the truth of the matter upon which defendant’s belief was founded being inconsequential.</p> <p>Id.—Error in Refusing to Permit Disproof of Motive—Illicit Relations with Deceased—House of Prostitution.—The court , erred in refusing to permit the introduction of offered testimony by the defendant to prove that her relations with the deceased were illicit, that she had been placed in a house of prostitution by him and that he lived off of her earnings as a common prostitute. Such evidence was admissible, its weight being a question for the jury. Where marriage is asserted by one party and denied by the other, and where the motive of the crime is sought to be established before the jury, the whole of the conduct, life, and character of the parties, as affecting this question, is open to inquiry.</p> <p>Id.—Refusal of Requested Instructions as to Presumption of Innocence.—Where the instructions requested by defendant as to the presumption of innocence go farther than is warranted by the law, in declaring that the presumption of innocence is the only presumption allowable in a criminal case, and is not overcome by any other presumption, but overcomes all other presumptions of whatsoever kind or nature, they were properly refused. Conclusive presumptions are not overcome by the presumption of innocence, nor are many disputable presumptions so overcome.</p> <p>Id.—Request as to Burden of Proof to Show Former Marriage not Annulled.—A requested instruction placing the burden upon the prosecution to prove that the former marriage between defendant and deceased had not been annulled before the second marriage with the deceased was properly refused, it only being necessary to prove that defendant believed that she had been married to deceased and that the marriage had not been annulled when the second marriage was contracted.</p> <p>Id.—Error in Form of Questions to Experts Based upon Hearsay Testimony—Cause of Death—Hypothetical Questions Proper. —It was erroneous to base the opinion of expert witnesses upon the testimony heard by them, as to the cause of the death of the deceased. The proper method was to base their opinion upon hypothetical questions, so that it can be clearly established upon what the opinion is based, which cannot be done by the method pursued when it does not clearly appear that the facts heard are simple, salient) and few, and not complicated or disputed.</p>

<p>Corporations—Action by Stockholder for Benefit op Corporation —Nature op Action.—An action brought by a stockholder for the benefit of a corporation, is in its nature and essence to recover redress for some legal wrong which the corporation itself has suffered, and to prevent a failure of justice, when the directors have refused to prosecute the action.</p> <p>Id.—Personal Injury or Loss to Stockholder not Considered.—If the corporation itself has suffered no wrong, cognizable at law or in equity, it matters not how just and how grievous may be the complaint of the stockholder, nor how complete may be the proof of his personal loss, damage, or injury, but he will be compelled to resort to his individual action to obtain a personal recovery.</p> <p>Id.—Legal Agreement of Organizers to Acquire Mines with Stock. —It was perfectly legal and proper for all the parties in interest in the formation of the corporation to agree to sell all or any part of its stock in return for mining claims or anything else of value. The stock could only acquire a value by the corporation acquiring property, and if it was chosen that its whole six thousand shares of its stock should be issued to pay for securing mining claims worth at the time twenty thousand dollars and believed to have a large prospective value, the transaction was perfectly legal.</p> <p>Id.—Agreement Effectuated—Corporation not Injured.—Seld, that the evidence establishes that the agreement between the incorporators was not abandoned, but was effectuated; that the only agreement was to acquire definite mining claims, which were acquired and conveyed to the corporation; and that every officer and stockholder of the corporation knew the terms under which the stock was given up and the property received, and that the corporation was not injured, nor in a position to repudiate the transaction merely because of its inadvertence in not having it formally entered upon its minutes.</p> <p>Id.—Abandonment of Contract a Question of Intent—Intent Disproved.—The abandonment of a contract is a question of intent, and the intent to abandon must be established by declarations or conduct. Seld, that the evidence is conclusive of any intention to abandon the contract.</p> <p>Id.—Mining Claims Held for a Time by Trustee of Corporation— Conveyance.—The circumstance that the mining claims were held for a time by one of the stockholders and directors in trust for the corporation, and were by him conveyed to it, could not tend to show abandonment of the contract, or to show any fraud in the statement that the property was then owned by the subscribers to the stock, the corporation being then the equitable owner of the property, which was not injured, since it became the legal owner by conveyance from the trustee.</p> <p>Id.—Oral Agreement Consummated — Subsequent Transactions Affecting Single Stockholders.—The oral agreement having been consummated, any subsequent action by the appellants affecting only individual stockholders, cannot injure the corporation, and findings and a judgment against them based upon injury to the plaintiff as a stockholder or as representing stockholders must be set aside and reversed.</p>

<p>Partition—Consent to Attorney’s Fees—Estoppel—Appeal.—A defendant in an action of partition, who consents in the trial court to the allowance of attorney’s fees for his co-defendant, and requests a similar allowance for himself, on the ground that their services were for the common benefit, within the meaning of section 796 of the Code of Civil Procedure, is estopped on appeal from asserting the contrary and claiming that such allowances were erroneous.</p>

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

<p>APPLICATION for Writ of Habeas Corpus to the Chief of Police of the City of Oakland.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Criminal Law—Burglary—Support op Verdict—Prejudicial Misconduct op Prosecuting Attorney.—Held, that though the evidence was sufficient, upon trial of the appellant for burglary, to support the verdict of guilty of an attempt to commit burglary in the first degree, the evidence was not so strong that it cannot be said that the jury were not prejudicially misled by the persistent misconduct of the prosecuting attorney in intimating that the defendant, who had produced evidence of good character from his home town in Wisconsin, should have brought the chief of police of that town as a witness; and in asking if he had not been guilty of a disgraceful offense with one of his daughters, after the court had ruled that his family relations were not to be considered, and in persisting, after an objection was sustained for misconduct in asking such question, to ask further if defendant knew the chief of pólice of another town in which he had lived.</p> <p>Id.—Misconduct op Prosecuting Attorney, when Ground por Reversal.—Though the courts have exhibited a strong disinclination to set convictions aside upon the ground of misconduct of the prosecuting attorney, yet such misconduct is ground for reversal, when it was such as would naturally prejudice the jurors against the defendant, and it cannot be said with certainty that such misconduct was not the turning point in the case to secure a conviction.</p> <p>Id.—Eppect op Rebukes on Misconduct.—Where the misconduct is such as may have procured the verdict, and rebukes do not seem to have any effect upon the prosecuting officer, and probably as little on the jury, the only way to secure a fair trial is to set a verdict so procured aside.</p>

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

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

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

<p>The facts are stated in the opinion of the court.</p> <p>Naphtaly & Freidenrich, M. L. Schmidt, and Ackerman & Oppenheim, for Appellant.</p>

<p>Estates of Deceased Persons—Will Destroyed in Public Calamity —Probate of Independent Parts Proved by Both Witnesses— Intestacy as to Disagreed Parts.—When the will of a testatrix attested by two witnesses was accidentally destroyed by fire in the public calamity of April 18, 1906, without the knowledge or assent of the testatrix, it was not revoked thereby; nor is it essential to the probate of the will, that all of its provisions must be distinctly proved by both witnesses; but independent portions of the will clearly identified by both of them must be admitted to probate under the amendment of 1907 to section 1339 of the Code of Civil Procedure; while as to other independent parts of the will as to' which the witnesses have disagreed, there can be no probate, and an intestacy must be declared.</p> <p>Id.—General Bule as to Probate of Lost Will—Complete and Independent Provisions.—Any substantial provision of a lost will which is complete in itself and independent of the others, may, when proved, be admitted to probate, though the other provisions cannot be proved, if the validity and operation of the part which is proved are not affected by those parts which cannot be proved.</p> <p>Id.—Construction of Code as to Proof of Lost or Destroyed Will.— Section 1339 of the Code of Civil Procedure declaring that no will shall be proven as a lost or destroyed will unless “its provisions are clearly proved by at least two credible witnesses,” does not say or mean that a part thereof which is so clearly proved cannot be given effect if some other part not affecting it in any particular cannot be so established.</p> <p>Id.—Devise of Real Estate—Specific Legacy—Payments of Debts and Expenses from Besidue.—When an independent devise of real estate and a specific legacy to one person were clearly proved by both witnesses, and the independent residue of personal property was not so proved, the payment of debts and expenses of administration not otherwise provided for, must be paid out of such residue, if sufficient, and the land in any event could only be affected as a last resort.</p> <p>Id.—Effect of Will at Common Law and Under Code.—A will at common law, and by the courts of England and of the United States generally is regarded as a conveyance and takes effect as a deed upon proof of its execution, unless there is some statute requiring it to be probated; and in this state, though a probate is required, the provisions of the code plainly imply that a will once duly executed, has a recognized legal existence during the lifetime of the executor, if not revoked, and that it merely remains in abeyance until his death, and then becomes an effective instrument. The probate thereafter is merely operative as the authenticated evidence, and not as the foundation of the executor’s title, which vests in him upon the testator’s death. So, also, the title of devisees comes from the will, and not from its probate.</p> <p>Id.—Construction op Amendment to Code—Remedial Provision— Power op Legislature—Prior Death.—The amendment of 1907 to section 1339 of the Code of Civil Procedure, as to the proof for probate of a will destroyed in a public calamity in the lifetime of the testator without his knowledge, relates only to the remedy, and is within the power of the legislature, notwithstanding the death of the testator or testatrix prior to its passage.</p> <p>Id.—Rule as to Change in Law as to Estate op Heirs Inapplicable. —It is only when there is no effective will, and property has become vested in heirs that the legislature has no power to divest it by a subsequent law; but this rule has no application to a will which has been executed with all the formalities which the code requires, and which continued its potential existence, without revocation, and became effective upon the testator’s death, and the change of law relates only to the subsequent remedy as to its admission to probate when destroyed accidentally in a public calamity.</p> <p>Id.—Power op Legislature to Alter Rules op Evidence.;—The legislature has full power to alter the rules of evidence and the degree of proof and make such rules applicable to pending cases; and it was competent for the legislature to dispense with the requirement that proof should be made that the will was in existence at the death of the testatrix, when it was accidentally destroyed without her knowledge.</p> <p>Id.—Amendment as to Probate op Accidentally Destroyed Will not Retrospective.—The amendment to section 1339 of the Code of Civil Procedure in 1907 is not retrospective in its action, notwithstanding the death occurred prior to its passage. It relates only to the procedure and proof provided for prospectively upon the trial of the application for probate of the will. It has no effect upon previous trials or judgments. It is remedial in its nature and designed to serve only the subsequent proof of the testamentary right, when the will was accidentally destroyed in a public calamity.</p> <p>Id.—Remedial Laws Growing Out op San Francisco Fire—Liberal Construction.—The public calamity referred to in the amendment of 1907 to that section doubtless refers to the great fire of San Francisco in which the will in question was burned, and is a calamity which has caused much legislation intended to alleviate its effect and preserve rights that would otherwise be lost for want of evidence. Such laws should be liberally construed to promote the purposes for which they are designed.</p>

<p>Corporation-—State License-Tax—Act op March 29, 1905—Corpora-tions not Transacting Business.—The act of March 29, 1905, entitled “An act relating to revenue and taxation, providing for a license-tax upon corporations, and making an appropriation for the purposes of carrying out the objects of this act,” as amended June 13, 1906, March 19, 1907, and March 20, 1907, imposes the duty on all domestic corporations (excepting educational, religious, scientific, and charitable corporations, and all corporations which are not organized for pecuniary profit) to pay the so-called license-tax regardless of whether they actually transact or attempt to transact business in the state.</p> <p>Id.—Failure of Domestic Corporation to Pay License—Ipso Facto Forfeiture.—The failure on the part of a domestic corporation to comply with the provisions of the act by paying the charge imposed thereby for any year by four o’clock p. m. of the thirtieth day of November of that year, ipso facto works a forfeiture of its charter. It is not necessary that the forfeiture before becoming effective must be established by the decree of a court of competent jurisdiction in a proceeding brought for that purpose.</p> <p>Id.—Forfeiture at Common Law—Statute May Prescribe Forfeiture.—Although a forfeiture at common law does not operate to divest the title of the owner until by a proper judgment in a suit instituted for that purpose the rights of the state have been determined, a statute prescribing a forfeiture may be self-executing. Such is the necessary effect of the language used in the act of March 29, 1905.</p> <p>Id.—Statutes Believing from Forfeiture Already Incurred.—Section 6 of the act, as amended June 13, 1906 (Stats. 1906, p. 22), providing that any corporation which failed to pay the license-tax and penalty required by the original act “may between the first day of July, 1906, and the hour of four o’clock P. M. of the first day of September, 1906, pay the said license-tax and penalty,” together with the license-tax for the current year, and thereby “be relieved from the forfeiture prescribed” by such original act, and the amendment of such section, approved March 20, 1907 (Stats. 1907, p. 746), referring to amounts due and unpaid for the years 1905-6 and 1906-7, can bé construed in no other way than as being designed simply to relieve corporations that had failed to pay the charges for certain specified years from the effect of a forfeiture that had already occurred, upon condition that such corporations should then pay the amount of such charges. Whether such amendments, as so construed, would be in conflict with section 7 of article XIII of the state constitution is not determined.</p> <p>Id.—License Charge not Tax on Property—Constitutional Law— Privilege of Being and Continuing a Corporation.-—The charge jmposed by the act of March 29, 1905, on the corporations affected by its provisions, and denominated a “license-tax,” is not a tax on “property” within the meaning of that word as used in section 1 of article XIII of the state constitution, providing that “all property in the state, not exempt under the laws of the United States, shall be taxed in proportion to its value, to be ascertained as provided by law.” It is merely an annual charge or excise imposed by the state for the privilege obtained from it of being .and continuing to exist as a corporation.</p> <p>Id.—Power of State over Corporations—Reserved Power under Constitution.—The state has the sole power to determine upon what conditions corporations may be created and exist within its borders, and under the power reserved in section 1 of article XII of the constitution of 1879, the legislature has the right to change the conditions upon which the privilege of being and acting as a corporation |hall continue to exist, and every corporation accepts its charter subject to the exercise of such reserved power.</p> <p>Id.—Condition Imposed on Existing Corporation—Annual Payment of License Pee.—Where a state possesses such reserved power as to corporations already existing, it may, for the purpose of increasing its revenue, prescribe as one of such conditions the annual payment of any amount it sees fit.</p> <p>Id.—License Charge on Foreign Corporations.—So far as the license charge is imposed by the act on foreign corporations, it is of the same general nature and rests upon the same basis as the charge ■ imposed on domestic corporations. It is imposed as a condition of the grant of the privilege to do business in the state, and is not a tax on property.</p> <p>Id.—Due Process of Law—Privilege Granted on Condition Subsequent.—So construed, the act of March 29/1905, with its amendments, is not void as being in conflict with the due process of law provisions .of the federal and state constitutions, by reason of the fact that the failure of a domestic corporation to pay the charge imposed ipso facto works a forfeiture of its ■ charter, without any opportunity to the corporation to be heard. Practically, the act operates as a grant by the state of the privilege of being and acting as a corporation upon a condition subsequent, which is to continue only upon the condition that the corporation shall annually make ■ the payments required, and that upon failure to make such payments, the privilege shall ipso facto cease, provided, that the acts required to be performed by the secretary of state and the governor shall have been performed in the manner required. This is not the taking of property without due process of law, or, indeed, the taking of property at all, within the meaning of the constitutional provisions.</p> <p>Id.—When Forfeiture Is Incurred.—It is only when the breach of the condition prescribed by the act in fact occurs that there is any forfeiture, and there can be no forfeiture as to any corporation exempted from the provisions of the act.</p> <p>Id.—Exercise of Judicial and Executive Functions by Secretary of State.—The act is not in violation of section 1 of article III of the state constitution, providing that no person charged with the exercise of powers properly belonging to one of the three departments of the state, the legislative, executive, and judicial, shall exercise any functions appertaining to either of the others, except as in the constitution provided. The secretary of state, an executive officer, is not given judicial power to determine whether any corporation which lias failed to pay the charge, is within or without the exception mentioned in section 7 of the act. While he must exercise his judgment in determining which of the corporations whose articles are on file come within the description given in section 7, purely for the purpose of determining which shall be included in the list of delinquent corporations "he is required to furnish the governor, he does this, as a mere incident to the exercise of a purely ministerial function, and is not making a determination that is binding on any corporation.</p> <p>Id.—Uniformity of Operation;—Different Penalties Applicable to Domestic and Foreign Corporations.—The act is not in conflict with section 11 of article I of the state constitution, in failing to operate uniformly upon all the corporations to which it is applicable, in that it imposes different penalties upon domestic and foreign corporations for non-payment of the charge. The domestic corporation forfeits its charter, while the foreign corporation forfeits only the right to do business in the state. As to each, the state takes away all that it has given, and all that it can take away. The difference in the power of the state as regards domestic and foreign corporations furnishes a rational and proper basis for providing these different penalties in cases of delinquency by the two classes of corporations.</p> <p>Id.—Different Operation of Law on Different Classes.—The operation of a law is none the less uniform because it operates differently upon different classes, provided there be a reasonable basis for the classification and for a different treatment of the various classes.</p> <p>Id.—Foreign Corporations Transacting Business in State—Similarity of Conditions.—The act is not in conflict with section 15 of article XII of the state constitution, providing that “no corporation outside the limits of this state shall be allowed to transact business within this state on more favorable conditions than are prescribed by law to similar corporations organized under the laws of this state.” The conditions prescribed upon which corporations are allowed to transact business within the state are exactly the same as to both classes, domestic and foreign. Each is required to pay the same amount, and the time for payment is the same as to each.</p> <p>Id.—Drastic Nature of Penalty:—Equal Protection of Law.—The provision of the act for a forfeiture of the corporate charter of a domestic corporation for non-payment of the charge imposed by the act is not of such a nature as to bring it within the operation of the rule enunciated in Ex parte Young, 209 U. S. 123, to the effect that where the validity of a statute depends upon the existence of a fact which can be determined by a court only after investigation of a very complicated and technical character, a provision in the statute which imposes such severe penalties by way of fine and imprisonment for disobedience of its provisions, as to intimidate the parties affected thereby from resorting to the courts to test its validity, practically prohibits those parties from seeking such judicial construction and denies them the equal protection of the law..</p> <p>Id.—Sufficiency of Title of Act.—The act is not void for failure of the title to sufficiently express its subject, within the meaning of section 2Í of article IV of the state constitution. The title indicates the imposition of a charge of some kind upon corporations as such, and the language used does not reasonably tend to induce the-belief that the act was confined to corporations actually engaged in the transaction of business. It was not necessary to state in terms in the title that the act was one “amending the charters of corporations.”</p>

<p>Vendor and Vendee—Contract for Sale of Land—Designation of as Lease.—An instrument in writing, designated therein as a “lease contract,” whereby the owner of land acknowledged the receipt from the payer of a specified sum of money “as a deposit to secure” the land, and which stated that the deposit was accepted as rent of the land for one week, that the payer was to pay further sums as weekly rent for a specified number of weeks, and that upon such payments being made, the owner would convey the property to the payer, and which further contained a provision for forfeiture in the event of default in the payments, is a contract for the sale of the land, and not a lease.</p> <p>Id.—Fire Insurance—Equitable Title of Vendee—Sole and Unconditional Ownership.—A vendee in the possession of land under a valid contract of purchase which he is entitled to enforce specifically, even though a portion of the purchase price may remain unpaid, is the holder of such an equitable title as to constitute him the “sole and unconditional owner” of the land, within the meaning of a policy of fire insurance providing that it should be void if the interest of the assured be other than unconditional and sole ownership. Such rule would not apply to the ease of one in possession under a mere option, which does not bind him to make the payments or to complete the purchase.</p> <p>Id.—Waiver of Proofs of Loss—Statements of Adjuster May Constitute Waiver.—A provision in a policy of fire insurance requiring the assured to furnish sworn proofs of loss within a specified time after the fire, is waived where an adjuster for the company, within the time so limited, stated to the assured that such proofs were unnecessary, and that he would adjust the loss without them, and the assured failed to make formal proofs because of such statements, and the company made no denial of liability until after the expiration of the time limited to furnish proofs.</p> <p>Id.—Provision of Policy against Waiver.—A provision in the policy that no officer, agent, or other representative of the company shall have power to waive any condition of the policy except such as may be indorsed thereon or added thereto has no reference to those stipulations which are to be performed after a loss has occurred, such as giving notice and furnishing preliminary proofs.</p> <p>Id.—Non-Waiver Agreement Pending Adjustment.—An agreement entered into by the assured and the adjuster for the company, pending the adjustment of the loss, to the effect that any action taken by the company “in investigating the cause of the fire or investigating and ascertaining the amount of loss or damage, shall not waive or invalidate any of the conditions of the policy,” will not prevent such a waiver of proofs of loss by the affirmative representations of. the adjuster calculated to lead the assured into the belief that written proofs would not be required.</p>

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

<p>Deed—Granting Clause—-Intent to Convey Fee.—A declaration of intention in a deed “ to grant all that real property . . . described as follows: Being all of the land,” etc., cannot be construed otherwise than as an expression of intent to grant the fee, or the entire estate, in whatever is described.</p> <p>Id.—Reservation and Exception Defined—Intent—Construction.— In a strict technical sense a “reservation” in a deed is not synonymous with “exception.” The former term is applied to a clause which creates some right or privilege for the benefit of the grantor in the land described as granted, and withholds it from the operation of the grant, so that the title to the thing passes to the grantee and the right or privilege concerning it is the only thing retained by the grantor. The latter term applies to something which constitutes a part of the thing described as granted, and which would pass but for the excepting clause, the office of which is to exclude it from the thing described, and the title to the thing excepted remains in the grantor. In common parlance the words are used interchangeably, and the technical meaning will give way to the manifest intent, even though the technical term to the contrary be used.</p> <p>Id.—Construction of Deed Excepting Reservoir Site and Reserving Timber—Subsequent Deed Conveying Property Reserved.—The owner of the east half of a particular section of land caused a portion of it to be surveyed for a reservoir site, and its boundaries definitely ascertained and marked on the ground. He afterwards granted a portion of the land by a deed which described the property conveyed as all that land situated in the east half of the section “not included’’ in the reservoir site, and land necessary for rights of way for ditches or conduits constituting appurtenances to the reservoir site, and for sand and gravel to use in building a dam, and a certain water-right, and also “reserving” all the timber on a certain portion of the land. Subsequently he granted to a reservoir company all the real property situated in such east half of the section that the grantee might want for the purposes of a reservoir . . . together with all the “reservations” recited in the prior deed. Held, that in view of the situation of the parties- and the circumstances under which the deeds were made, the words “reserving” and “reservations” in the deeds should not be given their technical signification, and that by the latter deed it was the intention of the grantor to convey all the right, title, interest, and estate he had in the half section except what had been previously conveyed by the prior deed.</p>

<p>Quieting Title to Leasehold—Action Against Lessor.—The owner of a leasehold interest in real property may maintain an action, under section 738 of the Code of Civil Procedure, against the person owning the fee in the demised premises, to quiet his title under the lease against any adverse claim asserted thereto by the owner in fee. The denial by the owner in fee of the existence of the leasehold interest is the assertion of such an adverse claim.</p> <p>Id.—Chattel Real—Interest in Land.—While an estate for years is only a chattel real, and governed generally by the rules applicable to personal property, still it is expressly declared to be an interest or estate in real property by section 761 of the Civil Code, and under section 738 of the Code of Civil Procedure, the owner of any estate or interest in land of which the law takes cognizance, is • entitled to have any claim adverse to his interest determined.</p> <p>Lease—Condition Against Assignment—Consent and Waiver.—The consent to or waiver by the lessor of a condition in the lease against assignment does not have the effect to free the leasehold estate from other conditions in the lease, such as those relating to the carrying on of other classes of business and subletting for such other classes of business.</p> <p>Id.—Assignee Takes Subject to Other Conditions and Covenants.— The assignee of a leasehold estate takes it subject to all the obligations imposed by the lease, except that where there is a condition against assignment without consent, which is necessarily single in its nature, such condition is wholly discharged by the consent or waiver. Where the conditions are continuing in their nature, such as covenants for the payment of rent at stated intervals, or for the carrying on of only certain kinds of business in the demised premises, or against subletting without written consent, the consent or waiver of a breach does not preclude the right of the lessor to proceed against the lessee for subsequent breaches.</p> <p>Id.—Waiver op Independent Stipulations.—The consent to or waiver of the breach of some particular condition or covenant in a lease is not a consent to or waiver of other independent stipulations.</p> <p>Id.-—Judgment Quieting Title of Lessee’s Assignee.—In an action by an assignee of a lease which contained a condition against assignment, to quiet his title against the lessor, in which the court finds that the assignment was consented to by the lessor, a judgment in favor of the assignee should not be broader than to decree him to be the owner of the leasehold interest, subject to all the conditions, covenants, obligations, and stipulations contained in the lease, except the single condition against assignment.</p> <p>Id.—Renewal op Lease—Provision Appecting Assignees.—A covenant in a lease against assignment without the consent of the lessor, with a provision for re-entry in the event of a breach thereof, is not affected by a provision in a subsequent agreement for the renewal of the lease, that such “agreement shall inure to and . . . bind the heirs, executors, administrators, successors and assigns of the several parties.’’ Notwithstanding such provision, the consent of the lessor would be essential to any assignment which would be binding upon him, and there could not be any “assign” of the lessee in whose favor the provision would operate, except one who had become such by consent of or waiver of the lessor.</p> <p>Id.—Acceptance op Rent after Assignment when a Waiver— Knowledge op Assignment.—A lessor cannot be deemed to have consented to an assignment of the lease, or waived a breach of the condition against assignment, from the mere fact that he has accepted rents accruing since the assignment. To have that effect, the acceptance of the rent must have been with actual knowledge of the assignment. It is not sufficient that the lessor might upon inquiry have discovered the fact.</p> <p>Id.—Evidence op Knowledge op Assignment.—Upon the facts in this ease, it is held that the evidence was insufficient to show that the defendants had any knowledge of any assignment of the lease in question at the time of the acceptance of rents, and therefore that there was no consent to or waiver of the condition against assignment by reason of such acceptance.</p>

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

<p>Vendor and Purchaser—Contract op Sale—Destruction op Records —Title not Deducidle op Record—Rescission—Recovery op Part Purchase Money Paid.—Under a contract of sale of land in the city and county of San Francisco, made eight days prior to the conflagration of April 18, 1906, in which most of the records were destroyed, it being thereafter impossible for the vendors within the time limited by the contract, to make a title free from defect or possible encumbrance, fairly dedueible from the entire record of the county, the purchaser was thereafter entitled to rescind the contract, and to recover back part of the purchase money paid thereon previous to the fire.</p> <p>I'd.—Placing Chain op Title op Record—Tender op Deed and Demand op Purchase Money—Action by Vendor not Tenable.—The fact that the vendors recorded a deed conveying the property to them within the time limited, and one month later recorded other conveyances and certified copies, by which the title was apparently traced to a patent from the United States, and thereafter tendered a deed, and demanded the balance of the purchase money, does not establish a title, free from possible defect or encumbrance, dedueible from the entire record, and does not authorize the vendors to enforce the contract of sale, or to maintain an action of damages for its breach by the purchaser.</p> <p>Id.—Setting of Entibe Record Required.—The setting of the entire record is required to determine whether the chain of title is perfect and free from defect, and the setting having been destroyed, no title could be furnished by the vendors in accordance with the terms of the contract, which provided that if the title, within the time limited, was found incurably defective, the deposit was to be returned.</p> <p>Id.—Effect of Preservation of General Index.—The preservation of the general index of records from destruction by fire could have no other effect than to furnish the intending purchaser mere clues to recorded documents destroyed by fire, without apprising him of any substantial part of their' contents.</p> <p>Id.—Effect of Eire—All Titles Unmerchantable until Restored under McEnerney Act.—The effect of the conflagration of April 18, 1906, was to make all titles at the time unmerchantable until they were restored of record as against all persons under the provisions of the McEnerney Act, which was enacted for the purpose of removing tenable objections to titles in the city and county of San Francisco.</p> <p>Id.—Implied Condition in Executory Contract of Sale of Land.—In every executory contract for the sale of land there is an implied condition that the 'title.of the vendor is good, and that he will transfer to the vendee by his deed a title unencumbered with defects, which is marketable and fairly dedueible from the record.</p> <p>Id.—Motives of Rescission by Purchaser Immaterial.—The motives which prompted the purchaser to rescind the contract of sale were immaterial, since it was his right under that contract to receive a perfect title of record within the time specified in the agreement, which could not be given. He was entitled to rest on the terms of the contract, whether or not his real purpose was to avoid taking and paying for a tract which had depreciated in valué.</p>

<p>Corporation—Liability op President in Individual Capacity on Corporate Contract.—A written contract between a corporation and its attorney, which was signed by the president of the corporation only in his official capacity, whereby the corporation agreed to pay the attorney for his past services a certain sum of money from the proceeds of the sale of its corporate property, and to further pay him a specified monthly salary for his future services, does not impose any individual obligation on the president to make such payments, notwithstanding he owned nearly all the capital stock of the corporation, and dominated its policy.</p> <p>Id. —Misrepresentations by President.—Where such attorney was thoroughly familiar with all the facts concerning the president’s relation to the corporation, the fact that the latter misrepresented to him the matter of the corporation’s profits would not have the effect of rendering him individually liable on the contract.</p> <p>Id.—Contract Signed by President “as Stockholder.”—A subsequent contract, between the attorney and the corporation, which was signed by the president in his official capacity and also as “stockholder,” whereby the former agreement was extended so far as related to the provision for the payment of a monthly salary, cannot be construed as imposing a personal liability on the president for the amount agreed to be paid the attorney for his past services from the proceeds of the sale of the corporate property.</p> <p>Id.—Evidence oe Intent.—Parol evidence was admissible to show, and in this ease does show, that the president, by the use of the words “as stockholder,” did not intend to be bound personally.</p>

<p>The facts are stated in the opinion of the court.</p> <p>Goodfellow & Eells, T. C. Coogan, and H. B. M. Miller, for Appellant.</p>

The facts are stated in the opinion of the court. Pillsbury, Madison & Sutro, Thomas, Pemberton & Thomas, and Weldon & Held, for Appellant. Held: for Appellant.

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

<p>Wills—Charitable Uses in Perpetuity Must Be Exclusively Such. .—A will in order to create a charitable trust in perpetuity must be confined in .its application to charitable uses only.</p> <p>Id.—Construction op Constitution.—Section 9 of article XX of the constitution providing that “No perpetuities shall be allowed except for eleemosynary purposes,” is to be construed as limiting such perpetuities to “charitable” purposes, the word “eleemosynary” used therein being synonymous with “charitable.”</p> <p>Id.—Construction op Code.—Sections 847 and 857 of the Civil Code apply only to private trusts, and not to trusts for charitable uses. A trust to convey real estate and convert into money to be used for charitable purposes, is not void under those sections, nor is it within the rule laid down in the decisions o£ this court as to the invalidity of private trusts to convey; nor does section 715 of the Civil Code limiting restraints upon alienation, restrict charitable perpetuities.</p> <p>Id.—Rule at Common Law.—-At common law trusts to be valid as perpetuities must be limited to charitable purposes,' and the common-law rule upon that subject has never been changed in this state.</p> <p>Id.—Void Trust in Perpetuity—Other than Charitable Purposes—. Discretion of Executors or Official Board.—A will which provides for the application of the testator’s funds for such charities, institutions of learning, and science, and for distinguished scholarship and scientific discovery, and inventions, as shall be directed by his executors within three years, or in ease of their failure to do so, as shall be directed by an official board of trustees provided for in the will, is void, both as authorizing other than charitable purposes, and in leaving the designation of purposes wholly to the discretion of the executors or official board, thus rendering the trust void for uncertainty.</p> <p>Id.—Institutions of Learning and Science—Private Enterprises.— Though institutions of learning or science may or may not be charitable, it is sufficient to avoid the trust, that, without violating the directions of the will, the entire fund could be devoted to institutions-of learning and science carried on for private gain, of which there are many, or to the encouragement of abstract scientific discoveries-not tending to benefit mankind, or to reward inventions calculated to profit the inventor alone, or those to whom he should transfer his secret or patent.</p> <p>Id.—Partial Distribution to Heirs.—The trust being void, a decree of the superior court making a partial distribution of the estate to-the heirs must be affirmed upon appeal therefrom by the board of trustees provided for in the will.</p> <p>Id.—Effect of Prior Decision of Superior Court Quieting Title of Heirs Against Trustees—Question not Decided.—Held, that the-trust being void for the reasons given upon this appeal, it is unnecessary to determine the question whether the decision of the superior court in an action by the heirs against the trustees quieting their title under section 738 of the Code of Civil Procedure, unappealed from, was res adjudicata as between them upon the order of partial distribution to the heirs appealed from by the trustees.</p>

<p>Cancellation of Note—Fraudulent Representations Accompanying Sale—Admissions against Interest—Evidence.—In an action to cancel a promissory note given for the purchase price of stock in a mining company, on account of misrepresentations and fraud concerning the value and character of the mines owned by it, evideuce is admissible for the defendants to the effect that after the making of the note the plaintiff had visited the mines and had fully examined them, and thereafter had expressed himself as satisfied with their character and value. Such statements, taken in connection with the fact that the plaintiff had previously made several examinations of the mines, both before and after he purchased the stock, constituted an admission against his interest tending to show that the representations complained of were not false.</p> <p>Id.—Conflict of Evidence—Questions fob Trial Court.—The weight of testimony and the credibility of witnesses are matters for the exclusive determination of the trial court in any ease where there is a substantial conflict.</p>

“Beeeived by the Panama Bailroad Company . . . under the contract hereinafter contained, the property mentioned below . . . Held: that under such contract there was no stipulation on the part of the initial carrier to deliver the goods at Los Angeles, or to be responsible therefor beyond the terminus of its line, and that its liability ceased upon its delivery to a connecting carrier at such terminus.

<p>County Officers—Statute Increasing Compensation—Operation with Respect to Incumbents in Office—Effect of Pre-Existing Law.—A law increasing the compensation of a county officer, although an existing statute, is not in force with respect to incumbents in office at the time of its enactment, because, under section 9 of article XI of the constitution, there is no subject upon which it can constitutionally operate. It remains in abeyance as to such officer, and must so remain, until the beginning of the next ensuing regular term of the office affected by the increase. As to such incumbents, the previously existing law remains in full effect.</p> <p>Id.—Codifying Act of March 18, 1907—County and Township Government.—This construction must be given to the act of March 18, 1907, systematizing and codifying the various provisions relating to county and township government, theretofore contained in the Political Code and the County Government Act, by making them a part of the Political Code, with respect to incumbents in office at the time of its enactment, in so far as it purports to increase the compensation attached to such office. This result follows, although by the terms of the act it was made to take effect immediately.</p> <p>Id.—Repeal of Statutes by Implication.—Repeals of statutes by implication are not favored, and in the absence of an express repeal an existing statute is not abrogated by the enactment of a new one, unless the provisions of the latter act are so inconsistent with the former that the two cannot have a concurrent operation, or unless the latter act so fully covers the whole subject-matter of the prior as to afford conclusive evidence that it was 'intended to supersede it entirely.</p> <p>Id.—Concurrent Operation of County Government and Codifying Acts.—There is no such inconsistency between the codifying act of March 18, 1907, and the County Government Act of 1897, that they cannot have a concurrent operation as to the compensation of county officers in every instance in which they differ, and the fact that in numerous instances of increase of salary they must have a concurrent operation proves that the codifying act was not intended to supersede in all particulars the pre-existing law.</p> <p>Id.—Construction of Codifying Act—Provisions Changing Method of Compensation of Officers.—Inasmuch as the codifying act of March 18, 1907, does not repeal the County Government Act, and merely amends it by increasing the salaries of certain officers and by changing the compensation of other officers from fees to salary or from salary to fees in such a manner as to leave the courts no means of determining whether these amendments will operate an increase or reduction of compensation, it should be construed so as to treat all its provisions alike; and, knowing that such of its provisions as increase salaries could have been intended to apply only to officers elected subsequent to the amendment, to conclude, in the absence of specific declaration to the contrary, that other amendments which may or may not have the effect of increasing compensation were likewise intended to operate only in favor of or against officers to be thereafter elected.</p>

<p>Corporations—Liability or Stockholders to Judgment Creditor on Unpaid Subscriptions—Call or Demand on Directors Unnecessary.—A judgment creditor of a corporation may maintain an action against the corporation and its stockholders, in the nature of a creditor’s bill, to compel the payment and application upon the plaintiff’s judgment of so much of the amount due from the stockholders to the corporation upon unpaid subscriptions as may be necessary to satisfy the judgment and costs, although no call or assessment had been made by the corporation upon the unpaid subscriptions, and no demand had been made by the judgment creditor upon the directors of the corporation to make such call or assessment.</p> <p>Id.—Call Necessary to Action by Corporation.—Where a solvent corporation finds it necessary in the course of its business to call in an additional amount of its subscribed capital stock, and the subscription agreements do not state when, in what amounts, and upon what conditions it is to be paid, the statute, being the measure of the corporate rights in that regard, must be followed, and a call is a necessary condition to the existence of a cause of action by the corporation to recover upon such subscriptions. But this rule has no application to a proceeding in equity by a judgment creditor to subject the unpaid subscriptions due to the corporation to the satisfaction of the judgment.</p> <p>Id.—Liability op Stockholders op Foreign Corporation.—An action may be maintained in this state against the stockholders of a corporation organized under the laws of another state, by a judgment creditor of the corporation, to subject their unpaid subscriptions to the satisfaction of his judgment, where the evidence fails to show the laws of such other state affecting their liability. The presumption is that the laws of such state are similar to the laws of this state.</p> <p>Id.—Call in Suit by Creditor.—Conceding that an assessment or call of some character is a proceeding which the stockholders may insist upon, the only effect would be that the court in equity, after it had obtained jurisdiction of the stockholders, would have authority to make whatever call the law should require in that behalf, and it could thereupon order them to pay into court such amount as it should find necessary to satisfy the demands of the complainants. This order would be a sufficient call to satisfy all that is required by the law in this particular.</p>

<p>Deed and Declaration op Trust as Single Transaction—Construction.—A grant, bargain, and sale-deed o£ land, and a declaration of trust executed four days thereafter by the parties thereto subjecting said deed to the provisions of the trust agreement, should be considered as parts of a single transaction and so construed.</p> <p>Id.—Trust-Deed to Secure Indebtedness—Power to Sell, Manage, Exchange, and Partition—Mortgage.—A deed of trust of land executed for the sole purpose of securing an indebtedness of the grantor, with interest, expenses of protecting the property and compensation of the trustee, and empowering the trustee to sell the property in order to obtain money for the payment of the indebtedness, and purporting to empower the trustee to “manage” the same, and to “exchange,” or “partition” it, is not a mortgage, and is valid as a trust-deed, under subdivision 1 of section 857 of the Civil Code.</p> <p>Id.—Limitation on Power op Management.—The power to “manage” the property conferred by such deed must be construed as intending only such control of the property as is proper in the lawful execution of the trust created as security for the indebtedness.</p> <p>Id.—Power to Exchange and Partition.—Admitting that the conveyance in trust is invalid in so far as it purports to authorize the trustee to “exchange” or "partition” the property, such invalidity .would not affect the valid provisions for the conversion of the trust property so far as necessary into money wherewith to discharge the indebtedness secured thereby, which was the main purpose of the grantor.</p> <p>Id.—After-Acquired Title Inures to Benefit op Grantee.—Where the deed executed by the grantor contained the usual words of grant, bargain, and sale, and described the land conveyed “as all that certain tract of land” (particularly describing it), without any reservation, or any words in any way limiting the interest conveyed, or tending to show an intent to make a quitclaim deed only, any interest in the land afterwards acquired by the grantor inures to the benefit of the grantee, and is held by him subject to the trust agreement. This result follows, although at the time of the execution of the deed and trust agreement, the grantor had only a certain undivided interest in the land, and the trust agreement contained a recital of the execution of the deed whereby she had conveyed all her right, title, and interest in the property.</p> <p>Id.—Appeal prom Order Denying New Trial—Pleadings—Findings. —¡No question of the sufficiency of the pleadings, or of the findings to support the judgment, is involved in or can he considered on an appeal from an order denying a new trial.</p>

<p>Primary Elections—Act op March 24, 1909, is Constitutional.—• The act of March 24, 1909, entitled “An act to provide for and regulate primary elections and providing the method whereby electors of political parties may express their choice at such primary elections for United States senator,” adopted in pursuance of the constitutional amendment of 1908, to section 2% of article II of the constitution, is valid, and operated to supersede the so-called primary law of 1905 as amended in 1907, the provisions of which are contained in the Political Code in sections 1357 to 1375 inclusive.</p> <p>Id.—Title op Act—Subjects Expressed in Title are Germane—Vote Relative to United States Senators.—Constitutional Law.— The act is not violative of section 24 of article IV of the constitution, for embracing in its title subjects which are not germane. So far as concerns the provision of the act with reference to an advisory vote relative to United States senators, the matter of such advisory vote is germane to the subject of a primary election.</p> <p>Id.—Provision for Voting for United States Senator Does Not Invalidate Act.—The subject of the act being germane, so as not to fall within the inhibition of section 24 of article IV of the constitution, the act is not rendered invalid by reason of its provisions giving an opportunity to voters of the parties participating in the primary to express their choice for a candidate for United States senator. There is nothing in the constitution—either amendment of section 2% of article II or any other provision—which prohibits the legislature from providing at a primary for an expression of a choice as to a candidate for United States senator. Although conducted at the same time, and under the same election machinery, it is not strictly a part of the primary election contemplated by the amendment of section 2% of article II of the constitution.</p> <p>Id.—Provisions for Nominating Candidates •— Reasonableness of Tests and Conditions—Nomination by Political Parties—Nomination by Petition.—The provisions of the act with reference to the nominations of candidates by “electors,” “political parties” or “organizations of electors,” are not unconstitutional. The legislature had the power, under the amendment of section 2% of article II of the constitution to determine the reasonable tests and conditions upon which such classes, or either of them, might participate in such primary election, and might, as reasonable conditions, practically provide that only political parties which had candidates for presidential electors at the last presidential election, or political organizations which, having no such candidates, yet were represented by candidates on the official ballot at said presidential election or last preceding state election, and received a certain vote, should be entitled to participate, and that electors and bodies of electors should have the right of nomination of independent candidates by petition, as provided by section 1188 of the Political Code.</p> <p>Id.—Legislature May Prescribe Different Tests and Conditions for Different Glasses.—There is nothing in the constitutional amendment which requires the legislature to adopt a universal mode whereby all the classes mentioned may participate in the primary election. Under the power to provide tests and conditions, it may prescribe different tests as to different classes, its power being limited, however, to providing tests and conditions which are reasonable and not arbitrary.</p> <p>Id.—Nomination by Classes Other than Political Parties—Non-Participation in First Primary.—The fact that the mode of nominating candidates under section 1188 of the Political Code, given by the act to classes other than political organizations, does not give them the right to participate in the first primary held under the act, does not invalidate the act. It provides a test and condition under which electors or organizations of electors may acquire the status of a political party and may go into future primaries with, the same rights as any other party, and in so doing it meets the requirements of the amendment of section 2% of article II of the constitution.</p> <p>Id.—Inapplicability of Act to Municipal Elections—Municipal Affairs.—Section 2 of the act, providing that its provisions as to primary elections shall not apply “to the nomination of officers of municipalities whose charters provide a system of nominating candidates for such offices,"’ does not invalidate the act by making it special or local. The amendment of section 2% of article II of the constitution does not require that such an act should apply to all elections, but only to general elections. So far as municipalities are concerned, the law stands the same as any other general law which, under section 6 of article XI of the constitution, is not binding upon a municipality as to matters which are strictly municipal affairs. The election of municipal officers is strictly a municipal affair.</p> <p>Id.—Payment of Fees by Candidates—Reasonableness of Conditions. —The provisions of the act requiring the payment of certain fees by candidates on filing with the proper officer their nomination papers and affidavits of candidacy, does not invalidate the act. Such provisions are not in conflict with section 24 of article I of the constitution, providing that no property qualification shall ever be required of any person to vote or hold office. Even if such provisions were in conflict with that section of the constitution, it would not invalidate the entire act. If eliminated, the rest of the act, providing a general scheme for primary elections, could stand. The exaction of such fees is sustainable, under the amendment of section 2% of article II of the constitution, as a valid exercise of the power of the legislature to provide reasonable conditions for the exercise of the rights granted by the act, and as a reasonable restriction to prevent an indiscriminate scramble for office.</p> <p>Id.—Oath of Candidate as to Party Affiliation.—The requirement of the act that when the nomination papers of a candidate are filed they shall be accompanied by an affidavit of the candidate declaring, among other things, the name of his party and that of the office for which he desires to be a candidate, that he affiliated with said party at the last preceding general election, and either that he did not vote thereat, or voted for a majority of the candidates of said party at such election and intends to so vote at the ensuing election, is a reasonable test, authorized by the amendment of section 2% of article II of the constitution for the purpose of determining who are entitled to become party candidates. (Angellotti, J., dissenting.) Such requirement is not violative of section 3 of article YY of the constitution, prescribing the form of official oath, and declaring that “no other oath, declaration or test shall be required as a qualification for any office or public trust.” That section only applies to persons who have been appointed or elected to office and are about to assume a discharge of the duties thereof, and does not apply to any oath which may be required to be taken by a candidate at a primary eleetien.</p> <p>Id.—Name of Candidate on Official Ballot—Elector can only Vote for His Party Candidate.—Under the tests provided in the act a person can have his name printed on the official ballot only as a candidate at a primary of the party with which he affiliated at the last general election, and an elector can only vote for persons to be candidates of the party with which he has registered that he affiliates. Both of these tests are reasonable, and such as under the constitutional provision relating to primary elections the legislature was authorized to provide. (Angellotti, J., dissenting.)</p>

<p>Mortgage of Homestead—Death of Husband—Insufficient Claim Against Estate—Probate Sale of Homestead to Mortgagee— Mortgagee in Possession.—Where a mortgage was executed by a husband and wife on land a part of which was subject to a homestead declared by him, and upon the death of the husband, an insufficient claim on the mortgage indebtedness was allowed by his administrator and approved by the court, and thereafter and subsequent to the death of the wife, under a probate sale in his estate, the entire land was sold subject to the mortgage to the mortgagee, the latter becomes a mortgagee in possession, and in an action by the successors in interest of the wife to quiet their title to and recover possession of the land embraced in the homestead, the mortgagee may set up the mortgage indebtedness and have a foreclosure of the mortgage as to the entire mortgaged premises.</p> <p>Id.—Termination op Homestead on Death op Surviving Wipe—Subsequent Foreclosure without Presentation op Claim.—Upon the death of the surviving wife, the homestead, the title to which had vested in her upon the death of her husband, ceased to exist, and the mortgagee then had the right, under section 1500 of the Code of Civil Procedure, to foreclose on the entire mortgaged property, without the presentation of a claim against the estate of the wife, upon waiving recourse against any other property of her estate. In such action, the heirs of the wife have not any right, under section 1475 of that Code, to have the property other than the land on which the homestead had been declared first applied to the payment of the mortgage indebtedness.</p> <p>Id.—Dependants Having Interests Subject to Mortgage—Pleading —Evidence op Priority.—Where the complaint to foreclose a mortgage alleges that certain defendants have or claim to have some interest or estate in the mortgaged premises, but that such claims or interests are subject to the lien of the mortgage, and the defendants by their answer merely deny that their claims are subsequent thereto, it is incumbent upon them to offer evidence as to their priority. Upon their failure so to do, they cannot on appeal complain of a finding against them.</p> <p>Id.—Claim against Estate—Abbreviation op Word Interest.—A claim against the estate of a deceased person, for a specified amount “& int.,” of which the approval by the administrator and the allowance by the court were both expressed in the same manner, using the abbreviation “int.,” should be construed as presented, allowed, and approved for interest, including interest accruing after its allowance.</p> <p>Id.—Identification op Mortgage in Claim.—The provisions of section 1497 of the Code of Civil Procedure, regarding the reference to the record of the mortgage, in the statement of the claim secured thereby when presented against the estate of a deceased person, are enabling and not restrictive or exclusive. Any other mode of statement which fully informs the personal representative of the deceased of the terms of the mortgage is sufficient.</p> <p>Id.—Original Note and Mortgage Presented with Claim.—Where the original note and mortgage on which a claim against the estate of a deceased person is based is inclosed in an envelope with the claim at the time of its presentation to the administrator for allowance, any insufficiency in the formal claim in its identifying references to the mortgage, or clerical inaccuracy in its description of the mortgaged premises, is cured.</p>

<p>Criminal Law—Indictment—Pleading Particular Circumstances.— Where necessary to show a complete offense, the particular circumstances constituting it must be pleaded in the indictment.</p> <p>Id.—Perjury—False Denial That Defendant “Told” a Bank— Sufficiency of Indictment.—An indictment for perjury, which charges that the defendant falsely testified that he never “told” a designated bank not to do a certain thing, the falsity of which declaration is charged by the averment that the defendant, prior to a specified date, did “tell” said bank not to do such thing, is not subject to a demurrer for insufficiency in its allegations of the perjurious matter.</p> <p>Id.—Special Demurrer to Indictment—Failure to Designate Officer of Bank Who Was Told—Appeal.—Such indictment was obnoxious to a special demurrer for failure to comply with the requirements of subdivision 3 of section 952 of the Penal Code, in omitting to name the officer of the bank whom the defendant told. Such objection, however, to be available to the defendant on appeal, should have been taken by a special demurrer in which the precise defect was specifically pointed out. It cannot be taken advantage of under a general demurrer that the indictment did not conform to the requirements of section 952 of the Penal Code, nor under a special demurrer that the indictment was not direct and certain, in other specified respects, as to the particular circumstances of the offense charged, nor under a demurrer that it does not substantially conform to the requirements of section 966 of the Penal Code declaring that indictments for perjury shall contain “proper allegations of the falsity of the matter on which the perjury is assigned.”</p> <p>Id.—Assignment of Perjury—Explanation by Innuendo when Necessary.—The assignment of perjury in an indictment consists of an express contradiction of the defendant’s statement on oath, when necessary, explained by innuendo. If the statement charged as false is of a particular fact, it is sufficient in the averment to negative that fact. If the statement is general, and the existence of a particular fact makes it false, that fact must be alleged positively. It is in this latter class of cases that the necessity of an averment by innuendo arises.</p> <p>Id.—Oath to Testify Truly—Sufficiency of Allegation.—An indictment for perjury which charges that the defendant, at a specified trial before a specified superior court, “was then and there duly sworn before the said superior court in open court, that the evidence that he . . . should give to the said court, then and there touching the matters then in question in the trial of said civil action, should be the truth, the whole truth and nothing but the truth,” sufficiently alleges that the defendant was sworn “to testify truly.”</p> <p>Id.—Deputy Clerk op Superior Court—May Administer Oath.— Under section 14 of article VI of the constitution, county clerks are ex officio clerks of the courts of record in and for their respective counties, and an indictment for perjury which alleges that the oath was administered by a named individual, “who was then and there the duly appointed, qualified and acting deputy clerk of the superior court” of the county, sufficiently shows that it was administered by a person authorized so to do. In such matter, the deputy may act for his principal.</p> <p>Id.—Instruction Requested by Dependant Cannot be Complained of.—On a trial for perjury, where the court had instructed the jury that before they could convict the defendant they must find “that he knowingly and willfully testified falsely in the manner and form charged in the indictment in this ease, excepting in one particular, which I will come to later,” its omission to subsequently explain such exception cannot be complained of by the defendant if the instruction were given at his request.</p> <p>Id.—Confusion in Instructions Operating to Benefit Defendant.— If the result of the court’s failure to explain such exception was to leave the minds of the jurors in a confused state, such confusion would be for the benefit and not for the injury of the defendant.</p> <p>Id.—Materiality of False Testimony — Question fob Court — Contradictory Instructions Without Prejudice,—In such a trial, it is proper to instruct the jury that “whether the testimony alleged to be false was or was not material is a question of law which is for the court to determine and not for the jury”; and a conflicting instruction, whereby the jury was told that it must determine the materiality of the evidence, was without prejudice to the defendant, and will not warrant a reversal of a judgment of conviction.</p> <p>Id.—“Telling” Bank—Evidence of Request to Officers.—The allegation in the indictment that the defendant “told” the bank not to do the thing charged is sufficiently established by evidence that he requested its president and its teller not to do it.</p> <p>Id.—Admissibility op Judgment-Roll in Action in Which Perjury Was Committed.—On the trial for perjury, the judgment-roll in the action in which the perjury was committed is admissible in evidence as tending to show the pendency of the proceeding, the jurisdiction of the court, the giving of the testimony, and its materiality.</p>