Volume 158 — California Reports

<p>MOTION to Dismiss an Appeal from an order of the Superior Court of the City and County of San Francisco-appointing a guardian of the estate and person of one adjudged incompetent. James M. Trontt, Judge.</p> <p>The facts are stated in the opinion of the court.</p> <p>Timothy J. Lyons, Bishop, Hoefler, Cook & Harwood, and Raymond Benjamin, for Appellant.</p>

<p>Partition of Placer Mine—Issue as to Partnership in Patent— Evidence.—In an action for partition of a placer mine, where the appellant claimed under a partnership alleged to have been created under a patent to the placer claim, whereby appellant’s grantor and another person had agreed to share the expense of obtaining a half interest in the patent, and to become equal partners in such half of the property patented, the issue tendered as to the existence of such partnership was legitimate, and it was error to exclude competent oral evidence to show the creation of such partnership on the ground that the contract for the partnership was not in writing.</p> <p>Id.—Partnership in Lands—Parol Agreement—Enforcement. — A partnership in lands may be formed by an agreement in parol. Such parol agreement is valid and may be enforced between the parties.</p> <p>Id.—Partnership Interest Subject to Equal Eeduction of Two Thirds for Development—Conveyance of Half of One Partner’s Interest.—Where the whole partnership interest was subject to an equitable reduction of two thirds for an agreed development of the mine, but one of the partners, without reference thereto, conveyed one half of his interest to a third party, the effect of such conveyance would depend on the grantee’s knowledge of the partnership. If he knew it, he took subject to all equities, but if not, he held one eighth free from all equities, if he paid value therefor.</p> <p>Id.—Proposed Amendment to Answer—Mistake in Deed by Copartner— Notice Not Charged — Particulars op Discovery Not Stated.—Where a proposed amendment to the answer alleging a mistake in the deed of the copartner to the third party in intending to convey merely one half of the copartner’s interest subject to the development contract, did not allege notice thereof to the grantee or give any particulars as to the discovery of the mistake, the refusal of the amendment cannot be held erroneous.</p> <p>Id.—Basis op Equitable Reliep—Laches.—The party who appeals to the conscience of the chancellor in support of a claim, when there has been laches in prosecuting it, or long acquiescence in the assertion of adverse rights, should set forth in his bill specifically what were the impediments to an earlier prosecution of his claim, how he came to be so long ignorant of his rights, and how and when he first came to a knowledge of the matters alleged in his bill; otherwise the chancellor must refuse to consider the ease upon his own showing, without inquiring whether there is a demurrer, or plea of the statute of limitations contained in the answer.</p> <p>Id.—Prejudicial Error Apparent 'upon Record.—Where without reference to the proposed amendment to the answer, or to any right to attack the deed of the half interest of the copartner, it appears; that if proof of the copartnership had been received, appellant would be entitled to an additional one-forty-eighth interest in the land, which the judgment appealed from did not award to him, the judgment and order denying appellant a new trial must be reversed.</p> <p>Id.—Division op Placer Claim in Partition—Sale.—The authorities are not uniform as to whether a placer mining claim may be divided by a surface partition, or whether a sale should be ordered. As. the ease must go back for new trial, and a different judgment may be had and a sale ordered, we express no opinion on this subject.</p>

<p>Street Improvements — “Local Improvement Act” — Inclusion op Widely Separated Sections in Single Distriot.—The inclusion of two widely separated sections of the city in one assessment district, all of the property of which is to be specially assessed to pay the aggregate cost of all the improvements proposed, is not authorized by the Local Improvement Act of 1901, especially where it appears that the work to be done on one of such sections is different from that to be done on the other, and that the proposed improvements in one section have no connection with those of the other section and can receive no special benefit therefrom.</p> <p>Id.—Authority to Include One or More Streets in Same Proceeding Not an Authority por Separated Sections.—It was never designed by the authorization to “include one or more streets in the same proceeding” to empower the legislative body of the municipality to so include in one proceeding street work in widely separated sections of a city, as to result in imposing a portion of the cost of improving a street in one of such sections on property not benefited thereby, situated in the other section, simply because it is benefited to some extent by an improvement upon another street in the section in which it is located. The authority to include one or more streets in the same proceeding contemplates only one district including such streets, as a single district to be specially benefited thereby.</p> <p>"Id.—Resolution op Intention Covering Separate Districts—Duty op Engineer.—If the resolution of intention should contemplate streets in widely separated sections of the city, it is the duty of the engineer, when he finds that the work to be done embraces in the matter of special benefit separate and distinct districts, to make a separate report as to each of such districts, so that the expense of the work in any one district may be apportioned to and borne by the property of that district alone.</p> <p>Id.—Objection to Unauthorized District Available without Appeal. ■—The objection to an unauthorized district containing widely separated sections may be urged by property-owners to enjoin an illegal assessment based thereon, notwithstanding their failure to make objection to the legislative body.</p> <p>Id.—Authorized Report of Engineer Essential to Jurisdiction.— An authorized report of the engineer made pursuant to section 4 of the Local Improvement Act is essential to the jurisdiction of the legislative body to proceed on the matter of the assessment, and where the engineer’s report is defective in matter of substance, by embodying widely separated sections of the city in one district without authority of law, the inclusion thereof in one assessment district may be enjoined.</p> <p>Id.—Definite Description in Engineer’s Report and Subsequent Proceedings—Boundaries and Area..—The description in the engineer’s report and in the subsequent proceedings of the exterior boundaries of the district which is to be benefited, and is to be specially assessed, should be as certain and definite as it can be made. All of the matters required to be stated in the engineer’s report should be stated therein, including the “dimensions” and “area” shown on the map.</p> <p>Id.—Part of Cost Borne by City—Remainder Only Assessable.—If it is determined by the city that any part of the cost of a projected improvement is to be paid out of the treasury of the municipality, the amount so to be paid should be deducted from the estimated cost, and the remainder only assessed against the property of the district specially benefited.</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>Foreclosure op Street Assessment—Attorney’s Fees.—In an action to foreclose the lien of a delinquent street assessment, the allowance of fifteen dollars, as authorized by section 12 of the act of March 18, 1885, as amended, as attorneys’ fees, in addition to the taxable costs, is valid, and not in violation of any provision of the state or federal constitution.</p> <p>Id.—Action to Enforce Delinquent Taxes.—On the same principle upon which attorneys’ fees are allowed in actions to enforce delinquent taxes, the state may provide for a similar allowance in an action to enforce a delinquent street assessment.</p> <p>Id.—Obligation of Owner to Pay Assessment.—The obligation of the owner to pay the street assessment is the same as it is to pay his taxes.</p> <p>Id.—Street Assessment Besting on Power of State to Tax.—A street assessment is laid by virtue of the power of the state to tax; and the allowance of an attorney’s fee on foreclosure in such case may be upheld, on the ground that the state may provide a penalty if the delay of the property-owner makes it necessary to commence suit.</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>Sale of Pumps—Delay in Delivery—Loss by Pike—Reconstruction —Waiver.—Where pumps sold were to have been delivered April 1, 1906, and they were ready for shipment when they were destroyed by the fire of April 18, 1906, and upon report of the loss, the purchaser acquiesced in delay until others were reconstructed in their place, the purchaser thereby waived any claim for damages for nondelivery at the time agreed, prior to the destruction.</p> <p>Id.—Guaranty of Efficiency—Waiver.—Where a guaranty of efficiency of the pumps contemplated a settlement thereof by agreed test prior to the installation and acceptance of the pumps, the retention and installation thereof without test or objection to the quality for more than three months, having full opportunity to discover any breach of quality immediately, are sufficient to warrant the conclusion that defendant accepted the pumps in discharge of the contract, and thereby waived all claim for damages on account of breach of quality.</p> <p>Id.—Action to Recover Price.—All damages having been waived, the vendor was entitled to recover the contract price for the pumps, without diminution.</p>

<p>APPEAL from a judgment of the Superior Court of Fresno County. Geo. E. Church, 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>U. S. Webb, Attorney-General, and H. S. Utley, District Attorney, for Appellant.</p>

<p>Appeals Taken at Different Times—Embodiment in One Transcript.—Under rule two of the supreme court, where an appeal by a defendant from a judgment against Mm, and an appeal from an order denying his motion for a new trial, are taken at different times, and the notice of intention to move for a new trial was regularly given before the appeal from the judgment was taken, the record on both appeals may be embodied in the same transcript, without any stipulation or order therefor.</p> <p>■Sale—Warranty of Kind or Description-—Representation of Fact.— As a general rule, on the sale of a chattel as being of a particular kind or description, stated as a fact, a contract is implied that the article sold is of that kind or description. Substantially, the description is warranted. To make this rule applicable, the circumstances must be such as to amount to a representation of fact on the part of the vendor that the article is of the particular kind or description.</p> <p>Ed.—Acts of Vendor as Representation of Fact.—If the buyer in terms asks for the particular kind and the seller purports to comply with his request, he would probably be held to warrant the article as being of that kind, although he may not have made any declaration in words to that effect. In other words, the circumstances may be such as to make the acts of the vendor constitute such a representation.</p> <p>Id.—Warranty of Variety of Barley—Evidence Insufficient to Show Warranty.—In an action to recover damages for the breach of an alleged warranty that certain seed barley sold was of a variety known as “bearded," it is held, upon a review of the evidence, that there was no demand by the purchasers, at the time of the sale, in terms for bearded barley, and no representations by the seller that the barley sold was of that variety; that there was nothing warranting the conclusion that there was a custom or usage at the place of the sale, known to the seller or so notorious that one engaged in the grain business must be presumed to know it, to the effect that where the word “barley” was used without qualification it meant only bearded barley and did not include beardless barley, and that there was nothing to show that the seller had any knowledge or reason to suspect that the fact that the barley sold was of the beardless kind, if known to the buyers, would operate as an influence against its purchase.</p>

<p>Criminal Law—Murder—Degree op Crime—Province op Jury—Evidence op Premeditation.—In a prosecution for murder, the question of the degree of the crime is exclusively for the "jury, and their determination will not be disturbed when there is any evidence to support it. In the present case, the evidence of premeditation, although conflicting, was sufficient to warrant a conviction of murder of the first degree.</p> <p>Id.—Express Evidence op Deliberation..—It is not necessary that there should be express evidence of a deliberate purpose to kill. It could be inferred from proof of such facts and circumstances in the case as would reasonably warrant an inference of its existence.</p> <p>Id.—Length op Time op Deliberation.—The deliberation which must precede the killing in order to make the murder one of the first degree need not have existed for any given length of time.</p> <p>Id.—Instruction as to Motive op Witness—Instructions Given in Substance.—The refusal, in such a prosecution, to instruct the jury that they had the right, in determining the weight to be given to the testimony of any witness, to consider, among other things, “the motive actuating the witness in testifying,” is without prejudice, when the court gives substantially the same direction in charging them that they should take into consideration the character of any witness, his relation to and interest in the case, if any, and his bias or prejudice, if any, against either of the parties.</p> <p>Id.—Refusal to Instruct as to Matter of Common Knowledge.— An instruction that the value of testimony may be affected by evidence of a motive which would naturally tend to induce the statement of an untruth, is the enunciation of a proposition which must be apparent to every person of common intelligence and experience, and the refusal to give it furnishes no ground for reversal.</p>

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

<p>APPLICATION for a Writ of Prohibition directed to the Superior Court of Kings County. John G. Covert, Judge.</p> <p>The facts are stated in the opinion of the court.</p> <p>Dixon L. Phillips, J. L. C. Irwin, Maurice E. Power, and Robert W. Miller, for Petitioner.</p>

<p>Freeholders’ Charter of City and County of San Francisco—Construction—Bower to Acquire “Public Utilities”—Street-Bail-roads Included.—Though article XII of the freeholders’ charter of the city and county of San Francisco entitled “Acquisition of Public Utilities,” as amended in 1903, does not include the words “street-railroads,” yet its provisions as amended by the addition of section 14 thereto in 1907, are comprehensive enough to authorize the acquisition, construction, and completion of municipally owned “street-railroads.”</p> <p>Id.—Definition of “Public Utility.”—The term “public utility” as used in section 14 and the other sections of article XII of the freeholders’ charter, is to be understood as including any such utility as is employed in the rendition of quasi public service, such as waterworks, gasworks, a telephone system, street-railroads, etc., and was manifestly used throughout article XII of the charter as embracing all such utilities.</p> <p>Id.—Provisions of Original Charter.—The original freeholders’ charter enumerated certain specific utilities in section 1. thereof, including street-railroads, and required the city engineer to make estimates every two years of each of such specified utilities.</p> <p>Id.—Object and Purpose of Amendment of 1903—Effect not to Prevent New Acquisition.—The only object and purpose of the amendment of 1903, omitting such enumeration, was to relieve the city engineer and the board of the labor of estimates every two years, and to entail such labor only as any particular utility should be acquired. Such purpose cannot be held to express an intent that the supervisors could not thereafter acquire any of the utilities omitted from that section as amended, since it still provided for “the acquisition, construction and completion of any public utility or utilities,” and also left unchanged the preamble declaring it “to be the intention of the city and county that its public utilities shall be gradually acquired and ultimately owned by the city and county.”</p> <p>Id.—Bule of Ejusdem Generis.—It is further to be considered that the omission of the specific enumeration of utilities was for the purpose of making the utilities rather broader than narrower, and to prevent the possible application of the principle of ejusdem generis.</p> <p>Id.—General Power op State to Confer Municipal Power over *' Public Utilities.—The state has general power to invest its municipalities with power to acquire and operate local public utilities, such as are generally operated in a city by public service corporations, such as waterworks, gas or electric light works, street-railways, etc. It is purely a question of local policy with each state what shall be the extent and character of the powers its various political organizations shall possess.</p> <p>Id.—Power Vested by Freeholders’ Charter.—Local power over public utilities may be vested in a city by a freeholders’ charter, under the constitution, approved by the people and by the legislature as a whole, and also by amendments thereto likewise approved. Local power so vested has the same force and effect, as if contained in a special charter constitutionally enacted.</p> <p>Id.—Power of City to Frame Charter for Its Own “Government.”— The word “government,” used in its permissive powers to a city to “frame a charter for its own government,” is not to have a narrow construction, but it includes every function which may be allotted to a municipality to perform.</p> <p>Id.—Power to Sell or Lease Utilities Acquired—Construction— Provisions of Charter—Constitution.—The power given in section 14 of article XII of the charter to the city and county to sell or lease public utilities acquired thereby, subject to the provisions and limitations of the charter, is not to be construed as allowing any sale or lease in violation of any provision of the constitution.</p> <p>Id.—Acquisition of Utilities—Soliciting Offers for Sale before Preliminary Ordinance.—Under the mandate of the charter that ■> “before submitting propositions to the electors for. the acquisition by original construction,” etc., “of public utilities, the. board of supervisors must solicit and consider offers for the sale to the city and county in order that the electors may have the benefit of acquiring the same at the lowest possible cost thereof,” the soliciting of the offers for sale may properly precede the preliminary ordinance declaring the demands of public interest and necessity for the acquisition by construction of or purchase of a similar utility, in order that the board may know whether and upon what terms an existing utility can be acquired and be enabled more satisfactorily to determine exactly what the public interest and necessity demand, whether the acquisition of an existing utility or the original construction of such a utility.</p> <p>Id.—Mode of Soliciting Offers of Sale—Resolution—Publication Not Required.—The soliciting of offers of sale is not required to-be made by ordinance rather than by resolution. The resolution calling for such offers does not come within the purview of section 15 of chapter 1 of article II of the charter, requiring publication for five days.</p> <p>Id.—Ordinance Determining Necessity for Acquisition “by City and County.”—It is necessary that the preliminary ordinance shall determine the demands of public interest or necessity for “the acquisition or completion by the city and county” of the utility proposed to be acquired. Yet when the ordinance passed by the board of supervisors of the city and county declared that “the public interest and necessity demand the construction of street-railways over and along” certain described streets, situated therein, and directed the board of public works to procure and file estimates of costs thereof, and the ordinance was in the form prescribed by the charter of the-city and county, leading up to the acquisition by the city and county of public utilities, the ordinance sufficiently expressed the determination by the board that the public interest and necessity demand the construction of certain street-railways “by the city and county,”' ' though those words were not expressly used therein.</p> <p>Id.—Ordinance Not Defective in not Including “Acquisition.”—The-ordinance for the “construction” of street-railroads, was not defective in not including the “acquisition of an existing street-railway,” where the bonded indebtedness authorized by the electors and proposed to be incurred is not in any part for the acquisition by purchase-of any existing utility, but only for the “construction” thereof.</p> <p>Id.—Meaning of “Construction”—Completion.—The word “construction” as used in the ordinance means the original construction of the street-railroads proposed to completion.</p> <p>Id.—Plans and Estimates—Regularity—Adoption by Ordinance for. Bonded Indebtedness.—There was no irregularity in calling for - plans and estimates of the cost of the proposed street-railroads, or in the plans and estimates themselves, and there was a sufficient description of the utility in the resolution calling for the plans and estimates. The ordinance of the board of supervisors determining that a bonded indebtedness was essential, sufficiently adopted the plans and estimates proposed by the board of public works, as its own.</p> <p>Id.—Action by Taxpayer to Enjoin Bonds Voted—Complaint— Money Previously Raised for Street-Railroad—Construction against Pleader.—In an action by a taxpayer to enjoin the issue of the bonds voted by the electors, where the complaint alleges that the city and county had appropriated large sums of money specified out of current revenues, for the construction of a municipal railroad, none of which has ever been expended for that purpose, but there is no allegation that the moneys are now in the possession or control of the city and county or are available for that purpose, it must be presumed against the pleader that such money is not so available.</p> <p>Id.—Affidavit on Hearing for Injunction—Showing that Moneys Were not Available.-—Where upon an application of the plaintiff for an injunction, a showing that such moneys not having been expended were not available, but had been appropriated to current expense under the charter, and the payment thereof for a street-railroad had been enjoined by the courts, although such affidavit cannot be considered on demurrer to the complaint, yet it is consistent with the presumption against the pleader that the complaint does not show that the moneys so appropriated are available.</p> <p>Id.—Determination of Public Interest by Supervisors Conclusive.— The determination of the question of public interest or necessity by the board of supervisors to construct a -public utility is conclusive upon the courts in the absence of fraud. There is no material difference in this regard between such a determination, and a determination by a board of supervisors that an ordinary public road or street or public ferry is necessary; and it is well settled that the latter is not subject to review by the courts.</p> <p>Id.—Untenable Objection to Geary Street Eoad—Occupation by Another Eoad — Expired Franchise — Presumption against Pleader.—The objection urged by plaintiff that the proposed Geary Street railroad will cover more than ten blocks occupied by another road, is not tenable, as it must be presumed against the pleader that the Geary Street franchise has expired by limitation, there being no allegation in his complaint to the contrary.</p> <p>Id.—Eight of Agreement as to Joint Occupation por More Than Five Blocks.—There being allowed by section 499 of the Civil Code, as amended in 1907, a joint occupation of a road for more than five consecutive blocks, it cannot be assumed in an action to enjoin the issue of bonds voted, that such arrangements cannot be made, if required by a municipally owned street-railroad.</p> <p>Id.—Power of City and County.—The city and county of San Francisco has the power to construct and operate street-railways and to incur a bonded indebtedness for such purpose.</p> <p>Id.—Proceedings Legitimate—Judgment and Order Denying Injunction Affirmed.—The proceedings of the city and county in the incurring of a bonded indebtedness were legitimate and free from substantial irregularity, and the judgment of the trial court sustaining the bonds and denying an injunction against their issuance must be affirmed.</p>

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

<p>APPEAL from an order of the Superior Court of San Joaquin County refusing to recall and perpetually stay an execution, and dissolving a restraining order theretofore made. C. W. Norton, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Appeal—New Method—Failure to File Transcript in Forty Days— Bule II Inapplicable.—Where an appeal is taken under the new method provided hy sections 953a, 953b, and 953c of the Code of Civil Procedure, which does not require the filing of any printed " transcript, rule II requiring a printed transcript to be filed within forty days after the appeal is perfected, is inapplicable to such appeal, and in the absence of any rule as to the time for the filing of a transcript prepared under the new method, such appeal cannot be dismissed for failure to file the same within forty days.</p> <p>Id.—Dismissal of Appeal—Loss of Right to Pursue New Method.— Where the appellant by filing his notice of appeal from an order refusing to confirm a sale of real estate of a deceased person, fixed his actual notice of the order appealed from, and thereafter failed within ten days to file with the clerk the required notice requesting-the preparation of the required transcript to be described therein, he thereby lost his right of appeal under the new method; and where he sustains no right to file a printed transcript, the appeal must be dismissed.</p> <p>Id.—Relief from Failure to File Notice in Time.—Any relief from failure to file the required notice within ten days, if it can he given, at all, must be sought in the lower court.</p> <p>Id.—Appellant not Entitled to Wait for Written Notice of Entrt of Order—Actual Notice—Waiver.—The appellant was not entitled to wait for written notice of the entry of the order appealed from before the ten days would begin to run. Though this particular statute has not been before construed, yet other decisions upon similar statutes have settled the rule that actual notice of the entry of an order, judgment, or decree appealed from, established by the record, dispenses with or waives written notice thereof.</p> <p>Id.—Power to Excuse Failure to File Printed Transcript in Time. —The only alternative for loss of the right of appeal under the new method was to file a printed transcript within forty days, unless the time is extended, or this court exercises its power to excuse failure to-file a printed transcript upon a proper showing, where a default is-made under circumstances which would show good cause for relief -under section 473 of the Code of Civil Procedure. Whether that section is applicable to this court or not, this court should grant similar relief, allow the transcript to be filed after the time fixed, and retain the appeal.</p> <p>Id.—Facts not Excusing Failure.—It is held that the facts shown do not excuse the failure of the appellant to file a printed transcript in time; but the appellant stands contending merely for the technical right to wait for notice" of the entry of the order, before being required to file any notice to the clerk under the new method, and where he stands upon such contention, the motion to dismiss the appeal must be granted.</p>

<p>Divorce—Appeal by Wi^e—Failure to File Transcript in Time— Motion to Dismiss—Excuse—Inability to Obtain Necessary Means.—Upon appeal by a wife from a judgment of divorce in favor of the husband, and from an order denying her motion for a new trial, where it appears that, before the settlement of the bill of exceptions, the trial court allowed her one hundred dollars for printing the transcript and briefs, but that, in view of the length of the settled bill of exceptions, that sum was insufficient to pay for printing the transcript, that she had no other means, and had diligently sought to obtain adequate means from her husband without avail, such showing is a sufficient answer to a motion by her husband, as respondent, to dismiss the appeal for failure to file the printed transcript within the time provided by rule II.</p> <p>Id.—Good Cause eor Failure to Comply with Fule.—Good cause for failure to comply with the provisions of our rule in regard to the filing of the transcript on appeal, is always a sufficient answer to a motion to dismiss the appeal, based on the ground of such failure.</p>

<p>The facts are stated in the opinion of the court.</p> <p>John Johnstone, Jr., E. Swift Torrance, J. B. Mannix, Stearns & Sweet, and E. S. Torrance, for Appellant.</p>

<p>Appropriations of Water-Eights—Rules of Priority and Diligence —Relation.—As between appropriate™ of water-rights, the one first in time is first in right, unless the prior appropriator has failed to prosecute his right with reasonable diligence. If he has used reasonable diligence, his completion of the work relates to and protects his notice of appropriation.</p> <p>Id.—Reasonable Diligence—Interruption in Forest Reservation— Permit from Government—Code Provision.—Where the work under the prior appropriation was prosecuted with reasonable diligence, until it was stopped in a forest reservation by the supervisor of forestry, until a permit was obtained from the government, under section 1422 of the Civil Code as enacted in 1903, the prior right is-protected until sixty days after such permit, and the prosecution of the work thereafter with reasonable diligence, to completion, preserves such prior right.</p> <p>Id.—Construction of Code Provision—Location in Forest Reservation—Showing in Notice of Appropriation—Government Survey —Judicial Notice.—Under section 1422 of the Civil Code, protecting water-rights until after authority is obtained from the government, where any part of the work lies within a “forest reservation,” if it “be so shown in the notice of appropriation of said water,” it is sufficiently “so shown” in the notice when the land is so described by legal subdivisions of the government survey, that this court must take judicial notice that the same lies within and is a part of'the “Sierra Forest Reserve,” though the notice does not so state in terms.</p> <p>Id.—Form of Notice of Appropriation Unchanged.—It was no part of the design of section 1422 of the Civil Code to change the rule as to the form of the notice of appropriation. That was a matter wholly covered by section 1415 of the Civil Code, which, so far as the form of the notice of appropriation is concerned, has not been changed since its adoption in 1872.</p> <p>Id.—Object of New Section—Protection of Claimants Pending Permit.-—The sole object of section 1422 was to protect claimants who were unable to proceed with the work necessary to protect their claims, because the place of intended diversion or part of the route of intended conveyance of the water was within and part of a national forest reservation, pending the procurement with due diligence of the essential authority from the government of the United States.</p> <p>Id.—Object and Import of “Showing in Notice.”—The provision in section 1422 of the Civil Code that the fact of location within a forest reservation shall he “shown” in the notice of location, was evidently intended simply for the purpose of requiring the notice itself to furnish evidence of that fact. It does not import or require that the notice shall “state” that fact; but the object of the provision is accomplished when the facts stated therein are such as to enable the court to declare judicially that it is so located, and is part of such reservation.</p> <p>Id.—Evidence—Application and Permit—Letter from Local Land-Office Excluded—Error not Shown.—Where the application and permit .were received in evidence, the exclusion of a letter from the local land-office transmitting the application is not shown to be erroneous, where the contents of such letter are not in the record.</p> <p>Id.—Harmless Evidence.—In view of the legal effect of section 1422 of the Civil Code, evidence of the prior locator as to his interview with the forest supervisor, when he declared the work stopped, that he could not proceed without a permit from the government, and evidence of a letter from the supervisor to the general land-office, and of another from the acting commissioner ordering the work stopped till a permit was obtained, if immaterial, was harmless.</p> <p>Id.—Whole Becobd of Application fob Permit Admissible.—The whole record of the application of the defendant for a permit from the government was admissible, not only to show the fact of such application, and its determination, but also as hearing upon the diligence of the defendant in making and presenting the same, in face of the plaintiff’s opposition, and also upon the resumption of work within the requisite time after the issuance zof the permit.</p> <p>Id.—Evidence—Acquisition of Prior Bight by Defendant.—Evidence of a contract, under which the defendant acquired all rights initiated under the prior notice was admissible to show such acquisition.</p> <p>Id.—Proof of Absence of Further Interest of Prior Locator.— Evidence of the prior locator that he had received all that he was to receive under the agreement to sell his interest to the defendant, and that he had no interest in any manner in the property of the defendant, was sufficient to negative any pecuniary interest in the result of the action on the part of such prior locator, as a witness.</p> <p>Id.—Absence of Prejudicial Error in Evidence.—It is held that there is no prejudicial error in the admission or exclusion of evidence, or in the cross-examination of witnesses for the defendant.</p>

<p>Guardianship op Minor—Unfitness op Father—Discretion op Lower Court.—In a proceeding for the guardianship of the person of a minor, the determination from the evidence concerning the character of the petitioning father, and other facts bearing on the condition and welfare of the child, as to whether or not he should have the guardianship, is a question largely in the discretion of the court below. In the present ease the evidence is deemed sufficient to support the conclusion of the lower court that the father was not a fit person to have the guardianship of the person of a female child of about six years of age.</p> <p>Id.—Contest between Father and Aunt—Aunt Appointed Guardian op Person—Adverse Property Interests.—In a contest respecting the guardianship of the person and estate of such minor, between her father and her aunt, in which the court awards the guardianship of the estate to a trust company and appoints the aunt as guardian of her person, the fact that the aunt had property interests that might become adverse to those of the child is not sufficient in itself to warrant this court in reversing the order appointing the aunt the guardian of the person of the minor. It will be presumed that the minor’s property interests will be protected by the guardian of her estate.</p> <p>Id.—Evidence op Father’s Unfitness—Divorce Record—Agreement for Adoption op Child.—In such a contest, as bearing on the question of the father’s fitness, evidence is admissible of the record of a judgment of divorce between him and the child’s mother, on the ground of desertion of her by him, in which the custody of the child was awarded to the mother; also of a statement signed by him and his wife, afterward, consenting to the adoption of the child by its grandmother.</p> <p>Id.—Impeachment op Witness—Foundation to Show Hostility.— In order to impeach a witness by proof of declarations and conduct tending to show an unfriendly feeling on his part towards the party against whom he is called, it is necessary to lay a foundation by calling the attention of the witness to the alleged acts and declarations and giving him an opportunity to explain them.</p>

<p>Action to Quiet Title—Injunction—Execution Sale—Attachment —Title under Wipe—Deed prom Deserting Husband—Possession—Support op Findings.—In an action to quiet title to a disputed tract and to enjoin a sale upon execution by an attaching creditor of a husband, under an attachment January 8, 1903, where the plaintiff claimed under a conveyance to the wife by a deserting husband executed in 1895, the husband having acquired the disputed property in 1891, and made it part of a ranch which he deeded to his wife, who took possession of the whole property and paid all taxes thereupon until January 28, 1903, when she conveyed it to plaintiff’s grantor, it is held that the findings for the plaintiff were sustained by the evidence, showing that the deed to the wife included the disputed property, and that the wife was entitled thereto, as against the attaching creditor of the husband.</p> <p>Id.—Attaching Creditor not a Bona Fide Purchaser.—An attaching creditor of the husband is not a bona fide purchaser for value of the disputed tract, and has no standing with respect thereto different from that the husband would have, if he were claiming the disputed land for himself.</p> <p>Id.—Disputed Boundary op Husband’s Ranch—Confirmatory Deed of Disputed Tract—Taxes—Construction of Deed to Wife.— Where the husband owned a ranch of twenty thousand acres, the boundary of which was disputed by the owners of another ranch, and in settlement of the dispute, such owners conveyed to him the disputed strip, containing 139.54 acres in 1891, which he immediately inclosed by his fences, and thereafter claimed the tract as a part of his ranch, the whole of which he deeded to his wife for the support of herself and her children, when he deserted her, in 1895, such deed, being a private grant, is to be interpreted against the grantor, and any uncertainty caused by him in the description in the deed is to be interpreted most strongly against him who caused the uncertainty to exist.</p> <p>Id.—Evidence Confirming Original Intention in Deed—Deed Calling for True Boundary.—Where it clearly appears that after the execution by the husband of the deed in 1895 to his wife, the husband never attempted to exercise any ownership of any part of the tract, which was included within the fences of his ranch, and that he intended to convey all of the land included in the ranch as fenced, and to give the same to his wife for the support of herself and children; and when it further appears that the call for the description of the other ranch was twelve chains east of the husband’s ranch, and his description of the boundary of the other ranch in his deed would include the whole of the disputed tract, that is to be considered as the true boundary of the land granted, notwithstanding any uncertainty in the description, which must be resolved in favor of the grant of the disputed tract.</p> <p>Id.—Power op Wipe to Perfect Title against Husband by Adverse Possession.—Though the wife cannot acquire adverse possession against the husband while he remains the head of the family, yet when he has left his family, has ceased to contribute to its support, and has assumed to give or abandon all of his property to the use of his wife for that purpose, there is no consideration of public policy which precludes her from perfecting her title as against the husband or any of his creditors by adverse possession of the property left in her hands, in the same manner in which she might acquire it if unmarried.</p> <p>Id.—Liberal Construction of Statutes Favoring Married Women— Power to Hold Adversely.—Our liberal statutes concerning the sights and powers of married women invest a married woman with sufficient power to hold adversely to her husband in the acquisition and control of her separate property.</p> <p>Id.—Construction of Code—Earnings and Accumulations of Wife Living Apart—Separate Property—Prescription.—Under section 169 of the Civil Code, the earnings and accumulations of the wife and of her minor children while she is living apart from her husband, are the separate property of the wife. Property acquired by her by adverse possession would, under that section, be clearly included in the term “accumulations.”</p> <p>Id.—General Meaning of Accumulation—Code Provisions.—When one speaks generally of accumulation of property, he is understood to refer to any property which a person acquires and retains, without regard to the means by which it is obtained. An accumulation may result from an exchange of community property, and, in such case, the accumulation would be community property. But where the wife, while living separately and apart from the husband, accumulates property by her efforts of any kind and holds control of it, it is her separate property, under section 169 of the Civil Code. With respect to such property, sections 162, 163, and 164 of the Civil Code, regarding community property acquired after marriage by either spouse, have no application.</p> <p>Id.—Permanent Desertion by Husband — Prescriptive Title of Wife—Separate Estate.—When a husband abandons and deserts his wife, remaining permanently separate from her, and delivers to her the possession of his property, she may claim title to it as her separate estate, and acquire the legal title in fee by adverse possession .gainst him.</p> <p>Id.—Improper Opinion Evidence not Prejudicial—Proof of Fact.— The opinion evidence of a witness that the land in dispute was considered and treated by the husband and wife as belonging to- Ms ranch, was improperly admitted, but its admission was not prejudicial where the undisputed evidence shows that said land was inclosed by his fences, and so remained during his possession, and afterwards, continuously during the possession by his wife, after his deed to her, and after her subsequent deed to plaintiff’s grantor.</p> <p>Id.—Proof of Delivery of Deed to Wife—Letter to Father of Wife Inclosing Deed—Declaration of Desertion.—A letter of the husband to the father of the wife inclosing the deed to him for delivery to her, was admissible in connection with proof of such delivery to her, and also'as proof of his declaration therein that he intended permanently to desert her.</p>

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

APPLICATION under the Primary Nomination Law, directed to the Secretary of State and to the County Clerk of Los Angeles County, requiring them to desist from placing the name of a person upon the official primary ballot as a candidate for the Democratic nomination for State Senator. The facts are stated in the opinion of the court.

MOTION to dismiss an appeal from a judgment of the Superior Court of Los Angeles County. Geo. II. Hutton, - Judge. The'facts are stated in the opinion of the court.

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

<p>Accounting—Settlement by Note Given fob Balance.—Where a balance due upon an unsettled account is fixed by an agreement between the debtor and creditor, and a note is given therefor, the transaction amounts to a settlement of the account, and the debtor, after acquiescing in such settlement, will not, in an action for an accounting, in the absence of a charge of fraud or mistake, be permitted to reopen questions which were then closed.</p> <p>Id.—Equitable Action fob Accounting—Sale fob Less than Value— Ascertained Damages.—Where stock held by an alleged trustee as collateral was wrongfully sold by him at less than its value, an equitable action for an accounting to recover the difference will not lie, where the amount of such difference is alleged to be a certain amount, to the knowledge of the plaintiff.</p> <p>Express Trust in Land—Non-Payment of Installments of Price and Taxes—Agreement for Trust Must be in Writing.—An action cannot be maintained for the violation of the obligation of an alleged, express trustee of land to make payment of the purchase price thereof and taxes thereon, where the terms of the alleged trust agreement are not in writing.</p> <p>Id.—Negligence of Trustee in Permitting Loss of Land—Failure to Pay Taxes and Purchase Price;—Pleading.—A complaint seeking to hold a trustee liable for the negligent loss of land purchased from the state, by reason of his failure to make the deferred payments required by the certificate of purchase, and for the negligent loss of other lands, by reason of his failure to pay taxes' thereon, must specially aver facts showing that the title was lost by want of payments. Such divestiture of title must be averred as fully as would be required in an action in which the plaintiff sought to establish in himself a title resting upon the proceedings to forfeit title for non-payment of taxes or other dues.</p> <p>Id.—Tax Title Must be Specifically Alleged.—Whenever a tax title is specially set forth in a pleading, it is necessary that every fact should be averred which is requisite to show that each of the statutory provisions has been complied with.</p>

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

<p>Reclamation District—Contest of Assessment—Rights of Landowners—Action to Determine Validity.—Where the landowners who are taxpayers in a reclamation district are given no opportunity to contest an assessment levied thereby before the commissioners or the board of supervisors, they may urge any objections to its validity in an action to enforce the same, or in an action brought by the reclamation district under section 3493% of the Political Code, in which a method is provided by which all objections to the assessment may be conclusively determined after such notice and hearing as the property-owners are of right entitled to.</p> <p>Id.—Clear and Definite Plan for New Work Essential—Mandatory Provisions of Code.—The law as embodied in sections 3454 and 3455 of the Political Code, is mandatory as to all new work, arid contemplates the adoption by the trustees of the reclamation district of a clear and definite plan of all new work not embraced in the original and other previous plans already filed, before any assessment is levied therefor, so that all concerned may have means of ascertaining the specific purposes of the assessment, the real value of the proposed work, and the benefit to be derived therefrom.</p> <p>Id.—Supplemental Assessment for New Work—Safeguard not Removed.—The mandatory provisions of sections 3454 and 3455 of the Political Code as to all new work are not affected as to the safeguard thereby required, simply because the assessment including such new work was a supplemental assessment under section 3459 of the Political Code, instead of the original. In such case, the statement of the new work to be done, made by the trustees to the supervisors, must be as clear and definite as in the ease of original plans for new work.</p> <p>Id.—Insufficient Assessment for New Work—Repair and Raising of Levees along River and Slough.—An item “to repair and raise the levees along the S^n. Joaquin River and French Camp slough, the estimated cost of which is $33,000,” without any designation of the amount required “to raise the levees,” which is some undesignated part of the whole sum, is insufficient to give the landowners the notice which the law contemplates they should have, and insufficient to serve as a basis for the assessment in so far as such proposed work is concerned.</p> <p>Id.—Insufficient Item for “Draining Ditches” and “Pumping Plants.”—An item of “drainage ditches to be dug throughout the district and pumping plants to be installed,” at an estimated cost of twenty-five thousand dollars, is likewise insufficient to be the basis for an assessment. No inference can be drawn therefrom as to the character or amount of ditch work to be done, its estimated cost, or the location of any proposed ditches; nor is there anything from which it may he known how many pumping plants are proposed, or their estimated cost. In a matter of so much importance as a proposed system of drainage ditches, the law clearly contemplates a plan showing in some detail, and with some degree of certainty, the extent of the proposed work, and the general location of the proposed ditches, with estimates of the cost thereof.</p> <p>Id.—Invalid Inclusion of Prior Assessment—Defect in Name of One Owner.—Where a prior assessment was held invalid only as to a particular tract of land on the ground that it was assessed to the wrong person, and was not held invalid in any other respect, or as to any other landowner, section 3466% of the Political Code, does not authorize the aggregate amount paid by all landowners in satisfaction of such assessment to be included in a subsequent assessment.</p> <p>Id.—Invalid Assessment to One Owner Not Affecting Validity as to Others.—The invalidity of the assessment as to the one owner does not render the assessment invalid as to other landowners, and none of them could have successfully resisted the payment of their assessments because of such special invalidity as to one owner, there never having been any determination of its invalidity as to other owners.</p> <p>Id.—Object and Scope of Reimbursement Provision.—The whole object of section 3466% of the Political Code is to provide for the reimbursement of those who may have paid the amounts assessed against their lands, where such lands were not liable therefore because of the invalidity of the assessments against them, prior to a determination of such invalidity.</p>

<p>Water-Bights—Pleading—Answer—Cross-Complaint—Decision upon Former Appeal—Amendment—Harmless Buling.—Where, upon a former appeal in an action to determine water-rights, it was held that the answer -of plaintiff to the cross-complaint of defendant was evasive, but that no facts were admitted in opposition to the affirmative averments of the answer that the plaintiff had an interest in the waters by appropriation, and it appears that the trial court, after reversal, made an ex parte order allowing plaintiff to amend his answer to the cross-complaint so as to make the denial specific, the order permitting such amendment, if error, was harmless, as it did not change the issues.</p> <p>Id.—Streams—Waters op Lake, Tributaries and Outlet—Support op Finding.—It is held the evidence sufficiently supports the finding that “Pinto Lake, its tributaries and outlet, is part of a running stream,” and that this finding will be applied in the determination of the present appeal.</p> <p>Id.—Actual Appropriation—Non-Compliance with Code.—An actual appropriation of the waters of a stream is effective, although there is no compliance with the provisions of the code to confer a prior " right as against any person who did not have at the time of the diversion a superior right. Such appropriation cannot divest prior rights, but will be good as against a subsequent appropriator.</p> <p>Id.—Effect of Compliance with Code—Relation to Posting.—Compliance with the provisions of the code relative to appropriation is important only in so far as the claimant seeks to have his right relate back to the date of posting. Such compliance will cut off rights accruing between the date of posting and the actual diversion for beneficial purposes.</p> <p>Id.—Absence of Intervening Rights.—Where there are no intervening rights which can take effect by relation to a prior posting, an actual appropriation may be made without the posting of any notice in compliance with the code, which will be effective as against a subsequent posting in compliance with the code.</p> <p>Id.—Extent of Prior Appropriation.—Where the prior actual appropriation of the defendant water company was limited to forty inches of water, it cannot be extended because it was applied to two beneficial purposes—the irrigation of its lands and a reserve or emergency supply to the inhabitants of a city.</p> <p>Id.—Conveyance of Water-Rights from Prior Owners of Plaintiff’s Land—Rights of Water Company as Grantee—Finding—Decree. A conveyance of further water-rights to the grantors of the defendant water company from the prior owner of land now owned by plaintiff, save water needed for domestic and culinary purposes and the watering of stock, was effective to vest such grantors and said defendant with the riparian right to all waters appurtenant to said land for irrigation, and the defendant corporation, which pleaded the rights so conveyed in its answer, was entitled to a finding thereon and to have the rights so vested protected in the decree as against the plaintiff.</p> <p>Id.—Estoppel of Plaintiff by Deed of Grantor—Rights Vested Not Divestible by Appropriation.—The plaintiff is estopped by the deed of his predecessor in interest conveying' all water for the irrigation of his land to defendant’s grantors, from asserting any interest in antagonism to such deed. It is of no importance that he bases his antagonism upon an appropriation of such water for irrigation subsequent to the deed. He cannot thereby take away any portion of the water-rights vested in defendant under such prior grant, by the mere device of calling it an appropriation.</p>

<p>Primary Elections—Proceeding to Determine Bight to be Named as Nominee on Official Ballot—Supreme Court will not Entertain Proceeding.—The supreme court will not entertain an original proceeding under section 27 of the Primary Nomination Law, (Stats. 1909, p. 709), to determine which of two opposing candidates at a primary election is entitled to have his name appear on the official ballot as a party nominee for a county office.</p> <p>Id.—Jurisdiction of Superior Courts—Judgment not Appealable.— The jurisdiction of the superior courts in their respective counties, in such class of contests, is as complete as the jurisdiction of the supreme court, and as there is no provision for an appeal, their judgments are final when entered. There is therefore nothing to justify the commencement of the proceeding in the supreme court.</p>

<p>Contempt without Presence op Court—Sufficiency of affidavit— Jurisdiction—Void Judgment.—In a proceeding to punish for a constructive contempt of court, committed without its presence, the affidavit which is made the basis of the proceeding should show upon its face the acts which constitute the contempt. In the absence of such showing, the court is without jurisdiction to proceed in the matter, and any judgment of contempt based thereon is void, and will be so declared upon certiorari.</p> <p>Id.—Contempt Proceedings Are of Criminal Nature.—Proceedings in contempt are of a criminal nature, and no intendments or presumptions are to be indulged in in aid of the sufficiency of a complaint.</p> <p>Id.—Judgment Placing Minor on Probation—Direction against Furnishing Liquor to Probationer—Affidavit for Contempt.— Where a judgment placing a minor on probation under the juvenile act provided that it should be a contempt of court for any person “to furnish, or cause to be furnished to him” any intoxicating liquor, an affidavit in contempt proceeding to punish a person for a violation of the judgment must specifically allege that the accused “furnished” or “caused to be furnished” liquor to the probationer. A mere allegation that they drank intoxicating liquors together is insufficient.</p> <p>id.—Knowledge of Order of Court Essential to Contempt.—The affidavit in such contempt proceedings is fatally defective if it fails to allege that the accused had any notice or knowledge of the existence of the order of the court at the time it is claimed he violated it.</p> <p>Id.—Proof of Knowledge on Hearing—Stipulation as to Knowledge—Certiorari.—Such defect goes to the jurisdiction of the court, and is not cured by proof of knowledge of the order on the hearing in the contempt proceeding, nor, in a proceeding in certiorari to review a judgment punishing for the contempt, is it obviated by a stipulation then entered into by the district attorney and the attorney for the accused in the contempt proceeding, to the effect that the accused had such knowledge.</p> <p>Id.—Authority of Attorney—Termination of Contempt Proceedings.—The authority of the attorney for the accused in the contempt proceeding ceased with the termination of such proceeding, and he had no authority thereafter to stipulate as to anything relative to that proceeding so as to bind the accused.</p>

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

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

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

<p>The facts are stated in the opinion of the court.</p> <p>Knight & Heggerty, H. M. Owens, and Frank J. Hennessy,, for Appellant.</p>

<p>Injunction—“Unfair Competition”—Simulation of Goods—Fraudulent Intent Essential.—The rule that the law will afford protection against the “unfair competition” of one who seeks by imitation of label or package, or by other artifice to induce persons to deal with him in the belief that they are dealing with another, rests upon the basis of fraud. There must be the intent to deceive, or at least the doing of things reasonably likely to deceive.</p> <p>Id.—Absence of Trademark or Trade-name Immaterial.—If the defendant can be shown to have put up his product with intent to palm it off as that of the plaintiff, and if it does in fact mislead the public, a case of “unfair competition” is made out, even though the plaintiff has shown no exclusive right in any trademark or trade-name.</p> <p>Id.—Injunction against ‘‘Unfair Competition”—Unsupported.—The injunction cannot be supported as one against “unfair competition” where there are marked differences of appearance between the respective labels and packages, and the form of the bottles in which plaintiff’s wine is placed and those in which defendant’s wine is placed, and where the only common word used is one expressive of the “kind” of wine placed in plaintiff’s bottles, and the wholly different “kind” of wine placed in defendant’s bottles, and the word is used in such a manner as to disprove the existence of any fraudulent scheme to represent defendant’s goods as those of the plaintiff. [Angellotti, J., Henshaw, J., and Lorigan, J., dissenting.]</p> <p>Id.—Injunction against Violation of Trademark—Question of Fraud not Involved.—If the plaintiff has obtained the exclusive right to a trademark, consisting of a form, symbol, or name appropriated by one who produces or deals in a particular thing, or conducts a particular business, to designate the origin or ownership thereof, he is entitled to restrain the infringement, whatever may be the motive or intent of the infringer. No question of fraud is involved in such case; but the relief is granted because a right of property in plaintiff’s exclusive right to the use of his trademark has been invaded.</p> <p>Id.—Law of Trademarks.—Descriptive Words and Phrases Prohibited.—There is no principle more fully settled in the law of trademarks, than that words or phrases which have been in common use, and which indicate the character, kind, quality, and composition of the thing, may not be appropriated by any one to his exclusive use.</p> <p>Id.—Descriptive Terms in Foreign Language Excluded.—The fact that descriptive terms in a foreign language are claimed as a trademark, does not take the ease out of the general rule; but descriptive words in any language are excluded as the subject of a trademark. Id.—Use of Word “Tipo” to Express “Type” or “Kind” of Italian Wine.—The Italian word “tipo” when used to express the “type” or “kind” of a particular brand of Italian wine made by the plaintiff, cannot be appropriated by it as a trademark, and the defendant was entitled to use the same word to express the “type” or “kind” of wholly different Italian wines manufactured thereby.</p>

MOTION to dismiss appeals from a judgment of the Superior Court of San Benito County and from an order denying a new trial. M. T. Dooling, Judge. The facts are stated in the opinion of the court. W. M. Gardner, W. C. Kennedy, and A. D. Shaw, for Appellants.

<p>Action fob Damages—Breach of Two Contracts Treated as One— Statement in One Count—Error not Prejudicial.—In an action for damages for breach of two independent contracts for the sale of four thousand tons of asphalt, each bearing different dates, the fact that both were included in one count of the complaint is not a prejudicial error requiring reversal, where the evidence shows that in fact both parties, after making the second contract, treated the two as one, in all their dealings with each other, .without distinguishing them in any way by reference to them as different contracts, and that the defendant was not prejudiced in any way by the method of pleading, but the conduct of the parties was such that if the pleading were separate, the cause must have been tried and the evidence introduced upon both together.</p> <p>Id.—Purchase of Asphalt in Market—Pleading—Uncertainty as to Mode of Packing Cured by Finding.—An uncertainty in the complaint as to the mode of the packing of asphalt purchased in the open market to supply a deficiency in delivery, as to whether they were in double-headed or single-headed packages, when they should have been in single-beaded packages to cover the amount claimed, is cured by a finding supported by uncontradicted evidence that the purchase was all in single-headed packages.</p> <p>Id.—Construction of Contracts—Maximum Delivery per Month— Date of Monthly Payment—Calendar Month.—As each contract provided for a maximum delivery per month of four hundred tons of asphalt, and fixed the tenth day of each month for payment of all the asphalt delivered during the preceding month, evidently both of these kindred provisions refer to the months of the calendar. The defendant was not obliged to deliver more in any month than was demanded, unless it was delinquent for a preceding month.</p> <p>Id.—Findings as to Amount of Delinquency Partially Unsupported.—It is held that the .findings as to the amount of delinquency were unsupported to the extent of $1,557.79, which would render, the judgment for $19,463.56 that much less, so as to amount only to $17,905.77, and necessitate a new trial.</p> <p>Id.—Evidence—Letter of Defendant Offering to Sell Asphalt at Fixed Value per Ton.—A letter of the defendant after assuming to rescind the contracts, offering to sell asphalt to plaintiff at fifteen . dollars per ton on January 14, 1907, was competent as an admission of the defendant, tending to show the value of asphalt at that time.</p> <p>Id.—Amount Paid by Plaintiff in Open Market not Material to ¡Recovery—Measure of Damages.—Evidence of the price paid by plaintiff in the open market to supply a deficiency of delivery was not material to plaintiff’s recovery. Upon non-delivery of the asphalt agreed to be delivered, the measure of damages was the excess over the contract price of the market value of the asphalt in the nearest market at such time after the breach as would enable the plaintiff by reasonable diligence to buy an equivalent amount. This plaintiff could recover, whether it actually bought an equivalent quantity or not, and regardless of the price it paid for what it did buy.</p> <p>Id.—Evidence of Market Value.—Evidence of the amount paid for particular sales is not competent as evidence of value, unless the defendant had sought to show that plaintiff had succeeded in replacing the asphalt at less than the market value.</p> <p>Id.—Cross-Examination of Witness as to Market Value.—A witness who had testified as to the market value of asphalt may be asked on cross-examination as to the profit he would make per ton at the price he had testified to be the market rate.</p> <p>Id.—Ineffectual Rescission—Recovery by Plaintiff not Barred.— Where it appears that plaintiff made part payments on the price at each monthly period and had been granted further time to make payments, the defendant, who was in default on the delivery of •asphalt ordered to the extent of one thousand tons, could not rescind the contract; and an attempt by him to rescind the same for plaintiff’s failure to make full payment, was ineffectual, and where plaintiff made full payment thereafter his right to recover damages for defendant’s breach of the contract to deliver asphalt was not barred under the circumstances.</p> <p>Id.—Right of Rescission Confined to Person without Default.— The rule is general that the right to rescind a contract rests only with the party who is without default. One party cannot violate the contract himself, and then seek a rescission on the ground that the other party has followed his example.</p>

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

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

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

<p>Specific Performance of Contract to Sell Land—Time of Essence— Sufficiency of Complaint—Facts Excusing Delay and Waiving Forfeiture.—In an action for specific performance of a contract for the sale of land which made time of the essence, where the sufficiency of the complaint to state a cause of action is the only question involved, and it sets forth the undisturbed possession of the premises, part payment, and the offer of full payment before the commencement of the action upon the execution of a deed, and further sets forth sufficient facts excusing delay and waiving the forfeiture of his rights on the part of the vendor, and to charge a purchaser from the vendor with notice, it states facts sufficient to constitute a cause of action.</p> <p>Id.—Waiver of Forfeiture—Treating Contract as Subsisting.—A condition that the title shall be made or the price paid on or before a day named may be waived by the party entitled to performance; and if such party thus waive exact performance, or if he goes on treating the agreement as still binding after default has been made, he cannot afterwards turn round and set up the delay or default as creating a forfeiture.</p> <p>Id.—-Acceptance of Payments Long after Due.-—The acceptance by the vendor of payments long after they became due, without ob.jeetion, was a waiver of all breaches which had occurred at or prior to the time when such payments were made.</p> <p>Id.—Bight of Forfeiture fob Subsequent Default.—The waiver of prior forfeitures would not preclude the right of forfeiture for nonpayment of a future installment, if the vendor chose to assert it.</p> <p>Id.—Possession of Purchaser — Acquiescence by Vendor in Continuance of Contract after Long Default.—-When the purchaser was in the actual use of the land during the whole period of default in monthly payments for the period of over three years, and the vendor acquiesced in such long default and in the continuance of the contract, giving no notice to the contrary, a court might infer from these facts a waiver of the condition regarding forfeiture and time being of the essence, and that they supported the allegation of the complaint that the vendor waived .those conditions.</p> <p>Id.—Delay of Vendor Till Whole Sum Falls Due—Dependent and Concurrent Conditions—Tender of Deed Essential.—Where the vendor waived his right to declare the whole sum due after any default of sixty days, and allowed the time for full payment to accrue by more lapse of time, he thereby waived his right to recover any intermediate installment, but the payment of the full price due then becomes a concurrent and dependent condition upon the execution of the deed, and mere non-payment thereof does not put the purchaser in default, but the vendor must tender a deed, as a condition of demanding the unpaid price, and he cannot without such tender declare a forfeiture, or maintain a suit either for the whole price, or for an intermediate installment.</p> <p>Id.—Improper Declaration of Forfeiture..—Where the vendor waited until more than a year after the last payment fell due before he assumed to declare a forfeiture, without any previous tender of a deed, such declaration of forfeiture was improper and wholly ineffective. Dntil the purchaser was put in default by the tender of a deed and non-payment of the purchase price when demanded at the time of such tender, no forfeiture could be so declared. •</p> <p>Id.—Complaint Showing SujjftsTiNG Contract.—It is held that upon the face of the complaint, the contract is shown to be still subsisting.</p> <p>Id.—Delay in Procuring Payment—Delations of Parties—Compensation by Interest.—Delay in procuring payment is not such laches as will be an impediment to specific performance, urovided there has been no substantial change in the circumstances and relations of the parties during the contract, and the interest allowed under the terms of the contract' will constitute not only a theoretical but an actual compensation for the purchaser’s default in payment.</p> <p>Id.—Time Ceasing to be Essential—Efflux Material as Bearing on Specific Performance.—Where time was originally essential, but for sufficient cause a forfeiture for default has been waived, time ceases to be essential and becomes only material thereafter until the .vendor makes it essential by a proper notice and demand. In the ease at bar, upon the facts shown in the complaint, a forfeiture has been waived, and thereafter time was not essential, but its efflux was a material fact as bearing upon the right of the purchaser to enforce a specific performance.</p> <p>Id.—Defense of Laches—Injury Must Appear.—The defense of laches may be made where the lapse of time is less than the statutory period of limitation, but in such eases it can be maintained only where from the delay and the circumstances there appears either actual or presumptive injury or prejudice to the other party. Where the complaint shows that the vendor is entitled to eight per cent annual interest, payable monthly and compounded monthly, there is nothing in the facts appearing to indicate that this interest will not fully compensate the vendor for the delay in the payment of the principal, or that he has been at all prejudiced thereby.</p>

<p>Conditional Sale—General Bule—Betaking upon Default of Buyer —Election of Bemedy.—As a general rule, where there is a contract which by its terms, or by the liberal interpretation to that end indulged by the court, constitutes an agreement for the sale of personal property, the title to pass only upon condition that the price is paid, and not till then, the title in the meantime remaining in the seller, possession being given to the buyer, and providing that the seller may retake possession upon default in payment, the seller, upon such default, is put to his election either to retake possession and reliquish all rights to the price, or to recover the price and relinquish the right to retake possession, and if he pursues one remedy he loses his right to the other.</p> <p>Id.—Applicability of Bule—Concurrent and Dependent Conditions. —The general rule applies where the property is given into the buyer’s possession by virtue of the contract of sale until the time when payment is to be completed, and the passing of the title to the buyer is concurrent with and dependent upon the payment of the price.</p> <p>Id.—Bule Inapplicable—Independent Bight of Possession in Seller. —The general rule is inapplicable where the contract either declares that the seller shall retain the possession, or provides for its redelivery to him at a fixed date, different from the time of the completion of the sale and passing of title, and not dependent thereon. In such cases the seller may recover the price, and retain possession until full payment is made.</p> <p>Id.-—Contract to Lease and Sell Automobile—Breach—End of Lease—Bight to Enforce Bent.—Where a contract in the form of a lease and final sale of an automobile made time of the essence, and provided three small payments of rental which were paid, and for a last payment of rent in the sum of $2537.50, on June 25, 1908-, and for a termination of the lease and delivery of possession to the lessor on June 30, 1908, with the right thereafter if all rental was paid to purchase the property for $6.25 on July 3, 1908, it was the absolute and independent duty of the lessee to pay said large sum at the time fixed, and to deliver possession to the lessor before final payment as agreed, and the lessor was entitled to enforce the unpaid sum.</p> <p>Id.—Stock Pledged as Security for Bent—Bight of Sale for Unpaid Bent.—Where the lessee had transferred to the lessor five thousand shares of stock as security for rent, the lessor, immediately upon default of the lessee in the final payment of rent, as agreed, had the right to enforce payment thereof by a lawful sale of the pledged stock, and crediting the sum of one thousand five hundred dollars realized from such sale upon such final payment. The lessor was within his contract rights when he thus enforced payment pro tanto.</p> <p>Id.—Action fob Damages for Conversion of Stock—Appeal by Plaintiff—Nature of Contracts not Involved.—Upon appeal by plaintiff in an action to recover damages for the conversion of the pledged stock so sold, the question whether the contract was in legal effect a lease or a conditional sale is not involved, and need not be determined.</p> <p>Id.—Effect of Conditional Sale.—If the contract made be supposed to create a conditional sale, it would nevertheless be a sale upon the conditions stated therein, and not upon any other terms or conditions. If the named lessee be still entitled to buy, he can only do so upon the terms, and at the price fixed by the contract; and the rights and obligations of the parties to the contract are to be determined thereby.</p> <p>Id.—Bight of Possession of Automobile—Cessation—Future Bight Contingent.—Whether the contract be deemed a lease with a future option to purchase, upon compliance with the terms of the lease, or a conditional sale, the right of possession of the automobile in the lessee or buyer ceased absolutely and unconditionally on June 30th. Even the prompt and full payment of the sum to be paid June 25th would not relieve the payer to deliver the automobile in good order to the so-called lessor on June 30th. The lessee or buyer could not under the terms of. the contract again acquire possession of the automobile until July 3d, in any event, and then only upon full payment of the price, and the exercise of the final option given by the contract.</p> <p>Id.—Betaking Possession under Contract not Inconsistent with Bights of Purchaser.—The conduct of the seller in retaking possession, under the terms of the contract, by suit or otherwise, was not a violation of the rights of the buyer under the contract, nor was it inconsistent with his right to purchase, which may exist notwithstanding the fact that the seller has possession.</p> <p>Id.—Construction of Contract as Lease—Time of Essence—Bight to Sell Pledged Stock.—If the provisions making time of the essence of the contract of lease, with the option to purchase, were strictly enforced, and are to be construed as limiting the option to : purchase to the very day fixed which was not then exercised, there would be no right to buy, and the money payable June 25th would be absolutely due as rent and not upon a purchase, and the lessor would have a clear right to sell the pledged stock for its payment.</p> <p>Id.—Construction of Contract as Conditional Sale—Waiver of Time as Essence.—If the contract is to be construed as a conditional sale, then the provision making time of the essence, and requiring the option to buy to be exercised at the very day, would be waived by the seller when he elected to- take part payment of the price after it was past due from the proceeds of the sale of the stock, and although he was entitled to hold the possession of the automobile after June 30th, he would hold it subject to the right of the purchaser to complete his purchase by paying the balance of the price after deducting the sum realized by the sale of the pledged stock.</p> <p>Id.—Absolute Legality of Sale of Stock.—The sale of the stock was legal, whether the contract be construed as a lease or as a conditional sale, and is not, in either alternative, inconsistent with the right of the seller of the stock to take possession of the automobile and hold it, at least until a proper offer to buy be made by the purchaser.</p>

<p>PETITION for Writ of Mandate to the County Auditor of-San Joaquin County.</p> <p>The facts are stated in the opinion of the court.</p> <p>J. A. Plummer, and Bishop, Hoefler, Cook & Harwood, for Petitioner.</p>

<p>Mechanics’ Liens—Notice op Non-Liability op Owner—Forbidding Work apter Completion.—In an action to foreclose mechanics’ liens, where the owner of the property failed to give the statutory notice of non-liability, and merely undertook to forbid the work after its completion, it is obvious that the owner could not forbid that which had been already accomplished.</p> <p>Id.—Existence op Special. Holidays—Duty op Owner..—Conceding, without deciding, that the existence of special holidays declared by the governor could postpone the necessity for the posting of a notice by the owner in order to avoid a lien, the owner would be.still under the necessity of posting notice upon the first secular day after her discovery of the activities of the laborers and materialmen, who subsequently became lien claimants.</p> <p>Id.—Legal Holidays not Curtailing Privilege op Owner.—Under section 1192 of the Code of Civil Procedure, the owner had the privilege of objecting formally to the work within ten days after the owner’s discovery that it was under way, and the intervening holidays would not curtail that privilege.</p> <p>Id.—Prima Facie Case op Lien Claimants—Burden op Proop upon Owner.—The lien claimants made a prima facie case by proof that the owner posted no notice avoiding his liability within ten days after knowledge that the work had fully begun upon the owner’s property. If the holidays extended the owner’s time, and the owner made due and formal protest by posting such notice after they were ended, that would be matter for the owner to show afiirmatively, which he failed to show.</p> <p>Id.—Doctrine op Code Provision—Estoppel op Owner—Equitable Lien.—The doctrine upon which section 1192 of the Code of Civil Procedure rests is that of estoppel, which is the underlying principle of the entire theory of the mechanics’ lien. The owner of real property having either by his own act or that of another with his consent or knowledge, procured the improvement of such property, and received the benefit of the labor or material of another thereby, is deemed to have created an equitable lien upon the premises to secure the payment of the value of such labor or materials.</p> <p>Id.—Knowledge of Owner—Putting upon Inquiry—Failure to Give Notice.—The knowledge upon the owner’s part which is sufficient to place him in default for failure to give the notice required need not be absolute. It is enough that it would put a prudent man upon inquiry.</p> <p>Id.—“Knowledge of Construction”—Time of Giving Notice.'—-The “knowledge of construction” required by the statute must be construed to mean knowledge of the progress of the work of construction, which could not have been earlier than the commencement of the work. There is no limitation with respect to the stage of the work at the time at which the notice must be posted, and if given under the former statute, within three days after knowledge of the construction has been received, it would be timely on any day when the work on the improvement was in progress.</p> <p>Id.—Support of Findings—Absence of Error.—It is held the findings made by the court in favor of the lien claimants and against the owner of the property, are sustained by the evidence, and were proper under the pleadings; and that no error appears in the record.</p>

<p>Subscription Note for Bight of Wat for Bailway—Designation of Eoute.—A promissory note, executed to a member of a citizens’ right of way committee, and reciting that it was given to defray the cost of securing the right of way for the “Covina extension of the Pacific Electric Bailway,” did not definitely fix a route by which such extension should be made, and the question of what was the meaning of these terms in the note was one of fact to be determined from all the circumstances surrounding its execution.</p> <p>Id,,—Evidence as to Location of Bouts.—The evidence is sufficient to sustain the finding that the phrase “Covina extension of the Pacific Electric Bailway,” was used in the note as a mere matter of convenience to indicate an extension of an electric railway from the city of Los Angeles to the city of Covina over, a right of way to be subsequently procured by the company between those points, and upon which an electric road would be constructed.</p> <p>Id.—Condition as to Builder of Boad.—The subscription note did not in terms require that the extension should be built by the Pacific Electric Bailway Company. If, however, it was a condition of the note that it should be so built, the fact that it was built by a company, all the stock of which was owned by that railway, and was operated as a part of its electric railway system, was a sufficient compliance therewith.</p> <p>Id.—Consideration for Subscription—Terminus, of Eoute.—Both the terms of the subscription note, and the other evidence, support the finding that the note was not given in consideration of the extension being built beyond Covina, to a tract of land owned by the defendant.</p> <p>Id.-—-Waiver of Compensation for Bight of Way.—Conceding that an oral agreement of the maker of the note to waive compensation for damages for the right of way through his lands was not binding upon and might have been repudiated by him, the fact that he carried out his promise to relinquish any claim therefor by actually conveying the right of way, constituted a confirmation of his original waiver to compensation, and precluded him from asserting any claim for it.</p>

<p>The facts are stated in the opinion of the court.</p> <p>Hunsaker, Britt & Fleming, and Hunsaker & Britt, for Appellant.</p> <p>Ward Chapman, and O’Melveney, Stevens & Milliken, for Respondents.</p>

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

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

<p>The facts are stated in the opinion of the court.</p> <p>Lawler, Allen, Van Dyke & Jutten, and R. P. Jennings, for Appellant.</p>

<p>Insurance—Construction op Policy against Insurer.—While a policy of insurance, like other contracts, must be construed according to the language and terms used therein in order to arrive at its true sense and meaning, and courts will not undertake to relieve parties from the express and plain stipulations into which they have entered, still the rule is well established that provisos and exceptions contained in such policy must be strictly construed against the insurer and liberally in favor of the insured.</p> <p>Id.—Ambiguous Conditions.—The insurer is in duty bound to use such language as to make the conditions, exceptions, and provisions of the policy clear to the ordinary mind, and in case it fails to do so, any ambiguity or reasonable doubt must be resolved in favor of the insured and against the insurer.</p> <p>Id.—Eire Insurance—Loss Occasioned by or through Earthquake— Loss Caused Directly or Indirectly by Other Causes.—Under a policy of fire insurance, which contained a provision that the insurer “shall not be liable for loss caused directly or indirectly by invasion ... or by order of any civil authority; or for loss or damage occasioned by or through any . . . earthquake,” a distinction is made between loss caused “directly or indirectly” by certain means other than earthquake, and “loss or damage occasioned by or through” earthquake. The omission of the words “directly or indirectly” from the clause dealing with earthquake justifies a limitation of that clause to loss occasioned directly, as well as próximately, by earthquake.</p> <p>Id.—Liability eor Earthquake Eire Originating on Other Property. —It is no defense to an action on such a policy, that on the day on which the insured property was destroyed by fire, an earthquake occurred which started a fire on other property, and that such fire thereafter spread from building to building and destroyed the property insured.</p>

<p>Deed—Delivery to Third Person for Grantee after Death of-Grantor—Delivery Must be Absolute.—Order denying a new-trial reversed for the reasons stated in the "opinion in Moore v. Trott, 156 Cal. 353.</p>

<p>The facts are stated in the opinion of the court.</p> <p>Jas. F. Tevlin, Percy V. Long, City Attorney, and Adolphus E. Graupner, for Appellants.</p>

<p>PETITION for Writ of Mandate to the Superior Court of Los Angeles County. N. P. Conley, 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>

Judgment and order affirmed, in an action to quiet title, on the authority of Alcorn v. Qieseke, ante, p. 396. APPEAL from a judgment of the Superior Court of San Joaquin County and from an order refusing a new trial. ,W. B. Nutter, Judge. The facts are stated in the opinion of the court.

Judgment and order affirmed, in an action to quiet title, on the authority of Alcorn v. Gieseke, ante, p. 396. APPEAL from a judgment of the Superior Court of San Joaquin County and from an order refusing a new trial. W. B. Nutter, Judge. The facts are stated in the opinion of the court.

<p>Judgment and order affirmed, in an action to quiet title, on the authority of Alcorn v. Gieseke, ante, p. 396.</p> <p>APPEAL from a judgment of the Superior Court of San Joaquin County and from an order refusing a new trial. W. B. Nutter, 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>

The facts are stated in the opinion of the court. T. J. Weldon, W. D. L. Held, and Arthur J. Thatcher, for Appellant. Held: and Arthur J. Thatcher, for Appellant.

<p>Amendment of Complaint—Right to Amend after Reversal—Discretion.—Upon the reversal on appeal of a judgment for the plaintiffs, their right to amend the complaint is generally a matter of absolute right, and when it is refused the court must be able to say that the complaint cannot be so amended as to state a good cause of action. Notwithstanding this rule, there is always in the granting or refusing to grant leave to amend, the exercise of the discretion of the trial court.</p> <p>Id.,—Amendment when Permissible.—In general, the test as to whether or not the court has abused its discretion will depend upon whether the amendment is a permissible amendment which will perfect a cause of action otherwise imperfectly pleaded.</p> <p>Id.—Facts Contrary to those Testified to on Former Trial.—After a reversal on appeal of a judgment in favor of plaintiffs, it is not an abuse of discretion for the trial court to refuse an amendment to the complaint setting up facts directly contraiy to those testified to by them on the former trial.</p>

<p>APPEAL from an order of the Superior Court of the City and County of San Francisco setting aside an estate of less than fifteen hundred dollars to the widow of the deceased. Thomas F. Graham, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Municipal Corporation—Width of Private Streets—Unreasonable Ordinance.—An ordinance of a municipality, prohibiting the construction of a private way or street, to be used for street and highway purposes, of a less width than fifty feet, when the width of many of the public streets of the city was only forty feet, is unreasonable and an unwarranted interference with the rights of private property.</p> <p>Id.,—Injunction Lies to Bestrain Enforcement of Ordinance.—An owner of land, who was engaged in constructing a private street through his property, of forty feet in width, to connect with a public street of the city of the same width, may maintain an injunction against the municipality to restrain it from enforcing such ordinance.</p> <p>Id.—Expert Testimony of Danger from Use of Street—Common Knowledge.—In an action for such injunction, evidence is not admissible on behalf of the city to show that a forty-foot street with a twenty-four-foot roadway, would be dangerous to the public in case of fire, accidents, and travel. The subject is not one for expert testimony, and common knowledge establishes the contrary.</p>

<p>Appeal prom Default Judgment—Presumptions Supporting Judgment.—On an appeal by the defendant from a default judgment the appellate court must indulge in all reasonable presumptions and intendments in favor of the judgment.</p> <p>Chattel Mortgage as Security—Pledgee May Foreclose.—Where a promissory note and chattel mortgage are given as mere collateral security, the holder of the principal obligation has the right to foreclose the pledge without action upon the principal obligation.</p> <p>Id.—Presumption that Action is Brought by Holder op Principal Obligation.—On an appeal by the mortgagor from a default judgment foreclosing such pledge, rendered in favor of an assignee of the note and mortgage, it will be presumed that the action was brought by the holder of the principal obligation.</p>

<p>Future Estate—Intervention of Precedent Estate not Necessary to Creation.—The rule of the common law against the creation of legal estates to commence m futuro, without the intervention of a precedent estate, has been abolished in this state. The contrary rule is established by section 767 of the Civil Code.</p> <p>Id.—Damages Awarded for Frivolous Appeal.—It being apparent that the appeal in this case was taken solely for the purpose of vexing respondent and clouding his title, damages in the sum of one hundred dollars are awarded respondent against the appellants for prosecuting a frivolous appeal.</p>

<p>Taxes—Assessment of Railroad Property by State Board—Actual Right of Way—Added Lands Not a Part.—Where the actual right of way .of a railroad company consisted only of a continuous strip thirty feet wide, with here and there added lands contiguous to this strip, such added lands formed no part of the right of way, consisting of the “roadway, roadbed, and rails” of a railroad operated in more than one county in the state, assessable by the state board of equalization under section 10 of article XIII of the constitution.</p> <p>Id.—Property Assessable by County Assessor—Added Lands—Side Tracks, Spurs, and Switches—Possible Right of Way Immaterial.—The county assessor properly assessed such added lands, and also side tracks, switches,'spurs, and passing tracks, situated outside of the actual right of way thirty feet in width; and the fact that most of such property fell within a possible right of way permitted to be nine rods in width by subdivision 4 of section 465 of the Civil Code, is immaterial.</p> <p>Id.—Definition of “Right of Way.”—The “right of way” of a railroad company is the continuous strip of land, not exceeding in width the nine rods permitted by law, which the company acquires and uses for the construction and maintenance of its roadbed and railroad track.</p> <p>Id.—Condemnation of Lands—Presumption as to Width—Inapplicability to Assessments. — The rule in a proceeding to condemn lands for a proposed right of way for a railroad, that when its width does not appear, it will be presumed to be intended for the full statutory width, has no application to the respective powers of the state board of equalization and county assessor, in relation to ascertained railroad property.</p> <p>Id.—Constitutional Power of Board of Equalization—Exception to General Bule.—The power of the board of equalization to assess railroad property depends wholly upon the constitutional grant of powers thereto, and constitutes only an express exception to the general rule which requires all property to be assessed locally. It is only where the property comes under the head of “franchise, roadway, roadbed, rails, and rolling-stock” of-a railroad operated in more than one county in this state, that it can be assessed by the state board of equalization. All other property of such a railroad must be assessed locally.</p> <p>Id.—“Bails” Not Including Local "Spur Tracks and Switches.”— Within the general term “rails” is not included local spur tracks and switches, even if they are upon the actual roadway.</p> <p>Id.—General and Local Classification—Necessity of Use for Bail-road Purposes Not a Criterion.—The general and local classification of railroad properly for the purposes of general and local assessment, is made entirely regardless of the question as to the necessity of the use of the property for the purposes of the railroad. The general class contains only such property as may be fairly said to be substantially the same both in quantity and value for the whole length of the road; while in the other it is all such property as may fairly be considered purely local.</p> <p>Id..—Local Assessment—“Nine-Bod Bight of Way”—Assessor Not Estopped.—The fact that the county assessor in the description of the property in some instances assessed the side tracks as being on the “nine-rod right of way,” cannot be regarded as any admission or estoppel against the city. The assessor would have no power to make such an admission or to raise such an estoppel, and such language of description merely would not be held to create an estoppel.</p> <p>Id.—Action to Recover Taxes Paid under Protest.—In an action to recover from the county taxes paid by the plaintiff under protest, upon a lower assessment made by the county assessor, it appearing that the assessment was valid in all respects, the judgment against the plaintiff must be affirmed.</p>

<p>APPEAL from an order of the Superior Court of Sacramento County granting letters of administration, and from an order refusing a new trial. J. W. Hughes, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>APPEAL from an order of the Superior Court of the City and County of San Francisco directing the disposition of certain moneys placed within the control of the Superior Court under section 710 of the Code of Civil Procedure. James M. Troutt, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>APPEAL from an order of the Superior Court of the City and County of San Francisco directing the payment of money levied on under section 710 of the Code of Civil Procedure. Thomas F. Graham, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Municipal Corporations—Two Corporations Exercising Same Functions Cannot Exist in Same Territory.—There cannot be at tho same time, within the same territory, two distinct municipal corporations exercising the same powers, jurisdiction, and privileges.</p> <p>Id..—Annexation to Municipality—Merger op Powers in Municipality.—Where one municipal corporation is annexed to another the annexing city takes over the functions of the annexed municipality, and the latter by virtue of the annexation is extinguished, and its property, powers, and duties are vested in the corporation of which it has become a part. The same result follows, where a public corporation having powers more limited than those of a municipal corporation is annexed to a city which possesses all of the powers of the corporation which has been annexed to it and others in addition.</p> <p>Id.—Authority op Legislature over Municipalities.—In the absence of any constitutional restriction, the legislature has absolute power over the organization, the dissolution, the extent, the powers, and the liabilities of municipal and other public corporations established as agencies of the state for purposes of local government. What shall be the effect of the enlargement or diminution of the boundaries of such corporations, or of the consolidation of two into one, or of the annexation of the territory of one into another, is a question to be answered by a determination of the legislative intent.</p> <p>Id.—Sanitary District Annexed to Municipality—Issuance op Bonds.—The annexation of the territory of a sanitary district organized under the act of 1891 (Stats. 1891, p. 223), to an adjacent municipal corporation having every power conferred upon the sanitary district, operates to extinguish and dissolve the district. Upon the completion of the annexation the powers of the sanitary district and of the district sanitary board ceased, and it thereafter had no power to issue bonds that had been authorized by an election held prior to the annexation.</p> <p>Id.—Municipality Cannot Issue Bonds Authorized by District.— After such annexation, and in the absence of statutory authorization therefor, the municipality to which the sanitary district is annexed, is not authorized to assume the validity of the bond election, and take the further steps necessary to the issuance of the bonds and the construction of the work initiated by the district.</p>

<p>Sanitary District.—Annexation to Municipality.—Judgment reversed on the authority of the Matter of the East Fruitvale Sanitary District, ante, p. 453.</p>

<p>Sanitary District—Annexation to Municipality.—Judgment reversed-on the authority of the Matter of the Mast Fruitvale Sanitary District, ante, p. 453.</p>

<p>APPEAL from a judgment of the Superior Court of Alameda County. John Ellsworth, F. B. Ogden, and T. W. Harris, Judges.</p> <p>The facts involved are similar to those stated in the Matter of the East Fruitvale Sanitary District, ante, p. 453.</p>

<p>Sanitary District—Annexation to Municipality.—Judgment reversed on the authority of the Matter of the East Eruitvale Sanitary District, ante, p. 453.</p>

<p>APPEAL from a judgment of the Superior Court of Alameda County. John Ellsworth, F. B. Ogden, and T. W. Harris, Judges.</p> <p>The facts involved are similar to those stated in the Matter of the East Fruitvale Sanitary District, ante, p. 453.</p>

<p>APPEAL from a judgment of the Superior Court of Alameda County. John Ellsworth, F. B. Ogden, and T. W. Harris, Judges.</p> <p>The facts involved are similar to those stated in the Matter of the East Fruitvale Sanitary District, ante, p. 453.</p>

<p>APPEAL from a judgment of the Superior Court of Alameda County. John Ellsworth, F. B. Ogden, and T. W. Harris, Judges.</p> <p>The facts involved are similar to those stated in the Matter of the East Fruitvale Sanitary District, ante, p. 453.</p>

<p>The facts involved are similar to those stated in the Matter of the East Fruitvale Sanitary District, ante, p. 453.</p> <p>Heller, Powers & Ehrman, and Sydney Sehlesinger, for Appellant.</p>

<p>Appeal—Order for Sale op Perishable Property.—An order, made after final judgment, under section 949 of the Code of Civil Procedure, authorizing the sale of perishable property, notwithstanding a stay of proceedings by virtue of an appeal, is appealable.</p> <p>Id.—Appeal prom Order op Sale—Stay op Proceedings Pending Appeal.—Notwithstanding the statute does not provide for any stay of proceedings upon an appeal from an order for the sale of perishable property made under section 949, and in .ordinary cases no stay should be granted, still when it appears that the lower court has ordered a sale of property as perishable which clearly, and as a matter of law, is not of that nature, or if, as a matter of fact, it is extremely doubtful if it is perishable within the meaning of that section, the supreme court, by virtue of its inherent powers as a court of appeal, has power to order a stay pending such appeal, upon such terms and such security as, in its discretion, it may deem proper.</p> <p>Id.—Sale op Electric Railroad and Franchises—In the present ease, a stay was ordered pending appeal, when the property ordered to be sold as perishable consisted of real estate, an electric railroad with the machinery and rolling stock for its operation, and certain franchises to build and operate it, there not appearing to be any danger of immediate destruction or material deterioration.</p>

<p>Agency—Notice to Principal—Agreement Made by Attorney.—Notice is imputed to a principal of the terms of an agreement made by Ms attorney acting for and on his behalf.</p> <p>Mortgage—Payment—Money Received by Mortgagee eor Mortgagor. —In an action to foreclose a mortgage, the evidence is held sufficient to sustain the findings to the effect that a trust agreement was made on behalf of the plaintiff whereby any moneys received by it from the sale of certain mining properties, over and above other preferred claims, were to be applied in payment of a claim of the defendant, and that sufficient money to pay the defendant’s claim was subsequently received by the plaintiff, which it was equitably bound to apply in payment of the mortgage debt.</p> <p>Id.—Obligation oe Mortgagee to Pay Mortgage Debt.—It is immaterial to the obligation of the plaintiff to pay the defendants’ claim out of the surplus funds that came into its hands, that such surplus did not come to it directly from the trustees under the agreement.</p>

<p>Trust—Separate Property op Wipe Invested by Husband—Accounting—Personal Judgment—Pleading.—In an action by a wife against her husband to impress a trust in her favor upon certain property purchased with her money and standing in his name, so far as it could be traced, to obtain an accounting from the defendant, as trustee, as to the disposition of money intrusted to him for investment, and the income and profits thereof, and a judgment for the amount of money intrusted to him and not identified and traced to specific property, an allegation in the complaint, which was otherwise sufficient to charge the defendant as such trustee, to the effect that a large amount of money was due the plaintiff from the defendant, was sufficient to authorize the rendition of a personal judgment against him.</p> <p>Id,—Prayer of Complaint.—In such action, a prayer “for the recovery of such sums of money as may be in the hands of the defendant,” is sufficient to authorize a personal judgment. A prayer for general relief would have sufficed.</p> <p>Id.—Answer—Extent of Relief Allowable.—Where an answer is filed to a complaint, the court may go beyopd the prayer of the complaint and grant the plaintiff any relief consistent with the case made by the complaint and embraced within the issues.</p> <p>Id.—Form of Judgment in Action for Accounting.—In an action at law for an accounting, it is the proper practice to give a personal judgment for the balance of money found to be due the plaintiff after such accounting is had. In equity, a personal judgment might be rendered, if a more specific remedy were not practicable.</p> <p>Id.—Tracing Trust Funds—Impressing Trust on Specific Property —Personal Judgment for Funds not Traceable.—The plaintiff, upon alleging the trust relation, the receipt of trust funds, and the failure to account, had the right to recover in one action the specific property into which a portion of the fund is traced, and a personal judgment for the remainder which cannot be identified. The plaintiff, however, cannot have a judgment declaring the defendant a trustee of specific property bought with trust funds, and decreeing such property to be the property of the plaintiff, and also a personal judgment for the money invested by the defendant in that property.</p> <p>Id.—Possession of Wife’s Property—Intent to Make Gift—Conversion into Community Property—Proof of Gift.—The mere acquirement of the possession of the wife’s separate property by the husband, and his subsequent management and control of it, with her consent, do not necessarily show an intent on her part to make a gift thereof to the husband, or to change its status to community property. Such facts, without explanation, raise a presumption that it continues to be her separate property, and that the husband takes it in trust for her. It devolves on the husband, who claims that it is a gift or loan, to prove the fact, which may be done by a showing of the nature of the transaction and the circumstances as well as by proof of an express agreement. There is nothing in sections 2221 and 2222 of the Civil Code, defining the circumstances under which a voluntary trust is created, that changes or affects this rule.</p> <p>Id.—Agreement to Invest Establishes Express Trust.—Where a wife commits money of her separate estate to the custody and control of her husband, upon Ms agreement that he will keep it for her and invest it for her use in his own name, the trust established by the transaction is an express trust.</p> <p>Id.—Evidence and Finding Negativing Gift or Conversion.—In the present case, the appellate court cannot say that the evidence was of such a character as to compel the conclusion that the money received by the defendant from his wife was a gift, loan, or contribution made by her to the community estate, and the finding of the court to the contrary is sustained.</p> <p>Id.—Sufficiency of Evidence—Appeal.—In such ease, the question whether the proof is sufficiently strong and convincing to establish a parol trust is primarily addressed to the trial court, and the appellate court must accept its determination as conclusive.</p> <p>Id.—Commingling Trust “Fund with Community Property.—The fact that the trust money was in part commingled with the community property so as to destroy its specific identity does not necessarily destroy the trust as to that part, nor prevent its enforcement. It prevents the court from tracing it and declaring any specific parcel of property to be trust property, but the trust may still be enforced by a personal judgment against the husband for the amount of money not traceable into specific parcels.</p> <p>Id.—Trust not Destroyed by Commingling.—Such commingling and loss of identity does not destroy the trust by converting the separate property into community property. It may be a circumstance tending to prove an agreement to convert it, but when the trial court, from all the circumstances, has found against the existence of any such agreement, the appellate court is bound by such conclusion.</p> <p>Id.—Statute of Limitations—Repudiation of Trust.—The trust to invest, the wife’s money being an express trust of a continuing character, the statute of limitations did not begin to run in favor of the husband until there had been a repudiation of the trust by him, or some act by him which amounted to a violation of the trust.</p> <p>Id.—Laches.—It being apparent in the present case, that no legal prejudice will be caused to the defendant by reason of the delay in the commencement of the action, nor by reason of a just enforcement of the trust, there is no ground for the application of the doctrine of laches.</p> <p>Id.—Interest, When Allowable—Accounting.—A charge of compound interest, or simple interest, is authorized against a trustee where the transactions are of such a nature that it is extremely difficult or impracticable to ascertain with any degree of certainty what profit was realized from the trust fund. It is not made for the purpose of punishing the trustee, but to enforce the principle of ‘ equity that the trustee shall not be permitted to make any profit from the unauthorized use of the trust funds. The question whether any .interest should be charged, and if any, how much, depends on the circumstances of the particular case, and they may be such that a mere restoration of the property, or its value, without any interest, would be all that justice would require.</p> <p>Id.—Failure to Keep Accounts.—Where the trastee has, in fact, prudently invested and managed the trust funds, although mingled and eonfused with his own money, the rule that he is to be charged with interest thereon upon an accounting rests principally, if not entirely, on his neglect in failing to keep accurate accounts and on the fact that by his neglect the actual profits realized have been made difficult to ascertain.</p> <p>Id.—Interest, When Not Allowable—Commingling With Approval of Beneficiary.—When the trustee, notwithstanding his failure to keep the trust funds separate from his own, is able to show that the mingled fund was well managed and wisely invested and what the profits are, or that the profits actually made do not exceed a certain amount, all the reasons for imposing a charge of interest exceeding such profits are wanting, and justice requires that the charge be limited to the equivalent of the gains actually made. This rule is particularly applicable, where the commingling of the trust funds was made with the consent and approval of the beneficiary, even if the beneficiary did not know that the trustee was not keeping a separate account of the trust funds.</p> <p>Id.—Belief Allowable in Present Case.—Under the facts shown in the present case, the wife is entitled to recover only a sum equal to such proportion of the value of the property held by her husband at the time the suit was begun, as the money which she contributed to the purchase price thereof bears to the whole purchase price. If relief could be given by allotting to her such proportionate interest in the property itself, perhaps that method would be preferable. If that cannot conveniently be done, then she should be given a personal judgment for that proportion of its present value, and for nothing more.</p> <p>Id.—Purchase of Land Partly With Trust Funds—Besulting Trust.—Payment by the husband of a part of the price of real property purchased by him with money, of the wife held in trust by him, was the same, in legal effect, as between the parties, as a payment by her. It created a resulting trust in her favor for an interest which equaled her proportion of the price.</p> <p>Id.—Duty of Husband to Maintain Wife.—The law imposes upon a husband the duty to maintain his wife. This means that it is his duty to furnish her money to pay such of the living expenses as he leaves it to her to look after, or to pay them himself. In the absence of evidence showing the fund from which he paid them, it will be presumed to be of community funds, rather than from his separate estate. Her separate property, acquired by devise or succession, will not be resorted to, even for her support, except where the community property fails, and he refuses to pay or supply from his separate estate. But she may consent to the use of her own separate estate, and if so, it should be charged to her accordingly.</p>

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

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

<p>Negligence—Explosion of Gas—Special Interrogatories for Jury— Proximate Cause.—In an action against a gas company to recover damages caused by an explosion of gas, it is not error to refuse to submit to the jury a special interrogatory as to whether or not a particular cause was the sole proximate cause of the explosion, where the interrogatory “What was the proximate cause of the explosion?” was submitted to them, and they answered it, “Escaping gas through negligence of the defendant.”</p> <p>Id.—What Constitutes Proximate Cause—Independent Wrongful Act.—An independent wrongful act, to constitute the proximate cause of an injury, by displacing the original primary cause, must be so disconnected in time and nature as to make it plain that the damage occasioned was in no way a natural or probable consequence of the original wrongful act or omission. -,</p> <p>Id.—Original Act of Negligence.—The original act of negligence, the primary causation, may be in its nature so continuous that the concurrent wrongful act precipitating the disaster will in law be regarded not as independent, but as conjoined with the original act to create the disastrous result.</p> <p>Id.—Joint Negligent Act Causing Explosion.—Where an explosion of gas causing damage to a patron of a restaurant results from the joint negligence of the gas company in discovering and repairing a leak in its pipes, and of the restaurateur in bringing a light in contact with the gas, whereby it explodes, the person damaged may recover from either or both at his election. Each is and both are the proximate cause of the injury.</p> <p>Id.—Measure of Damages—Instructions—Suffering “Because of” Injury.—In an action to recover damages for personal injuries caused by negligence of the defendant, an instruction on the subject of the measure of damages, to the effect that the plaintiff might recover for the “physical and mental suffering he has sustained tecause of the injury,” is not rendered erroneous from the use of the phrase “because of,” instead of the phrase “caused by” the injury.</p> <p>Id.—Mental Suffering not Confined to Physical Pain.—In such an action, the grief, anxiety, worry, mortification, and humiliation which the injured party suffers by reason of his physical injuries are component parts of the “mental suffering” for which damages may be awarded. The “mental suffering” for which a recovery may be had is not limited to that form of mental suffering described as physical pain.</p>

<p>The facts are stated in the opinion of the court.</p> <p>Wm. B. Bosley, J. P. Coghlan, and L. T. Hatfield, for Appellant.</p> <p>W. E. Kleinsorge, C. E. McLaughlin, and R. T. McKisick, for Respondents.</p>

<p>Sale—Executed Contract—Payment against Shipping Beceipts— Present Transfer.—In determining whether or not an agreement was an executed contract of sale, the mere fact that payment for the property was expressly deferred to the time of shipment, and was to be made only as against shipping receipts, does not exclusively establish that the purchase was against shipping receipts only, or that there was no agreement for a present transfer of the property.</p> <p>Id.—Title When Passes under Sale.—Under section 1140 of the Civil Code, the title to personal property, sold or exchanged, passes to the buyer whenever the parties agree upon a present transfer, and the thing itself is identified, whether it is separated from other things or not.</p> <p>Id.—Payment or Delivery Not Essential..—Whenever the terms of sale are agreed to, and the bargain is struck, and everything that the seller has to do with the goods is complete, the contract of sale becomes absolute, without actual payment or delivery, and the property and risk of accident to the goods vest in the buyer.</p> <p>Id.—Trade Meaning of Expression Controlled by Contract.—Whatever may be the general trade meaning of the phrase “payable against shipping receipts,” or “payable when shipped,” or “payable f. o. b.,” such trade or commercial meaning is always controlled by the express contract of the parties.</p> <p>Id.—Evidence Shows Executed Sale—Deferred Payment of Price.— In the present case, the evidence is reviewed and held to support the finding that the agreement in question amounted to an executed sale of certain barley, which remained at the risk of the buyer from the time of the sale, although payments therefor were to be made when the barley was shipped.</p> <p>Id.—Purchase by Agent Having General Authority.—A seller, in dealing with an agent of a purchaser having general authority to buy grain; is not affected by any limitation upon the authority of the agent not communicated to him.</p> <p>Id.—Subsequent Instructions to Agent.—No instructions from the purchaser to his agent, after the completion of the sale, could have any effect upon the rights of the seller.</p>

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

<p>APPLICATION for a Writ of Prohibition directed to the Superior Court of thé City and County of San Francisco. F. J. Murasky, Judge.</p> <p>The facts are stated in the opinion of the court.</p> <p>John P. Allen, Edward Laude, M. B. Woodworth, and John J. Gallagher, for Petitioner.</p>

MOTION to strike out a memorandum of costs, and to retax costs in a proceeding in mandamus originally begun in the Supreme Court. The facts are stated in the opinion of the court.

On the twentieth day of October, 1910, the supreme court in Bank made an order denying the writ. Thereafter, on the twelfth day of November, 1910, Beatty, C. J., filed the following opinion, in which the facts are stated. Austin Lewis, R. M. Royce, and George F. Snyder, for Petitioner.

<p>Injunction—Agreement between Employers for Hospital Dues from Employees—Fees Payable to Selected Hospital—Monopoly.—An agreement between seven companies, all of which were engaged in lumbering and milling in the same county, whereby, for their own protection and for the betterment of the condition of their employees, they required of them, as a condition of obtaining employment or of remaining in employment, that they should assent to a deduction of a specified amount from their monthly wages, to be given to a hospital of the employee’s own selection taken from a list • of four presented, but which did not prohibit the employees from patronizing any other hospital, is not unlawful, and will not be enjoined at the instance of a hospital which was not included among those on the list. There was no element of monopoly in such agreement.</p> <p>¡Ed.—Evil Motive Does Not Bender Lawful Act Illegal.—If the purpose of the defendants in entering into such agreement were to injure the business of the plaintiff, unless they adopted illegal means to that end, their conduct did not render them amenable to the law, for an evil motive which may inspire the doing of an act not unlawful will not of itself make the act unlawful.</p> <p>Id.—Compliance with Hospital Begulation Matter of Contract.— The refusal of the companies to employ or to retain in their employ any one unwilling to comply with their hospital regulation was purely a matter between employer and employee.</p> <p>Id.—Bight of Employer to Impose Conditions on Employment.—In the absence of a contract between them to the contrary, it is the unquestioned right of an employee to leave the employment at his pleasure, and it is equally the right of the employer to discharge at his pleasure, or to impose conditions upon the retention of the employee in his employment.</p>

<p>APPEAL from a judgment of the Superior Court of Fresno County and from an order refusing a new trial. H. Z. Austin, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

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

<p>Electric Lighting Company—Obligation to Shut ofp Current in Case op Fire—Negligence.—An electric light and power company, under contract to supply, and engaged in the business of supplying, light and power to a municipality and private users, and whose distributing system was so arranged that the effect of shutting off the current would leave a large portion of the city without electricity, was not under obligation, during the night-time, merely because it had acquired information that a fire had started somewhere within one of the fire districts into which the city was divided, to shut off the electric current supplying that portion of the city in which the fire was situated.</p> <p>Id.—Extent op Obligation.—The utmost that can be exacted of electric lighting companies in such regard is that they shall hold themselves in readiness to cut off the electricity when the necessity arises and they are informed of it by proper authority.</p> <p>Id.—Failure to Have Employee at Fire.—In the absence of an ordinance imposing the duty, negligence is not imputable to an electric lighting company because it did not have an employee at the ¿ire, charged with the duty of disconnecting particular wires, or signaling for the disconnection of the district.</p> <p>Id.—Presence op Employee at Fire as Onlooker..—The fact that employees of the lighting company were at the fire merely as onlookers, and observed the fact that wires connected with the burning building were charged with electricity, but did nothing, cannot be imputed as negligence of the company.</p> <p>Id.—Fireman Enters Building as Licensee—Owner Not Obligated to Furnish Sape Place.—In the absence of ordinance or statute changing the common-law rule, a fireman entering a building under imperative public necessity is but a licensee, who assumes the risks as he finds them, and to whom the owner of the premises owes no special duty to maintain the premises in a safe condition.</p> <p>Id.—Duty op Company to Make Save Installation in Building.—An electric light or power company, using a building as a means of transmitting into or over it power in dangerous quantities would not necessarily be exonerated in all cases where the owner is exonerated. Dereliction of duty might be charged, and consequent liability might be imposed upon the electric company, if, after knowledge of the dangerous condition, it failed promptly to remedy it.</p> <p>Id.—Killing of Bireman by Electric Current.—The mere fact of the killing of a fireman, while engaged in putting out a fire in a private building, by coming in contact with a live wire which had fallen from the building and was lying in the lot on which it was situated, is not in itself sufficient to impute negligence to the electric lighting, company.</p> <p>Id.—Action to Recover for Death of Bireman.—Evidence of Arrangement between City and Company.—In an action against the electric lighting company to recover for the death of such fireman, on the theory that it was negligent in not shutting off the electric current upon receiving information of the fire, evidence is admissible on behalf of the defendant, of an arrangement between the company and the municipality, even if, it did not have the effect of a municipal by-law, providing for the shutting off of the current, in ease of fires, at the request of the fire department or city electrician.</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>Change of Name—Disqualification of Judge—Order Fixing Time for Hearing—Regulation of Court Business.—A judge of the superior court, who is disqualified by reason of interest, under section 170 of the Code of Civil Procedure, to sit or act in a proceeding by a corporation for a change of its name, may make the order prescribed by section 1277 of that code, fixing the time of hearing the application and directing the giving of the requisite notice. Such action on the part of the disqualified judge relates solely to the arrangement of the calendar and the regulation of the order of business, within the meaning of the exception contained in section 170.</p> <p>Id.—Sufficiency of Publication for Four Successive Weeks.—Where the petition for the change of name was filed on July 27, 1909, and the hearing set for August 24, 1909, a publication of a copy of the order in a newspaper on every day except Sunday from and including July 27, 1909, to and including August 23, 1909, is a compliance with the provisions of section 1277 of the Code of Civil Procedure, requiring such publication for four successive weeks.</p> <p>Id.—Time of Publication How Computed.—In estimating the period of such publication, section 12 of the Code of Civil Procedure, providing for the exclusion of the first day and the inclusion of the last, is applicable.</p> <p>Id.—Transfer from One Department of Superior Court to Another. —Under section 170 of the Code of Civil Procedure, in counties where there is more than one judge of the superior court, a disqualified judge may transfer the matter in which he is disqualified from his department to another department of the same court for hearing, instead of to the superior court of another county.n The provision of section 398 of that code, relating to a change to another county, is applicable only when all the judges of the county are disqualified, and when, as specified in subdivision 4 of section 397 of that code, there is no judge of the court qualified to act.</p> <p>Id.—Hearing Contrary to Bule of Court—Notice of Trial.—The immediate hearing of the application for a change of name, by the judge to whom the matter had been transferred, in contravention of a rule of court requiring five days’ notice of trial, did not affect the jurisdiction, and in the present case the appellants’ rights appear not to have been prejudiced thereby.</p> <p>Id.—Findings not Bequired in Change of Name Proceedings.—In a proceeding for change of name, formal findings of fact are not required. If such findings were essential, the recital in the order making the change should be taken as constituting such findings.</p> <p>Id.—Allegation Showing Season for Change—Trust and Savings Bank.,—In a petition by the “Los Angeles Trust Company,” to change its name to the “Los Angeles Trust and Savings Bank,” an allegation that as the applicant proposed to conduct a savings bank department as well as a trust department, it believed that it would be to its advantage to have its name indicate that fact, for the better information of its customers and the general public, is a sufficient compliance with section 1276 of the Code of Civil Procedure, requiring the petition to specify the reasons for the change of name.</p> <p>Id.—Sufficiency of Beason for Change.—Such reason was sufficient to warrant the court in granting the application, unless there was reasonable ground for concluding that the proposed name so closely resembled the name of an objecting corporation that its adoption by the applicant would tend to deceive the public as to the identity' of the two corporations, with resulting injury to the one objecting.</p> <p>Id.—Name Distinguishing Corporation from Another Savings Bank. —The presence of the word “Trust” in the proposed name of the applicant, which for a period of seven years had been a part of its name, is sufficient to characterize and distinguish it from another corporation named the “Los Angeles Savings Bank,” which had practically gone out of the savings bank business. This would be the result, even if the latter corporation should subsequently resume such business.</p> <p>Id.—Certificate of Secretary of State—Declarations not Admissible to Impeach.—On the hearing of the petition for change, after the applicant, in pursuance of section 1278 of the Code of Civil Procedure, had filed in court the certificate of the secretary of state that the name desired to be used by the applicant is not the corporate name of any corporation existing at said time, and does not so closely resemble the name of any such existing corporation as will tend to deceive, evidence of declarations made by the secretary of state as to his understanding when he issued the certificate are inadmissible to impeach it.</p>

<p>The facts are stated in the opinion of the court.</p> <p>U. S. Webb, Attorney-General, Malcolm C. Glenn, Deputy Attorney-General, and R. C. Van Fleet, for Appellant.</p>

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

<p>APPEALS from judgments of the Superior Court of Fresno ' County, and from orders refusing new trials. H. Z. Austin, Judge.</p> <p>The facts are stated in the opinion of the court.</p> <p>Houghton & Houghton, Frank H. Short, and Edward F. Treadwell, for Appellants.</p> <p>L. L. Cory, W. S. Goodfellow, and Goodfellow, Bells & Orrick, for Respondents.</p>

<p>The facts are stated in the opinion of the court.</p> <p>Crawford & Crawford, and Hannon & Hannon, for Appellant.</p>

<p>Deed—Inconsistent Description —■ Ambiguity — Uncertainty—Evidence.—Where a deed on its face contains two inconsistent descriptions either of which would identify a different piece of property from that described by the other, there is disclosed a patent ambiguity which, as a general rule, parol evidence is not admissible to remove and the instrument is void for uncertainty.</p> <p>Id.—Construction of Description.—Whether the description is uncertain or not is to be determined from an inspection of the entire deed, and in considering it the construction to be put upon it must not only be a reasonable one, but such as will give effect to the deed rather than defeat it.</p> <p>Id.—Rejection op False Calls.—If from the description in the deed, taking into consideration all its calls, it is possible by rejecting calls which are apparently false to ascertain its application to a particular tract of land as embraced within the description, the false call will be rejected and the deed sustained.</p> <p>Ib.—Land Described as Having House Thereon.—A reference in a description in a deed to a house as situated on the lot conveyed is a part of the description, and may be sufficient to control a false call in the description and identify the lot intended to be conveyed.</p> <p>Id.—Part op Lot—Measurements Including Entire Lot.—While a call in a deed for a “part of a lot” is in itself an indefinite call, if it is followed by a reference to measurements which are sufficient to describe and embrace the entire tract according to the map referred to, the indefinite description must give way to the definite one, and if the latter is sufficient to embrace the entire lot according to its boundaries on the map it must control and be given effect.</p> <p>Id.—False Description op Lot as Being on Corner.—Where a deed describes the land conveyed as “being part of lot ten of block ‘V’ of the Mott tract, the same being the lot on the corner” of certain designated streets, “being sixty-five feet front by one hundred and sixty-five feet deep and a two-story frame house situate thereon,” and the evidence showed that lot ten was situated sixty feet from the corner referred to, and was the only lot in the vicinity of that corner having a house thereon, the recital that the lot was on the corner will be rejected as a false call, and the fact that such a house was on lot ten will identify it as the lot intended to be conveyed.</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>D. M. Delmas, T. C. Coogan, H. C. McPike, and C. W. Cross, for Appellant.</p> <p>U. S. Webb, Attorney-General, W. H. Langdon, District Attorney, Francis J. Heney, Assistant District Attorney, John O’Gara, Assistant District Attorney, and Wm. Hoff Cook, Assistant District Attorney, for Respondent.</p>

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

MOTION to strike out certain matters from a transcript on appeal and to dismiss appeals from an order of the Superi- or Court of Los Angeles County refusing a new trial, from an order refusing a motion to vacate the judgment, and from an order refusing to settle a bill of exceptions. W. P. James, Judge. The facts are stated in the opinion of the court.

<p>Taxation — Description by Congressional Sections — Absence of Survey.—Under section 3650 of the Political Code, the descriptions in assessments of land included within the exterior limits of a Mexican grant containing upwards of six thousand acres, which, after giving the name of the ranch, merely describes the property assessed as “being fractional section 24, T. 1 N. R. 14 W.,” and “fractional section 25, T. 1 N. R. 14 W.,” are insufficient to identify the property assessed when no survey of the land into congressional sections had ever been made.</p> <p>Id.—Map Attached to Patent—Insufficient Identification of Sections.—A map and profile of the Mexican grant attached to the United States patent therefor, on which the only lines of survey marked thereon were the base line, a line marking the southerly boundary of sections 13 and 14, a line extending southerly from the southerly line of said sections along the westerly line of the rancho to a point at and below the southerly limit, and the township line extending north and south dividing township 13 west from township 14 west, without any lines marked or corners appearing thereon indicating any survey of east and west lines through any of the territory lying between the base line and the southerly line of sections 13 and 14, is not a survey into congressional sections, within the meaning of the act of Congress of July 23, 1866, sufficient to identify the land intended to be assessed as fractional sections 24 and 25.</p> <p>Id.—Division of Township into Sections.—After a principal meridian and base line have been established and the exterior lines of the township have been surveyed, neither the sections nor their subdivisions can be said to have any existence until the township is divided into sections and quarter sections by an approved survey. The tract has no separate legal identity until the survey is made and approved under the authority of Congress.</p> <p>Id.—Assessor’s Map — Arbitrary Section Line—Insufficient Evidence of Identity.—A map prepared for the assessor under the provisions of section 3658 of the Political Code, on which the section and fractional section lines purported to be drawn, but which lines were not shown to have been located by any actual survey, and to have been merely arbitrarily drawn on paper by the compiler of the map, is not competent evidence aliunde from which the identity of the land assessed could be determined.</p> <p>Id.—Tax Title—Adverse Possession.—As against a purchaser from the state of land acquired by it under a valid sale for delinquent taxes, a title by adverse possession cannot be acquired until the expiration of five years from the date of the sale to the state.</p> <p>Id.—Tax-Sale—Delay in Publishing Delinquent List.—Under section 3885 of the Political Code a tax-sale is not rendered invalid by reason of the publication of the delinquent tax-list on a day succeeding the time when the publication is required by section 3764 of that code, nor by the fact that the statement attached to the published delinquent list had no affidavit attached showing its verification.</p> <p>Id.—Deed from State—Tax-Collector May Execute.—A deed from the state for lands sold to it for delinquent taxes, executed by the tax-collector as the agent for the state, is not in violation of section 14 of article V of the constitution.</p>

<p>Street Assessment—Sidewalk Laid on Opposite Side op Street— Walk Already Laid by Owner Opposite His Land.—Land abutting ■upon a public street in a city, in front of which the owner had constructed at his own expense a sidewalk in pursuance of permission from the city council and to the satisfaction of the street superintendent, is not liable to an assessment, under the street improvement act commonly known as the “Vrooman Act” (Stats. 1891, p. 201), for the cost of a sidewalk subsequently laid by the city opposite such land on the other side of the street.</p> <p>Id.—Law of Case—Additional Facts on Subsequent Appeal.—In an action to enforce the lien of such an assessment, a decision on a prior appeal merely to the effect that lots on one side of a street could be lawfully assessed to pay the cost of a sidewalk laid on the opposite side, where it is not shown that a sidewalk had been already laid in front of such lots at the time the proceeding for the walk on the opposite side was begun, is not the law of the ease on a subsequent appeal, except in so far as the facts are the same. The prior decision is not a conclusive adjudication as to the validity of the assessment on the subsequent appeal if the additional fact is then shown that the sidewalk ha°d been already constructed when the proceeding for the work on the opposite side was begun.</p> <p>Id.—Law of Case Does Not Include Obiter Dicta.—The doctrine of the law of the case only extends to points presented by the record on the prior appeal, and does not extend to mere obiter dieta contained in the prior opinion, although based upon a fact asserted and a point argued by counsel.</p>

<p>Street Assessment—Sidewalk.—Judgment affirmed on the authority oí Mittsap V. Balfour, ante, p. 711.</p>

<p>Will.—Devise to Trustees—Sale by Trustees under Power without Order op Court — Title Passes Subject to Administration.— Where land is devised by will to trustees, with a valid power to sell and apply the proceeds to certain valid trusts, the legal title vests' in them, and they have power t,o convey that title, subject to administration, without obtaining a prior order of the court in probate authorizing the conveyance. The fact that the deed from the trustees erroneously recites that it was made in pursuance of an order of court would not prevent the legal title from passing to the grantee, subject to administration.</p> <p>Id.—Grantees Pending Administration—Adverse Possession against Estate.—Neither a devisee of real property nor his grantee entering into possession by virtue of title actually or eolorably derived from the estate, and asserting title from no other independent source, can acquire a title against the estate by adverse possession so as to relieve the property from the statutory requirement that it shall be subject to the demands of administration.</p>

<p>Contract—Agreement to Equalize Advances—Abrogation ot Contract—Evidence.—In an action to recover a balance claimed to be due for money paid by plaintiff for the defendant in the development of certain mining property, in pursuance of a contract whereby the parties agreed to equalize as between themselves the advances made by either for such purpose, it is held, upon a review of the evidence, that the defendant had abrogated the contract on a specified date, as he had a right to do, and that the plaintiff was not entitled to recover for advances subsequently made, in the absence of evidence showing such advances to have been made on account of obligations incurred or uncompleted transactions undertaken prior to the defendant’s abrogation of the contract.</p>

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

<p>Estates op Deceased Persons—Recitals in Orders—Jurisdictional Facts.-—Orders in probate proceedings need not recite the existence of the facts upon which jurisdiction to make them depend.</p> <p>Jd.—Discontinuance op Family Allowance — Appealable Order— Collateral Attack.—An order discontinuing a family allowance previously ordered to be paid to a widow is appealable, and an attack made upon such order after it became final, on the settlement of the final account of the administratrix of the estate, is a collateral attack.</p> <p>Id.—Presumption op Jurisdiction to Make Order.—Upon such a collateral attack, the jurisdiction of the court to make the order discontinuing the family allowance is presumed, unless the contrary appears from the record.</p> <p>Id.—Appeal—Presumption op Diving op Notice.—On an appeal from an order settling the final accounts of an administratrix, and disallowing payments made for family allowance subsequent to an order discontinuing it, it will be presumed, in the absence of a contrary showing in the record, that the order of discontinuance was valid and binding, and made after the necessary notice had been given.</p>

<p>Municipal Corporations—Regulation op Laying Sewers in Streets. —Under section 11 of article XI of the state constitution, a municipality has the power to regulate the right of laying sewers in the public streets.</p> <p>Id.—Police Power—Construction op Streets.—Ordinances of a municipal corporation providing for the construction, maintenance, and repairs of sewers and drains are sustainable as a valid exercise of the police power, and the power to construct them is also incident to the power to construct and maintain streets.</p> <p>Id.—City op Sixth Class—Connecting with Publio Sewer.—Under paragraph 862 of the Municipal Corporation Act, a city of the sixth class has power to “construct, establish and maintain drains and sewers.” Such power includes the power to provide reasonable regulations for the tapping and connection with the sewers.</p> <p>Id.—Fee for Making Connection—Five Dollars’ Charge is Reasonable.—Such municipality may exact as a condition to connecting his property with the public sewer the payment by the owner of a reasonable charge into the sewer fund. A charge of five dollars is not unreasonable.</p> <p>Id.—Presumption that Sewer Fund Is Properly Expended.—In the absence of a showing as to the use to which the fee is made applicable, it will be presumed that the sewer fund is lawfully expended for the benefit of such owner’s property, as well as in the interest of other realty owners within this city.</p> <p>Id.—City May Reserve Right to Connect with Sewers—Uniform Charge.—The municipality has the power, by ordinance, to reserve to itself the exclusive privilege of building the lateral sewer from the owner’s property-line to the public sewer and to make a uniform charge therefor. The fact that some lots are nearer to the sewer than others, and that, therefore, the expense to the city is not the same in every case, does not in itself make the ordinance so unreasonable as to be void. A charge for doing such work of twenty dollars is not unreasonable.</p>

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

<p>Deed of Gift—Finding—Evidence Sustaining Delivery.—In an action by the alleged grantees of land under a deed of gift that had never been acknowledged or, recorded, to establish their ownership of the land and to prove the deed so as to entitle it to be recorded, a finding that the deed had been delivered to the grantees, which was based upon the direct evidence of one of the grantees to that efleet, will not be disturbed on appeal, notwithstanding evidence showing the continuance of the grantor’s residence on the premises, his payment of taxes, the failure of the grantee to list the property as his for purposes of taxation, the want of any transfer or request for a transfer of insurance, and the declaration oí the grantee to whom the alleged delivery" was made that he never knew of the deed until after the grantor’s death.</p> <p>Id.—Delivery how Made—Intent.:—A valid delivery of a deed is accomplished when the conduct and acts of a grantor manifest a present intent to dispose of the title conveyed by the deed. No particular form of delivery is necessary, but any act or thing which manifests such an intent is sufficient to establish it. It is always a question of fact, and must be determined by the circumstances surrounding each transaction.</p> <p>Id.—Manual Tradition—Intent to Pass Title.—To constitute delivery, manual tradition of the instrument is not enough; the transfer of possession must be with the intent of presently passing title, and must not be hampered by the reservation of any right of revocation or recall.</p> <p>Id.—Proving Deed neither Acknowledged nor Witnessed.—A deed, although it is neither acknowledged nor witnessed, is an instrument entitled to be proved for record, within the meaning of section 1203 of the Civil Code.</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>Street Assessment—Valid Contract—Damage by Contractor-Publication.—Held, in this case the same questions are involved a» in the ease of Gay v. Engebretsen, (L. A. No. 2455), ante, p. 21, [109 Pae. 876] > and the judgment in this case is affirmed on the authority of that ease.</p>

<p>APPEAL from a judgment of the Superior Court of San Diego County. W. R. Guy, Judge.</p> <p>The facts are the same as those involved in L. A. No. 2455, ante, p. 21.</p>