Volume 161 — California Reports

<p>Sale of Patented Invention — Rescission — Absence of Patent— False Representations.—Where a seller agreed to sell and convey an interest in a patent for an invention granted by the United States Government, and executed a bill of sale to the purchaser purporting to do so, the latter may rescind the sale, upon the subsequent discovery that the seller had not been granted such patent, and that his representations to that effect were false, upon giving prompt notice of rescission, offering to return whatever of value he had received under the bill of sale, and demanding a return of the consideration paid by him.</p> <p>Id.—Approval of Application for Patent—Action for Rescission— Patent Issued after Rescission.—The approval of an application for a patent by the officers of the United States patent office is not the equivalent of a patent granted and issued, and it is no defense to an action to enforce a rescission of such sale, that the seller’s application for a patent for his alleged invention had been so approved, or that subsequent to the rescission, and the action to enforce it, a patent for the invention was actually granted to the seller.</p> <p>Id.—Meaning of Term “Patented.”—The term “patented” does not mean the preliminary proceedings, but the actual issuance of the patent under the seal of the government, speaking the exercise of sovereign will investing the patentee with the grant of a monopoly.</p>

<p>Contract to Share in Profits of Land—Payment of Proportion of Purchase Price—Bepudiation by Promisee—Action by Trustee in Bankruptcy to Becover Profits—Pleading.—The trustee in bankruptcy of a person having a right under a written contract with the owner of a tract of land to share in the profits thereof upon paying to such owner one half of its purchase price, the payment of which had been repudiated by the bankrupt, cannot maintain an action for the sale of the land, and a division of the profits resulting therefrom, upon a mere allegation that he is willing for the benefit of the bankrupt’s estate to assume the obligations imposed in said contract upon the bankrupt.</p> <p>Id.—Quieting Title bt Owner—Evidence of Consideration for Contract.—In an action by the owner of such land to quiet title against the right asserted by the trustee under such contract, it was not error to admit parol evidence showing the true consideration of the contract, if such evidence did not in any respect tend to vary or defeat any of the conditions or covenants expressed therein.</p> <p>Id.—Failure to Find Value of Land Immaterial.—In such action, in which the trustee sets up his right under such contract and prays for a sale of the land and a division of the profits, without showing himself to be entitled to any equitable interest in the land, it was not error for the court to refuse to make a finding fixing the cash value of the property.</p>

<p>Estates op Deceased Person.—Immorality op Person Nominated as Executor.—Mere immorality is not sufficient to justify a court’s refusal to appoint as executor or executrix one who is duly nominated for such appointment by will.</p> <p>Id..—Gross Immorality Showing Want op Integrity—Evidence— Appeal.—Evidence that a woman nominated as executrix of a will was not only immoral but promiscuous, prone to disorderly conduct, once the consort of a man who in spite of difference in race lived with her at a saloon in the lower part of the city, and who had been arrested several times for vagrancy, and was living at the time of applying for letters testamentary in meretricious relations with a man not her husband, is sufficient to justify a finding of her want of integrity, and an order refusing her letters testamentary on that account will not be interfered with on appeal.</p> <p>Id.-—Grant op Letters op Administration with Will Annexed.— Where a person nominated in a will as executrix is found to be incompetent, letters of administration with the will annexed should issue as in cases of intestacy.</p>

<p>• Mortgage—Description by Metes and Bounds—Inclusion of Tract Divided into Lots and Blocks—Streets—Extent of Lien.—A mortgage of a large tract of land, described by metes and bounds, which included within its exterior limits a smaller tract which the mortgagor had platted into lots and blocks, and of which a map had heen recorded, having indorsed thereon a duly acknowledged grant, dedication, and abandonment to the public of a right of way over the streets platted thereon, operates to impress the lien of the mortgage upon the entire title and interest of the mortgagor in all the land owned by her within its exterior calls, including the land so offered to dedication as streets, and to render all thereof subject to sale in satisfaction of the mortgage indebtedness.</p> <p>Id.—Foreclosure—Sheriff’s Deed—Description by Lots and Blocks —Title Passes in Streets.;—A sheriff’s deed, executed after foreclosure of such mortgage, which described part of the property conveyed by lots and blocks as delineated on such map by numbers or letters, is not a conveyance by metes and bounds. Such a deed conveys the title of the mortgagor in the streets on which the lots and blocks so described abutted.</p> <p>Id.—Sheriff’s Deed not Grant by Public Officer.—The provision of section 1069 of the Civil Code, that grants by a public officer are to be interpreted in favor of the grantor, refers to grants of public properly by public' officers or public bodies to private persons, and does not refer to conveyances by sheriffs.</p> <p>Id.—Effect of Sheriff’s Deed—Title Relates to Date of Mortgage. —Under a sheriff’s deed a purchaser acquires all the right, title, and interest of the judgment debtor in the property sold. When such a deed is executed, by the doctrine of relation, it is deemed and taken as though executed at the date when the lien of which it is the sequence- originated, and the effect of the foreclosure sale is itself to invest in the puichaser the title of the mortgagor at the date of the mortgage. ■ "</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>Railroad — Negligence — Riding upon Platform—Sections 483 and 484 of Civil Code.—The apparent purpose of sections 483 and 484 of the Civil Code is to absolve railroad companies from liability for injury to passengers who were riding upon the platform of a car, in violation of the posted rules, provided there were seats furnished for them to occupy, inside the car. It cannot be presumed, as the intent of the section, that if a passenger goes upon the platform of a car, and is injured while there, the railroad company may by the posting of a rule, absolve itself from liability, whatever the circumstances, purposes, motive, or reason which induced him to go, provided the train was in motion at the time, and regardless of the cause of the injury.</p> <p>Id.—Being upon Platform: when not Unlawful.—If a passenger voluntarily goes upon the platform solely for the purpose of riding there, notwithstanding accommodations are provided for him within the ear, the trial court would be justified in instructing the jury as a matter of law that the railroad company is not liable, because the passenger has violated its rules. But where the question of the necessity of a passenger going upon the platform is involved, as where he is seeking to protect himself against an anticipated or threatened injury, or there is an invitation, either implied or express, by the company to do that which requires that he go upon the platform, while the train is in motion, it cannot be said that the going upon the platform is a violation of the rule, or within the meaning and intent of the law.</p> <p>Id—Necessity of Being on Platform—Question for Jury.—Under ' such circumstances, the question whether it is necessary, or there is such an invitation from the railroad company as to constitute a waiver of the violation of its posted rules, or to estop it from taking advantage of such violation, is a mixed one of law and fact, and should be submitted to the jury under appropriate instructions.</p> <p>Id.,—Train Approaching Station—Standing on Platform in Anticipation of Leaving Train.—Whether a passenger is negligent or not in leaving his seat and approaching towards the platform, or in standing on the platform of a train while it is in motion, in violation of the rules of the company, after the station at which he intends to leave the train has been announced and the train is approaching, is a question of fact for the ju„y. An instruction that such conduct on the part of the passenger, who was injured while so standing on the platform, relieved the railroad company from liability, under the provisions of sections 483 and 484 of the Civil Code, is erroneous.</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>Gray, Barker, Bowen, Allen, Van Dyke & Jutten, for Appellant.</p>

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

<p>The facts are stated in the opinion of the court.</p> <p>George C. Sargent, and Jos. F. Cavagnaro, for Appellant.</p>

'APPEAL from an order of the Superior Court of the City and County of San Francisco confirming a sale of land made by the administrator of the estate of a deceased person. J. M. Seawell, Judge. The facts are stated in the opinion of the court.

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

<p>Marriage—Person op Unsound Mind—Validity op Marriage Until Annulment.—The marriage of a person of unsound mind is not void db initio, and is free from attack except in proceedings for annulment brought by the party injured or on behalf of the party of unsound mind, during the lives of both parties.</p> <p>Id.—Marriage Valid Until Annulment Decree Becomes Final.—Pending an action for the annulment of such a marriage, the marriage must continue to be accepted as valid until the decree of annulment therein has become final.</p> <p>Id..—Alimony and Counsel Fees in Annulment Actions__Actions to annul a marriage are governed, with respect to alimony and counsel fees, by the same principles as all other actions for divorce. This is so, notwithstanding section 137 of the Civil Code, providing for alimony and cost money in an “action for divorce,” does not by its terms include actions for annulment.</p> <p>Id.—Alimony and Counsel Fees Pending New Trial and Appeal.— After judgment has been rendered in the trial court annulling a marriage on account of the unsoundness of mind of the husband, the wife, who is in good faith prosecuting a motion for a new trial and an appeal from the judgment, is entitled to an allowance to enable her to pay the expense of such further proceedings. The power to make such an allowance continues until the judgment becomes final.</p>

<p>Negligence—Master and Servant—Knowledge by Employee op Unsafe Condition of Premises—General Rule of Assumption of Risk.—It is a general rule that where an employee has full knowledge of the unsafe condition of the premises upon which he is working, he is deemed to assume the special risk incident to the employment under such conditions.</p> <p>Id__Complaint as to Unsafety—Promise of Employer to Repair Defect—Continuance in Employment—Risk not Assumed.—To this general rule there is the exception that where an employee notifies the master of a special risk, and objects to continuing the work under the existing conditions, and is induced to continue such work by a promise to remove the danger within a reasonable time, then for such time the employee is not presumed to assume such risk.</p> <p>Id.—Employee Must Complain fob Himself—Promise by Employer to Repair Essential—Reliance on Promise.—In order that an employee may invoke the benefit of such exception, there must not only be a complaint on the part of the employee himself of the defects or dangers arising in the employment and increasing the risk of continuing therein, but there must be a promise, either express or implied, made to him by his employer that he will obviate the defect or remove the danger, and which promise induced the employee to remain and upon which he acted.</p> <p>Id.—Nonsuit—Evidence Insufficient to Show Complaint or Promise to Repair.-—In an action by the employee, in which he attempts to establish a case within the exception, a nonsuit should be granted, if the evidence clearly fails to show that a complaint was made by the employee on his own behalf and a promise made to him to remove the defect, or if from such evidence as is presented no reasonable inference can be drawn by a jury that a complaint on his own behalf was made.</p> <p>Id.—Sufficiency of Complaint—Notification to Leave Employment. -—When complaining of defective instrumentalities or machinery, it is not necessary that the servant shall state in exact words that he apprehends danger to himself by reason of the defects, nor need • there be a formal notification that he will leave the service unless the defects be remedied or repaired. It is sufficient if, from the circumstances of the case, it can be fairly inferred that the servant is complaining on his own account, and that he was induced to continue in the service by reason of the promise.</p> <p>Id.—Complaint of Subordinate Co-employees-—Evidence Warranting Submission of Case to Jury.—The fact that an employee, in complaining of a dangerous condition to which he as well as the men under him were subjected, stated that such men were making complaints, does not warrant the conclusive inference that he was complaining solely on account of the men and not on his own account as well. In the present case, it is held that the evidence, especially the fact that the plaintiff, prior to any occasion for complaint by the men, had spoken to the defendant’s superintendent of the defect, and had characterized it as “very dangerous,” and had asked him to “allow us” to adopt a temporary expedient to obviate it, warranted the submission to the jury, as a question of fact, whether his complaint was solely on behalf of the men, or included himself as well.</p> <p>Id.—Intention in Making Complaint—Conduct and Language of Parties.—Whether in complaining of a dangerous condition the employee is making it in an apprehension of danger to himself or not is always a question of intention, which is to be determined from the language and conduct of the parties to the complaint, construed in the light of the circumstances under which the complaint is made.</p> <p>Id.—Nature of Complaint When Question of Law or Fact—Ambiguous Evidence—Nonsuit.—If such facts show conclusively that the complaint was made by the employee without apprehension of danger to himself, a question of law for the court is presented, on motion for a nonsuit. If, on the other hand, under the evidence, different conclusions on the subject or different inferences might be drawn, a question of fact is presented to be submitted to the jury, and it is error to grant a nonsuit.</p> <p>Id.—Evidence op Employee’s Reliance on Promise to Repair.—In such action by the employee, evidence is admissible that he relied on the employer’s promise to remove the danger, and that he continued in the employment in the reliance on such promise.</p>

<p>The facts are stated in the opinion of the court.</p> <p>Grove L. Johnson, and Wahrhaftig & Shinn, for Appellants.</p>

<p>Appeal — Motion por Change op Venue — Methods por Perpeoting Appeal prom Order.—A motion for a change of the place of trial being heard and determined, at least in part, upon affidavits, it is necessary, to perfect an appeal from the order made thereon, for the appellant to follow either the method prescribed by sections 953a, 953b, and 953c of the Code of Civil Procedure, or the method prescribed by rule XXIX of the supreme court.</p> <p>Id.—Perfecting Appeal by New Method—Bequest for Transcript.— In perfecting the appeal in the method authorized by section 953a of the Code of Civil Procedure, as one taken after trial, it became the appellant’s duty, in addition to giving the notice prescribed by section 941b, to file his request for a transcript of the “testimony offered or taken, evidence offered or received,” etc., as prescribed by section 953a, with the undertaking contemplated by section 953b. Thereupon it would have become the duty of the court to require a transcript of the reporter’s notes taken at the trial, which it would have been his duty to examine and certify to its correctness.</p> <p>Id.—Failure to Perfect Appeal—Absence of Becord—Affirmance op Order.—Where the appellant has failed to perfect his appeal from such order by either of such methods, and as the supreme court has become vested with jurisdiction over the appeal under the new method by the notice of appeal given by the appellant to the clerk, the proper practice is not to dismiss the appeal, but to affirm the order for lack of a record showing error.</p> <p>Id..—Examination op Becord on Motion to Dismiss.-—It is a rule of convenience for the expedition of the business of this court that it will not ordinarily entertain a motion to dismiss involving an examination of the record in advance of the hearing upon the merits; but where a mere inspection of the record discloses that no relief can be given to the appellant this court will consider the question to save unnecessary delay and expense to litigants.</p>

<p>Judgment—Foreclosure op Bight to Purchase State Land—Order SETTING ASIDE ORDER VACATING JUDGMENT—APPEAL—BES Ad JUDI-CATA—Collateral Attack.—Where a judgment in favor of the State, in an action by it to foreclose the right of a delinquent purchaser of state land, is vacated by the trial court on the ground that it was void for want of service of summons on the purchaser, and the order vacating it is subsequently set aside by the court on the ground that the judgment was valid on its face, and that the court had no jurisdiction to vacate it, as the motion therefor was not made within one year after its entry, an appeal from the order setting aside the order vacating the judgment necessarily involved the question of the validity on its face of the original judgment, and the judgment of the supreme court affirming the order appealed from and deciding that the judgment-roll showed that jurisdiction of such purchaser had been acquired, is res adjudicata as to the validity of the original judgment and conclusive upon collateral attack by the parties to the appeal or their privies.</p> <p>Id.—Determination of Appeal from Motion—Appeal involving Substantial Bight or Merits of Case.—Whenever a substantial right or the merits of the case are involved and determined on appeal, the judgment is res adjudicata, nothwithstanding the decision is made on an appeal from a motion.</p> <p>Id.—Judgment-Boll—Affidavit and Order for Publication of Summons.—Under section 670 of the Code of Civil Procedure, as it existed in 1892, the affidavit and order for publication of summons did not constitute part of the judgment-roll, in a case where the complaint was not answered by the defendant.</p> <p>Id.—Law Determining Validity of Judgment.—The validity of a judgment is to be determined from the law in force when it was rendered, and if valid then subsequent changes in the law cannot affect it.</p> <p>Id.—Collateral Attack on Judgment Valid on Pace — Evidence showing Invalidity admitted without Objection — Effect of Objections to such Evidence.—Assuming that a judgment valid on its face must be held void on collateral attack, if the party relying on it admits facts which show that a service of summons, constructive or personal, was not made on the defendant to the judgment, and allows evidence to be introduced without objection showing such fact, such rule has no application where the party relying on the judgment persistently resisted throughout the trial the offer of any evidence tending to a collateral attack on the judgment.</p>

<p>Divorce—Answer—Omission of Prayer for Belief—Amendment Including Prayer.—The failure of an answer in an action for a divorce to contain any prayer for affirmative relief may be cured by an amendment thereto containing such prayer. In such case the court is justified in treating the answer and its amendments as one pleading.</p> <p>Id.—Cruelty-—Sufficiency of Pleading.—In such an action, the allegations in the cross-complaint of the husband are held, in the absence of any special demurrer, to sufficiently show that the various acts of cruelty set forth therein were “wrongfully” inflicted.</p> <p>Id.—Findings—Denial of Divorce—Appeal.—Upon a review of the findings it is held that while the misconduct of the wife was much more serious than that of her husband, this court cannot say, on an appeal by him, that his acts were so venial as not to justify the trial court’s denial of a divorce to him as well as to her.</p> <p>Id.—Befusal of Matrimonial Intercourse—Desertion—Just Cause for Befusal.—A finding that the wife has persistently refused at all times to have reasonable matrimonial intercourse with her husband, although the health and physical condition of either party did not make such refusal reasonable or necessary, does not establish desertion on her part, under section 96 of the Civil Code, entitling the husband to a divorce, in the absence of a finding as to whether or not just cause for such refusal exists.</p> <p>Id.—Acquiescence in Befusal.—A finding, in addition to the foregoing, that the husband at all times “acquiesced” in such refusals, will be construed as meaning that he submitted thereto, and not that he approved thereof.</p> <p>Id.—Denial of Divorce fob Desertion—Alimony cannot be Granted when Separation is by Agreement.—In an action in which each of the parties prays for a divorce on account of the alleged desertion of the other, and the court finds that there has been no desertion by either and denies a divorce to both, for the reason that they had been living apart and had abandoned marital relations in pursuance of a mutual parol agreement so to do, the court has no power to render a decree awarding alimony to the wife.</p> <p>Id.—Agreement to Live Apart—Duty of Husband to Support Wife.— While a husband and wife may, in the absence of grounds for divorce, agree to live apart, a mere verbal contract that they shall so reside will not place upon the husband the duty of supporting the wife while they are so living.</p>

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

<p>Taxation—Sale by State of Property Acquired for Delinquent Taxes—Entrire Property to be Sold—Constitutional Law— No Return of Excess Price to Owner.—Section 3897 of the Political Code, requiring the tax-collector in making sales of property by the state which it has acquired for delinquent taxes, to sell the property at public auction to the “highest bidder,” contemplates a sale of the entire property, to the one bidding the highest cash bid for all the property. So construed, the section is not unconstitutional, although the law makes no provision for the return to the owner of the property of any excess of the sellirig price above the accrued taxes, charges, and penalties.</p> <p>Id.—Due Process.of Law—Deprivation of Property without.—Such a sale of the entire property, when a sale of a smaller portion thereof would be sufficient to enforce the lien of the state, is not unconstitutional, as being a deprivation of an owner of his property without due process of law.</p> <p>Id.—Notice to Owner of Sale—Sufficiency of Notice to Constitute Due Process of Law.—It was within tho power of the legislature to provide for the present system of taxation, under which the state acquires title to property of one who permits the taxes thereon to become delinquent, and to authorize a subsequent sale thereof. While a delinquent owner cannot be deprived of bis property under such proceeding without due process of law, that requirement means only that due notice of sale shall be given him, and this is fully accorded him by sections 3764-3767 of the Political Code, which provide for a notice to him by publication of the sale to the state. This is all the notice he is constitutionally entitled to in that respect.</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>Criminal Law—Public Officers—Corrupt Misconduct in Office— Accusation for Removal—Appeal by Defendant.—An accusation presented by a grand jury, under section 758 of the Penal Code, charging a public officer with corrupt misconduct in office, is not an indictment, and the only appeal allowed in such a case is that secured to the defendant by section 770 of the Penal Code.</p> <p>Id.—Several Specifications of Misconduct may be Joined.—In such an accusation it is permissible to join more than one specification of misconduct.</p> <p>Id..—Extorting Loans of Monet by City Councilmen—Official Misconduct.—A city councilman, who solicits loans of money from parties seeking franchises or privileges from the council, or from claimants against the city for money due or alleged to be due upon contracts, while their petitions and claims were pending or accruing, and to whom such parties unwillingly loaned money on Ms unsecured notes in order to prevent unfavorable official action by him, is guilty of official misconduct.</p> <p>Id.—Demand of Money as Condition of Performing Public Duty.— It is extortion for a public official to demand money as a condition of doing what is his duty, as trustee of a public trust, to do, and more especially if it is demanded as a condition of allowing a just claim against a public corporation.</p> <p>Id.—Pleading to Accusation—Sufficiency of Verdict of Guilty— Judgment of Eemoval.—Where the accusation of corrupt misconduct in office consisted of thirteen specifications, and the plea was simply “not guilty,” without any specification, an unqualified verdict of guilty responds to the plea, and imports a finding of official misconduct and is sufficient to support the judgment of removal.</p> <p>Id.—Nature of Proceeding by Accusation—Legislature had Power to Enact.—Such an accusation is a summary proceeding, regulated by section 758 et seq. of the Penal Code, and is exempt from merely technical rules of procedure. The legislature had plenary power to enact such sections, under the authority of section 18 of article IV of the constitution, providing for the trial of public officers for misdemeanor in office otherwise than by impeachment.</p> <p>Id.—Jurisdiction—Title of Proceeding.—Although the proceeding by accusation is a criminal action in every essential respect, the fact that the accusation was not formally entitled as the People of the state versus the defendant, did not affect the jurisdiction of the court over it.</p> <p>Id.—Elective Municipal Officer Subject to Proceeding.—The proceeding by accusation, authorized by section 758 et seq. of the Penal Code, is applicable to the removal of an elective officer of a municipality.</p>

<p>The facts are stated in the opinion of the court.</p> <p>Samuel Rosenheim, and Bernard Silverstein, for Appellant.</p>

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

<p>The facts are stated in the opinion of the court.</p> <p>James D. Meredith, J. B. Landis, and P. H. Johnson, for Appellants.</p>

<p>Taxation—Assessment of Corporate Franchise—Market Value of Stock as Basis of Assessment.—A proper method for ascertaining the value of the franchise of a corporation to be a corporation is to deduct from the aggregate market value of its shares the value of its tangible property, taking the difference as the value of the franchise.</p> <p>Id.—Excessive Valuation not Evidence of Fraud. — An excessive valuation of such a franchise is not by itself alone evidence of fraud, and any inference or presumption of fraud arising from merely excessive valuation is repelled by proof that the valuation was arrived at by such method.</p> <p>Id.—Market Value Synonymous with Full Cash Value—Market Value Law Determined. •—• The market value of the stock of a corporation on a given day is synonymous with “value” and “full cash value” defined by section 3617 of the Political Code, and in the absence of exceptional or extraordinary conditions giving an abnormal value to the stock on the first Monday in March, the assessor may take its market value on that day as representative of its then full cash value.</p> <p>Id.—Failure :o Assess Franchises of Other Corporations and Foreign Corporations..—A domestic corporation whose franchise to be a corporation has been so assessed is not relieved from the payment of the tax levied thereon from the fact that the franchises of other like corporations escaped like assessments, nor is such a tax discriminatory against domestic corporations in that it is not levied against the franchises of foreign corporations.</p> <p>Id.—Franchises of Foreign Corporations not Assessable in this State.—Such corporate franchise is to be assessed at the principal place of business of the corporation, and as the principal place of business of a foreign corporation is without the state its franchise cannot be assessed herein.</p>

<p>Criminal Law—Habeas Corpus—Collateral Attack on Judgment of Conviction after Affirmance on Appeal.—A judgment of conviction of the crime of robbery, after its affirmance on appeal, cannot be collaterally attacked on habeas corpus, for grounds which were re viewable on that appeal, even though they were not mentioned in the decision thereof.</p>

<p>Criminal Law—Habeas Corpus—Collateral Attack on Judgment of Conviction after Affirmance on Appeal.—A judgment of conviction of the crime of robbery, after its affirmance on appeal, cannot be collaterally attacked on habeas corpus, for grounds which were re viewable on that appeal, even though they were not mentioned in the decision thereof.</p>

<p>"Justice’s Court—Defective Undertaking on Appeal—Erroneous Recital—Filing New Undertaking in Superior Court.—An undertaking on appeal from the justice’s court, taken by the plaintiff, which erroneously provides that the sureties will pay all costs and damages awarded against “the defendant,” instead of “plaintiff” or “appellant,” is defective merely and not a nullity. Such defect may be cured by the filing in the superior court of a sufficient undertaking, in pursuance of leave first obtained from that court.</p> <p>Id.—Justification of Sureties—Any Justice of Same Court May Take.—After a case in the justice’s court has been assigned for trial to a particular justice thereof, in pursuance of section 90 of the Code of Civil Procedure, the sureties on an undertaking on appeal, after due notice to the adverse party, may justify, under section 92 of that code, before any other justice of the same court.</p>

<p>The facts are stated in the opinion of the court.</p> <p>Percy V. Long, City Attorney, and N. J. Manson, Assistant City Attorney, for Appellants.</p>

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

<p>Municipal Corporation—Los Angeles—Division op City into Industrial and Residence Districts—Modification op Boundaries— Prohibition op Classes op Occupations—Public Laundry—Reasonableness op Restrictions.—The City of Los Angeles has power, by ordinance, to divide its territorial limits into industrial and residential districts, and by subsequent ordinances to change the boundaries thereof, and to prohibit the carrying on within the residential district as so originally established or subsequently modified of certain kinds of business, among others the business of a public laundry, where there is nothing to indicate that the distinctions so made with reference to the particular localities affected were unreasonable, and the ordinances were not intended to operate peculiarly against any particular race, and make no unlawful discrimination between persons or classes of persons, but apply equally and uni-formally to all engaged in the kinds of business prohibited.</p> <p>Id.—Construction op Ordinance—Absolute Prohibition on Certain Occupations.—An ordinance rendering it unlawful to carry on in a residential district certain enumerated occupations '“where power other than animal power is used to operate, or in the operation of the same, or any haybarn, woodyard, lumber yard, public laundry or washhouse,” and providing that a permit might be granted to install and maintain an electric motor in any such place in such residence district in which a permit to install a steam boiler has been granted prior to the adoption of the ordinance, should be construed as absolutely prohibiting “any haybarn, woodyard, lumber yard, public laundry or washhouse” within the residence district, whether existing at the time of the ordinance or not, and regardless of the kind of power used therein. As to such prohibited places, the proviso as to substitution of electric for steam power has no application.</p> <p>Id.—Failure to Prosecute Other Violators not Discrimination.—A person charged with" a violation of such ordinance cannot base a claim of discrimination in the manner of -its enforcement upon the mere fact that there are several steam laundries operating within the residential district, where it does not appear that they are operating with the consent of the city authorities, or that criminal prosecutions have not been instituted against those carrying them on.</p> <p>Id.—Exception op Small Areas From Residence District—Arbitrary Discrimination.—In the absence of anything indicating 'a contrary intent, the subsequent action of the city council in excepting, by ordinance, certain comparatively small -parcels of land from the residential district as originally established, is presumed to be reasonable, and without arbitrary discrimination. That some of the parcels so excepted were small in area, consisting of only one city lot, and were surrounded on all sides by portions of what was under the ordinance “residence district,” does not in itself warrant a contrary conclusion.</p> <p>Id.—Police Power—All Property Subject to—Laundry Proprietor Having Leasehold Interest.—All property is held subject to the lawful exercise of the police power, and the fact that the proprietor of the laundry has an unexpired leasehold interest in the premises upon which he conducts his laundry is immaterial in determining the question of the validity of the ordinance.</p> <p>Id.—Laundries May be Restricted to Defined Places.—The business of operating a public laundry or washhouse, although a lawful and necessary occupation and not necessarily a nuisance per se, is of such a nature that it may be confined, in the lawful exercise of the police power, within defined limits in a city or town.</p> <p>Id.—Reasonable Restrictions on Lawful Business.—The power to regulate the carrying on of certain lawful occupations in a city includes the power to confine the carrying on of the same to certain limits, whenever such restrictions may reasonably be found necessary to subserve the ends for which the police power exists, viz: to protect the public health, morals, safety, and comfort.</p> <p>Id.;—Determination of Legislative Body Presumptively Valid—Review by Courts.—It is primarily for the legislative body clothed with the police power to determine when such regulations are essential, and its determination in this regard, in view of its better knowledge of all the circumstances and the presumption that it is acting with a due regard for the rights of all parties, will not be disturbed by the courts, unless it can be seen that the regulation has no relation to the ends above stated, but is a clear invasion of personal or property rights under the guise of police regulation. In the present case, the court cannot say, that as to public laundries and • wash-houses, the conclusion of the city council of Los Angeles was unreasonable.</p> <p>Id.—Portions of Residence District Sparsely Populated—Laundry Not Located in Such Portions.—The mere fact that large portions of the residence district as defined by the ordinance are sparsely built up, does not indicate any improper design on the part of the city council in including such portions in the residence district, of invalidate the ordinance as to a laundry proprietor whose laundry was not situated within any portion of such district that was sparsely populated, it not appearing that any place prohibited by the ordinance is maintained or is desired to be maintained within any portion of the district that is sparsely populated.</p>

<p>APPEAL from a judgment of the Superior Court of Plumas County and from an order refusing a new trial. John E. Raker, Judge presiding at trial. John L. Childs, Judge refusing new trial.</p> <p>The facts are stated in the opinion of the court.</p>

The Petitioner was held in custody by the Sheriff of Los Angeles County, in pursuance of a Commitment issued out of the justice’s court of Los Angeles township on the fourteenth day of October, 1911. He claimed to be entitled to be discharged from such custody on the ground that by a constitutional amendment adopted on the tenth day of October, 1911, the office of justice of the peace was abolished. The further facts are stated in the opinion of the court.

APPLICATION to the Supreme Court to stay the operation of certain injunctions, pending appeals from the judgments of the Superior Court of San Bernardino County by which they were granted. Benjamin P. Bledsoe, Judge. The facts are stated in the opinion of the court.

<p>Surety—Indemnity Bond Taken by Surety—Bight of Creditor to in Equity.—Under sections 1559 and 2854 of the Civil Code, where a surety has taken a counter-bond or security from the principal, the creditor is entitled to the benefit of it and may, in equity, subject such security to the satisfaction of his debt.</p> <p>Id.—Undertaking to Pay Original Debt—Beimbursement of Surety. ■—There is a distinction made between the case where the indemnity bond to the surety consists of an undertaking to pay the original debt, or, as expressed in section 2854 of the Civil Code, is “for the performance of the obligation,” and the ease where it is simply an undertaking to repay to the surety such sum as he may be compelled to pay of the debt by reason of his obligation as surety therefor. Ik the latter class of cases there can be no breach of the counter-bond until the surety has paid something on the debt, and as it runs to the surety alone and is solely for his benefit, the creditor is not entitled to sue on it, or to subject it to the payment of his debt, in equity.</p> <p>Id.—Bond Securing Surety on Appeal Bond—Promise to Pay Judgment if Affirmed—Judgment Creditor May Enforce.—An indemnity bond, taken by a surety on an undertaking given by ¡a judgment debtor on appeal to stay execution, in which the promisors agree to “pay such judgment as the court on appeal might award to the said plaintiff,” is, in effect, a promise to pay the judgment to the plaintiff if it was affirmed, and under section 1559 of the Civil Code may be enforced by him. Also, as it was security “for the performance of the obligation” on which the surety was bound, within the terms of section 2854 of that code, the plaintiff may compel its application to the satisfaction of the affirmed judgment.</p> <p>Id.—Joint and Several Bond—One Promisor May be Sued Separately.—One of the promisors on a bond which is joint and several in form, may be sued separately thereon.</p>

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

'APPEALS from an order of the Superior Court of Los Angeles County dissolving a temporary injunction, from a judgment denying an injunction and from an order denying a new trial. Walter Bordwell, Judge. The facts are stated in the opinion of the court.

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

MOTION to dismiss an appeal from a judgment of the Superior Court of the City and County of San Francisco. J. M. Seawell, Judge. The facts are stated in the opinion of the court.

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

<p>Mining Claim—Successive Locations—Failure to do Annual Assessment Work—Finding—Conflict of Evidence.—In an action involving the question as to the right of possession of a placer mining claim as between successive locators, findings that the property was subject to location at the time the latter location was made, by reason of the failure of the prior locator to perform the required amount of annual assessment work, will not be disturbed when the evidence as to the character and value of such work is conflicting and there is evidence to the eifeet that the value of the annual work performed by the prior locator was less than one hundred dollars.</p> <p>Id.—Inconsistent Ruling Regarding Admission of Evidence—Error Subsequently Cured.—Inconsistent rulings made by the trial court in regard to the admission of evidence of the prior locator with respect to his location are without prejudice if he is subsequently permitted to testify fully regarding all his acts with reference to that matter.</p> <p>Id.—Cessation of Assessment Work—Failure to do Requisite Work for Two Successive Years.—Relocation.—Where such prior location was made in December, 1905, upon the cessation of the locator to do assessment work in the year 1908, without having done the requisite amount of such work for either the years 1907 or 1908, the claim became subject to relocation. Under such circumstances the relocator did not have to wait until the expiration of the latter year before making his relocation.</p> <p>Id. — Citizenship — Instruction — Referring to Location by Non-Citizen as Pretended Location.—In such an action, where the jury are properly instructed that only citizens or those who had declared their intention of becoming such could locate mining claims upon vacant unappropriated public lands of the United States, a further instruction in the same immediate connection, in which the court designated the prior location as a “pretended location,” if the locator at the time it was made was found not to be a citizen, was not misleading.</p>

<p>The facts are stated in the opinion of the court.</p> <p>U. S. Webb, Attorney-General, and Benjamin K. Knight, for Appellant.</p>

<p>Contracts for Street Work — Assignments to Secure Advances — Orders for Cement Work — Advances to Cement Worker to Complete Street Work—Parol Contract—Priority over Orders. ■—Where a contractor had agreed to improve five city streets, and a personal defendant and a savings bank had taken assignments of part of the contracts to secure advances to the contractor, and thereafter the plaintiff made a sub-contract to do the cement work and took orders for payment from the contractor on the assignees, which were accepted for whatever the equity of the contractor might be, and owing to the failure of the contractor to complete the work, the assignees agreed to advance twenty-six hundred dollars to the cement worker to complete the contract, under a parol agreement that such advance should be repaid from the first collections under the contract, such advance has priority of payment over his orders from the contractor.</p> <p>Id.—Bule as to Parol Proof—Exceptions as to Collateral Agreement.—The rule that an agreement in writing supersedes all prior or contemporaneous oral negotiations or stipulations concerning its matter has no application to a collateral agreement upon which the instrument is silent and which does not purport to affect the terms of the instrument. It is held that the consent to the repayment of the twenty-six hundred dollars which enabled plaintiff to complete the work and thus protect his own security and that of the assignees who had made the advance, was a most natural collateral agreement, which did not need to be in writing.</p> <p>Id.—Original Assignment to Secure Future Advances—Notes of Contractor to Bank.—Where the original assignment to the bank by the contractor was to secure future advances, additional notes by the contractor to the bank for further advances were secured by the assignment and are a charge in favor of the bank having priority over the orders given by the contractor to the cement worker upon final settlement.</p> <p>Id.—Small Judgment Recovered against Bank Defendant.—Where the plaintiff sued for money had and received and recovered a small judgment against the bank, where it appears that such bank received all the moneys collected under the contracts for street work, the judgment was properly limited thereto, and was not entitled to run against any other defendant that had no participation in any assets due to the plaintiff.</p>

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

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

<p>APPLICATION for a Writ of Certiorari directed to the Superior Court of Mendocino County. J. Q. White, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

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

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

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

<p>APPEAL from an order of the Superior Court of Los Angeles County, made after judgment, requiring a husband to pay his wife alimony pending an appeal taken by him from the judgment. Leon P. Moss, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Will—Interpretation—Testator’s Intent.—The primary purpose of all interpretations of wills is to ascertain the testator’s intent, as disclosed by the language he has used. Each case depends upon its own peculiar facts, and precedents have comparatively little value.</p> <p>Id.—Construction oe Technical Words.—While technical words in a will are ordinarily to be.taken in their technical sense, they will not be so taken when it appears that they were used in another sense by a testator who drew his will without an acquaintance with the technical sense.</p> <p>Id.—Gift Over of Legacies when Includes Devises.—Where in a holographic will the testator, after making various gifts of both personal and real property without using the technical word “devise” or “devisee” to distinguish the gift of. realty, speaks of the residue of his estate, after paying all the “bequests herein provided for,” and after disposing thereof, provides that “should any of the legatees herein provided for die before my death, then the legacy provided for him or her shall be divided equally among the residuary legatees,” such gift over of legacies will be construed to include both real and personal property.</p> <p>Id.—Gift Over of Property Passing under Residuary Clause.—A will, after making various pecuniary bequests and specific dispositions of both real and personal property, gave certain land and specific personal property to the testator’s wife, and in the residuary clause, by separate individual provisions, disposed of the residue of the estate, which consisted of both real and personal property, in undivided one-quarter shares to his wife and three children. After so disposing of the residue the will provided that “should any of the legatees herein provided for die before my death, then the legacy provided for him or her -shall be divided equally among the residuary legatees.” Held, that upon the death of the wife prior to that of the testator, the property, whether real or personal, that would have passed to her under the will had she survived, including what would have passed under the residuary clause, did not lapse, but passed under the gift over to the three surviving residuary legatees.</p> <p>Id.—Gift Over to Residuary Legatees as Class.—The gift over contained in such substitutionary clause is to the residuary legatees as a class.</p> <p>Id.—When Gift Is to a Class.—In legal contemplation a gift to a class is a gift of an aggregate sum to a body of persons uncertain in number at the time of the gift, to be ascertained at a future time, who are all to take in equal or some other definite proportions, the share of each being dependent for its amount upon the ultimate ■ number.</p> <p>Id.—Gift Over to Class for Purpose of Preventing Intestacy.—In seeking to ascertain whether a gift is to a class, the paramount consideration is the intent of the testator, as derived from the entire instrument. To this apparent intent, rules of construction must always yield. In such will the substitutionary clause, including the gifts over of the residue itself, was added for the very purpose of preventing intestacy as to any part of the estate.</p>

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

<p>Criminal Law;—Evidence of Confession—Employment of Threats and Intimidation.—In a proseeution for arson, an alleged confession of the defendant is not admissible against him, on the theory that it was freely and voluntarily made, when the evidence shows without conflict that it was procured through the use by the sheriff and the district attorney of threats, intimidation, and invective, accompanied with coarse profanity, mental coercion, and false statements.</p>

<p>Marriage—Annulment fob Mental Incompetency—Test of Incom-PETbnoy.-—What degree of unsoundness of mind will authorize a judgment annulling a marriage is to be determined by the same tests which are applied in any ease where it is sought to set aside the contract or other act of a person alleged to be insane. A mere variation from a normal mental condition is not enough, but the mental defect or derangement must be one having a direct bearing upon the particular act, and to render the party seeking to annul the marriage both at the time it was contracted and while cohabitation continued, incapable of understanding the nature of the duties and obligations imposed by the marriage contract. In the present case, the evidence is held sufficient to sustain the finding that the plaintiff was so mentally incapable.</p> <p>Id.—Findings as to Mental Capacity—Evidence—Review on Appeal. —The determination of the issues raised as to such mental capacity is primarily for the trial court and its findings can be overthrown on appeal only when they totally lack the support of substantial evidence. In reviewing the evidence tending to support such findings, so far as it is subject to differing inferences, the appellate court must read it in the light most favorable to the party prevailing below.</p> <p>Id.—Evidence op Intimate Acquaintance—Opinion op Witness.— Where the reasons assigned by an intimate acquaintance witness, in support of his opinion of the unsoundness of mind of the person whose mental capacity is in question, have some bearing on the matter, it is for the trial court to determine the weight to be given to the opinion.</p> <p>Id.—Weight to be Attributed to Opinion.—As the statute expressly permits such opinion to be given in evidence, it must contemplate that some weight may be attributed to the opinion, over and above that which would follow, as matter of necessary inference, from the reasons assigned.</p> <p>Id.—Appointment op Guardian ad litem—Under sections 372 and 373 of the Code of Civil Procedure, the trial court has authority, upon the application of a relative of the plaintiff and evidence tending to show his incompetency, to appoint a guardian ad litem for him in an action brought by him to annul his marriage on the ground that he was mentally incompetent at the time he entered into the marriage contract.</p> <p>Id.—Filing Amended Complaint.—Discretion.—In such action, after the appointment of the guardian ad litem, it is within the discretion of the trial court to permit the filing of an amended complaint.</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>Peyton H. Moore, H. A. Massey, and Campbell & Moore, for Appellant.</p> <p>Leslie R. Hewitt, and Harley E. Riggins, for Respondents.</p>

<p>The facts are stated in the opinion of the court.</p> <p>Wm. H. H. Hart, Aylett R. Cotton, and M. F. McCormick, for Appellants.</p> <p>Sutherland & Barbour, M. B. Harris, and E. M. Harris, for Respondents.</p>

<p>Action for Personal Injuries—Removal of Guard from Cog-Wheels —Broken Promise of Prompt Repair—Failure to Warn—Cause of Action.—A complaint in an action for injuries to the person of a night employee of the defendant, resulting from the removal of an iron guard from cog-wheels over which he must reach in the course of his employment to operate machinery for an electric motor, which shows that he had operated it successfully for more than a year; that the guard was removed for repair, with a promise of the chief engineer, under whom he worked, to have it in place for his next employment, but that it was neither replaced nor was he warned that it was not in place or of danger in his employment, and that in the dim light he did not observe its absence, and in forgetfulness of its removal did his work as usual, to his serious injury, states a cause of action.</p> <p>Id.—Effect of Sustaining Demurrer to Complaint—Improper Finding of Law as to Contributory Negligence.—The effect of the sustaining of a general demurrer to the complaint is an improper finding of law that the plaintiff was guilty of contributory negligence, barring his recovery. The existence or absence of contributory negligence is in general a matter primarily for the jury. Although plaintiff knew that the guard over the cog-wheels had been removed for repairs, he knew that the repairs would require only a short time, and properly relied upon the chief engineer to keep Ms promise that the guard should be replaced on the day of its removal.</p> <p>Id.—Bearing of Forgetfulness on Contributory Negligence. — Though forgetfulness of a known and appreciated danger may preclude a recovery for injuries sustained, yet the general rule in that regard must have a reasonable construction. To forget is not negligence unless it shows a want of ordinary care, which is a question for the jury. To charge plaintiff with such conduct as would bar recovery on the ground of forgetfulness, it must appear not only that he knew the unsafe condition of the machine in the absence of a guard, but also that he consented to work in the place of danger after full comprehension and appreciation of the risk incurred.</p> <p>Id.—Duty of Chief Engineer—Principal Responsible for Negligence.—It was the duty of the chief engineer, as representing the plaintiff’s principal, either to restore the protection of the guard over the dangerous cogs or to warn plaintiff of the peril involved in working near them. By failing to perform either of these duties or to undeceive plaintiff with reference to the prompt restoration of the guard and by permitting him to work in a dim light and in a dangerous place without warning him of the risk incurred, he was guilty of negligence, for which the principal was responsible.</p> <p>Id.—Obligation of Owner of Machinery to Protect Employees Operating It.—It is the duty of one owning machinery to exercise reasonable care for the protection of the employees who operate it. Where, in this case, there was a simple device for the complete protection of respondent’s servants, the absence of which involved very great risk to them, it was the duty of respondent as owner of the machinery to adopt the same and to keep it in place.</p> <p>Id.—Pleading.—Complaint Not Required to Anticipate Defense of Contributory Negligence.—It was not the plaintiff’s duty to anticipate the defense of contributory negligence in his complaint or to allege the non-existence of circumstances which might preclude recovery under section 1970 of the Civil Code.</p> <p>Id.—Averment as to Inducement to Expect Replacement of Guard —Ultimate Pact—Evidentiary Matter Not Required—Special Demurrer.-—It is hold that an averment that plaintiff was led by the chief engineer “to believe that said guard would be replaced immediately” was of an ultimate fact, sufficient to apprise defendant of the issue he was called upon to meet. No pleading of evidentiary matter was required, and there was no merit in a special demurrer for uncertainty as to that averment.</p>

<p>APPEAL from a judgment of the Superior Court of the City and County of San Francisco and from orders denying a motion in arrest of judgment and denying a motion for a new trial. Frank H. Dunne, Judge.</p> <p>The facts are stated in the opinion of the court.</p> <p>Carroll Cook, Franklin P. Bull, and Robert Ferral, for Appellant.</p> <p>TJ. S. Webb, Attorney-General, W. H. Langdon, District Attorney, Wm. Hoff Cook, Assistant District Attorney, and Francis J. Heney, Assistant District Attorney, for Respondent.</p>

<p>Specific Performance—Contract for Sale op Land without Crop— Construction of Correspondence—Finding against Evidence.—In an action for specific performance of a contract for the sale of land, it is held, upon the construction of all the telegrams and letters which passed between the parties, that a final contract was reached between them for the sale of defendant’s orange grove, without the ungathered crop, for the price of fourteen thousand dollars cash, and that the finding of the court to the contrary is against the evidence.</p> <p>Id.—Proposal for Land Inclusive of Crop as Part of Realty.—As between vendor and vendee, a growing crop is part of the realty, and an offer merely to purchase the land is an offer to include the ungathered crop as going with the land. As between them such crop is not personal property, but would pass as part of the realty, unless there has been a constructive severance, and in the case of a voluntary conveyance of the land, it passes to the grantee, unless specially reserved by the grantor.</p> <p>Id.—Reservation of Crop not to be Established by Parol Evidence to Vary Deed.—Under the weight of authority, as well as the better reasoning, a reservation of a growing or ungathered crop is not to be established by parol evidence to impair the effect of a writing which is essential to the transfer of the property, and which purports to convey the land without reservation.</p> <p>Id.—Variance from Proposal of Purchaser—Qualified Acceptance without Crops—New Proposal—Subsequent Acceptance—Contract.—Where the proposal to buy the land for a fixed price was accepted, without crop, such qualified acceptance became a new proposal, and when the buyer treated the proposal as accepted, and claimed a contract and tendered the purchase money, a contract of purchase without the crop was thereby concluded. In such ease, the purchaser’s demand for a deed was for one without the crop, and he could be compelled to accept a deed reserving the same. His acceptance was binding when put in the course of transmission.</p> <p>Id.—Agency of Brokers for Plaintiffs—Telegrams and Letters from Owner Binding Plaintiffs.—Where the plaintiffs negotiating for land in this state with an owner living in Texas, communicated with him through the agency of their broker, the receipt of telegrams and letters from the owner by such brokers was binding upon the plaintiffs, whether communicated to them or not.</p> <p>Id.—Claim of Plaintiffs for Water Stock—Question of Appurtenance to Land.—A claim by the plaintiffs for shares of water stock for the irrigation of the land, though not affecting the validity of the contract of sale, must rest for its maintenance, if at all, on the ground that it is not personal property, but is an appurtenance to the land, and is therefore covered by the eontraet.</p> <p>Id.,—Inadequacy of Consideration Precluding Specific Performance. —Under the Civil Code, specific performance cannot be enforced against a party to a contract, if he has not received an adequate consideration for the contract, or if it is not as to him just and reasonable. Inadequacy of consideration is made a separate ground for refusing specific performance. The difference between the true value and- the agreed value may be such as to warrant the conclusion that specific performance should be refused on the ground alone of the inadequacy of consideration. The question in such cases is whether the price agreed is a fair and adequate price under all the circumstances.</p> <p>Id.—Support of Findings—Question of Fact for Trial Court.—It is held that there was ample evidence to support the findings of the trial court that the value of the property at the time of the negotiations was sixteen thousand dollars, including the crop then on the trees, and that the value without the crop was fifteen thousand dollars, and that the sum of fourteen thousand dollars net cash was and is not a fair, just, reasonable, or adequate price for the property without the crop. It is peculiarly a question of fact for the trial court to determine in the light of all the circumstances, and its conclusion should not be set aside, when supported by the evidence.</p> <p>Id.—Comparatively Small Difference between Values—Other Circumstances Showing Inadequate Consideration.—Although a difference of one thousand dollars between the agreed value of fourteen thousand dollars and the actual value of fifteen thousand dollars, without the crop, seems comparatively small, yet it cannot be said that the finding of inadequacy of consideration is without support, in view of the circumstances shown that the vendor whose property in this state was the subject of the contract, resided in another state, and was dependent upon those near the property for information, while the vendees were on the ground, and had dealt with other orange growers in the vicinity, and well knew the value of plaintiff's property.</p> <p>Id.—Measure or Damages for Breach—Absence of Evidence—Support of Finding.—The measure of damages for breach of an agreement to convey real estate, is under section 3306 of the Civil Code, “the price paid, and expenses, properly incurred in examining the title and preparing the necessary papers, with interest thereon.” But where the court found that plaintiffs had suffered no damage whatever, and there was no evidence to show any such expenditure by the plaintiffs, and no showing that would sustain any conclusion of damages, the finding is supported, and there is no ground for reversal.</p>

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

<p>Negligence—Master and Servant—Injury to Gardener from Pall into Secret Well—Walking across Covering—Finding against Contributory Negligence.—In an action by one employed as a gardener in a nursery, to recover of Ms employer damages for personal injuries sustained by him from falling into an unused well, of the existence of which he was unaware, occasioned by the breaMng of a board covering while he was walking over it, and which cover- • ing was obviously laid so that persons walking across it would not fall into the well, it was for the jury to determine whether or not a reasonably prudent man would have walked across the covering or around it; and the decision of the jury negativing the plaintiffs contributory negligence in such respect can only be vacated by the trial court on motion for a new trial. On appeal it is conclusive.</p> <p>Id.—General Scope of Employment—Preparing to Engage in Work. —Such gardener was acting within the general scope of his employment while walking over the covering, if he then had reached the place of his work, the time for which had arrived, had procured his working tools, and was proceeding to hang Ms coat at the usual place when the accident occurred. He was, therefore, not a mere licensee or trespasser, and did not assume the risk of injury from the rotten condition of the boards of which he was unaware.</p> <p>Id.—Instruction—Duty to Inspect Well—Unreasonable Neglect.— Where the evidence showed that the well in question was one hundred and twenty-five feet deep, and situated where persons might be expected to go upon it, and that the covering had been on it eleven years, and had been examined but once, about four years before the accident, such neglect in examination would be unreasonable and negligent, and an instruction which proceeded on the theory that the employer was under the duty of continuously inspecting it will be deemed without prejudice.</p> <p>Id.—Failure to Make Reasonable Inspection—Secret Defect in Covering.—Under such circumstances, the employer would not be relieved from liability, notwithstanding the defect in the platform was secret and unknown and was incident to ordinary wear and tear, if it could have been discovered by reasonable inspection.</p> <p>Id.—Dangers not Apparent to Eye—Master Must Make Reasonable Inspection.—The duty of a master to his servant requires him to make a reasonably careful inspection at reasonable intervals to learn of dangers not apparent to the eye, to which the servant may be exposed while engaged at the place where he is directed to work. Each ease of this sort depends largely upon its own peculiar circumstances.</p> <p>Id.—Instructions—Servant Voluntarily Taking Place of Danger— Assumption of Obvious Risk.—In such action, as the plaintiff at the time of the accident was acting within the general scope of his employment, it was proper to instruct the jury that if an employee in the discharge of his duties voluntarily takes a placo of danger he is not required to take, he assumes the risk which may attach to such place “which is obvious to him by the use of ordinary care” and which is greater than the risk attached to the place he may have taken by reason of his employment.</p> <p>Id.—Immaterial Error in Rejecting Evidence.—The refusal to permit a witness who had looked into the well two weeks before the accident to testify whether he then noticed anything rotten about the board covering, is without injury, if the witness subsequently testifies that he saw nothing peculiar about the boards.</p>

<p>APPEAL from an order of the Superior Court of Los Angeles County directing the payment of alimony and suit money pending an appeal in an action for maintenance. Z. B. West, Judge presiding.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Boundary — Agreement for Location — Acquiescence in Line as Located.—Where coterminous landowners, being uncertain oí the. true position of their common boundary line, agree upon its true location, mark it upon the ground, or build up to it, occupy on each side up to the place thus fixed and acquiesce in such location for a period equal to the statute of limitations, or under such circumstances that substantial loss would be caused by a change of its position, such line becomes, in law, the true line called for by the respective descriptions, regardless of the accuracy of the agreed location, as it may appear by subsequent measurements.</p> <p>Id.—Parol Agreement for Location—Statute of Frauds—Title held to Agreed Line under Deeds.—The agreement as to the line may be in parol, and it does not operate to convey title to the land which may lie between the agreed line and the true line, but it fixes the line itself, and the description carries title up to the agreed line regardless of its accuracy. Such agreement is not in violation of the statute of frauds, because it does not transfer title. The parties hold up to the agreed line by virtue of their original deeds and not by virtue of the parol agreement.</p> <p>Id.—Evidence—Findings.—The faets of the present case are directly within the foregoing rules, and necessitate findings and judgment in favor of the defendants.</p> <p>Id.—Uncertainty op Boundary—Dispute as to Boundary not Necessary..—Such rule is applicable where the location of the boundary is merely uncertain. It is not necessary for its application that the true location must have been absolutely unaseertainable, or that there should have been a dispute as to the true boundary prior to the agreement as to the location.</p> <p>Id.—Adverse Possession—Payment of Taxes according to Description in Deed.—As a division line thus established attaches itself to the deeds of the respective coterminous owners, and defines the lands described in each deed, so that the one in the possession of the overlap holds title thereto by the same tenure as he holds the lands technically embraced in the description, the payment of taxes on the land assessed according to such description, is a payment of taxes on the land included in the overlap, for the purpose of establishing a title thereto by adverse possession.</p> <p>Id.—Evidence of Change in Location of. adjoining Street—County Surveyor’s Map.—In an action involving the determination of a boundary line, in which the defendant relies upon its location in accordance with such an agreement, a county surveyor’s map is admissible in evidence for the purpose of showing the difference, if any, between the location of an adjoining street at the time of the trial, and its location as shown on a previous map to which reference was made in the descriptions in the deeds of the respectivo parties.</p> <p>Id.—Evidence of Acquiescence—Identity of Land to be Purchased. —In such action, the defendants were entitled to introduce evidence to prove the acquiescence of the respective owners of the property adjoining in the location of the line to their fences, and to prove that at the time the plaintiffs and each of their predecessors in interest purchased, the lot to be sold to them was pointed out to them as the lot to the north of the defendant’s property.</p>

<p>Street Assessment—Posting Notices near Doob op Council Chamber —Bulletin Board adjacent to Main Entrance to City Hall.— The provisions of the so-called Vrooman Act (Stats. 1885, ,p. 147; 1891, pp. 196, 199, 200), requiring that in proceedings for street improvements, the resolutions of intention and notice inviting sealed proposals for the work shall be posted “on or near the chamber door” of the city council, is sufficiently. complied with by a posting on a bulletin board customarily used for public notices, placed in plain view in a portico leading to and about twenty feet from the main entrance door of the city hall in which such council chamber was situated, and about ninety-six feet by stairway and halls, and eighty-six feet by elevator, from the door of the council chamber.</p> <p>Id.—Street Assessment Proceedings—Strict Compliance with Statutory Requirements.—Proceedings for street assessments, being m invitwm must, in order to charge the property of the owner, be based upon a compliance with the provisions of the statute authorizing the assessment, in so far, at least, as those provisions have to do with the giving of notice or other steps precedent to the jurisdiction of the board to order the work done.</p> <p>Id.—Meaning of Word “Near.”—The word “near,” as used in the statute, does not signify any precise measure of distance. It is a relative term, and its meaning must be determined with reference to the subject-matter.</p> <p>Id.—Liberal Construction of Vrooman Act.—In view of the rule of construction contained in section 25 of the Vrooman Act, that its provisions “shall be liberally construed to promote the objects thereof,” the provisions regarding the posting of notices, and the like, aré to be read in the light of the purposes sought to be accomplished.</p> <p>Id.—Object of Posting Notices—Nearness of Place Question of Fact.—The object of the posting is to give notice of the steps taken to owners of property to be affected by the work, and as the law prescribes no exact place for the posting, it is reasonable to interpret its language as requiring a posting in such location, convenient to and in the vicinity of the council chamber, as would be likely to catch the eye of any ono approaching the chamber. Whether the place of posting be “near” the door of such chamber or not, is, in each ease, a question of fact, to be- decided upon such considerations.</p>

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

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

The facts are stated in the opinion of the court. Further facts are stated in the opinion upon the former appeal, reported in 151 Cal. 220, [90 Pac. 536].

<p>Libel—Publications in Judicial Proceedings—Extent op Privilege— Relevancy and Materiality op Statements—Malice.—Whether, under subdivision 2 of section 47 of the Civil Code, as amended in 1874, an absolute privilege attaches to defamatory publications made in the course of judicial proceedings, is not decided. It is held, however, that if the -privilege is not absolute, the only limitation upon it is that the defamatory matter must be pertinent and material to the cause or subject of inquiry before the court. If it be pertinent, the defendants’ malice or bad faith does not affect the privileged character of the publication. Subject to the possible limitation of relevancy and materiality, the privilege attaching to statements made in the course of judicial proceedings is absolute.</p> <p>Id.—Complaint charging Director op Corporation with Misappropriation op Funds,— Gist op Cause op Action — Relevant and Material Averments.—In a complaint by minority stockholders of a corporation, on behalf of themselves and such other stockholders as might come in, against the corporation and its directors, to compel one of such directors, who, as was alleged, held the majority of the stock and controlled the board of directors, to account to the corporation for moneys collected under invalid assessments and appropriated by him to his own use, and for other moneys of the corporation so appropriated, such alleged misappropriations of the corporate funds, were of the very gist of the cause of action asserted, and the averments in respect thereto were relevant and material to the cause of action, and could not be made the basis of an action for libel on behalf of the director charged with the misappropriation.</p> <p>Id.—Allegation of Impertinency and Immateriality of Averments —Conclusion of Law—Complaint Attached as Exhibit.—In an action by such director for libel, based upon such averment of misappropriation contained in the stockholders’ action, an allegation that the publications charging him with misconduct were not pertinent or material is a mere conclusion of law, which is not admitted by demurrer, as against a showing of the exact contents of the complaint in the - stockholders’ action, which was attached to the complaint in the action for libel.</p> <p>Id.—Pleading Privilege—Demurrer—Privilege of Publication shown by Complaint.—While it is ordinarily true that privilege is to be pleaded as affirmative matter of defense to an action for libel, yet where the complaint shows on its face that the publication was privileged, the point may be raised on general demurrer.</p>

<p>The facts are stated in the opinion of the court.</p> <p>Hunsaker & Britt, P. W. Forbes, and Andrew H. Rose, for Appellant.</p> <p>Leslie R. Hewitt, City Attorney, John W. .Shenk, City Attorney, Ben H. Yandell, and W. B. Matthews, for Respondents.</p>

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

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

<p>The facts are stated in the opinion of the court.</p> <p>A. K. Rohinson, James D. Meredith, and J. B. Landis, for Appellant.</p>

<p>APPEAL from an order of the Superior Court of the City and County of San Francisco denying motions to vacate the verdict of a jury sustaining the contest of a will. Thomas F. Graham, Judge.</p> <p>The facts are stated in- the opinion of the court.</p> <p>Heller, Powers & Ehrman, and Marcel E. Cerf, for Sarah Schwalbe, Individually, and as Executrix, Appellant.</p> <p>J. E. Harper, and John E. Tyrrell, for Jessie Bloom, Appellant.</p>

<p>Establishment of Title—McEnerney Act—Affidavit—Character _ of Possession Need Not be Shown.—In a proceeding to establish title to land under the so-called McEnerney Act, (Stats. 1906, Extra Session, p. 78), the affidavit accompanying the complaint, in which the plaintiff by section 5 of the act, is required to set forth and show certain things, among others “the character of his estate, right, title, interest or claim in, and possession of the property,” need not show the “character” of the possession. All that the section requires as to possession, for the purpose of conferring jurisdiction, is that the affidavit shall show possession.</p> <p>Id.—Title Obtained through Successive Deeds—Title in Eee—Sufficient Showing.of Obtaining Possession.—A statement in such affidavit that the plaintiff’s title was an absolute fee, derived through certain successive deeds and a decree of distribution, the respective dates and places of recordation of which were given, and that her possession had existed since their dates, shows a right of possession following the instrument of latest date, and sufficiently complies with the requirement of the act that the affidavit shall show from whom the possession was obtained.</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>Criminal Law—Burglary—Information—Entering “Beam House” of Tannery to Commit Larceny.—Under section 459 of the Penal Code, and in the absence of a demurrer, an information for burglary, which alleges that at a specified time and place the defendant “then and there willfully, unlawfully, feloniously, and burglariously did enter that certain pAáon aZIí] of the plant, premises and building” of a named corporation portion and part of said plant, building, and premises being designated, called and known as the ‘Beam House,’ with the felonious and burglarious intent . . . then and there ... at and in said ‘Beam House’ to commit the crime of larceny,” sufficiently avers an unlawful entry of a house of such corporation, with intent therein to commit the crime of larceny. *</p> <p>Id.—Challenge to Juror—Peremptory Challenges — Disallowance op Challenge por Cause—Want op Showing op Occasion to use Additional Challenge.—The disallowance of a challenge for cause on the ground of actual bias, interposed to a juror who was subsequently peremptorily challenged by the defendant, will not be reviewed on appeal for error, where the record, while it shows that the defendant exhausted his ten peremptory challenges, including the one used on such juror, fails to show that he had occasion or desire to use an additional peremptory challenge, or that each and all of the twelve jurors finally accepted and sworn were not entirely satisfactory to him.</p> <p>Id.—Instructions—Remark op Court to Counsel during Examination op Jurors.—A remark made by the court to counsel in connection with a ruling upon a challenge of a juror, to the effect that a person would naturally believe the testimony of a person he knew and who was satisfactory to him, in preference to the testimony of one he did not know, cannot be construed as an instruction to the jury to believe the witnesses they knew and to mistrust those they did not know,' and must be deemed to have been without prejudice.</p> <p>Id.—Evidence—Letter op Dependants—Intention to Escape—Admission op Guilt.—A letter proved to have been written by the defendant while in the county jail awaiting trial, containing written declarations of his purpose and intention to escape from jail - if possible, and also matter that might be reasonably construed as an admission of his guilt, is admissible in evidence against him, notwithstanding he made no attempt to carry his purpose into effect. An objection that certain portions of such letter wore inadmissible, if not raised in the court below, cannot be considered on appeal.</p> <p>Id.—Evidence op Burglary in Eirst Degree—Entry op Building during Night-Time.—That the burglary was committed during the period between sunset and sunrise, and was thus burglary of the first degree, is sufficiently sustained by evidence to the effect that the articles asported, consisting of about fourteen hundred pounds of hides which were carried from a tannery by means of a wagon, were taken some time after five o’clock P. M. of the afternoon of October 13, 1910, and prior to seven o’clock A. M. of the next dayj and that the defendant was seen at about two-thirty A. M. of October 14th, about three and a half miles north of the place of the robbery, driving a single horse attached to a wagon, ana headed jJ£7,ay.--Í!0in á45h place, and that the horse was wringing wet.</p> <p>Id.—Discretion op Trial Court in imposing Punishment—Appellate Court cannot Review.—In this state, the determination of the trial court as to the penalty to be adjudged on conviction of a public offense is conclusive upon all appellate courts, provided the court adjudges a penalty which is within the limits authorized by the statutes.</p>

<p>Mortgage—Deed Absolute on Its Face.—An instrument purporting to convey the title to real or personal property may be shown to have been intended to operate as a mortgage.</p> <p>Id.—Clear and Convincing Evidence op Mortgage—Determination of Trial Court on Conflicting Evidence—Appeal.—Although clear and convincing evidence is required to justify a court in finding that a deed which purports to convey the title to land in fee simple was intended to be a mortgage, the question whether or not the evidence offered to change the ostensible character of the instrument is clear and convincing is one for the trial court, and its determination in favor of either party upon conflicting or contradictory evidence will not be reviewed on appeal.</p> <p>Id.—Evidence — Indebtedness Due by Grantor to Assignor of Grantee.—In the present case it is held, upon .a review of the evidence, that the trial court was justified in concluding therefrom that the deed in question was, in fact, a mortgage to secure the payment of an indebtedness which was originally due from the grantor to the assignor of the grantee, notwithstanding the fact that there was no writing whereby the grantor in terms bound himself to pay such sum to the grantee.</p> <p>Id.—Deposition—Failure op Notary to Sign.—A deposition, the certificate to which was sealed but not signed by the notary before whom it was taken, is not authenticated in the manner required by section 2032 of the Code of Civil Procedure, and is inadmissible in evidence.</p> <p>Id.—Refusal to Continue Trial—Absence op Plaintiff—Insufficient Showing.—It is not an abuse of discretion for the trial court to refuse a motion for a continuance on the ground of the absence of the plaintiff, where there is nothing in the affidavits used on the motion indicating that he would be able to appear at any later time, nor any showing of an excuse for the failure to take his deposition in proper form before the trial.</p>

<p>Will — Construction — Uncertainty .— Intention—Surrounding Circumstances.—In case of uncertainty arising upon the face of a will, the testator’s intention is to be ascertained from the words of the will, taking into view the circumstances under which it was made.</p> <p>Id.—Bules of Construction Embodied in Code—Intention of Testator Controls.—The rule embodied in section 1322 of the Civil Code, that “a clear and distinct devise or bequest cannot be affected ... by any other words not equally clear and distinct,” like other rules of interpretation, is designed to aid in arriving at the intention of the testator as expressed in his will, and must yield to that intention when it appears with reasonable clearness from the words used.</p> <p>Id.—Words Referring to Death or Survivorship—Rule op Construction op Code—Death upon Contingency—Death without Issue. —The rule of construction embodied in section 1336 of the Civil Code, that “words in a will referring to death or survivorship, simply, relate to the time of the testator’s death,” etc., is applicable only where there are words referring to death or survivorship, simply. It is not applicable where the words refer to death upon a contingency, as, for example, to death “without issue,” and there is no provision in our codes declaring what the rule should be where the words refer to death upon a contingency.</p> <p>Id.—Devise op Remainder Over upon Death op Remainderman without Issue—General Meaning op Words—Reference is to Death at Any Time.—In the case of a devise, postponed to take effect upon the termination of a particular estate, with a gift over in ease of the death of the remainderman “without issue,” if there is nothing in the context or in the surrounding circumstances to indicate the intention of the testator, then the ordinary meaning of the words is that the reference is to death at any time it may occur, and that the happening of the contingency is to determine the result.</p> <p>Id.—Construction op Will in Question—Limitation on Fee Conditioned upon Dying without Issue.—The circumstances surrounding the making of the will in question showed that the testator left him surviving as his heirs at law his childless second wife, then aged fifty-six years; a son, William, aged forty-two years and unmarried; another son, John, aged thirty-nine years, having one child; and a daughter, Elizabeth, aged forty-six years, who was married and had three young children. At tho time the will was executed the testator was seventy-four years of age, was then very ill, and was expected t.o die, and did die six days afterwards. By the terms of his will he devised Ms farm, which comprised the bulk of his estate, to his wife and his son William “during the lifetime of my said wife, and at her death said land with all the improvements and proceeds thereof vests absolutely in and is the property of said William, that in case said William dies without issue his property herein specified becomes the property of John, and at his death goes to Elizabeth.” Seld, that upon the prior death of the wife, the son, William, did not become vested with an unconditional and unqualified fee, but that the fee was limited upon the condition of Ms dying at any time without issue, and that upon Ms so dying, subsequent to the death of the wife, the property would pass to John and Elizabeth successively.</p> <p>Id.—Charge op Legacies on Property Devised.—The fact that by a subsequent clause of the will legacies aggregating fifteen hundred dollars were charged upon the proceeds of the property devised, payable at the death of the wife, does not compel the conclusion that the testator supposed that his son William, if he were living, would then have an indefeasible fee and that he must have intended that result.</p>

The facts are stated in the opinion of the court. Grant Jackson, and Keefer & Bowers, for Appellants. John W. Schenck, City Attorney of Los Angeles, Anderson & Anderson, and Leslie R Hewitt, Amici Curirn, also for Appellants. A'. S. Halstead, Miner P. Goodrich, W. R. Kelly, and Wilfred M. Peek, for Respondent. W. C. Petchner, Benj. E. Page, and H. M. Barston, Amici Cu-rice, also for Respondent.

<p>Corporations — Special Meeting op Directors — Place — Hall at Locked Oppice—Substantial Compliance with Code.—Where the office of the directors of a corporation was the regular office of its president, who had left the door locked at a time when a special meeting of the directors had been regularly called, their convening in the hall just outside the office was a substantial compliance with section 319 of the Civil Code, requiring that their meetings “must be held at its office or principal place of business.” No other director could have been thereby deprived of an opportunity to attend the meeting had he desired to do so. •</p> <p>Id.—Reasonable Construction of Statute—Inability of Possessor of Office to Prevent Meetings.—Under any reasonable construction of the statute, it cannot be held that any person who happens to be in possession of the office of the corporation has power, by excluding its directors and members, to absolutely prevent the holding of meetings.</p> <p>Id.—Quorum of Directors—Inclusion of Director after Resignation Unaccepted.—A director who had tendered his resignation to the board, which by its terms was “to take effect upon acceptance,” and which had not been accepted at the time of the special meeting, had the right to attend the same, at the request of other directors, and thereby complete a quorum of directors with power to adjourn such meeting to a stated time.</p> <p>Id.—Fraud Not Appearing in Special Meeting.—The mere circumstance that such director who had tendered his resignation had stated that he would not attend, and that another director, upon being informed that he would not attend, believed that there would be no quorum, cannot make it a fraud upon the corporation for a majority of the board, including the director who had said he would - be absent, to meet and act pursuant to proper call and notice.</p> <p>Id.—Power of Quorum at Adjourned. Special Meeting—By-Laws— New Notice Not Required — Presumed Knowledge — Scope of Business.—Where the by-laws give to a quorum of directors power to adjourn a meeting within certain limits, and the special meeting was properly adjourned, and the by-laws also provide that “all acts and proceedings regularly had and done at meetings regularly adjourned from meetings called or held, shall be valid and binding as if had and done at meetings otherwise regularly called and held,” no new notice is required thereunder to absent directors of such adjourned meeting who had notice of the original special meeting; but they are bound to know that the special meeting might be adjourned and that such business might be transacted at the adjourned meeting which could have been transacted at the original meeting.</p> <p>Id.—Proper Action of Directors at Adjourned Meeting—Accepting . Director’s Resignation — Removing President — Choosing Successors—Removal of Office.—The quorum of directors present at the adjourned special meeting had the same power which it had at the original special meeting to accept the resignation of director and. elect his successor, to remove its president, who had locked the office against them, and to choose another president, and to remove the office to another place in the same city.</p> <p>Id.—Nature and Effect of Notice of Special Meeting—Jurisdiction I to Act within Scope of Powers.—The notice of a special meeting of a board of directors óf a corporation under the laws of this state is not required to specify the purpose of the meeting, but all that is required, under section 320 of the Civil Code, is a written notice sufficient to inform the directors that a special meeting of the directors is called, and of the exact time and place where it is to be held, and where the notice contained these requirements, it was effective to confer upon the board jurisdiction to transact business properly within the scope of its powers at the time of the meeting.</p> <p>Id.—Power of Removal of Office—Discretion of Directors—Construction of Code.—-The location and removal of the office of the corporation was a matter committed to the discretion of the directors. Even if the “office” of a corporation be treated as equivalent to its “principal place of business,” the requirements under section 321a of the Civil Code, forbidding the principal place of business to be changed except with the consent of the holders of two thirds of the stock, and upon publication of a notice of the intended change, do not, by its terms, apply to a removal from one location to another in the same city.</p> <p>Id.—Sufficient Notice of Removal—Notice to all Directors.—It was a sufficient notice of such removal that notice of the change of the company’s office in the same city had been given to all of its directors shortly after such change had been ordered, so that they would have notice of the place where the regular meetings of the directors would thereafter be held.</p> <p>Id.—Effect of Transfer of Stock by Directors—Continuance to Act—De Facto Directors—Acts Valid as to Third Parties.— Whatever may be the rule in other states as to the complete divestiture of the office of a director when he transfers his stock, the settled :rule in this state is that, if he continues to act as a director, notwithstanding such transfer, he is a de faeio director whose acts are valid as to third persons dealing with the corporation, and his title to the office cannot be impeached collaterally.</p> <p>Id.—Validity of Lease of Part of Corporation’s Mining Claims at Regular Meeting.—The directors of the corporation had power, at its regular meeting, to authorize the lease of part of its mining claims to one of the defendants for the period of five years, in consideration of Ms agreement to work the same and to pay to the corporation a certain percentage of its net proceeds. Such a lease, not covering the whole of plaintiff’s property, is not affected by the terms of section 361a of the Civil Code.</p> <p>Id.—Construction of By-Laws Restricting “Conveyance.”—The bylaws of the corporation, providing that “no mortgage or conveyance shall be made without the consent of the holders of at least two thirds of the outstanding capital stock of the corporation,” are to be construed as using the word “conveyance” in the more restricted sense as importing an act whereby the legal or equitable title to real property of the corporation is transferred, and not as applying to a mere authorized lease of part of its property that would not lead to any change of ownership. In its ordinary significance, without referring to registry acts, the term “conveyance” does not include leases of terms for years.</p>

<p>APPLICATION for a Writ of Habeas Corpus directed to the Sheriff of Los Angeles County.</p> <p>The facts are stated in the opinion of the court.</p> <p>T. E. De la Matyr, and Hugh J. Crawford, for Petitioner.</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>Pleading — Appeal — Review op Order Sustaining Demurrer.—An appellate court, in reviewing an order sustaining a demurrer to a complaint, in which several grounds of demurrer were set forth, cannot take notice of the supposed reasons of the court below in reaching its conclusion, and is not confined to those reasons in considering the rights of the parties upon the appeal.</p> <p>Id.—Negligence of Physician—Uncertain Complaint—Renewal of Prescription.—In an action against a physician to recover damages for injuries caused to a patient as the result of his alleged negligence, the complaint is subject to a special demurrer for uncertainty where the only negligent act averred is that after the plaintiff had been taking a certain drug prescribed by the defendant for some two months, getting the prescription refilled at a drug-store as needed, the druggist refused to refill it again without special authority from the defendant, and that thereupon the defendant carelessly, unskillfully, and negligently instructed said druggist to refill said prescription for her whenever she wanted it, without bothering him each time, and that he did not revoke said instruction for more than a year thereafter, and that the plaintiff, being ignorant of the deleterious effect of the drug, continued to get the prescription refilled and to take the drug for fourteen months thereafter, whereby she was made sick and weak and was seriously injured in mind and body.</p> <p>Id.—Negligent Prescription—Improper Use of Prescription.—Such a complaint is uncertain, in that it cannot bo determined therefrom whether the drug was negligently and improperly prescribed, or whether it was properly prescribed, but was directed by the prescription to be taken in an improper manner, or in improper quantities, or with improper frequency.</p> <p>Id..—Amendments to Complaint—Refusal of Amendment—Appeal.— Ordinarily the trial court should be liberal in allowing amendments to a complaint where the defect is one of form only. This, however, is a matter which is almost entirely within the discretion of that court, and the appellate court can reverse the ease only when there is a manifest abuse of discretion in giving final judgment on demurrer without leave to amend.</p> <p>Id.—Sustaining Demurrer to Third Amended Complaint—Discretion. —The plaintiff does not have a positive right to amend his complaint after a demurrer has been sustained to it, and it cannot be held to be an abuse of discretion to refuse to allow further amendments after a demurrer has been sustained to a third amended complaint.</p>

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

<p>'APPEAL from a judgment of the Superior Court of the City and County of San Francisco and from orders denying a motion to set aside the verdict, and denying a new trial. John Hunt, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>The facts are stated in the opinion of the court.</p> <p>W. H. Morrissey, Keogh & Olds, and P. B. Lynch, for Appellants.</p>

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

<p>Application for a writ of supersedeas directed to M. J. Hynes, as guardian of the person and estate of an incompetent person.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Trespass to Land—Parties Plaintiff—Person in Possession—Title in Plaintiff Unnecessary — Extent of Damages.—The proper party plaintiff in an action for trespass_to real property is the person in actual possession. No averment of title in plaintiff is necessary. The person in possession can recover no damages for injuries, except such as affect his own right, unless he holds in such relation to other parties interested that his recovery will bar their claim.</p> <p>Id.—Stranger Cannot Question Title of Possessor..—A defendant who is a mere stranger to the title will not be allowed to question the title of the plaintiff in possession of the land. It is only where the trespasser claims title himself, or claims under the real owner, that he is allowed to attack the title of the plaintiff, whose peaceable possession be has disturbed.</p> <p>Id.—Vendee in Possession under Contract of Purchase—Wrongful Removal of Ore from Mine.—-A vendee of a mine, who is rightfully in possession thereof under an agreement of sale from the owner, entitling him to extract the ore therefrom, may maintain an action against defendants, who do not claim title, possession, or right of possession, to recover the value of ore wrongfully removed by them from the mine while so in the possession of the vendee.</p> <p>Id.—Statute of Limitations for Trespass — Absence of Fraud — Ignorance of Injury.—It was the settled rule, in actions at law. that the plaintiffs’ mere ignorance of the existence of the injury complained of, or of the facts constituting such injury, or of the identity of the person liable therefor, until the period of limitation has passed, will not prevent the running of the statute of limitations.</p> <p>Id.—Fraudulent Concealment of Injury;—Postponement of Running of Statute—Actions at Law.—In all actions, including those at law, where fraud enters into the cause of action and the party liable has fraudulently concealed the injury or the essential facts thereof from the party injured, the running of the statute of limitations is delayed until the injured party discovers, or with reasonable diligence might have discovered, the facts constituting the injury and cause of action.</p> <p>Id.-—Construction of Similar Statutes of "Limitation.—The foregoing rule was established in this state when the statute of limitations then in force contained the provision now found in subdivision 4 of section 338 of the Code of Civil Procedure concerning actions for relief against fraud, and the same construction should be placed upon the present statute.</p> <p>Id.—Underground Trespass in Mine—Fraudulent Concealment op Trespass—Evidence op Fraud—Want op Knowledge op Trespass. :—A mine owner who, through the underground openings in his mine, secretly, knowingly, and willfully removes ore from the vein of an adjoining proprietor, without his knowledge or means of knowledge, is guilty of fraud, and to constitute a fraudulent concealment of such a trespass it is not necessary that the trespasser should take active measures to prevent detection. Under such circumstances the fraud conceals itself. In the present ease the evidence is held sufficient to show a fraudulent taking and a fraudulent concealment of this character and to support the finding of the jury that the plaintiff did not discover, and was not put on inquiry concerning, such trespass, until such time as would prevent the action from being barred by the statute of limitations.</p> <p>Id.—Running op Statute against Underground Trespass.—Such facts bring an action to recover for a trespass so committed within the rule above stated, and prevent the running of the statute until the trespass was discovered. They also make a case coming within subdivision 4 of section 338 of the Code of Civil Procedure, relating to actions for relief against fraud.</p> <p>Id.—Discovery op Facts Constituting Fraud—Accrual op Cause op Action.-—It is settled in this state that if fraud enters into a cause of action, the latter clause of subdivision 4 of section 338 of the Code of Civil Procedure will apply, and the cause of action will not be deemed to have accrued until the facts are discovered, regardless of the form or character of the action.</p> <p>Id.—Pleading Statute op Limitations—Evidence op Fraudulent Concealment to Avoid Plea op Statute.—In an action to recover for such a,trespass in which the complaint sufficiently alleges the secret and fraudulent taking, and the answer sets up the three years’ statute of limitations embodied in subdivision 2 of section 338 of the Code of Civil Procedure as a defense, the plaintiff, in order to avoid the plea of the statute, may prove the fraudulent concealment without pleading it.</p> <p>Id.—Fraudulent Trespass and Concealment by Agents Imputed to Principal.—So far- as affects the running of the statute of limitations, it is immaterial whether such ore was taken by the defendants themselves, or by their agents without their knowledge or consent, provided it was taken willfully, intentionally, and secretly. The fraud of the agents will be imputed to the principal for the purpose of preventing the running of the statute, whether the principal was aware of it or not.</p> <p>Id.—Measure op Damages—Ore Taken by Mistake—Deduction op Cost op Mining and Milling—Intentional Taking op Ore.—If the invasion of the plaintiff’s mine by the defendants was the result of honest mistake and inadvertence, the measure of damages would be the value of the mineral extracted from the ore, less the cost of mining and milling, but if it was intentional and with knowledge of plaintiffs’ rights, the defendants would be chargeable with the value of the mineral after reduction, without any deduction for expenses of mining and milling.</p> <p>Id.—Punitive Damages against Principal for Fraud of Agent—■ Knowledge of Fraud or Ratification by Principal Essential— Evidence.—The damages allowable in such latter case, in excess of the value of the ore as it lay in the mine, are punitive in their nature, and are recoverable, under section 3294 of the Civil Code, only when the defendants have been guilty of oppression, fraud, or malice. They cannot be given against principals for the fraud of their agents, unless such fraud was known to the principals or was authorized or ratified by them. In the present case the evidence is held insufficient to show that the defendants had any knowledge of the trespass, or of its fraudulent character, at the time of its occurrence, or that they either specifically or by general directions or suggestions authorized it.</p> <p>Id.—Damages for Conversion of Chattels.—Treating such unlawful taking of the ore as a case of the conversion of chattels, the conversion was -complete when the defendants had mined the ore and mingled it with ore from their own mine. Its subsequent “highest market value,” recoverable under section 3336 of the Civil Code, would be its subsequent value in the condition it was in at the time of conversion, and would not include a value added to it by the defendants by milling after conversion.</p> <p>Id.—Denial of Trespass by Principals—Pleading Denial and Statute of Limitations Not Ratification.—Where the defendants acted in good faith in denying the trespass and pleading the statute of limitations, they cannot be held to have ratified the wrongful and fraudulent acts of the agents in taking the ore in question by the denials thereof in their answer to the complaint and by their failure to investigate the matter or make restitution, after they were informed of the facts by the service upon them of a copy of the complaint.</p> <p>Id.—Instruction as to Statute of Limitations—Omitting Elements of Fraud and Concealment of Trespass.'—In an action to recover for such an underground trespass, an instruction that the statute of limitations did not begin to run when the trespass was committed, but from the time of the discovery thereof by the injured party, or from the time when with ordinary diligence he might have discovered it, is erroneous if it omits the elements of secrecy and of fraud in the trespass and the fraudulent concealment thereof by the trespasser.</p> <p>Id„—Finding of Jury as to Facts of Fraud and Concealment.—The giving of such instruction will be deemed without prejudice if the jury, in response to special interrogatories submitted to them, found that the trespass was fraudulently made and fraudulently concealed hy the agents of the defendants.</p> <p>Id.—Instructions—Ore Removed before Plaintiff Entered into Possession—Mingling of Removed Ore with Ore of Defendants— Burden of Proof on Defendants.—Where the facts disclosed that the ore was taken from the plaintiff’s mine secretly and knowingly, and was wrongfully carried to the defendants’ mill along with their own ore and indistinguishably mingled with that ore, it was proper to instruct the jury that if the ore taken by the defendants from the plaintiff’s mine was partly extracted before the plaintiff entered into possession under its contract of purchase and partly afterwards, the burden rested upon the defendants to show how much was taken before the entry and how much was taken afterward, and if they failed to do so, then the plaintiff was entitled to recover for the entire amount taken. It is immaterial that the defendants’ employees knowingly mingled the ore without the actual knowledge of defendants themselves.</p> <p>Id.—Compensatory Damages—Instruction—Willfulness of Trespass .—Striking Out Punitive Damages.—In an action to recover damages for such trespass, an instruction to the effect that “the right of the plaintiff to recover is not at all affected by the fact that the trespass was not willful,” is technically correct if limited to the right of the plaintiff to recover merely compensatory damages. The error in that and similar instructions, so far as they implied a right to recover exemplary damages, irrespective of the willfullness of the trespass, may be cured by reducing the judgment to the amount of damages allowed as compensation.</p>

<p>The facts are stated in the opinion of the court.</p> <p>Campbell, Metson, Drew, Oatman & Mackenzie, for Appellant.</p> <p>Morrison & Brobeck, Morrison, Cope & Brobeck, and Edward Hohfield, for Respondents.</p>

Order refusing to dissolve an injunction reversed on the authority of Willis v. Lanridson, ante, p. 106. APPEAL from an order of the Superior Court of Sacramento County refusing to dissolve an injunction. C. N. Post, Judge. The facts are similar to those stated in the opinion in Willis v. Lauridson, ante, p. 106.

<p>APPEAL from a judgment of the Superior Court of Los Angeles County and from an order refusing a new trial. N. P. Conrey, Judge.</p> <p>The facts are similar to those stated in the opinion in the case of Sam Pedro, Los Angeles & Salt Lake Bailroad Company v. Hamilton, ante, p. 610, [119 Pac. 1073],</p>