Volume 162 — California Reports

<p>Eminent Domain—Unauthorized Taking for Public Use—Action for Compensation Ratifies Taking.—An action by the owner of land to recover compensation from a railroad for a part of the land permanently appropriated for the public use of operating thereon a public railway, ratifies the original unauthorized taking for that use.</p> <p>Id.—Measure of Damages.—In such action the plaintiff may recover not only the damages occasioned up to the time the action was begun, but also all that can then be shown with reasonable certainty will be suffered in the future.</p> <p>Id.—Proper Method of Ascertaining Damages—Evidence.—The proper measure of damages in such action is the difference between the value of the entire parcel as it was just before the railroad took permanent possession, and its value immediately after its works were completed and put in operation, taking into consideration all the injurious consequences to the part of the land not taken, reasonably probable from such works and the operation thereof and from the severance of the land taken, and the evidence should be confined to such elements of damage.</p> <p>Id.—Findings as to Value at Time of Trial—Judgment Not Supported.—Where the action was commenced more than six years after the taking, a judgment for the plaintiff, based entirely upon findings as to the value of the land at the time of the trial, and what it would have then been worth but for the defendant’s works, cannot be sustained.</p> <p>Deed.—Sufficient Description—Reference to City Streets.—A deed of land situated just outside of a city’s limits, which so describes the property conveyed by reference to the lines of the city streets produeed, that its location could be ascertained by a proper survey, is not void for uncertainty.</p>

<p>APPEAL from an. order of the Superior Court of Los Angeles County denying a motion for a new trial of a contest of a will after probate. Leon F. Moss, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>APPLICATION for a Writ to review the acts of the Board of Supervisors of Imperial County in the organization of an irrigation district.</p> <p>The facts are stated in the opinion of the court.</p>

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

<p>APPEAL from a judgment of the Superior Court of Solano County and from an order refusing a new trial. A. J. Buckles, Judge.</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 refusing to set aside a judgment and to relieve from a default. Leon F. Moss, Judge. The facts are stated in the opinion of the court.

<p>Appeal—Record—Notice of Appeal Must Be Included .in Every Record.—Sections 951'and 952 of the Code of Civil Procedure apply to records on appeals prepared under sections 953a and 953e of that code, as in other cases, and a copy of the notice of appeal is a necessary part of every record on appeal and should be included in the transcript in all eases.</p> <p>Water—Appropriation—Lapse through Failure to Prosecute Work. —Under section 1419 of the Civil Code, the right of an appropriator of water, so far as subsequent horn fide claimants under valid notices of appropriation are concerned, lapses upon the expiration of sixty days after his notice of appropriation was posted, if in that interval he does nothing further in pursuance of his notice.</p> <p>Id.—Appropriation in Forest Reserve—Application for Permit— Extension of Time to Do Work—Right to Water an Interest in Land—Quieting • Titm.—An appropriator of water, whose proposed diversion works would he within a forest reserve of the United States, who has, in conformity with the requirements of section 1422 of the Civil Code, as amended in 1903, within sixty days after the posting of his appropriation notice, had a survey and map made of the proposed route of his proposed ditch from the proposed dam to the proposed place of use, and has applied to the United States authorities for a permit to construct the same over the land in the forest reserve, and prosecuted his application, with due diligence, acquires, while his application is pending and undetermined, an incomplete, incipient, conditional right in the water, which is a vested interest in real property, and w„hich may he adjudged to be such in an action to determine conflicting claims thereto, under section 738 of the Code of Civil Procedure.</p> <p>Id.—Form of Judgment Protecting Incipient Right.—Such an appropriator has sufficient interest to entitle him to a judgment protecting that interest against all adverse claims which would he subordinate to his right, if he should comply with all the requirements of the statute and thereupon take the water and apply it to a useful purpose. Such judgment should not declare the plaintiff absolutely entitled to the water, nor enjoin the defendant from taking or using it during the intervening time prior to the completion of plaintiff’s works to a stage which will' enable him to divert and use it. It should only declare and describe the plaintiff’s contingent right to use the water and enjoin adverse claims or uses injurious thereto. If the plaintiff's right shall have terminated at or before the time of trial, the judgment should be for the defendant.</p>

<p>Divorce—Interlocutory Decree—Expiration op Tear—Dissolution op Marriage.—In an action for divorce, when an interlocutory decree is made under the provisions of sections 131 and 132 of the Civil Code, declaring that the plaintiff is entitled to a divorce, the marriage is not dissolved, by force of law, at the expiration of one year from the date of the entry of such decree, without the making or entry of any final judgment or any further order or action of the court regarding it.</p> <p>Id.—¡Final Judgment ¡Necessary to Dissolve Marriage.—To effect the dissolution of the marriage, after the expiration of one year after the entry of the interlocutory decree, the statute requires the entry of a final judgment granting the divorce, which is to be made as the result of further judicial action by the court in rendering the final judgment, on motion of either party, or upon its own motion. Until such final judgment is so entered the parties remain in the legal relation of husband and wife.</p>

<p>APPEAL from a judgment of the Superior Court of Los Angeles County and from an order refusing a new trial. Walter Bor dwell, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>APPEAL from a judgment of the Superior Court of Los Angeles County. George PI. Hutton, Judge.</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. GL A. Sturtevant, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Criminal Law—Living in State of Cohabitation and Adultery—Unmarried Person Cannot Commit Offense.—An unmarried person cannot live in a state of cohabitation and adultery, within the meaning of section 269a of the Penal Code, as amended March 21, 1911, and cannot be guilty of the offense of so living created by that section.</p> <p>Id.—Adultery Defined.—The word “adultery,” as used in section 269a of the Penal Code, and in the pre-existing statute of March 15, 1872, on the same general subject, has the same meaning that is given it in section 93 of the Civil Code, where it is defined as the “voluntary sexual intercourse of a married person with a person other than the offender’s husband or wife.”</p> <p>Id.—Fornication by Unmarried Person not Adultery.—In the absence of statutory provision to the contrary, participation in an act of sexual intercourse on the part of an unmarried woman does not constitute “adultery” on her part, but amounts simply to fornication.</p> <p>Id.—Construction of Statutes Punishing Adultery.—The original act of March 15, 1872, to punish adultery, was designed solely against the person guilty of “adultery,” and no different design can be attributed to the amendments of 1911, the only object of which was the elimination of the element of notoriety from the offense.</p> <p>Id.:—Unmarried Person not Aider and Abettor in Offense.—As section 269a of the Penal Code excludes the idea of any criminal offense on the part of an unmarried participant in the illicit intercourse, such participant, merely on account of such participation with a married person, cannot be held punishable as being an aider and abettor in the offense, even though he or she be considered to be an accomplice under the provisions of section 31 of the Penal Code.</p>

<p>APPEAL from a judgment of the Superior Court of Alameda County. John Ellsworth, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>APPEAL from an order of the Superior Court of the City and County of San Francisco distributing the estate of a deceased person. Thomas F. Graham, Judge.</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. James M. Seawell, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>APPEAL from an order of the Superior Court of the City and County of San Praueisco refusing to vacate an order dismissing an action for want of prosecution. John J. Van Nostrand, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

'APPEAL from an order of the Superior. Court of Los Angeles County refusing a motion to vacate an order for the issuance of a Writ of Assistance and to recall the writ. Charles Monroe, Judge. The facts are stated in the opinion óf the court.

<p>Water—Bipabian Proprietors—Action to Determine Bights to Use Water—Judgment—Uncertainty,—In an action by lower riparian proprietors against upper riparian proprietors, to determine tbeir respective rights to the use of the waters of a natural stream, in which the defendants set up a right by appropriation of all the waters thereof, and another right of appropriation by user and prescription to certain of the wafers thereof, the defendants cannot object, on the ground of indefiniteness or uncertainty, to a judgment which entitles them to take and use “such a quantity of water . . . which shall be required for all the natural or domestic uses and purposes appurtenant to” their riparian lands, “including water for household and domestic uses and purposes, for watering stock, and for irrigating lawns and gardens adjacent to the dwelling-house on said lands.”</p> <p>Id.—Failure to Adjudge Definite Quantum of Water to be Used.— The defendants cannot complain of the uncertainty of the judgment in failing to award them a definite quantum of water, when they were accorded an opportunity on the trial to show that fact, and declined to do so.</p> <p>Id.—Adjudication of Eights of Upper Eiparian Proprietor.—Such judgment does not limit the defendants to take water from any particular branch of the stream, or to the amount which they may happen to be using, but gives them, as upper riparian proprietors, the first right to all which they may require for the purposes of their superior use.</p>

<p>APPEALS' from orders of the Superior Court of Solano County dismissing motions for a new trial. A. J. Buckles, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>APPEAL from a judgment of the Superior Court of Los Angeles County and from an order refusing a new trial. Frank R. Willis, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Mortgage—Failure of Consideration—Successor of Mortgagor mat maintain Action to Cancel against Assignee of Mortgage.—The purchaser at a sale under a deed of trust of land which is subject to the apparent lion of a mortgage given to secure a promissory note is a successor in interest of the mortgagor, and as such may assert all of the latter’s equities against the mortgagee or his assignee, and ' may maintain an action against an assignee for value of the mortgage to cancel the same for the failure of the consideration for which it was given, notwithstanding tho assignee may have taken the mortgage without actual knowledge of the failure of the consideration as between the original parties.</p> <p>Id.—Failure to Perform Oral Agreement to Build House.—The fact that the failure of consideration consisted of the failure to perform a verbal agreement for the erection of a house on the mortgaged land does not affect the rule charging the assignee with knowledge of the equities. Such a contract was not required to be in writing.</p> <p>Id.—Assignee of Mortgage charged with Notice of Equities between Original Parties.-—One about to take an assignment of a mortgage is bound in his own interest to inquire of the mortgagor as to tho validity of the instrument and of tho transaction on which it was founded and as to the amount due, and whether the mortgagor has any defenses or set-offs to interpose against it; if he neglects to do this he takes the mortgage subject to all infirmities or objections which could have been set up against it in the hands of the original mortgagee, being charged with knowledge of all facts which such an inquiry would have disclosed.</p>

<p>APPEAL from a judgment of the Superior Court of Los Angeles County and from an order refusing a new trial. Walter Bor dwell, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>APPEAL from an order of the Superior Court of Alameda County denying a motion for contribution and execution. William H. Waste, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>APPEAL from a judgment of the Superior Court of Merced County. M. L. Short, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>APPEAL from a judgment of the Superior Court of Shasta County and from an order refusing a new trial. Charles M. Head, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Taxation—Proceedings in Invitum.—Tax proceedings are still m invitum, in this state, and to be valid must be in strict accord with statutory requirements.</p> <p>Id.—Omission of Dollar Mark from Assessment-Eoll.—An assessment of land, and the tax-sale based thereon are void, if there was no dollar mark or other abbreviation or indication on the assessment-roll showing what the figures meant which appeared in tho column for the statement of the amount of the tax on each lot.</p>

<p>Taxation—Conclusiveness op Valuation in Assessment—Discrimination by Assessors.—The conclusion of assessing officers as to the value of property for purposes of taxation, when honestly arrived at and when not made in pursuance of some fixed rule or general system the result of which is necessarily discriminatory and inequitable, is conclusive on the courts, however erroneous the conclusions of those officers may be.</p> <p>Id.—Fraudulent Discrimination—Inequality op Valuation.—A taxpayer may' collaterally assail an assessment in the courts where it was fraudulently and corruptly made with the intention of discriminating against him, and for the purpose of causing him to pay miore than his share of the public tax, and it has that effect, or where there is something equivalent to fraud in the making of the assessment, producing such effect. This is as true where the injurious effect so produced is caused by inequality of valuation as by any other cause.</p> <p>Id.—Recovery op Taxes Paid on Excess Valuation—Participation in Fraud by Board op Equalization.—Although the evidence may warrant the conclusion of something equivalent to fraud by the assessor in the matter of the assessed valuation of property, still to enable the owner to recover the tax paid on the alleged excess valuation it must appear that the county board of equalization in some manner participated in the fraud when the matter came before it on application for reduction.</p> <p>Id.—Function op Board op Equalization—Decision Equivalent to Independent Valuation.—In discharging its duties of equalization such board exercises judicial functions, and its decision as to the value of the property and the fairness of the assessment so far as amount is concerned constitutes an independent and conclusivo judgment of the tribunal created by law for the determination of that question, which abrogates and takes the place of the judgment of the assessor upon that question.</p> <p>Id.—Approval of Assessment by Board — Finding against Discrimination in Valuation.—Where the only alleged effect of the fraud of the assessor is excessive valuation of the property of the tax-payer for assessment purposes, the conclusion of the board of equalization that the fair value for such purposes is the amount fixed by the assessor renders the fraud of that officer immaterial, for it is in no way injurious. According to such conclusion of the board, the property is assessed at the same value proportionately as all the other property in the county.</p> <p>Id.—Fraudulent Conduct of Board in Approving Assessment— Honest Errors of Judgment.—Unless that determination can be avoided, it is conclusive on the question of fairness of the valuation, and hence on the question of injury. It cannot be avoided unless the board has proceeded arbitrarily and in willful disregard of the law intended for their guidance and control, with the evident purpose of imposing unequal burdens upon certain of the taxpayers, or unless there be something equivalent to fraud in the action of the board. Mere errors in honest judgment as to the value of the property will not obviate the binding effect of its conclusion.</p> <p>Id.—Application for Deduction of Assessment — Findings as to Fairness and Completeness of Hearing—Evidence.—It is held, upon a review of the evidence, that the findings, in so far as they may be held to imply any lack of opportunity to plaintiff to fully present its case on its application to the board of equalization for a reduction of its assessment, or any lack of diligence or fairness on the part of the members thereof in the hearing, consideration, and decision, or that the action of the board was merely formal, not constituting a hearing of plaintiff’s protest, are without sufficient support.</p>

<p>Deed—Wife as Co-grantee—Presumption of Separate Property not Conclusive between Husband and Wife.—Where a wife is named in a deed as a co-grantee with her husband, the presumption that she thereby acquired a separate property interest in the land conveyed, as declared by section 164 of the Civil Code, is not conclusive, in a controversy solely between the husband and the legal representative of the wife.</p> <p>Id.—Purchase and Part Payment with Community Funds—Note and Mortgage for Balance — Part Payment from Separate Property of Wife.—Where the property so acquired was purchased and partly paid for with community funds, and a note and mortgage on the same, executed by the wife as well as the husband, are given to secure the unpaid balance, the property is community property, and its status as such is not changed by the mere fact that a part of the unpaid balance was subsequently paid from the separate property of the wife.</p> <p>Id.:—Agreement to Transmute Community into Separate Property.— The fact of such payment from the separate property of the wife does not necessitate an inference of an agreement between the husband and wife to transmute the community property so acquired into her separate property; it is rather to be presumed, nothing else appearing, that the money of the wife was advanced by her for the benefit of the community, to assist in discharging a lien on community property.</p>

<p>APPEAL from a judgment of the Superior Court of Los Angeles County. Charles Monroe, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Mortgage Security Held by Bank—Security Must Be Exhausted before Recourse to Deposits—Mortgage Given by Third Party. —Where a bank has mortgage security for a debt it must exhaust that security before it can apply in reduction or cancellation of the debt any money on deposit with it belonging to the debtor. This rule applies where the mortgage was not given by the debtor himself but by a third party. In either ease the debt is secured by mortgage, and under section 726 of the Code of Civil Procedure, the mortgage security must be exhausted by a foreclosure action before recourse can be had to the bank account or personal responsibility of the debtor. Nor can the mortgage be waived ■ and an action brought on the indebtedness.</p> <p>Id.—Mortgage Securing Advances to Partnership—Renewal Note Given by Succeeding Corporation.—A mortgage to a bank given to secure the individual debt of a member of a partnership and also “the repayment of all other and further advances made or which may in the future be made by said mortgagee” to the partnership, operates to secure a note subsequently executed by the partnership to the bank for a loan made to it; and where such partnership is afterwards formed into a corporation having the same name as the original partnership, and composed exclusively of its members, the mortgage also secures a new note given by such corporation to the bank in renewal of the former note, of the partnership, notwithstanding such former note is marked “Paid” by the bank when the renewal note was given. Under such circumstances, the bank could not apply money of the corporation on deposit with it to the payment of the new note, without first exhausting its mortgage security.</p> <p>Id.—Taking oe Note Not Payment oe Pre-existing Debt.;—The taking of a note, either of the debtor or of a third person for a preexisting debt, is not payment, unless it is distinctly understood that the note is taken as such. The note only postpones the time of payment of the old debt until default is made in payment of the note.</p> <p>Id.—Exoneration oe Surety—Consent to Change oe Form oe Indebtedness.—If the mortgagor be considered as a surety for the loan to the partnership he was not exonerated by the taking of the note of the corporation in renewal of the former note of the partnership, where such transaction was had with his consent.</p>

<p>Will—Undue Influence—Contest—Burden of Proof.—In a contest of a will on the ground of undue influence the burden of proof is on the contestant to show facts from which an inference of undue influence could reasonably be drawn.</p> <p>Id.—What Constitutes Undue Influence.— The kind of influence that may be held to be undue influence warranting a repudiation of a will must be such as in effect destroyed the testator’s free agency and substituted for his own another person’s will. Mere general influence not brought to bear on the testamentary act is not undue influence, but the influence must be used directly to procure the will, and must amount to coercion destroying free agency on the part of the testator.</p> <p>Id.—Misrepresentations Made to Testator—Disinheritance Due to Quarrel.—If the will as made expresses the then well settled determination of the testator himself concerning the disposition of his property, and there is nothing affirmatively shown to warrant the conclusion that the making of the will was suggested by any other party, it cannot be held to have been obtained by undue influence, even though the determination of the testator to exclude a relative from participation in his property has been in part or even wholly caused by mere misrepresentation of fact by others as to such relative, or is the result of a quarrel or dispute with such relative, inspired and encouraged by another for the very purpose of bringing about a breach and a consequent disinheritance to his benefit.</p> <p>Id.—Mere Fraud not Undue Influence.—Mere fraud does not constitute undue influence, but is an entirely separate and distinct ground for invalidating a will, and while undue influence may be exerted by means of fraud, there can be no such influence without an impairment of the free agency of the testator.</p> <p>Id.—Suspicion of Undue Influence Insufficient to Set Aside Will. —A mere suspicion that undue influence may have been used is not sufficient to warrant the setting aside of a will on that ground. The evidence must amount to proof, and such evidence has the force of proof only when circumstances are proven which are inconsistent with the claim that the will was the spontaneous act of the testator.</p> <p>Id.-—Disinheritance of Natural Daughter—Will in Favor of Man With Whom Testatrix Lived as Wife—Undue Influence not Shown.—In a contest of a will by a disinherited natural daughter of the testatrix, on the ground of the alleged undue influence of a man who was the main beneficiary, and with whom, although unmarried to Mm, the testatrix had affectionately lived as a wife for upwards of thirty years, it is held that there is nothing in tho provisions of such will to raise even a suspicion of improper influence, or to impose upon such beneficiary the burden of showing that he had not used undue influence to procure its execution, in view of the admitted circumstances that the daughter and the testatrix had been practical strangers for the first forty-seven years of the former’s life, and had been on unfriendly terms for a period long antedating the making of the will and extending to the time of the death of the testatrix.</p> <p>Id.—Confidential Relation Between Persons Living as Husband and Wife—No Inference of Undue Influence.—The relation existing between such beneficiary and the testatrix was confidential in the same sense and to the same extent that the relation of husband and wife living together in harmony is always confidential, but was of itself, and in the absence of other evidence tending to show undue influence, insufficient to raise an inference of such influence, or to impose upon the beneficiary the burden of showing its absence, or in the absence of such showing by him to warrant setting the will aside.</p> <p>Id.—Accompanying Testatrix to Office of Attorney—Being Present at Execution of Will.—The mere fact that such beneficiary went with the testatrix to the office of a lawyer, where she executed the will, and was present while she gave her directions as to its provisions, and while she executed it, is a circumstance to be taken into consideration in determining whether there was undue influence, but in the absence of other evidence tending to show it, is insufficient to raise any inference of such influence.</p> <p>Id*-Review of Evidence—Insufficient Showing of Undue Influence.—In such contest it is held, upon a review of the evidence, that there is nothing therein that is capable of doing more at the most than warranting a mere suspicion or surmise that undue influence imay have been exerted in the matter of the execution of the will, and that it was insufficient to justify setting the will aside.</p>

<p>Juvenile Court Law—Title -of Statute—Constitutional Law.—The “Juvenile Court Law” of 1909 (Stats. 1909, p. 213), is not invalid as being in conflict with section 24 of article IV, of the constitution, providing that “every act shall embrace but one subject, which subject shall be expressed in its title.”</p> <p>Id.—Scope of Act Indicated by Title.-—The general scope of that act ' is fairly indicated by its title, reading as follows: “An act concerning dependent and delinquent minor children, providing for their care, custody and maintenance; providing for their commitment to the Whittier State School and the Preston State School of Industry, and the manner of such commitment and release therefrom; establishing a probation committee and probation officers to deal with such children, and fixing the salaries of probation officers; providing for detention homes for such children; providing for the punishment of persons responsible for, or contributing to the dependency or delinquency of children; and giving to the superior court jurisdiction of such offenses, and repealing inconsistent acts.” If there are any provisions of that act not covered by its title, their invalidity would not affect the validity of the law as a whole.</p> <p>Id.—Object of Constitutional Requirement—Construction.—The constitutional requirement that acts should contain but a single subject, which should be expressed in the title, was intended to 1 guard against the inclusion in a single or general act of various disconnected provisions. Such requirement should receive a reasonable and not a narrow construction; and does not prohibit the inclusion, in a single act, of a number of specific provisions, all designed to aid in the accomplishment of a single purpose.</p> <p>Id.—Object of Act — Appropriateness of Methods.—The principal object of that act is to provide for the proper custody and education of children who lack the care and control deemed essential to their right development, whether or not their situation be such as to be likely to lead them to actual crime, and its secondary purpose is to provide for the punishment of persons responsible for, or contributing to, the dependency or delinquency of children. The methods provided by the act are appropriate for the accomplishment of such purposes.</p> <p>Id.—Punishment of Offense—Jurisdiction of Superior Court.—The offense of contributing to or causing delinquency or dependency being created by the act, it was proper, in the same enactment, to confer jurisdiction on the superior court for its punishment.</p> <p>Id.—Repeal op Other Statutes Germane to Act.—The repeal of other statutes dealing with the same subject is germane to the purpose of any act.</p> <p>Id.—Jurisdiction op Juvenile .Court — Residence op Dependent Child—Review on Habeas Corpus.—Where the petition filed in the juvenile court avers that the minor whom it was sought to have declared a dependent child was a resident of the state of California, and the court, in its order of commitment finds, as a fact, that such allegation is true, its determination, however erroneous, was within its jurisdiction, and cannot be reviewed on habeas corjms.</p> <p>Id.—Jurisdiction over Non-resident Child.—Whether the juvenile court has jurisdiction of a minor child who was present in the state, but who did not have a technical residence therein, is not decided.</p>

<p>’Taxation.— Sale for Excessive Amount of Taxes and Costs— Validity of Deed—Burden of Proof to Show Sale for Excess. —Assuming that a tax-deed would be invalidated by proof that the specific amount for which the land was declared therein to bo sold to the state was twenty cents in excess of the taxes and costs due on the property, the burden of proof is on the party assailing the deed to establish such fact, unless the evidence thereof is furnished by the deeds themselves from the tax-eolleetor to the state or from the state to the purchaser of the land.</p> <p>Id.—Recitals in Deed—Amount Due for Taxes and Costs—Effect of Recitals as Evidence.—There is nothing in the taxation law that requires the deed from the tax-eolleetor to the state to recite the amount due for taxes, costs, and charges or that warrants the court in accepting such a recital in the deed as evidence of the amount due. The law nowhere provides either expressly or by implication, that such deed to the state should be even prima facie evidence of all the facts recited therein.</p> <p>Id.—Recitals of Matters not Required by Revenue Laws.—As to the matters expressly required to be recited in such deed by sections 3785 and 3786 of the Political Code, the recitals constitute at least prima facie evidence; as to other matters that may be recited therein the deed furnishes no evidence of the truth of the recitals.</p> <p>Id.—Certificate of Sale—Recital of Amount and Year of Assessment.—The provision of section 3776 of the Political Code requiring the certificate of sale to state “the amount and year of the assessment” cannot reasonably be construed as requiring it to recite the amount of taxes, or taxes and costs and charges due at the time of the sale. That requirement is the same as the requirement of section 3785 of that code, that the deed shall give “the assessed value and year of the assessment,” and does not refer to the amount of tax, or taxes, costs, etc., due.</p> <p>Id.—Recital of Amount Due for Taxes and Costs—Invalidity of Deed.—The invalidity of a deed to the state for delinquent taxes, on the ground that the land was sold for an amount in excess of the actual amount due on account of taxes, costs, etc., cannot bo predicated solely upon a recital as to the amount due in the deed.</p> <p>Id.;—Description in Assessment—Uncertainty Cured by Evidence of Identification.—Standing alone and unaided by other evidence, a description of land in an assessment and in all the tax proceedings, as “In the city of Los Angeles, Main Street Tract, Lot 3, Block A,” is insufficient for uncertainty. Such description may be aided and the1 land intended to be assessed sufficiently identified by uneontradieted evidence that there was in that city only one tract of land known and designated as the Main Street Tract, a map of which was on record in the recorder’s office, and that lot 3, block A, was clearly marked and designated thereon.</p> <p>Id.—Sale by State—Mailing Notice to Person Last Assessed— Post-office Address not Known to Tax-Collector—Recitals in Deed—Presumption.—Where a deed from the state for land acquired by it for delinquent taxes recites that the address of the person to whom the property was last assessed was unknown, and that a copy of the notice of sale by the state was not mailed to him, it must be assumed, in accordance with the presumption of the due performance of official duty, if no address is given on any assessment, and in the absence of evidence to the contrary, that the address of such person was not known to the tax-collector, and that consequently the mailing of such a notice was not required under section 3897 of the Political Code.</p> <p>Id.—Long Residence of Person Assessed at same Location.—The mere fact that such person had in fact resided for a number of years at a certain locality in the city in which the land assessed was situated would not be sufficient to overcome the force of this presumption.</p>

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

<p>APPEAL from a judgment of the Superior Court of Los Angeles County and from an order refusing a new trial. Charles Monroe, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>APPEAL from a judgment of the Superior Court of Los Angeles County and from an order refusing a new trial. S. E. Crow, Judge presiding.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Mechanic’s Lien—Evidence Sustaining Reputed Ownership of Land. —In an action to enforce a materialman’s lien, evidence that the person for whom the building was erected and for which the material was furnished was in possession of the land with the knowledge of the owner and under a contract with him, that he held himself out as the owner of the land to the plaintiff and to others, and made contracts for the erection of the building on the land and caused the work of its construction to be begun, is sufficient to establish his reputed ownership of the land.</p> <p>Id.—Facts Putting Owner on Inquiry as to Construction op Building.—The facts that an employee of the agent of the real owner, having entire charge of the selling' of the tract of land of which the lot in question formed a part, informed such agent that the building had been commenced and subsequently that the work had been stopped, are sufficient to put the real owner upon inquiry as to the construction of the building and to charge him with knowledge thereof, under section 1192 of the Code of Civil Procedure.</p> <p>Id.—Note Given to Materialman not Payment.—In the absence of a contrary agreement between the materialman and reputed owner, the giving of a note by the latter to the former to secure the payment of the amount due him did not constitute a payment of tho indebtedness.</p> <p>Id.—When Note Operates as Payment.-—Whether a note, or even a check, is received in absolute payment of a debt, or merely as a recognition of the debt with an understanding as to time and terms of payment, are questions which, as between the parties, are determined by their agreement, and in the absence of an agreement to this effect the acceptance is not a payment of the debt.</p>

APPEAL, from a judgment of the Superior Court of Fresno County and from an order refusing a new trial. George E. Church, Judge. The facts are stated in the opinion of the court.

<p>Criminal Law—Loss of Self-Control Through Intemperance—Affidavit for Arrest—Specific Acts Must - be Alleged.—Under section 2185c of the Political Code (Stats. March 21, 1911), the affidavit for the arrest of a person charged with being so far addicted to the intemperate use of narcotics or stimulants as to have lost the power of self-control, must be substantially in the form provided by section 2168 of that code for the arrest of a person charged with insanity, and must contain a statement of the specific acts and doings of the party charged tending to support the conclusion of the affiant that he had lost the power of self-control. The mere statement of such conclusion in the affidavit is insufficient to confer jurisdiction to issue the warrant of arrest or to proceed with the examination.</p>

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

<p>Criminal Law — Habeas Corpus — Murder — Commitment without Seasonable Cause.—Where a prisoner charged with murder seeks to be discharged on habeas corpus on the ground that he had been committed without reasonable or probable cause, and an examination of the evidence shows the contrary, the writ will be denied without a discussion of the evidence by the court.</p>

<p>APPEAL from a judgment of the Superior Court of Orange County and from an order refusing a new trial. Z. B. West, Judge.</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. William P. Lawlor, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Estates op Deceased Persons — Family Allowance — Insolvent Estate—Duration op Allowance.—Under section 1466 of tie Code of Civil Procedure, a family allowance, in tie case of an insolvent estate, must not be for longer than one year after the granting of letters testamentary or of administration.</p> <p>Id.—Construction op Order—Limitations op Statute to be Bead into Order—Failure to Specify Duration op Order.—An order for a family allowance which, in form, simply grants an allowance of a certain sum per month, without any specification of the time during which it shall continue, should be construed as if the provisions of that section as to the time during which it should continue constituted a part of the order. So construed, such an order continues during the progress of the settlement of the estate, unless the estate is insolvent, in which event it continues for only one year after the granting of letters, even though the settlement of the estate has not then been concluded.</p> <p>Id.—Determination of Question of Insolvency—Collateral Attack on Order.—Whether or not the estate is insolvent is a question of fact that may be determined, upon an opposition by creditors of the decedent, in a proceeding to enforce the continued payment of the allowance, instituted after the expiration of the year from the granting of letters. Such a proceeding involves no collateral attack upon the original order, but simply an inquiry as to whether the order had, by its terms, ceased to be operative.</p> <p>Id.—Making of Order Does not Determine Question of Solvency or Insolvency.—While as a prerequisite to an order for family allowance under section 1466 of the Code of Civil Procedure, certain facts must be determined by the trial court, there is nothing in the statute requiring the question of solvency or insolvency of the estate to be so determined.</p> <p>Id.—Eight to Allowance in Case of Insolvent Estate—Time of Allowance cannot be Curtailed.—Even if the estate be insolvent the family is entitled to such “reasonable allowance out of the estate as shall be necessary for” their maintenance “according to their circumstances," during the whole of the year prescribed, if the estate is properly in progress of settlement so long, and the court may not restrict such “reasonable allowance” to a specified part of such year. The determination of the time during which a “reasonable allowance" shall be paid does not rest in the sound discretion of the court.</p> <p>Id.—Finding on Solvency or Insolvency not Implied from Making Order.—A finding and adjudication of the question of the solvency or insolvency of the estate is not implied from the mere making of an order for family allowance, within a year after the granting of letters, at least in the case of an order which does not in express terms prescribe the period during which the allowance shall continue.</p> <p>Id.—Appeal from Order Directing Payment of Allowance in Insolvent Estate.—Under section 963, subdivision 3, of the Code of Civil Procedure, allowing an appeal in probate proceedings from an order “against or in favor of . . . making an allowance for a widow or child,” opposing creditors and the administrator of an insolvent estate may appeal from an order directing the payment of a family allowance under such original order therefor, for a period subsequent to one year after the granting of letters.</p>

<p>APPEAL from portions of a decree of the Superior Court of Santa Barbara County partially distributing the estate of a deceased person. S. E. Crow, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Deed—Incomplete Delivery to Depositary—Law op Case—Additional Facts Showing Absolute Delivery.—The decision on the former appeal in this ease, reported.in 156 Cal. 353, to the effect that the delivery of the deeds in question by the grantor to a third person, with instructions to deliver them to the grantee only “in case of my not returning from the hospital where I am going for an operation,” was not an absolute delivery, while the law of the case, on such facts, is not determinative of the case on a second trial, where there are additional facts showing an absolute and unconditional delivery by the grantor after his return from the hospital.</p> <p>Id.—Application of Doctrine of Law of the Case.—The doctrine of the law of the case, generally speaking, is applied only to the principles of law laid down by the court as applicable to a retrial of fact, and it does not embrace the facts themselves nor even points of law not presented and determined.</p> <p>Id.—Delivery a Question of Intent—Delivery how Effected.—The delivery of an instrument is a question of intent, and to make it complete no precise form of words and no particular character of act is necessary. The delivery is sufficient and complete if from any or all of the circumstances the grantor has made known his intention irrevocably to part with his dominion and control over the instrument to the end that it may presently vest title in another.</p> <p>Id.—Subsequent Complete Delivery after Incomplete Delivery to Depositary—Notice to Depositary not Essential.—Where a grantor has made an incomplete delivery of deeds to a depositary for the grantee, he may, by a subsequent manifestation of his intent so to do, make a new, independent and complete delivery, and to accomplish that result, it is not necessary that the depositary should be advised or have notice of the grantor’s changed intent.</p> <p>Id.—Evidence Sufficient to Show Delivery.—The evidence is reviewed and held to warrant the inference that the grantor, after making a conditional delivery of the deeds to the depositary, subsequently expressed his intent to make and made a new, independent, and complete delivery thereof.</p>

<p>National Banks .— Express and Incidental Powers — Acquiring Title to Stocks by Compromise or Under Pledge.—A national bank, organized under the act of Congress, has no powers beyond those specified in the act under which it exists, and such other powers as are necessarily incident to those expressly given. While it has no express or incidental power to deal in stocks of other corporations, it may take title thereto in compromise of a disputed or doubtful claim, or take them in pledge, or purchase them with a view to protect or satisfy a claim secured by such pledge.</p> <p>Id.—Sale oe Stock Acquired Under Pledge.—Where a national bank has bought stock pledged to it, it is its duty to dispose of the same as soon as a sale could, to proper advantage, be made.</p> <p>Id.—Ordinary Business op Bank—Cashier IMay Sell Stock Acquired Under Pledge.—A sale of stock so acquired was a part of the ordinary business of the bank, and as such within the powers of the cashier, under a by-law which conferred upon him the general authority “to do whatever may be necessary in the management of the business of the bank.”</p>

<p>APPLICATION for a Writ of Certiorari, to review a judgment of the Superior Court of San Joaquin County, originally commenced in the district court of appeal for the third appellate district, and transferred to the supreme court after decision by that court.</p> <p>The facts are stated in the opinion of the court.</p>

MOTION to dismiss an appeal purporting to have been taken from a judgment of the Superior Court of Madera County. W. M. Conley, Judge. The facts are stated in the opinion of the court.

<p>Mortgage Securing Future Advances — Payment — Extinguishment op Lien-—Occasional Balance to Credit op Mortgagor in Running Account. — The lien of a mortgage given to secure a specified present indebtedness and also future advances to the mortgagor, and which contains a provision avoiding it upon the payment of all sums due or that may become due to the mortgagee, is not extinguished by the mere accidental circumstance that on one or two occasions during the continuance of an unbalanced running account between the parties there was a credit in favor of the mortgagor.</p> <p>Id.—Mortgagor Should Notify Mortgagee of Intention to Consider Credit in His Favor as Extinguishment.—Under such circumstances, equity demands, so far as the mortgagor is concerned, that if he has knowledge of the state of the account and intends to cause the mortgage to he cancelled and treated no longer as security for advances made to him, he should so notify the mortgagee. Not having done so, he will not be allowed to treat the mortgage as canceled.</p> <p>Id.—Unmatured Promissory Notes Held by Mortgagee.—The fact that the mortgagee held promissory notes of the mortgagor, which by their terms did not mature until after the date when the balance of the account stood in favor of the mortgagor, operated to prevent the lien of the mortgage from being extinguished, notwithstanding the mortgagee had charged the amount of such notes to the mortgagor’s account at the time- the advances evidenced thereby were made.</p> <p>Id.—Payment Made by Mortgagee as Guarantor for Mortgagob.^-A payment made by the mortgagee in settlement of an indebtedness due by the mortgagor to a third person, which had been guaranteed by the mortgagee at the request of the mortgagor, should be considered as an advancement to the mortgagor under the terms of the mortgage.</p> <p>Id.—Mortgage Need not State Amount of Advances.—-A mortgage to secure future advances is not rendered invalid by reason of its failure to state the total amount of future advances for which it is to create a lien upon the mortgagor’s property.</p> <p>Id.—Sufficiency of Statement as to Future Advances.—In the absence of statutes providing otherwise, a definite statement of the amount of future advances is unnecessary, and all that is necessary is that a mortgage designed to secure such future liabilities should describe the nature and amount of them with reasonable certainty, so that they may be ascertained by the exercise of ordinary diligence on proper inquiry.</p>

<p>APPEAL from a judgment of the Superior Court of the City and County of San Francisco. George A. Sturtevant, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Appeal—Action to Cancel Deed and Quiet Title—Dismissal op Appeal by Party Having no Interest.—In an action to cancel a deed and to quiet title, in which judgment as prayed for was rendered, an appeal by a party defendant will be dismissed, where her pleadings alleged and her counsel admitted at the hearing, that she had no interest in the subject-matter of the action at the time of its commencement, and prior thereto had assigned whatever interest she may have had to her co-defendant.</p>

<p>APPEAL from a judgment of the Superior Court of the City and County of San Francisco. John J. Van Nostrand, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Estates or Deceased Persons—Degrees op Kinship—Second Cousin and Nephews and Nieces not op Equal Kinship.—Under section 1386, subdivision 5, and section 1393 of the Civil Code, a cousin once removed of a deceased person does not stand in the same degree of kinship as the nephews and nieces of the deceased, and is not entitled with them to succeed to the estate.</p> <p>Id.—Finding—Evidence op Relationship.—The finding that the persons to whom the estate was distributed were the nieces of the deceased is held sustained by the evidence.</p> <p>Id.—Review op Evidence Taken by Deposition.—The appellate court will not review evidence embodied in depositions as triers of fact. The rule that such court will not disturb a finding based upon a conflict of evidence applies to evidence so taken.</p>

<p>Negligence — Falling Into Ditch — Momentary Forgetfulness of Danger :— Contributory Negligence. — The momentary forgetfulness of an uncovered' ditch in the plaintiffs dwelling-house lot, which forgetfulness is not induced by some sudden and adequate disturbing cause, is itself, as matter of law, contributory negligence barring a recovery for personal injuries resulting from falling into such ditch. This rule obtains although the person so injured was aged.</p>

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

<p>APPLICATION for a Writ of Certiorari to review an order of the Superior Court of Marin County.</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. J. M. S'eawell, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>APPLICATIONS for Writs of Mandamus directed to the Superior Court of Kern County. Paul W. Bennett, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Parent and Child—Divorce—Decree Bequiring Father to Support Child Awarded to Mother—AVillful Failure to Support Punishable Under Section 270 of Penal Code.—Where a decree of divorce contains a valid provision requiring the father to continue to contribute to the support of a minor child whose custody is awarded to the mother, he may he convicted, under section 270 of the Penal Code, for willfully omitting, without lawful excuse, to furnish such child with necessary food, clothing, shelter, and medical attendance, ho having the ability to do so. (Selfridge v. Faxion, 145 Cal. 713, distinguished.)</p> <p>Id.—Divorce Decree mat Require Father to Support Children Awarded to Mother.—Section 139 of of the Civil Code empowers the court in a divorce decree to compel the father to support his children after being deprived of their custody.</p>

<p>Appeal in Probate—Order Setting Aside Order Confirming Sale op Land is Appealable.-—An order setting aside a prior order confirming the sale of land belonging to the estate of a deceased person is in legal effect an order against directing the sale or conveyance of real property, within the meaning of subdivision 3 of section 963 of the Code of Civil Procedure, and is appealable.</p> <p>Id.—Legal Effect Determines Appealability of Order.—The appeal-ability of an order is determined not by what its form may be, but by its legal effect, and as the legal effect of such order is to determine against the right of the purchaser to whom the sale was confirmed to an order directing a sale and conveyance, the right to appeal therefrom is secured to such purchaser under that subdivision and section of the Code of Civil Procedure.</p>

<p>APPEAL from a judgment of the Superior Court of Fresno County. George E. Church, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Taxation—Sale to State—Void Deed—Failure to Give Notice op Application por Deed,—A tax-deed to the state as purchaser of land sold to it for delinquent taxes, and tho subsequent deed from the state based thereon, made at a, timo’ when the statute (Political Code, sec. 3785) required as a condition precedent to the execution of the deed that the purchaser must give to the owner of the property thirty days’ notice in writing of his intended application for the deed, are rendered inoperative and void by reason of the failure to give such notice.</p> <p>Id—Proceeding to Sell Property por Taxes Must Be Strictly Followed.—Proceedings to sell property for taxes are to be strictly followed, and if there is any material irregularity in the assessment or in the subsequent proceedings, the sale, and the certificate and deed based thereon, are absolutely void.</p> <p>Id.—Equitable Actions by Owner against Public Authorities to Bestrain Tax Proceedings—Payment of Taxes Condition of Granting Belief.—Whore a property-owner applies for equitable relief against the public authorities, as, for example, to restrain proceedings for the collection or enforcement of taxes assessed against it, or to enjoin tho execution of a tax-deed, or to cancel a lien or charge for taxes, of record against his land, and it appears that all or some part of the tax charged is justly and equitably due from the plaintiff, or chargeable upon the land, he must, as a condition of obtaining such relief, first pay or offer to pay the amount justly duo, or bo must be required to do so before the relief to which he shows himself entitled is given.</p> <p>Id.—Bule Applicable in Equitable Actions against Purchaser— Determination op Adverse Claim.—Tho rule that he who seeks equity must do equity applies to suits in equity by the owner of land against the purchaser at a tax-sale, or his grantee or assignee, to quiet title or to set aside a tax-sale or tax-deed, and to suits under section 738 of the Code of Civil Procedure to determine an adverse claim asserted under such sale or deed, in which a judgment for the plaintiff will, in effect, cancel or annul such sale or deed, and repayment of the taxes, penalties, and costs paid and interest thereon to the purchaser or his successor, less rents received, if any, if the purchaser has been in possession, must be offered or required before, or as a condition of, the judgment in favor of the owner.</p> <p>Id.—Seeker of Equity Must Do Equity:—Bulb Applies to Actions Under Section 738 of Code of Civil Procedure.—The rule that he who seeks equity must do equity is applicable to an action to determine adverse claims under section 738 of the Code of Civil Procedure, to the same extent as in suits of the character formerly cognizable in equity to remove a cloud or cancel an instrument.</p> <p>Id.—Bule Does not Apply to Actions by Tax Purchaser.—A different rule prevails in cases where the tax purchaser is the actor. In such eases, if the purchaser, claiming title under his tax-deed, sues for possession of the land, or if he sues the owner to recover the tax paid, as money paidi to his use, the general rule is that he cannot prevail, that the rule of caveat emptor will be strictly applied against him, that a proceeding to assess and collect taxes creates no contract by the owner to pay the tax assessed, and that the law will not imply a contract by the owner to refund such tax to one who has paid the same upon a tax-sale which is void, and this ia true in eases where the tax was legally assessed but the proceedings to seB defective, as well as where the assessment itself is unauthorized and void, or where the tax had been previously paid.</p> <p>Id.—Bepayment to Purchaser Must Be Made or Secured by Judgment—Interest on Amount Paid for Taxes Becoverable.—The relief to which such purchaser is entitled must be secured to him either by requiring the repayment of the taxes, penalties, and costs, with interest thereon from the time of payment, to be made or deposited in court before giving the judgment, or by inserting in the judgment a clause that it shall not take effect until such repayment is made. A judgment which omits to allow interest, and merely awards the defendant a certain amount for such taxes, penalties, and costs, without making the relief granted to the plaintiff conditional and dependent upon reimbursement to the defendant, is erroneous.</p> <p>Deed—Certificate of Acknowledgment—Immaterial Variance.—A certificate of acknowledgment to a deed, in which the officer certified that the grantor “acknowledged to. mef’ the execution of the deed, is not defective, although the statutory form for such certificates in force at the time of the acknowledgment did not contain the words “to me.”</p> <p>Id.—Certificate by Notary of Sister State—Clerk’s Certificate not Essential.—Under subdivision 4 of section 1182 of the Civil Code, a notary public'of a sister state is authorized to take acknowledgments of deeds conveying lands within this state, and his certificate of acknowledgment, if in the form required by our statutes, is sufficient, without the certificate from the clerk of a court of record of that state provided for by section 1189 of that code. The clerk’s certificate is required only in cases where the notary’s certificate of acknowledgment does not show an acknowledgment which would be good under our own statutes.</p> <p>Id.—Sufficient Certificate—Execution of Deed—Sealing.—A certificate of such foreign notary, to the effect that the “grantor appeared before me, being personally known to me to be the same person described in and who. executed the foreging instrument and acknowledged that be signed and sealed the same as his free and voluntary act and deed for the uses and purposes therein mentioned,” substantially conforms to the statutory requirements of such certificate prescribed by section 1189 of the Civil Code, and shows that the grantor acknowledged that he “executed” the deed, within the meaning of that section. The fact that it also certified to the sealing of the instrument did not vitiate the acknowledgment.</p>

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

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

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

<p>Taxation—Land Deeded to State fob Delinquent Taxes—Notice to Owner of Application for Deed—Deed not Evidence of Giving Notice.—One relying upon a tax-deed to the state as purchaser of land sold to it for delinquent taxes, at a time when the statute required as a condition precedent to the execution of the deed that the purchaser must give to the owner of the property thirty days’ notice in writing of his intended application for a deed on account of the sale to him, and make proof of such service to the tax-collector, and that no deed “shall be issued by the tax-collector” to the purchaser in the absence of such proof, must establish the giving of the notice as a part of his proof of title, and the deed itself is not even prima facie proof that the notice was given. The fact that the state was itself the purchaser did not dispense with the giving of such notice.</p> <p>Id.—Sale by State After Amendment of 1905 to Section 3897 of Political Code—Failure to Mail Notice of Sale—Void Sale.— A sale by the state of land acquired by it for delinquent taxes, which was made after the taking effect of the amendment of March 1, 1905, to section 3897 of the Political Code, and without the mailing of a notice of such proposed sale, as required by that amendment, “to the party to whom the land was last assessed next before the sale,” if his address was known, is void, notwithstanding the proceedings for the sale were initiated prior to the amendment, when the statute contained no provision requiring such a notice by mail.</p> <p>Id.—Equitable Actions to Cancel or Quiet Title against Tax-Deed —Repayment of Taxes as Condition of Relief.—Holland v. Hitchlciss, ante, p. 366, approved, to the effect that in actions in equity by a land - wner to set aside a tax-sale or tax-deed, and in suits, under section 738 of the Code of Civil Procedure, to quiet title against a claim asserted under such sale or deed, repayment of the taxes, penalties, and costs paid and interest thereon to the purchaser or his successor must be offered or required before, or as a condition of, the judgment in favor of the owner.</p> <p>Id,—Judgment Should Award Repayment of Taxes Unconditionally.—In such equitable actions instituted by the landowner, the judgment in favor of the plaintiff should award the amounts so paid to the defendant absolutely, without condition of any kind. A judgment fixing a time limit upon the defendant’s right to accept the amount awarded him is erroneous.</p> <p>Estates of Deceased Persons—Superior Court—Presumption as to Jurisdiction.—In this state, the same presumption exists in favor of the acts of the superior court done in the exercise of its probate jurisdiction, as exists in favor of its acts done in ordinary litigation between parties.</p> <p>Id.—Degree op Distribution—Evidence op Jurisdiction and Transmission op Title.—A decree of the superior court of this state distributing the estate of a deceased person is in itself presumptive evidence of the jurisdiction of the court to render it, and by itself affords evidence of the transmission of the title of the deceased.</p>

<p>Taxation—Sale by State of Land Acquired for Delinquent Taxes— Sale of Entire Land—Retention of Proceeds of Sale in Excess of Delinquency.—Neither the provision of the revenue law authorizing the state to sell as a whole a tract or parcel of land acquired by it for delinquent taxes, nor that authorizing the retention of the surplus proceeds of sale where the amount received is in excess of that which the state could exact before sale upon redemption of the property, renders the law obnoxious to the provisions of either the state or federal constitution.</p> <p>Id.—Description in Tax-Deed—Town Lots—Description by Number of Lot and Block—Prima Facie Sufficiency.—A description of land in a tax-deed as property “situate, lying and being within the county of Los Angeles, state of California, and described thus: In Los Angeles County, Glendale, lot 22, blk. 4,” is in apparent accord with the requirements of subdivision 3 of section 3650 of the Political Code, that city or town lots shall be described on the assessment-roll by the number of the lot and block, according to the system of numbering in such city or town. Such description implies that there was in such town a general system of numbering the blocks and lots of the town, and that it was according to such system. The description will be held prima facie sufficient for identification, at least when accompanied by the evidence of a witness who testified to the value and size of the lot described.</p>

<p>Reclamation District—Payment op Judgment Upholding Assessment by Warrant op District.—Under the amendment of February 20, 1909, to section 3457 of the Political Code, a reclamation district is bound to accept a warrant of the district in payment of a judgment, rendered prior to the taking effect of the amendment, whereby an assessment against certain land therein was judicially found to be valid and a lien was declared against the property, notwithstanding the judgment, in conformity with section '3466 of that code, contained a provision directing that the sale of the land for the purpose of satisfying the assessment should be made in gold and silver coin, and the proceeds of the sale should be placed with the county treasurer to the credit of the district, and the warrant offered in payment had been registered in the treasurer’s office subsequent to others that Were outstanding.</p> <p>Id.—Actions to Determine Validity of Assessment—Assessment not Merged in Judgment.—The actions authorized by sections 3466. and 3493% of the Political Code, for the purpose of determining the validity of an assessment, and to secure, as an incident of such determination, an execution in satisfaction thereof, are part of the proceedings for the creation of the assessment. The judgment rendered in such an action merely declares the status of the assessment as between the parties, and does not merge some lesser right into the judgment.</p> <p>Id.—Warrant May be Tendered in Payment Until Levy and Sal® under Execution.—The landowner, against whose property the validity of the assessment had been determined by the judgment in such action, had a right to satisfy the assessment by a payment in the warrants of the district at any time before actual levy and sale under execution.</p> <p>Id.—Legislature May Determine Method op Payment.—As the reclamation district is a state agency, and the legislature has the power to determine how assessments shall be payable, the district must accept payment as commanded by the legislature.</p> <p>Id.—Mandamus Lies to Compel Acceptance op Warrant.—Upon the refusal of the board of trustees of the district to accept the warrant in payment of such judgment, mandamus lies to compel its acceptance.</p> <p>Id.—Mandate Will Conform to Tender.—In such a mandamus proceeding the court will not direct the acceptance of the warrant in payment of any liability other than that for which it was tendered.</p>

<p>Estate of Deceased Person—Order Settling Accounts and for Distribution—Appeal from Order Denting New Trial—Sufficiency of Findings to Sustain Order Cannot Be Reviewed.—On an appeal from an order denying a motion for a new trial, in a proceeding by executors for the settlement of the accounts and for the distribution of the decedent’s estate, there being no appeal taken from the decree made in such proceeding, the sufficiency of the findings to sustain the decree cannot be reviewed.</p> <p>Id. —New Trial Limited to Issues of Fact—Decision against Law.— Where there has been no error in determining any issue of fact or affecting the determination of any question of fact, there is no ground for a new trial. The grounds specified in section 657 of the Code of Civil Procedure, as grounds for a new trial, all refer to such errors, for it is established that the specified ground of the decision being “against law,” refers to a situation furnishing a reason for a re-examination of an issue of fact.</p> <p>Id.—When Decision not against Law.-—A decision is not against law within the meaning of that section, when the only fault in the findings is that they do not support the legal conclusions drawn from them and the judgmeht based thereon.</p> <p>Id.—Review on Motion foe New Trial and Appeal from Order Denying.—No question of the sufficiency of the findings to support either conclusions of law or judgment can be considered on motion for a new trial, or'on appeal from an order denying a new trial.</p> <p>Id.—Findings—Evidence.—The findings that were assailed on the motion for new trial for alleged insufficiency of evidence to sustain them are held to be fully supported by the evidence.</p>

<p>APPEAL from a judgment of the Superior Court of Los Angeles County and from an order refusing a new trial. W. R. Hervey, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Street Assessment—Action against Municipality and Its Officers —Designation of Officials in Caption of Complaint—Absence of Allegations of Official Capacity—Corporate Existence of City.—In an action by property-owners in a street assessment district, the caption of which shows that it was instituted against the city of Santa Monica, its mayor, trustees, city engineer, and street superintendent, and which was brought to avoid street improvement proceedings and to enjoin an assessment therefor, the complaint is not rendered insufficient by reason of the omission of an allegation therein of the official capacity of any of the defendants named as mayor or trustees in the caption, or of the fact that the city of Santa Monica is a municipal corporation.</p> <p>Id.—Designation of Councilmen as “Trustees.”—The fact that in the caption of the complaint certain defendants are designated as “trustees” instead of “councilmen,” their proper official designation, is immaterial, when the body of the complaint, and the official documents attached thereto as exhibits, show that they were complained of in their official capacity as councilmen.</p> <p>Id.—Judicial Notice Taken of Municipal Corporation—Approval of Charter by Legistature.—It was unnecessary to aver that the city of Santa Monica was a municipal corporation. It was sufficient to aver that the proceedings complained of were had by the legislative body of the city of Santa Monica, and the court will take judicial notice that such city is a municipal corporation, its charter having been approved by the legislature.</p> <p>Id.—Injunction against Assessment Void on Its Eace.—As a general rule, a court will not restrain a sale of property for taxes, assessments, or otherwise, when it is clear that the sale or assessment is void upon the face of the proceedings, or from the recitals in the deed, or on the face of the assessment made by the superintendent of streets, upon which the party claiming under the deed, or attempting to enforce the assessment, must rely to make out a prima facie ease to recover upon the deed or to enforce the assessment liens.</p> <p>Id..—Assessment under Vrooman Act not Void on Its Face.—That rule is not applicable, where there is nothing upon the face of the deed or the assessment made and delivered to a contractor under the Vrooman Act disclosing their invalidity, and the party seeking to defeat the deed or the assessment lien must resort to extraneous evidence to accomplish it.</p> <p>Id.—Prima Facie Validity op Assessment under Vrooman Act— Defects in Proceedings Prior to Assessment—Assessment Creates Cloud on Title—Injunction.—Under section 12 of the Vrooman Act, in actions brought by the contractor to enforce the lien of an assessment for a street improvement levied upon an assessment district, the assessment, warrant, and diagram are prima facie evidence of the regularity of the prior proceedings by the council on which the assessment is based, and notwithstanding the assessment is actually void for a defect in such prior proceedings, the property-owner would be compelled to resort to evidence dehors the recitals in the assessment in order to show its invalidity. The assessment would thus east a cloud upon his title, the creation of which a court of equity will prevent by an injunction.</p>

<p>APPEAL from a judgment of the Superior Court of Lassen County. N. D. Arnot, Judge, presiding.</p> <p>-The facts are stated in the opinion of the court.</p>

<p>Estate op Deceased Person—Trust Created by Will—Validity and ■ Scope Determined by Decree op Distribution.—It is the duty of the court in probate, upon proceedings for the distribution of a testator’s estate, to determine whether or not a valid trust had been created by the will, and to determine and declare in the decree the scope and terms of such trust as it found valid; to select the trustees and to make distribution to them of the trust property, and also to determine what other persons had legal or equitable rights to the distributable property of the estate, and the extent and nature of their interests.</p> <p>Id.—Conclusiveness op Decree—Cannot Be Impeached by Resort to Will.—When the decree of distribution does so determine such matters, although the determination may be incorrect, it is conclusive as to the rights of heirs, legatees, and devisees unless corrected on appeal. It is not subject to collateral attack or to be impeached by resort to the terms of the will, and the rights of the parties must thereafter be determined by a resort to the decree of distribution alone as a final and conclusive adjudication of the testamentary disposition.</p> <p>Id.—Estate of First Taker Limited to Life Estate—Power of Disposition for Specific Purpose—Limitation Over—Enlargement of Estate.—Where by the terms of the decree the estate of the first taker of the property distributed is expressly defined to be a life estate, with a power of disposition annexed, to be exercised for a specific purpose only, with a limitation over, the power of disposition does not enlarge the life estate into a fee or an absolute right of property, and the limitation over is good. This rule applies to dispositions of real as well as personal property.</p> <p>Id.—Death of Life Tenant—Wrongful Possession of Property by Representatives — Representatives Liable in Individual Capacity.—Upon the death of a Ufe tenant, the property as to which the life estate existed forms no part of his estate and his personal representatives have no right to it in their representative capacity. If such representatives wrongfully take possession of it, an action for its recovery should be brought against them as individuals.</p>

<p>Malicious Prosecution—Probable Causer-Malice.—The two essential facts which must concur to support an action for malicious prosecution are want of probable cause and malice, and the burden of proving both is upon the plaintiff.</p> <p>Id.—Malice in Pact—Existence How Inferred or Proven—Evidence to Rebut.—Matice in fact is really the foundation of the action and is usually the pivotal point upon which it turns, and is always a fact directly in issue. Its existence may be inferred from want of probable cause for the prosecution or from acts or declarations of the defendant expressing or indicating prejudice, ill-will, or malicious motive in the matter of the prosecution. In whatever way it may be proved, it must be proved as a fact, and the defendant may introduce any competent evidence to show that he had probable cause for the prosecution or that if he did not have it he was not actuated by malice in doing so.</p> <p>Id.—Proof of Probable Cause — Reasonable Belief in Truth of Charge.—In support of the defense of probable cause, it must appear that the defendant had reasonable grounds to believe and that, in fact, he did believe the charge he made was well founded. It is not sufficient that the facts and circumstances were such as to lead a reasonable and prudent man to believe that the offense charged was committed, but it must also appear that he acted upon them in an honest and reasonable belief that the plaintiff was guilty.</p> <p>Id.—Defendant Mat. Directly Testify to Want of Malice and to Belief of Guilt.—In an action for malicious prosecution, the defendant may testify directly to the fact that he was not actuated by malice in instituting the prosecution and that when he did so he honestly believed in good faith that the plaintiff was guilty of the offense charged against him.</p> <p>Id.—Evidence of Intent, Malice, or Motive.—Where the malice, intent, or motive of a party is under the issues in the case a material fact to be established, the testimony of the party himself directly to the point is competent evidence to prove it.</p> <p>Id.—Jury Judge of Weight of Defendant’s Evidence—Judge’s Opinion as to Weight Immaterial.—Error in the exclusion of such evidence on the trial before a jury is not rendered immaterial by the statement of the trial judge, in denying the defendant’s motion for a new trial, that its admission could not have changed the result. It was for the jury to determine the credit, weight, and effect to be given to such evidence had it been admitted.</p> <p>Id.—Improper Questions Asked District Attorney.—In such action questions asked the district attorney,—namely, Whether the facts stated to Mm by the defendant preparatory to instituting the prosecution were the same as were developed upon the preliminary examination; whether any different facts material to the prosecution developed upon such examination than those which had been stated to him; whether the construction placed on the law by the magistrate in discharging the plaintiff was the construction which he put on the law when he advised the defendant to make the criminal complaint, and whether in Ms interviews with the defendant the latter had manifested a malicious and hostile disposition towards the plaintiff, were properly disallowed.</p>

<p>Contracts for Purchase of Stocks on Margin—Amendment of 1908 to Section 26, Article IV, of the Constitution—Prior Invalid Contracts Not Validated.-—The amendment of November 3, 1908, to section 26 of article IV of the state constitution, providing that “all contracts for the purchase or sale of shares of the capital stock of any corporation or association without any intention on the part of one party to deliver and of the other party to receive the shares, and contemplating merely the payment of differences between the contract and market prices on divers days, shall be void, and neither party to any such contract shall be entitled to recover any damages for failure to perform the same, or any money paid thereon,” did not validate previous contracts made in contravention of the repealed provision of that section, which invalidated all contracts for the sale of stocks “on margin, or to be delivered at a future day,” and gave a right of action to recover any money paid on such contracts to the party paying it.</p> <p>Id.—Effect of Repeal of Statute Invalidating Contract.—The general rule is, with the exception of statutes relating to usury, that if a contract is void by the law in force at the time it is made, the subsequent' repeal of the law will not validate the contract.</p> <p>Id.—Amendment of 1908 Repealed Prior Provision of Constitution-— Operation of Amendment Not Retrospective.—The effect of the adoption of the amendment of November 3, 1908, to section 26 of article IV of the state constitution is to repeal or extinguish all provisions of the former section that are not re-enacted in the .amended’ section. The amendment is not retrospective in operation, for it contains nothing to that effect.</p> <p>Id.—Intention to Operate Retrospectively Must Appear.—The general rule, applicable alike to constitutions and statutes, is that they are not to be considered retrospective in their operation, unless the intention to make them so clearly appears from their terms.</p> <p>Id.—Money Paid for Purchase of Stocks on Margin—Right of Action Taken Away by Amendment.-—The right of action, given by the repealed provision of that section, to recover money paid on such invalid contracts for the sale of stocks on margin or to be delivered at a future day, did not survive the repeal of that portion of the section.</p> <p>Id.—Right to Sue Not Pounded on Quasi Contract—Pending Actions Did Not Survive Amendment.—The right to sue for the recovery of money paid under such a void contract for the purchase of stock, given by the repealed provision of the constitution, was not a vested right depending upon a quasi contract for the repayment of the money by the broker, arising by operation of law from the terms of the constitutional provision as it existed when the void contract was made. It arose solely from the provision of the constitution imposing it, and upon the repeal of that provision, without a saving clause, the privilege of bringing suit for the money paid on the marginal contract was withdrawn, and all pending litigation not prosecuted to final judgment fell for want of authority to maintain it.</p> <p>Id.—Property Pledged to Secure Advances for Purchase of Stock ON MARGIN:—DEMAND FOR RETURN PRIOR TO AMENDMENT OF CONSTITUTION—Recovery May Be Had after Amendment without Paying Advances.—Shares of stock owned by a brokei’s customer, and pledged by him to secure the payment of advances made by the broker under contracts for the purchase of other stocks on margin, which contracts when made were void under the repealed constitutional provision, are recoverable by the pledgor, after the repeal of that provision, without payment of the amount advanced by the broker under such contracts, where demand for their return was made prior to the repeal of the provision of the constitution.</p>

<p>APPEAL from an order of the Superior Court of Los Angeles County refusing a partial distribution of the estate of a deceased person. James C. Rives, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>APPEAL from a judgment of the Superior Court of San Joaquin County appointing a guardian of the person of a minor. C. W. Norton, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>PLEADING:—GOODS SOLD AND DELIVERED-DENIAL Of DELIVERY OF “ALL” of Materials.—In an action for goods sold and delivered a denial of an allegation in the complaint that the plaintiff delivered “all” of the materials sued for is insufficient and is equivalent to an admission that substantially all were delivered.</p> <p>Td.—Materials Furnished for Buildings—Findings—Specifications Not Agreed to Be Furnished.—In an action to recover for certain building material sold and delivered, to be used in certain build ings to be erected by the defendant according to plans and drawings prepared by the plaintiff, the findings that the plaintiff did not agree .to furnish specifications for the buildings, and that the plans and drawings furnished were approved by the defendant, are held to be supported by the evidence.</p> <p>Id.—Time for Delivery—Reasonable Time—Findings.:—Upon a review of the evidence it is held, that the plaintiff did not agree to deliver the materials in question at any stated time, and that an intimation contained in one of its letters, during the negotiations of the parties respecting the work, as to the length of time it would take to furnish them, was a mere estimate and not a promise to deliver within such time; and that as no time was expressed, the plaintiff had a reasonable time to make the deliveries.</p> <p>Id.—Warranty op Carrying Capacity op Floors—Evidence.—The finding that there was no contract or warranty by the plaintiff that the floors of the building in question would bear any specified weight is held to be supported by' the evidence, which. showed, in effect, that the general plans sent to the plaintiff by the defendant, who for many years had been engaged in heavy steel manufacture and professed to do the work of engineers therein, although they had marked thereon the weights to be carried on the floors, gave the sizes of the supporting beams for the floors, and beams of those sizes were furnished.</p> <p>Id.—Breach op Entire Contract—Action for Reasonable Value op Goods Delivered.—One who has failed to perform a substantial and material part of an entire contract to erect a building or to sell property for a price to be paid when he has fully performed his obligation, cannot maintain an action technically on the contract for the price, but he may in a proper action recover the reasonable value of the goods delivered to and retained by the buyer.</p> <p>Id.—Action for Price—Immaterial Variations prom Contract—Deductions por Defects.—If the plaintiff suing for the value or the price, has endeavored in good faith to perform his part of the agreement, and has substantially performed, but there are unimportant defects arising from accident or inadvertence, and which do not defeat or materially change the object of the contract, he may recover the price, less the damage caused by the defects.</p>

<p>New Trial—Affirmance of Order Granting.—Where a motion for a new trial was based on various grounds, and an order granting it was general in its terms, the order must be affirmed if it could have been granted pn any of the grounds assigned.</p> <p>Td.—Limited Reasons for Order—Review of Order on Appeal—Insufficiency of Evidence.—Even if the court had undertaken to limit the reasons for granting the motion, the appellate court would not be precluded from considering any of the grounds which the trial court had excluded from view, except only the one of insufficiency of evidence. And this ground will also be looked to for justification of the order, unless the trial court has, by the express terms of its order, excluded it as one of the grounds for making the order.</p> <p>Id.—Abuse of Discretion—Conflict of Evidence.-—An order granting or denying a new trial for insufficiency of the evidence is conclusive upon the appellate court, unless there has been an abuse of discretion. And, if there is a substantial conflict in the evidence, the trial court will not be deeme'd to have abused its discretion when it has determined that the verdict or. the finding is against the weight of the evidence, and that there should be a new trial.</p> <p>Id.—Negligence — Trestle Falling within Building Being Constructed—Injury to Person on Sidewalk.—The mere fact that a person standing on a sidewalk in front of a building in course of construction was injured by the falling from within the building of a wooden trestle used in the building, is sufficient to make out a prima facie case of negligence on the part of the person responsible for the management of the trestle.</p> <p>Id.—Injury to Person Unlawfully Within Building—Willful or Malicious Injury.—If, on the other hand, the person injured, ' without having any lawful business or occasion to enter the building, did enter it without invitation," and in defiance of warnings, and while therein was so injured, he would have no redress, unless his injury was the result of the willful or malicious act of the person responsible for the management of the trestle.</p> <p>Id.—Evidence that Person Injured Was Within Building.—In the present case the evidence as to the situation of the plaintiff at the time of the injury is held to be in substantial conflict, and that there was sufficient evidence of the fact of his being unlawfully within the building at the time of the injury to warrant the trial court in granting a new trial on that ground.</p>

<p>APPEAL from a judgment of nonsuit of the Superior Court of Alameda County. T. W. Harris, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>APPHAL from an order of the' Superior Court of the County of Alameda refusing a new trial of a proceeding for the distribution of the estate of a deceased person. William H. Waste, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>APPEAL from a judgment of the Superior Court of Glenn County and from an order refusing a new trial. William M. Finch, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

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

<p>Attachment—Sale op Seat in Stock Board—President ex officio Trustee for Board—Notice of Attachment and of Execution.— Under article XIII of the San Francisco Stock and Exchange Board, providing that the seat of a delinquent member “shall revert to the board and be appropriated to satisfy his creditors in the board,” and making the president of the board ex officio a trustee for the indebted member and his creditors to dispose of his seat and the proceeds arising therefrom, the president is merely an agent for the board, and a custodian for it of the money realized from a sale of the seat, and notices of an attachment of an'd of an execution against such money, at the suit of a creditor of the delinquent member, were properly directed to the board, although served upon the president.</p> <p>Id.—Priority of Attachment over Subsequent Assignment—Findings.—In an action of interpleader to determine the right to a portion of such money as between an attaching creditor of the delinquent member and his assignee, it is held, that the finding that the assignment in question, although purporting to have been made prior to the attachment, was in fact subsequent thereto, is sustained by the evidence.</p>

<p>APPEALS from a judgment of the Superior Court of the City and County of San Francisco refusing a partial distribution of the estate of a deceased person. J. V. Coffey, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>APPEAL from a judgment of the Superior Court of San Luis Obispo County. E. P. Unangst, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Will—Incompetency op Testator—Findings—Evidence.—In a contest of a will on the ground of the alleged mental ineompetency of the testator, the findings of the court to the effect that the testator was not mentally competent to make a will are held to be sustained by the evidence.</p> <p>Id.—Adjudication op Incompetency in Prior Guardianship Proceedings—Evidence op Unchanged Mental Condition.—An adjudication of a testator’s ineompetency, made in a proceeding for the appointment of a guardian of his person and estate eleven days after the execution of Ms will, while not conclusive in a contest of the will, as to Ms ineompetency at the time of its execution, is proper evidence to be considered on the issue of want of testamentary capacity at the time of the adjudication, and, in connection with testimony tending to show that his mental condition had not changed during the interim, is admissible on the issue of capacity at the time the will was made.</p> <p>Id.—Contest op Will—Trial on Theory That Incompetency Is in Issue—Eepusal to Allow Amended Answer to Contest.—In a contest of a will on the ground of the alleged ineompetency of the testator, the refusal of the court, after the ease had been submitted and decided, to allow the proponents to file an amended answer to the contest to cure a supposed defect in the original answer in its denials of the allegations of incapacity, is immaterial, where the case was tried on the theory that the competency of the testator was in issue, and the court found upon that question as one of fact.</p> <p>Jo.—Witness Having Brief Acquaintance with Testator—Rejection of Evidence Immaterial.—In such a contest, in which the finding of the court that the testator was incompetent is sustained by the evidence, the refusal to permit a witness for the proponent, who had only known the testator for a period of ten or twelve days, to testify as an “intimate acquaintance” to her opinion regarding his mental sanity, will not justify a reversal.</p> <p>Id.—Sanity at Time Prior to Period Attacked by Contestants.—In such a contest it was proper for the court to refuse to permit the proponents to establish the fact of the testator’s sanity at a date three years prior to the time when his competency was attacked by the contestants. In the absence of evidence to the contrary, his sanity during such prior period was presumed, and the proponents had the benefit of the presumption.</p> <p>Id.—Testimony of Appearance as to Physical and Mental Conditions..—It was also proper to permit a witness to testify to bis observation of the testator’s “appearance” with reference to physical and mental conditions. Such testimony is not opinion evidence.</p>

<p>APPEAL from a judgment of the Superior Court of Santa Barbara County. S. E. Crow, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Mandamus—Functions of Writ—Performance of Duty in Particular Manner.—The writ of mandamus is not a writ of error, and, generally speaking, it is not available for the purpose of altering or varying in any particular the finding of a judicial or. quasi judicial body or ofiieer acting within its or his appropriate jurisdiction; but where the facts are not disputed and the only matter to be determined is the duty of the body or officer under the law, the court will define such duty and enforce not only its performance but the carrying out of the obligations of the body or officer in a particular manner.</p> <p>Id.—Payment of Official Salary—Auditor’s Function Ministerial. —Mandamus is the appropriate method of compelling the proper officer to pay the salary of a public servant as fixed by law. In such a ease, the law being ascertained, the function of the auditor is ministerial and it is his duty to order the payment of a lawful claim, and he cannot avoid the application of mandate to compel the performance of such duty by saying that in mistakenly acting upon a claim he has exercised his discretion. The same doctrine applies to the case of the allowance of a claim for official salary by the auditing committee of the city of San Diego.</p> <p>Id.—Prohibition against Increase of Salary Directed to Legislature—Constitutional Law;—Passing of City into Higher Class by Increase of Population.—Section 9 of article XI of the constitution providing that “the compensation of any county, city, town, or municipal officer shall not be increased after his election or during his term of office; nor shall the term of any such officer be extended beyond the period for which he is elected or appointed,” is an inhibition directed to the legislature, and has no application to an automatic increase in official salary due to the passing of a city, not by legislative act, but by increased population, from one class to another.</p> <p>Id.—City of San Diego—Census of 1910—Justice of Peace—Salary When City Passed into Second Class.—Under section 2 of the act of 1883 for the classification of municipal corporations, (Stats. 1883, p. 24), the United States census taken in the year 1910, as of the 15th of April of that year, operated, without action upon the part of the legislature or of the people of the city of San Diego, to place that municipal corporation, which had previously been a city of the third class, in the second class as of April 15, 1910, and one who had been elected a justice of the peace of that city, at a time when the statute fixed the salary of a justice of the peace of a city of the third class at two thousand dollars a year and of a city of' the second class at thirty-six hundred dollars a year, became entitled to the increased salary from April 15, 1910, to the end of his term of office at the end of that year.</p> <p>Id.—Acceptance by Justice of Lessee Salary—Want of Knowledge of Classification of City—Estoppel.—The acceptance by such justice of the peace of the salary attached to the office in a city of the third class, after the 15th of April, 1910, but prior to the official promulgation of the census and without knowledge by him of the fact that the city of San Diego had passed into the second class, did not estop him from subsequently demanding the increased compensation.</p> <p>Id.—Increase of Official Salaries—Constitutional Inhibition— Lowering and Raising Salary During Term of Office.—The provision of section 9 of article XI of the constitution that the salary of any county, city, town, or municipal officer shall not be increased “during his term of office” has reference only to the compensation as fixed by law when his term of office began. The legislature has power, pending his term of office, to lower the compensation, and afterwards raise it, provided the subsequent raise is not in excess of the compensation fixed when the official term began.</p> <p>Id.—Justice of Peace of San Diego—Compensation after 1911 under Various Legislative Enactments.—A justice of the peace of the city of San Diego, whose elective term commenced in January, 1911, when that city was classified as one of the second class, was entitled to a salary at the rate of thirty-six hundred dollars a year, until February 8th of that year, when by an amendment to the Classification Act (Stats. 1911, p. 11), he became a justice of the peace of a city of the third class. He then became entitled to compensation at the rate of two thousand dollars a year, until the amendment of March 24, 1911 (Stats. 1911, p. 476), which placed that city in the second and one-half class. From that date and until the re-onaetment of section 103 of the Code of Civil Procedure on April 29, 1911, (Stats. 1911, p. 1215), there was no law providing any salary for a justice of the peace in a city of the second and one-half class, and during that interval the incumbent of the office had no right to a salary.</p> <p>Id.—Mandamus for Official Salary — Recoupment for Overpayments.—In a proceeding in mandamus by such justice of the peace to compel the auditor and auditing committee of the city of San Diego to draw warrants for the balance of the salary due him, the city is entitled to recoupment for overpayments mistakenly made after February 8, 1911, upon the belief that the city was still one of the second class, and to have the amount of such overpayments deducted from the arrearages due the petitioner.</p>

<p>APPEAL from a judgment of the Superior Court of Los Angeles County. Frederick W. Houser, -Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Guardianship op Minor — Testamentary Appointment — "Who May Appoint.—The right to appoint a guardian of a minor by will or deed is statutory, and under section 241 of the Civil Code, a guardian of a legitimate child may be so appointed “by the father, with the written consent of the mother; or by either parent, if the other be dead or incapable of consent.”</p> <p>Id.—Custody op Child Awarded to Mother by Divorce Decree— Custody apter Death op Mother.—A decree of divorce, whereby the custody of a minor child was awarded to the mother, did not absolutely end the father’s right to its control; it merely determined that, as between the husband and wife, the child should be placed in the custody of the latter until some other disposition should be made. It did not undertake to provide for the custody of the child after the mother’s death.</p> <p>Id.—Father’s Eight to Custody apter Death op Mother.—Upon the death of the parent to whom is awarded the custody of a minor child by the decree divorcing the parents, the other parent becomes entitled to the custody.</p> <p>Id.—Divorced Mother Cannot Appoint Guardian by Will During Life op Father..—A mother to whom a decree of divorce has awarded the custody of a minor child, has no right to appoint a testamentary guardian thereof, if the father of the child was alive at the time of her death. Such an attempted appointment is entirely without , force or effect, and did not become operative upon the subsequent death of the father.</p> <p>Id.—When Mother May Appoint Testamentary Guardian.—Under section 241 of the Civil Code, a mother is authorized to appoint a testamentary guardian of a minor child only in the event that the father is dead or incapable of acting. This condition must exist at the date of the mother’s death, or at least when her will is probated.</p> <p>Id.—Contest fob Guardianship—Applicants Without Preferential Eight—Discretion in Appointment.—On a contest for letters of guardianship of a minor, when neither of the applicants has any preferential right to the appointment, the court is authorized, under section 246 of the Civil Code, to exercise its discretion in appointing one .or the other of the contending parties, having due regard for the considerations set forth in that section.</p> <p>Id.—Considerations Actuating Appointment—Welfare of Child— Preference Expressed by Minor.—In such a case the primary consideration for the guidance of the court is “tho best interest of the child with respect to its temporal and its mental and moral welfare,” and the conclusion reached by the court will not be set aside on appeal unless it was reached as the result of an abuse of discretion. In reaching its conclusion the court may take into consideration a preference expressed by the minor, even though the child was under the age of fourteen.</p>

<p>Adverse Possession—Non-Payment of Taxes.—A claim of title to land by adverse possession cannot be established in the absence of evidence that the adverse claimant had paid taxes on any part of the land.</p> <p>Id.—Description of Land in Tax Deed by Reference to Block—Evidence of Location—Certainty of Description.—A description of ‘property in a tax-deed as “Lying and being in the county of Kern, state of California and described as follows, to wit: E. % of block 2, Kelly’s Addition to Delano,” may be explained and rendered certain by the introduction in evidence of the recorded map of Kelly’s addition to Delano, accompanied by proof of the location of the block on the ground and that it was marked by stakes' set at each corner, and that there was no other recorded map of the addition.</p> <p>Id.—Boundary Line Established by Acquiescence or Claim: of Title —Occupancy and Claim of Title.—Mere evidence of occupancy and claim of title to 1 and to a particular line by one of two adjoining owners is not sufficient to establish such line as the boundary by acquiescence or estoppel.</p>

<p>APPEAL from a judgment of the Superior Court of Los Angeles County and from an order refusing a new trial. W. P. James, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>APPEAL from a judgment of the Superior Court of Sutter County. K. S. Mahon, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Municipal Corporations—City of Alameda—License-Tax.—The city of Alameda, under subdivision 19 of section 17 of chapter II of article II of the charter (Stats. 1907, p. 1051), has the power to impose a license-tax either for regulation or for revenue.</p> <p>Id.—Classification for Purposes of License.—While a municipality in the imposing of license-taxes may not discriminate in doing so by imposing different taxes upon persons similarly situated and exercising the same privilege, still it may classify occupations, and in doing so may distinguish between different occupations, and likewise distinguish between those engaged in similar occupations.</p> <p>Id.—Basis of Classification — Reasonableness of Standard. — In adopting a classification with reference to the persons engaged in the same general occupation or business for the purpose of imposing a license-tax, any standard or rule of gradation may be adopted which is fair and reasonable and equally affects all within the class to which it is applied.</p> <p>Id.—Vehicles and Animals Used in Business.—A classification of a particular business, for the purpose of imposing a gradated license-tax thereon, may be based upon the number of vehicles and animals which are used in the prosecution of the business.</p> <p>Id.—Construction of Ordinance—Provisions to Be Construed Together.—Ordinance No. 484 of the city of Alameda is a general ordinance taxing occupations or business privileges and attempting to classify and license all such business for both regulation and revenue, and its provisions must be construed together, and the ordinance looked to in its entirety.</p> <p>Id.—Classification of Business of Retail Butcher — License on Class Using Vehicles.—So construing section 85 with other provisions of the ordinance, its effect is, as far as the retail butcher business is concerned, to divide it into classes consisting of those who maintain a place of business in the conduct of which no vehicles are used and those who in the conduct of the same business use vehicles, and to impose upon the latter class a license-tax, dependent upon the number of vehicles and animals so used. Such a classification is fair and reasonable.</p>

<p>Deed—Deposit in Escrow—Instructions to Deliver at Grantor’s Death—Loss of Control over Deed—Title Vests in Grantee Subject to Life Estate of Grantor.—A deed deposited in escrow by the grantor, with instructions to the depositary to deliver it upon his death to the grantee named therein, the grantor retaining no power to withdraw the deed er to exercise any control over it, vests title immediately in the grantee, subject only to a life interest in the grantor.</p> <p>Id.;—Title Cannot Me Affected by Parol Agreement.—The title so vested cannot be limited or otherwise affected by a subsequent parol agreement between the grantor and the grantee.</p> <p>Id.—Subsequent Agreement for Occupation and Cultivation of Land by Grantee During Grantor’s Lifetime.—A subsequent agreement between the grantor and the grantee, whereby the latter, in consideration of being given the possession of the land with his family during the grantor’s lifetime, with the right, for himself, his heirs, executors, and administrators, to use, occupy, and enjoy it during that period, undertook to occupy, cultivate, and improve it, and to pay the grantor a stated nnual amount during his lifetime, will not be construed as intended to destroy or modify the effect of the prior delivery in escrow.</p> <p>Id.—Contract for Personal Services—Performance by Family of Grantee.—Such contract did not require the performance by the grantee, personally and individually, of the obligations to occupy, cultivate, and improve the land, within the meaning of the rule that contracts to perform personal acts are discharged by the death or disability of the person who was to perform the acts. That rule does not apply where the services are of such a character that they may be as well performed by others, nor where the contract by its terms shows that performance by others was contemplated. The obligations to occupy, cultivate, and improve the land and t,o pay the stipulated annual amount could be performed by the surviving members of the family of the grantee. This construction of the contract finds support in the fact that for several years after the death of the grantee the grantor accepted such payments from them.</p> <p>Id.—Oral Transfer of Life Estate—Part Performance by Grantee —Specific Performance.—Properly construed, such contract was not executory, but was an oral present transfer of the life estate of the grantor, in consideration of certain promises upon the part of the grantee. Such oral contract cannot be set aside by the grantor on the ground that the obligation of the grantee is not the subject of specific performance, if there has been such part performance as to take the case out of the operation of section 1971 of the Code of Civil Procedure.</p> <p>Id.—Acts Constituting Past Performance.—The taking possession of the land under such contract by the grantee and the performance by him and his successors of the obligations of payment and improvement of the land were sufficient part performance to overcome the want of a written transfer.</p> <p>Id.—Oral Transfer of Life Estate—Part Performance Mat Bender Effectual.—An oral transfer of a life estate in land may be rendered effectual by the taking of possession and the performance by the grantee of other acts in reliance upon the grant.</p>

<p>Mechanics’ Lien—Alteration of Building—Removal Prior to Piling Lien—Restoration of Building to Original State.—The removal of an alteration to a building after it is completed and used does not destroy the lien which the statute gives to persons furnishing materials or labor for such alteration, even if such removal is made before the filing of the lien. If the materials are actually used in and the work is actually done upon the alteration, and the change made is of such a character that it comes within the terms of the statute giving a lien for alterations upon a building, and it is completed and put to use as altered, the lien cannot be defeated by the subsequent removal of that portion of the building comprising the alterations and the restoration of the building to its original state.</p> <p>Id.—Lease Providing for Non-Liability of Landlord for Alterations.—Notice by Owner of Non-Liability.—A provision in a lease between the owners of a building and their lessee, that the owners should not be liable or responsible for any alterations or repairs made in the building by the lessee, and that no alterations should be made without the written consent of the owners, does not exempt the interest of the owners in the property from liability for liens on account of an alteration in the building made by a sub-lessee of the lessee. The owner can only exempt his interest from liability for such alterations, after knowledge that the work of alteration has begun, by posting the notice of non-liability, as provided in section 1192 of the Code of Civil Procedure.</p> <p>Id.—Alteration of Building into Theater—Materials Forming Part of Structure.—In an alteration of a part of a building so as to adapt it for use as a theater, lard-oil applied to the threads of joints of pipe used in the structure, insulated or covered electric wire used for drop lights attached thereto, paste for soldering joints, and asbestos comprising a part of the electric switch-hoard, all constitute parts of the structure, and a lien may bo asserted therefor.</p> <p>Id.—Material Used in Construction.—Soapstone used on the inside of pipes as a lubricant to facilitate the pulling of wires through the pipes, is material used in the construction of such alteration, for which a lien may be claimed.</p> <p>Ib.—Time for Commencement of Action to Enforce Lien.—An action begun on June 5th, to foreclose a lien filed on March 7th, of the same year, is within the period of ninety days’ limitation of section 1190 of the Code of Civil Procedure.</p> <p>Id.—Alterations Become Material Part of Building. — Alterations made in a building so as to adapt a portion thereof to the uses of a theater become a material part of the building, for which a lion may ho claimed.</p>

<p>Taxation—Sale by State of Land Acquired for Delinquent Taxes— Notice by Mail Essential to Validity—Recitals in Tax-Deed.— Under section 3897 of the Political Code, in the case of a sale by the state of real property acquired by it for delinquent taxes, tho giving of the notice by publication and the mailing of a copy of the notice to the party to whom the land was last assessed next before the sale, at Ms last-known post-office address, are both jurisdictional prereqMsites to a valid sale by the state, and a failure to give the latter notice when the condition existed requiring it, rendered the sale and the deed thereunder void. The recital in the tax-deed from the state on the matter of notice is not conclusive evidence on the subject, but prima fade evidence only and open to attack.</p> <p>Id.—Time of Mailing Notice—Three Weeks before Date of Sale.— Although there is nothing in that section relating to the giving of personal notice by mail which specifically requires it to be given for any particular length of time, tho reasonable and proper construction of the section demands that the notice should be mailed as long before the sale as tho notice by publication is required to be given; that is, at least three successive weeks before the sale. A sale based upon a personal notice by mail of less duration, and the tax-deed issued thereon, are void.</p> <p>Id.—Notification for Return of Registered Letter.—There is no provision in that section making it any concern of the tax-collector whether, after he mails the notice, the party to whom it is mailed gets it or not. When he mails it in time, addressed, and registered, his duty is discharged. There is no requirement of the statute that he should put a notification on the letter calling for its return to his office in the event of non-delivery, and there is no warrant for placing a notification thereon calling for such return at any time earlier than the date set for the sale.</p>

<p>APPEAL from an order of the Superior Court of Alameda County. F. B. Ogden, Judge.</p> <p>The facts are stated in the opinion of the court, and in the opinion on the prior appeal herein, reported in 118 Cal. 160.</p>

The title of the act of March 22, 1911 (Stats. 1911, p. 437) is as follows: “An act limiting the hours of labor of females employed in any manufacturing, mechanical or mercantile establishment, laundry, hotel, or restaurant, or telegraph or telephone establishment or office, or by any express or transportation company; compelling each employer in any manufacturing, mechanical, or mercantile establishment, laundry# .hotel or restaurant, or other establishment employing any…

<p>APPLICATION for a Writ of Habeas Corpus to be discharged from an arrest for an alleged violation of the Local Option Law.</p> <p>The facts are stated in the opinion of the court.</p>

<p>APPEAL from a judgment of the Superior Court of Los Angeles County. Leon F. Moss, Judge.</p> <p>The facts are stated in the opinion of the court. ,</p>

<p>APPEAL from a judgment of the Superior Court of Kern County and from an order refusing a new trial. Paul W. Bennett, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>APPEAL from a judgment of the Superior Court of Los Angeles County. Walter Bordwell, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

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

<p>Vendos and Vendee—Optional Contract With Agent for Sale of Land.—An agreement between the owner of real property and a broker, providing, in the first place, for the employment of the broker for a stated period as the owner’s agent to sell the property on commission at a fixed price, and further providing that the broker should have the option, running concurrently with the agency, and thereafter until notice of withdrawal in writing should be given, of purchasing the property at a certain price, is valid.</p> <p>Id.—Specific Performance of Contract—Adequacy of Consideration for Option Immaterial—Contract Becomes Binding upon Acceptance.—In an action by the broker to specifically enforce the agreement for sale, the adequacy of the consideration for the option, as distinguished from the consideration for the conveyance of the land, is immaterial. By the acceptance of the option, a contract of purchase, binding the owner or her successors to sell and the vendee to buy, became complete.</p> <p>Id.—Absence of Consideration for Option.—Even if an option be given without any consideration, a binding agreement of purchase and sale results from an acceptance of the option during its life.</p> <p>Id.—Effect of Consideration for Optional Agreement.—The only importance of a consideration as bearing upon an agreement giving \ an option, is that where there is a consideration, the option cannot be withdrawn during the time agreed upon for its duration, while, if there be no consideration, the party who has given the option may revoke it at any time before acceptance, even though the time limited has not expired.»</p> <p>Id.—Fairness and Adequacy of Consideration—Sufficient Aver-, ment.—A complaint in an action to specifically enforce a contract for the sale of land sufficiently alleges the fairness and adequacy of the consideration by an averment that the purchase price mentioned in the contract is and at all times since the execution of the contract has been a fair and reasonable value of the land.</p> <p>Id.—Offer of Performance—Place for Making—Evasion by Vendor. —An offer of performance by the vendee under a contract for the sale of land may be made at the residence or place of business of the vendor, under section 1489 of the Civil Code, when the vendor evades the vendee.</p> <p>Id.—Conveyance by Vendor—Acceptance and Demand of Conveyance.—Where pending the life of an option for the purchase of land the party giving it conveys the property by deed of gift to others, the latter become the persons to whom notice of acceptance of the option could properly be given and of whom demand for conveyance could properly be made.</p>

<p>APPEAL from an order of the Superior Court of Los Angeles County vacating a default and a judgment entered thereon. W. R. Hervey, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>District Court of Appeal—Jurisdiction—Breach of Covenants in Oil Lease for Payment of Bent.—An action to recover a money judgment in a sum less than two thousand dollars, alleged to be due upon certain covenants for the payment of rent contained in an oil lease, is within the appellate jurisdiction of the district court of appeal.</p> <p>Lease op Oil Lands—Construction of Covenants for Bent in Event of Non-proseoution op Work.—Dnder a lease of oil lands, whereby the lessor granted to the lessee the exclusive right to enter upon the lands and drill wells thereon for the extraction and removal of oil, paying therefor a specified royalty to the lessor, and the lessee agreed to commence drilling within ninety days and thereafter to prosecute such work with reasonable diligence continuously to success or abandonment, a further provision, that in the event the lessee fails to commence such work within that period, he shall pay the lessor specified monthly sums for a determined period until the drilling is commenced, when, if the drilling shall not have then been commenced, the lease should be forfeited, should be construed as fixing the price, in the nature of rental, which the lessee was to pay for the privilege of preserving and continuing his unexercised right to begin the work, and not as an attempt to fix a penalty or liquidated damages.</p> <p>Id.—Liquidated Damages—Extreme Difficulty in Fixing Damages.— The provision for such monthly payments, even if the same were considered as liquidated damages, is valid and enforceable, by reason of the nature of the ease and the extreme difficulty of fixing damages arising from the breach of such contract.</p> <p>Id.—Provision for Suspension of Work of Drilling upon Fall in Price of Oil.—Where such lease unconditionally required the lessee to place a derrick and drilling outfit on the land and to begin drilling on or before ninety days from the date of the lease, or to pay the monthly rental afterward as provided, subsequent provisions therein, obligating him to “drill, operate, and pump” the wells as long as the price of oil remained above seventy-five cents per barrel, and to pump the wells until the price fell below sixty cents per barrel, and authorizing him to “suspend” drilling operations until the price reached seventy-five cents per barrel, did not confer upon him the right to refrain from commencing drilling operations until the price of oil reached the price specified.</p>

<p>APPEAL from an order of the Superior Court of San Francisco denying a motion to dismiss a motion for a new trial. John Hunt, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>APPEAL from an order of the Superior Court of the City and County of San Francisco changing the place of trial. James M. Troutt, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Judgment and order affirmed on the authority of Bedford v. Eichler, ante, p. 214, [121 Pac. 730].</p>

<p>APPEAL from a judgment of the Superior Court of Los Angeles County and from an order denying a new trial. N. P. Conrey, Judge.</p> <p>The facts are similar to those stated in the opinion in San Pedro etc. Railway Co. v. Hamilton, 161 Cal. 610, [119 Pac. 1073].</p>

<p>APPEAL from a judgment of the Superior Court of Los Angeles County and from an order refusing a new trial. W. R„ Hervey, Judge.</p> <p>The facts are similar to those stated in the opinion in Ted-ford v. Bidder, cunte, p. 214, [121 Pac. 730].</p>

<p>APPEAL from an order of the Superior Court of Los Angeles County refusing a new trial. Walter Bordwell, Judge.</p> <p>The facts are similar to those stated in the opinion in Ted-ford v. Bidder, ante, p. 214, [121 Pac. 730].</p>

<p>APPEAL from an order of the Superior Court of Los Angeles County refusing a new trial. Walter Bordwell, Judge.</p> <p>The facts are similar to those stated in the opinion in Ted-ford v. Bidder, ante, p. 214, [121 Pac. 730].</p>

<p>APPEAL from a judgment of the Superior Court of the City and County of San Francisco, dismissing a petition for the revocation of the probate of the will of a deceased person, entered upon an order sustaining a demurrer to said petition. J. Y. Coffey, Judge.</p> <p>The facts are similar to those stated in the opinion in McKenna v. McKenna, ante, p. 340, [123 Pac. 532],</p>