Volume 157 — California Reports

<p>Jurisdiction op Supreme and District Courts op Appeal—Constitutional Law—Amendment op 1904—Appeals Involving Legality op Tax.—The amendment of 1904 to section 4 of article VI of the constitution, defining the respective jurisdictions of the supreme court and of the district courts of appeal, was intended to modify the previous construction that had been placed on the clause relating to supreme court jurisdiction, and to diminish the jurisdiction formerly vested therein. The provision regarding the supreme court jurisdiction, with respect to appeals in all eases at law which involve the legality of any tax, etc., although unchanged in its verbiage, should now be construed as having a meaning somewhat different from that formerly ascribed to it, so as to give the district courts of appeal full jurisdiction of all classes of cases expressly assigned to them.</p> <p>Id.—Jurisdiction op District Courts op Appeal—Appeals Incidentally Involving Matters Within Supreme Court Jurisdiction.—Under that amendment, the district courts of appeal have appellate jurisdiction in all eases specifically mentioned as belonging to its jurisdiction, although they may incidentally involve the •title to or possession ,of real estate, or the legality of a tax, impost, assessment, toll, or municipal fine.</p> <p>Id.—Mandamus—Payment op Warrant Against Protection District —Legality op Tax.—The district court of appeal has jurisdiction of an appeal in a proceeding in mandamms to compel the payment of a warrant out of the general fund of a protection district organized under the Act of February 23, 1907 (Stats. 1907, p. 16), notwithstanding the question of the legality of the tax from which the fund was derived is incidentally involved in the proceeding.</p> <p>Id.—Protection District—Title of Act of February 23, 1907.—The act of February 23, 1907 (Stats. 1907, p. 16), for the organization and government of districts for the protection of the lands of farming or other communities from overflow from the waters of unnavigable streams, is not void because of any fault in its title. The title expresses the subject of the act with unnecessary particularity, and the details provided for in the act, but not expressed in the title, are incidental to the main subject which is expressed.</p> <p>Id.—Provision Guarding against Bepeal of Prior Acts.—The act is not rendered inoperative by reason of the provisions of section 92 thereof, declaring that it does not supersede or repeal previous acts on the same general subject, but is intended as an independent and alternative means of effecting the protection therein provided for “where the provisions of this act are most applicable or desirable to the parties interested.”</p> <p>Id.—Provision Allowing Non-Besident Landowners to Vote.—The amendment of section 6 of the act, allowing any owner of land in the district to vote, although he may not be a resident therein, if invalid, would not affect the act which it purported to amend.</p> <p>Id.-—Act is not Special Legislation.—The act does not violate the inhibitions of the constitution against local or special legislation because it prescribes certain rules of procedure in certain actions, authorized by the act, to contest elections therein provided for and to establish the validity of bonds of the district, or because it prescribes certain duties for county ofBeers of the counties in which such districts are located, not required of other county officers. Even if such incidental provisions were invalid, the remaining main parts of the act would not be affected.</p> <p>Id.—Area of District—Single Community or Neighborhood.—Sections 1 and 2 of the act are not to be construed to limit the area of any district to a territory which might afterwards be ascertained and determined by a court to be a single community or neighborhood, or so as to give a court power to declare the district organization invalid if it should find that the boundaries included what it deemed to constitute two or more such communities or neighborhoods.</p> <p>Id.—Territorial Extent of District.—;The act authorizes a district to be organized which embraces what may, in a sense, be considered two or more communities or neighborhoods, provided the lands lie in one body, are liable to damage from the same stream, and may be protected therefrom by the same system of works.</p> <p>Id.—Petition for Organization of District—Beference to Act.—The requirement of section 2 of the act, that the petition for the organization of the district “shall pray that the same be organized under the provisions of this act,” is sufficiently complied with if the petition, in some reasonably certain manner, identifies the act as the one under which it is proposed to organize. An erroneous reference to the act as having been approved on February 22, 1907, instead of February 23, 1907, the correct date, is immaterial, if the petition otherwise identifies the act by a reference to its title, which is set forth in hceo verba.</p> <p>Id.—Taxes Levied fob Several Purposes—Apportionment—Power of Treasurer.—Where the district had levied a certain rate of tax for the bond fund and an additional rate for the general fund, and the taxes collected consisted of general payments made by property-owners for both such purposes, the county treasurer, under section 45 of the act, was without power to arbitrarily apportion all the money so collected to one fund. It was his duty to apportion to the respective funds, the proper proportion of the money received in payment of the general taxes, calculated upon the rate fixed for each fund.</p> <p>Id.—Valid Tax Levied fob Specified Purpose—Invalid Tax Levied fob Another Purpose.—A tax levied for the general fund of such a district, which is in all respects regular, is not affected by the illegality of a levy for -the bond fund. The invalidity of the latter levy is not a defense to the payment of a claim properly chargeable against the general fund.</p> <p>Id.—Validity of de Facto District—Individual Cannot Question.— The validity of the organization of a de facto protection district cannot be questioned by private individuals, but only in a proceeding in quo warranto at the suit of the state.</p>

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

<p>District Court of Appeal—Appellate Jurisdiction.—Cause ordered transferred to the district court of appeal on the authority of Keech v. Joplin, ante, p. 1.</p> <p>Id.—Jurisdiction in Mandamus.—The district court of appeal has appellate jurisdiction in proceeding in mandamus.</p>

<p>District Court of Appeal—Appellate Jurisdiction.—Cause ordered transferred to the district court of appeal on the authority of Keech v. Joplin, ante, p. 1.</p> <p>Id.—Jurisdiction in Mandamus.—The district court of appeal has appellate jurisdiction in proceeding in mandamus.</p>

<p>■Corporation—Situs of Shares of Stock—Residence of Corporation.— The situs of shares of stock in a corporation, as to any authorized proceeding to subject the stock to the lawful claim of another, whether that claim be one of ownership of the property or of a right to specific enforcement of a contract relative to it, is within the state where the corporation resides. That state is ordinarily the state by or under the laws of which the corporation was created.</p> <p>Id.—Corporation Created to do Business in Another State—Business and Property Entirely in Other States.—A corporation, organized under the laws of a foreign state, for the exclusive purpose of doing business in California, where its entire property is situated and all. its business transacted, will be deemed to be a resident of California, to an extent sufficient to bring it within the rule applicable to domestic corporations as to the situs of its stock. As to such a corporation, the fiction as to the situs of the corporation entity being in the state of its creation ought to yield in the interest of justice to the actual facts.</p> <p>Id.—Specific Performance — Contract to Deliver Stock :—Action Against Non-Resident—Service of Summons.—One who is entitled to the delivery of a certain number of shares of the stock of such a corporation, under a contract with the owner thereof, all the conditions of which to be performed by him have been performed, and concerning which nothing remains to be done by the owner other than the mere delivery of the stock, may maintain an action in this state for specific performance of the contract against the owner, notwithstanding the owner is a non-resident, and cannot be personally served with summons.</p> <p>Id.—Proceeding in Rem—Jurisdiction—Service by Publication.— Such action being merely to enforce the delivery of property within the jurisdiction of the courts of this state is in the nature of a proceeding in rem, and sufficiently so to give the courts of this state jurisdiction to render judgment directing the delivery, as against the non-resident owner, who has been served merely by publication of summons.</p> <p>Id.—Contract that may be Specifically Enforced—Inadequacy of Damages.—The right of a court of equity to decree specific performance does not turn at all upon the question whether the contract relates to real or personal property, but altogether upon the question whether the breach complained of can be adequately compensated in damages.</p> <p>Id.—Contract to Transfer Personal Property—Pleading Inadequacy of Legal Remedy.—The presumption being that an agreement to transfer personal property can be so compensated, it is incumbent on one seeking specific performance in equity to allege facts showing the inadequacy of the legal remedy of damages. It is not necessary in terms to allege the inadequacy of the legal remedy; if the facts alleged and proved sufficiently show the inadequacy, it is enough. If the property is of such a nature that the value of the performance cannot be estimated in money with any degree of certainty and taken in lieu of it, the inadequacy of the legal remedy is apparent.</p> <p>Id.—Contract to Deliver Shares of Stock in Mining Corporation— Absence of Market Value of Stock—Unknown Value of Corporation’s Property.—The complaint in an action to specifically enforce a contract for the delivery of shares of stock in a mining corporation sufficiently alleges the inadequacy of the legal remedy of damages, when it shows that the entire property of the corporation consisted of certain mining claims of unknown value, and facts from which it is apparent that the stock could not have had an established market value at the time of the commencement of the action.</p> <p>Id.—Pleading—Fairness of Contract—Adequacy of Consideration. —The complaint in such action need not allege iri Tubo verba that the contract was supported by an adequate consideration and is as to the defendant fair and just; it is sufficient to set forth facts from which the court is warranted in concluding that the consideration was adequate and the contract fair and just as to the defendant.</p> <p>Id.—Services in Selling Stock of Corporation—Contract by Stockholder to Give Individual Stock.—The court is warranted in drawing such conclusion, where the complaint alleged, and the court found, that the contract sought to be specifically enforced was one whereby the defendant, a stockholder in a mining corporation, the stock of which had no market value and the entire property of which consisted of mining claims of uncertain value, promised to give one half of his stock to the plaintiff in consideration of his going into a distant state and selling a substantial amount of the treasury stock for the purpose of obtaining money to enable the corporation to continue its work, and that the plaintiff performed the contract on his part, being engaged in so doing for a period of over six months, during which time the defendant never intimated to him that he thought the consideration inadequate or the contract in any way unfair or unjust. .</p>

<p>Police Power—Careless Setting of Fires.—The purpose of section 384 of the Penal Code being to prevent the destruction of property, and particularly of forests, by the careless setting of fires, is within the police power of the state.</p> <p>Id.—Unreasonable Restriction against Building Feres—Constitutional Law.-—Subdivision 3 of section 384 of the Penal Code, declaring it a misdemeanor if any person shall willfully or negligently build “a fire on his own land for the purpose of burning brush ... or any other thing whatsoever, . . . provided that any state or district fire warden may in his reasonable discretion give a written permit to any person desiring to build fires,” is violative of section 1 of the fourteenth amendment of the United States constitution, and of section 1 of article I of the state constitution, in that it is unreasonable and oppressive in unduly interfering with the owner’s right to the enjoyment and use of his property.</p> <p>Id.—Keasonableness of Exercise of Police Power a Judicial Question.—While the right to legislate in the exercise of the police power is fully acknowledged by the courts, in each instance the question as to whether or not the constitutional rights of the citizen as to his person or property have been unduly invaded is always a judicial question.</p>

This was an application for a writ of mandate directed to the defendant as city clerk of the city of Los Angeles, commanding him to sign and certify to the passage of an ordinance calling a special election and submitting to the qualified voters of the city the proposition of incurring a certain bonded indebtedness. The further facts are stated in the opinion of the court.

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

<p>Municipal Corporation—Expenses of District Attorney—Employment of Special Agents.—Expenses incurred by the district attorney of the city and county of San Francisco, in the employment of special detective agents,, which are approved by the board of supervisors, are authorized by section 4307 of the Political Code, which makes a county charge of “all other expenses necessarily incurred by him in the detection of crime and the prosecution of criminal eases.”</p> <p>Id.—Necessity of Expenditure—-Authorization by Supervisors.— The board of supervisors in authorizing the expenditure were the judges of the necessity, and only in a plain case of an abuse of their powers would their judgment be subject to reversal.</p>

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

<p>Labor Law—Regulating Hours op Employment op Miners—Constitutional Law.—The act of March 10, 1909 (Stats. 1909, p. 279), entitled “An act regulating the hours of employment in underground mines and in smelting and reduction works,” and limiting the period of employment therein to eight consecutive hours, is constitutional.</p> <p>Id.—Police Power—Limiting Hours op Employment—Occupations Injurious to Health.—The state, in the exercise of its police power, for the preservation of the public health, may properly restrict the freedom of citizens to make contracts concerning their callings or occupations by limiting the hours of their labor in employments possessing elements of danger and risk to the health of the employee.</p> <p>Id.—Guaranties op Federal Constitution.—In determining whether an act limiting the hours of labor in any occupation is in violation of the guaranties of the fourteenth amendment of the federal constitution, the primary consideration is whether or not the occupation possesses such characteristics of danger to the health of those engaged in it as to justify the legislature in concluding that the welfare of the community demands a restriction.</p> <p>Id.—Act Is not Special Legislation—Operation on Special Class.— The act of March 10, 1909, is not violative of any of the provisions of the state constitution prohibiting special legislation, in arbitrarily selecting for its operation a special class of persons. A law is not special or lacking in uniformity merely because it does not apply to every person or subject within the state, provided the classification established by it is reasonable.</p> <p>Id.—Failure to Include Other Dangerous Occupations.—That aet is not special legislation because it fails to include in its scope other occupations which are equally dangerous to the health of the persons engaged in them. The selection of the businesses requiring regulation is confided to the legislative discretion, and this discretion is not subject to judicial review unless it clearly appears to have been exercised arbitrarily and without any show of good reason.</p> <p>Id.—Failure to Apply to All Underground Work.—The act is not obnoxious to the constitutional provisions against special legislation because the limitation of hours of labor does not apply to all underground work but only to work performed in mines.</p> <p>Id.—Act and Title Embrace but one Subject.;—The aet and the title thereof do not embrace more than one subject, within the meaning of section 24 of article IV of the constitution.</p> <p>Id.—Requirement op Consecutive Hours of Employment.—The provision of the act that the hours of employment, exclusive of the time for meals, shall be consecutive, cannot be judicially held to have no reasonable relation to the protection of the health of the workmen. That question is one of legislative policy.</p>

<p>Labob Law—Act Limiting Hours of Employment of Miners—Time Consumed in Going to and from Work.—The provision of the act of March 10, 1909 (Stats. 1909, p. 279), limiting the period of employment in underground mines to eight consecutive hours, refers to the time when the men are actually engaged in work. The time consumed in traversing the mine to and from the place of work is not included in the limitation.</p>

<p>Labob Law—Act Limiting Horres of Employment Applicable to Qtjabtz-Mills.—An ordinary stamp-mill, for the crushing and pulverizing of quartz for the purpose of. extracting precious metals therefrom, is embraced within the phrase "smelters and other institutions for the reduction or refining of ores or metals,” within the meaning of the act of March 10, 1909 (Stats. 1909, p. 279), limiting the hours of employment therein to eight consecutive hours.</p> <p>In.—Working in Quartz-Mill Detrimental to Health.—It cannot be judicially held that working in such a quartz-mill will not be detrimental to the health of the workmen to such an extent as to make it advisable to shorten the hours of labor therein. The determination of such question was for the legislature, and will not be reviewed by the court.</p>

<p>Will—Gift to Class—Death of One of Class before Testator— Lapse.;—Where a will makes a gift to a class, the death of one of the class prior to the death of the testator does not have the effect of causing the legacy to lapse, but those of the class who survive the testator take the whole legacy.</p> <p>Id.—Gift to a Class Defined.—A gift to a class is a gift of an aggregate sum to a body of persons uncertain in number at the time of the gift, to be ascertained at a future time, who are all to take in equal or some other definite proportions, the share of each being dependent for its amount upon the ultimate number.</p> <p>Id.—Bulbs of Construction—Naming of Devisees—Particularization of Shares.—In determining whether a devise is to a class or to individuals great importance is attached to the fact that the gift is to the devisees nominatim, and that the particular share they shall each receive is mentioned, and when this appears the bequest is held to constitute a gift and devise individually as tenants in common and not as a devise to a class.</p> <p>Id.—Devisees When Taking as Individuals—-Tenants in Common.— If words, which, standing alone, would .be effectual to create a class, are followed by equally operative words of devise to devisees by name and in definite proportions, the law infers from the designation by name and mention of the share each is to take, that the devisees are to take individually and as tenants in common, and that the descriptive portion of the clause is intended merely as matter of identification.</p> <p>Id.—Intention of Testator Controlling — Evidence of Extrinsic Circumstances.—The foregoing rules of construction are not absolute, but must give way to the manifest intention of the testator, to be gathered from a consideration of all the provisions of the will, or when the language of the will is not sufficiently clear to remove all doubt as to its intention, by a consideration of the circumstances surrounding the making of it (exclusive of the oral declarations of the testator), in so far as they may throw light on that intention.</p> <p>Id.—Besiduary Bequests to Children of Sister—Naming of Nephews and Nieces—Designation of Shares of Each.—In the absence of a contrary intention shown in other parts of a will, or by extraneous circumstances, a residuary clause directing that the balance of the testator’s property “shall go to, and be equally divided among the four children of my late sister Catherine F. Flynn, deceased; that is to say: I give, devise and bequeath all the rest of my personal property and all my real estate, . . . share and share alike, to Timothy J. Flynn, William D. Flynn, Mary Jane Logan and Kate I. Prendergast,” is not a gift of the residuum to such children as a class, or in joint tenancy, or in any other way than as individuals taking as tenants in common; and upon the death of one of such children, before the testator, without leaving lineal descendants, as to the share so devised to him the testator died intestate.</p> <p>Id.—Bulb against Intestacy.—The canon of construction, that such an interpretation should be given to a will as will prevent intestacy as to any portion of the testator’s estate, cannot be invoked in aid of a construction which could properly hold such clause to be a gift to a class.</p> <p>Id.—Extrinsic Evidence of Testator’s Friendship for Devisees.— The intention of the testator, as so construed, is not affected by extrinsic evidence that he had lived with his sister, the mother of the devisees mentioned, and who constituted all of her children, from their childhood up to the death of their mother; that he had a great affection for them and took a great interest in their welfare, and that he had other nieces and nephews not mentioned in the will.</p>

<p>Stbbet Impbovement Act of 1889-—Constitutional Law—Genebal. Law—Unifobmity of Opebation—Title.—The act of 1889 entitled “An act to provide for laying out, opening, extending, widening, straightening or closing up, in whole or in part, any street, square, lane, alley, court, or place within municipalities, and to condemn and acquire any and all land and property necessary or convenient for that purpose,” (Stats. 1889, p. 70), is not unconstitutional either because it is not a general law, or because it is not uniform in its operation, or because the subject of assessment upon which it legislates is not expressed in its title.</p> <p>D>.—Act Is Unifobm in Its Opebation.—The class to which the act applies, to wit, municipal corporations, is a well recognized class to-which general legislation of the character mentioned in the title of the act may be addressed, and the subject of that legislation is one usually committed to such municipalities, either by charter or general laws, as matter of municipal concern, and a law which provides for all municipalities a system for opening and extending streets and kindred matters, such as are embraced in the title of the-act, is uniform in its operation.</p> <p>Id.—Eminent Domain—Powbb of Taxation.—The provisions of the act, so far as they pertain to the assessment of the lands in the district for special benefits, have no relation to the exercise of the power of eminent domain, but are sustainable as an exercise by the municipality of the power of taxation conferred upon it by the state as a governmental agent.</p> <p>Id.—Municipality May Tax fob Local Impbovement.—The legislature-has the right, under the power of taxation, to confer upon municipalities the authority to require local improvements, such as the laying out or widening of streets, to be borne by those owning property in the vieinity of the improvement, and who are specially benefited by reason of it. Such exercise of the taxing power does not contravene the constitutional provision respecting the exercise of the power of eminent domain.</p> <p>Id.—Act not Local or Special.—An act which confers authority upon municipalities to tax for -local improvements cannot be said to be local or special when compared with legislation providing for the exercise of the right of eminent domain, where the act has no relation to the exercise of such latter power, but applies to and is justified under the exercise of the entirely different and distinct power of taxation.</p> <p>Id.—Equal Protection op the Laws.—The provisions of the act for the assessment of lands in the district for special benefits do not deny the person whose property is assessed the equal protection of the law guaranteed him by the fourteenth amendment of the federal constitution.</p> <p>Id.—Act not Repealed by Subsequent Lesislation.—The act of 1889 was not repealed by the act of 1903 (Stats. 1903, p. 376), on the same subject of opening and laying out streets. The latter act merely provides an alternative method of procedure, and by section 35 thereof expressly declares that its provisions shall in no way affect the act of 1889. Nor was it repealed by the amendments of 1907 to the Code of Civil Procedure relative to eminent domain.</p>

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

<p>Appropriation of Water for Public TTse—Consumer Cannot Contract for Preferential Right.—Leavitt v. Lassen Irrigation Company, ante, p. 82, approved, to the effect that the defendant could not by contract acquire any permanent preferential right to the use of water appropriated for public use over any other member of the public entitled to draw his water supply from the same public service corporation.</p> <p>Id.—Breach of Contract to Pay for Water at Contract Rates— Abrogation of Contract—Liability for Reasonable Value.— The continued refusal of a consumer of water appropriated for public use, claiming a permanent preferential right to the use thereof under a contract to pay for the same, justified the water company supplying the water to consider the contract as abrogated, and suing thereafter (in the absence of a legally established rate) for the reasonable value of the water supplied.</p>

<p>APPEAL from a judgment of the Superior Court of Santa Barbara County and from an order refusing a new trial. S. E. Crow, Judge.</p> <p>The facts are stated in the opinion of the court.</p> <p>W. P. Butcher, City Attorney, H. C. Booth, and E. W. Squier, for Appellants.</p>

<p>The facts are stated in the opinion of the court.</p> <p>T. E. Clark, H. L. Partridge, and W. C. Caldwell, for Appellant.</p> <p>W. N. Rutherford, Beasly & Fry, and John M. Gaut, for Respondents.</p>

<p>Mining Claims—Assessment Work upon One of Several Claims-Held in Common — Good Faith — Tendency to -Benefit Other Claims.—Where mining claims are held in common the expenditures required by section 2324 of the Revised Statutes of the United States-may be made upon any one of the claims; but it is held, however, that the work so done must be done in good faith, and must have a tendency to benefit the claims other than' the one upon which the work is done.</p> <p>Id.—Question of Fact fob Jury.—The question as to whether the-doing of sufficient work .upon one of several claims held in common is done in good faith and has a tendency to benefit the other claims-is one of fact to be determined by the jury.</p> <p>Id.—Support of Finding against Benefit—Veins Crossing Side-Lines. —Annual Work Not Done on Other Claims.—It is held that, notwithstanding conflicting evidence, there was ample evidence to-warrant the jury in finding that there was no continuous vein, and that such veins as were found in the claim upon which an amount of work was done equivalent to four claims, passed out of its sidelines, and that work done thereon did not tend to develop the other-three claims; and that no sufficient work was done on two of the-other claims to hold them as against subsequent locators thereof.</p> <p>Id.—Instruction—Assessment Work upon “Adjoining Claims.”—It. is held that an instruction as to assessment work done upon a group of claims adjoining each other, and as to forfeiture thereof for failure to do annual work, which is otherwise correct, was not prejudicially erroneous when, in view of the language used in a later part of the instruction, the jury were given to understand that work done upon any one of the four claims, which in fact were not adjoining, could, under proper conditions, be applied to any of the four.</p> <p>Id.—Claims Benefited Need Not Be Adjoining.—The better authority-supports the position that assessment work may be done upon one of a group of claims held in common, even though the claims are not all adjoining.</p> <p>Id.—Harmony of Instructions — Character of Work :— Burden of Proof.—An instruction correctly defining the character of the work that may be done upon one claim for the benefit of another owned in common with it, in that work done outside of the one must have a tendency to develop or benefit the other, is not inconsistent with an instruction stated to be in accordance with other instructions given, that the burden of proof is on the defendants to show that the necessary assessment work was not done as.required by law upon two of the claims, but that in so far as plaintiff's case depends on work done outside of the claims asserted to be forfeited, the burden of proof is upon the plaintiff to show that such outside work did actually benefit, where it is evident from the other instrue- • tion referred to that the jury could not be misled by the omission of the words “tend to” in plaintiff’s burden of proof.</p> <p>Id.—Title by Prescription—Adverse Possession.—In order to acquire title to a mining claim by prescription, the possession of the property must not only be hostile to the title, but must be exclusive, ■ continuous, and uninterrupted for the full period of five years before the commencement of the action. Any interruption of the adverse possession within the required five years prevents the acquisition of the title by prescription.</p> <p>Id.—Finding against Evidence—-Interrupted Possession.—A finding in favor of a prescriptive title acquired by one of the defendants to one of plaintiff’s mining claims is against the evidence, where the testimony to support the same shows that the plaintiff’s predecessors went upon the claim from time to time during the five years preceding the commencement of the action, and conducted extensive mining operations thereon, notwithstanding the adverse claimant protested against the same and asserted title in himself, when his protests were unheeded and the work continued. The evidence that Ms possession was neither exclusive nor uninterrupted for • the requisite period defeats the finding in favor of Ms" prescriptive title.</p> <p>Id.^Effect of General Verdict—Finding upon all Material Issues —Priority of Location.—The general verdict in favor of the prevailing party imports findings in favor of the prevailing party upon all material issues, and inasmuch as the prescriptive claimant also pleaded priority of location of Ms claim, the general verdict imports a finding in favor of his prior location; and where the jury also especially found in favor of Ms prior location, if such finding is sustained by evidence and unaffected by error, the finding on the other defense or any errors in regard to it could not have been prejudicial.</p> <p>Id.—Locations Made under Act of 1897—Effect of Repeal—Proper Instruction.—Where neither the locations of the plaintiff nor the conflicting locations of the defendant, which were made while the act of 1897 was in force, conformed thereto, the court properly-instructed the jury that “mining locations made while the act of 1897 was in force, but invalid by reason of non-compliance with the provisions of that law, will be valid after the repeal of that law providing the provisions of the mining laws of the United States had been complied with and there were no intervening rights before the repeal of that law, and where the claim had been occupied, held, and worked up to the time of and after such repeal.”</p> <p>Id.—Evidence—• Dependant’s Prior Locations — Work — Extent of Possession.—Where the evidence for the defendant showed prior locations of three -claims, including one of plaintiff’s claims, and liis prosecution of work for their development continuously up to and after the repeal of the act of 1897, and that part of such work was done within the boundaries of the plaintiff’s subsequent claim, this evidence, notwithstanding conflicting evidence to the contrary, was ouffieient to show possession of the entire claim of defendant to the extent of the visible boundaries thereof.</p> <p>Id.—Failure to Record Prior Claim in Twenty Days—Invalid Entry and Location by Plaintiff.—Notwithstanding the failure of a defendant to record his prior locations within twenty days, under the statute, the plaintiff’s predecessors had no right, within such twenty -days, to enter upon the defendant’s prior claims and make a location thereof. An entry upon appropriated mineral lands confers no right to a valid location.</p> <p>Id.—Evidence—Payment for Assessment Work Not Material.— Whether or not the assessment work done on a claim was actually paid for is immaterial and entitled to no weight.</p> <p>Id.—Erection of Mill on Claim—Relevant Evidence—Good Faith.— Evidence was admissible on the question of good faith to show that the expenditure for a mill erected on a claim was of no value for reducing the ore there found.</p> <p>Id.—Affidavits of Labor—Prima Facie Evidence—Exclusion Not Prejudicial—Independent Proof.-—Affidavits of labor duly recorded are prima facie evidence, and should have been admitted. But where the persons making them gave independent proof oS the same labor done, no substantial injury could result from their exclusion.</p> <p>Evidence—Prior Location by Defendant of Mere Placer Claims— Impeachment of Witness by Statement—Foundation Not Laid. —Where a witness for plaintiff testified that defendant’s prior location was of mere placer claims, and that his subsequent quartz location was bounded on the south by plaintiff’s quartz claims, such -evidence, if true, would prove the paramount rights of plaintiff. Held, that it was prejudicial error to allow the impeachment of such witness by contrary statements for which no foundation was laid -on his cross-examination.</p>

<p>Municipal Corporation—Los Angeles—Power to Construct Public. Works by Day’s Labor—Construction of Charter.—The city of Los Angeles has authority under its charter to construct or' complete the construction of public works or improvements involving an aggregate expenditure of more than five hundred dollars, without letting any contract for the work. The city may do such work by day’s labor, under the authority and control of its board of public works, purchasing such material as it may require therefor. Neither sections 148 nor 207 of the charter prevents the doing of the work in such manner.</p> <p>B>.—Bond Act of 1901..—There is nothing in the Bond Act of February 25, 1901 (Stats. 1901, p. 27), as amended March 19, 1907 (Stats. 1907, p. 609), which prevents a city from doing such work without letting a contract therefor, if authorized-so to do by its charter.</p>

<p>County Officers — Codifying Act of March 18, 1907 — Change of' Compensation.—Smith v. Mathews, 155 Gal. 752, [103 Pae. 199], approved, to the effect that the provisions of the act of March 18, 1907 (Stats. 1907, p. 354), by which the county Government Act,, amended in many particulars and revised, was incorporated as a part of the Political Code, is not to be construed as showing a legislative intent that the changes in salaries and compensation thereby made as to many officers should affect incumbents.</p> <p>Id.—Seduction of Compensation—Change in Method of Compensation.—The legislature ‘ has the power either to reduce the compensation of any county or township officer after his election or during his term of office, or to substitute a different method of compensation, provided his compensation is not thereby increased. The prohibition of section 9 of article XI of the constitution refers only to an increase of compensation.</p> <p>Id.—Substitution of Salary for Fees—Intent to Affect Incumbents —Presumption against Increase.-—-Where an act substituting a salary for a previous fee system of compensation fails to disclose whether an increase of compensation is thereby produced, but sufficiently shows an intent that the new system shall -affect incumbents, the. conclusive presumption is that the' governor and the legislature have investigated, ascertained, and determined that the change does not result in an increase of compensation, and the courts have no right to review such determination.</p> <p>Id.—Act of March 13, 1909—Salaries of Justices of Peace and Constables—Change Applicable to Incumbents.—The act of March 13, 1909 (Stats. 1909, p. 322), amending section 4243 of the Political Code, relating to the compensation and expenses of officers of counties of the fourteenth class, in its substitution of a salary for a fee system of compensation for justices of the peace and constables, was intended to affect incumbent justices and constables. This construction is rendered imperative by the language of section 2 of the act, providing that, except as to the subdivisions thereof affecting such officers, the act shall not take effect until the expiration of the present terms of the officers therein enumerated.</p> <p>Id.—Uniform Operation of Act—Classification of County Officers. —Such construction of the act, making it immediately operative on incumbent justices and constables, and suspending its operation as to other county officers, is not violative of section 11 of article I of the constitution, providing that “all laws of a general nature shall have a uniform operation.” The distinction made by the act as to its taking effect on the one class of incumbents and not on the other is not an arbitrary one, but is founded in intrinsic differences naturally suggesting the propriety of different adjustments of the law in that regard. The classification being authorized, the law is ■ uniform in its operation inasmuch as it affects equally all incumbents in each class. The fact that the act is applicable to only one class of counties is immaterial.</p> <p>Id.—Law Applicable to One Class of Counties Is General—Amendment to Act.—Under the constitutional provision empowering the legislature to classify the counties by population for the purpose of regulating the compensation of officers, when such a classification has been made, a statute providing for the compensation of officers within any class is a general law, and it is immaterial whether such provision be in a special statute for each class, or in a single act providing for all of the classes; and an amendment of such statute which affects an entire class is equally a general law as was the original act.</p> <p>Id.—County of Fourteenth Class—Classification of Townships.—■ That there is only one county in the fourteenth class is immaterial. The legislature may classify the townships of any class of counties according to population for the purpose of fixing the compensation of the township officers therein.</p>

<p>Case Affirmed.—Judgment in this case affirmed on the authority of Perry v. City of Los Angeles, ante, p. 146.</p>

<p>Case Affirmed.—Judgment in this case affirmed on the authority of Perry v. City of Los Angeles, ante, p. 146.</p>

<p>Act Prohibiting Sale op Liquor near Camp op Men Employed on Public Work—Constitutional Law.—The act of March 25, 1909 (Stats. 1909, p. 722), entitled “An act to prohibit the sale of intoxicating liquors within a certain distance of any camp or assembly of men, numbering twenty-five or more, engaged upon the construction, repair or operation of any public work, improvement or utility,” is constitutional.</p> <p>Id.—Uniform Operation op General Law.,—The proviso in section 1 of the act, excepting from its operation sales of liquor made at licensed saloons established at least six months prior to the establishment of such camp or assembly of men, or sales made at any winery, licensed brewery, or distillery where the liquor is manufactured, does not violate section 11 of article I of the state constitution, requiring all laws of a general nature to have a uniform operation.</p> <p>. Id.—Uniform Operation op Law on Different Classes.—A law is gen"eral and constitutional when it applies equally to all persons embraced in a class founded upon some natural or intrinsic or constitutional distinction; and if it operates uniformly upon all the members of such class it necessarily has the “uniform operation” required by section 11 of article I of the constitution.</p> <p>.Id.—Power of Legislature to Classify.—The question whether the individuals affected by a law do constitute such a class is primarily one for the legislature, and when such a legislative classification ia attacked in the courts every presumption is in favor of the validity of its act.</p> <p>Id.—Presumption in Favor of Classification—Reasons Actuating Legislature.—Where, upon the facts legitimately before a court,, it is reasonable to assume that there were reasons, good and sufficient in themselves, actuating the legislature in creating the class, though such reasons may not clearly appear from a mere reading of the-law, such assumption will be made, and the legislation upheld; and to warrant a court in adjudging an act void for want of uniformity of operation, it must clearly appear that there was no reason sufficient to warrant the legislature in finding a difference and making-the discrimination.</p> <p>L>.—Itinerant and Permanent Saloons—Classification and Discrimination Between.—-The design of the act was to protect the work therein described and the men engaged therein from the “itinerant, saloon,” established temporarily in a certain place solely beeauseof the proximity of such a camp or assembly. The difference between the method of conducting the business of such a saloon, and. the method of conducting the business of a saloon permanently established, warranted the legislature in placing them in different, classes and discriminating between them.</p> <p>Id.—Criterion for Determining Permanency of Saloon.—The requirement of the act, that a liquor saloon or store shall have been established at least six months “prior to the establishment of such camper assembly of men,” in order to be considered a permanently established place, is not unreasonable, and is a proper exercise of its--, police power.</p> <p>Id.—Reasonableness of Prohibited Limit for Saloon.—The question-whether the distance prescribed by the act,—four miles,—-within-which an “itinerant saloon” was prohibited was a reasonable one,, was for the determination of the legislature, and there is nothing, to indicate that it is unreasonable.</p>

<p>Nuisance—Operation op Gasworks—Similar Sources op Discomfort Not a Defense.—In an action to abate a nuisance caused by the method of operating certain gasworks, the fact that other sources of possible discomfort to the plaintiff existed in the neighborhood of his property is no defense.</p> <p>Id.—Abatement—Impairment of Health Not Bssential.^-Id order to justify the abatement of such a nuisance, it is not necessary that the health of the plaintiff or of members of his family should have been impaired. It'is sufficient if the odors, sounds, and smoke were offensive to the senses.</p> <p>Id.—Intermittent Nuisance May Be Enjoined.—The fact that, owing to periodical cessation of work, variation in the direction of the wind, and the like, a nuisance is intermittent is not a reason for denying its abatement.</p> <p>Id.—Damages for Personal Discomfort—Want of Damage to Property.—In an action to recover damages caused by a nuisance, the plaintiff is entitled to recover for the personal discomfort or annoyance to which he has been subjected, without proving any damage to his property. It is for the trial court to determine the amount of the compensation he should receive for such damage.</p> <p>Id.—Gasworks Not Nuisance Per Se—Unlawful Method op Operation.—A gas factory does not constitute a nuisance per se, but, like any other sort of lawful business, the person conducting it is subject to the rule sie utere tuo wt dliermm non laedas, even when operating under municipal permission or under public obligation to furnish a commodity. Nor will the adoption of the most approved appliances and methods of production justify the continuance of that which, in spite of them, remains a nuisance.</p> <p>Id.—Construction or Judgment.—In such an action a judgment enjoining the defendant “from conducting and operating the gasworks and manufactory ... in such a manner as to cause or permit smoke, gases or offensive smells or fumes to be emitted therefrom or to be precipitated therefrom upon the property of the plaintiff,” properly interpreted, is not too broad, when it is conceded by the defendant that the works cannot be operated at all without producing the conditions complained of.</p>

<p>Surety—Contract Payable in Installments—Loan—Evidence.—In an action to enforce the liability of a surety to a contract for the building of a vessel, the price of which was payable in installments as the work progressed, it is held that the evidence, although conflicting, supported the finding of the jury to the effect that certain payments made during the progress of the work to sureties by the contractor’s surety were personal loans to them, and were not premature payments of the contract price made to the contractor.</p> <p>Id.—Premature Payment of Contract Price.—The action having been tried upon the theory that any prepayment of the. contract price would have exonerated the surety, and the fact of such prepayment having been determined adversely to its contention, the question whether such a prepayment would have released the surety is rendered purely academic, and is not decided.</p> <p>Id. — Failure to Complete Contract — Performance of Work by Owner.—Upon the failure of the contractor to complete the vessel, and the refusal of his surety to have anything' to do with the matter, the owner had the right to finish the work, making the loss to the surety as light as possible.</p> <p>Id.—Contractor Remaining on Work as Foreman of Owner.—The fact that the original contractor, after his abandonment of the work and while it was being completed by the owner, remained as foreman without a salary, did not have the effect to create a new contract.</p>

<p>^Negligence—Wires of Electric-Lighting and Telephone Company— Defective Insulation—Placing in Dangerous Proximity—Pleading.—In an action brought, against a telephone company and an electric-lighting company to recover for personal injuries inflicted on an employee of the telephone company from an electric shock resulting from a contact of the wires owned by the respective companies, the negligence of both companies in allowing their wires to remain in too close proximity may be considered under a complaint which alleges the defective insulation of the wires, and which further charges that the telephone wires came in contact with the electric-light wires by reason of natural sagging “and in consequence of having been suspended too closely above said electric-light wire.”</p> <p>Id.—Evidence of Defective Insulation—Contact of Wires.—In such action evidence tending to show that the wires of the two companies were placed in dangerous proximity and occasionally came in contact, and that a “jumping are” of light was produced between them, which fact was known to the electric-lighting company, was sufficient to warrant the presentation to the jury of the question of that company’s negligence by reason of defective insulation.</p> <p>Id.—Joint Negligence of Companies — Continued Maintenance op Wires in Dangerous Proximity Is Negligence.—The charge contained in such complaint that the wires of the two companies were in too close proximity embraced an allegation of negligence of both companies. If the wire of the telephone company was the last placed, that company became in the first instance directly responsible for the negligent work. If the electric-lighting company had knowledge that the wire was dangerously close, and liable to sag, the continued maintenance of the wires in such position was negligence upon the part of both companies.</p> <p>Id. .— Oversight and Bepair of Wires m Streets — Obligation of Electric-Lighting Company.—An electric-lighting company, carrying electricity by its wires through the streets of a city in dangerous quantities, is under an obligation not only to make the wires safe by proper insulation, but to keep them so by vigilant oversight and repair.</p> <p>Id.—Contributory Negligence of Employee of Telephone Company. •—Where the employee of the telephone company, prior to going to work on its wires, had satisfied himself that there was no high tension upon the wires which he was examining and was about to test, and there was nothing within his knowledge to lead him to believe that any of the other telephone wires, which in normal conditions were perfectly safe, had become dangerously overcharged, the question of his contributory negligence in doing the work was one for the jury.</p> <p>Id.—Condition of Wires after Accident—Evidence of Bemoval of Wires in Contact.—In such action evidence is admissible on behalf of the plaintiff that after the accident an employee of the electric-lighting company found one of the telephone wires on the light wire and removed it. Such evidence was not of subsequent repairs, but was of a condition shown to have existed before and continuing after the accident, and tending to establish the cause of the accident by further showing that when the condition was changed the trouble was removed.</p> <p>Id.—Verdict Not Excessive.—In this case a verdict for the plaintiff in the sum of thirty-five hundred dollars is held, in view of the injuries sustained, not to be excessive.</p>

<p>Criminal Law;—Extension op Time for Pronouncing Judgment— Section 1191 of Penal Code as Amended in 1909.—Under section 1191 of the Penal Code, as amended in 1909, the court has no authority, in a criminal case where no question of the defendant’s sanity is raised, to fix the time for pronouncing judgment for a day later than five days after verdict; provided, however, that if a motion for new trial or in arrest of judgment is made, the court may for the purpose of deciding the same extend the time for ten days, and if the question of probation is considered, it may for that purpose extend the time twenty days. These two provisions for extension of time are not cumulative, and the latest date to which the court is authorized to extend the time for rendering judgment, where present insanity is not involved, is a day not more than twenty-five days after the date of the return of the verdict.</p> <p>Id.—Defendant Entitled to New Trial on Failure to Pronounce Judgment in Time.—Under section 1202 of the Penal Code, as amended in 1909, the failure of the court to pronounce judgment within the time limited by section 1191 ipso facto entitles the defendant to a new trial.</p> <p>Id.—Prohibition Does Not Lie to Prevent Judgment after Lapse of Time.—Notwithstanding the failure of the court to pronounce judgment within the time so limited, it still retains jurisdiction to order the new trial and proceed therewith to verdict and final judgment. If it should refuse a new trial and render judgment after the authorized time had passed, its action would be erroneous and the judgment would be reversed on appeal. A judgment so rendered, although erroneous, would not be in excess of the jurisdiction of the court, and its rendition will not be restrained on prohibition.</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>Richards & Carrier, and James L. Crittenden, for Appellants.</p>

<p>Estates of Deceased Persons—Evidence—Relationship with Testator.—On an appeal from an order distributing an estate, the evidence is reviewed and held sufficient to support the finding that the distributee was a niece and an heir of the testator.</p> <p>Id.—Proof of Marriage—Legitimacy of Child.—In a proceeding involving the establishment of relationship with a testator, testimony that a man and a woman, having the same surname, lived together as husband and wife, that they always called a child who lived with them their child and their daughter, and that she called them father and mother, is sufficient pri/ma facie evidence of their marriage and of her legitimacy.</p> <p>Id.—Relationship as Brothers—Evidence—Presumptions of Legitimacy and Identity of Name.—In such a proceeding, evidence that two men, having the same surname, called each other brother, that each spoke to the other by his first name, and that their conversation and conduct indicated relationship and was consistent with the fact that they were brothers, suffices to establish the fact of such relationship. The presumptions of legitimacy and from the identity of name supply the fact that they were legitimate children of the same father.</p> <p>Id.—Declarations of Member of Family as to Relationship with Testator—Absence of Preliminary Proof.—Declarations made by a father to his daughter, during the lifetime of a testator, to the effect that the testator was his brother, are admissible in evidence to prove that the declarant and the testator were brothers, and that the person to whom the declarations were made was the niece of the testator, notwithstanding there was no other preliminary proof of the relationship.</p> <p>Id.—Declarations as to Family Relationship, When Admissible.— Such declarations are rendered competent from reasons of necessity, but as a safe-guard against the possibility of their being declarations in the interest of the party making them, it is required that they must have been made before any controversy over property arose. To satisfy the rule that the best evidence must be produced and to show necessity, it is a condition to their admission that the declarant is dead at the time they are offered, or out of the jurisdiction ; and they are sometimes excluded when there are living persons whose testimony on the subject could be produced.</p>

<p>Fice Insurance on Furniture—Policy Avoided by Encumbrance of Chattel Mortgage—Security for Bent No Encumbrance—Bisk Not Increased.'—A clause in fire insurance policy on furniture,, which, avoids the policy if the property be or become eneranbered with a chattel mortgage, relates only to an ordinary chattel mortgage which in fact encumbers the property, and does not apply to a chattel mortgage in form, which is a mere security for rent, or in the nature of a bond to become effective only in ease of the nonpayment of rent. Such instrument does not in fact encumber the furniture, which is many times in value the amount of the insurance, and does not increase the risk of the insurer in any degree.</p> <p>Id.—Interpretation of Policies of Pire Insurance.—The practice of this court has been to consider contracts of fire insurance in view of their general objects and the legitimate conditions prescribed by the insurers, rather than upon a basis of strict technical interpretation. The language employed in the policy is to' be given a reason- ■ able construction in view of the purposes, as well of the entire contract as of the particular condition under discussion.</p> <p>Id.—Purpose to Avoid Increase of Bisk.—Generally speaking the purpose of a policy of fire insurance is to avoid liability in the event of the occurrence of circumstances, which would tend to increase the hazard beyond that which was in contemplation of the parties when the insurance was effected.</p> <p>Id.—Province of Trial Court—Determining Character of Chattel Mortgage Under Policy.—The court below was entitled to regard the circumstances surrounding the execution of a chattel mortgage under the provision in the policy, the situation of the parties to it, and what was done under it, to determine its true character, and was not concluded by the bald fact that it was labeled "chattel mortgage,” or was in the form usual to chattel mortgages, and also to examine into the theory of the provision against chattel mortgages, the reason for its insertion, the evils or added risks to the insurer it was designed to guard against, and after having made this examination, to determine whether the instrument was of such a nature as to violate the true intent of that provision.</p> <p>Id.—Lien to Be Begarded in Bbference to Bisk.—An alleged lien under a policy of fire insurance must be regarded with reference to its actual effect upon the risk assumed by the insurer.</p> <p>Id.—Complaint Upon Policy—Sufficiency—Location and Use of Property Insured at Time of Loss.—Averment Fairly Implied.— Although a complaint upon a policy of fire insurance, to be sufficient, must substantially show that the property insured was in the described building, and that it was used and occupied at the time of loss by fire; yet it is held that the location and use of the property in such building described as “occupied as stores and lodgings” is by fair implication alleged to be the same at the time of the loss as at the time of the insurance.</p> <p>Id.—Credit of Payment of Premium—Delivery of Policy—Waiver of Payment After Loss — Deduction from Loss — Support of Finding.—It is held that a finding that “the payment of the premium was not a condition precedent to defendant’s liability thereunder and that the true consideration upon which the defendant executed and ■delivered the policy was not the payment of the designated premium, but was plaintiff’s promise to pay it on demand,” is sufficiently supported when the delivered policy recites no payment of premium, and the evidence shows a grant of credit, and a waiver of payment after loss, by an agreed deduction of the premium from the amount of the loss.</p> <p>Id.—Latent Ambiguity—Conduct op Parties.—Practical Construction op Contract.—The policy having failed to recite payment of the designated premium, its designation thereof as consideration of the policy involves a latent ambiguity; and it was proper for the court to consider the conduct of the parties as indicative of their understanding of its provision. The contemporaneous and practical construction of the-contract by the parties is strong evidence as to its meaning, if its terms are equivocal.</p> <p>Id.—Effect op Unconditional Delivery of Policy—Extent op Credit —Common Knowledge.—-From the circumstance that there was an unconditional delivery of the policy without prepayment of the premium, the court was justified in concluding that the defendant extended credit, as within common knowledge is usually done in . favor of responsible parties.</p> <p>Id.—Rule of Construction — Indulgence Shown to Assured. — The recognized rule of construction that every indulgence not inconsistent with the plain meaning of the contract must be shown to the assured, may be invoked in aid of the court’s finding as to credit of payment of premium.</p> <p>Id.—Rule op Law—Payment op Premium Not a Condition Precedent. —It is .a rule of law that even though payment of the premium is expressly provided as the consideration of the policy, it is not a condition precedent to the operation of the policy and to any recovery on it.</p> <p>Id.—Waiver op Provision for Non-Liability—Delivery with Credit— Liability for Loss.—An express provision in the policy that the company shall not be liable on the policy until the premium is actually paid, is waived by the unconditional delivery of the policy to the assured as a completed and executed contract, under an agreement express or implied, that a credit shall be given for the premium; and the company is liable for a loss that may occur during the period of credit.</p> <p>Id.—Sufficiency op Complaint—Compliance with Conditions—Delivery of Policy—Proof and Findings as to Credit—No Variance.—It was sufficient for the plaintiff to aver that he complied with all the conditions on his part, and that defendant accepted such performance and delivered the policy, and proof of an extension of credit upon the premium, and findings relative thereto, disclose no material variance, and do not affect the cause of action upon the delivered policy as an executed contract.</p> <p>Id. — Defense op Non-Payment op Premium — Rebuttal Proof — Waiver Excusing Payment.—Where the answer expressly pleads, as matter of defense, that no premium was .ever paid, such matter of defense is deemed denied, and plaintiff may meet the defense by proof of any matter in rebuttal thereof, including waiver excusing payment.</p> <p>Id.—Title of Property in Heir or Devisee.—In this state the title-to property vests in the heir or devisee immediately upon the death of the ancestor, subject only to the right of administration.</p> <p>Id.—Insurable Interest of Sole Devisee of Community Property.— A widow and executrix who is the sole devisee of community property not yet distributed, after the time for any claims is fully passed, and who owns the whole right in sufficient furniture for a lodging-house, the distribution of which she subsequently receives, has an insurable interest therein, which entitles her to insure the same in her own name, and such insurance is not affected by a provision in the policy that it shall be void if the interest of the insured be other than unconditional and sole ownership, when no question of fraud, misrepresentation, or concealment is involved.</p> <p>Id.—Sufficiency of Interest—Whole Loss from: Fire.—The insurable interest is sufficient when the whole loss will fall upon the insured person in case of the destruction of the insured property by fire.</p> <p>Id.—Waiver of Provisions as to Prior Chattel Mortgage—Conduct of Defendant.—The provision in the policy making it void if this insured property be or become encumbered by a chattel mortgage, is waived by the conduct of the defendant as to a prior chattel mortgage made by the husband and wife to secure rent before the husband’s death, by dispensing with a written application for insurance by the widow as sole devisee of the husband, and failing to make inquiry as to the existence of such mortgage upon the insured property, where it appears that there was no misrepresentation by the-widow, and that the application was made through her agent, and that the widow was ignorant in fact of the provision in the policy as to a subsisting mortgage.</p> <p>Id.—Duty of Defendant.—The insurer should either have made inquiry in reference to any chattel mortgage on the property, or required a written application by question and answer covering all material matters in the policy, or consulted the records in the-recorder’s office, where it would have been apprised of the existence-of the mortgage for rent.</p> <p>Id.—Plaintiff Not Bound to Make «Disclosure in Absence of-Inquiry.—The insured was not bound to make disclosure as to a subsisting mortgage to secure rent in the absence of an inquiry as. to its existence.</p> <p>Id,—Waived Provision No Bar to Recovery.—-A waived provision as. to a subsisting chattel mortgage is no bar to recovery.</p> <p>Id.—Waiver by General Agent Not Required to Be Written.—A waiver by a general agent of an insurance company having power to. make it is not required to be in writing, but may be made orally- or by his conduct indicating such waiver.</p> <p>Id.—Proof of Waiver Permissible without Special Averment.— Though it was incumbent on the plaintiff to aver generally performance of all conditions on her part to be performed, she was not obliged to aver a waiver of a condition as to the existence of a chattel mortgage, but when a breach of such condition is pleaded in the answer, a waiver then may be proved by way of reply thereto.</p> <p>Id.—Support of Finding against False Swearing in Proofs of Loss. —It is held that the court was justified in finning that there was no false swearing in the proofs of loss, and that it is well settled that only willful misstatements in that regard will avoid the policy.</p>

<p>Mortgage by Deed Absolute in Form—Bar of Debt—Loss of Lien.— A conveyance of real property, although absolute in form, given as security for the payment of a note and unaccompanied by possession, is in effect only a mortgage, and when the debt which it secured became barred by the statute of limitations, the mortgage ceased to be effective and the lien which it had created was extinguished.</p> <p>Id.—Subsequent Renewal of Debt—Mortgage Hot Renewed.—The subsequent renewal of the note created the debt anew, but it did not renew, revive, nor continue the mortgage.</p> <p>Attachment—Appeal from Order Refusing to Dissolve—Conflicting Affidavits.—On an appeal from an order refusing to dissolve an attachment the appellate court, in reviewing conflicting affidavits used on the hearing of the motion, must accept the view most favorable to the plaintiff, being bound to that extent by the decision of the court below.</p> <p>Id.—Undertaking Must Conform to Statute.—A writ of attachment is improperly issued and void, unless it is supported by an undertaking conforming substantially to the requirements of the statute.</p> <p>Id.—Amendment of 1907 to Form of Undertaking—Omission of Stipulation Vitiates Undertaking.—Under section 539 of the Code of Civil Procedure, as amended in 1907, an undertaking on attachment is fatally defective if it fails to contain the stipulation required by that section “that if the attachment is discharged on the ground that the plaintiff was not entitled thereto under section five hundred and thirty-seven, the plaintiff will pay all damages,” etc.</p> <p>'Id.—Void Levy Does Hot Create Lien nor Bar a Subsequent Attachment.—Levies of writs of attachment which are void by reason of defective undertakings do not create valid liens on the property attached, and do not constitute lawful security for the debt sued on, nor operate to bar or prevent a new proceeding upon a valid undertaking in the same action.</p> <p>Jb.—Order Refusing to Vacate Prior Writ — Appeal from Order Refusing to Dissolve Subsequent Writ.—An order denying a motion to vacate a prior writ of attachment, which is not shown to have become final, cannot be considered on an appeal from an order refusing to dissolve a subsequent writ issued in the same action.</p>

<p>Negligence—Damages—Loss of Profits—Pleading.—In an action to recover for personal injuries caused by negligence, damages from loss of profits the plaintiff would have made if he had continued in the business in which he was engaged prior to the injury are special in their nature, and the facts must be particularly alleged in order to admit evidence thereof and justify a recovery therefor.</p> <p>Id.—Allegation of General Damage—Evidence of Comparative Gains from Business Before and After Injury—Instructions.—In such action, under general allegations of personal injuries, the jury are authorized to consider the permanent loss to the plaintiff from the fact that the injury renders him less capable than before of doing the business in which he was previously engaged, and in proof of such loss, evidence is admissible as to the relative gains from the business formerly carried on and that subsequently conducted by him. In such a case, however, the jury should be instructed that no allowance as damages can be made for the specific loss of profits that may be disclosed by the evidence of the comparative gains before and after the injury.</p> <p>Id.—Excessive Damages.—Review of Judgment on Appeal.—In an action for personal injuries, a judgment for the plaintiff will be reversed on the ground that the damages awarded are excessive, only when it appears that the amount allowed is so plainly unjust and oppressive as to suggest passion, prejudice, or corruption on the part of the jury. In view of the evidence, the damages awarded in the present case are not excessive.</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>Garret W. McEnerney, Walter Rothchild, and John Garber, for Appellants.</p>

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

<p>State Lands—-Bight to Purchase—Contest—-Actors—Pleading Paramount Bight.—Where a contest of the right to purchase state lands is referred to the superior court, each party to the proceeding is an actor, and must state in his pleading facts sufficient to show that he has some right to the land better than that of the other parties; and if he claims as a purchaser from the state, he must allege the facts necessary to give him a right to purchase the land from the state paramount to the right of his adversaries.</p> <p>Id.—Intervention—Pleading by Interveners.—The same rule of pleading, as actors, applies to persons admitted as interveners in the contest, which applies to plaintiffs and defendants.</p> <p>Id.—Insufficient Complaint by Interveners—Assignment of Certificate of Purchase—Qualifications of Purchaser Not Shown. —A complaint by interveners in a contest of the right to purchase a section of land, who claim as assignees of a certificate of purchase antedating the claims of plaintiff and defendant, is insufficient when it fails to show the qualifications of the assignor to make the purchase, in not averring that he was a citizen of the United States, or had declared his intention to become such, nor that he was a resident of the state, nor of lawful age, nor that there was no adverse occupation of the land, nor that it was not susceptible of cultivation, nor that he had not entered other lands of the same class which with the land applied for would exceed six-hundred and forty acres.</p> <p>Id.—Affidavit Not Shown to be Filed—Fact Not Stated.—The complaint does not state that any affidavit was filed in the surveyor-general’s office, where it merely avers that the assignor “made application in due form to purchase from the state,” which is insufficient as a statement of fact.</p> <p>Id.—Percentage and Certificate—Valid Application Must be Shown.—The fact that the surveyor-general accepted twenty pel cent of the purchase money and issued a certificate of purchase, does not excuse the interveners from alleging the facts necessary to show a valid application.</p> <p>Id.—Legal Conclusions.—Mere averments that the assignor of interveners “made application in due form to purchase from the state,” and “received a certificate in due form,” and “became entitled to the possession of said land, and to receive a patent therefor,” are bare and general conclusions of law, wholly insufficient to establish a valid application, or to sustain the pleading as against a general demurrer.</p> <p>Id.—Appeal of Interveners on Judgment-Roll.—Where the interveners appealed on the judgment-roll without a bill of exceptions, and the demurrers to their complaint in intervention having been properly sustained, they ceased to have any further interest in the proceedings, and their objections on appeal to the sufficiency of th.e findings and to the judgment declaring the rights of other parties are without avail.</p> <p>Id.—Objection to Service of Demurrers to Complaint in Intervention.—Waiving other answers to the objection that the demurrers to the complaint in intervention were not properly served., it is a sufficient answer that the complaint is fatally defective, which renders any irregularity in entertaining and acting on the demurrers entirely harmless.</p> <p>Id.—Refusal of Leave to Amend Deemed Justified.—This court must regard the refusal of leave to amend the complaint of the interveners as justified, when there is no bill of exceptions upon appeal to show the contrary, and where it further appeal’s that the certificate of purchase relied upon by them was foreclosed by the judgment of the superior court in 1892, which became final, as determined on appeal to this court.</p>

<p>Wills—Contest of Probate—Undue Influence—Support of Finding —Review upon Appeal—Conflicting Evidence.—Where the contest of the probate of a will is sustained on the ground of undue influence, a finding upon that issue is supported by the clear and positive testimony of interested and hostile witnesses of such a nature as to warrant the verdict, if the jury believed it to be true, even if the conflicting evidence for the proponent was preponderating. All questions of credibility of witnesses and of the weight of the testimony were exclusively for the jury and for the trial court. The rule is the same in will contests as in other proceedings; and a verdict or finding in such a ease will not, be disturbed where there is a real and substantial conflict upon the issues of fact involved.</p> <p>Id.—Failure of Jury to Find Upon Issue of Fraud—Evidence of Fraud Bearing on Undue Influence.-—Where the grounds of the contest of the will were both fraud and undue influence, the failure of the jury to find against the proponents upon the issue of fraud did not preclude it from considering evidence of fraud as bearing upon the issue of undue influence.</p> <p>Id.—Relation of Undue Influence to Fraud.—Although undue influence and fraud are not the same thing, and one may exist without the other, yet undue influence may be exerted by means of fraud. Confidence or influence may be used to obtain an unfair advantage over another in a variety of ways; and no less by means of fraudulent misrepresentations than by means of duress or other pressure.</p> <p>Id.—Rule of Proof of Undue Influence.—While it is true that there must be proof that the influence was used directly to procure the will, general influence not brought to bear upon the testamentary act not being undue influence, yet such proof exists where the evidence is of such a nature as to warrant the inference that the will was the direct result of the influence exerted for the purpose of procuring it, and was not the natural result of the uncontrolled will of the testator.</p> <p>Id.—Will the Direct Result of Undue Influence—Misrepresentations of Fact Induced—Aged Mother Controlled.—Where it appears that the mother was naturally fond of all of her children, but in her old age and physical weakness, she was so controlled and influenced by her daughter as to induce her to insert misrepresentations of fact against her son in her will, and practically to disinherit him, and the sum and substance of the contestants’ evidence was that the testatrix was unable to resist the importunities of her daughter, so that the will, as concerns the contestants, was in reality the will of the daughter, and not that of the testatrix, it sufficiently warrants the conclusion that the undue influence was exercised directly upon the testamentary act, and that the will was the direct result thereof.</p> <p>Id.—Evidence—Declarations op Testatrix—Natural State op Mind-—Testamentary Intent—Proof of Undue Influence.—Evidence-was admissible to show the declarations of the testatrix prior to the-execution of the will showing her natural state of mind, and her-testamentary intent toward all of her children and to provide well for her son, not for the purpose of proving undue influence, which was proved by independent evidence, showing how the mother was. induced by the daughter to do otherwise.</p> <p>Id.—Rule Xs to Declarations Not Part op Res Gestae—Condition or. State op Mind.—The rule in this state is that declarations not part of the res gesto are inadmissible in proof or disproof of any statement contained in them; but, wherever the condition or state of' mind of the declarant is a material matter, declarations of a testator-legitimately tending to shed light on that question are admissible-solely for the purpose of showing his then condition or state of’ mind, the effect being carefully limited to the question of his condition of mind.</p> <p>Id.—Declarations Tending to Show Undue Influence Over State op Mind.—Evidence is admissible to show declarations of the daughter- and testatrix, or of the one in presence of the other not denied, tending to show a then effort to control the state of mind of the-testatrix by undue influence of the daughter, setting her mind against the son to his prejudice, and to show the manner in which, the undue influence over her state of mind was exercised, the extent, to which it was exercised, and the effect thereof.</p> <p>Id.—Declarations op Mother as to- Controlling Influence of-Daughter—Implied Admission.—Evidence was admissible to show that, upon the mother’s refusal to allow the son the temporary use-of a cultivator, he asked her why she treated him that way, whereupon she cried, and said, in the hearing of her daughter: “I can’t, help it. Leutie makes me do it,” to show the daughter’s implied admission'of the statement by silence, of her then exercise of undue influence over her mother against the son.</p> <p>Id.—Evidence of Daughter’s Change op Attitude toward Mother, after Father’s Death—Former Unkind and Cruel Acts.—-Evidence was admissible to show that prior to her father’s death, the-daughter was unkind and cruel toward her mother, and to,show tho-declarations of the mother to the son in the presence of the daughter not denied, as to acts of cruelty committed by the daughter, and to show her entire change of attitude toward her mother after the-father’s death, for the purpose of unduly influencing the testamentary act of the mother against her son.</p> <p>Id.-—Question for Jury as to Whether Declarations Were Admitted. —Where the daughter denied the declarations testified to by the son,, as having been made in her presence, it was a question of fact for the jury whether they were made in her presence, and under such, circumstances as to imply an admission of their truth.</p> <p>Id.—Rule as to Implied Admissions.—Evidence may be given upon a. trial of an act or declaration of another in the presence and within the observation of a party and his conduct in relation thereto, for the purpose of showing such conduct on his part as will constitute acquiescence in and admission of the truth of the statement; and when it is of such a nature and made in such a way as to naturally call for a denial, if not true, a failure to deny the same may be-reasonably taken as an admission of its truth.</p> <p>Id.—Opinion Evidence of Son—Mental Weakness of Mother—Cross-Examination — “Easily Influenced” — Responsive Answer.— Where the son testified in chief that his mother was to a certain extent weak mentally, and was asked on cross-examination what he meant by that answer and responded that she was “easily influenced,” the answer was responsive to the question, and the appellant had no right to have it stricken out as volunteered and not responsive to the question.</p> <p>JLD.—Opinion as to “Easily Influenced” Person—Mere Conclusion. :—Questions as to whether a person was one “easily influenced” call for mere opinions and conclusions from facts.</p> <p>Id.—Doctrine as to Exclusion of Admissions of One Beneficiary Inapplicable.—The doctrine that admissions of one beneficiary as to-the mental capacity of a testatrix cannot be proved, is inapplicable-to evidence.of declarations and implied admissions tending to show-actual undue influence exercised by the daughter over the mother in? procuring the testamentary act, which is necessarily admissible on? that issue.</p> <p>Id.—Evidence Tending to Show False Representations.—Evidence-tending to show false representations made by the daughter to her-mother as to the amount of property received by the son from his father, for the purpose of influencing the mother against him, was. admissible as clearly within the issues.</p> <p>Id.—Undue Influence—Unjust Will as a Circumstance—Value of' Estate.—-While an unjust will does not of itself raise the presumption of undue influence, the nature of the will may be considered by the jury upon the issue of undue influence as a circumstance, and. the value of the estate left by the testatrix is necessarily a factor-in determining its nature.</p> <p>Id.—Impeaching Evidence—Contrary Statements—Foundation Not-Laid.—The court properly disallowed evidence of contrary statements made by a witness where no foundation had been laid therefor.</p> <p>Id.—Absence op Prejudicial Error in Instructions.—It is held that there was no prejudicial error in the instructions given, or in the modification or refusal of requested instructions.</p> <p>Id.—Instruction Conditioned on Intestacy.—It cannot be assumed that proponents were prejudiced by an instruction that if deceased had died without a' will, her estate would descend to her children share and share alike, where the jury were clearly and emphatically instructed that the will could not be set aside on the ground that it is not in accord with the law of succession, or unjust or capricious.</p> <p>Id.—Instruction as to Unjust Will.—An instruction to the effect that while an unjust will does not of itself raise a presumption of undue influence, the nature of the will may be considered by the jury as a circumstance in determining whether fraud or undue influence was exercised, was correct.</p>

PETITION for Writ of Mandate to the Registrar of Voters and Board of Election Commissioners of the City and County •of San Francisco. The facts are stated in the opinion of the court.

Id.—Original Judgment Compelled by Findings of Fact—Error Favorable to Defendant.—It is held that there is no question of any counterclaim or any claim for damages in the case; that, notwithstanding the finding of willful failure on the part of the contractor, the defendant is in no position to urge that the original conclusion of law was inconsistent with and unsupported by the findings of fact; that if there was any error in such conclusion, it was error favorable to him,…

<p>Malicious Prosecution — Criminal Charge — Altering Railroad Ticket—Probable Cause—-Verdict against Evidence.—In this action to recover damages for the malicious prosecution of the plaintiff by the defendants upon a criminal charge of altering a railroad ticket with intent to defraud, it is held that a verdict for the plaintiff is against the evidence, which clearly shows that there was probable cause for the criminal prosecution.</p> <p>Id.—Nature oe Probable Cause—Reasonable Belief of Truth of Charge.—Probable cause is a suspicion founded upon circumstances sufficiently strong to warrant a reasonable man in believing that the charge is true. If the facts known are of such character as to induce in the mind of a reasonable man the honest belief that a crime has been committed, he is justified in seeking to have the crime punished.</p> <p>Id.—Probable Cause when a Question of Law—Absence of Conflict.—When there is no conflict in the evidence, the question whether or not the evidence introduced for the plaintiff shows probable cause is always for the court to decide; and it is error in such ease, where there is probable cause, to submit any question to the jury.</p> <p>Id.—Duty of Person Prosecuting Offense—Fulj¿ Investigation not Required.—It is not necessary that the person instituting the criminal prosecution shall make a full investigation of the crime itself, or seek to ascertain whether there are other facts relating to the offense, or to try to find out whether the accused has any defense to the charge. He is not required to exhaust all sources of information bearing upon the facts which have come to his knowledge.</p> <p>Id.—Evidence Tending to Show Alteration of Ticket—Plaintiff not Excused.—Where the conductor as co-defendant testified to-his practice, in granting stopovers, to write the number of the-station, whereby he knew, for that and other reasons, including proof of plaintiff’s handwriting, that the ticket had been altered from a stopover, at Pajaro, so as to read San Jose, and had been sold by plaintiff to another person, so as to call for another ride from San Jose to Pajaro, the objection that the conductor had not stated that practice to counsel, if true, could not render plaintiff' guiltless of the offense.</p> <p>Id.—Statement of Facts to Counsel in Good Faith—Probable. Cause Shown.-—In addition to the proposition that the evidence adduced was of itself sufficient to show probable cause for the prosecution, the defendants were also entitled to the benefit of the-rule that where one, before instituting a prosecution for crime, has. in good faith consulted an attorney at law of good standing, has. stated to him all of the facts of the ease, and has been thereupon advised by such counsel that a prosecution would lie, and such person has acted honestly upon that advice, this of itself constitutes, probable cause.</p> <p>Id.-—Preliminary Examination—Holding of Accused to Answer— Prima Facie Evidence of Probable Cause.—Where the accused, person has had a preliminary examination upon the offense charged-of altering the railroad ticket, and has been held to answer thereto ■ in the superior court, this is prima facie evidence of the existence of' probable cause for the prosecution; and where there was no evidence-in contradiction of the prima facie evidence made by the commitment, but on the contrary the evidence tended to confirm it, the-probable cause is fully established.</p>

<p>Life Insurance—Settlement op Policy—Claim op Frauh—Insufficient Complaint—Decision upon Former Appeal—Law op Case. —Where upon a former appeal it was held that a complaint upon a policy of life insurance which had been settled and adjusted between the insurance company and the appellants upon payment of an agreed sum and a release of all claims, which settlement was claimed to have been procured by fraud, did not state a cause of action either for damages for deceit or to rescind the settlement for fraud, such decision is the law of the ease upon this appeal from a judgment rendered upon a demurrer to an amended complaint in so far as it involves the same questions of law.</p> <p>Id.—Doctrine of Law of Case.—When, upon an appeal, the supreme court, in deciding the appeal, states in its opinion a principle or rule necessary to the decision, that principle or rule becomes the law of the case and must be adhered to throughout its subsequent progress, both in the lower court and upon a subsequent'appeal, regardless of any change of opinion as to its correctness.</p> <p>Id,—Particular Questions Involved — Damages fob Fraud not Stated—Settlement Repudiated—Rescission before Suit not Averred.—Where the former complaint was upon the policy, without averring damages for fraud, upon the theory that the settlement was repudiated as void; and no notice of rescission thereof for the fraud, and tender back of the money received on the settlement before suit was averred, and the amended complaint is in no bettor position than the original on either of these questions, the law of the ease is applicable thereto.</p> <p>Id.—Measure of Damages for Fraud—Question Decided for Guidance of Lower Court—Law of Case.—The claim upon the policy surrendered upon the settlement being disputed, where the decision upon the former appeal distinctly held for the guidance of the lower court, in passing upon an instruction in which error was ■claimed, that the measure of damages for fraud was not the face value of the policy but something less, consisting of the value of the disputed policy under all the circumstances, such decision, whether sound or not, is binding on this appeal as the law of the case, even though it may not have been absolutely necessary to the determination of the question whether or not the judgment and order appealed from should be reversed.</p> <p>3j>.—Damages for Fraud Required to be Pleaded.—A complaint upon a disputed policy which has been settled by way of compromise, in respect of which fraud is claimed, must allege that the disputed policy surrendered was worth a certain amount, or, at least, in general terms, that by reason of the deceit and the consequent surrender, plaintiffs have been damaged in a certain sum.</p> <p>Id.—Insufficient Averment.—An averment that “except for the fraud and deception practiced upon them by defendant, plaintiffs would not have surrendered said policy for any less sum than $10,000,” is no allegation of the value of the claim upon the policy.</p> <p>I®.—Effect of Stipulation upon Resoission—Amended Complaint Treated as New Suit—Prior Rescission Essential.—A stipulation that pending an investigation as to the merits of the settlement all rights should be protected, and if found fair, plaintiff might file a new amended complaint, with the same effect as an original and insert any new cause of action, after notice that the settlement would be relied upon, such stipulation had the effect to treat the amended complaint as the .commencement of a new action, but not to waive, excuse, or dispense with necessary pleading; and it was essential that plaintiff, relying upon a rescission of the settlement,, should give notice thereof and tender back the money paid thereon, before filing the amended complaint, and aver those facts therein.</p> <p>Id.—Offeb of Rescission in Amended Complaint Ineffectual.—A mere offer of rescission in the amended complaint, without any facts showing a prior rescission, was wholly ineffectual.</p>

<p>Order Granting New Trial—Review upon Appeal.—It is a settled1 rule of this court that where an order granting a new trial is general in its terms, it will be affirmed, if it could properly have been granted on any of the grounds assigned; and that, even though the-order declares in terms that the motion is granted for one or more-reasons only, the appellate court is not precluded from considering-any other assignment upon which the motion should have been, granted.</p> <p>Id.—Limitation óf Rule—Power of Trial Court—Exclusion of Insufficiency of Evidence.—The rule of review upon appeal is subject to the one limitation that the trial court may limit the order-granting a new trial so as to exclude as a ground of its action insufficiency of the evidence; but such exclusion to be effectual, should bedeelared in the order itself.</p> <p>Id.—Copy of Opinion No Part of Record—Government of New Trial. Order.—A copy of an opinion of the trial coilrt giving its reasons-for granting the motion, which is printed in the transcript, and not made part of the bill of exceptions, is no part of the record; andf the order granting the new trial must be governed by the bill off exceptions and the terms off the order itself.</p> <p>Id.—Contents of Opinion if Authenticated not Considered—Presumption—Insufficiency of Evidence.-—-Even if the opinion was-properly authenticated, its contents stating that the new trial was:,, granted solely for error in an instruction, and stating the coneurrenceof the trial judge with the verdict on all disputed questions of fact, cannot be considered on appeal from the order, which of itsolf does-not exclude insufficiency of the evidence as a ground of the motion. If there is any conflicting evidence, in view of which- the trial court, might have granted a new trial for insufficiency of the evidence, it must be presumed upon appeal in favor of the order that it was: granted on that ground, and it must be affirmed..</p> <p>Id.—Province of Trial Court to Weigh Evidence.—The- trial court,, unlike the appellate court, is not bound by the rule of conflicting-evidence, but it is its province and duty, on motion for a new trial, to weigh the evidence, and if in its opinion the weight of the evidence is against the verdict, it is its duty to grant a- new trial.</p> <p>Id.—Injury to Workman from Descending Elevator—Conflicting-Evidence—Assumption of Risk—Presumption.—Where plaintiff,, while at work on defendant’s building, was struck to his injury by a descending elevator, and there was a clear conflict of evidence as to-whether plaintiff was informed that defendant had- instructed the-operator not to run the elevator while the work was in progress, and had nevertheless directed him to run it, and the court had properly instructed the jury that if they believed the evidence of the operator to that effect, rather than that for plaintiff to the contrary, the facts testified to by him amounted to an assumption by plaintiff of the risk of the injury sustained, it must be presumed, in favor of an order granting a new trial to defendant, after verdict for plaintiff, that it was based on the belief of the judge that the verdict was contrary to the weight of the evidence on that issue.</p> <p>—New Trial Order not Sustainable on Instruction Given—Violation op Agreement—Neglect op Operator to Warn.—The order granting the new trial is not sustainable upon an instruction based upon the mutual knowledge of the plaintiff and the elevator man that they were both engaged in dangerous work in the elevator shaft that “if nothing else was said and no other instructions were given by their superiors and the plaintiff and the elevator man- agreed that before the elevator was moved the elevator man would call out to the plaintiff and his associates and that he would not move it until they answered ‘All right,’ and he did move it without calling out, and the plaintiff was injured by reason of such failure, then the plaintiff is entitled to recover.”</p> <p>Td.—Risk not Assumed under pacts Stated—Unanticipated Negligence.—Under the facts supposed, it cannot be affirmed that risk was necessarily assumed; but such facts assume the negligence of the operator in failing to warn the workers in the elevator shaft. The plaintiff was not bound to assume the risk of the negligence either of his employer, or of the operator, if-he had no reason to anticipate the same.</p> <p>Id.—Questions of Pact for Jury—Negligence—Cause of Injury— Duty to Anticipate—Assumption of Risk—The questions whether the operator was negligent, whether his negligence caused plaintiff’s injury, and whether plaintiff was bound to foresee the likelihood that such negligence would occur, are questions of fact, which might on the record have been found by the jury for the plaintiff, and if so found, the assumption of risk would have been negatived.</p> <p>Id.—Operator and Plaintiff Employed in Different Departments— Liability op Employer—Amendment of Code.—Under the amendment of 1907 to section 1910 of the Code of Civil Procedure, making the employer liable for the negligence of co-employee engaged in a different department of labor than that of the person injured, the operator of an elevator is engaged in a different department of work than that of a carpenter employed upon the building, and the defendant is chargeable with the negligence of such operator which caused injury to the plaintiff carpenter.</p> <p>Id.—Negligence of Operator—Matter of Law.—When the facts are such that the only inference is that of want of care, the court may properly charge that negligence is shown as matter of law. It is held that upon the record, there is no room for doubt that the operator of the elevator showed a lack of due care, if, after having agreed with plaintiff to give warning before starting Ms elevator, he did start it without giving such warning, and that it cannot be said on the facts supposed and found by the jury, that plaintiff had any reason to .anticipate such negligence.</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>Leslie R. Hewitt, City Attorney, Lewis R. Works, Assistant City Attorney, John W. Shenk, Assistant City Attorney, and Howard Robertson, Deputy City Attorney, for 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>Sullivan & Sullivan, Theo. J. Roche, and Cassin & Lucas, for Appellant</p>

<p>Action to Quiet Title—Pleading—Insufficient Averments—Legal Title in Defendant—Verbal Trust for Plaintiff.—A complaint in an action to quiet title, in so far as it does not show any trust arising by operation of law, or any legal interest in the plaintiff arising out of a trust, but merely alleges that plaintiff conveyed the legal title to the defendant without consideration, under a verbal agreement that the defendant was to hold the title in trust for plaintiff, states no cause of action. In the absence of a writing, a decree quieting plaintiff’s title cannot be sustained on the theory that the title to the property was held by the defendant in trust for the plaintiff; nor could a finding of ownership in the plaintiff be sustained by proof that defendant holds the legal title, subject to an equity in favor of the plaintiff.</p> <p>Id.—Cause of Action Stated—Dsual Averments—Prescriptive Title. .—Where the complaint to quiet title sets forth the usual averments that the plaintiff is the owner of and in possession of the land described, that defendant claims an interest therein adverse to the plaintiff, and that such claim is without right; and further alleges that ever since the execution of said deed, plaintiff had held possession of said land against defendant and the whole world, and for five years had paid all taxes levied and assessed upon said land, and had improved the same as his own, without suggestion or objection 'from any one in the world, it states a cause of action based upon a legal title in the plaintiff.</p> <p>Id.—Cause of Action Not Affected by Referring to Deed.—The cause of action based upon the prescriptive title acquired since the date of the deed executed by plaintiff to defendant, is not affected by reference to such deed, which cannot prevent the subsequent acquisition by the grantor of a perfect title by adverse possession as against the grantee.</p> <p>Id.—Amended Complaint—Construction of General Finding.—Where the original complaint was several times amended, a general finding that all the allegations and averments of the complaint are true should be taken as intended, not to refer to the- original complaint, but to the complaint on which the case was tried. The answer mentioned in the same finding "was the answer to that complaint.</p> <p>Id.—Adverse Possession—Absence of Color of Title—Construction of Statute—Improvements of Lots.—Under section 325 of the Code of Civil Procedure, providing that where adverse possession is not claimed under a written instrument, judgment, or decree, the land must be either protected by a substantial inclosure, or must be usually cultivated or improved, when town lots are sufficiently improved in the manner or to the extent usual in the case of similar property, it is not necessary that they should either be cultivated or . inclosed.</p> <p>Id.—Support of Finding as to Improvements—Evidence of Plaintiff. —While the evidence as to improvements upon the lots is not very full, yet where there is nothing in the record to indicate that the plaintiff’s improvements relied on were inadequate, the testimony of the plaintiff that he had since December 3, 1896, to the date of the trial in 1908 had actual possession of the property, was proper as tending to prove actual occupancy, and in the absence of a clear showing to the contrary, is sufficient to support the finding as to adverse possession by improvements upon the lots.</p> <p>Id.—Support of Finding as to Hostile and Exclusive Possession— Conflicting Evidence.—Where the plaintiff’s evidence, if true, showed that his possession was hostile and exclusive as against the defendant, it supports a finding to that effect. A conflict of testimony by contradiction from the defendant, presents a _ question to be answered finally by the trial court.</p> <p>Id.—Payment of Taxes—Joint Assessment of One Lot with Lot of Third Person.—Where the evidence shows that plaintiff paid all taxes assessed against his lots for the statutory period, the fact that one of them was jointly assessed with the lot of a third person to whom plaintiff regularly gave the money to pay the taxes on his lot so assessed, does not show a failure to pay the taxes thereon, though such third person kept the receipts. This was, in effect, a payment by plaintiff.</p> <p>Id.—Sale fob Delinquent Taxes—Redemption by Plaintiff.—The fact that in one year the land was sold for delinquent taxes, and subsequently redeemed by the plaintiff did not prevent him from acquiring a title by adverse possession.</p> <p>Id.—Argument Upon Appeal—Points Insufficiently Presented Not Considered.—Where objections, rulings, and exceptions to evidence are merely stated in appellant’s brief, without any citation of authority or argument, beyond the bald declaration that “in deciding these objections against the defendant the court erred,” the appellate court is not called upon to consider the points so presented.</p>

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

<p>APPLICATION for Writ of Mandate to the Board of' Election Commissioners of the City and County of San Francisco.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Promissory Notes—Collateral Security—Guaranty by Pledgors— Untenable Action.—The holder of a note .for two thousand dollars executed by makers who as payees of the note of a third person for two thousand one hundred dollars transferred the same to such holder as collateral security for their note to him, having made by indorsement upon such collateral note an express guaranty for its payment, waiving demand, presentment, notice, and protest, is confined to his remedy against the maker of the collateral note, and cannot maintain an action against the pledgors thereof upon their express guaranty.</p> <p>Id.—Title to Pledge Not Passed to Pledgee.—Under section 2888 of the Civil Code, it is provided that: “Notwithstanding an agreement to tne contrary, a lien or a contract for a lien, transfers no title to the property subject to the lien”; and it is settled in this state that, as between the pledgor and pledgee, the general property in a pledge remains in the pledgor, notwithstanding an apparent transfer of legal title to the pledgee.</p> <p>Id.—Pledgee a Trustee for Pledgor.—The pledgee is but a trustee for the pledgor and is accountable to the pledgor for surplus realized above the amount of indebtedness existing at the date of enforcement of the pledge.</p> <p>Id.—Title to Collateral Security for Collection.—The title to negotiable paper transferred as collateral security is not transferred any farther than to enable the pledgee to collect the amount due thereon from the maker. In no event under the law merchant could an indorsement of negotiable paper by way of collateral security authorize any recovery from the pledgor beyond the amount remaining due upon the principal debt. It could not operate as an assignment of the general title, so long as the pledge subsists, and could only become such by an agreement that the amount of the colateral security be applied as a payment upon the principal debt, or in ease of a transfer by the pledgee to third parties.</p> <p>Id.— Action Upon Guaranty — Answer — Collateral Security — Amount Due Not Alleged—Striking Out Judgment on Pleadings—Reversal.—In an action upon a guaranty by the payees of a note indorsed to plaintiff, an answer averring that the note was transferred to plaintiff by way of collateral security for the note of the defendants to plaintiff for a less sum due sixty days later, and still owned by plaintiff, states a sufficient defense, though it fails to allege that the full amount of the note in suit is not due. The amount due thereon is not material; but the all-significant matter is the title to the collateral note sued upon. An order striking out such answer as frivolous and surplusage was erroneous; and a judgment for plaintiff on the pleadings must be reversed.</p>

PETITION for Writ of Mandate directed to James M. Séawell, Judge of the Superior Court of the City and County of San Francisco. The facts are stated in the opinion of the court.

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

<p>Execution—Levy and Beturn—Order op Sale—Title op Purchaser ■—Appeal—Correctness op Beturn Collateral.—The title of a purchaser at sheriffs sale does not depend upon the return to the writ of execution; and after an execution has been levied, and returned without sale, upon appeal from a subsequent order of sale requiring the sheriff to make the sale under the levy, the correctness of the return is collateral to the appeal, and the failure to comply with the statute in making the levy cannot be reviewed upon such appeal.</p> <p>Id.—Prior Levy Not Abandoned—New Execution por Costs upon Appeal—Void Process.—The prior levy under the execution upon the original judgment cannot be held void by reason of the issuance of a new execution for costs upon appeal, which is not an alias execution upon the original judgment, and which is in fact a void process because issued upon a judgment declared void.</p> <p>Id.—Eppect op Irregular Alias Execution—Abandonment Not Inferred.—The issue of an alias execution, while a levy under a prior execution remains undisposed of, is an irregularity which might be corrected by vacation of the second writ. Unless other circumstances tend to establish the abandonment of the prior levy, it cannot be inferred from the mistaken issue of an alias writ; nor is an abandonment of a regular and adequate levy inferable from a subsequent irregular levy.</p> <p>Id.—Delay through Mistaken Bemedy—Mere Delay Not Abandonment.—The delay to enforce a prior levy under execution through mistaken remedy for supposed stay of execution pending an appeal does not indicate an intention to abandon the levy. Mere delay in making the sale does not operate as an abandonment.</p> <p>Id.—Time of Sale Directory—Control of Court.—Where the right exists to subject the property to a sale for the satisfaction of the judgment, the time within which it may be done is directory and under the control of the court.</p> <p>Id.—Void Subsequent Sale — Bight of Purchaser to Beturn of Money.—Where a void subsequent sale is made, the purchaser thereunder is entitled to the return of his money; and there can be no credit upon the original judgment by reason of such void sale.</p> <p>Id.—Order of Sale to Satisfy Levy—Withdrawal of Beturned Execution.—Where the court has made an order of sale to satisfy the levy under the returned execution, the court may direct the withdrawal of the returned writ from the files of the court for the sheriff’s use in making such sale.</p> <p>Id,—Power of Court over Becords.—The court has complete authority over its own records, and has power to pursue any suitable method for effectuating its judgments and orders which may appear most conformable to the spirit of the code.</p> <p>Id.—Unexecuted Sale Effected by Succeeding Sheriff.—Although the general rule, in the absence of statutory mandate to the contrary, is that the officer who made a levy under writ of execution upon personal property must complete the sale, yet under the statutory rule in this state, “when any process remains with the sheriff unexecuted in whole or in part, at the time of his death, resignation of office, or at the expiration of his term of office, said process shall be executed by his successor or successors in office.”</p> <p>Id.—Finding that Writ Was Unexecuted.—The order of the court withdrawing the writ from the files of the court for the new sheriff’s use was in effect a finding that the process was returned without proper authority, and that therefore the writ had, in contemplation of law, remained with the sheriff unexecuted.</p>

<p>“Juvenile Court Law”—Salary op Assistant Probation Oppicer in San Francisco—Appointment by Court—Mandamus to Auditor. —Mandamus will lie to the auditor of the city and county of San Francisco to compel him to approve and allow a demand payable out of the county treasury for the monthly salary of an assistant probation officer appointed by the superior court thereof acting as a juvenile court under the “Juvenile Court Law,” approved March 8, 1909, (Stats. 1909, p. 213).</p> <p>Id.—Purpose op Act—Additional Jurisdiction—Police Power—State Policy. — The purpose of the act providing for the juvenile court is to provide for the care and custody of children who have shown, or who from lack of care are likely to develop criminal tendencies, in order to have them trained tó good habits and correct principles; and the additional jurisdiction conferred upon the superior courts to accomplish this purpose is an exercise of the police powers of the state through the judicial department, and is matter which concerns the whole state as much as any other extension of the judicial system. These are matters of state policy, and not “municipal affairs” within the prohibition of the constitution.</p> <p>Id.—Extension of Judicial System under Freeholders’ Charters.— The extension of the general judicial system of the state into incorporated cities having freeholders’ charters does not preclude it from being exclusively exercised therein as a matter of state policy.</p> <p>Ld.—Power op Legislature over Courts.:—The legislature has sole authority under the constitution over the powers of the superior and inferior courts of the state, with the single exception of police courts established under freeholders’ charters.</p> <p>Id.—Matters Not Controlled by San Francisco Charter—Powers op Superior Courts — Regulation op County Officers.—The freeholders’ charter of the consolidated city and county of San Francisco does not control additional powers conferred therein upon the superior court, under the general law of the state, nor to regulate the duties of county officers as distinguished from the municipal officers of the city.</p> <p>Id.—Construction of Constitution—Exception of “Municipal Affairs.”—The provision of the constitution excepting “municipal affairs” from the general legislative power over municipalities is to be construed as relating wholly to cities and towns exercising “municipal functions.” It only applies to San Francisco, so far as it exercises “municipal functions,” as distinguished from a county. "With respect to the powers and functions of a county exercised by San Francisco, that section has no concern; and the power of the legislature to enact general laws for the government of counties as such, including San Francisco, remains unaffected and unimpaired by that section.</p> <p>Id.—Power of Consolidated Government— Compensation of County Officers.—Although under section 8% of the constitution a freeholders’ charter under a consolidated city and county government may fix the election and compensation of county officers and their deputies, yet in so far as it is silent as to the election or appointment of special officers or their compensation the general law must prevail.</p> <p>Id.—San Francisco Charter Inapplicable to Machinery of Juvenile Courts and Probation Officers.—The San Francisco charter makes no provision for the appointment or compensation of probation officers or their assistants. They constitute part of the machinery of the judicial system of the state, and are officers of the superior court provided to enable that court effectually to exercise the special jurisdiction vested in it under the “Juvenile Law.”</p> <p>Id.—Power of Legislature to Fix Duties of County Officers.—The legislature has plenary power to fix the duties of all county officers, and to impose special duties upon probation officers as new county officers additional to those imposed upon sheriffs and their deputies, and to provide for their appointment and compensation so far as not fixed -under the San Francisco charter, as county officers.</p> <p>Id.—Power of Court to Appoint Probation Officers not Unconstitutional.—The power of appointment of probation officers vested in the superior court in the exercise of its jurisdiction as a juvenile court is not unconstitutional as vesting an executive function in judicial officers. The division of power into executive, legislative, and judicial, applies to the state government, and not to the local county and municipal governments which the legislature might establish. The probation officers provided for are not state officers, but minor county officers who are assistants to the court.</p> <p>Id.—Courts Properly Allowed to Appoint Heedful Assistants.— The legislature may properly allow the judiciary to appoint needful assistants for the efficient carrying on of their work.</p>

<p>Attorney and Client—Accusation for Disbarment—Case in Federal Court—Money Fraudulently Obtained.—An accusation by a client for disbarment of an attorney, charging that by means of false representations that he was entitled to practice in the district court of the United States in which an action was pending against the accuser in which he would represent the accuser as his client, whereby she was induced to pay him large sums of money, on his representation and promise that he would cause the action against her to be wiped out and discontinued, without any power to do so, states a sufficient ground for disbarment for violation of the oath and professional duties of the attorney.</p> <p>Id.—Crime of Obtaining Money under False Pretenses.—Although the accusation for disbarment for professional misconduct also states facts for which the crime of obtaining money under false pretenses might be punished, yet the proceeding, for disbarment on the ground assigned is not thereby precluded, in advance of the termination of a criminal prosecution for such offense.</p> <p>Id.—Jurisdiction of Disbarment Proceedings-—Criminal Misconduct.—The fact that the misconduct charged against an attorney as a ground of disbarment may also render him liable to indictment and punishment for crime, does not necessarily deprive the court of power to hear disbarment proceedings against him. It is only when disbarment is sought upon the mere ground 'that the accused has been guilty of a public offense involving moral turpitude, that a case for disbarment cannot be made until there has been a conviction for the offense. But an attorney may be disbarred for a violation of his professional duties, on any ground coming within the terms of subdivisions 2, 3, or 4 of section 287 of the Code of Civil Procedure, notwithstanding the fact that the charge against him might also be made the basis of an indictment or information.</p> <p>Id.—Bule in This Court Inapplicable to Proceedings in Superior Court for Disbarment—Aid of Bar Association.—The rule declared in proceedings for disbarment instituted in this court by private parties that they will not be entertained at suit of a private individual, who has a remedy for his alleged grievance by an ordinary civil or criminal proceeding, does not apply to an accusation for disbarment in the superior court for professional misconduct, which also has the support and representation of the local bar association in its prosecution.</p> <p>Id.—Duty of Attorney to Client—Utmost Good Faith.—The relation between an attorney and client is a fiduciary relation of the very highest character, and binds the attorney to the most conscientious fidelity. It precludes the attorney from obtaining any personal advantage by abusing the confidence reposed in him by his client.</p> <p>Id.—Breach of Professional Duty Averred.—The allegation that the accused,'by meh'nS'of misrepresentation, induced his client to pay him a' large sum- for services which he was not, and knew that he was not, in a position to perform, shows a plain breach of the obligation of fidelity imposed upon him by the law, and by the employment which he accepted.</p> <p>Id.—Support of Finding of Guilt-^Conflicting Evidence.—Where the xtestimony of the accused and of her witnesses support every material allegation of the complaint for disbarment, the general finding of his guilt of professional misconduct must be sustained, notwithstanding any conflicting evidence to the contrary.</p> <p>Id.'—Special Findings and Conclusions of Law not Beqtjired in Disbarment Proceedings.—There is no provision of the statute applicable to disbarment proceedings, which requires special findings and conclusions of law therein. Such proceedings are peculiar to themselves, and governed exclusively by the code sections specifically covering them. The procedure is in almost all respects dissimilar to that provided for civil actions, and, as it makes no mention of findings, there is no reason for holding that the legislature intended to import the'need of findings into it.</p> <p>Id.—Motion to Vacate Judgment for Alienage of Judge—Judgment-Boll—Proceedings not Authenticated—Bill of Exceptions.—Proceedings had upon a motion to vacate the judgment for alléged alienage of the judge who tried the case are no part of the judgment-roll, and where they are merely printed in the transcript without being authenticated in a bill of exceptions, including the papers used oh the motion and the ruling of the court, they cannot be considered.</p> <p>Id.—Motion without Merit—De Facto Officer—Official Acts not Collaterally Assailable.—The motion to vacate the judgment for alleged alienage of the judge who tried the case is without merit. If the judge were in fact an alien, and ineligible to the office, that made him none the less a de facto officer. His right to hold the office could be questioned only in proceedings regularly instituted for that purpose, and it could not be attacked collaterally by motion to set aside his official acts.</p>

<p>Lease of Baku Land—Time fob Improvements—Silence of Lease— Construction.—Under a lease of three hundred and forty acres of farm land, dated September 1, 1906, for a period of five years commencing October 1, 1906, where the lessor covenanted to build a house and barn on the premises, and to furnish materials for other improvements, which is silent as to the time when the improvements should be made, in the.absence of any other agreeinent, the lessor would" have been obliged to perform the stipulated acts within a reasonable time.</p> <p>3d.—Action to Rescind Lease—Pleadings—Issues as to Agreement —Binding Outside Issues.—In an action to rescind the lease for failure to complete the improvements and give possession as agreed, where the complaint alleges an understanding that the improvements were to have been, and with reasonable diligence could have been, completed before the beginning of the term, and the answer took issue thereon and alleged that at the date of the lease the county was taking legal steps to open a road passing through the land leased, and that the parties agreed that the location of the improvements would be determined after said road had been “definitely located,” and that it was not “definitely located” until October 25, 1906, a finding that they agreed that the improvements should be placed thereon as soon as defendant could do so after said county road was located and “built,” and that it was not “built" until on or after October 25, 1906, was outside of the issues.</p> <p>Id.—Absence of Specific Binding on Averments of Complaint—Ineffective General Tending.—In the absence of any specific finding on the averments of the complaint that the improvements were to he erected before the commencement of the term, and that with reasonable diligence the defeadant could have completed them by that time, a general finding that “no allegation contained in the amended complaint or in the answer thereto is true, save and except as hereinbefore found,” is too vague and indefinite for any purpose.</p> <p>Id.—“Location” of Road.—Though the term “located” as applied to a road may he ambiguous, and may refer either to the fixing of the line which the road is to occupy or to the actual construction of the road upon the ground, yet the word “location,” as used in section 2689 of the Political Code, as to the establishment of highways, plainly refers to proceedings designed to fix the line of the highway at a time prior to the actual construction and opening of the road.</p> <p>Id.—Construction of Answer.—The answer alleging the pendency of proceedings to open and establish a road, and stating that the location of improvements was to be fixed after the roacl had been “definitely located,” through said land, and convenient to the road when it was opened and ready for travel, can only be fairly interpreted as alleging an agreement whereby the erection of the improvements was to be deferred until the line of the road should be definitely established and known, so that the improvements should be convenient to such road when it should be actually built.</p> <p>Id.—Effect of Finding—Improper Excuse for Delay.—The effect of the finding that the improvements were to be erected after the road was located and “built” through the land was to excuse the delay of the defendant on a ground not asserted in the answer.</p> <p>Id.—Error in Overruling Objection to Evidence.—Where the plaintiff objected to evidence of the time when the road was actually constructed, basing his objection specifically on the ground that the answer alleged that the improvements were to be erected “as soon as the county road should be located, not as soon as it should be built or constructed,” the overruling of such objection was prejudicial error, since it led to an improper finding upon which the judgment was erroneously based.</p>

<p>Attachment—Action fob Services and Materials Used in Construction of Yacht—Claim of Lien upon Vessel—Motion to Dissolve.—In an action to recover for services rendered and material furnished in the construction of a yacht belonging to the defendant for which a lien is claimed by the plaintiff under section 813 of the Code of Civil Breeedure, an ordinary attachment irregularly issued under sections 537 and 538 of the Code of Civil Procedure, cannot be dissolved on the ground that plaintiff’s demand was secured by a lien upon the vessel antecedent to and independent of any seizure, and that the affidavit falsely stated that the debt was not secured.</p> <p>Id.—Attachment Proceeding against Vessels Distinct from Ordinary Attachment.—The attachment provided for in actions against vessels, steamers, and boats, under chapter VI of title X, and sections 813 et seq. of the Code of Civil Procedure, is entirely distinct from the ordinary attachment described in section 537. The section which provides for a lien upon such vessels is followed by provisions as to the manner of enforcing such lien. The attachment under section 817 presupposes the existence of the lien, and provides that the plaintiff may have the vessel attached as security for any judgment" that may be recovered in the action to enforce the lien, and for the purpose of aiding in its enforcement.</p> <p>Id.—Affidavit for Attachment Not Required—Writ Not Vitiated by Incorrect Affidavit.—Other than the verification of the complaint to enforce the lien, no separate- affidavit for attachment is provided for or required. This being so, the plaintiff’s writ cannot be vitiated by his having filed a useless and superfluous affidavit, nor by the fact that such affidavit contains a misstatement regarding an immaterial matter.</p> <p>Id.—Improper General Writ Levied upon Vessel—Discharge Required.—A general writ of attachment is not allowable in an action to foreclose a lien against a steamboat, vessel, or boat; and notwithstanding it may be levied thereupon, it must be discharged upon motion as having been unlawfully issued.</p> <p>Id.—Proceedings for Attachment Statutory in Each Class of Cases. —Proceedings for attachment, whether in ordinary cases, or in actions to enforce liens against vessels, are created by statute, and must in each of such class of eases follow the terms of the law governing that class.</p> <p>Id.—Specific Writ against Vessel Essential.—In an action to enforce a lien against a particular vessel, the law requires that a specific writ of attachment must be issued under section 819 of the Code of Civil Procedure, which “must be directed to the sheriff of the county within which the steamer, vessel, or boat lies, and direct him to attach such steamer, vessel, or boat, with its -tackle, apparel, and furniture, and keep the same in Ms custody until discharged in due course of law.” It is a special writ, which gives authority to seize specific property only.</p> <p>Id.—Levy on Vessel Alone under General Writ Immaterial.—It is of no consequence, upon the motion to discharge the general writ, that the sheriff did not in fact levy the same upon any property other than the vessel in question.</p> <p>Id..—Writ oe Attachment against Vessel Dischargeable If Improperly Issued,—Under section 823 of the Code of Civil Procedure involving sections 556 and 558 thereof, a writ of attachment against a vessel may be discharged on motion if wrongfully issued without reference to any levy made thereunder.</p>

<p>APPEAL from a judgment of the Superior Court of Los Angeles County and from an order denying a new trial. Frederick W. Houser, 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>Edward G. Sessions, Jr., administrator of the estate of Ethel Pomroy Soule, deceased, appearing in pro, per., Appellant in S. F. No. 5,087.</p> <p>Samuel Poorman, Jr., for Beach Carter Soule, Jr., and Everett Pomroy Soule, minors, Appellants in S. F. No. 5,088.</p> <p>Charles S. Wheeler and J. F. Bowie, for Alice S. Blake, as trustee, and Alice S. Blake, individually, and Helen F. Witcher, Respondents in both appeals.</p>

PETITION for Discharge upon Writ of Habeas Corpus ■from the custody of the Chief of Police of the City and County ■of San Francisco. The facts are stated in the opinion of the court.

<p>Misconduct in Office—Removal of Chief of Police of Stockton— Charter—Indictment—Proceeding in Superior Court—Prohibition.—The removal of the chief of police of the city of Stockton for misconduct in office is vested exclusively in the board of commissioners established for that purpose under its freeholders’ charter; and a proceeding by indictment of the grand jury of San Joaquin County charging such misconduct under sections 758 et seq. of the Penal Code, and prosecution thereof in the superior court, is without jurisdiction; and its prosecution in the superior court will be restrained by writ of prohibition.</p> <p>Id.—Effect of Amendment of Constitution—Charter Control of Tenure and Dismissal of Officers and Employees.—The proviso added on November 6, 1906, to section 16 of article XX of the state constitution, relating to terms of office: “Provided, however, that in the case of any officer or employee of any municipality governed ■under a legally adopted charter, the provisions of such charter with reference to the tenure of office or the dismissal from office of any such officer or employee shall control,” was in line with the policy of the state, to broaden the scope of municipal corporations governed by charters as to their own affairs, and was intended to make it clear that the provisions of a freeholders’ charter should control in the matter of the dismissal from office of any officer or employee of the municipality.</p> <p>Id.—Effect of Provisions of Stockton Charter.—Upon a review of the provisions of the Stockton charter, it is held that they very clearly show the intention that the matter of employment, retention, and dismissal of officers, members, and employees of the police and fire departments of the city of Stockton shall be in the hands of the police and fire commissioners of that city, their control thereof to be exercised in accord with the provisions of the charter, free of any interference at the hands of any other authority, so long as their acts are in accord with the charter provisions; and that they are to be the sole judges in the matter of complaints against any officer or employee of these departments, involving simply the question whether he should be removed from his office or employment.</p> <p>Id.—Jurisdiction of Offenses against State Laws—Regulation of Removal for Misconduct.—If any officer or employee of a city should commit any criminal offense against the laws of the state, he would be subject to trial and punishment under such laws; but the provisions of the Penal Code here involved, dealing only with the removal of officers for misconduct, relate to a matter which, under our constitution, so far as officers and members of the police department of a municipality are concerned, may be regulated by the provisions of its freeholders’ charter.</p>

<p>APPLICATION for a Writ of Prohibition directed to the Superior Court of San Joaquin County. Frank H. Smith, Judge.</p> <p>The facts are similar to those involvéd in the case of Craig: v. Superior Court, a/nte, p. 481.</p>

<p>Attachment of Mining Property—Claims of Laborers—Proceeds of Sale—Statutory Bight—Valid Nunc Pro Tunc Order for • Keeper’s Fees.—The claims of laborers presented to the sheriff ■upon the levy of an attachment upon mining property, for preferred, payment out of the proceeds of sale, is of purely statutory origin, and there is no trust fund, created in their favor in such proceeds, by such presentation, which is not subject to any subsequent lawful' order made nunc pro tuno, allowing keeper’s fees to the sheriff,, under the attachment and execution, having a superior right of' payment, as costs, out of the proceeds of the sale.</p> <p>Ib.—Orders Made after Time for Cost-Bill—Notice to Laborers— Amendment of Bill—Jurisdiction—Waiver of Objection.—Although the matter of the costs for keeper’s fees had no place in the cost-bill, prior to the order of court fixing the allowance therefor ' nunc pro tunc on application of the sheriff, and although the cost-bill was allowed to be amended to insert the allowance after the time had passed for filing a cost-bill, yet where the laborers had notice of both orders, and failed to object thereto, and both have become absolutely final by the lapse of time, the laborers are concluded by both orders, made in furtherance of justice, and the order allowing-the amendment to the cost-bill is as effective as if made withim the period of the limiting statute.</p> <p>Id.—Ineffective Appeal from Subsequent Order Denying Paymbntto Laborers from Proceeds.-—The allowance for costs for keeper’s, fees, and the amendment of the cost-bill having become absolutely final, and such fees having more than exhausted the proceeds of" sale, an appeal from a subsequent order refusing to direct payment to the laborers out of the proceeds of the sale, subject only to other costs, which the court had no discretion thereafter to make, is without avail, and the order appealed from being correct, when made,_ must be affirmed.</p> <p>Id.—Nature of Eights of Appellants—Contingency—Costs.—The. right of laborers under section 1206 of the Code of Civil Procedure, is a mere privilege, entitling them under certain circumstances to, enjoy the fruits of the attachment and sale in preference to the. attaching plaintiff, if proceeds of sale beyond costs are realized.. They are bound by the orders of the court made upon due notice. as to costs, whether they appeared or not.</p> <p>Id.—Estoppel of Laborers.—The laborers, appellants, who are the beneficiaries of a mere statutory privilege, are not given rights which will • permit them to wait until such action of the court as would bind the. other parties to the suit has become final, and then review the whole . case upon an appeal from an order which is merely the logical result of - the previous action of the court from which no appeal has been taken. _</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>Public Use oe Water—Sale, Rental, and Distribution eor Irrigation.—Water appropriated for sale, rental, and distribution for the irrigation of lands, is appropriated for public use, and is subjeet to the provisions of the aet of March 12, 1885, to regulate and control the sale, rental, and distribution of appropriated waters in this state.</p> <p>Id.—Breach of Duty—Oppression, Fraud, or Malice—Actual and Exemplary Damages.—Where the breach of duty by a water company charged with a public use is fraudulent, oppressive, or malicious, the party damaged thereby may recover, in addition to his actual damages therefor, the exemplary damages provided for in section 3294 of the Civil Code.</p> <p>Id.—Estoppel of Water Company to Deny Public Use—Condemnation of Strip of Land for Eight of Ditch.—The water company defendant is estopped as against the plaintiff to claim that it is not exercising a public use, by reason of condemnation proceedings, whereby on the theory that it was exercising a public use for the benefit of a specified district, it obtained a decree of condemnation of a strip of the land of the plaintiff for the very ditch from which the plaintiff seeks to he served with water.</p> <p>Id.—Liability to Actual Damage under Act of 1885.—Under section 10 of the aet of 1885, an appropriation of water for sale, rental, or distribution, is required upon demand therefor, and tender in money, of the established rates, to sell, rent, or distribute said water to the extent of the actual supply thereof for such purposes, and if, having water for such use, it refuses for five days to comply with the demand “to the extent of its reasonable ability so to do” the water company is liable in damages to the extent of the actual injury sustained by the party making such demand.</p> <p>Id.—Harmless Refusal of Evidence as to Bights of Prior Users— Evidence Showing Waste of Surplus.—The refusal of the court to admit evidence as to the rights of prior users was harmless, where the evidence shows clearly that in addition to supplying all prior users, there was a large surplus of water to the use of which the plaintiff was clearly entitled, with which the water company refused to supply the plaintiff at its established rates upon demand, and allowed the same to go to waste rather than to comply with plaintiff’s demand, having the ability fully to do so.</p> <p>Id.—Evidence ■ of Judgment of Condemnation — Pleading.—Where plaintiff in his complaint pleaded the estoppel of the defendant by the judgment of, condemnation it was clearly admissible in evidence in support of the estoppel pleaded.</p> <p>Id.—Harmless Refusal to Admit Articles of .Incorporation.—In view of the estoppel created by the judgment of condemnation for the defendant which was proved, if the court erred in refusing to admit in evidence defendant’s articles of incorporation, the error was without prejudice.</p> <p>Id.—Finding of Actual Damage Sustained by Evidence.—Held, that the evidence not only fully sustains the amount of actual damage found by the jury, hut would have warranted the finding of a larger amount.</p> <p>Id.—Elements of Damage—Loss of Alfalfa Crop and Hay Crop.— Land cultivated for alfalfa will produce several crops .each year, without further care except in the way of irrigation, and where it was wholly destroyed by defendant’s wrong, the measure of damages for its loss, is its rental value until restored, besides cost of reseeding it. Eor the loss of the hay crop, its value per ton if not destroyed, should be allowed.</p> <p>Id,—Evidence Sustaining Exemplary Damages.'—It is held that the evidence is amply sufficient to sustain the award of exemplary damages by the jury, against the defendant corporation, by reason of the acts and declarations of those entitled to represent it, showing oppression and malice against the plaintiff, and wantonly and willfully depriving plaintiff of the water to which he was entitled.</p> <p>Id.—Admissible Evidence—Declarations of President and Manager —Illegal Exaction—Motive of Corporation.—The declarations made by the president and general manager of the corporation, as to their positive refusal to furnish plaintiff with any more water except on the condition illegally exacted that he should refund to the company all money paid by them for the right of way, were admissible for the purpose of showing the oppressive and malicious motive of the corporation. These motives are imputable to the corporation, and these declarations must be presumed prima facie to be in accord with the desire of the board of directors.</p> <p>Id.—Presumed Knowledge by Directors of Befusal of Application. —It must be assumed that the directors knew of the plaintiff’s written application for water left at the office with the person in charge thereof, and that the directors were aware of the ground on which the application was refused, if the illegal condition exacted was not complied with.</p> <p>Id.—Sufficient Demand for Water—Compliance With Statute:— The leaving of the written demand for the water at the office of the corporation defendant, during office hours, with the person in charge of the office, was a sufficient compliance with the act of 1885 as to demand.</p> <p>Id.—Waiver of Objection to Demand and Tender.—Where prior to the commencement of the action, no objection was interposed to the sufficiency of the demand or of the tender of money made for the water needed by plaintiff, but the demand and tender were simply ignored, all objection to the form of either was waived, and defendant cannot now be heard to object to their sufficiency.</p> <p>Id.—Proper Befusal of Requested Instruction — Preparation to Beceive Water—Inapplicability to Evidence,—The court did not err in refusing to give a requested instruction that, before defendant was required to give water to a customer, he must be prepared to receive it, where the evidence shows, without conflict, that plaintiff was about to put in his side-gate to receive the water, when he was notified by defendant’s general manager not to put it in, for defendant would not furnish him with water.</p> <p>Id.—Proper Modification of Bequest.—Held, that in view of the facts, the court properly modified a requested instruction which left the question involved fully to the jury, and that the instruction as given was as favorable to defendant as the law warranted.</p>

MOTION to dismiss an appeal from a judgment of the Superior Court of San Diego County. T. L. Lewis, Judge. The facts are stated in the opinion of the court.

APPEALS from an order of the Superior Court of the City and County of San Francisco fixing an inheritance tax upon the estate of a deceased person. J. V. Coffey, Judge. The facts are stated in the opinion of the court. Campbell, Metson, Drew, Oatman & McKenzie, for Alice Kennedy, as Widow and Executrix, Appellant and Respondent. Hartley F. Peart, for John E. McDougal, Treasurer of the City and County of San Francisco, Respondent and Appellant.

<p>•Appeal—Distinct Appeals from Probate Order—Distinct Identical Transcripts—Necessity;—Reversal—Taxation of Costs.—Where distinct appeals by different parties aggrieved were taken from the same probate order, and distinct identical transcripts were necessarily presented upon each appeal, each appellant or set of appellants, upon reversal of the order, is entitled to tax the costs of each transcript so presented.</p> <p>•Id.—United Appeal by Many Parties—Separate Appeal by One— Costs.—The fact that many parties united in one appeal from the order, and upon reversal thereof the cost of the transcript united in by them and taxed was paid by respondent, cannot preclude a remaining party upon a separate later appeal from recovering upon reversal of the order upon his appeal the cost of an identical transcript necessarily presented by him.</p> <p>'Id.—Motion to Strike Out Costs of Distinct Transcript as Unnecessary—Conflicting Affidavits—Presumption upon Appeal. Upon a motion by the appellant to strike out the costs of the distinct transcript as unnecessary, where the affidavits presented upon the motion were conflicting, it must be presumed upon appeal from the order refusing to retax the costs that every conflict was resolved against the appellant from the order and in favor of the respondent. The credibility of witnesses, whether testifying orally or by affidavit, is for the trial court.</p> <p>Id.—Refusal by Appellant to Stipulate fob Common Transcript— Use of Distinct Transcript Justified.—Where the affidavits for respondent upon such motion clearly showed the refusal by appellant’s counsel to unite in a proposed stipulation by respondent’s counsel for use of the common transcript, the court was fully justified in charging the costs of the respondent’s distinct transcript, against the appellant from the order refusing to retax the costs thereof.</p> <p>Id.—Absolute Right to Distinct Appeal.—The bank, respondent here, had the absolute right as a party aggrieved to appeal separately from the probate order if it so desired; and such distinct appeal having been made necessary, it became necessary, under the rules of this court, to file its transcript therein within time.</p> <p>Id.—Reference to Other Transcript Not Allowed.—There is no rule or statute authorizing an appellant to dispense with the filing of a transcript by making reference to a transcript on file in another case.</p> <p>Id.—Transcript upon Appeals by Separate Independent Appellants. —The appeals by separate independent appellants are not required to be embodied in a single transcript; and one appellant cannot compel another to unite with him in the printing and filing of a transcript.</p> <p>Id.—Necessity for Separate Transcript Avoidable by Stipulation.— In such ease the necessity for filing a separate transcript might be obviated by a stipulation of all the parties for use of one transcript.</p> <p>Id.—Refusal of Offered Stipulation—Estoppel of Respondent.— Where the appellants in both appeals were willing to stipulate for the use of a common transcript, but such proposed stipulation was prevented by the conduct of the respondent in both appeals in refusing to join therein, it does not lie in her mouth after such refusal to complain that the additional cost of a second separate transcript was incurred upon the second separate appeal; and the resulting burden of such cost caused by her own conduct and which she might have avoided by joining in such stipulation properly falls upon her.</p> <p>Id.—Application for Order of Court for Common Transcript Not Required — Absence of Rule—Objection of Respondent.—The bank was not required to apply for an order of court that the two appeals be heard upon a single transcript. There is no rule providing for such order; and it is doubtful whether it would be made over the objection of a respondent that the filing of separate transcripts is essential to the protection of her rights. At any rate, where such insistence has influenced the action of the appellant in filing his transcript, the respondent should not be permitted, after the disposition of the appeal, to shift his position and claim that the filing was unnecessary.</p> <p>Id.-—Cost of Printing—Transcripts Not Printed from Same Forms —Distribution—New Printing Required.—The charge for printing was not excessive, as having been printed from a common form, where it appears that before the second printing was ordered the form had been distributed, and a new form was required to be set for the printing of the additional transcript.</p> <p>Id.—Expense of Certification Required.—The expense of providing the clerk’s certificate to the transcript was required, where it sufficiently appears that respondent’s attorney refused to join in certifying to its correctness.</p>

<p>Estates of Deceased Persons—Eight of Succession—Legitimation of Illegitimate Children—Question of Support of Findings.— Where the right of succession to the estate of a deceased person depends upon the legitimation of illegitimate children of the deceased, under section 230 of the Civil Code, and an advisory verdict was found upon questions submitted, that deceased was the father of each child, that he publicly acknowledged each during its minority as his own child, that he received each into his family as his own child, and that he otherwise treated each during its minority as if it were his legitimate child, and the trial court adopted these findings as its own, such findings are sufficient to establish the right of succession; and the main question first to be considered is the assigned insufficiency of the evidence to support them.</p> <p>Id.—Existence of Family Essential.—It is settled that the existence of a family into which the children can be received is essential to the adoption of illegitimate children by their father as legitimate under section 230 of the Civil Code.</p> <p>Id.—Sufficiency of Evidence as to “Paternity” — Marriage of Mother—Names of Illegitimate Children—Non-Access of Husband.—Although it appears that the illegitimate son and daughter bore the married name of their mother, whose husband had left her one year after their marriage, yet where the evidence clearly shows that the husband never again had access to her, that she resided thereafter in the home of the deceased until his death, that four years after the separation the son was bora and the daughter ten years thereafter, and the mother testified positively that the deceased was the father of both children, that she commenced sexual relations with the deceased one year before the birth of the son, that the deceased sent and paid for the physician who attended at the birth of each, and her testimony was corroborated by other proved admissions of his paternity, and of the manner in which they continued to live together,—the evidence warrants the conclusion of the trial court that the mother’s husband was not the father of either and that deceased was the father of both.</p> <p>Id.—Attempt to Impeach Mother as a Witness—Inconsistent Declarations and Conduct—Credibility for Trial Court.—Where evidence was offered to impeach the mother of the children as a witness, by declarations and conduct inconsistent with her evidence, the question of her credibility as a witness was for the trial court to determine.</p> <p>Id.—Rule of Decision upon Appeal Not Altered.—No different rule of decision in this court can be applied in determining the sufficiency of the evidence to sustain the finding in a case of this character than in any other ease.</p> <p>Id.—Direct Evidence of One Witness Sufficient to Sustain Verdict or Finding.—The direct evidence of one witness, who is believed by the jury and the trial court to be entitled to full credit, is sufficient proof of any fact except perjury or treason; and when the trial court, being the exclusive judge of the credibility of the mother of the children as a witness, approved the advisory verdict of the jury, and concluded that she was a witness entitled to full credit, the conclusion on that question is not open to review in this court.</p> <p>Id.—Sufficiency of Evidence of “Treatment of Children as Legitimate.”—The criterion of the statute as to the treatment of the illegitimate children as legitimate is the treatment usually accorded to legitimate children; and, under this criterion, it is held not open to serious question that the evidence is sufficient to support the conclusion of the trial court that the deceased treated both the son and the daughter as if they were his legitimate children.</p> <p>Id.—Sufficiency of Evidence of “Public Acknowledgment”—Meaning of Statute—Ordinary Sense of Words.—The requirement of the statute, that the father shall “publicly acknowledge” the illegitimate child “as his own,” only imports a “public acknowledgment” in the ordinary sense of the words used, and only imports a holding out of the facts without concealment to the knowledge of third persons. The circumstances surrounding the birth of the children, and the conditions existing in the household of deceased before and after their birth, coupled with his treatment of them and interest in them, were of such a nature, and with evidence of his declarations to third persons that they were his children, without any statement to the contrary, was evidence sufficient to sustain the finding that he “publicly acknowledged” them “as his own.”</p> <p>Id.—Absence of “Public Acknowledgment” to Other Persons—Introduction of Son by Mother's Married Name—Conflict.—The absence of “public acknowledgment” of paternity to a large number of other persons met by the father, to whom he owed no acknowledgment, and that in certain instances he introduced his son by his mother’s married name, which they continually bore, does not destroy the effect of the evidence, which shows a “public acknowledgment of both the son and daughter as his children, sufficient to sustain the findings of the court, even if the other evidence introduced tended to create a conflict.</p> <p>Id.—Sufficiency, of Evidence as to “Receiving Children into His Family”—Import of Terms.—It is held that the evidence is clearly sufficient to show that the father of the illegitimate children further adopted them as legitimate by “receiving them into his family,” according to the proper construction of section 230 of the Civil Code, which permits of an unmarried man having a “family” consisting of “a collective body of persons living together under one head or manager”; and the word “family” as used therein means no more at most than that the father must have a “home,” a settled place of habitation, of which he is the head, into which he must receive the child or children. Such “home” and the reception of the children into it was clearly proved.</p> <p>Id.—Brothers and Sisters op Deceased No Part op “Family.”— The brothers and sisters of the deceased, who never lived with him in California, constituted no part of “his family” in this state, within the meaning of section 230 of the Civil Code.</p> <p>Id.—Findings All Sustained by Suppicient Evidence—Province op Trial Court.—It must be held, without regard to the weight of the evidence, of which the trial court is the exclusive judge, that there is sufficient evidence to warrant every finding made by such court.</p> <p>Id.—Testimony by One op Appellants’ Counsel—Rule op Court Prohibiting Argument—Appellants Not Prejudiced.—The appellants were not prejudiced by a rule of court forbidding one counsel, who voluntarily became a witness, to argue the case, where they were not deprived of argument from the leading counsel who tried the ease and fully prepared himself to argue the same. Appellants were not deprived of any statutory rights and were not entitled as matter of right" to be heard by as many counsel as they may choose.</p> <p>Id..—Power op Supervision by Trial Court.—The trial court may exercise a reasonable supervision over the arguments of counsel; and, under ordinary circumstances, if a party is allowed full opportunity to present argument by one counsel, he cannot complain of any deprivation of his rights to argument by counsel.</p> <p>Id.—Improper Cross-Examination op Mother—General Sexual Intercourse.—The court properly overruled a general question to the mother of the children, as a witness on cross-examination, as to how many men since her husband had left her she had sexual intercourse with, and “who are they,” on the ground that such question was too broad. Evidence as to unchaste conduct of the alleged mother is allowable only in so far as it bears on the question of the paternity of the child, or tends to show that another is or may be the father of the child; and it must he directed to the time or about the time that the child was begotten.</p> <p>Id.—Improper Attempt at Impeachment.—Such question was not admissible for the purpose of impeachment. Questions on cross-examination tending to show the general immorality of the witness or specific acts of immorality should never be allowed in any case for the purpose of discrediting or impeaching the witness. Witnesses can be impeached in no other way than that provided in the Code of Civil Procedure.</p> <p>Id.—Evidence op Act op Sexual Intercourse.—Evidence was admissible to show that a witness discovered an act of sexual intercourse between the mother and the alleged father of the children, whether it took place before or after the birth of the daughter, as tending to show the extent of the intimacy between them and to corroborate the testimony of the mother as to their paternity and the nature of the relations existing between them.</p> <p>Id.—Witness Not Impeachable as to Collateral Matter.—The testitimony of a witness on cross-examination as to a purely collateral matter is conclusive, and he cannot be impeached by evidence of contradictory statements as to such collateral matter.</p> <p>Id.—Inadmissible Hearsay—Foundation for Impeachment Not Laid. —The court, properly excluded the evidence of a physician to hearsay declarations made by the mother of the children who was not a party to the action that she was in the family way by another person a few months before the birth of the daughter, which was in no way binding on the children as evidence on the question of paternity. Though such evidence might be admissible for the purpose of impeachment, it was not admissible for that purpose, where no foundation was laid for such impeachment on cross-examination of the mother.</p> <p>Id.—Instructions—Argumentative and Misleading Bequest—Adoption under Code.—An instruction requested by appellants which was argumentative and misleading as to fraud and perjury by mother of nameless children, and as to the weight of testimony, and informing the jury that to hold that there was an adoption under section 230 of the Civil Code, would require liberality of construction" destructive to the statute itself, was properly refused.</p> <p>Id.—Improper Bequests—Deception into the Family.—Bequested instructions to the effect that the deceased did not receive his children into his family unless he acknowledged their paternity to every relative, friend, and acquaintance who visited the house after their birth, were properly rejected as erroneous.</p> <p>Id.—Bulings upon Evidence.—Held, that there were no other improper or prejudicial rulings upon evidence.</p> <p>Id.—Petition for Partial Distribution—Erroneous Full Decree with Bonds—Property to Be Deserved.—Upon a petition for partial distribution of an estate at the expiration of four months, it is erroneous to distribute all of the property of the estate, simply reserving bonds to secure debts. Enough property should be reserved not only to cover the entire debts and expenses of administration, but also to secure the payment of the inheritance tax by the distributees under the act of March, 30, 1905.</p> <p>Id.—Full Distribution Not Permissible Prior to Settlement of Final Account.—The law does not contemplate the distribution of all the property of an estate under partial distribution proceedings or prior to the settlement of the final account of the executor or administrator.</p> <p>Id.—Partial Distribution of Mortgaged Property.—When mortgaged property is included in a decree of partial distribution, if there is a probability of a deficiency, enough property should be .reserved to secure against any deficiency, but if it appears that the mortgaged property is ample security for the whole debt, the debt may be disregarded on partial distribution.</p>

■ The facts are stated in the opinion of the court. Ambrose Gherini, Clary & Loutitt, and R. K. Barrows, for Appellant. John E. Budd, and Budd & Thompson, for Respondent. Cullinan & Hickey, and John J. O’Toole, Amici Curiæ, for Respondent.

<p>The facts are stated in the opinion of the court.</p> <p>J. A. Allen, George G. Murry, and E. O. Miller, for Appellant.</p>

<p>The facts are stated in the opinon of the court.</p> <p>Charles S. Wheeler, Warren Olney, Jr., and F. W. M. McCutcheon, for Appellant.</p>

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

<p>Franchise to Lay Main in Streets—License to Connect with .Shop —Duty to Bestore Street and Sidewalk Cannot be Delegated— Bespondeat Superior.—An ice company having a franchise from a city to lay a refrigerating main in the streets, and having a license to tear up the street and sidewalk to connect the same with a shop, is bound to use due care as the work progresses, and owes a duly to the public to restore the street and sidewalk, which it cannot evade by authorizing the owner of the shop to employ an independent contractor to restore the sidewalk, and is liable in damages for a person injured by falling into the trench on the sidewalk. In such ease, the rule respondeat superior applies to the ice company.</p> <p>Id,—Untenable Objection against Verdict—Prejudice against Corporation—Error Not Assigned.—An objection that the verdict is unjust and shows prejudice against the corporation, because no verdict was found against the contractor employed by the shopman to fix the sidewalk, is not tenable where no assignment of error on the ground of the jury’s prejudice appears in the motion for a new trial.</p> <p>Id.—Verdict Not Shown to be Excessive.—It cannot be said that the verdict shows prejudice as being excessive where the transcript contains no testimony as to the plaintiff's injuries.</p> <p>Id.—Abstract Instructions as to Contributory Negligence—Pleading by One Dependant—Failure of Another—Want of Evidence. —Instructions as to contributory negligence, and that the pleading of contributory negligence by one defendant is not available in favor of another who fails to plead it, though abstractly correct, need not be specially considered where no evidence appears in the record tending to show any contributory negligence, and the jury specially found that plaintiff used ordinary care and prudence in approaching the obstruction in the sidewalk.</p> <p>Id.—Prejudice from Error in Instructions Must Appear.—To justify this court in reversing a case because of error in an instruction, appellant must show that harm resulted from it.</p> <p>Id.—Supposition of Error and Finding of Contributory Negligence. —If the instructions were erroneous, and if the jury had found plaintiff guilty of contributory negligence' in favor of the contractor employed by the shopman and against the ice company, it might perhaps have cause of complaint; but harm could not result from the error, in view of the finding that there was no contributory negligence.</p>

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

<p>Negligence—Injury to Street-Car Passenger in Alighting—Sudden Start—Proximate Cause—Unauthorized Signal by Passenger. —In an action for injury to a passenger upon* a street-car caused by the sudden starting of the car while alighting therefrom, brought against the street-railway company for alleged negligence, where the evidence abundantly shows that the sole proximate cause of the injury was an unauthorized signal of two bells rung by a passenger at the rear of the car, which was the proper signal to the motorman to start the car, and that the conductor who was collecting fares in front of the ear immediately upon discovering the signal countermanded it, so that the car moved but a few feet, the railway company was not negligent nor responsible for the unauthorized act of a stranger; and a verdict in its favor cannot be disturbed upon appeal.</p> <p>Id—Bailway Company Not Bound to Precaution.—The railway company was not bound to take any precaution against the unexpected act of an unauthorized stranger, by whose unwarranted intervention the accident occurred.</p> <p>Id.—Crowded Condition of Car at Time of Accident Not Authorizing Becovbry.—Evidence of the crowded condition of the ear, and that people were standing in the aisle at the time of the accident, was admissible as one of the conditions then existing; but the court properly ruled and instructed the jury that it could not be considered except as part of such conditions, and would not entitle the injured person to recover, where no negligence in that respect was alleged and no causal connection between the crowded condition of the car and the accident was in any way shown.</p> <p>Id.—Pleading of Negligence.-—While it is permissible to charge negligence in general terms, it is nevertheless necessary to specify the particular act or acts alleged to have been negligently done. If appellants had desired to predicate negligence upon the crowded condition of the car, they should have done so by appropriate allegation.</p> <p>Id.—Availability of Particular Negligence—Direct Causal Connection with Injury Essential.—In every case the particular negligence relied upon, whether it be negligence in fact or presumed negligence from a violation of statute, in order to be available to the plaintiff must have some direct and causal connection with the injury complained of, so as to be the proximate cause thereof.</p> <p>Id.—Immaterial Negligence—Absence of Causal Connection—Failure of Action.—No negligence alleged or proved, whether actual or statutory, is material if there is no causal connection between the negligence or the unlawful act pleaded and proved and the injury; and in the absence of such connection the action fails.</p> <p>Ib.—Performance of Duty by Conductor.—The conductor in control of the ear was in the performance of his duty in collecting fares and giving transfers while the car was stopping and he was waiting for passengers to alight from the crowded ear; and it is in evidence that he would further have discharged his duty by seeing that all passengers wishing to alight had alighted before starting the car had it not been for the unauthorized starting signal, which he countermanded, as soon as possible.</p> <p>Id.—Submission of Special Questions by Court to Jury—Province of Jury Not Invaded.—The submission’ of special questions to the jury, which the court itself directed and which were upon matters not in dispute and established without contradiction, to which the jury answered, constituted no invasion by the court of the province of the jury.</p> <p>Id,—Instructions to Jury on Unauthorized Starting of Car — Proper Elimination of Question of Duty to Anticipate.—It is held that an instruction to the jury on the subject of the unauthorized starting of the ear properly eliminates from the consideration of the jury the question whether the railway company through its motorman and conductor should have anticipated the unauthorized signals.</p> <p>Id.—Gabbier Not Bound to Guard against Unanticipated Casualties. —A carrier of passengers is not obliged to proceed to provide against casualties which have not been known to occur before, and which may not be reasonably anticipated. That which never happened before, and which, in its character, is such as not naturally to occur to prudent men to guard against its happening at all, cannot, when in the course of years it does happen, furnish good ground for a charge of negligence in not foreseeing its happening and guarding against that remote contingency.</p>

<p>.Disputed Boundary between City Lots—Deeds Beperring to Map Giving Exact Location—Support op Finding—Absence op Con-m <9 phot.-—-In an action to determine a disputed boundary between city lots, where the deeds of both parties refer to a map determining the exact location of each, and the court found for defendant upon evidence so satisfactory and complete that the shufflings and evasions in plaintiff’s testimony cannot be said to raise even a conflict against it, the judgment and order for defendant appealed from by plaintiff must be affirmed.</p> <p>Id.-—Allowance of Damages fob Frivolous Appeal.—The appeal of plaintiff is deemed frivolous, and the sum of one hundred dollars damages therefor is allowed to the respondent against the appellant.</p>

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

<p>High School District—Severance or Outside Territory—Inclusion within City School District—Loss or Outside Taxation.—Outside territory formerly belonging to a high school district with which it is connected, upon its inclusion within the boundaries of' a city, becomes part of the school district of such city, and is thereby-severed from the outside school district and high school district of which it formed a part, and cannot be subjected to any further-burdens of taxation for the support of such high school district.</p> <p>Id.—Construction of Political Code—Extent of High School District.—Under the sections of the Political Code bearing on the question, a high school district, so far as its territorial limits are concerned, is not a distinct entity from the school district.</p> <p>Id.—Enlargement or Contraction of Boundaries.—When a school district has resolved to erect and maintain a high school, and has taken proper steps to that end, a so-called high school district is created. But it comprises the territory of the school district, its boundaries are the boundaries of the school district, and those boundaries are enlarged or contracted, increased or diminished, as are the boundaries of the school district. When the school district loses part of its territory, so necessarily the high school district loses the same part of its territory.</p> <p>Id.—Nature of High School District.—For obvious reasons a high school district, though having the same territory as the school district, has its own distinct funds, property, and government. It is maintained at the expense of the school district, and if it is discontinued its property is to be sold and, together with the school funds on hand, go to the school district.</p> <p>Id.—Territory Excluded from High- School District—Taxation.— Territory excluded from a high school district by becoming part of another school district is subject only to taxation in such other school district of which it becomes a part.</p>

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

APPEALS from judgments of the Superior Court of Los Angeles County and from orders denying new trials to the -appellant. Walter Bordwell, Judge. The facts ■ are the same as those stated in the opinion of the court in L. A. No. 2432, ante, p. 617.

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

<p>The facts are state 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>Action to Quiet Title—Adverse Claim under Tax-Deeds erom State-•—Stipulated Facts—Result Dependent upon Validity.—In an-action to quiet title to land in Fresno County, being the northwest quarter of section 23, township 16 south, range 15 east, Mt. Diablo, base and meridian, where the adverse claim of the defendant was-derived under two tax-deeds from the state, one to. the west half' of said quarter section and the other to the east half thereof, and it was stipulated that plaintiff was the owner of said property except so far as it was divested by said tax-deeds, and' the solé evidence consisted of such stipulation and the tax-deeds, the result of the. action is dependent upon their validity and effect.</p> <p>Zd.—Tax-Deeds as Primary Evidence.—If the tax-deeds axe valid, they constituted primary evidence, under section 3786 of the Political Code, of the regularity of the assessment upon which they were founded, equalization as required by law, levy of tax in accordance with law, non-payment of tax, non-redemption from such sales and that the person who executed the deed was the proper officer.</p> <p>.Id.—Deeds as Conclusive Evidence—Absolute Title.—Under section 3787 of the Political Code the tax-deeds are conclusive evidence of the regularity of all other proceedings, and conveyed to the state the absolute title to the property described therein.</p> <p>Id.—Sufficiency of Description of Land in Tax-Deeds.—The description of the land in such tax-deed as “lying and being within said county of Fresno,” etc., and in one tax-deed as “E. 2 of N. W. A of see. 23, twp. 16 S. R. 15 E.,” and in the other as “W. % of N. W. % of See. 23-16-15,” is sufficiently certain and definite.</p> <p>Id.—Judicial Notice—Government Surveys—Meaning of Abbreviations.-—Our courts take judicial notice of government surveys of public lands, that all townships in Fresno County are south, and all ranges east of Mt. Diablo base and meridian; that the abbreviations used in the description in the deeds are customary, and that “sec. 23-16-15” is intended to import that the section lies in township 16 south and range 15 east, in Fresno County.</p> <p>Id.—Mistake of One Day in Certificates of Sale as to Time for Deed.—Last Day. for Redemption—Curative Act—A mistake of one day in certificates of sale as to the time for a deed, by stating last day for redemption, is cured by the curative act of 1903 (Stats. 1903, p. 63). The recitals in the deeds-made subsequent to the cufative act were correct.</p> <p>Id.—Correct Recitals as to Delinquent Taxes.—Sold, that there was no erroneous recital in the deeds regarding the non-payment of taxes; but that both deeds sufficiently recites the property was sold for delinquent taxes.</p> <p>Id.—Compliance with Law as to Time for Tax-Sale. — Tax-sales made in each case fully twenty-one days after the first publication of the notice required in section 3767 of the Political Code, providing that the tax-sale “must not be less than twenty-one nor more than twenty-eight days from the time of the first publication” of the notice required thereby, were a sufficient compliance with the statute in each case. •</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, J. Charles Jones, Deputy Attorney-General, and E. W. Holland, District Attorney, for Appellant.</p>

<p>Accounting of Guardianship of Mother by Son—Counterclaim by Son for Board and Lodging of Mother—Disallowance by Trial Court—Affirmance on Appeal.—In an action by a mother for an accounting of guardianship of her estate by her son, the value of which was determined, in which the son set up a counterclaim for board and lodging of the mother which the trial court disallowed, where the only question upon appeal from the judgment relates to the disallowance of such counterclaim, and the record upon appeal shows no agreement or understanding that such board and lodging was to be paid for, the only question is whether such promise could be implied; and where the circumstances are such as to warrant the trial court in inferring as a fact that no promise was implied, the judgment must be affirmed.</p> <p>Id.-—General Bule as to Implied Contract:—Rebuttable Presumption—Rebuttal by Particular Circumstances.—Ordinarily and as a general rule, where there is no express contract to pay for services or for board and lodging, the law will imply a promise to pay for them. But this rule is based only on a rebuttable presumption; and the implied promise may be overcome by proof of particular circumstances warranting the inference that it did not exist,, and that the services were intended to be gratuitous.</p> <p>Id.—Degree of Belationship between Parties to be Considered.— In the consideration of such particular circumstances, the degree of the relationship between the parties may serve to strengthen or diminish the implication that the services are acts of gratuitous kindness and affection according to its proximity or remoteness.</p> <p>Id.—Inference from Belations Between Mother and Son.—One of the most familiar classes of cases in which the presumption of an implied contract is rebutted, is where the claim is asserted between parent and child. Where the son told his aged mother on several occasions that she was welcome to a home with him and he wrote similar statements to his brother and sister, and the mother was treated in every respect as an invalid mother would be treated by a son who was abundantly able to give her a home and who never intimated that she was expected to pay him anything for board and lodging, the natural inference that the trial court was warranted in making is that neither party contemplated any pecuniary compensation therefor.</p> <p>Id.—Compensation must be Expected bt Both Parties during Belationship.—To authorize compensation in such a case, the circumstances must be such as to warrant the inference that it was the expectation of both parties that compensation should be made, and it is only the expectation of both parties existing while the relation continues, that is to control. No circumstance occurring afterwards, can convert that into an implied contract that was not so before.</p>

<p>Bight of Wat—Private Boad—Width—Construction of Beservation in Deed.—A reservation in a deed, “saving and excepting therefrom a right of way thirty feet in width beginning at the old Ballard bridge on the old Pish Banch Boad, . . . and leading thence over said above described tract of land to the remaining land of the grantors to the rear and east of the land conveyed,” does not import that the road is to be' full thirty feet in width, but is to be construed as reserving only a strip of land thirty feet in width, to be afterwards selected and located for the right of way, and for the construction of a road as wide as it may be made on said strip without casting any embankments on adjoining land, especially where it appears that a road so constructed would be sufficient to connect with the old road referred to.</p> <p>Id.—Object of Specification of Width—Limit of Extent of Easement.—The object of the specification of the width of thirty feet, appears to be to place without the realm of controversy all questions as to the amount of land which the owner of the dominant tenement might take, and the owner of the servient tenement be compelled to give for the purposes of the easement.</p> <p>Id.—Definition of “Bight of Wat.”—A “right of way” is defined simply as “the privilege which one person or particular description of persons may have of passing over the land of another in some particular line,”—a mere privilege of passing over such land, under the circumstances of this ease, with the implied right, under such 1 circumstances, to make such changes in the surface of the land as are necessary to make it available in a convenient manner.</p> <p>Id.—Right to Poll Width Specified.—Where the width of this mere right of way is expressly specified, the owner may have the absolute right of use to the limits of the specified width even though the result be to give him a wider way than is necessary, free of interference by the owner of the servient estate; but there can be no appropriation of land lying beyond the specified width.</p> <p>Id.—Reservation fob Continuance of Existing Road.—Where it appears that the desired reservation was sought for the continuation of the “Pish Ranch Road” to the property of the grantor across the land granted, and that such road was a narrow, hilly country road, and it is not questioned that the strip thirty feet wide located by the court will enable plaintiff to have a roadway within the thirty-foot limit as wide as that road, that fact must be regarded as very potent.</p> <p>Id.—Statutory Construction of Reservation—Limit of Use.—Giving full force to the provisions of our statute, that “a reservation in any grant ... is to be interpreted in favor of the grantor” (Civ. Code, sec. 1069), it is held that the reservation here involved limited plaintiff’s use of the servient tenement to the strip thirty feet in width, which is all that is reserved in the grant.</p> <p>Id.—Right to Select Unlocated Right of Way—Prior Right of Owner of Servient Tenement.—Where an unloeated right of way is granted or reserved, the owner of the servient estate may in the first instance designate a reasonable way, and if he fails to do so, the owner of the dominant estate may designate; but it is held that findings sufficiently sustained by the evidence establish that there was no such failure in this ease of the servient owner as to entitle plaintiff as the dominant owner to make the selection.</p> <p>Id.—Selection if made by Dominant Owner must be Reasonable— Unreasonable Selection.—If the dominant owner is entitled to make a selection, his selection must be reasonable as to both parties in view of all the circumstances. Held, that the trial court was warranted in concluding that the route selected by the plaintiff was unreasonable, in view of all the circumstances in proof.</p> <p>Id.—Determination in Equity.—Where the case is one where the parties have been unable to agree upon a reasonable route, the plaintiff may appeal to a court of equity to have the same determined.</p> <p>Id.—Decree not Limiting Use of Road—Modification Consented to •—Waiver of Right to Gates.—The decree which is to be modified by consent of respondents so as to dispense with the right to gates, does not limit the right to the use of the way decreed to any particular person or persons, but it will be an open highway, appurtenant to the land of the plaintiff, regardless of the way in which it may hereafter be subdivided, and available to the use of all who may have occasion to go to or from such land.</p> <p>Id..—Power of Equity not Limited to Right of Way Claimed by Plaintiff.—Where the cause of action stated was for relief in equity to have a right of way established, the power of equity to fix a reasonable and suitable right of way in view of all the circumstances in proof, is not limited to the establishment of the right of way claimed by the plaintiff. She could not be held to have acquired any title to a right designated by herself in no way acquiesced in; but it would have been prejudicial error to have refused to decree to her the right of way reserved upon a reasonable and suitable location thereof, whieh right was admitted in the answer and established by the evidence.</p> <p>Id.—Pleadings—Cross-Complaint not Required.—The matters adjudicated were all within the issues tendered by the complaint and answer, and no cross-complaint by the defendants was necessary to authorize the court to designate for plaintiff such way as it might find to be reasonable in view of all the circumstances.</p> <p>Id.—Amendment of Complaint to Conform to Judgment.—The court properly permitted the plaintiff to amend the complaint so as to specifically describe the right of way fixed by the judgment.</p> <p>Id.—Trial of Relative Merits of Routes Surveyed—Proper Refusal to Reopen Case—Consent of Respondents to Modification of Route.—Where the trial was fully had as to the relative merits of one route surveyed for the plaintiff and another route surveyed for the defendants, and the court found substantially in favor of the latter route, it properly refused to open up the case at the instance of plaintiff. But where the defendants, as respondents upon appeal, consent to the fixing of the exact route of their survey at appellant’s desire, the appellant will be allowed time to express such desire, and to have the judgment modified accordingly, as it must also be modified to dispense with gates.</p>

James W. Taggart, Judge rendering judgment. S. E. Crow; Judge denying new trial. The facts are stated in the opinion of the court.

<p>Building Contract—Prevention of Performance—Action for Value of Work and Materials—Pleading—Common Count.—The rule that a building contractor, in order to recover, must plead the special contract, the sum agreed to be paid, the performance by himself, and non-payment by defendant applies only where the contract has been or ought to have been fully performed by the plaintiff; but if performance has been prevented by defendant’s fault, the plaintiff may sue upon the common count to recover the value of the work and labor done which remain unpaid.</p> <p>Id..—General Bule Requiring Performance—Excuses for Performance.—Where a person agrees to do a thing for another for a specified sum of money to be paid on full performance, he is not entitled to any part of such sum until he has done the thing he agreed to do, unless full performance has been excused, prevented, or delayed by the act of the other party, or by operation of law, or by the act of God or the public enemy, as specified in section 1511 of the Civil Code.</p> <p>Id.—Prevention of Performance by Payor—Eight of Payee to Pull Payment.—If performance is prevented by the act of the party who is to make the payment, the person agreeing to do the thing is entitled, under section 1512 of the Civil Code, to payment as for full performance.</p> <p>Id.—Breaking of Intermediate Covenant—Rescission—Quantum Meruit.—If the payor breaks an intermediate covenant of an executory agreement, the other party may treat the entire contract as rescinded, and recover in quantum meruit the value of the work he has done under it.</p> <p>Id..—Absence of Prevention by Owner—Rescission by Contractor not Justified.—Where, under the facts appearing, nothing was done or omitted by the owner of the building which prevented or excused the contractor from completing the contract, he was not justified in rescinding the contract on the ground of prevention and suing on the common count.</p> <p>Id.—Execution of Contract before Completion of Grading—Security against Pall of High Banks not Exacted—Presumption.— Where the contract was executed before the grading of the lot was-completed, and the character of the soil and the danger of the caving in of high banks on each side of the lot was apparent, and no stipulation was exacted for a retaining wall, or the sloping of the banks, so as to prevent injury to the house, the contractor must be presumed to have undertaken the performance of the contract at his own risk of interference therewith by landslides from the adjoining lots.</p> <p>Id.—Implied Obligation of Owner to Remove Pallen Earth Performed—Duty to Repair House not Implied.—Where the owner of the lot performed any implied duty to remove extraneous earth falling upon his land, but where he made no express agreement that he would repair any damage resulting to the house from a slide, no such obligation rested upon him by implication of law.</p> <p>Id.—Obligation of Contractor to Complete Building—Expense no Excuse—Performance not Excused unless Practically Impossible.—The obligation of the contractor to perform his contract to complete the building was not excused because of damage thereto to the extent of four hundred dollars from a landslide. He could not be absolved from the obligation to perform his contract by any natural obstacles intervening, unless they rendered performance practically impossible. Mere difficulty, or unusual or unexpected expense would not excuse him. The expense required to restore the building was necessary to complete the building contract, and the contractor had no right to require or demand that the owner should pay him for it, and the refusal of the owner to do so was no excuse for non-completion by the contractor.</p> <p>Id.—Declaration by Owner as to Restoration of Building—Meaning.—A declaration by the owner after the injury to the building by a landslide, to the effect that he would not let the contractor go on with the work unless he restored the building to its proper condition as called for by the contract, is to be understood, in view of the contractor’s refusal to do so unless the owner paid therefor, as meaning that the owner would not consider the building completed nor accepted unless it was so restored, at the contractor’s expense.</p> <p>Id.—Nonsuit—Declaration by Owner after Contract—Violated Contract to Slope Banks—Non-reliance by Plaintiff.:—Where the owner, after the execution of the contract, and after the grading of the lot declared that he had contracted with the graders to slope off the banks on each side, and they had refused to do it because the contract was not in writing, such declaration is no objection to a nonsuit by the contractor for failure to perform his contract, where nothing appears to show that the contractor signed the contract in reliance upon or in consideration of any agreement by the owner to slope off the banks.</p>

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

<p>Estate op Deceased Person.—Partial Distribution—Motion by Creditor to Set Aside Order—Mistake—Excusable Neglect— Jurisdiction—Prohibition.—Where the superior court has jurisdiction to entertain a motion by the creditor of the estate of a deceased person, under section 473 of the Code of Civil Procedure, to set aside an order of partial distribution of the estate on the • ground that it was taken against him through his mistake and excusable neglect, the writ of prohibition will not lie to prevent the-superior court from hearing and determining the application upon its merits.</p> <p>Id.—Construction op Code—Time op Order “Taken.”—Where the-time for the hearing of the petition for the order of partial distribution was fixed for March 15, 1909, and the court then orally announced its decision on that date, and a memorandum thereof was. entered in the clerk’s rough minutes, and nothing further was done-until March 23, when an order antedated March 15 was signed and filed and entered upon the minutes of the court, the decree of' partial distribution was not “taken” as against the creditor until. March 23, and when his application was presented to the court, for relief under section 473' of the Code of Civil Procedure on September 21, it was presented within "six months after such judgment, order, or proceeding was taken,” within the meaning of that, section.</p> <p>Id.—Entry upon “Bough Minutes” by Clerk not Official.—The-entry of the oral decision of the court upon the “rough minutes” or-“blotter” kept by the clerk was not upon any official record of the court. There is no law providing for “rough minutes.” They are mere memoranda for the convenience of the clerk; and though they are sometimes useful as evidence, where the proper foundation is, laid, yet they have no inherent vitality or effect, and do not constitute an official record of any character.</p> <p>Id.—Word “Taken" Equivalent to “Rendition.”—The word “taken” as used in section 473 of the Code of Civil Procedure is to be considered as used in the same sense as the words “render” or “rendition” when used with reference to a judgment; and though the word “taken” embraces judgments, orders, and proceedings, and was adopted as a term alike applicable to either or all of them, it has relatively the same meaning as “rendition.”</p> <p>Id.—-Meaning of “Rendition.”—Where findings are required there is no “rendition” of the judgment until they are filed with the clerk and if none are required, there is no “rendition” thereof until the decision is entered in the official minutes of the court.</p> <p>Id.—Oral Order in Breast of Court until Legally Entered or Piled with Clerk.—The oral order was in the breast of the court and subject to change, until entered on the official minutes, or until the official order was signed and filed with the clerk.</p> <p>Id.—Effect of Oral Announcement of Order as to Distributees Immaterial—Rights of Absent Creditors.-—Whatever effeet the oral announcement of the court’s decision may have had to bind the . distributees present in court, it could have no -effect as against an absent creditor until entered in the official minutes, or filed with the clerk.</p> <p>Id.—Construction of Section 473 as to Notice—Previous Notice of , Motion not Required.—Although section 473 of the Code of Civil Procedure provides, in effect, that the relief therein specified may not be given until after notice to the adverse party, it does not provide that no application for the relief can be made to the court until after such notice is given. Otherwise the six months’ period would be reduced by five days. It is the application which is to be made within the six months. A motion is an application for an order.</p> <p>Id.—Motion Presented in Time—Subsequent Notice.—Where within six months after the order was taken, the creditor filed Ms affidavits in support of his motion for relief, and presented the same in open court and moved it to set aside the decree of partial distribution, he thus sufficiently complied with the law to protect his rights; notwithstanding the court fixed a future time for the hearing of the motion, and made an order that' parties adversely interested shall appear and show cause why the motion should not be granted.</p> <p>Id.—Compliance with Letter and Spirit of Law.—The letter as well as the spirit of the law is fulfilled where the party appears and moves the court for relief within the proper period, and thereupon the court makes an order on the adverse parties to show cause on a day fixed why the motion should not be granted, and they are duly notified thereof.</p>

<p>Municipal Corporation's—Consolidation—Government—Population —Election op Oppicers to Complete Consolidation—Aggregate Increase—Mandamus..—Where contiguous municipalities of the sixth and fifth classes have voted to consolidate under the terms of the act of March 11, 1909, which requires the consolidated municipality to be governed solely by the charter and ordinances of the one having the greater population, the election of officers required to complete the consolidation must be of the officers of the municipality of the fifth class, and the mere fact that the aggregate population is sufficient to justify a future organization of a city of the fourth class is immaterial, and a taxpayer of the municipality of the sixth class is not entitled to a writ of mandate to compel the immediate election of officers of the fourth class to complete the consolidation.</p> <p>Id.—Intent op Consolidatlon Act.—The clear intent of the Consolidation Act is that the identity of the municipality having the least population shall cease when the consolidation is complete; that all of its ordinances shall be deemed repealed, and that the consolidated corporation shall exist and be governed in accord with the law in force in the municipality having the greater population ascertained in the mann.er prescribed by law, at the time when the petition for the submission of the question of consolidation was presented to its legislative body.</p> <p>Id.—Determining Class op Larger Municipality—Immateriality op Enumerations..—In determining the class to which the municipality having the larger population belongs, it is immaterial whether the last federal census is to control as stated in section 2 of the Consolidation Act, or whether the special enumeration taken by the respective cities shall control the federal census, since it appears that, by either method of enumeration, the municipality having the larger population would become a municipal corporation of the fifth class, if it were then incorporated for the first time.</p> <p>Id.—Population op Aggregate Body—Special Enumeration.—Assuming, without deciding, that in determining the aggregate population of the consolidated municipality, the special enumerations may be used under the Consolidation Act, it is immaterial whether or not such special enumeration made by the trustees of the consolidating municipalities under the act of March 2, 1883, prevail over the federal census, and show the possibility of an incorporation of an. aggregate body of the fourth class.</p> <p>Id.—Constitutionality of Consolidation Act.-—The extent of the aggregate population of the consolidating bodies cannot affect the constitutionality of the Consolidation Act, which determines that the consolidated municipality shall be governed by the class of the larger in population. In the absence of a prohibition in the constitution, the power of the legislature is absolute in this regard.</p> <p>Id.—General Consolidation Act not in Conflict with Constitution.—The general Consolidation Act is not in conflict with section 6 of article XII of the constitution providing that “corporations for municipal purposes shall not be created by special laws; but the legislature, by general laws, shall provide for the incorporation, organization, and classification in proportion to population, of cities and towns.”</p> <p>Id.—Consolidation Act not “Special”—Uniform Operation.—The Consolidation Act of March 11, 1909, is in no sense a “special” law, within the meaning of the constitution. Its provisions are applicable in every case of contiguous municipalities desiring to consolidate into one municipality, and have a uniform operation in all cases.</p> <p>Id.—Appropriateness of Provisions—Government of Consolidated Municipalities.—It is appropriate and necessary that such an act shall contain provisions as to the government of the consolidated municipality made up of two or more municipalities having different organic acts until such time as the electors may, if entitled by reason of their population to do so, reorganize under other laws. It is natural and reasonable to provide that the consolidated municipality shall have the name, ordinances, and organic act of the municipality greatest in population.</p> <p>Id.—Practical “Annexation.”—The method adopted for the so-called “consolidation” is practically and substantially an annexation of the municipality or municipalities having the lesser populations to the municipality greatest in population, just as much as an annexation of unincorporated territory is an annexation to an existing municipality. The name, laws, and organic act of the greatest in population continue in force and by reason of the proceedings taken become-effectual throughout the new territory.</p> <p>Id.—Power of Legislature—General Scheme of Consolidation.— The legislature has power to provide a general scheme of consolidation for municipalities desiring to consolidate, involving the practical disincorporation of the smaller in population of the municipalities to be consolidated, and the annexation of the territory included therein to the municipality greatest in population.</p> <p>Id.—Attainment of Increased Population—Highest Class not Made Ipso Facto—Vote Essential.—Where the consolidation results in an increased population entitling the city of the higher class, to become still higher in classification, it does not and cannot have that result ipso facto. A vote upon petition of the requisite number of qualified electors in pursuance of the Classification Act is essential to produce that result. Until that result is accomplished, the-consolidated municipalities must retain the organization and laws-of the existing municipality having the higher classification at the time of the consolidation.</p> <p>Id.—Peesumption in Favor op Constitutionality op Act.—An act of' the legislature will not be declared by the courts to be opposed to the state constitution unless its violation of some provision thereof is. clearly made to appear.</p> <p>Id.—Time por Election op Oppioebs—Directory Provision.—The provision of the Consolidation Act as to the time for holding the election of officers to complete the consolidation, is directory, and though such time has elapsed, without a proper election being held, the election may still be held upon proper notice thereof.</p>

<p>APPLICATION for Writ of Mandate directed to the Board of Trustees of the City of Bakersfield.</p> <p>The facts are stated in the opinion of the court.</p>

<p>APPLICATION for Writ of Mandate to the Secretary of State.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Appeai, — Stay of Execution ;— Jurisdiction of Superior " Court.— Though after an appeal is perfected from a judgment of the superior court that court does not have general power to stay the execution, yet if upon such appeal execution has been stayed by a sufficient undertaking, the superior court has power to compel the sheriff to respect and observe the stay of execution given by the statute.</p> <p>Id.—Insufficient Bond—Order Stating Writ Not Presumed—Prohibition.—Where the bond on appeal is less than the amount of the judgment, the superior court has no authority to order a stay of execution; but it cannot be presumed that it would make such order, in the absence of any showing of facts, to sustain a petition for a writ of prohibition.</p> <p>Id.-—Proposed Amendment of Petition for Prohibition — Proper Denial. — Held, that a proposed amendment to the petition for the writ of prohibition to prevent a stay of execution was properly denied where it merely proposed to allege that no such defective undertaking has been filed, and it merely has the effect to show, without further facts, that the lower court cannot be about to order a stay of execution, at least until such inadequate undertaking has been filed and an application for such stay of proceedings has been made to it.</p> <p>Id.—Case for Prohibition Not Shown.—Upon the facts stated the ease does not call for the interposition of the authority of this court by way of prohibition.</p>

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

APPEALS from judgments of the Superior Court of Calaveras County and from orders denying new trials. A. I. MeSorley, Judge. The facts are stated in the opinion of the court. Bishop, Hoefler, Cook & Harwood, and A. J. Harwood, for Leon Ephriam Morris, William Bryson Butler, and John Thomas Hodson, Defendants and Cross-Complainants, Appellants and Respondents.

<p>Action to Eecover Fees Illegally Exacted—Decision upon Former Appeal — Law of Case — New Defense — Bar of Claim under Consolidation Act.—The doctrine of the law of the case is limited to rulings upon questions of law which were actually presented and considered upon a former appeal. In an action to recover fees illegally exacted by the county clerk under an unconstitutional law, where the matter passed upon on the former appeal was that the complaint stated a cause of action, that the payment exacted was not voluntary, and that a judgment for defendant upon the pleadings as they stood was improper, it did not include as part of the law of the ease, a new defense that the claim was barred under section 90 of the Consolidation Act because not presented duly audited to the city and county board, as therein provided.</p> <p>Id.—Construction of Consolidation Act—Nature of Claims Esquiring Presentation.—In construing section 90 of the Consolidation Act providing that “any demand whatsoever . . . hereafter accruing, shall not be paid, but shall be forever barred by limitation of time, unless the same shall be presented for payment, properly audited, within one month after such demand shall become due,” it is to be considered that this is one of several sections contained in article "VT of the Consolidation Act, relating to finance and revenue, and that the result of the decisions construing it is to establish the rule that the requirement of presentation applies only to such claims as are, by the terms of the Consolidation Act itself made payable out of the treasury of the city and county, and that that act does not require the presentation of claims and demands having an extraneous origin.</p> <p>Id.—Act. Inapplicable to Money Paid by Compulsion.—The Consolidation Act is inapplicable to the demand here sued for. The city and county exacted from plaintiff’s assignors, and holds in its treasury money to which it had no legal or equitable right; and the plaintiff is entitled to recover the amount so paid. Plaintiff’s right of recovery rests not upon any provision of the Consolidation Act, but on the general rule which authorizes the recovery of money not justly due to the payee, but paid by compulsion.</p> <p>Id.—Assignments by Executors—Money Illegally Exacted for Filing Inventories and Appraisements—Individual Eight.—The assignments made to plaintiff by executors from whom moneys had been illegally exacted upon the filing of inventories and appraisements were not invalid under section 1517, as sales made without order of the court. That section is inapplicable. It may be assumed that the assignments were for collection, but it is also to be considered that the - money paid was not part of the property of the estate, but was a payment unauthorized by law. It must be presumed that the probate court refused to give the executors credit for said payments in their accounts. The payments were chargeable to them individually; they had the right to recover them in their individual capacities, and the corresponding right to make assignments.</p> <p>Id.—Amendment op Answer to Plead Bar op Statute—Submission— Discretion..—The trial court had discretion to allow the defendant, after the cause had been submitted, on the second hearing, to amend its answer to plead subdivision 1 of section 339 of the Code of Civil Procedure, in bar of the action. The granting or refusing of leave to amend an answer where leave is required is a matter committed to the sound discretion of the trial court; and this is true of amendments for the purpose of setting up the statute of limitations, as well as other amendments.</p> <p>Id.—Review op Allowance op Amendment upon Appeal—Presumption.—The action of the court in passing upon an amendment to plead the statute of limitations, whether favorable or unfavorable, will not be disturbed upon an appeal, if no abuse of discretion appears in the record. Where the bill of exceptions contains no sufficient showing of abuse, it must be presumed that the trial court properly exercised its discretion.</p> <p>Id.—Action Governed by Bar op Statute Pleaded.—The cause of action to recover moneys illegally exacted and retained by the defendant without right, is one of assumpsit for money had and received, and is “an action upon a contract, obligation, or liability not founded upon an instrument of writing,” and is barred within two years, under subdivision 1 of section 339 of the Code of Civil o Procedure.</p> <p>Id.—Action not Based upon Statute.—The contention of pláintiff that the right of recovery is based on section 3804 of the Political Code, and is therefore an action based upon a statute, which is not barred until three years, is untenable. Section 3804 of the Political Code has reference only to claims based upon the payment of illegal or excessive taxes, penalties, or costs pursuant to an assessment of property under title IX of the Political Code. The payments exacted from plaintiff were not of that class.</p>

C. W. Norton, Judge presiding. = The facts are stated in the opinion of the court. Hiram Johnson, Sullivan & Sullivan, and Theo. J. Roche, for Petitioner. J. W. P. Laird, Bowen Irvin, and John E. Bennett, for Bespondents.

<p>Injunction—Removal by City of Telephone and Telegraph .Appliances—Judgment for City—Injunction Pending Appeal—Prohibition.—In an action by telephone and telegraph companies to enjoin a city from removing their long-continued poles and wires from its streets, in which a preliminary injunction was granted at a hearing, though not issued, and concurrently with the judgment for defendant, though not part of it, the court, upon stipulation of the parties, made an order continuing the injunction pending the appeal of plaintiffs, on condition that plaintiffs secured stated deposits to-be fixed by the court as the value of the use of the franchise pending the appeal, which was complied with by them,—a writ of prohibition will not lie in favor of the city to prevent the enforcement of such injunction pending the appeal.</p> <p>Id.—Estoppel by Stipulation.—Where counsel for both parties stipulated for continuance of the preliminary injunction pending the-appeal upon conditions fixed by the court, which appellants complied with, they were estopped by such stipulation from asserting-that there was no preliminary injunction.</p> <p>Id.—Jurisdiction of Superior Court.—The superior court had equitable-jurisdiction in an action for a perpetual injunction at the time of granting judgment for defendant, either to continue in force a preliminary injunction pending an appeal by. plaintiffs or to make an original injunction order at such time restraining the successful party pending such appeal from interfering with appellants’ property.</p> <p>Id.—Power to Amend Injunction Order.—As the court intended to-en join the city from interfering with plaintiffs’ poles or wires pending-the final determination of the appeal, upon its discovery that it was-misled by the stipulation of the parties into the belief that it had issued, it had power to amend its injunction order so as to make the same order effective as an original injunction order running-concurrently with the judgment, as intended to maintain appellants’' rights pending- the appeal.</p> <p>Id.-—Inherent Chancery Powers of Superior Courts.—-The superior courts, as the successors to the constitutional grant of equity power to the former district courts, are vested with the same chancery jurisdiction which was vested in the high courts of chancery in England.</p> <p>Id.—Power of Chancery to Keep Litigation in Statu Quo.—Thecourts of chancery have inherent power to preserve the litigation in statu quo. The courts of chancery jurisdiction in other states recognize the same inherent power to be possessed by them.</p> <p>.Id.—Code Provisions Regulating Injunctions—Grant by Constitution of Equity Power Not Curtailed—General Provisions.—The ■ code provisions regulating injunctions do. not curtail the general grant of equity power vested in the superior courts by the constitution nor affect their general chancery power to preserve the fruits of' a possibly successful litigation to appellants from an adverse judgment against them. The general code provision in section 8368 of' the Civil Code, that preventive relief is given by “prohibiting a party from doing that which ought not to be done,” is broad enough -. to cover the relief here granted and conforms with the general grant of equity jurisdiction in the constitution.</p> <p>Id.—Strong Equity for Protection of Appellants’ Long-Continued • Enjoyment of Rights.—Where the matter in issue was the right of plaintiffs to maintain their poles and wires and their general telephone systems in the streets of a city in which by its permission they had maintained the same for more than twenty years, and the; city had threatened their destruction, and a temporary injunction had been granted against it, the plaintiffs appealing from a judgment for the city have a strong equity for protection of their poles, wires, and systems from destruction by the city pending their appeal, resting upon common fairness and a sense of justice, and to deny such right and allow their destruction to take place pending the appeal would be a travesty on justice.</p>