Volume 159 — California Reports

'APPLICATION for Writ of Prohibition to restrain the further prosecution of two actions in the Superior Court of Nevada County. George L. Jones, Judge. The facts are stated in the opinion of the court.

<p>The facts are stated in the opinion of the court.</p> <p>Aynesworth & Sprouse, S. J. Hinds, and Henry Brickley, for Appellant.</p>

<p>Estates op Deceased Persons—New Trial when Authorized—Issues of Pact.—Under the law of this state, as it now stands, a motion for a new trial of any issue of fact actually made and determined in any proceeding in probate will lie when the law expressly authorizes issues of fact to be framed in such proceeding, and the provisions authorizing written objections on the part of persons interested in the estate and providing for the hearing and determination of those objections do expressly authorize issues of fact to be framed.</p> <p>Id.—Issues of Pact on Distribution—New Trial Authorized.—Section 1668 of the Code of Civil Procedure, as amended in 1907, expressly authorizes the framing of issues of fact in a proceeding for final distribution of the estate of a deceased person, by the filing of written objections to the petition for distribution, and a motion for a new trial in such proceeding is authorized.</p> <p>Id.—Conclusiveness of Decree—Collateral Attack.—The provision of section 1666 of that code, that “such order or decree [of distribution] is conclusive as to the rights of heirs, legatees, or devisees, subject only to be reversed, set aside or modified on appeal,” is only intended to make such decree final and conclusive as against collateral attack, and not as expressly excluding any remedy except direct appeal from the order or decree.</p> <p>Id.—Inconsistent Petitions for Distribution — Different Persons Claiming to be Sole Heirs.—Where a petition is filed for the distribution of the estate of an intestate to persons alleged to be the sole heirs of the deceased, and thereafter, without formally answering such petition and denying its allegations of heirship, other persons file similar petitions claiming to be the sole heirs, issues of fact on the question of heirship are thereby created, the determinations of which by the trial court are subject to be reviewed on motion for a new trial.</p>

<p>Justice Court—Action on Note—Defense Involving Title or Possession of Real Property—Transfer to Superior Court.—Where an action is properly commenced in a justice’s court on a promissory note, and the defendant files a verified answer setting up that the note was given in consideration of the sale of a half interest in a pumping plant situated upon a described tract of land and a like interest in a pipe-line extending from said pumping plant to defendant’s premises, and that the consideration for the note had wholly failed for the reason that the plaintiff did not own or possess the half interest, an issue is raised involving a question of the title or possession of real property, within the meaning of section 838 of the Code of Civil Procedure, requiring the justice to certify the pleadings to the superior court.</p> <p>Id.—Jurisdiction of Superior Court—Finding against Defense.—The jurisdiction of the superior court to hear and determine such action is not ousted by reason of the fact that it found against the defendant on such defense.</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>Estate of Deceased Person—Agent for Non-Besident Distributees— Appointment After Distribution.—Under section 1691 of the Code of Civil Procedure, the power of the former probate court, or of the present superior court, to appoint agents for non-resident distributees, to take possession of their distributive shares, neither was nor is limited to orders therefor made prior to the decree of distribution. That section authorizes the appointment of such agent after such decree, upon a showing of the necessity therefor.</p> <p>Id.—Court Need Not Inquire as to Besidence of Distributees.—It is not the duty of the court, under section 1666 of the Code of Civil Procedure, in making the decree of distribution, to enter into any investigation as to whether a distributee is or is not a resident of the state, or if a non-resident, whether he has or has not an agent here. Whether he is a resident or not only becomes of real importance after the distribution is made, and is then only important in so far as it may affect the closing of the administration of the estate.</p> <p>Id.—Necessity Authorizing Appointment of Agent.;—The necessity for the appointment of an agent for a non-resident distributee proceeds from the fact that the executor or administrator cannot have the estate closed and obtain a final discharge and release of his sureties until the entire estate is turned over to the distributees and their receipts therefor presented to the court. It is to accomplish this purpose that the “necessity” for the appointment of an agent arises, and could generally only arise after distribution, and upon the failure of such distributee to receive and receipt for his share.</p> <p>Id.—Validity op Order—Appointment of Assignee op Distributee.— The validity of an order appointing an agent for a non-resident distributee is not affected by the fact that the same person was by such order appointed as agent for an assignee of such distributee. If the court had no jurisdiction to appoint an agent for the assignee, the order would still be valid as an appointment of an agent for the distributee.</p> <p>Id.—Jurisdiction to Make Appointment—Distributee Need Not be Named in Order—Agent Holds for Person Entitled.—In order to warrant the appointment of an agent it must appear to the court that a particular distributee is a non-resident having no agent in this state. This showing is jurisdictional, but these facts appearing, it is not necessary to the validity of the order that it designate the agent as appointed for the distributee by name. The agent appointed holds the property distributed for any one who subsequent to the order of appointment may show that he is entitled to it, whether it be the distributee or some third person claiming under him.</p> <p>Id.—Proceeding to Compel Agent to Account—Judgment Conclusive on Agent’s Sureties.—The court having jurisdiction of the matter of the estate in which the order was made appointing the agent for a non-resident distributee, had 'jurisdiction of a proceeding instituted in such matter by an assignee of such distributee to compel the agent to account for the property of which he took possession. A final judgment rendered in such accounting is binding on the agent and is equally binding and conclusive upon his sureties.</p>

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

<p>Eight of Wat—Permissive Use—Fencing—Evidence.—In an action to quiet title to a strip of land, in which the defendant set up a claim of a right of way, it is held, upon a review of the evidence, that the finding against the existence of a right of way is sustained by the evidence, which showed that the land had been fenced, and that such use as had been made of it by the defendants and the public was merely permissive.</p> <p>Id.—Effect of Fencing.—A showing that land claimed as a right of way had been inclosed by a fence, strongly indicates that the use of it by the public was merely permissive, and is strong evidence in support of a mere license to the public to pass over it.</p>

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

<p>Estate op Deceased Persons—Probate Homestead—Lands Subject-to.—The court in the administration of the estate of a decedent cannot set apart lands of the estate as a probate homestead, unless-they were lands upon which a homestead could have been impressed im the lifetime of the deceased.</p> <p>Id,—Land Held in Cotenancy.—Under both the early homestead acts,, and the present code provisions respecting homesteads, a homestead cannot be created by one joint tenant in lands held in joint tenancy or as tenants in common, except as authorized by the act of 1868 (Stats 1868, p. 116), which provides that a homestead may be declared upon land of a cotenancy where the declarant is in the exclusive occupation of it and residing thereon.</p> <p>Id.—Cotenancy between Husband and Wipe—Homestead Cannot Be: Declared on Husband’s Interest Alone.—Where land is held in cotenancy by a husband and his wife, he holding an undivided half interest as community property, and she the other half as her separate property, and both being in actual occupation thereof, neither he nor she jointly or severally could make, in the lifetime of the husband, a valid declaration of homestead upon his undivided interest in the cotenancy property, so as to affect that interest alone with the homestead characteristics, separate and distinct from the undivided, interest of the wife therein.</p> <p>Id.—Probate Homestead on Husband’s Interest Alone.—After the-death of the husband, the probate court cannot set apart to the wife-as a homestead the mere undivided interest of the husband in the cotenancy property, leaving her own undivided interest therein unimpressed with the homestead characteristics.</p>

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

<p>Criminal Law—Actual Bias—Basis of Opinion.—Actual bias, as defined in section 1073 of the Penal Code, may consist of an opinion as to the guilt or innocence of the accused, based upon some knowledge or information of the facts embraced in the charge or of the evidence to be produced, or it may exist without such knowledge or information, and may consist of a preconceived opinion concerning the defendant or the prosecuting witness which would prevent a fair consideration by the juror of the evidence given or facts proven in the case.</p> <p>Id.—Actual Bias of Juror Is Question of Pact—Conflict of Evidence.—Upon the examination of a juror on his voir dire, the question whether or not he has actual bias is one of fact, to be determined by the trial court upon the evidence before it. If the evidence is conflicting upon that question, as where the juror gives contradictory answers, the decision of the trial court thereon, as in any other case of conflicting evidence, is conclusive upon the appellate courts.</p> <p>Id.—Ability of Juror to Set Aside Opinion—Inquiry as to Basis of Opinion..—The inquiry as to the ability of the juror to lay aside an opinion which he has, amounting to actual bias, and to act impartially and fairly in the matter, is pertinent and material, under section 1076 of the Penal Code, only where it is an opinion upon the matter to be submitted to him and is based solely upon public rumor, common notoriety, or statements in public journals. If the actual bias is of any other character, no further inquiry is authorized by law.</p> <p>Id.—Opinion Based on Extraneous Matters—Disqualification of Juror.—The juror’s ability to disregard actual bias, shown to exist in his mind, is wholly immaterial, save in a ease which comes within the exception specified in section 1076 of the Penal Code. If the opinion constituting the actual bias is not on the matter to be submitted to him, and is not based solely upon one or more of the sources of information named in the excepting clause of section 1076, the jury is disqualified, and no declaration by him that he can lay aside the prejudice and act fairly and impartially will remove the disqualification.</p> <p>Id.—Belief of Guilt of Prior Criminal Charge.—Upon a prosecution for an assault with intent to murder, a juior shown to have actual bias against the defendant, growing out of a belief that he was guilty of a prior murder of which he had been duly acquitted by a jury, is disqualified, notwithstanding his expression of an opinion that he could and would lay aside this prejudice and act fairly and impartially in the case.</p> <p>Id.—Exhaustion of Peremptory Challenges—Error in Refusing Challenge for Cause.—’Where a defendant has exhausted all his peremptory challenges, error in refusing to allow a challenge to a juror for actual bias is rendered substantially injurious, and necessitates a reversal of the judgment of conviction. In such ease, no inquiry as to the sufficiency of the evidence to show guilt is indulged.</p> <p>Id.—Evidence of Statements Showing Malice.—On a trial for an assault with intent to murder, evidence that the defendant, a few hours after the alleged assault, called the person assaulted vile names, and cautioned the witness not to have anything to do with him, although not said in the presence of the person assaulted, was admissible as tending to show malice.</p> <p>Id.-—Evidence of Possession of Pistol after Assault.—On such trial, evidence that the defendant, several hours after the alleged assault, was carrying a pistol other than the one with which the assault was claimed to have been committed, was irrelevant and should have been excluded.</p> <p>Id.—Evidence Tending to. Show Intent to Assault.—Evidence of a statement by the defendant, made about a week before the assault, that before he went to jail “somebody would go to the morgue,” is relevant, when circumstances were proven tending to indicate that the person assaulted was the one to whom he intended to refer.</p>

<p>Quieting Title—Action Equitable in Form—Legal Issues—Jury Trial.—Although an action be brought in form under section 738 of the Code of Civil Procedure, as an equitable action to quiet title to land, if, in reality, it is an action for the recovery of specific real estate, and the issues made are purely of a legal character and such as are cognizable in a court of law, the substance must control the form, and a party has the right to a jury trial under section 592 of that code. '</p> <p>In.—Where Action is Legal or Equitable.—Whether an action involves legal issues, or issues of equitable cognizance, must depend upon the facts alleged in the particular ease.</p> <p>Id.—Pleading — Specific Performance — Verbal Contract to Sell Land—Re-execution of Deed—Equitable Action.—The complaint was drafted on two theories, the first asserting an oral agreement for the sale of land to the plaintiff’s grantor, the performance of the agreement, so that the latter became the equitable owner of the property and entitled to a conveyance, that no conveyance was made, and that the court should decree specific performance of the contract, and compel a conveyance from the original vendors, and the other defendants, alleged to be mala fide purchasers; the second theory was, that if the original vendee got a deed, (there was no allegation that he did) he had lost it, and the prayer was for its re-execution. The defendants denied such allegation, and set up the defenses of laches, and of a bona fide purchase for a valuable consideration. None of the parties alleged actual possession of the land, or sought to be awarded the possession. Held, that the action presented purely equitable issues, and that the plaintiff was not entitled to a jury trial as matter of absolute right.</p> <p>Id.—-Evidence—Disregard of Direct Testimony—Inherent Improbability.—As a general rule, the uncontradicted testimony of a witness to a particular fact may not be disregarded, but should be accepted by the court as proof of the fact. This rule, however, has its exceptions, and the most positive testimony may be contradicted by inherent improbabilities as to its accuracy contained in the witness’s own statement of the transaction, or there may be circumstances in evidence in connection with the matter which satisfy the court of its falsity; the manner of the witness in testifying may impress the court with a doubt as to the accuracy of his statement, and influence it to disregard his positive testimony as to a particular fact.</p> <p>Id.—Weight of Testimony for Trial Court—Appeal.—As it is within the province of the trial court to determine what credit and weight shall be given to the testimony of any witness, this court cannot control its finding or conclusion denying the testimony credence, unless it appears that there are no matters or circumstances which at all impair its accuracy.</p> <p>Id.—Delivery of Deed Contradicted by Other Circumstances.—In the present case, notwithstanding the direct testimony of the plaintiff’s grantor that he was sure that he had obtained a deed to the property in question, and there was no direct testimony impeaching him or contradicting his statement, still his conduct, as disclosed by his other testimony and the other circumstances in evidence were such that the court had a right to conclude that they were inconsistent with the execution of any conveyance, and warranted the rejecting as improbable his statement that such a conveyance had been made.</p> <p>Id.—Statute of Frauds—Oral Contract to Sell Land—Part Performance.-—An oral .contract for the conveyance of land is within the statute of frauds, and can only be taken out of the statute and enforced in equity by reason of part performance.</p> <p>Id.—Payment of Purchase Price—Actual Possession by Vendee.— Payment of the purchase price does not of itself constitute part performance. Such part performance can only be asserted where it is shown that the vendee had been given and had taken actual possession of the property pursuant to the terms of the contract and had continued to hold such possession, or had made valuable improvements on the land on the faith of the contract.</p> <p>Id.—Elements of Actual Possession.—To constitute such actual possession by the vendee, warranting the relief of specific performance, there must exist the physical fact of possession by him, visible, notorious, and exclusive, such as manifests definitely and clearly that he is claiming and asserting a distinctive ownership of the property, inconsistent with the right of ownership or possession in any other person.</p>

<p>Sale—Contract in Writing—Modification—Executed Oral Agreement.—A written contract for the sale of a specified number of shares of corporate stock, a part of which was the subject of litigation and in the custody of the court, which provided for a certain price for the shares in litigation and a different price for the balance, but that no part of the agreed purchase price was to be paid until all the shares should be delivered and transferred, or ready to be transferred, on the books of the corporation, to the purchaser, can be altered or changed only by a contract in writing, or by an executed oral agreement.</p> <p>Id.—Part Payment Before Maturity—Unexecuted Oral Promise to Pay Balance.—A voluntary part payment by the purchaser on the price of the stock on deposit in court, before it was in condition for transfer, and his oral promise to pay the remainder before it became due, did not have the effect to modify the original contract as to the time for the payment of such stock. Such voluntary part payment before maturity did not constitute a consideration for the . oral promise, since it did not benefit the purchaser, nor cause prejudice to the seller.</p> <p>Id.—Severability of Contract—Purchase of Part in Pursuance of Executed Oral Agreement.—The written contract, with respect to the shares of stock not in the custody of the court, and for which a different price was to be paid, was severable and subject to modification by a subsequent executed oral agreement for the purchase and payment thereof, on terms different from those contained in the original contract.</p> <p>Id.—Statute of Frauds—Promise to Pay Note of Another.—A special promise to pay the note of a third person, not based upon any consideration, and not in writing, is void.</p>

<p>Rescission of Contract—Consent Given by Mistake.—Under subdivision 1 of section 1689 of the Civil Code, a party to a contract may rescind the same if his consent thereto was given by mistake either of law or fact.</p> <p>Id.—Mistake of Fact or Law.—Under section 1577 of the Civil Code, unconscious ignorance of a fact material to the contract or belief' in the present existence of a thing material to the contract constitutes a mistake of fact, and under section Í577, a misapprehension of the law by all parties, all supposing that they know and understand it, and all making substantially the same mistake as to the law, constitutes a mistake of law.</p> <p>Id.—Lease of Vacant Lot—Intention to.Erect Wooden Building— Ignorance of Ordinance Prohibiting.—Where a lease of an unimproved city lot was negotiated and executed for a term of three-years, at a monthly rental of two hundred and fifty dollars, with-, the privilege of renewal for a further term of two years at a monthly rental of three hundred dollars, upon the assumption that, a wooden building could lawfully be constructed upon the demised land, and that such was the use to which the lessee must put the ■ land in order that it might be of any benefit to him, and was the • main inducement of the contract, the mutual ignorance of each of' the parties to the lease of-the existence of an ordinance of the city,.. enacted two days prior to its execution, prohibiting the erection of ' wooden buildings upon territory including the demised land, is such a mistake, either of law or fact, as authorizes the lessee to rescind - .... the lease.</p> <p>Id.—Mistake Material to Contract.—Such mistake was not as to a-, purely collateral matter, but rather went to the essence of and was . material to the contract of lease, within the meaning of section 1577 of the Civil Code, and was not caused by the neglect of any legal. duty on the part of the lessee.</p> <p>Id.—Rescission of Lease—Conditional Offer of Restoration by Lessee—Reasonable Compensation to Lessor.—An attempted.; rescission by the lessee, in which he offered to restore possession of ' the land, authorized the lessor to enter upon and hold the same, and offered to execute such release of the lease as the lessor might desire, and to do all acts necessary in order to fully restore to the lfessor any and all things of value received by him as fully and . completely as if the lease had not been made, was not rendered in- - valid by reason of the fact that the offer of restoration was made upon the express condition that the lessor restore “all moneys and things of value received as consideration for said lease,” which would include all amounts received by him as rent. Such offer was in full accord with section 1691 of the Civil Code, and was broad enough to include the lessor’s right to reasonable compensation for the use of the land for the time preceding the rescission.</p> <p>Id.:—Delay in Rescission—Negotiations for Modification of Lease—■ Ignorance of Right to Rescind—Absence of Injury to Lessor.—■ Where the lessee acquired full knowledge of the facts which entitled him to rescind two weeks after the lease was made, but did not ascertain that it could be rescinded for such a mistake until about seven months thereafter, when he was so advised by his attorney, and immediately served notice of rescission, his delay in taking such action cannot be held unreasonable, within the meaning of section 1691 of the Civil Code, when it appears that the interval was occupied by the lessee in fruitless negotiations to secure an extension of the term of the lease, so as to warrant the construction of a building in accord with the requirements of the ordinance, and that the delay in rescinding was not due to any uncertainty in his mind as to whether or not it might be profitable to him to retain the lease, and was without injury to the lessor.</p> <p>Id.—Prompt Rescission—Knowledge of Right to Rescind.—Under such circumstances, it cannot be held that the lessee became “aware of his right to rescind,” as soon as he discovered the impossibility of erecting a wooden building on the demised premises, within the meaning of subdivision 1 of section 1691 of the Civil Code, requiring a party to rescind promptly on discovery of the facts entitling him to rescission, if “aware of his right to rescind.”</p> <p>Id.—Waiver of Right of Rescission—Payment of Rent Under Protest.—The fact that the lessee, after discovering that he could not erect a wooden building on the demised premises, and before he served notice of rescission, paid two months’ rent as called for by the lease, under protest, did not constitute a waiver of the right of rescission.</p>

<p>Arbitration and Award—Submission Pending Litigation—Entry as Order of Court.—Where during the pendency of an action, the parties thereto enter into a written agreement for the submission of the matters in controversy to arbitration, it will be presumed, even if the agreement is silent upon the matter, that it was the intent of the parties that the submission be entered as a rule of court; and it was not essential to the validity of the judgment based " on the award that the agreement should have provided that the submission be entered as an order of the superior court, as contemplated by section 1283 of the Code of Civil Procedure.</p> <p>Id.—Misconduct of Arbitrators—Witnesses not Sworn—Waiver of Objection.—A party to an arbitration cannot complain of the misconduct of the arbitrators in receiving evidence without first swearing the witnesses, if he was present at the hearing, and made no objection to the fact that the witnesses were not sworn, and took no exception to their unsworn statements.</p> <p>Id.—Entry of Arbitration Proceedings—Irregular Entry Subsequently Cured.—The entry by the clerk, in the first instance, of the submission and award under the title of the action pending between the parties, if an irregularity, was cured by his subsequent entry of such matters, as contemplated by the statute, in the appropriate book and under the appropriate title.</p> <p>Id.—Time for Award—Refusal to Reopen Case.—Where the time within which the arbitrators could make their award was limited by the terms of the submission to a specified period, their refusal on the last day of such period, to reopen the case for the taking of further testimony, was not error, when reopening it, under the circumstances, would have made it impossible for them to return their award within the time contemplated.</p> <p>Id.—Part Acceptance of Award.—A party to an arbitration, who has in part accepted the benefits of an award, cannot afterwards protest against it.</p>

<p>Will—Necessity for Election.—A will may be so framed as to put either the surviving spouse or any heir to his election whether he will take under the will, or surrender his rights under it and take what the statute grants.</p> <p>Id.—Homestead Set Apart to Husband from Property Specifically Devised.—Where the will of a married woman contains no language designed to put the surviving husband to his election between a pecuniary legacy and his statutory right to a homestead in her separate property, the husband is not put to an election from the mere fact that the property out of which the homestead was granted was specifically devised to a third person.</p> <p>Id.—Presumption Arising from Devise.:—No presumption arises from the fact of the devise, that the testatrix meant thereby to force an election upon her husband. The presumption is that she executed her will with knowledge that her power of disposition was subordinate to the power of the court to carve out a homestead for a limited period from her separate estate.</p>

<p>Contest op Will—Jury Trial—Nonsuit May be Granted.—Seetion 1313 of the Code of Civil Procedure, providing that after the impanelment of a jury in the contest of a will, the trial “must be conducted in accordance with the provisions of part two, title eight, chapter four, of this code,” authorizes the granting of a motion for a nonsuit in such contest, in a proper ease.</p> <p>Id.—When Nonsuit May be Granted.—When once a plaintiff has adduced such evidence as if uneontradicted would justify and sustain a verdict, no amount of contradictory evidence will justify the withdrawal of the ease from the jury. If there be sufficient evidence to justify the presentation of the case to the jury and the jury fall into an error in weighing and deciding upon the evidence, the remedy then is by motion for a new trial.</p> <p>Id.—Insanity—Testamentary Capacity.—Not every form of insanity, nor every mental departure from the normal, will destroy an otherwise valid testamentary act. The rule is not that no person who is insane may make a valid will, but that the will of no person who, by reason of insanity, is incapable of making valid testamentary disposition shall be upheld.</p> <p>Id.—Forms op Insanity Invalidating Will.—Insanity that will invalidate a will must be an insanity of one of two forms: either insanity of such broad character as to establish mental incompetency generally, or some specific and narrower form of insanity, under which the testator is the victim of some hallucination or delusion. In the latter class of cases, the evidence must further establish that the will itself was the creature or product of such hallucination or delusion, or that the hallucination or delusion bore directly upon and influenced the creation and 'terms of the testamentary instrument.</p> <p>Id.—Evidence Reviewed.—Nonsuit Properly Granted—Insanity not Proved.—On a contest of the probate of a will, on the ground of the alleged insanity of the testatrix, the evidence is reviewed and held not to show that the testamentary act was affected in the slightest degree by any or all of the abnormalities attributed to the testatrix,, that the evidence of her sound and disposing mind was overwhelming, and that a nonsuit of the" contest was properly granted.</p> <p>Id.—Testimony op Physician as to Insanity.—In such a contest, the granting of the motion for nonsuit was not made erroneous by the mere fact that a physician, in answer to a hypothetical question, expressed his belief that the testatrix was insane, from a medical standpoint, there being no other evidence showing the extent or nature of the insanity.</p> <p>Id.—Suicide as Evidence op Insanity.—The fact that a testator is a suicide may be given in evidence as tending to establish insanity, but standing alone, proof of that fact is insufficient to show a want of testamentary capacity.</p> <p>Id.—Holographic Will—Abbreviation op Date by Numerals.—The date of an holographic will may be abbreviated and may be expressed in numerals. A date written “4—14—07” is sufficient, and will be construed as meaning April fourteenth, nineteen hundred and seven.</p> <p>Id.—Evidence op Declarations op Testatrix.—On a contest of a will, where the sole issue is that of testamentary capacity, the declarations of the testatrix are admissible, not as evidence of the truth of the statements therein contained, but merely as showing her state of mind and mental condition.</p> <p>Id.—Accusation op Thept—Evidence op Amount op Peculations.— Where one of the causes relied on by the contestant as tending to. show that the testatrix was insane, was the fact that she had been accused by her employer with the theft of several hundred dollars a day for several days prior to her discharge from her employment, it was not error to refuse to allow her employer to testify to the amount of such thefts. There being no issue over the truth or falsity of the charge, the exact amount of the alleged peculations was unimportant.</p> <p>Id.—Admission of Suicide—Rejection of Evidence Showing.—On such contest, where the fact that the testatrix had committed suicide was substantially admitted, the rejection of a declaration of the beneficiary under the will to that effect, was without prejudice.</p>

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

<p>Water-Rights—Reparian Owners—Diversion by Lower Owner-Adverse Use.—The use of water diverted from a natural stream at a point below the land of a riparian owner is not ordinarily adverse to him. No right against him is obtained by such use, although under an adverse claim of paramount right, unless his own use has been interfered with by the adverse use below, a thing which can seldom occur.</p> <p>Id.—Prescriptive Right Acquired by Lower Owner.—No right to water can be acquired by prescription, where the lower riparian proprietor has taken the water out of the stream at a point on his own land and has used such water only as the upper riparian proprietor permitted to pass down through his land to the lower owner; such use by the latter is not adverse in the sense required to give a right by prescription.</p> <p>Id.—Non-user by Upper Owner—Appropriation for Non-riparian Land.—The non-user of water by the upper riparian owner of land cannot be invoked to strengthen the claim of the appropriation by prescription by the lower riparian owner under like circumstances. The same rule applies where the lower appropriator or user is not a riparian owner and takes the water for use on lands not riparian.</p> <p>Id.—Evidence Against Title by Prescription.—In the present case it is held, that there was no evidence that the use of the waters of the stream in controversy by the plaintiffs had actually interfered with or prevented its use on the lands of certain defendants, who were upper riparian owners, for a sufficient length of time to give plaintiffs title by prescription against such defendants as riparian owners, and that the finding of a prescriptive right to the number of inches of water assigned to such defendants’ land by the judgment is supported by the evidence.</p> <p>Id.—Change of Place of Diversion.—An established right to divert the waters of a stream is not affected by a mere change of the place of diversion if it caused no injury.</p> <p>Id.—Injunction Against Excessive Diversion—Material Diminution of Stream.—A lower riparian owner, having a right to the flow of forty-five inches of water, taken from the surface stream, or as much thereof as would reach his ditch, subject to the prior right of a municipality to first divert fifty inches, may restrain the municipality from diverting a larger amount, if such additional diversion would materially diminish the quantity of water flowing down the stream and into his ditch.</p> <p>Id.—Diversion from Underflow.—Lowering Surface of Stream.— The fact that the additional amount of water diverted by the municipality was taken from the underflow of the stream, does not prevent the lower owner, having a prior right to surface water, from enjoining the diversion, when the bed of the stream is composed of materials so porous that the taking of a substantial part of the underflow from the channel at any point on the stream would cause a corresponding diminution in the surface stream below.</p> <p>Id.—Appropriation by Adverse Use—Use by Lessee.—One claiming a right to water by appropriation acquired by continuous adverse use may establish his right as well by a showing that he used it through his -lessees as by showing that he used it himself all the time.</p>

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

<p>Mining Claims Held in Common—Assessment Work May be Done on One Claim—Contiguous Claims.—Under seetion 2324 of the United States Eevised Statutes, where several mining claims are held in common, the necessary annual assessment work to keep them all alive may be done on one of them; but this one expenditure of money or labor must equal in value that which would be required on all the claims if they were separate or independent. In such case, the claims must be contiguous, so that each claim thus associated may in some way be benefited by the work done on one of them.</p> <p>Id.-—Work Must be Advantageous to Entire Group.—While work done even outside of contiguous claims may be credited to all of the properties, if for the benefit of all, it is necessary that that work shall at least be probably advantageous to all parts of the group.</p> <p>Id.—Proof of Boundaries of Location—Notice of Location.—Where the writer of the original notice of location of certain mining claims testified that the notice did not describe the claims as being together and touching, the question whether a purported copy of the notice which was introduced in evidence was sufficient to show the contrary, was for the trial court.</p> <p>Id.—Proof That Claims Are Held as Group.—The question whether several mining claims are held by the owner as a group calls for a mere conclusion rather than for a fact, and an objection thereto was properly sustained. Whether or not the claims were so held is best evidenced not by the intention of the witness, but by the location of the properties, and the kind, quality, and place of the work performed.</p> <p>Id.—Identification of Points of Claim—Conclusion of Witness.— A witness who is asked to identify on a map of certain mining claims points located by him, should confine his answers to the physical facts involved, and not state Ms conclusions from things he found on the ground.</p> <p>Id.—Objection to Evidence—Ground of Objection Must be Stated. ■—In order to be available, an objection to a question asked a witness should specify some ground for the court’s action. A mere suggestion by counsel that he did not think the question proper is insufficient.</p> <p>Id.—Declarations of Prior Owner Admissible.—In an action involving the determination of the question whether or not two mining claims were contiguous, declarations of a prior owner of the claims, to the effect that there was unoccupied and unloeated ground between them is admissible, under section 1849 of the Code of Civil Procedure.</p>

<p>Action to Determine Title—Accounting—Continuance as to One Dependant—Trial as to Certain Dependants—Appeal—Notice. —In an action to determine the title to a ranch, and for an accounting, in which a defendant who had been foreman of the ranch, and to that extent custodian of the property and the collector of its rents, appeared and answered, setting up his willingness to account, without making claim of title, the court has power, under section 579 of the Code of Civil Procedure, to continue the trial as to him, and proceed to a trial of the action as to the other defendants on the issues of title and ownership of the property between them and the plaintiff, and to render a several judgment thereon. On an appeal from an order denying a new trial of the action, as between such parties, it was not necessary to serve a notice of appeal on the defendant as to whom the action was continued.</p> <p>Id.—Undertaking on Appeal prom Judgment and Order Refusing New Trial.—An undertaking on appeal, which after reciting an appeal from the judgment and an appeal from the order denying a new trial, declares that the appellants would pay damages awarded against them on the appeal or on a dismissal thereof, not exceeding three hundred dollars, is sufficient to sustain both appeals.</p> <p>Writ op Assistance — Evidence — Letter prom Attorney Disclaiming Defense.—On the hearing of an application for a writ of assistance, a letter written by the attorney of record of the party against whom the writ was sought, after he had been served with the moving papers, to the attorney of the party applying for the writ, in which he stated that his clients had no defense to the motion, is admissible in evidence as an admission of the attorney made while he acted as such.</p>

<p>Appeal prom Judgment Taken Too Late—Dismissal.—An appeal from a judgment, taken more than six months after its entry, is too late and will be dismissed.</p> <p>Adverse Possession against Possessor’s Own Deed—Payment op Taxes.—While a person may acquire title by adverse possession, even as against his own conveyance, still, as an element to constitute such title, in addition to the showing of the other facts necessary to constitute it, he must prove either that no taxes were levied and assessed upon the land, or that he had paid all taxes which were levied thereon.</p> <p>Divorce—Jurisdiction Over Separate Property op Spouses.—As a general rule, the superior court in a divorce proceeding has no jurisdiction to deal with the separate property of the spouses.</p> <p>Id.—Title to Property Actually Litigated—Judgment as Bes Adjudicata. — The superior court is vested with general jurisdiction to determine title to real property, whether based on legal or equitable claims; and if the parties in a divorce proceeding make the character of property held by them—whether separate or community ■—an issue in the proceeding, as the court is vested with jurisdiction to determine that question, as fully as if the title were put in issue in a direct action brought for that purpose, the same effect must be given, to its judgment as if such an action had in fact been brought. Its judgment as to the title of property so put in issue is res adju&ieata and conclusive upon both parties with respect to any further litigation on the subject.</p> <p>Id.—Deed prom Husband to Wipe—Subsequent Action to Set aside Deed.—A judgment in an action for a divorce, determining that property which had been conveyed by the husband to his wife was her separate property, is res adjudicate to a subsequent action by him to set aside the deed to her on the ground of fraud, and for a decree that the legal title was in him as community property. Such judgment is conclusive, not only on matters affecting the legal title which were actually litigated, but also upon those which might have been.</p>

<p>Divorce—Witness False in Part of Testimony.—The rule declared, by section 2061 of the Code of Civil Procedure, that “a witness false in one part of his testimony is to be distrusted in others,” is solely for the guidance of the trial court in weighing the evidence, and has no pertinency in an appellate court.</p> <p>Id.—Finding of Trial Court as to Cruelty.—In determining the question whether acts and conduct constitute such cruelty as, under all the circumstances shown, warrants the granting of a divorce, the conclusion of the trial court is necessarily entitled to great weight, and it will be disturbed on appeal only where it is clear that it is without any substantial support in the evidence.</p> <p>Id.—Evidence—Meaning of Words Used—Conclusion of Witness.— The plaintiff in an action for divorce on the ground of extreme cruelty cannot state her conclusion as to the meaning the defendant intended to convey by certain statements made to her. After giving the substance of such statements, the determination of their meaning was for the trial court.</p> <p>Id—Statement to Third Person—Res Gestae.—In such action, statements made by the plaintiff, to a third person, in the absence of the defendant, as to the cause of certain bruises on her arm, are not part of the res gestee, and are incompetent.</p>

<p>Corporations—Subscription to Stock—Bonds Issued as Part of-Subscription—Stock Issued as Fully Paid up.—A subscription agreement for the purchase of stock in a corporation which expressly states that a certain amount of the bonds of the corporation and. an additional percentage of its stock were to be delivered as “am additional consideration for this subscription,” implies a purchase-of the bonds, as well as of the particular shares of stock formally “subscribed,” and all in consideration of the sums agreed to be paid. The bonds received in pursuance of such contract are obtained byway of bargain and sale and not as a gift, and if the aggregate-value of the bonds and stock so issued did not exceed the consideration paid, the bonds became the legal obligation of the corporation.. This result follows, notwithstanding the fact that in carrying out. the agreement a scheme was resorted to so as to make it show on the hooks of the corporation that the consideration paid was for the-stock, so that it might appear thereon as fully paid up.</p> <p>Id.—Insolvency -of Corporation—Validity of Bonds—Fraud on Creditors.—Where the assets of the corporation are sufficient in value to pay its existing debts, the fact alone that it is unable to-pay its debts as they become due does not make the sale of its; bonds fraudulent as to its creditors nor raise a presumption of' fraudulent intent. To make such a transfer conclusively fraudulent, under section 3442 of the Civil Code, it must be made voluntarily, or without a valuable consideration.</p> <p>Id.—Bight of Corporation to Sell Bonds—Inadequacy of Price— Fraud in Sale of Stock.—The corporation had the lawful right,, the same as any natural person, to sell its bonds for any price it could get, provided it acted in good faith, and mere inadequacy of' price did not avoid them. Any fraud, if there were such, in the saleef its stock, could not be transferred to the bonds and made available as a foundation for their cancellation. It is available only upon an inquiry concerning the liability of the stockholders for calls as. for unpaid subscriptions.</p> <p>Id.—Corporation May Discount Bonds.,—There is no rule of public-policy or law of this state which “forbids a corporation which is a going concern, from discounting its notes or bonds. The provision of article XII, section 11 of the constitution, and of section 359 of' the Civil Code, that no corporation shall issue stock or bonds “except, for money paid, labor done, or property actually received,” and that any “fictitious increase” of stock or indebtedness is void, does not forbid the sale of bonds at a discount.</p> <p>Id.—Appeal from Judgment—Review of Findings—Erroneous Opinion of Trial Court.—On appeal from a judgment upon the question whether or not the judgment is sustained by the findings, all the facts are presented for the consideration of the appellate court. The appellate court is not bound by the opinion of the trial court as to the effect or application of certain facts found, or as to the law relating thereto, nor by the method of reasoning by which that court reached its conclusion. If, upon considering all the facts and the law as the appellate court understands it, that court is satisfied that the final conclusion of the trial court was right, the judgment will be upheld, and the erroneous reasoning of the trial court will be disregarded.</p> <p>Id.—Creation and Increase of Bonded Indebtedness—Foreign Corporation—Failure to Observe Legal Requirements—Validity of Issue—Estoppel.—Conceding that the conditions imposed by section 359 of the Civil Code, upon the creation or increase of the bonded indebtedness of a corporation, are applicable against foreign corporations issuing bonds in connection with business done by them in this state, the failure to observe the requirements of the section does not make an original bond issue void at the option of creditors, or of one acting in their interest, where they were issued for a valuable consideration and without fraud. The corporation and its creditors are estopped to dispute the validity of the bonds so issued. That section, although applicable to an original issue of bonds, contains no provision that such bonds not issued in conformity therewith shall be void, either in favor of creditors or at all.</p> <p>Id.—Original Bonded Indebtedness.—The provision of section 11 of article XII of the constitution, declaring that the stock and bonded debt of a corporation shall not be “increased” except at a meeting called upon sixty days’ notice, does not restrict an original bond issue.</p> <p>Id.—Bond Issue not Ultra Vires.—The failure to observe the requirements of section 359 of the Civil Code in reference to the manner-of issuing the bonds does not render their issuance ultra vires and void, if the corporation has received and holds the proceeds of the sale of the bonds.</p> <p>Id.—Admission of Corporate Existence—Conclusiveness of Admission.—An admission by answer of an averm.ent of the complaint that a corporation has its existence under the laws of Arizona, is conclusive, and cannot be controverted either by the evidence or the findings.</p> <p>Id.—Collateral Attack on Organization of Corporation.—In an action in this state, to cancel bonds issued by a corporation existing under the laws of Arizona, an objection that the proceedings for the organization of the corporation as such were invalid, because the incorporators met to organize in California and held no meeting in Arizona for that purpose, cannot be so collaterally raised. Such an inquiry can be made only in a direct action for that purpose instituted by or under the authority of Arizona.</p> <p>Id.—Laws of Arizona—Increase .of Capital Stock—Filing and Publication of Amended Articles.—Bonds of an Arizona corporation, which were actually sold and delivered for value after compliance with all the requirements of the laws of that territory respecting the recordation and publishing of amended articles of incorporation increasing its capital stock, are not rendered void as to other creditors, merely because the stockholders’ meeting authorizing the bond issue was held prior to the date of the filing of the amended articles in the office of the auditor of the territory, and prior to their publication as required by the law of that territory.</p>

<p>Railroad—Employee Travelling on Pass—Business of Employer— Passenger—Trespasser.—An employee of a railroad, to whom the general superintendent of the road had referred a particular matter for investigation and report, and who in quest of information on the . subject was travelling on the road on a badge entitling him to free transportation, for the purpose of interviewing a witness, acting in so travelling on the business of his employer, was a passenger and not a trespasser upon the road.</p> <p>Id.—Cross-Examination of Plaintiff—Use by Others of Plaintiff’s Badge.—In an action by such employee to recover damages for personal injuries while so travelling, after he had testified on cross-examination that he had allowed others in his department to use his badge during the month preceding the accident, it was not error to refuse to allow further inquiry as to who had used the badge, as such matter was immaterial.</p> <p>Id.—Testing Memory—Admission of Witness.—The trial court has discretionary power to limit the scope of questions designed to test the memory of the plaintiff, and may refuse to allow questions directed to a subject-matter that is admitted by him.</p> <p>Id.—Redirect Examination—Scope of Questions.—The trial court had discretion, on redirect examination, to permit a witness to answer a question that would have been proper on his direct examination, although it was not strictly redirect examination.</p> <p>Id.—X-ray Protograph of Injury—Proof of Correctness—Experts. —X-ray photographs of the injured portion of the plaintiff’s body, • like any other chart, are admissible for illustrative purposes, and if they are admitted without strict proof of their correctness, and without proof that the medical witnesses who testified with reference to them were experts in such kind of photography, the error is harmless, where it is apparent that the condition shown by the photographs did not differ from the circumstances disclosed by the testimony of the physicians based upon their own observation.</p> <p>Id.—Nurse may Testify to Extent of Suffering.—In an action to recover for personal injuries, evidence of a nurse who tended the plaintiff, as to the extent of his suffering, is admissible, notwithstanding the nurse was not an expert.</p> <p>Id.—Measure of Damages—Services of Nurse—Relationship to Plaintiff.—In such action, the plaintiff is entitled to recover for CLIX Cal.—15 the reasonable value of the services of a nurse who cared for him at her home, and the fact that such nurse was his mother, with whom he was not living at the time, raises no presumption of his non-liability for payment for her services.</p> <p>Tn.—Amount or Judgment not Excessive.—A judgment for forty-one hundred dollars, for a permanent injury to the knee of a man of nineteen years of age, under the circumstances disclosed by the evidence, is not excessive.</p> <p>Id.—Evidence of Physician—Eligibility for Army—Common Knowledge.—Testimony of a physician to the effect that the injury to the plaintiff was sufficient to cause his rejection as a recruit in the United States army, is without prejudice, it being a matter of common knowledge that an injury such as was shown the plaintiff had sustained would have that result.</p>

<p>Reclamation District—Invalidity of Assessment—Personal Interest of Trustees.—In an action by a reclamation district to enforce the lien of an assessment levied by it for purposes of reclamation, the defendant is entitled to show, in support of his defense that the assessment was invalid, that the trustees of the district by whom it was levied, were disqualified from acting in the matter by reason of their direct and pecuniary personal interest.</p> <p>Id.—Sale of Property by Trustees to District—Payment of Debts of Former District Held by Trustees.—The invalidity of the assessment, by reason of the personal interest of the trustees, can be shown by evidence that a majority of the trustees of each board, and the only ones who acted, were directly and financially interested in certain of the property that it was proposed to purchase, in that they proposed to sell certain of their own lands to the plaintiff, and that the plaintiff should ostensibly buy the property of the other district of which they were trustees for a price which they would name, to the end that the debt of such district, of which they were heavy creditors, might be paid.</p> <p>Id.—Transactions between Districts having Directors in Common.— Where an assessment by a reclamation district is levied for the purpose of acquiring property belonging to another district, no presumption of illegality or unfairness attaches merely from the fact that a majority of the board of trustees of the district whose property was to be purchased constituted a majority of the trustees of the other district, and that these districts had, or proposed to have, business dealings with each other through their boards of trustees. No such presumption arises merely because two corporations which have certain directors in common deal with each other.</p> <p>Id.—Nature of Declamation Districts—Public Agencies.—Declamation districts are not, in strictness,- corporations at all, but quasi corporations, or public agencies to carry out a specific purpose, the agency ceasing with the accomplishment of the purpose.</p> <p>Ib.—Change of Boundaries of District—Inclusion in New District.—Subject to existing constitutional limitations, the power of the legislature over reclamation districts is plenary; it may divide, change, or modify them at pleasure; the beneficial title to all the property owned by the district is in the state, and when, by the change of boundaries, this property falls within a new district, such title still remains in the state, and, in legal contemplation, the state has merely placed the legal title in the hands of other trustees to manage it.</p> <p>Id.—Assessment not Authorized to Buy Property op Old District.— A new reclamation district, the boundaries of which included the property of a former district, has no power to levy an assessment for the purpose of purchasing property which was owned by the former district, and which had passed to the new.</p> <p>Id.—Debts of Old District—Existence of Lien—Impairment of Bights of Creditors.—In the absence of any provision for the payment of the existing debt of the old district, the debt still remains against it, and the lien thereof is a lien against the real property of the old district, and cannot be made a lien upon all the other property embraced in the new district. The extinguishment of the existence of the old district could not, even if the legislature so designed, operate to impair any of the rights of the creditors of the old district which were in existence at the time of the creation of the new, nor so completely destroy its existence as to render the claims of its creditors unenforceable against it.</p> <p>Id.—Lien of Debts of Old District—Property of New District not Subject to Lien—Assessment to Pay Old Debt.—Where a debt has been imposed upon the property of a quasi municipal corporation, such as a reclamation district, which is to be paid by the owners of the property within the district in proportion to the benefits which their land receives from the work done, it is not within the power of the legislature to transfer and impose this debt upon property not within the district at the time the original obligation was created, and which was not benefited by the work done. When an assessment is to be made for the extinguishment of such debt, only the property of the old district benefited or supposedly benefited by the work which the indebtedness represented would be legally assessable for such debt.</p> <p>Id.—Presumption of Benefit to Property within District.—Non-benefit Cannot be Shown to Defeat Assessment.—Under the system prevailing in this state for the assessment of lands within a reclamation district, by which the collection of the assessment for works of problematical value may be enforced in advance of the work itself, all of the land within the limits of the district created by the legislature is conclusively presumed to be land which will be benefited by works of reclamation, and an owner of land within the district cannot, pro tanto, defeat an assessment levied upon all of his land, by showing that a part thereof is so situated that it cannot be benefited by the work.</p> <p>Id.—Reclamation District No. 70—Assessment according to Political Code.—Section 2 of the Act of 1905, creating Reclamation District No. 70 (Stats. 1905, p. 717), and providing that “the management and control of said reclamation district is hereby made subject to the provisions of the Political Code of the state of California, and other laws of this state, relative to reclamation districts formed under the provisions of said Political Code,” confers upon such district the power of assessment in accordance with the provisions of that code.</p>

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

<p>Mining Claim—Boundaries—Position op Apex—Good Faith op Location.—Under section 2320 et seq. of the United States Bevised Statutes, the surface location and boundaries of a quartz mining claim located upon public lands of the United States are to be determined by the position of the apex of the vein as it is ascertained and marked on the ground, in good faith, at the time the claim is originally located and marked, and not by the real position of such apex as it may be subsequently proven to be in a trial with an adjoining claimant.</p> <p>Id.—Bight op Possession op Claim—Grant in Presentí.—The grant, under such sections, of the exclusive right of possession and enjoyment of the ground included within the lines of the location is a present grant, which takes effect as soon as the location is legally made. It refers to the lines as then established and gives the right to the ground inclosed thereby.</p> <p>Id.—Width op Claim—Middle op Vein—Construction op Statutes.— The requirement of section 2320, that “no claim shall extend more than three hundred feet on each side of the middle of the vein at the surface,” although if taken strictly and literally it might seem to refer to the actual position of the apex, rather than to the place marked as such by the locator, is controlled to the contrary by other provisions of the statutes, and refers to the vein as honestly marked by the claimant at the time of the location as the center of the claim of which he then takes possession.</p> <p>yD,—Marked Boundaries Conclusive Except as against United States.—Although the location, as made, may not be binding on the United States, and in making a survey for a patent the surveyor-general may ascertain and locate the true line of the apex to fix the boundaries, nevertheless in the mean time, and as against all others, the locator who has in good faith made the discovery and marked the boundaries with regard to the position of the apex as he then finds and believes it to be, is protected in the possession of the surface thus ascertained, and the monuments he then sets control the location of the claim.</p> <p>Id.—Validity op Location—Discovery of Valuable Minerals.—Mere testimony that there were seams of mineral upon a claim, without a statement of what such mineral consisted, is not sufficient evidence of a discovery of valuable minerals within the lines of the claim to uphold the validity of its location.</p> <p>Id.—Finding against Validity—Failure to Mark Boundaries. — A finding against the validity of an alleged quartz-mining location will be upheld when the evidence fails to establish a discovery of valuable mineral within the location boundaries, or shows a failure to mark the boundaries upon the ground by any monuments, or at all. Id.—Pleading—Forfeiture for Failure to do Assessment Work.— Where the defendant, in an action to recover the possession of a mining claim, asserted a right of possession under a location of another claim that was not mentioned in the pleading of either party, the plaintiff may, without pleading the fact, offer evidence showing the forfeiture of such other claim by reason of the failure of the defendant to do the annual assessment work.</p> <p>Id.—Estoppel Must be Pleaded.—In such action, if the defendant relies upon an estoppel in pais as a defense, the facts constituting the estoppel must be specially pleaded.</p>

<p>Will—Construction—Technical Words.—The words of a will are to be taken in their ordinary sense, unless a clear intention to use them in some other sense appears. Even technical words are not to be taken in their technical sense if the context clearly indicates a contrary intention.</p> <p>Id.:—Community Property—Wife’s Interest in Community Property. The provisions of the law of this state giving the wife a one-half interest in the community property and depriving the husband of the power to dispose of such moiety by will, except with the consent of the wife, are well known, and are peculiar as compared with the laws of other states. Owing to the fact that this share is given to her absolutely and in this manner, and because of its peculiarity, it has become common usage to describe this interest in community property as that to which the wife is legally entitled under the laws of California.</p> <p>Id.—Bequest after Deducting Portion to which Wipe is Entitled.— Where a testator, who died leaving a surviving wife and a brother and sister as Ms only heirs, provided by Ms will that his property, all of which was community, should go to his wife during her life and upon her death, “after deducting the portion to which she is legally entitled under the laws of the state of California,” the remainder should be equally divided among his brothers and sisters, or their descendants, according to the laws of distribution, the “remainder” to which the brother and sister are entitled is a one-half interest in the entire community property, only the other one-half interest going to the wife’s heirs or as she might direct by will or otherwise.</p>

<p>Landlord and Tenant—Bent Paid in Advance—Total Destruction op Premises during Term—Lessee Cannot Becover Bent Paid.—A tenant who has taken possession of the leased premises and paid his rent, or a part of it, in advance, as required by the terms of the lease, cannot, in the absence of any covenant in the lease, recover the rent so paid in case of the total destruction of the premises by fire without’ any fault of either party to the lease.</p> <p>Id.—Destruction op Thing Terminates Hiring.—In this state, under section 1933 of the Civil Code, the hiring of a thing terminates by the destruction of the thing hired.</p>

<p>APPEAL from a judgment of the Superior Court of the City and County of San Francisco and from an order denying a motion to vacate and set aside the judgment and to enter judgment upon the general verdict. Geo. A. Sturtevant, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>APPEAL from an order of the Superior Court of Napa County denying a new trial. Henry C. Gesford, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Water-Rights—Artificial Diversion of Waters of Pond—Injury to Lower Proprietor—Injunction.—While the owner of upper land has the right to have the waters from his land flow in their natural course down upon the lands below, he has no right, by the construetion of ditches or other artificial means, to turn waters which have naturally accumulated in ponds or depressions on his land upon the land of his neighbor lower down, and where water is thereby caused to flow upon the lands of another which would not naturally flow thereon, this is an invasion and injury to his right of property and a nuisance per se, the continuance of maintenance of which he has the right to have enjoined.</p> <p>Id.—Actual Pecuniary Damage not Necessary to Warrant Injunction.—The owner of the lower land is entitled to an injunction restraining such wrongful acts of the upper landowners, notwithstanding the absence of evidence of any specific monetary damage occasioned thereby, for the reason that such conduct, if persisted in and permitted without objection for the statutory period, would ripen into a right as an easement or servitude to overflow the lower land.</p> <p>Id.—Extent of Eight of Owner to Drain Land.—The owner of land upon which surface waters accumulate has a right, by means of artificial ditches or other measures to redeem his land by discharging or removing these waters therefrom, legally constrained only to the extent that he shall not théreby injure his neighbor.</p> <p>Id.—Statute of Limitations against Eight to Injunction.—Where a landowner is exercising a right of removing and disposing of surface waters, and is doing so entirely upon his own land, an adjoining proprietor who may be so situated that a disregard of his rights may cause him injury, is not bound, at the peril of being denied any relief when injury is actually done him, to commence an action to prevent such possible damage. The statute of limitations against the right to maintain such action does not commence to run until actual injury has been occasioned to the adjoining proprietor.</p>

<p>The facts are stated in the opinion of the court.</p> <p>Page, MeCutehen & Knight, and M. C. Chapman, for Appellant.</p>

<p>Water Bates in Oakland—Question of Confiscation—Beview op Decision of Trial Court — Behearing — Obiter Statement Stricken Out.-—Upon rehearing of the former decision of this court, filed July 6, 1909, involving a review of the action of the trial court in setting aside water rates fixed by the council of the city of Oakland for a specified time for the Contra Costa Water Company, as confiscatory, it is held that a statement made obiter in the opinion relative to a possible return of about three and one half per cent, upon an assumption as to the value of the property, without intimating that such rate would not be held confiscatory, will be stricken out as unnecessary to the opinion rendered.</p> <p>Id.—Bate op 4.682 per cent Net Necessary to Decision—Condition of Becord;—Finding against Evidence—Possible Support op Finding.—What was said in the opinion relative to a return to the stockholders of 4.862 per cent net, was necessary to the decision, in view of the condition of the record, not only showing that the find- ' ing of the value of seven million dollars is against the evidence, which would not alone justify the reversal of the judgment, but also showing that the evidence would not support any possible finding of value greater than one half of that amount.</p> <p>Id.—Basis op Decision Not Ideal op Beturn—Proper Exercise op Legislative Power.—The theory of the decision in favor of such rate, as not confiscatory, is not based upon any ideal of what would be a fair and full return if this court were fixing rates, but upon the opinion from the evidence in the record that a court would not be warranted in holding it beyond the power of a legislative body to fix.</p> <p>Id.—Elements in Determining Whether Bate Is Confiscatory.—In determining whether a given rate is or is not confiscatory the court must ascertain: 1. The value of the property upon which the plaintiff is entitled to seek a return; and 2. What is the percentage of return to which the plaintiff is entitled upon such value. The range of judicial inquiry must be as wide in the case of one of these elements as in that of the other.</p> <p>Id.—Ascertainment of Percentage—Lowest Percentage Properly Deemed Reasonable.—In determining the ultimate issue whether the city ordinance deprives plaintiff of its property without just compensation, it must be ascertained whether the return allowed will give less than the lowest reasonable percentage of profit upon actual value of the property. In fixing such percentage, the court is not to act upon it as an original question as to what might be fair and reasonable, but is to determine what is the lowest percentage which can properly be thought by the rate-fixing body to be fair and reasonable.</p> <p>Id..—Range of Discretion of City Council.—On the question of fixing the percentage there must be a certain range of discretion which may be traversed by the city council without infringing upon constitutional rights. If the ordinance gives a rate of return, which, although low, is not palpably unreasonable, the court is not to upset its action because it may think a higher rate appropriate.</p> <p>Id.—Presumption Is in Favor of Legislative Determination—Burden of Proof.—The presumption is in favor of the legislative determination of the city council, and the burden is upon the attacking party to show its invalidity.</p> <p>Id.—Rate Upheld Not Declared as Matter of Law.—This court in upholding the net rate of 4.862 per cent as that supported by the ■ evidence appearing in the record, and as not confiscatory, does not intend to declare and does not declare, as matter of law, that this rate is in all cases adequate or above the dividing line which separates lawful regulation from confiscation. The propriety of any rate must be determined by the evidence introduced upon the trial of the particular case.</p> <p>Id.—Right to Fix Rates for Use of Water—Legislative Discretion— Honest Judgment—Judicial Duties.—The right delegated by the state constitution to the governing body of a city or town in which water is distributed to the inhabitants to fix rates therefor annually calls for the exercise of a legislative function, in the exercise of which the legislative officers, in determining what will be the proper rate of compensation, are necessarily obliged to use some degree of discretion and judgment, and are bound to exercise an honest judgment as to the matters submitted for their determination. To this extent their duties, in the exercise of their legislative function, are judicial in their nature.</p> <p>Id.—Power of Revision by Courts.—The courts have no power to revise the mere legislative action of the rate-making body in that regard. It can only be assailed on some constitutional ground; and if its action is confiscatory, and deprives the water company of a just compensation, the courts will enforce the constitutional mandate, and declare the ordinance void. This is the full extent of the power of the courts in the matter and tlie basis upon which it rests.</p> <p>Id.—Rights of Water Company — Fair Return upon Reasonable "Value over Deductions.—A water company engaged in furnishing water to the public is entitled to a fair return upon the reasonable value of its property at the time it is being used by the public, over and above its operating expenses, including current repairs and taxes, besides an annual allowance to provide for depreciation in value.</p> <p>Id.—Questions for Rate-Fixing Body—Burden of Proof on Water Company.—The questions of the reasonable value of the property, the amount of expenses, the amount of allowance for depreciation, and what under all the circumstances will be a fair compensation to the owner, are for the rate-fixing body, and the courts should never set aside the action of that body on the ground that it deprives the party furnishing water of a just compensation, unless the party assailing its ordinance assumes the burden of showing that fact, so as to make it clearly appear. If there is doubt, the expressed will of the legislative body should be sustained. n</p> <p>Id.—Fundamental Questions—Present Reasonable Value of Property—Rate Not Confiscatory.—The material question in a judicial investigation as to the sufficiency of compensation relates to what is the present reasonable value of the property devoted to public use. It is held, that a net revenue of 4.682' per cent, under the circumstances proved, cannot be held confiscatory.</p> <p>Id.—Improper Allowances—Past Depreciation—Good-Will of Going Concern.—No proper allowance could be made for any past depreciation nor for what is known as the good-will of a going concern, neither of which can be considered at all in determining the present value of the property.</p> <p>Id.—Fairness of Action of City Council.—It is held that there is no evidence of unfairness or want of good faith in the action of the city council, and it appears that all fairness of statement and hearing was accorded to the water company, and that the evidence is not sufficient to show that the rates were established by arbitrary conjecture and not based on investigation or the exercise of judgment and discretion.</p> <p>Id.—Immaterial Findings as to Action of City Council—Absence of Finding of Value Supported by Evidence.—The findings as to the action of the council are immaterial whether sustained by the evidence or not, in view of. the absence of any finding of value of the property of the water company sustained by the evidence, which renders it indeterminable that the compensation afforded by the ordinance is not just and reasonable. If it is so in fact, the water company cannot complain in the courts as to the methods used by the council in arriving at the conclusions embodied in the ordinance.</p>

<p>Criminal Law — Assault with Intent to Murder — Information ;—Deadly Weapon.—An information charging that the defendant, at a stated time and place, “did willfully, unlawfully, and feloniously, and with malice aforethought, assault one Caesar Yervoort, a human being, with a deadly weapon, with intent then and there him; the said Caesar Yervoort, to kill and murder,” sufficiently describes the offense of assault with intent to commit murder. It was not necessary to further describe the weapon alleged to be “deadly.” The use of a weapon need not have been mentioned at all.</p> <p>Id.—Judgment of Conviction—Discharge on Habeas Corpus.—A judgment of the superior court of the county of the venue convicting the defendant, under such information, of the crime of assault with intent to commit murder, was in effect an adjudication that the information was sufficient, by a court having jurisdiction to decide that question, and was conclusive upon the superior court of other counties upon that point; and a judgment of another court, in habeas corpus proceedings, holding the commitment void and discharging the defendant, was erroneous.</p> <p>Id.—Jurisdiction to Inquire Into Legality of Commitment—Certiorari.—Hnder section 5 of article V of the constitution, the superior court of the county in which the defendant was in actual custody, under a commitment based upon such information, had jurisdiction to hear and determine a proceeding in habeas corpus to inquire into the legality of his commitment, and power, upon the hearing, to determine the legal effect of the judgment of conviction, and its judgment therein, holding the petition for the writ sufficient and the judgment of conviction void for insufficiency of the information, although erroneous, cannot be annulled on certiorari.</p> <p>Id.—Insufficiency of Petition fob Writ of Habeas Corpus.—The insufficiency of the petition for a writ of habeas corpus is not a defect which destroys the jurisdiction of the superior court to entertain the proceeding, issue the writ, and decide the case. It had power to determine whether the petition was good or bad, and its decision that it was good was an error of law and not an excess of jurisdiction.</p> <p>Id.—Appeal Does not Lie from Judgment in Habeas Corpus.—No appeal lies from a judgment given in a proceeding in habeas corpus.</p> <p>Id.—Review on Certiorari—Excess of Jurisdiction.—The supreme court has jurisdiction in certiorari to review a judgment of the superior court only in a case where that court has exceeded its jurisdiction, and in such cases only for the purpose of inquiring whether or not the judgment sought to be reviewed was in excess of jurisdiction. It cannot consider or correct errors of law committed by the inferior court in the exercise of its authority on the merits of the cause it has jurisdiction to entertain and decide.</p> <p>Id.—Jurisdiction in Habeas Corpus Proceedings.—The superior court, in habeas corpus proceedings, is not acting under a limited statutory authority, but under the general jurisdiction given by the statute, and section 1474 of the Penal Code, in providing that the petition in habeas corpus must “state in what the alleged illegality” of the imprisonment consists, cannot be construed to limit or modify such jurisdiction.</p> <p>Id.—Defects in Procedure not Fatal to Jurisdiction.—Defects in mere procedure, where general jurisdiction exists, are errors of law not fatal to the jurisdiction.</p> <p>Id.—Discharge of Prisoner on Habeas Corpus Cannot be Annulled on Habeas Corpus.—The supreme court has no power, in a proceeding in certiorari, to annul a judgment of the superior court, or an order of a judge thereof, regularly made after obtaining jurisdiction of the parties, discharging a prisoner lawfully committed to the state prison upon conviction of a crime.</p>

<p>Appeals by New Method—Undertaking Not Essential.—Under sections 941a and 941b of the Code of Civil Procedure, appeals from a judgment and from an order refusing a change of venue are well taken without any undertaking, and by the mere filing in the clerk’s office of notices of appeal.</p>

<p>The facts are stated in the opinion of the court.</p> <p>A. A. Moore, Stanley Moore, and W. M. Cannon, for Appellant.</p>

<p>Sale—Executory Contract—Express Warranty of Quality—Acceptance with Knowledge of Defect—Bight to Damages for Breach. .—In this state, under an executory contract of sale, a buyer of personal property upon an express warranty of quality, has a right to recover damages for a breach of such warranty, notwithstanding he has accepted the goods with knowledge at the time of the acceptance of the defect in quality.</p> <p>Id.—Effect of Acceptance with Knowledge of Breach of Warranty. —The general rule applicable to all cases of sales of property is that the buyer has an election of remedies for a breach of a contract of warranty. If he knows of the defect at the time performance is offered he may refuse to accept the goods, insist on due performance and sue for damages for non-performance if further performance is not duly offered, and if he has paid for the goods in advance he can recover the amount of money paid thereon as part of the damages. If part performance has been made he may rescind the contract, restore what he has received and recover what he has paid. He need not rescind, ór reject the goods, however, but may stand upon the "contract, and, relying upon the warranty, may take the goods offered and sue for the damages caused by the breach.</p> <p>Id.—Warranty of Quality of Boxes—Free from Dampness—Action for Breach—Immaterial Evidence of Dampness in Cans.—In an action to recover damages for breach of an express warranty that certain boxes sold to be packed with canned goods should be of dry stock and free from dampness, in which the theory of the defendant was that the rusting of the cans eobiplained of after they were packed in the boxes furnished by the defendant was not caused by the dampness of the boxes, but by drops of moisture left on the cans by the company manufacturing them, evidence was inadmissible that other cans manufactured by the can company showed moisture, in the absence of a showing or offer to show that such other cans were manufactured in the same manner or by the same process as those supplied for the plaintiff.</p> <p>Id.—Measure of Damages—Warranty Both of Quality and Fitness. —Such a warranty was one both of quality and of fitness for the purpose intended, and for a breach thereof the buyer was entitled to recover, under section 3314 of the Civil Code, a fair compensation for the loss incurred by an effort in good faith to use it for such purpose.</p> <p>Id.—Implied Warranty of Fitness May Exist with Express Warranty of Quality.—The making of an express warranty of quality in an executory contract of sale will not exclude an implied warranty of fitness, where the warranty so implied is not only not inconsistent "with the express warranty, but entirely in harmony therewith.</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>Estate op Deceased Persons—Accounting by Personal Representative op Deceased Executor—Jurisdiction in Equity Abolished by Section 1639 op Code op Civil Procedure.—Since the enactment, in 1905, of section 1639 of the Code of Civil Procedure, empowering the superior court sitting in probate, to compel the personal representatives of a deceased executor or administrator to render an account of the administration of their testator or intestate, and to settle such account as in other cases, an action in equity will not lie to compel the executor or administrator of a deceased executor or administrator to settle the account of his testator or intestate with the estate in which the decedent had been acting.</p> <p>Id.—Jurisdiction in Superior Court in Probate—Constitutional Law.—The jurisdiction granted by section 1639 of the Code of Civil Procedure, to the superior court in which the estate was being administered of which the decedent was executor or administrator, is a power which may, under section 5 of article VI of the constitution, he conferred upon the superior court as a “matter of probate.”</p> <p>Id.—Prior Equitable Jurisdiction Lost by Creation op Probate Jurisdiction.—Prior to the enactment, in 1905, of section 1639 of the Code of Civil Procedure, the power of a court in equity to compel such an accounting was based solely on the lack of any statutory method of accomplishing the same end by a proceeding in probate. Now that this lack has been remedied, the foundation of the equity jurisdiction is gone.</p> <p>Id.—Judgment por Accounting in Action in Equity—Dual Jurisdiction op Superior Court.—The fact that the superior court exercises both equitable and probate jurisdiction, will not warrant the upholding of a judgment for an accounting, rendered against an executor of a deceased executor in an action in equity brought after the enactment of said section 1639, where such executor, at the time h'e accounted in such action, objected to the jurisdiction of the court to compel him to account therein.</p>

<p>Petition to Revoke Probate of Will—Lapse of Year—Dismissal— Absence of Evidence from Record—Review upon Appeal.—On an appeal from an order dismissing a petition to revoke the probate of a will, on the ground that it was filed more than one year after the will was admitted to probate, where the record contains no bill of exceptions showing the evidence taken and considered by the court upon the hearing of the motion to dismiss, the only question that can be considered is whether or not the record, or what may be considered as the judgment-roll, is sufficient to sustain the order.</p> <p>Id.—Record upon Appeal—Petition with Date of Filing—Motion to Dismiss'—Order with Recital of Date of Probate—Lapsed Tear Shown.—Where the papers constituting the record upon appeal are the petition to revoke the probate, with date of filing, May 7, 1908, the motions of the parties to dismiss the petition, and the order of dismissal, which recites or finds that the will was admitted to probate by an order “duly given and made on the '4th day of May, 1908,” the record shows on its face that the petition to revoke the probate of the will was filed more than one year after the will was admitted to probate, which is forbidden by the terms of section 1327 of the Code of Civil Procedure.</p> <p>Id.—Recital in Order Admitting Will to Probate as to Date—Certificate of Proof Attached to Will.—Where the transcript also sets forth the order admitting the will to probate, which recites that it was “done in open court this 4th day of May, 1908,” and the certificate of the judge attached to the will bears the same date as to its probate, these papers afford ample evidence that the will was admitted to probate, on that day, and that the proper record thereof is in the minutes of the court bearing that date.</p> <p>Id.—Date of Subsequent Filing by Clerk Immaterial.—The filing by the clerk of an order signed by the judge in open court is not an essential or necessary part of the making of the order, or of the date of the admission of the will to probate; and the fact that it was filed five days after the admission of the will to probate was immaterial.</p> <p>Id.—Transcript not Showing Date of Entry in Minutes—Presumption upon Appeal.—Where the transcript does not show the date of the entry of the order admitting the will to probate in the minutes of the court, it must be presumed upon appeal in the absence of any evidence to the contrary, that the clerk performed his official duty and entered the order in the minutes of the court immediately after it was made on the same day.</p> <p>Id.—Conclusiveness of Recital in Order Appealed from—Finding upon Proofs.—The recital in the order appealed from as to the date of the order admitting the will to probate is conclusive. It has the effect of a finding that the proofs made at the hearing showed that the will was admitted to probate on May 4, 1908.</p> <p>Id.—Proper Order Dismissing Proceeding—Affirmance.—The contest instituted by the petition to revoke the probate having been filed more than a year after the admission of the will to probate was properly dismissed, and the order dismissing it must be affirmed.</p>

<p>Partnership—Termination—General Provision for Settlement and Division of Assets—Special Provision for Purchase—Exception of “Moneys Earned and Collected.”—Where a partnership agreement provides generally for a settlement and equal division of assets, but also provides specially that the partner desiring to continue the business shall purchase all of the retiring partner’s interest in the assets and good will of the business for the cash price of one thousand dollars, in consideration of which the retiring partner shall assign all of his interest in the assets and good will of the business, “other than moneys earned and collected,” the party accepting such purchase money can claim no interest in book accounts of “moneys earned and not collected,” but is limited to the single exception specified.</p> <p>Ib.—Action to Enforce Cash Payment—Plaintiff Limited to Terms of Unambiguous Contract.—In an action by the retiring partner to enforce the cash payment, no question as to the reformation of the partnership contract is involved, but only the legal construction of the written instrument calling for such cash payment, in the light of the circumstances attending its execution; and the plaintiff therein is limited to the terms of the unambiguous contract providing for the purchase of his interest, which excepts only from the operation of the transfer thereof such moneys as had been “earned and collected.”</p> <p>Id.—Construction of Contract—Bule as to General and Specific Provisions.—It is a familiar r.ule as to the construction of a contract, that when general and particular provisions deal with the same subject-matter, the specific provisions, if inconsistent with the general provisions, are of controlling force. If, therefore, it be said that by the general provision, accounts are to be taken, and the properties of the partnership, including the book accounts, are to be divided equally between the partners, this must be controlled by the specific provision that upon payment of one thousand dollars, all assets, including the book accounts other than “moneys earned and collected,” are to become the property of the partner making the payment.</p> <p>Id.—Bule as to Giving Effect to All Provisions—Ordinary and Usual Meaning of Terms.—It is a further rule of construction that all parts of a contract are to be given effect, if this may be done without violence to the manifest expressed intent of the parties, and that its terms are to be construed according to the ordinary and usual acceptation of the language, unless an intent that they should be construed otherwise plainly appears. Under this rule, the partnership contract is to be construed as plainly excepting from the assignment only “moneys* earned and collected.”</p> <p>Id.—Improper Judicial Beformation.—To make a further exception from the purchase and assignment of the assets, book accounts of “moneys earned and not collected” would amount to an improper judicial reformation of the contract for purchase and assignment of the assets.</p> <p>Id.—Improper Construction of Written Instrument not Necessitating New Trial.—It is held that, since the only error into which the trial court fell in rendering judgment was an improper construction of the terms of a written instrument, a new trial is not necessary, but that the judgment will be reversed with directions to enter judgment in accordance with the construction thereof herein expressed.</p>

<p>Municipal Corporations—Charter of San Diego—Sale of Bonds for Roads and Boulevards—Act of 1901—Void Ordinance—Injunction by Taxpayers.—The city of San Diego, after voting for bonds under the act of February 25, 1901, for the building, construction, and acquisition of designated roads and boulevards, and selling the same, had no power under its charter to pass an ordinance authorizing the board of public works to expend such moneys in employing teams and men for the construction thereof, without previous advertisement and the letting of contracts therefor to the lowest bidder, as required by the provisions of said act of 1901; and taxpayers of the city of San Diego may properly maintain an action to enjoin such unauthorized action, as inconsistent with the terms of that act.</p> <p>Id.—Silence of Charter as to Disposition of Revenues for City Improvements—Subjection to ■ General Laws.—Although the charter of San Diego authorizes it in general terms to incur bonded indebtedness, under the terms of the general law applicable thereto, yet it being silent, upon the subject of its power to devote its ordinary revenues to street improvements, and leaving that matter to the general law, it cannot claim to be exempt from general laws relating to the expenditure of bonded indebtedness incurred under the General Bonding Act of 1901.</p> <p>Id.—City when Subject to General Laws as to Municipal Affairs.— A city cannot claim to be exempt from general laws relating to municipal affairs, if there is no provision relating to such affairs in the charter under which it is acting, whether such charter is one framed by itself, or was given to it by the legislature.</p> <p>Id.—Expenditure of Bond Money Limited to Terms of Act.—There being no mode provided in the charter of San Diego for the expenditure of the bonded indebtedness authorized and voted for by the city under the Bonding Act of February 25, 1901, that act must be followed, and the work must be done according to contract, as therein commanded.</p> <p>Id.—Eights of Citizens and Taxpayers to Maintain Action.—It is not essential to the rights of citizens and taxpayers to maintain an action to enjoin an illegal expenditure of public funds, that they must show a special injury peculiar to themselves. It is sufficient that the mode contemplated might be expensive and wasteful, and that contractors capable of giving the best service might be precluded from participating in the effort to secure contracts to do the work. This would give the plaintiffs sufficient standing to maintain the action.</p>

<p>Guardian ad Litem—Compensation of Attorney for Conducting Litigation—Order Fixing Fee in Guardianship Proceedings—Certiorari.—An attorney employed by a guardian ad litem of a minor, to prosecute an action pending in the superior court on behalf of the minor, and whose fee for his services had never been fixed by the court having jurisdiction of the action, cannot maintain a writ of review to annul the order of another department of the superior court, made in the guardianship proceedings of the estate of such minor, fixing his fee for such services.</p>

<p>Municipal Corporations—Election Contest of Town Trustee op Burlingame—Town op Sixth Class—Tie Vote—Construction op Statute.—The board of trustees of the town of Burlingame, as a municipal corporation of the sixth class, is vested with general power, under section 860 of the Municipal Corporation Act, to judge of the qualifications of its members, and of all election returns, and to determine contested elections of all city ofSeers, and has jurisdiction to determine a contested election of a town trustee, though two candidates therefor have received a tie vote, and no election was declared between them, where the contestant claims a majority of all the legal votes cast.</p> <p>Id.—Effect op Tie Vote under Former Code Provision Immaterial.— The fact that, under the Code of Civil Procedure, prior to the enactment of section 1124 thereof in 1907, there was no provision for determining the result of an election in the superior court, in case of a tie vote, is immaterial, and cannot affect the construction to be given to section 860 of the Municipal Corporation Act, in such case. The phraseology of the former code provision, and of section 860 of that act, are essentially dissimilar, and there is no ground of conclusion from one to the other.</p> <p>Id.—Plurality op Votes Essential to Election—Attack upon Correctness op Finding op Tie Vote.—Though the plurality of the votes cast in favor of one candidate is essential to a choice, or election of that candidate, yet the grant in general terms of a power to determine “contested elections” may well be interpreted to cover the case of an attack upon the correctness of a finding that there was a tie vote, as well as that of a return that one candidate rather than the other has been elected. The object of the proceeding, in either case, is to determine who has received the highest number of votes legally .cast.</p> <p>Id.—Mandamus to Compel Board op Trustees to Determine Election Contest.—It is held that a writ of mandate should issue to compel the board of trustees of the town of Burlingame to proceed to determine the election contest of a trustee instituted before them.</p> <p>Id.—Insufficient Answer—Technical Objections to Procedure— Power of Council.—There being no statute prescribing the details of procedure to be followed by the town council, that body may adopt any mode of procedure which prescribes to the parties the fundamental essentials of notice and hearing; and an answer to the writ of mandamus, urging technical objections not such as should be held to deprive the board of trustees of the right to determine the questions raised by the statement of contest before them, is not a sufficient answer to the petition for the writ of mandate to compel such determination of the contest.</p> <p>Id.—Indefinite Postponement of Contest—Jurisdiction not Lost.— The fact averred in the answer that the trustees indefinitely postponed the hearing of the contest out of deference to the ruling of the superior court that it had exclusive jurisdiction to determine the contest, could not deprive the board of trustees of jurisdiction or right to have the contest before it decided in the manner provided by law.</p> <p>Id.—Concurrent Jurisdiction of Superior Court.—There is no phraseology in the grant of jurisdiction to the board of town trustees that deprives the superior court of concurrent jurisdiction to determine a contest for the same office contested before the board, instituted in the superior court by one of the candidates under section 1124 of the Code of Civil Procedure, in case of a tie vote.</p> <p>Id.—General Principle of Concurrent Jurisdiction.—The general principle is that the jurisdiction of the superior court remains unless it appears with unequivocal certainty that the legislature intended to take it away. It is held that section 860 of the Municipal Corporation Act does not declare “with unequivocal certainty,” or with any degree of certainty, that the legislature intended to divest the superior court of its jurisdiction to proceed with a contest instituted before it for the same office under the Code of Civil Procedure.</p> <p>Id.—Prohibition not Grant able to Arrest Jurisdiction of Superior Court.—The writ of prohibition lies only to arrest proceedings instituted without or in excess of jurisdiction, and it cannot be granted to deprive the superior court of its concurrent jurisdiction regardless of the effect of conflicting adjudications which might be made by two tribunals.</p> <p>Id.—Effect of Jurisdiction First Instituted by Trustees—Plea of Prior Action Pending—Duty of Superior Court to Grant Stay—• Error.—The effect of jurisdiction first invoked by the trustees does not per se deprive the superior court of jurisdiction. Its attention should be called to it, as a prior action pending, when it would be its duty to grant a stay until the prior contest is determined. But its failure to recognize such plea would not deprive it of its jurisdiction, but it would be error, determinable upon appeal.</p>

<p>Partnership—Final Decree—Transfer of Possession—Final Injunction—Appeal—Bond for Costs—Execution not Stayed— Supersedeas Disallowed.—Upon appeal from a final decree adjusting the affairs of a partnership, and providing for its continuance on the settled basis, to pay secured indebtedness, and for the transfer of possession to the managing partner, whose possession had been interfered with, and for a final injunction against such interference, where the only bond given by the appellants was a three-hundred-dollar bond for costs, and no application had been made to the superior court to fix the amount of a stay-bond upon such appeal, an application by the appellants to this court for a writ of supersedeas will be disallowed, without regard to the mode in which the possession was transferred.</p> <p>Id.—Interlocutory Decree not Final.—An interlocutory decree merely determining the existence of a partnership, and that an accounting is necessary between them, and ordering a full and complete accounting before a referee appointed for that purpose was not a final decree, and was not intended by the court to be an ultimate adjudication of the merits between the parties.</p> <p>Id.—Single Final Judgment Contemplated.—Our system of procedure contemplates that there shall be but one final judgment in a cause, and in the absence of a clear showing it is not to be presumed that the court would attempt to dispose of a ease piecemeal, by successive final judgments, each covering part of the matters in controversy.</p> <p>Id.—Injunction Pendente Lite—Effect of Stay-Bond on Appeal— Power of Court not Superseded—Expiration at Final Decree.— Though an injunction pendente lite granted at the time of such interlocutory decree to prevent interference with possession ordered to be changed to a managing partner is appealable, and a stay-bond thereon prevented such change of possession pending the appeal; yet such appeal did not supersede the power of the court to proceed to final decree, and where a permanent injunction was embodied in the final decree to prevent the same interference, the injunction pendente lite expired with such decree, and nothing further can be claimed by virtue thereof.</p>

<p>Motion to Set Aside Information—Non-representation by Counsel— Unfamiliarity with English—Evidence not Written Up—Continuance Refused—Motion Properly Denied.—Upon a motion by a defendant not familiar with English, to set aside the information for non-representation by counsel, without understanding his right, and for a continuance of the hearing until the evidence was written up which had not been filed in time, it was held that the court might •well have granted a continuance until the reporter’s duty was done, and have taken steps to compel its performance; but that it cannot be said that the refusal of the continuance amounted to error, if the defendant was not prejudiced thereby in a substantial right; and as he had it in his power to support the motion to set aside the information by his affidavit, and as there was no evidence to support the motion, it was properly denied.</p> <p>Id.—Information fob Murder—Instruction as to Grades of Offense —Adoption of Language of Code not Misleading.—Under an information for murder, an instruction as to the grades of the offense, by defining the degrees of murder, and the crime of manslaughter, in the language of the code, was not misleading, where no instruction in elaboration or exposition of the principles of the code definition was requested by the defendant.</p> <p>Id.—Proposal of Defendant to Move for New Trial and Prepare Record—Proper Extension of Time.—Where defendant’s counsel proposed to move for a new trial and requested 'an extension to prepare the record, and such extension was granted within the fifteen day limit authorized by the court, such extension does not of itself entitle the defendant to a new trial because no motion was then pending and undetermined. It is sufficient that such motion was in contemplation, and was declared to be desired, and that the extension was accepted as satisfactory by defendant’s counsel.</p>

<p>Practice—Setting Aside Default—Discretion.—An application to set aside a default, under section 473 of the Code of Civil Procedure, is largely in the discretion of the trial court. In the present ease it cannot be said that the court abused its discretion in granting it.</p> <p>Taxation—Deed by Tax-Collector for Property Sold by State— Collector May Execute Corrected Deed.—When a tax-collector has issued a tax-deed for land sold by the state, which is defective in not conforming in its recitals to the facts, he has power, without special statutory authorization, to execute a second and corrected deed reciting the facts, but he has no power to execute a second deed which shall misstate the facts respecting any proceedings prior to its execution. Such a deed would be void.</p> <p>Id.—Assessment of Mortgage Assigned as Collateral—Mistake in Name of Owner.—Where a mortgage upon land, which is properly assessed for purposes of taxation as an interest in the land, is assigned as collateral security for a debt of the mortgagee, such debt is not assessable as a mortgage interest in the land. An assessment of it as such is invalid, and is not a mere immaterial mistake as to the owner of the real property, within the meaning of section 3628 of the Political Code.</p> <p>Id.—Excessive Assessment of Mortgage^Invahd Tax-deed.—An assessment of a mortgage on real property cannot be in excess of its face value, and a tax-sale based upon such an excessive valuation is invalid.</p>

<p>Guardian and Ward—Investments of Funds by Guardian—Action of Guardianship Court.—The only action of the guardianship court which will protect a guardian in the matter of the investment of the funds of the ward, must be action had under such circumstances as show a bringing of such matter by the guardian to the attention of the court for an adjudication thereon.</p> <p>Id.—Orders for Withdrawal of Small Sums for Support of Wards— Ratification of Investment not Implied.—Orders made by the guardianship court, from time to time, for the withdrawal of funds from the possession of the administrator for the support of the wards do not indicate any knowledge on the part of the court that the guardian had made any permanent deposit of the funds, nor imply any ratification of the same or of the mode of the control thereof.</p> <p>Id.—Measure of Care and Skill Required of Guardian.—The measure of care and skill required of a guardian or similar trustee is such as would be exercised by a man of ordinary prudence and skill in the management of his own business.</p> <p>Id.—Rule as to Temporary Deposit of Trust Funds in Bank for Safe Keeping—Necessity of Earmarking Deposit—Failure of Bank.—-The necessity of temporarily depositing trust funds in a bank for safe keeping is recognized, and if a trustee, for the purposes of such temporary deposit, exercises the degree of care and skill stated in the selection of a bank, and so earmarks the deposit as to show its trust character, he is not responsible for the failure of the bank; but if he deposits the money in his individual real name, without any designation or indication of his representative character, he is generally liable in the event of loss through the failure of the hank, notwithstanding he has not been guilty of any negligence.</p> <p>Id.—Permanent Investment without Order of Court—Loan to Bank on Personal Security—Loss from Failure—Want of Due Care—Liability of Guardian.—In the absence of an order of court permitting it, a deposit by the guardian of the funds of his ward in a bank for permanent investment is, in effect, a loan to the bank on personal security only, which is not a proper exercise of due care. In such case, the guardian is liable to make good the loss of such permanent investment as the result of the failure of the bank.</p> <p>Id.—Relinquishment op Control op Investment to Surety op Guardian—Guarantor op Fund—Motive and Cause op Loss Immaterial.—Where there was a relinquishment of control over the permanent investment by the guardian by leaving the bank book in the control of a surety company which was sole surety on the guardian’s bond, .so that the guardian could make no draft upon the fund without its consent, the guardian thereby became a guarantor of the fund, irrespective of his motive or of whether his surrender of control was the cause of the loss of the fund. Where the loss occurred through failure of the bank, the court will not inquire, in determining the liability of the guardian, whether such loss was due to his abdication or control of the investment.</p> <p>Id.—Duty op Guardian to Control Fund—Withdrawal on Indication op Danger.—It was the duty of the guardian, as trustee of the investment fund, to retain absolute control thereof, and to withdraw the money from the bank upon the slightest indication of danger or loss. He cannot perform his duty promptly if he is clogged by the necessity of procuring the concurrent action of other persons. Id.—Control op Trust Fund by Surety Dependent on Sanction op Law.—It is held that if it be desired to provide some method by which a surety company may have some control of a trust fund as to which it has merely become surety for an officer of the court, such as a guardian or administrator, to whom the court has given such fund in charge, the method must be provided by the legislative department of the government; for the law, as it now stands in this state, does not authorize it.</p>

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

MOTIONS to dismiss appeals from orders of the Superior Court of Imperial County. Franklin Cole, Judge. The facts are stated in the opinion of the court.

<p>The facts are stated in the opinion of the court.</p> <p>Gibson, Trask, Dunn & Crutcher, and John H. Lathrop, for Appellant.</p>

<p>Poison Law—Amendment of 1909—Unlawful Possession of Opium —Constitutional Law—Title of Act.—The aet entitled “An act to regulate the sale and use of poisons in the state of California, and providing a penalty for the violation thereof,” as amended in 1909, by providing that it shall be unlawful for any person to have in his possession any opium, etc., or any preparation thereof containing more than two grains to the fluid ounce, except upon the written order or prescription of a physician, dentist, or veterinary surgeon, or except otherwise made lawful in certain excepted eases, is not unconstitutional on the ground that the subject of the act is not embraced within its title, as required by section 24 of article IV of the state constitution.</p> <p>Id.—Amendment not Violating Federal Constitution—Property-Eight in Opium not Infringed.—Such amendment to the act regulating the sale and use of poisons, and forbidding the possession of opium, except in certain specified eases, is not violative of any of the provisions of the fourteenth amendment to the constitution of the United States, and is no infringement upon the rights of liberty and property protected thereby.</p> <p>Id.—Eight to Hold and Enjoy Property Subject to Police Power.— The right to hold and enjoy property is subject to such reasonable regulation as is necessary to promote the common good, and to the proper exercise by the legislature of its general police power. It is no valid objection to a police regulation that it prevents a person from doing something that he wants to do; but under the exercise of the general police power, persons and property are subject to restraints and burdens to secure the general welfare of the state.</p> <p>Id.—Act within Police Power—Discretion of Legislature.—When it is determined that any act is within the police power of the state, nothing further need be said. The rest is left to the discretion of the law-making power in the exercise of that plenary power in the state, which enables it to prohibit all things hurtful to the public welfare.</p> <p>Id.—Harmful Effect of Opium—Valid Eegulation.—Opium is an active poison, which has no beneficial use except as a medicinal drug; and its unrestricted use would- have a debasing and harmful effect on the moral and economic welfare of a large portion of our population; and the act which permits its use under all proper circumstances, while otherwise prohibiting its possession, is a valid regulation within the general police power of the legislature.</p> <p>Id,—Construction of Act—Punishment of Guilty and not of Innocent.—The act is not to be construed as punishing an innocent or unconscious possession of opium; but it is clearly intended to punish the guilty, conscious, and voluntary possession thereof.</p> <p>Id.—Bational Belief that Unrestricted Use of Opium Leads to Excess—Justification - for Eestrictions.—The validity of legislation does not depend upon the actual existence of supposed facts; but it is sufficient if the law-making body may rationally believe them to be established. If the belief that the use of opium, once begun, almost invariably leads to excess may be entertained by reasonable men, which is undoubted, such belief affords a sufficient justification for applying to opium restrictions which might be unduly burdensome, as applied to other substances. Assuming, as this court must, that the legislature acted upon some such view, the restrictions upon the right to possess opium, and the other poisonous drugs named in the act, are to be considered reasonable and necessary to protect the public from the evils aimed at by the law.</p>

<p>APPEALS from an order of the Superior Court of Los Angeles County enjoining the defendants from performing certain acts pending a motion for a new trial, and from an order refusing to dissolve such injunction. Curtis D. Wilbur, Judge.</p> <p>The facts are stated in the opinion of the court.</p> <p>Leslie R. Hewitt, City Attorney, and Emmet H. Wilson, Chief Deputy, for Appellants.</p>

<p>The facts are stated in the opinion of the court.</p> <p>Stanley Moore, L. G. Carpenter, Fred C. Clift, and W. H. Orrick, for Appellant.</p> <p>U. S. Webb, Attorney-General, and J. Charles Jones, for Respondents.</p>

<p>The facts are stated in the opinion of the court.</p> <p>Charles W. Slack, and Walter Perry Johnson, for John Finnell, Jr., Administrator, Appellant.</p>

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

<p>Estates or Deceased Persons—Proceedings under Section 1723 or Code op Civil Procedure—Action in Equity to Determine Community Property in Wipe’s Name—Absence op Parties—Statutory Proceeding.—When a complaint under section 1723 of the Code of Civil Procedure states a ease in equity to quiet title to alleged community property held in the wife’s name, if all necessary parties had appeared before the court, the decree therein would be conclusive; but where there was no personal representative of the deceased wife before the court, and not all of her heirs were before the court, this court is bound to consider the decree relied on solely as one given in the special proceeding provided by that section, and to give to it, in the event that the proceedings had were all in strict accord with the requirement of that section, only such effect as upon a proper construction of the section, must be given to a decree under its provisions.</p> <p>Id.—Object op Statutory Proceeding—Decision.—It is settled by the decision of this court that the proceeding provided for by section 1723 of the Code of Civil Procedure was only intended as a proceeding to have it determined that a certain person is dead upon whose death the asserted right of another person depends, and not one to have the validity of the right conclusively adjudicated.</p> <p>Id.—Conditional Effect of Decree.—The decree in the proceeding under that section merely determines that, if the party petitioning has any asserted right or title accruing on the death of another person, such asserted right or title has accrued. It is often convenient and important to those interested in or examining a title to have some record evidence of the death of a life-tenant, a home, stead claimant, or other person upon whose death some right or estate vests.</p> <p>íd.—Decision as to Construction and Effect of Decree not Obiter Dictum.—The decision of this court in the case of Hansen v. Union Sowings Banh, 148 Cal. 157, as to the construction to be given to section 1723 of the Code of Civil Procedure, and as to the effect of the decree, is not obiter dictum. It was one of two grounds upon which the court held that a decree adjudicating the validity of a homestead right asserted under that section did not establish the validity of the asserted right.</p> <p>Id.—Distinct Grounds of Decision—Each Ground not “Mere Dictum.”—While it is not “necessary” to the decision of an appellate court that there should be more than one good ground or reason therefor, yet there may be more than one ground, and where the court bases its decision on two or more distinct grounds, each ground so specified is, as much as any of the others, one of the grounds a ruling upon which is upon a question involved in the case, and not “mere dictwn.”</p> <p>Id.—Decree upon Notice Provided for not Conclusive—Due Process of Law not Provided for.—It is not to be supposed that the legislature contemplated that a conclusive adjudication of rights should be made under the notice provided for in section 1723 of the Code of Civil Procedure, which does not by its terms require or provide for that due process of law which is required by the state and federal constitutions. In order to constitute due process of law, in any action against known defendants, personal service of summons is essential, and publication of same as against non-residents must not be less than two months. But under that section the decree may be made after such notice by publication or otherwise as the court may order, which might be satisfied by publication for one day, or posting of a notice one day before the hearing.</p> <p>Id—Question not Argued nor Decided—Modification of Opinion— Conclusiveness of Decree upon Heirs Appearing.—It is held that the question whether the decree rendered under section 1723 of the Code of Civil Procedure was conclusive upon such heirs as appeared before the court and submitted themselves to its jurisdiction, was not argued or decided, and that this court will not modify the decree in that respect upon petition for rehearing, but that there is nothing in the opinion that can be taken as foreclosing this question in future proceedings in the cause.</p>

<p>Executed Contract to Exchange Properties—Plaintiff Becorb Owner of Defendant’s Property—Possession—Inequitable Belief to Plaintiff.—Where under an executed exchange of real and personal properties, the plaintiff stands as the record owner of all the real and personal property derived from the defendant, and has entered into possession and control of at least a part thereof, has collected debts, and made contracts as to its management; and seeks the aid of a court of equity to cancel merely his own deed and bill of sale to defendant, which has been granted, it is held to be manifestly inequitable that he shall thus be restored to everything that he has parted with while retaining the title to defendant’s property.</p> <p>Id.—Bule of Equity against Piecemeal. — Equity, having acquired jurisdiction, does not do justice by piecemeal.</p> <p>Id.—Contract of Defendant to Clear Title and Pay Excess of Encumbrances—Breach—Equitable Bemedy.—Where there was an excess of encumbrances on defendant’s property, some of which had been paid, but not canceled, and he was to clear the title from such paid encumbrances, and to pay the excess within a certain time, which he had failed to do, on demand, even though the plaintiff shows no desire to rescind, and makes no offer to restore, yet an equitable remedy must be either for a rescission, with such an accounting as may be necessary to adjust loss or damage, or a decree limiting the time within which defendant must fulfill his contract to pay off his excess indebtedness and clear the clouds upon his titles, or upon failure to do so, to direct a cancellation of the deeds and contracts, and an adjustment of rights.</p>

<p>Action to Quiet Title—Defense—Deed from Irrigation District— Finding Against Stipulation—De Facto District—New Trial —Materiality of Finding.:—In an action to quiet title, where the defense was a deed for non-payment of an assessment of an irrigation district, in which it was found that the irrigation district did not exist and had not been acting in good faith as such during the period involved; but it was stipulated by counsel during the trial that during said period the said district had been and now is acting in good faith, as such, the defendant against whom judgment was rendered is entitled to a new trial on the ground that the finding against a de facto irrigation district is against the evidence, if the finding is not rendered immaterial in view of other findings.</p> <p>Id.—Unsupported Finding as to Estoppel of Judgment—Action by ■ Taxpayer in Behalf of Others—Judgment Declaring Organization Invalid.—Such finding is not rendered immaterial by an unsupported finding that defendant was estopped as a taxpayer by a previous judgment declaring the organization of the irrigation district invalid, at suit of one taxpayer brought on behalf of himself and others similarly situated, where it is not shown that defendant had any notice of such action, or that he appeared or joined therein in any way. The assumption by the plaintiff to act for others similarly situated did not require any one having a like interest to come and join the plaintiff in the action.</p> <p>Id.—Bule as to Plaintiff Acting for a Class of Persons.—Where one plaintiff belonging to a numerous class of persons brings an action in behalf of himself and all others similarly situated, the judgment which may be rendered is binding on others of the class who accept the representation, and who connect themselves with the litigation, either by coming into the suit or seeking to share in the fruits of the judgment, or by acquiescing in it. But it is not binding upon those who do not participate in the proceeding or otherwise join in it.</p> <p>Id.—Effect of Finding as to Estoppel of Judgment Vacating Confirmation Proceedings—Second Judgment against Bonds.—The finding against the stipulation is not rendered immaterial by the effect of a finding as to the estoppel of a final judgment vacating a previous judgment confirming the bonds, and the organization of the district made eight years previous, at suit of several landholders of the district who assailed the validity of the corporation and the regularity of the bonds, and the rendition of a second judgment decreeing that the district was never organized, and that its proceeding for the issuance of the bonds were void, even if the later judgment be taken as the only final judgment.</p> <p>Id.—Second Judgment not Binding—Effect of Stipulation—Estoppel of Parties Agreeing.—The second judgment could not bind the defendant, as against the stipulated and admitted fact that the district had been in good faith exercising the powers of an irrigation district de facto, during all of the time material to the questions here involved. As such, its acts regularly performed were valid; and the parties having thus admitted its de facto existence, could not be permitted to contradict their admission by judgment or otherwise. The stipulation was binding for all of the purposes of the action, and precluded any finding in opposition thereto.</p> <p>Id.—Judgment for Invalidity of Bonds not Avoiding Assessment for Bona Fide Holders.—Since it appears that the proceedings for the confirmation of the bonds was taken in 1890, and the judgment confirming them was not set aside until eight years later, it is clear that, in the interval, the bonds may have passed into the hands of various bona fide holders, in whose hands they would be valid and binding obligations of the district; and valid assessments might be levied to pay the annual interest thereon. The decree setting aside the confirmation could not affect the rights of such bona fide holders.</p> <p>Id.—Prima Facie Evidence from Recitals in Certificate of Sale and Deed not Overcome.—Where the final decree as to the bonds did not purport to question the validity of proceedings instituted for levy of an assessment for interest on bonds issued, and there is no evidence to overcome the prima facie showing, under section 48 of the Irrigation Act, which follows from the recitals, in the certificate of sale and deed of the collector, such sale and deed are sufficiently supported:</p>

<p>Deeds—Construction ot Description—Monuments Control Courses and Distances.—In the absence of anything clearly requiring a different construction, courses and distances named in a description in a deed must yield to fixed monuments.</p> <p>Id.—Line Running to Fixed Monument.—Where a call in a deed is for a line running to a fixed monument, such line would be carried to that point, whether the distance required to do so were more or less than that named in the deed.</p> <p>Id.—Tracing Description on Ground.—In attempting to trace the description on the ground, the court should follow the footsteps of the surveyor rather than to take the reverse course.</p>

<p>The facts are stated in the opinion of the court.</p> <p>Gray, Baker, Bowen, Allen, Van Dyke & Jutten; for Appellant.</p>

<p>Water-Bights—Action to Abate Ditch and Enjoin Diversion—Prescriptive Claim by Dependants to Three Inches Sustained— Failure op Proof—Be versal.—Where, in an action to abate a water-ditch maintained by defendants on plaintiff’s land, and to enjoin the diversion of water through the same, defendants claimed a prescriptive right to maintain the same and to divert three inches of water from a creek through the same to his riparian lands, and that plaintiff had diverted the waters of the creek to non-riparian lands, to defendants’ damage, and the judgment was for defendants as claimed, it is held that, regardless of other questions, the judgment must be reversed, for the want of any definite proof as to the amount which defendants were entitled to divert, or as to the extent of their actual diversion of water by means of said ditch.</p> <p>Id.—Prescriptive Title to Divert Water above Boundary—Finding of Quantity Sustained by Evidence Essential.—In the absence of a finding of the actual diversion of some definite quantity of water, sufficiently supported by evidence, the plea of prescriptive right to take the water above the boundary must necessarily fail.</p> <p>Id.—Indefinite Judgment for “Three Inches of Water”—Miner’s Inches Should be Expressed and Proved—Means of Proof.—The judgment for “three inches” of water was indefinite. The number of “miner’s inches,” as defined by the act of March 23, 1901, should be expressed and proved. To show the number of “miner’s inches” there should either be evidence of a measurement according to some prescribed method, or a showing of the fall at the point of diversion and the grade of the ditch, as evidence of facts upon which a definite calculation of the quantity diverted could be made to justify a decree for defendants.</p> <p>Id.—Sufficiency of Evidence as to Prescriptive Title to Ditch.—It is held that the evidence was sufficient to support a conclusion that the husband and wife defendants have acquired by prescription the right to maintain the ditch constructed by them on plaintiff’s land for the purpose of diverting from the creek above, and conducting to their riparian land, whatever quantity of water they continuously used through their ditch.</p> <p>Id.—Construction of Ditch with Consent of Former Owner—Circumstances Warranting Prescriptive Title.—Although it appears that the ditch was originally constructed in 1897 with the consent of the former owner of the land, yet, the circumstances under which the permission was given are sufficient to constitute a basis for a claim of right of the husband and wife, defendants, permanently to maintain such ditch, where it appears that such maintenance was thereafter, as against such owner and his grantee, to their knowledge, and all other purposes, open, notorious, under a claim of right, adverse and uninterrupted, for the period of prescription.</p> <p>Id.—Solicitation of Waiver of Other Hiparían Bights—Bight to Prevent Use of Ditch not Acknowledged.—The promise by the husband, made at the solicitation of the plaintiff, before the statute of limitations had run, to get his wife, in whose name their property stood, to surrender all rights as riparian owner in the stream except such as they exercised by means of the ditch, which waiver was not secured, does not compel the conclusion of the acknowledgment of any right in the plaintiff to prevent the use of the ditch or the diversion of water through the same.</p> <p>Id.—Mistaken Belief of Bights of Parties as to Condemning Bight of Way Not Precluding Prescription.—Evidence that the former owner of the land and the husband, when the ditch was constructed, mistakenly believed that the husband and wife could as riparian owners obtain a right of way over his land by a resort to condemnation proceedings, could not in any way operate to preclude the subsequent acquisition of the right of prescription by the husband and wife. It rather supports the contention that the subsequent construction and maintenance of the ditch was under a claim of right adverse to such owner and all other parties.</p> <p>Id.—Diversion bt Plaintiff to Non-Bip arlan Lands not Sanctioned —Absence of Estoppel.—It is held that the evidence does not show that defendants are estopped to assert their rights in the waters of the creek running in the ditch by adequate proof, by reason of the diversion thereof by plaintiff to non-riparian lands, where it does not appear that they knew of, or had any reason to suspect any intended diversion by the plaintiff of any water to which they were entitled until after such diversion had actually been made.,</p>

<p>Appeal prom Judgment not Taken in Time.—The appellate court has no jurisdiction of an appeal from a judgment taken more than six months after its entry. Such an appeal must he dismissed.</p> <p>Common Carriers—Liability as to Passenger Carried Free.—Under section 2096 of the Civil Code, a carrier of a passenger who does not pay fare for Ms passage and is carried free, is only required to use ordinary care and diligence for his safe carriage.</p> <p>Id.—Bailroad—Unauthorized Free Passage—Want of Authority of Conductor—Trespasser.—If a person obtain free passage on a passenger train from the conductor by means of fraud or misrepresentation, or with knowledge of the want of authority of the conductor to allow such free passage, he does not become a lawful passenger without reward, under section 2096 of the Civil Code, but is a mere trespasser, entitled only to demand that he be not willfully or recklessly injured.</p> <p>Id.—Collusive Arrangement for Passage with Conductor—Notice of Want of Conductor’s Authority.—A person riding on a train without payment of fare, in pursuance and with knowledge of an arrangement made between the conductors thereof, whereby he was given an expired pass running to one of the conductors which he was to present to the conductor in charge of the train, who was to punch and return it as if it were a ticket, is charged with notice, as a reasonable man, that it was contrary to the rules of the railroad company to allow him free passage. The status of a person so riding is that of a trespasser and not that of a passenger, and the company is not liable for causing his death unless it has been guilty of willful or wanton injury.</p>

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

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

<p>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>Husband and Wife—Transfers to Avoid Probate;—Fraud.—Attempts by a husband and wife to avoid the delay and expense of probate by the execution of papers, the one to the other, which were either to be destroyed or placed of record, according as the one or the other should happen to die first, are not favored. Such attempts are in the nature of a fraud upon the law, and must stand or fall, not in accordance with the intention of the parties, nor in contemplation of the innocence of their purpose, but solely in consideration of what by their acts they legally accomplished.</p> <p>Id.—Delivery Question of Fact.—Whether the delivery of an instrument has actually been made or not is a question of fact.</p> <p>Id.—Community Property—Land Deeded to Wife—Evidence Showing Community Character.—Where land is conveyed to a married woman by an instrument in writing, the presumption is, under section 164 of the Civil Code, that the title vested in her as her separate property. Evidence, however, that the property was purchased and paid for out of community funds, that it was purchased for and •used as the family home, without surrender of exclusive possession to the wife, that all business was transacted by the husband and none by the wife; that in the case of other lands, title to which stood in the name of the wife, the husband made the contracts for their sale and that the wife made a deed pursuant thereto; and that where promissory notes were taken in the name of the wife, the moneys for which the notes were given were paid over by the husband out of the community funds, and when payments were made on the notes they were made to the husband and receipted for by him, is sufficient to sustain a finding that the land was community property.</p> <p>Id.—Deed from Wife to Husband—Delivery.—Destruction of Deed after Husband’s Death.—Subsequent to the execution of such deed to the wife, she, in pursuance of the directions of her husband, took a deed to the property drawn by him, from herself as grantor, to him, as grantee, and acknowledged it before a notary, by whom she was instructed that in order to vest title in her husband it would be necessary for her to deliver the deed to him, but that it was not necessary to have it recorded. The notary further instructed her that if so delivered and not recorded, and her husband died first, she could destroy the deed and the record title would stand in her name. She gave the deed to her husband, who informed her that she had correctly obeyed his instructions. He retained possession of the deed, did not place it of record, and upon his death it was destroyed by his wife. SelS, that the evidence was sufficient to show a delivery of the deed by the wife, with intent to divest herself of her dominion and control over the property beyond power of recall, and to immediately vest her husband with title to it.</p> <p>Id.—Fraud as Defense Must be Pleaded.—When fraud is relied on as an element of defense and invoked as conferring a right against the plaintiff:, it must be alleged.</p> <p>Id.—Declarations of Husband—Quieting Title to Land Standing in Name of Wife.—In an action by the personal representative of a deceased husband, against his wife’s estate, to quiet title to land which stood in the name of the wife, on the ground that it was community property, declarations of the husband, to the effect that it was unnecessary that he should make a will, that his wife had everything, and that he had givun or had left everything to her, are but expressions of his belief as to what he had done or accomplished, and are not controlling in determining what in fact he had or had not done or accomplished.</p> <p>Id.—Personal Property Acquired During Coverture..—Personal property acquired by the spouses during coverture, and not by gift, devise, or descent, although standing in the name of the wife, will be deemed to be community property, when it appears that the husband attended to all business and maintained to his death the absolute dominion and control of the property in all its phases; that his wife was utterly ignorant of and unversed in business, and that the same was acquired with community property.</p> <p>Id.—Bill of Sale to Wife—Want of Delivery.—It is held, upon a review of the evidence, that a purported bill of sale of such personal property from the husband to his wife, was never delivered to her.</p>

<p>The facts are stated in the opinion of the court.</p> <p>J. "Wiseman Macdonald, and Thomas P. Higgins, for Appellant.</p>

P. B. Ogden, Judge. This was an application for a writ of prohibition brought by the petitioner, as administratrix of the estate of Therese Berthbl, deceased, to restrain the superior court of Alameda County from making an order directing the payment of attorney’s fees incurred by the persons named as executors in an alleged will of said deceased, in an unsuccessful contest by them to establish the probate of such will.

<p>Will—Power of Executor to Sell Realty—Bequest op Proceeds to Trustees — Sale by Testator in Lifetime — Proceeds of Sale Pass under Residuary Clause.—Where a will of a testatrix, after providing for the payment of certain special pecuniary legacies, directed that all her real estate, with a specified exception, should be sold by her executors to the best advantage, and, after the payment of such legacies, which were expressly charged upon the real estate so to be sold, bequeathed “all the rest and residue of the proceeds of said real estate so to be sold” to certain persons named, as trustees in trust, to found and maintain a home for aged and infirm men, and, by a residuary clause, bequeathed the remainder of her estate to her husband, the only proceeds of her real property passing to such trustees were proceeds of such real property as she owned at her death and which her executors were empowered to sell. The proceeds of a portion of her real estate, sold by her in her lifetime •under a contract for its sale which had become executed before her death, and which proceeds were collected by her executors after her death, did not pass to such trustees, but passed under the residuary clause. There is nothing in the provisions of sections 1301 or 1303 of the Civil Code militating against such a construction.</p> <p>Id.—Sale in Lifetime Not Presumed to Facilitate Purpose op Trust. —Under such a will it cannot be assumed that the proceeds of all real property which the testatrix owned at the time her will was made was intended by her to go to such trustees, and that-any sale made by her thereafter was to facilitate that purpose.</p> <p>Id.—Power of Executor to Sell—Property Owned by Testatrix at Death.—Such a provision was not a devise, either specific or general, of any real property, either to the trustees of the Home or to the executors for their benefit. The latter were given simply a naked power of sale, not directed to any specific real property, but in terms operating solely upon such real property as the testatrix owned at her death, and the bequest to the trustees was only of the proceeds of such real estate as the power of sale could operate upon.</p> <p>Id.—Contract to Sell Realty—Equitable Conversion — Executed Contract.—When a • contract for sale of real property binding on the parties is executed, an equitable conversion is worked, the purchaser being deemed the equitable owner of the land and the seller the owner of the purchase price. This equitable conversion, deemed to exist from the time a valid contract of sale is entered into, may or may not be absolute. Whether it is or not will depend upon whether the terms of the contract of sale are subsequently complied with. If there is no default in that respect, but, on the contrary, the purchaser performs all the conditions precedent which under the contract entitle him to a conveyance on a given day, he will be deemed on that day to be the owner of the land and the seller to be the owner of the purchase price. The refusal of the contracting owner of the land to perform his part of the contract and make the conveyance to which the purchaser is entitled cannot affect the status or rights of the parties as to the property.</p>

<p>The facts are stated in the opinion of the court.</p> <p>E. W. Camp, Benjamin E. Page, and A. H. Van Cott, for Appellants.</p>

<p>Domestic Corporations—Personal Actions—Venue—Constitutional Law.—Section 16 of article XII of the state constitution, providing that a domestic corporation or association “may be sued in the county where the contract is made or is to be performed, or where the obligation or liability arises, or the breach occurs; or in the county where the principal place of business of such corporation is situated, subject to the power of the court to change the place of trial as in other eases,” means not merely that a personal action against a domestic corporation may, at the option of the plaintiff, be commenced in one of the designated counties other than the one in which the defendant has its principal place of business, but that it may be prosecuted to final judgment where commenced unless the defendant can allege and show some sufficient ground for a change of the place of trial distinct from the fact that the residence of the corporation is in another county.</p> <p>Id.—Trial Outside of County of Residence—Equal Protection of Laws.—So construed, that section of the state constitution, in denying to domestic corporations the benefit of the right conferred by section 395 of the Code of Civil Procedure upon all natural persons resident of the state of having personal actions against them tried in the county where the defendant or some of the defendants reside, is not violative of the fourteenth amendment of the federal constitution, in depriving such corporations of the equal protection • of the laws.</p> <p>Id.—Discrimination between Corporations and Natural Persons— Real and Personal Actions.—At the time of the adoption of the present state constitution, conditions existed and still exist justifying the discrimination made by the legislature between corporations and natural persons as to the venue of personal actions, none of which affect the real or quasi real actions provided for by section 392 of the Code of Civil Procedure, as to which a domestic corporation as well as a natural person has the right, under the fourteenth amendment of the federal constitution, to have tried in the county in which the land is situated.</p> <p>Id.—Fourteenth Amendment — Only Fundamental Rights Safeguarded.—The fourteenth amendment of the federal constitution safeguards only fundamental rights, and not the mere form which the state may deem proper for their enforcement.</p> <p>Id.—Place of Breach of Contract—Pleading.—An action commenced in a designated county to recover damages for breach of warranty of the quality and fitness of certain material which it was alleged was sold and delivered by the defendant to the plaintiff in said county, sufficiently shows that the breach of the contract occurred in that county.</p>

<p>APPEAL from an order of the Superior Court of Los Angeles County made under the provisions of section 685 of the Code of Civil Procedure to enforce a judgment by the issuance of an execution for a deficiency. N. P. Conrey, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Municipal Corporation—San Francisco—Sale of Liquor—Requirement .of Permit from Police Commissioners.—The only provisions in the freeholders’ charter of the city and county of San Francisco that require a permit from the police commissioners for the sale, etc., of liquor are those contained in chapter III of article VIII, and such provisions are confined to those persons who sell liquor “in less quantity than one quart,” and to those who sell liquor “to be drunk on the premises.”</p> <p>Id.—Limitation on Power to Impose License Tax—Sale op Liquor at Fixed Place op Business.—Under section 1 of chapter II of article II of that charter, prohibiting the board of supervisors from imposing a license tax “upon any person who, at any fixed place of business in the city and county, sells or manufactures goods, wares or merchandise, except such as require permits from the board of police commissioners,” the supervisors have no authority to impose any license charge, fee, or tax of any kind, either for purposes of regulation or revenue, upon any person who, at a fixed place of business in the city and county, sells malt or fermented liquors or wines, except such as sell such liquors or wine in less quantity than one quart, or who sell the same to be drunk on the premises.</p> <p>Id.—Invalid Ordinance—Sale op Liquor in Sealed Packages op More than One Quart—Regulatory Ordinance.—The ordinance adopted by the board of supervisors of said city and county on May 25, 1908, attempting to impose a license tax upon persons disposing of malt or fermented liquors or wines in quantities of one quart or more, less than five gallons, when the same is contained in sealed packages, and not to be drunk on the premises where sold, although it is purely regulatory in character, was beyond the power of the board to enact, and is void.</p> <p>Id.—License Tax within Meaning op Charter.—A license fee or charge imposed by a purely regulatory ordinance is a “license tax” within the meaning of that term as used in such provision of the charter.</p> <p>Id.—License Tax Includes Regulatory License Charges.—The words “license tax” have been frequently used by the legislature of this state, and by the courts, as including regulatory license charges as well as charges imposed for revenue purposes, and the connection in which the term is used in a particular case may properly be looked to for the purpose of determining its intended scope.</p> <p>Id.—Freeholders’ Charter may Limit Exercise op Police Power.—■ The legislative body of a city having a freeholders’ charter may be limited by charter provision in the exercise of the police power conferred upon the city by the constitution of the state.</p>

<p>Justice’s Court—Appeal—Erroneous Dismissal—Vacating Order of Dismissal.—When an appeal from the justice’s to the superior-court has been duly perfected and diligently prosecuted, a dismissal of such appeal is in effect nothing more nor less than an attempted abdication of a jurisdiction which the court in every proper case is bound to exercise. Where such appeal is erroneously dismissed, the superior court has jurisdiction to vacate the order of dismissal.</p> <p>Id.—Jurisdiction—Undertaking on Appeal—Payment of Costs— Stay ot Execution.—Under section 978 of the Code of Civil Procedure, an undertaking on appeal from the justice’s court from a judgment for the payment of money, in the sum of more than one hundred dollars, and conditioned for the payment of the costs on the appeal, is sufficient- to confer jurisdiction on the superior court, notwithstanding it also purports to be given to stay execution.</p>

<p>Contract—Construction—Conditions Precedent. — Stipulations in a contract arc not construed as conditions precedent, unless that construction is made necessary by the terms of the contract.</p> <p>Id.—Meaning of Word “Provided.”—:The word “provided” does not necessarily impose a condition, and the meaning of a clause in a contract in which it occurs is to be construed from the words employed and from the purpose of the parties, gathered from the whole instrument.</p> <p>Id.—Lease—Sale by Lessor—Termination of Lease—Proviso for Payment for Improvements.—Where a lease of agricultural lands for five years authorizes the lessor to sell the demised premises at any time during the term, and that whenever sold, the lease shall cease and be at an end, provided that the lessor shall then pay the lessee for the improvements placed upon the premises to the time of the sale, the proviso for such payment is to be construed as a condition to the termination of the lease, and not as a mere covenant, and a sale of the premises by the lessor, without payment to the lessee, does not operate as a termination of the lease, so as to relieve the lessee continuing in the possession of the demised premises, of the obligation to pay for the use thereof. (Per Melvin, J., Sloss, J., and Lorigan, J.)</p> <p>Id..—Waiver of Provision for Termination of Lease.—Such provision for the termination of the lease upon a sale of the premises was solely for the benefit of the lessor, who could waive the benefit thereof, and, without terminating the lease, could sell and convey the premises subject thereto. The grantee, if the lessor did not act in the matter prior to the conveyance, could also waive the right and continue the lease in force. In that case, the lessee would have no right to declare the lease terminated and demand payment for his improvements. (Per Shaw, J., Henshaw, J., and Angellotti, J.)</p> <p>Id.—Liability for Bent After Sale—Offset for Improvements.— Upon a sale of the demised premises before rent becomes due under the lease, the claim therefor is transferred to the grantee, and he is the proper party to bring an action to recover the same. In such action, the lessee cannot offset the value of the improvements erected on the premises. If there be anything due for such improvements it is from the original lessor.</p>

<p>Agency—Attorney-at-Eaw—Employment op Detective to Obtain Evidence in Criminal Prosecution.—An attorney employed by a person whose property had been stolen, to assist the district attorney in the prosecution of several cases against the alleged thieves, with authority to take such measures as he deemed expedient, had power to bind Ms client by the employment of a detective to seek and obtain evidence in furtherance of the prosecution.</p> <p>Id.—Scope oe Attorney’s Authority—Payment under Contract of Employment..—As bearing on the question whether the employment of the detective came within the authority of the attorney, the jury were entitled to consider the facts that both the attorney and the business agent of the defendant paid the detective under Ms contract of employment, and that the payment made by the attorney was refunded to him by the agent of the defendant.</p> <p>Id.—Establishment oe Agency—Testimony of Agent.—The fact of agency, when it rests in parol, may be established by the testimony of the agent himself. His testimony is admissible and competent to prove the agency, and the nature and scope of his authority, and to bind his principal thereby. On the other hand, extra-judicial statements or declarations in pais of one assuming to act as agent are inadmissible and incompetent to establish the fact of agency.</p>

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

<p>APPEAL from a judgment of the Superior Court of Riverside County and from an order refusing a new trial. E. E. Densmore, Judge.</p> <p>The facts are stated in the opinion of the court.</p> <p>Elmer R. McDowell, E. Earl Crandall, and William Hazlett, for Appellant.</p>

<p>Pleading—Complaint in Several Counts—General Demurrer—Sufficiency of One Count.—If a cause of action is stated in only one of several counts of a complaint, the pleading is sufficient as against a demurrer on the ground “that said eorrvplaint does not allege facts sufficient to constitute a cause of action.”</p> <p>Vessels.—Liens—Construction of Code Provisions.—Section 3060 of the Civil Code and section 813 of the Code of Civil Procedure, providing for liens upon vessels, and each of which was enacted at the time of the adoption of the codes in 1872, are, under section 4480 of the Political Code, to be construed together, as though they had been passed at the same moment of time, and were parts of the same statute.</p> <p>Id.—Liens for Work and Materials in Construction—Amount of Debt Immaterial.—Section 813 of the Code of Civil Procedure gives a lien for work done or materials furnished in this state for the original construction of a vessel irrespective of the amount of the debt.</p> <p>Id.—Debt Contracted for Benefit of Ship—Limitation on Amount. —Section 3060 of the Civil Code, providing that “debts amounting to at least fifty dollars, contracted for the benefit of ships, are liens in the eases provided by the Code of Civil Procedure,” is not applicable to debts contracted in the original construction of a vessel. It refers only to such debts as are contracted for the benefit of a vessel, after it has been completed and made ready for use as an instrument of commerce or navigation.</p> <p>Id.—Completed Vessel:—Instrument of Commerce.—Everything originally done in making a vessel complete and ready for use as an instrument of commerce or navigation is construction work, and a structure becomes a ship within the meaning of the maritime law only when such construction work has been fully completed.</p> <p>Id.—Pleading—Action to Enforce Lien—Work and Material Must Have Been Furnished to be Used.—In an action to enforce such a lien, the complaint, as against a general demurrer, must show that the services and materials were not only furnished in the actual construction of such vessel, but also were furnished to be used in such construction.</p> <p>Id.—Allegation of Aggregate Amount of Debt—Items of Account Need not be Alleged.—In such an action, a complaint which alleges an aggregate amount due for labor done and materials furnished for the construction of the vessel, is not demurrable for uncertainty, ambiguity or unintelligibility, in failing to specify what part thereof is for labor and what part is for materials. Section 454 of the Code of Civil Procedure, providing that the items of an account need not be set forth in a pleading, but must be furnished to the adverse party, if demanded, is applicable to such a demand.</p> <p>Id.—Denial on Information and Belief—Sufficiency in Form— Verified Complaint.—As to matters not presumably within the knowledge of a defendant, an answer that the “defendant has no information or belief sufficient to enable 'him to answer the allegations of said complaint, and basing his denial upon that ground, he denies each and several the allegations thereof,” is sufficient, and a specific denial of each of the allegations as to such matters is not .essential, notwithstanding the complaint is verified.</p> <p>Id.—Denial of Assignment—Knowledge of Assignment not Presumed—Judgment on Pleadings.—In an action by an assignee of a claim, the fact of the alleged assignment is not a matter presumably within the knowledge of the defendant, and may be denied by him on information and belief. If so denied, the plaintiff: is not entitled to judgment without proof of the fact of the assignment, and a judgment on the pleading is not warranted.</p> <p>Id.—Personal Judgment against Owner of Vessel—Supplemental Answer Setting up Bankruptcy Discharge—Refusal of Leave to File Answer Abuse of Discretion.—In an action to enforce a lien against a vessel for labor and materials furnished in its construction, and for a personal judgment against the owner, in which the court rendered such personal judgment in addition to a judg.ment enforcing the lien, it was prejudicial error and an abuse of discretion for the trial court to refuse the defendant leave to file a supplemental answer setting up a bankruptcy discharge obtained subsequent to the commencement of the action, as a bar to any personal judgment, where proper application is made therefor within a reasonable time after obtaining such discharge.</p> <p>Id.—Appeal—Truth of Facts Set up in Answer Mot Assumed.—On an appeal from such judgment, the appellate court cannot assume that the allegations of the defendant’s proposed supplemental answer, setting up such discharge, are true. While he should have been allowed to set up such defense, its truth is for the determination of the trial court.</p>

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

<p>Estate of Deceased Person—Claim Based on Building Contract—• Necessity of Presentation—Payment.—The amount due on. a building contract made by a decedent, whether accrued or contingent, is a proper subject of claim against his estate, but the demand, if not presented as a claim within the time limited, is barred, and no action thereon can be maintained, in the absence of such presentation. Neither he, nor a devisee of the building who has assumed to pay for its completion, can compel the executor to pay such demand.</p> <p>Id.—Voluntary Payment by Devisee of Building.—Where a devisee of a building in process of erection, upon the refusal of the executor to make proper expenditures from the estate to insure its preservation, individually pays for the same, such payment must be regarded as voluntary, and the devisee cannot recover the amount thereof from the estate.</p> <p>Id.—Expenditures for Preservation of Building—Completion of Building.—It is within the province of an executor to make such expenditures on a building which was being erected by the decedent at the time of his death as may be reasonably necessary to preserve it ponding administration. It is not his duty to complete the building.</p> <p>Id.—Devise of Land and Building—Direction for Completion.—A devise of real property, described in the will as being property on which “is situate a cottage in course of construction,” cannot be construed as a direction by the testator that the completion of the building should be a charge upon his estate.</p> <p>Id.—Duty of Executors to Complete Contracts of Testator—House Being Erected by Day’s Labor.—While it is the duty of executors to perform valid and uncompleted contracts which have been entered into by their testator, they are not called on, nor have they the right, to expend the funds of the estate for the doing of new work which the testator himself was not bound to do. Such expenditure, unless incurred for the preservation of the property of the decedent, is not a charge upon the estate. This rule applies to a building which was being erected by the testator by day’s labor, as to which there were no unfinished contracts outstanding. The fact that the testator believed that the building was substantially completed is immaterial.</p> <p>Id.—Funeral Expenses Paid by Third Person—Estate Should Bepay.—Money paid for the funeral expenses of a decedent, by one not acting officiously, if reasonable, considering the estate of the deceased and the circumstances surrounding the death and burial, should be repaid by the estate to the party paying them.</p> <p>Id.—Payment in Compliance with Supposed Contract—Voluntary Payment.—Money so paid, in compliance with what the payer thought to he a contract with the deceased obligating her to do so, in consideration of the deceased giving her a lot with a completed building thereon, will not be deemed a voluntary payment, if the payer, at the time of payment, was ignorant of the facts that the building was uncompleted and that no such deed of gift had been made, and the will directed the funeral expenses to be paid from the estate.</p> <p>Id.—Request op Testator Made to Third Person—Removal op Remains op Relatives.—A request made by a testator of a third person to remove to his burial plot the remains of certain of his relatives and to erect a monument over his grave, is not binding upon his executors.</p>

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

<p>Common Carriers of Passengers—Contract Exempting from Liability for Negligence—Compensation for Carriage—Public Policy.—Independent of statutory provisions, it is almost universally held that any contract purporting to exempt a common carrier of persons from liability for negligence of himself or his servants to a passenger carried for compensation is void, as being against public policy, and it is immaterial in such cases that the attempted limitation on such liability is agreed to by the passenger in consideration of special concessions in the matter of rate of fare or other departure from the rules applicable to passengers paying full fare. It is enough that there is any consideration for the carriage.</p> <p>Id.—Passenger Carried Gratuitously—Gross Negligence.—By the great weight of authority, however, in the absence of provision to the contrary, such a contract of exemption from liability for negligence is upheld, at least so far as any except what is called in the opinions wanton or willful or gross negligence is concerned, in the ease of' a passenger who is carried solely as a matter of favor, and without any compensation or advantage whatever to the carrier.</p> <p>Id.—Who Is a Passenger.—The person admitted to his vehicle by a common carrier for the purpose of carriage for any compensation is a passenger, with the rights possessed by any passenger so far as the exercise of care for his safe carriage is concerned.</p> <p>Id.—Carrier Liable for Injury to Gratuitous Passenger Caused by Gross Negligence.—Under section 2175 of the Civil Code, providing that “a common carrier cannot be exonerated by any agreement made in anticipation thereof, from liability for the gross negligence, fraud,' or willful wrong of himself or his servants,” such carrier is liable for an injury to a passenger carried gratuitously occasioned by the gross negligence of itself or of its servants.</p> <p>Id.—When Relation of Common Carrier and Passenger Exists.—On whatever terms a common carrier of persons, as the same is defined in section 2168 of the Civil Code, vountarily receives and carries a person, the relation of common carrier and passenger exists. The voluntary waiver of all claim for compensation for carriage of a person does not take away from the status of the carrier as a common carrier so far as the person carried is concerned. It is still a common carrier as to such person, with all the obligations of a common carrier, except in so far as those obligations are limited by contract provisions which are not inhibited by law.</p> <p>Id.—Gross Negligence Defined—Want of Slight Care and Diligence.—The term “gross negligence,” as used in section 2175 of the Civil Code, which has remained in its present form from the adoption of the code in 1872, must be construed in accordance with the definition given to that term by sections 16 and 17 of that code, notwithstanding the repeal of the latter sections in 1874. So construed, the term means the “want, of slight care and diligence,” and does not imply anything in the nature of a willful wrung.</p> <p>Id.—Railroad—Leaving Switch Open—Question of Gross Negligence for Trial Court.—The question whether the. action of a switch foreman in leaving open a switch connecting the main track of a railroad with a siding, contrary to the rules of the company, amounted to gross negligence on the part of such foreman, was one for the trial court, and its finding thereon will not be disturbed by the appellate court.</p>

<p>The facts are stated in the opinion of the court.</p> <p>Charles S. McKelvey, and McKelvey & Sorenson, for Appellant.</p>

<p>Criminal Law—Murder—Appeal—Affirmance.—On an appeal from a conviction of murder, the transcript in which consists simply of a copy of the judgment-roll, and on which no brief was filed or argument had on behalf of the appellant, the record, after examination, is found to disclose no error, and the judgment is affirmed.</p>

<p>Grant Induced by Trick—Forgery—Immaterial Difference in Instruments Signed—Intent to Execute Conveyance..—Where a person who has no intention of selling or encumbering his property is induced by trick or device to sign a paper having such effect, believing that paper to be a substantially different instrument, the paper so signed is as much a forgery as it would have been had the signature been forged. Such doctrine, however, has no application to a case where the party signing fully understood and believed that she was signing papers which, when delivered, would convey her interest in certain land, and the only difference between the papers she thought she was signing and the papers actually signed, was one of detail, and in no degree material to the accomplishment of her ultimate intention of effecting a conveyance of the land.</p> <p>Id.—Agent Intrusted with Papers of Conveyance—Innocent Purchaser from Agent—Fraud on Principal.—When an owner of land voluntarily and consciously signed papers effectually disposing of her interest therein, and delivered them to her agent for the purpose of ultimate delivery to the purchasers upon payment of the purchase .price, the equities of innocent purchasers directly dealing with the agent are protected, even if injury be done to the grantor through the imposition or fraud of the agent.</p> <p>Id.—Agent Clothed with Power of Disposition—Innocent Purchaser Protected as against Principal.—Where the true owner holds out another, or allows him to appear as the owner of or as having full power of disposition over the property, and innocent third parties are thus led into dealing with such apparent owner, they will be protected. Their rights in such cases do not depend upon the actual title or authority, of the party with whom they deal directly, but are derived from the act of the real owner, which precludes him from disputing, as against them, the existence of the title or power, which through negligence, or mistaken confidence, he caused or allowed to appear to be vested in the party making the conveyance.</p>

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

<p>Declamation Districts.—Assessment.—Judgments and orders in each of the above cases- are reversed on the authority of Declamation District No. 70, v. Birks, ante, p. 233.</p>