Volume 164 — California Reports

<p>Estates of Deceased Persons—Partial Distribution—Chose in Action in Litigation.—A chose in action belonging to the estate of a deceased person, which the executors were endeavoring to enforce by a pending action, should not he distributed on a petition for partial distribution in opposition to the wishes of certain of the parties in interest and of the executors.</p> <p>In.—Choses in Action Should not be Distributed.—As a statement of fact for the guidance of courts in probate, and not as a proposition of law, it is held that, generally speaking, claims in litigation should not he distributed unless with the full assent of all parties interested and under circumstances where it is apparent to- the court that no embarrassment will result to the administrators, or to the administration, in the' orderly effort to reduce such a claim to judgment and possession.</p> <p>Id.—Appeal from Decree of Partial Distribution—Parties Interested in Estate are Aggrieved.—A party possessing an interest in such estate is aggrieved by a decree of partial distribution distributing an undivided interest in such a chose in action to another party, and is entitled to appeal therefrom.</p> <p>Id.—Executors mat Appeal from Decree.—The executors have the right to appeal from any order which is embarrassing to the due administration of the estate, and may appeal from such decree of partial distribution.</p>

<p>Landlord and Tenant—Oral Waiver by Agent of Notice to Increase Rent.—After the service on a tenant from month to month of a written notice of an increase of rent, an agent of the landlord, having the actual or ostensible power so to do, may waive the increase by a parol agreement with the tenant, and the landlord is •bound by the waiver.</p> <p>Id.—Notice to Quit—Waiver of Notice by Agent of Landlord— Revocation of Agent’s Authority—Acts Constituting Waiver Unknown to Landlord.—Such a tenant, after the service on him of a formal notice to quit and surrender possession of the leased premises, cannot justify his subsequent withholding of the possession because of an asserted waiver of the notice to quit by an agent of the landlord, if he knew at the time of the performance of the acts claimed to constitute the waiver, that the agent’s authority in the matter had been revoked, and the performance of such acts were unknown to the landlord.</p> <p>Id.—Tenancy from Month to Month—Interference With Tenancy —Loss of Profits.—A tenant under a tenancy from month to month is as much entitled to damages for an illegal interference with his tenancy as is any other tenant, and in proper cases damages may be predicated upon a loss of prospective profits.</p> <p>Id.—Appeal—Erroneous Conclusions of Law—Direction to Enter Proper Judgment upon Findings—Unattacked Findings Shown Erroneous in Different Appeal.—Ordinarily where an appeal presents a ease where the findings are unattacked and are sufficient to support a judgment in favor of the appellant, but the conclusions of law are erroneously drawn from the findings, the appellate court will reverse the judgment, with directions to the lower court to enter a correct judgment upon the findings. It will refuse, however, to do so, in any case where such a direction would be to countenance a grave injustice, and refuses to do so in the appeal in question, as it is shown, by another appeal in the same case, that a controlling finding is unsupported by the evidence.</p>

<p>Will—Construction of Latent Ambiguity—Misnomer of Beneficiary—Extrinsic Evidence to Remove Ambiguity.—The testatrix, a native of Ireland, and who had come to San Francisco about fifty-five years before her death there, by her will devised one-fourth of the residue of her estate “to my niece Mary, a resident of New York, said Mary being the daughter of my deceased sister Mary, the name of my niece Mary I do not know as I understand she is now married, nor am I sure of niece Mary’s maiden name, as her mother, my sister Mary, was twice married, but I believe my niece’s maiden name was Mary Donohoe.” At the time the testatrix left Ireland she had a sister Mary, who remained there. This sister, by her first marriage, had two daughters, Annie and Mary. After the death of her first husband she married a man named Donohoe. The daughter Mary married a man by the name of Smith, and continued to reside in Ireland, and had never been in the United States. The other daughter, Annie, married a man ■by the name of Sheridan, came to the United States about twenty-five years ago, and at the date of the will lived and still lives in Brooklyn, New York. The testatrix left Ireland before either of the daughters of her sister Mary was born, never saw either of them, and, being unable to write, never personally wrote to either of them. Held, that the will disclosed a latent ambiguity and uncertainty as to the person whom the testatrix intended to indicate by such provision, to explain which extrinsic evidence was admissible, and that such evidence showed that the person intended to be designated as beneficiary was the testatrix’s niece Annie, who was a resident of New York.</p> <p>Id.—Application op Pacts to Language op Will—Construction a Question op Law.—Wherever doubt arises as to the meaning of a will, such doubt is resolved by construction, and that construction is one of law—it is an application of legal rules governing construction either to the will alone or to properly admitted facts to explain what the testator meant by the doubtful language. In those cases where extrinsic evidence is permissible, there may be a conflict in the evidence itself, in which case the determination of the conflict results in a pure finding of fact. The facts thus found are still to be applied to the written directions of the will for the latter’s construction, and that construction still remains a construction of law.</p> <p>Id.—Conflict in Extrinsic Evidence—Construction of Will in Probate Court Subject to ¡Review on Appeal.—In such cases, where the evidence of the facts is in conflict, the findings of facts by the jury or trial court will not be disturbed on appeal. But the application to the will itself of the facts found, admitted or established without conflict, presents a question of legal construction, which is purely a question of law, and the construction of the court in probate is subject to review on appeal to determine whether or not a wrong construction at law has been reached.</p> <p>Id.—Limited Purpose op Extrinsic Evidence.—In all cases where extrinsic evidence is admissible to aid in expounding the will, the evidence is limited to the single purpose of explaining and interpreting the language of the will, and is never permitted to show a different intent or a different object from that disclosed (though perhaps obscurely) by the language of the will itself.</p> <p>Id.—Classes of Wills Presenting Latent Ambiguities.—Broadly speaking, there are two classes of wills presenting latent ambiguities, for the removal of which resort to extrinsic evidence is permissible. The one class is where there are two or more persons or things exactly measuring up to the description and conditions of the will, the other class is where no person or thing exactly answers the declarations and descriptions of the will, but where two or more persons or things in part, though imperfectly, do so answer. The will in question belongs to this latter class.</p> <p>Id.—Preference not Given to Name Over Description,—In resolving such latent ambiguity there is no rule of construction which prefers a name to a description.</p> <p>Id.—Evidence—Hearsay—Contents of Letters.—The testimony of a witness as to the contents of a letter, without proof either of the destruction of the letter or that the witness had ever read it, is inadmissible hearsay; so, also, is the declaration of a witness as to the contents of letters, whose destruction was not proved, which the witness had never read, and the contents of which he was testifying to upon statements of those contents made to him by another.</p>

<p>The facts are stated in the opinion of the court.</p> <p>Bell, Straus & Atwood, and Frank V. Bell, for Appellant.</p>

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

<p>Sale—Reformation—Guaranty Against Printed Selling Prices of Another Manufacturer — Absence of Mistake in Wording of Contract.—A provision in a written contract for the sale and delivery of certain canned goods to be thereafter packed by the seller, guaranteeing the prices therein fixed against the “opening printed prices” for the season of a specified packing company whose selling prices fixed and controlled the market prices of such goods, and whose previous custom had been to announce its opening selling prices by a printed circular issued to the trade but who omitted to do so for the season in question, may be reformed so as to express the mutual intention of the parties that the guaranty should protect the purchaser against any prices which might be made on such goods by such packing company, whether the prices so fixed by it were printed or announced by other methods. This is so, although there was no mistake between the parties with respect to the words which were inserted in the guaranty provision.</p> <p>Id.—Mutual Mistake Rendering Words Used Inapplicable to Express Intent.—The fact that the parties to a contract used the very words which they intended tb use is not always sufficient cause for refusing the relief of reformation. There may be no mistake as to the words used or to be used, and at the same time there may have been a mutual mistake as to some other matter of fact, affecting the meaning or application of the words and by reason thereof the contract may not truly express the real intention of both parties, and in that event it may be revised and reformed at the instance of the aggrieved party and enforced accordingly, although the words were carefully chosen.</p> <p>Id.-—Mistake in Expecting Certain Thing to Happen in Future.— The mutual mistake of the parties to such contract consisted in expecting a thing to happen in the future which did not occur, that is, that the packing company referred to would issue its customary printed price list. That led to the insertion of the word “printed" in the guaranty.</p> <p>Id.—Mistake as to Future Event—Doctrine op Reformation Applicable to.—Relief from the consequences of a mutual mistake is not confined to cases where the mistake was with reference to a past ■event, or to the present existence of some fact or thing. The doctrine is applicable where both parties by mistake expect a future event to occur and describe the subject matter by words which make the intent clear if the event does happen as expected, but which defeat the real intent if the event does not so happen.</p>

<p>Election—Candidates fob Presidential Electors—Nominees of Republican Party—Repudiation of Platform and Candidates of National Party.—Nominees for electors of president and vice-president of the United States to be voted for at the general election of November 5, 1912, who were nominated as such by a properly constituted convention of the “Republican Party,” held at the time and place appointed by law therefor, and composed, as required by the act of 1911 (Stats. 1911, Ex. Sess., p. 83), of the so-called “hold-over” state senators belonging to such party and the nominees of such party for state senator and assemblyman throughout the state, selected at the direct primary election of such party held on September 3, 1912, are the proper candidates of such party for that office, and entitled to have their names appear as such on the official ballot to be used at such general election, notwithstanding the convention which nominated them had repudiated the platform and nominees for president and vice-president of the United States of the National Republican Convention, and had declared its intent to support the national platform and candidates for such offices of a new party known as the Progressive party, and they themselves had ■been pledged to vote as electors against the nominees of the National Republican party for president and vice-president.</p> <p>Id.—Convention op Republican Party—Right op Member to Vote.— Assuming the validity of the act of 1911, no qualified member of the convention lost his legal right to participate therein by reason of his attitude or vote on any question coming before the convention, whatever might be his motive therein.</p>

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

<p>Receiver—Foreclosure of Mortgage—Insufficiency of Property to Discharge Mortgage Debt—Value of Property must be Shown. In an action to foreclose a mortgage, the appointment of a receiver on the ground that the mortgaged property is probably insufficient to discharge the mortgage debt is not justified, if the only allegation in that connection is a mere averment, on information and belief, that the “property is probably insufficient to discharge the mortgage debt,” without any showing of the value of the property, or of any facts indicating its value.</p> <p>Id.—Right to Receiver in Action to Foreclose Mortgage—Impairment of Mortgage Security.—The right of a mortgagee to have a receiver take charge of the mortgaged property pendente lite is founded upon the proposition that such action is necessary in order to preserve or protect the interest of the mortgagee. His interest is the lien of his mortgage, and its extent is measured by the amount of the mortgaged debt for which the lien is security. Unless the security for the ultimate payment of the debt is in some way injured or impaired, he cannot be prejudiced.</p> <p>Id.—Danger of Material Injury to Mortgaged Property—Effect of Injury on Value of Property.—In order to' determine whether a receiver should be appointed pendente lite in such action, on the ground that the mortgaged property is in danger of being “materially injured,” within the meaning of subdivision 2 of section 564 of the Code of Civil Procedure, it is necessary to consider the relative value of the property after the injury has been inflicted, and the amount of the debt, and a receiver should not -be appointed, if the injury, though considerable in extent, will still leave enough of the property remaining intact to be ample security for the debt. Consequently, in- applying for a receiver on such ground, the plaintiff must show, not only that the property mortgaged was in danger of material injury, but also that such injury would so depreciate its value that it would not thereafter afford adequate security for the payment of the mortgaged debt.</p> <p>Id.—Injury to Part of Mortgaged Irrigation System.—Where the mortgaged property was of vast extent and consisted of several distinct things, amongst others of an extensive irrigation system, it was an abuse of discretion to appoint a receiver pendente lite, upon a mere showing of danger of material injury to a part of such system of irrigation, where no showing was made as to either the extent, the present condition, or the values of the remaining portions of the mortgaged property.</p> <p>Id.—Ex Parte Application for Beceiver—Undertaking by Surety Company—Approval by Court—Evidence of Agent’s Authority —Appeal.—In the absence of any evidence to the contrary, it will be presumed on appeal that persons purporting to act as agents of a surety company in the execution of an undertaking given upon the appointment of a receiver, as required by section 566 of the Code of Civil Procedure, and which was accepted and approved by the court, sufficiently established their authority by evidence presented to the.trial court.</p> <p>Id.—Undertaking must Bun in Favor of All Defendants.—The undertaking required to be given by section 566 of the Code of Civil Procedure, if a receiver is appointed upon an ex parte application, should run in favor of each defendant in the action, and should be in such form that any defendant would have a right of action thereon if he is damaged by the appointment. If the undertaking given and approved by the court was in favor of only one of the defendants, the appointment of the receiver, so far as the interests of other defendants are concerned, was improperly made.</p> <p>Id.—New Undertaking Filed Subsequent to Appointment of Beceiver— Validity of Appointment — Batification of Original Undertaking.—Where the original undertaking given ran in favor of only one of the defendants, a new undertaking subsequently given in pursuance of an order of court, running to all the defendants and ratifying and confirming the original undertaking, operated to make valid the appointment of the receiver from the time of its filing, and to cure any defects in the manner of the execution of the original undertaking.</p> <p>Id.—Beversal of Order Appointing Beceiver—Appeal by Single Defendant—Effect of Beversal.-—The reversal of an order appointing a receiver in an action to foreclose a mortgage against several defendants, upon the appeal of a single defendant who had neither the possession nor the right of possession of any of the mortgaged property, and whose only interest therein was that of a subsequent encumbrancer or holder of some of the bonds secured by the mortgage, did not affect the validity of the order as to the other parties to the action. The effect of the reversal would only inure to the defendant appealing, so as to give it the right of participation in the proceeds of any foreclosure sale in preference to the costs and expenses occasioned by the receivership.</p>

<p>The facts are stated in the opinion of the court.</p> <p>Olney, Pringle & Mannon, and Page, McCutchen, Knight & Olney, for Appellant.</p>

<p>Will—Devise—Remainder to Heirs op Testator’s Family.—Where a testator named Womersley, whose sole heirs at law were his widow and his surviving brothers and sisters, devises all his real estate to his wife for the period of her natural life, and directs that at her death the property shall be equally divided “among the heirs of the Womersley family,” the remainder so devised goes to his brothers and sisters who would be his heirs in the event that he died intestate, to the exclusion of the widow of a deceased brother.</p> <p>Id.—Latent Ambiguity — Construction — Uncertainty.—Such devise in remainder involves no latent ambiguity, and any uncertainty therein arises upon the face of the will, and is to be construed by taking in view the circumstances under which the will was made, excluding the testator’s oral declarations. The uncertainty in such devise is not so' great as to avoid it.</p>

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

<p>Taxation — Municipal Corporations — Levy for Unauthorized Purpose—• Payment Under Protest.—Section 3819 of the Political Code authorizes the recovery of taxes levied by a municipality for an unauthorized purpose, the payment of which was made under protest.</p> <p>Id.—San Francisco Charter—Unsold Bonds not Obligations of City —Tax cannot be Levied for Payment of.—Under the charter of the city and county of San Francisco only such bonds of the municipality as have been sold or whose sale has been contracted for are considered obligations of the city, and only as to such is provision made to meet such obligations by taxation.</p> <p>Id.—Tax for Interest and Redemption of Unsold Bonds may be Recovered.—Under the provisions of such charter, as well as by general law, the municipality is authorized to levy a tax only for those ■bonds which have so become an obligation of the city. A tax levied for the payment of the interest on and the redemption of bonds which had not been sold or contracted to be sold at the time of the levy is unlawful, and the recovery of the amount paid thereon under protest may be had under the provisions of section 3804 or section 3819 of the Political Code.</p> <p>Id.—Inconvenience to City.—The fact that the city might be inconvenienced by such a limitation on its taxing powers does not justify a different construction of its charter.</p> <p>Id.—Tax Laws must be Strictly Construed.—Any attempt on the part of the state, or of one of its subdivisions, to take the property of an individual for public purposes by way of taxation, must find an express statutory warrant, and all laws having this object are to be construed strictly in favor of the individual as against the state.</p>

<p>Estates of Deceased Persons—Residue of Estate of Testator.— The residue of the estate of a person dying testate is that which remains after paying the legacies of the will and the debts and expenses of administration.</p> <p>Id.—Inheritance Tax—Nonresident Testator—Property Situated in This State—Determination of Value of Property Passing in Kind—No Deduction for Foreign Debts or Expenses.—In determining the value, for the purpose of fixing the amount of the inheritance tax payable in this state, of property having its situs therein which passed in kind to the residuary legatees under the will of a nonresident testator, who left no creditors in this state, and whose estate in the state of his domicile is ample to pay all debts and expenses of its administration, no deduction should be made from the actual value of the property of any portion of the debts proved, or expenses incurred in the state of the testator’s domicile.</p> <p>Id.—'Charge upon Succession.—The inheritance tax is a charge upon succession by inheritance or transfer by will.</p> <p>Id.—Situs of Corporate Stock is in State of Incorporation.—The situs of stock in a corporation is in the state of the incorporation, for the purposes at least of the inheritance tax law, and any bequest thereof which results in its actual transfer in kind should subject it to payment of the inheritance tax upon its actual value.</p> <p>Id.—Proceeding for Collection of Inheritance Tax—Findings— Payment of Debts and Expenses from Assets in State of Domicile.—In a proceeding in this state to enforce the payment of the inheritance tax on such property, findings showing that the value of the assets of the estate situated in the state of the testator’s domicile was vastly greater than the aggregate amount of the debts and expenses there proven and incurred, justify the conclusion that such debts and expenses had been or would be paid out of the domiciliary assets, and that the property having its situs in this state had passed or would pass in kind and without diminution to the residuary legatees.</p> <p>Id.—Transfer Under Power of Appointment—Bond to Secure Payment of Tax.—Where property is bequeathed to trustees, to pay the net income therefrom to a daughter of the testator, with power to said daughter to will such property to whomsoever she might wish after her death, no- transfer under the power takes place, within the meaning of the inheritance tax law, until the exercise thereof, and the trustees are not required to give a bond to secure the payment of such tax as may accrue upon the exercise of the power.</p>

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

The facts are stated in the opinion of the court. J. W. McKinley, W. B. Mathews, and S. B. Robinson, for W. H. Holabird, Receiver, Appellant. Hunsaker & Britt, and W. N. Goodwin, for Intervener and Appellant.

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

<p>Criminal Law—Assault With Intent to Commit Infamous Crime Against Nature—Want of Consent Essential to Assault.—An assault with the intent to commit the infamous crime against nature implies repulsion, or at least want of consent on the part of the person assaulted, and where such want of consent is shown, the fact that the defendant was interrupted and Ms attempt rendered abortive did not make Ms conduct any the less criminal.</p> <p>Id.—Age and Mentality of Person Assaulted—Assault on Young Child.—In such a case the age and mentality of the person assaulted is important and should always be considered in determining the presence or absence of consent, and the mere submission of a child of tender years or retarded mental development to an attempted outrage of his person should not, in and of itself, be construed to be such a consent as would, in point of law, justify or excuse the assault.</p> <p>Id.—Difference Between Submission and Consent.—There is a decided difference in law between mere submission and actual consent. Consent, in law, means a voluntary agreement by a person in the possession and exercise of sufficient mentality to make an intelligent choice, to do something proposed by another. It differs very materially from assent and implies some positive action and always involves submission. Assent means mere passivity or submission which does not include consent.</p> <p>Id.—Evidence—Support op Conviction op Lesser Offense.—Where the evidence clearly'would support a verdict for a higher offense, the conviction of a lesser crime necessarily included therein will not be set aside.</p> <p>Id.—Conviction of Simple Assault.—Where the evidence is sufficient to support a conviction of an assault with the intent to commit the infamous crime against nature, a conviction of a simple assault will be upheld.</p> <p>Id.—Sufficiency of Evidence to Sustain Conviction of an Attempt. It is not true as a rule of law that evidence which is insufficient to sustain a conviction for a crime would be insufficient to sustain a conviction for an attempt to commit the crime.</p> <p>-Id.—Cross-examination of Person Assaulted—Statements by Defendant.—On a trial for such offense, where the child alleged to have been assaulted was called as a witness for the defendant and gave Ms version of the occurrence, anything that the defendant may have said at the time became relevant and material and -admissible in evidence on cross-examination, and the fact that the conversation narrated by the witness disclosed a statement of the defendant prejudicial to him and irrelevant to the issue being tried, did not render its admission erroneous.</p>

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

The petitioner had, on the- day of March, 1912, filed with the city assessor of the city of Los Angeles, a duplicate of its report covering the property in question, and describing the same as operative property. On May 7, 1912, the city assessor of the city of Los Angeles, filed a protest with the state board of equalization against the inclusion of such property in that board’s assessment of the operative property of the petitioner.

<p>APPLICATION for a Writ of Mandate, instituted by the petitioner, a corporation organized under the laws of the state of California and engaged in maintaining and operating an electric railroad system within the city of Los Angeles and between that city and other cities in the state of California; against the state board of equalization, directing that board to make and enter an order in the minutes of the board to the effect that certain articles of personal property, that had been assessed on the assessment-roll of the city of Los Angeles for the fiscal year 1912, as nonoperative property, was operative property of said railroad. The petitioner had, on the- day of March, 1912, filed with the city assessor of the city of Los Angeles, a duplicate of its report covering the property in question, and describing the same as operative property. On May 7, 1912, the city assessor of the city of Los Angeles, filed a protest with the state board of equalization against the inclusion of such property in that board’s assessment of the operative property of the petitioner. On May 19, 1912, the property in question, together with other operative property of the petitioner, was assessed by the state board of equalization and was placed by it upon the roll of operative property for taxation for state purposes. The further facts are stated in the opinion of the court.</p>

<p>The facts are stated in the opinion of the court.</p> <p>John W. Shenk, City Attorney of Los Angeles, E. R. Young, Assistant City Attorney, and Myron Westover, Deputy City Attorney, for Appellant.</p>

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

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

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

<p>Divorce—Interlocutory Decree does not Dissolve Marriage—Final Judgment.—The entry of an interlocutory decree of divorce does not dissolve the marriage, and the parties thereto remain in the legal relation of husband and wife until the marriage has been dissolved by the final judgment.</p> <p>Id.—Death op Wife After Interlocutory Decree—Surviving Husband Entitled to Letters op Administration.—A surviving husband, against whom an interlocutory decree of divorce has been entered, has a priority of right to letters of administration on the estate of his deceased wife.</p> <p>Id.—Entry of Final Decree After Death of Wife—Husband’s Eights of Inheritance not Destroyed.—The entry of a final decree in the divorce action, after the death of the wife, as provided in section 132 of the Civil Code, did not operate retroactively to take away rights of inheritance which had, by such death, become vested in the surviving husband.</p>

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

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

J. D. Murphy, Judge presiding. The facts are stated in the opinion of the court. T. C. Coogan, Coogan & O’Connor, J. A. Elston, and Snook & Church, for Appellants. Mastick & Partridge, and Dudley Kinsell, for Respondents.

<p>Employers’ Liability Act—Injury to Employee—Act not Applicable to State as Employer.—The state of California, as an employer, is not bound by the provisions of section 4 of the “Employers’ Liability Act” (Stats. 1911, p. 796), to make compensation to an employee for personal injuries received by him in the course of his duties as an employee. There is nothing in the terms of the act which can be" construed as indicating an intention on the part of the legislature to regard the act in its present form as binding on the state.</p> <p>Id.—Construction of Act—Election to be Bound by Compensatory Features of Act.—By the terms of the “Employers’ Liability Act,” its application is, generally speaking, made to depend upon the election of both parties to the contract of employment. In the absence of such mutual agreement the injured employee must have recourse to his claim for damages, or in other words must proceed to enforce the employer’s “liability” as distinguished from the “compensation” which might be due under the act.</p> <p>Id.—State not Liable for Injuries to Employees.—A sovereign state is not bound at all to compensate an individual employee for injuries sustained while in its service, and no right of recovery in favor of such employee exists except by statute.</p> <p>Id.—Statute Permitting State to be Sued Strictly Construed.— Statutes permitting the state to be sued are in derogation of its sovereignty and will be strictly construed. The “Employers’ Liability Act” must, therefore, be strictly construed and in such manner, if possible, to preserve to the state its nonliability for injuries to those in its service.</p>

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

<p>Eminent Domain—Water—Public Use.—The use of water for sale, rental, and distribution to the public generally is a public use.</p> <p>Id.—Power to Exercise must be Granted.—No person or corporation can exercise the power of eminent domain except by a grant from the state.</p> <p>Id.—Water may be Condemned for Public Use.—Section 1238 of the Code of Civil Procedure, authorizes the exercise of the right of eminent domain for the condemnation of water to be devoted to such a public use.</p> <p>Id.—Pleading—Location of Canals—Place of Use of Water Sought to be Condemned—Territory to be Served.—A complaint to condemn water for public use, which alleges that the plaintiff owns two large canals, one seventy-two miles long and the other fifty-two miles long, leading out of the San Joaquin River into the country lying west of the river and extending from the county of Fresno through the county of Merced into the county of Stanislaus the point of its beginning being described with certainty; that it also has distributing canals leading "therefrom to the lands in the vicinity, for convenience of distribution, and maintains a dam in the river to divert the water therefrom into the canals; that by ■this means it has been diverting water from the river and carrying the same into canals and selling it for irrigation, watering of stock, and domestic uses “to the inhabitants of the counties of Fresno, Merced, and Stanislaus,” and that it desires to divert from said river into said canals an additional flow of five hundred cubic feet per second and to carry the same in said canals and devote it to the same public use in the same manner, and that along its canals there is sufficient land upon which irrigation is necessary, the owners of which desire to use said water, to consume said additional quantity, sufficiently shows the situation and location of the canals, the place of use of the additional water sought to be condemned, and the territory to be served therewith.</p> <p>Id.—Water to be Used for “Farming in Neighborhoods.”—Such complaint sufficiently shows that the plaintiff desires to take the additional water-rights sought to be condemned in behalf of the public use indicated by subdivision 4 of section 1238 of the Code of Civil Procedure by the words “supplying mines and farming in neighborhoods with water.” The fact that there may be several separate farming neighborhoods along the canals of the plaintiff does not destroy its right of condemnation.</p> <p>Id.—Sufficient Showing of Situs of Proposed Use.—In order to maintain an action to condemn water for public use, it is not required that the boundaries of the territory to which it is to be dedicated shall be alleged and proved with absolute certainty. The nature of the use is such that this cannot be done. The location of the proposed canal being shown, the situs of the proposed use is .thereby fixed with sufficient accuracy.</p> <p>Id.—Water Unnecessarily Running to Waste.—A right to divert water to be allowed unnecessarily to run to waste cannot be acquired, even by a judgment of condemnation. Such judgment, when given, would afford no protection for such a taking.</p> <p>Id.—Condemnation for Use of Canals and Conduits—Taking of Water to be Carried Therein Implied.—The use described in such complaint is also one for which the right of eminent domain is given in subdivision 3 of that section, as “canals, aqueducts, reservoirs, tunnels, flumes, ditches, or pipes for conducting or storing water for the use of the inhabitants of any county . . . and all other public uses for the benefit of any county ... or the inhabitants thereof, which may be authorized by the legislature.” Such language necessarily implies, not only that property may be condemned for the canals and conduits mentioned, but that water may also be taken to be carried therein.</p> <p>Id.-—Construction of Statute Conferring Right of Eminent Domain—Supply to All Inhabitants of County not Required.— Such subdivision of that section is to be liberally construed, with a view to effecting its objects and to promote justice, and so as to avoid absurd results. So construed, the subdivision must be held to confer the right of eminent domain for the use mentioned, notwithstanding the person in charge of the use does not propose to supply all of the inhabitants of the county with the water sought to be condemned, if the proposed use is for a part of the inhabitants thereof comprising a sufficiently large proportion of the inhabitants capable of using it in the particular territory as to destroy its character as a private use.</p> <p>Id.—Supplying Inhabitants of Particular Section of County— Equal Right of Enjoyment.—The furnishing of water generally to the inhabitants of a particular section of a county is'a public use, and it is not neéessary, in order to so constitute it, that the water should be obtainable by all the inhabitants of the immediate territory to which it is taken. It is sufficient if all who are capable of enjoying it have an equal right to it.</p> <p>Id.—Judicial Notice—Impossibility of Serving All Inhabitants of County by One Water System.—The courts will take judicial notice of the fact that, with the possible exception of the city and county of San Francisco, there is no county in the state in which it is practicable to serve all of its inhabitants with water by means of one system of works.</p> <p>Id.—Pleading—Allegations as to Territory to be Supplied—Variance.—Notwithstanding the general allegations of the complaint that the water is to be devoted to sale and distribution to the inhabitants of Fresno, Merced, and Stanislaus counties, the specific facts alleged show that the water is to be taken only to the lands on the west side of the San Joaquin Eiver, and proof of such specific facts does not constitute a substantial variance between the allegations and proof as to the extent of the use proposed.</p> <p>Id.—Corporations—Power to Convey Water for Public Use—Articles of Incorporation.—A foreign corporation, whose articles of incorporation state that it is formed and empowered to construct canals in California leading from the San Joaquin Eiver, for the carriage of passengers and freight, and for the purpose of irrigation, and to supply water to the inhabitants of cities and towns in California, is authorized to carry water in its canals to be devoted to public use for the purposes of irrigation, navigation, and commerce.</p> <p>Id.—Foreign Corporations—Power to Do Business in California.—. Foreign corporations have always been allowed to enter this state and do any business therein that is within their corporate powers. Their right to do so has been recognized and sanctioned by our statute ever since April 4, 1870 (Stats. 1869-70, p. 881). For all purposes of every business within their capacity they are classed with domestic corporations, provided they comply with the statutes allowing them to do business here, and a statute which by necessary construction confers powers upon corporations in general is to be understood to confer that power upon foreign corporations doing business here as well as upon domestic corporations.</p> <p>Id.—Foreign Corporation may Exercise Eight of Eminent Domain.— Under section 1001 of the Civil Code, such a foreign corporation may acquire property by condemnation in this state for any public use specified in section 1238 of the Code of Civil Procedure.</p> <p>Id.—Statute Expressly Conferring Power on Corporations Acting as Common Carriers.—Section 407 of the Civil Code, by expressly authorizing foreign corporations doing business as common carriers, to exercise the right of eminent domain, does not, by implication, and through the operation of the maxim expressio unius est exclusio alterius, take away such right from all other foreign corporations.</p> <p>Id.—Construction of Section 407 of Civil Code—Effect of Codification.—Section 407 of the Civil Code is a mere revision and codification, made in 1905 (Stats. 1905, p. 631), of section 1 of the act of 1880 (Stats. 1880, p. 21), and prior to its codification it would have had no effect upon the construction of section 1001 of that code and section 1238 of the Code of Civil Procedure, which were enacted in 1872, and conferred the right of eminent domain on all corporations, foreign or domestic. The embodiment of the statute in the code cannot have a different effect upon its meaning than an amendment thereof would have had, and as it did not repeal or modify the pre-existing law before its codification, it would not have that effect afterward.</p> <p>Id.—Water Lost in Transmission by Seepage and Evaporation.— The plaintiff is not debarred from condemning the full quantity of water asked for because a part of it would be lost in transmission to the place of use by seepage and evaporation. Some loss in this way is inevitable and it must be considered a part of that which is necessary to be taken to supply the actual use proposed.</p> <p>Id.—Use of Part of Water for Private Purposes—Further Condemnation fob Public Use.—The fact that a water company is devoting to a private use a portion of the water to which it had acquired a right, does not prohibit it from condemning an additional quantity for public use. The fact that the water privately used and that sought to be condemned would be mingled together in the same canals is immaterial. If, after taking it, the plaintiff should convert it from public to private use, such conversion could be prevented.</p> <p>Id.—Condemnation of Particular Riparian Right—Persons Claiming Adversely cannot Intervene.—In an action by a water company, brought for the single purpose of condemning for public use the interest of a particular defendant, as riparian owner of certain land, in a specified quantity of the water of a stream, third persons not interested in the land in subordination to or in common with the defendant, but claiming adversely a paramount right to divert from the stream, at a point above the defendants’ land and below the plaintiff’s place of diversion, the same quantity of water as that sought to be condemned, have no right to intervene under section 387 of the Code of Civil Procedure.</p> <p>Id.—Joinder of Adverse Claimants not Authorized.—Such adverse claimants have no interest in or right to the property sought to be condemned, and their joinder as parties to the condemnation suit is neither contemplated nor authorized by sections 1244, 1246, and 1247 of the Code of Civil Procedure.</p> <p>Id.—Nature of Riparian Right—Actionable Interference With.—. A riparian right is local in its nature, and is parcel of the land to which it attaches. It enables the owner to enjoin an injurious interference with the stream, but it does so only when such interference affects the stream where it passes by his land. A use of the stream above, if it does not affect it where it passes his land, is no violation of his right.</p> <p>Id.—Parties—Action Does not Affect All Eights in Part of Stream.—An action to condemn a particular riparian right is not an action to condemn absolutely all rights in and to a part of the flow of the stream, and persons having no right or interest in such riparian right are not proper parties to the action.</p>

<p>The facts are stated in the opinion of the court.</p> <p>Kuster, Loeb & Loeb, and Edward G. Kuster, for Appellant.</p>

<p>Adverse Possession — Color of Title — Knowledge of Defect in Title.-—The fact that an adverse possessor of land believed that he owned the property and recognized no other title is sufficient to establish the good faith necessary to gain title where the adverse possession is under color of title. The mere knowledge of a defect in the title is not sufficient to destroy the adverse character of the possession.</p> <p>Id.—Continuity of Adverse Possession—Town Lot—Vacancy During Intervals Between Tenancies.-—It is not essential, in every case, to the continuity of an adverse possession under color of title, that there shall be a continuous personal presence on the land by some person holding for the adverse claimant; and where the property adversely claimed is a town lot, on which buildings had been erected by the claimant, and which when its own use ceased, it let to tenants, the fact that the property remained vacant during intervals between tenancies, did not destroy the continuity of the adverse possession, in the absence of any intrusion thereon by other persons.</p> <p>Id.—Offer to Buy Outstanding Title After Title had Been Acquired by Adverse Possession.—The mere offer of the adverse claimant, after his adverse possession had continued for a sufficient length of time to give title, to buy in the claim of the holder of the record title in order to clear his own, was not such an acknowledgment of the outstanding title as operated to break the continuity of the adverse possession.</p>

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

<p>Lease by Corporation—Signing by Individual—Parol Evidence op Agency and Authorization.—Where a written instrument of lease purports on its face to be the act of a corporation, but is signed, not by the corporation, but by an individual, a stranger to the contract, parol evidence is admissible, in an action by the corporation to recover the rent reserved, to show that the person signing did so for and on behalf of the corporation pursuant to authority so to do.</p> <p>Id.—Construction op Instrument—Lease or Executory Contract por Lease—Intent—Part Payment op Bent.—Whether a written instrument is a lease, or a mere executory agreement to make a lease, depends upon the intent of the parties, to be determined by a construction of the instrument taken as a whole. So construing the instrument in question, it is held, that it was intended to constitute a lease when signed by the respective parties, especially in view of the fact that the lessee entered under it and paid part of the rent at the time of its execution.</p>

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

<p>Appeal prom Judgment on Judgment-roll—Evidence not Beviewable ■—Support op Findings.—On an appeal from the judgment on the judgment-roll alone, the evidence is not reviewable, and its sufficiency to support findings adverse to a plea of the statute of limitations cannot be questioned.</p> <p>Id.—Statute op Limitations—Contract to Convey Water-right— Performance op Future Legal Services—Specific Performance. The statute of limitations does not commence to run against a cause of action to specifically enforce, as against the distributee of the estate of a deceased person, a written agreement of the deceased to convey to an attorney at law an interest in a water-right, in consideration of his services to be performed in appealing a case involving such right to the supreme court, until the final judgment of that court on the appeal, and, under section 337 of the Code of Civil Procedure, the cause of action is not barred until the expiration of four years thereafter.</p> <p>Id.—Decree Distributing Water-right—Effect of on Interest Acquired by Contract.—A decree distributing such water-right to an heir of the decedent as a part of her estate, did not have the effect to bar the interest acquired by the attorney under such agreement. This result follows, whether the agreement be construed to create in favor of the attorney an equitable interest in the water-right at the time of the decedent’s death, or that no interest vested in him until, by performance after her death, he became entitled to conveyance.</p> <p>Id.—Effect of Decree op Distribution—Adverse Interests.—Under section 1666 of the Code of Civil Procedure, a decree distributing the estate of a deceased person to the heirs is not conclusive against one claiming as grantee from such heirs by an instrument executed after the death of the ancestor and Before the decree, nor does it bind third parties who claim an interest adverse to that of the testator or intestate.</p>

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

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

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

<p>APPEAL from an order of the Superior Court of the City and County of San Francisco refusing to vacate a judgment of dismissal entered upon the default of the plaintiff in failing to file an amended complaint'. J. M. Seawell, Judge.</p> <p>The facts are stated in the opinion of the court.</p> <p>Costello & Costello, and A. W. Brouillet, for Appellant.</p> <p>Linforth & Herrington, and C. H. Wilson, for Respondents.</p>

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

<p>Will—Revocation of Probate—Fraud—Defective Execution—Evidence.—In a proceeding to revoke the probate of a will, it is held that the trial court was justified in holding that there was no substantial evidence of fraud or of any defective execution of the will.</p> <p>Id.—Undue Influence-—Opportunity to Exercise — Invalidating Will.—In order to invalidate a will on the ground of undue influence, mere evidence that the persons alleged to have exercised such influence had the opportunity to do so and might have done so if •they had been so disposed and had possessed such influence, is insufficient. The undue influence must actually exist, it must be actually exerted and it must be so exerted as to affect the terms of the will.</p> <p>Id.—Confidential Relations With Testatrix—Principal and Agent —Burden of Proof.—The fact that the confidential relation of principal and agent existed between the testatrix and an executor and beneficiary under her will, does not of itself prove that the will was procured by undue influence arising from that relation, nor cast upon him the burden of proving the absence of such influence at the time of its execution.</p> <p>Id.'—Evidence—Attorney Who Drew Will—Cross-examination to Rebut Inference of Undue Influence.—Where in support of the issue of undue influence, the contestants, on the direct examination of the attorney who drew the will, elicited evidence tending to create an inference that a person charged with the exercise of undue influence was unduly active in the matter of the execution of the will and was endeavoring to influence the testatrix in his favor, it was proper for the proponents, on cross-examination of the attorney, to show what actually occurred during Ms consultation with the testatrix at her house in reference to the terms of the will and at a subsequent interview between them at his office at the time the will was executed, where such faets would tend to- rebut such inference.</p> <p>Ib.—Mental Capacity—Impairment of Memory Due to Age.—A testatrix having a slight impairment of memory due to old age which led her to rely on others more than she otherwise would, but who was nevertheless able to and always did think, talk, and act rationally, and manage such of her affairs as she there had in hand with reasonable prudence and judgment, was not mentally incompetent to make a will.</p> <p>Id.—Medical Testimony—Opinion Based on Erroneous Assumption op Facts.—An opinion of a medical expert as to the mental ineompeteney of the testatrix, based upon a hypothetical question which assumed facts in respect to her mental condition entirely variant from those shown by the uneontradicted evidence, and upon a misconception of the effect of the evidence, cannot be given any probative force.</p> <p>Id.—Want op Testamentary Capacity—Evidence—Nonsuit Properly Granted.—On a contest of a will on the ground of the want of testamentary capacity by the testatrix at the time of its execution, it is held, upon a review of the evidence on that issue, that the trial court was warranted in granting a nonsuit, and that on the whole ease no reasonable person could believe that the testatrix had not sufficient mental capacity to make the will.</p> <p>Id.—-Admission op One of Several Legatees—Incompetent Evidence. On a contest of a will on the ground of undue influence, evidence of a statement made by one of several legatees, which was in effect an admission tending in some degree to prove undue influence, is incompetent.</p> <p>Id.—Impeachment op Party’s Own Witness—Preliminary Showing.—On the trial of such a contest, the contestants cannot impeach their own witness by evidence of contradictory statements, unless they first show that they had been misled or surprised by the testimony he gave.</p> <p>Id.—Proponents’ Bill of Costs—Time of Filing—Judgment.—A ruling of the trial court granting a motion for a nonsuit on the contest of a will is not the judgment of the court, and the proponents’ cost-bill is filed within the time allowed by section 1033 of the Code of Civil Procedure, if it be filed within five days after the judge signed the draft of the form of the judgment which was . afterward entered in the minute-book.</p> <p>Id.—Findings not Required—Decision.—No findings are necessary to such a judgment, and hence the “decision” referred to in section 1033 of the Code of Civil Procedure must be understood in such cases, to mean a judgment entered upon a motion.</p>

<p>APPEAL from an order of the Superior Court of Sacramento County denying a petition for the partial distribution of the estate of a deceased person. C. N. Post, Judge.</p> <p>The facts are stated in the opinion of the court.</p> <p>Louis Oneal, Owen D. Richardson, and O. G. Hopkins, for Appellant.</p>

<p>APPLICATION for a Writ of Mandate directed to the auditor of the City and County of San Francisco.</p> <p>The facts are stated in the opinion of the court.</p>

<p>APPLICATION for a Writ of Certiorari directed to the Superior Court of Santa Clara County and John E. Richards, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>The facts are stated in the opinion of the court.</p> <p>D. K. Trask, Trask, Norton & Brown, H. Gerald Chapin, and Albert M. Norton, for Appellant.</p>

<p>Deceit—Fraudulent Representations to Wife Causing Separation from Husband.—Where the separation of a husband and wife was the result of her cruel treatment of him, and the sole cause of her conduct was the action of a third person in malting to her willfully false representations concerning her husband, for the very purpose and with the design on his part to so influence her as to bring about such a separation, the wife may maintain an action against the person making the false representations to recover damages occasioned her as the result of the separation.</p> <p>Id.—When Action for Deceit Will Lie.—As a general rule, an action for damages for deceit will lie wherever a party has made a false representation of a material fact susceptible of knowledge, knowing^ iUtp jto false^pr not having sufficient knowledge on the subject to warrant the representation, with the intent to induce the person to whom it is made, in reliance upon it, to do or refrain from doing something to his pecuniary hurt, when such person, acting with reasonable prudence, is thereby deceived and induced to so do or refrain, to his damage.</p> <p>Id.—Conduct of Plaintiff Direct Cause of Eesult Occasioning Damage.—It' is no answer to such an action that .the action or conduct of the plaintiff is the direct cause of the result occasioning damages. The whole basis of the action is that such act or conduct was fraudulently induced by the defendant.</p> <p>Id.—Conduct Violative of Good Morals or Public Policy.—Under the circumstances alleged in the complaint, it is held that the harsh and cruel conduct of the wife toward her husband, so fraudulently induced and causing their separation, was not so violative of good morals or public policy as to defeat her right to action.</p> <p>Id.—Husband Necessary Party Plaintiff—Failure to Join—Waiver . of Nonjoinder—.Demurrer.—Notwithstanding the complaint in such action shows upon its face that the plaintiff is a married woman and that she and her husband are not living separate and apart by reason of his desertion of her, and that the husband was a necessary party plaintiff, and that any damages recovered therein would be community property, the failure to join him,as such a party is waived, unless objection to his nonjoinder is specially taken by demurrer.</p>

<p>Criminal Law—Murder—Photograph of Place of Homicide—Sufficient Evidence of Correctness.—In a prosecution for murder, a sufficient foundation is laid for the admission in evidence of a photograph showing the relative location in the room in which the homicide took place, at the time thereof, of certain personal objects, by the testimony of a witness to the effect that he was in the room and took the negative of the photograph shortly after the killing and at a time when such objects were in exactly the same position that they were at the time'of the homicide, and that the photograph offered in evidence, which had been finished by a photographer to whom he had given the negative for that purpose, was a correct representation of the objects sought to be shown and their relative location at the time he took the picture.</p> <p>Id.—Overcoat Worn by Defendant—Evidence of Identification.—In such prosecution, an overcoat worn by the defendant at the time of his arrest, on the day following the homicide, was properly admitted in evidence, where there was testimony tending to show that he was seen on a street of the town in which the homicide was committed, and shortly before its occurrence, in the company of his codefendant, wearing an overcoat similar to the one received in evidence, and also testimony tending to show that one of the two men committing the murder wore at the time such an overcoat.</p> <p>Id.—Instruction—Reasonable Doubt.—A general instruction on the subject of reasonable doubt, which is. otherwise free from error, is not rendered objectionable by the inclusion therein of the phrase “a reasonable doubt is not a mere guess or surmise.”</p> <p>Id.—Motive—Requested Instructions—Subject Matter Covered by Instruction Given.—It was not error for the court to refuse to give an instruction requested by the defendant on the question of motive, where the subject matter of the requested instruction was fully covered, so far as it could be reasonably claimed that defendant was entitled to have it covered, by an instruction given to the effect that there could be no presumption of motive in the absence of a showing thereof, and that the jury had the right to consider the absence of motive in determining the guilt or innocence of defendant.</p>

<p>Sale of Manufactured Product—Limitation on Minimum Selling Price—Product Sold Constituting Only Small Part of Market Supply.—A manufacturer of ground chocolate, whose total output constitutes only a small part of the general market supply of that article, may impose, as a condition of an original sale thereof to a wholesale jobber, a limitation on the minimum price at which the same may he resold at either wholesale or at retail. It is immaterial to the validity of such condition -whether or not the product is manufactured in accordance with a secret process, or is protected by trademark, or is covered by letters patent.</p> <p>Id.—Resale by Original Purchaser—Agreement of Second Purchaser to Maintain Prices—Enforcement by Purchaser.—Such a condition is enforceable by the manufacturer, not only as against the original purchasing jobber, but also as against a wholesale purchaser from Mm, who bought, for the purpose of selling again at retail, under a specific agreement with the jobber, which by its terms was made for the express benefit of the manufacturer, whereby he undertook to maintain the fixed retail selling price.</p> <p>Id.—Contract Made for Benefit of Third Person.—The contract of the second purchaser is one of the class referred to in section 1559 of the Civil Code, providing that “a contract, made expressly for the benefit of a third person, may he enforced by him at any time before the parties thereto rescind it.”</p> <p>Id.—Restraint of Trade.—Such an agreement is not unenforceable as being in restraint of trade, either under the common law or the act of Congress of July 2, 1890, known as the Sherman Anti-trust Act.</p> <p>Id.—Reasonable Profit of Business—Cartwright Act.—Where it appears that the only object of such agreement was to enable the ■ manufacturer to conduct his business at a reasonable profit, the agreement is not within the prohibitory provision of the so-called Cartwright Act of this state (Stats. 1907, p. 984), as amended in 1909 (Stats. 1909, p. 593).</p>

<p>The facts are stated in the opinion of the court.</p> <p>E. W. Camp, U. T. Clotfelter, M. W. Reed, and A. H. Van Cott, for Appellant.</p>

<p>APPEAL from an order of the Superior Court of San Diego County setting apart a homestead from the estate of a deceased person, and from an order refusing a new trial. W. R. Guy, Judge.</p> <p>The facts are stated in the opinion of the court.</p> <p>Mills & O’Farrell, W. J. Mossholder, and Marks P. Moss-holder, for Appellants.</p>

<p>Mechanics’ Liens—Mortgage Executed After Completion of Building—Priority of Liens.—Except as given priority by the provisions of section 1188 of the Code of Civil Procedure, a mortgage of land upon which buildings had been erected, made after the completion of the buildings, and, therefore, after the work was done and materials commenced to be furnished, is subordinated, by section 1186 of that code, to the liens of mechanics and materialmen.</p> <p>Id.—Lien Against Two Buildings—Statement of Specific Amounts Claimed—Buildings Erected Under Single Contract.—Section 1188 of the Code of Civil Procedure, requiring the claimant who files a lien against two or more buildings, or other improvements, to desig- . nate the specific amount for which he claims a lien upon each of such improvements, does not require him to make such designation unless there is in fact a specific amount due to him on each of such improvements. The section does not require separate statements of the amount due on each building or improvement, where two or more buildings or improvements are constructed under a single contract for a single consideration.</p> <p>Id.—Furnisher of Materials When Contractor or Materialman— Relative Value op Materials and Labor.—In determining whether a lien claimant is a “contractor” or a “materialman” within the purview of the Mechanics’ Lien Law, the test of the character of the contract is the relative value of the material and the labor supplied. If the value of the labor is small in comparison with that of the material, the claimant is a materialman.</p> <p>Id.—Cost of Labor Small in Comparison With Value of Materials.— One furnishing and installing fixtures and other materials for a building is to be deemed a materialman when the value of the goods supplied was nine hundred and fifty dollars, while the labor cost was only $128. The same is true of one furnishing lumber, in connection with which the only element of labor cost was a comparatively trifling amount for cartage.</p> <p>Id.—Reasons of Decision—Dictum.—Where a decision is based upon two independent lines of reasoning, neither one can be said to be dictum. One is as necessary to the decision as the other.</p> <p>Appeal—Erroneous Finding Without Prejudice if Disregarded by Judgment.—Any error in finding against an -appellant on a particular issue is without prejudice to him, if the judgment gave him all relief to which he was entitled had the finding been in his favor.</p>

<p>Corporation—Nonpayment of License-tax—Forfeiture op Charter —Termination op' Existence—Nonliability to Suit—Void Judgment—Stockholder may Avoid.—A corporation organized under the laws of California for profit, whose franchise and charter have been forfeited for noncompliance with the act of March 20-, 1905, requiring the payment of an annual license-tax, ceases to have a corporate existence and cannot be sued, and a judgment obtained against it is void and may be impeached at the instance of a stockholder therein, who intervenes in the action in which the judgment was rendered for the purpose of expunging it from the records.</p> <p>Id.—Judicial Determination not Essential to Forfeiture.—The forfeiture provided for by that act is not dependent upon judicial determination and decree, but is self-acting and operating.</p> <p>Id.—Showing by Stockholder—Accrual op Corporate Liability— Corporate Assets.—In such interventi.on proceeding by the stockholder, it is not necessary that he should show that he was a stockholder at the time the liability upon which the judgment was obtained against the corporation accrued, nor the fact that the corporation had assets.</p> <p>Id.—Estoppel by Stockholder—Answer by Former Director.—Such stockholder is not estopped from complaining of such judgment, by reason .of the fact that one of the former directors of the defunct corporation, who became under the provisions of that act the trustees to wind up its corporate affairs, filed an answer in the action admitting the corporate existence of the defendant. '</p> <p>Id.—Directors as Trustees op Corporation—Cannot Answer in Name op Corporation.—Such act authorizes the directors, and not one of "them, to act as trustees. It empowers them as trustees to sue and be sued but not to answer suits in the name of the defunct corporation.</p>

<p>Written Contract—Presumption op Consideration.—Under the presumption in favor of written agreements, as provided by section 1614 of the Civil Code, in the absence of proof to the contrary, an adequate consideration must be presumed to have passed at the execution of such a contract, and, if necessary, it will be assumed that it consisted of something of value not mentioned in the agreement itself, unless the terms of the agreement are such as to exclude or forbid such assumption.</p> <p>Id.—Reciprocal Promises op Parties to Contract.—A promise by one party' may be a sufficient consideration for the promise of another, and where there are mutual or reciprocal promises in a written agreement each constitutes a consideration for the other, particularly where it is expressly so declared.</p> <p>Id.—Promise op Preferential Eight to Purchase Stock—Agreement to But Stock at Stated Price at Seller’s Option.—An agreement by the plaintiffs that if they chose to sell certain stock in a corporation they would give the defendants a preferred right to buy it over all other purchasers, is a sufficient consideration to support the agreement of the latter to pay dividends on the stock and also to buy it, at the plaintiff’s option, at any time after six months, on ninety days’ notice, at a stated price.</p> <p>Id,—Obligation to Purchase—Election to Sell—Notice of Election —Offer of Delivery.—Such an agreement imposed no obligation on the defendants to buy the stock at the price stated, unless the plaintiffs elected to sell it, and gave the notice, nor, even after such election and notice, until they had offered to deliver the stock in pursuance of the agreement.</p> <p>Id.—Actual Demand Necessary to Eight of Action—Statute of Limitations.—The general rule is, that where an actual demand is essential as a condition precedent to a complete right of action for the recovery of money, such demand must be made within a reasonable time after it can lawfully be made, or within a reasonable time after the contract by its terms contemplates that it should be made, and that, unless there are peculiar circumstances affecting the question, a time coincident with that of the statute of limitations, will be deemed reasonable.</p> <p>Id.—Action to Eecover Stated Price—Demand and Tender of Performance—Commencement of Eunning of Statute.—An action to recover such stated price is in effect an action to enforce performance of a contract to buy personal property, and it is governed, so far as the commencement of the running of the statute of limitations is concerned, by the same rule which controls in the case of a sale of real property. Such rule is, that where a party may call for the performance of the agreement upon the part of another only by a tender or offer to perform his own ageement, there can be no breach of the contract by the one until such offer or tender by the other, and the statute will not begin to run until that time.</p> <p>Id.—Demand for Performance—Notice of Election to Sell—Laches. Where such agreement of purchase was in writing, and the plaintiffs, within four years after its execution, set in motion proceedings for a demand for performance by the defendants and made the actual demand within a few months thereafter, they were not guilty of laches sufficient to bar their action to recover the price stated.</p>

<p>Public Land—Railroad Grant—Indemnity Selections—Relation op Patent.—The general rule is that patents to a railroad for indemnity lands relate back to the date of selection of the land within the indemnity limits, with the approval of the land department.</p> <p>Id.—Land Department—Jurisdiction—Pinality op Patent.-—Pending a proceeding before the United States Land Department for the issuance of a patent to land, the secretary of the interior has jurisdiction to review all rulings theretofore made, but after patent has issued and the government has formally declared that it conveyed the land in question, no further departmental interference is legally possible.</p> <p>Jto.-—Identity of Land Conveyed—Final Decision of Secretary of' Interior—Conflicting Surveys—Mineral Locations.—The final decision of the secretary of the interior determining that a patent issued to the Southern Pacific Railroad Company for indemnity land, conveyed the land, in accordance with the official survey in force at the time the patent was issued, fnd was dependent upon a supplementary indemnity application which antedated the patent, and was not in accordance with a different survey in effect when the original application to select the land was made, is conclusive upon a claimant of land under mineral locations made subsequent to the issuance of the patent.</p>

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

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

<p>The facts are stated in the opinion of the court.</p> <p>J. C. Meyerstein, H. U. Brandenstein, and A. B. McKenzie, for Appellant.</p>

<p>The facts are stated in the opinion of the court.</p> <p>Garber, Creswell & Garber, and Hillyer, Stringham & O’Brien, for Appellant.</p>

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

<p>Employer and Employee—Presumptions—Promise to Pay for Services—Evidence to Rebut—Services Intended as Gratuitous.— Ordinarily the law will imply a promise to pay for services rendered and accepted. This rule is founded on a mere presumption of law, and may be rebutted by proof of a special agreement to pay therefor a particular amount or in a particular manner, or by proof that the services were intended to be gratuitous, or even by particular circumstances from which the law would raise the counter presumption that the services were not intended to be a charge against the party who was benefited thereby.</p> <p>Id.—Parties Living 'as Husband and Wife—Inference of Gratuitous Return of Services.—In the absence of an express agreement for compensation, the fact that a man and a woman, although not married to each other, had gone to certain premises belonging to her to live together and for ten years had lived together as husband and wife, mutually carrying on the business of a roadhouse and saloon, is sufficient to support the inference that no compensation in money was contemplated for any services rendered by him in and about the conduct of the business.</p> <p>Id.—Cross-examination—Evidence of Cohabitation.—In g.n action by him to recover for such services, after he had .testified on his direct examination that he had worked for the defendant under circumstances from which an obligation to pay for his services would be implied, it was proper cross-examination to permit the defendant to inquire concerning his cohabitation with her.</p> <p>Id.—Evidence Offered by Appellant.—An appellant cannot complain of the admission of evidence which was offered by himself.</p> <p>Id__Remark of Court—Effect of Evidence.—A remark made by the court, as to his recollection of the effect of certain findings in another action that were subsequently offered in evidence, is without prejudice, if the findings themselves showed that the court’s recollection was accurate.</p> <p>Id.—Instructions—Matters Referred to for Illustration.—It was not error for the court, in its instructions to the jury, by way of illustration of some of the circumstances which would, justify an inference that services had been rendered gratuitously, to refer to the case of a son working for a father, or a woman for a supposed husband.</p> <p>Id.—Pleading—Denial or Indebtedness and Employment.—In such action, the mere denial of indebtedness and employment raised an issue, on which, in the absence of an express agreement, the relations of the parties became material, and justified instructions referring to their cohabitation, although such fact had not been pleaded.</p> <p>Id.—.Payment—Sexual Intercourse.—Where the jury were properly instructed as to the effect of the relations of the parties as tending to show that the plaintiff’s services were intended to be gratuitous, it was not error for the court to refuse an instruction, requested by the plaintiff, that sexual intercourse would not constitute payment of plaintiff’s claim.</p>

The facts are stated in the opinion of the court. Pillsbury, Madison & Sutro, and L. L. Cory, for Appellant. Sullivan & Sullivan, and Theo. J. Roche, and Frank H. Short, for Respondents.

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

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

<p>Corporation—Capital Stock Defined—Assets—Prohibition Against Paying to Stockholders.—The phrase “capital stock,” as used in section 309 of the Civil Code, prohibiting directors of corporations from dividing, withdrawing, or paying to the stockholders, or any of them, any part of the capital stock, or from reducing or increasing the capital stock, except as therein provided, means the actual capital, the assets, with which the corporation carries on its corporate business, and not the shares of which the nominal capital is composed.</p> <p>Id.—Stockholders have No Power to do Porbidden Acts.—Although •the prohibition of that section runs, in terms, only against the directors, the effect of the section is to deprive the stockholders as well, of power to do the forbidden acts.</p> <p>Id.—Corporation cannot Purchase Its Own Stock.—In view of that section, a corporation in this state, is not authorized to employ its assets for the purchase of shares of its own stock, since the result would be to illegally withdraw and pay to a stockholder a. part of the capital-stock.</p> <p>Id.—-Agreement of Corporation to Repurchase Stock—Condition of Contract Under Which Stock was Issued.—An agreement by a corporation, constituting a condition and a part of the consideration of an entire contract under which its stock was, originally issued, obligating it, at the election of the stockholder, to repurchase the stock at a stated price, is not within the inhibition of the section. Such an agreement is enforceable against the corporation, subject to the qualification that the rights of creditors are not injuriously affected, and that it would not result in a fraudulent invasion of the rights of other stockholders.</p> <p>Id.—Amount Payable on Return op Stock Immaterial.—It is immaterial to the validity of such an agreement whether the amount to he paid hy the corporation on the return of the stock was equal to, or more or less than, the original price for which it was issued.</p>

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

<p>Evidence—Exclusion of Testimony as to Conversation—Review of Ruling—Substance of Conversation not Shown.—In an action to recover the amount due on promissory notes, which was defended on the ground of want of consideration, where a witness for the defendant had testified that he had a conversation with the payee of the notes, the refusal of the court to permit the witness -to state what the conversation was, on the ground that it was immaterial, irrelevant, and incompetent, cannot be deemed erroneous or in itself constituting ground for reversal, in the absence of any statement made to the trial court showing what the defendant claimed the substance of the conversation to be.</p> <p>Compromise of Disputed Claim—Consideration—Absence- of Good Faith.—An agreement to settle a claim upon which suit has not been begun is not supported by a sufficient consideration if the party seeking to enforce it knew his claim to be groundless and did not assert it in good faith.</p> <p>Promissory Notes—Settlement of Will Contest—Intention to Contest—Evidence.—In an action on promissory notes given by a mother to her son in settlement of his threatened contest of his father’s will, and which was defended on the ground that there was - no consideration for the notes due to the fact that the payee had no intention to make such contest at the time the notes were executed, the refusal of the court to permit a witness for the defendant to answer the question whether or not, about one month before the settlement, the payee had stated he had no intention of contesting the will and was satisfied with it, will not be deemed sufficiently prejudicial to require a reversal where there was no indication as to the nature of the answer the witness would have made to the question, and the evidence introduced left no doubt that the son subsequently had the intention to contest.</p>

<p>Corporations—Subscription to Stock in Particular Corporation—• Application to Stock in Different Company—Liability to Refund.—Where an agent authorized to obtain subscriptions to the capital stock of two different corporations, diverts money specifically paid him for a subscription to the original stock of one of such corporations, and attempts to apply it for a subscription to the stock of the other, and the money is so received and applied by the other, both the agent and the corporation obtaining the money, although it may have had no knowledge of the terms on which the agent received it, are liable to refund it to the payer, as for money had and received to his use, if it was impossible to apply the money on. account of a subscription for .the stock of the intended corporation, due to the fact that all of the stock of that company had Been subscribed for prior to the date of the payer’s subscription.</p> <p>Id.—Corporations of Same Character and Having Property of Same Value.—It is immaterial to the right to recover such money that there was no difference in the value of the stock of the two companies, and that the property of one corporation was the same in character and value as that of the other.</p> <p>Id.—Instructions Requested by Appellant.—The appellants cannot complain of instructions to the jury, which left them to determine whether under the subscription agreement the payers of the money had the right to elect which stock his money was to be applied on, if they joined in requesting instructions to that effect.</p> <p>Ib.—Original Subscription to Stock—Acceptance of Stock Already Issued.—One who has contracted to take stock in a company as an original subscriber thereto, cannot be compelled to accept from others, in satisfaction of his rights under such contract, any stock that had been subscribed for by, and issued to, other persons, and that was then owned by other persons.</p>

<p>Negligence—Employer and Employee—Furnishing Safe Appliances. While a master is not obliged to furnish his employee with the latest improvements in machinery, -tools, or appliances, he is always under the duty in the use of proper care, to furnish him with suitable machinery, tools, and appliances.</p> <p>Id.—Wagon Without Brake and With Insecure Seat—Question for Jury.—Whether a wagon, furnished by an employer to his' teamster for the purpose of hauling brick over a hilly road, was an unfit instrumentality by reason of its having no brake and an insecure seat, is a question for the jury, in an action by the employee to recover damages for personal injuries occasioned by the running away of the team attached to the wagon, while going down a grade.</p> <p>Id.—Assumption of Bisk by Teamster—Use of Unsafe Wagon for One Day.—It cannot be said, as matter of law, that the teamster assumed the risk of the defective condition of such wagon, where, after protesting concerning the absence of a brake and receiving the assurance of the foreman that he would not need one, he undertook the work with it, and was injured on the first day while so employed.</p> <p>Id.—Instructions—Duty to Furnish Suitable Appliances—Failure to Exercise Beasonable Care.—In an action to recover for such injuries, a preliminary instruction declaring it to be a part of the duty of the employer “to furnish suitable appliances by which the service is to be performed and to keep -them in repair and order and to make such provisions for the safety of the employees as will reasonably protect them from the dangers incident to their employment,” will not be deemed erroneous for its failure to announce that the employer is liable only if he has failed to- exercise reasonable care and diligence in the selection and furnishing of such appliances, if such qualification of his liability is repeatedly stated in subsequent instructions.</p> <p>Id.—Measure of Damages—Damages Reasonably Probable to Result in Future.—An instruction in such action, that if the jury found for the plaintiff, he was entitled to recover for all damages proximately resulting from the injury which he has suffered up to the time of the trial, and for all such damages that it is “reasonably probable” that he will sustain in the future, is not rendered erroneous by the use of the phrase “reasonably probable,” if it sums up its declaration of the law with the pronouncement of the correct rule embodied in section 3283 of the Civil Code, that he is entitled to recover for all damages “certain to result in the future.”</p>

<p>Deed—Conditions Subsequent—Construction.—Conditions subsequent in a deed tending to restrict and defeat an estate are not favored. They can be created only by apt and appropriate language which ex proprio vigore establishes that only a conditional estate was conveyed, and when such a condition is shown to have been created, the rule of construction is that of strictness against the grantor and in favor of the holder of the estate.</p> <p>Id.—Creation or Conditions Subsequent.—Generally, the apt and appropriate words evidencing that a grant is on condition subsequent are found in a provision for forfeiture and right of re-entry. If, however, the language employed declares a condition and imports a forfeiture, a clause of re-entry is not necessary.</p> <p>Id.—Becital of Purpose for Which Land is Conveyed.—A provision in a deed to a county merely reciting that the land conveyed is “to be used as and for a county high school ground and premises,” for the grantee, does not create a condition subsequent.</p> <p>Id.—Circumstances Under Which Deed was Made.—The facts and circumstances under which such deed was made, if not expressed in the deed itself, cannot be considered to enlarge or restrict the estate actually granted.</p>

<p>Corporation Agent and Trustee por Stockholders—Directors as Trustees.—A corporation is the agent and trustee of its stockholders, in their behalf and for their use and benefit holding, controlling, and managing the corporate property and business. The directors are the trustees for the stockholders and also for the corporation.</p> <p>Mandamus—Operation op Personal Writs—Territorial Limitations. Personal writs cannot run to persons who are not present in the state, and they cannot be enforced upon real property beyond its limits. The writ of mandate cannot be invoked to compel performanee of an act which cannot be performed within this state but must be done, if at all, at some place in another state.</p> <p>Id.—Foreign Mining Corporation—Stockholder’s Eight to Inspect— Mandamus to Enforce Eight—Order by Directors to Permit Inspection.—The courts of this state have power to issue a writ of mandate, at the instance of a stockholder in a mining corporation organized under the laws of a foreign state, and whose mining property was there situated, but which had its principal place of business, and all of whose directors resided, in this state, commanding the directors to make and deliver to such stockholder an order to the persons in charge of the mine, instructing them to permit the stockholder to enter and examine the same. Ample power to compel obedience to such writ is conferred by section 1097 of the Code of Civil Procedure, although, doubtless the power would exist in the absence of such express grant.</p> <p>Id.—Bight of Visitation and Inspection.—A stockholder of a mining corporation has the right to visit and inspect the mines of the company, both at common law, and by virtue of section 589 of the Civil . Code.</p> <p>Id.—Mandamus to Enforce Eight—Eight at Common Law and Under Statute.-—Where such right of visitation and inspection is given by statute, the rule is that, unless the statute imposes restrictions or limitations, the right is absolute and may be enforced by mandamus, regardless of the purposes or motives of the stockholder, or the existence of good cause. Where the right -to be enforced is a common law right, the issuance of the writ is discretionary, and the motives of the stockholder may be questioned, and he is required to show good cause for granting the relief.</p> <p>Id.—Presumption as to Law of Foreign State—Identity With Law of This State.—In a proceeding by mandamus against such a foreign mining corporation to enforce a stockholder’s right of visitation and inspection, it must be presumed, in the absence of a contrary showing, that the laws of the foreign state under which the corporation was organized and where its mines were situated, conferred the same right to visit and examine as that provided for by section 589 of the Civil Code of the state. If it should appear that such foreign state had no such law, substantially the same right and duty would exist under the common law, provided the inspection was desired for a legitimate purpose and good cause was shown therefor.</p>

<p>Parent and Child—Divorce—Custody op Child Awarded to Mother—• Letters op Guardianship Issued to Mother—Duty op Father to Support.—Under section 196 of the Civil Code, a father is under no duty of supporting his minor child, after a decree of divorce had been obtained against him in another state upon substituted service of summons, which decree awarded the custody of the child to the mother, without requiring him to contribute to its support, and after the mother had sought and obtained letters of guardianship of the child in this state.</p> <p>Id.—Foreign Decree op Divorce—Substituted Service—Void Money Judgment for Alimony.—A provision in the divorce decree, purporting to direct the husband to pay the sum of one hundred dollars a month to his wife as alimony, is void, for want of jurisdiction of the person of the husband, and cannot be construed as having been intended in part for the support of the child.</p>

The auditor based his refusal to sign and attest such bonds and coupons on the facts: (1), that the resolution and order of the Board of Trustees of said school district, calling an election to submit to the electors of the school district the question whether such bonds should be issued, failed to provide or specify the kind of money or currency in which said bonds should be paid, and that the hoard of supervisors of said county, in its resolution and order ordering the…

<p>The facts are stated in the opinion of the court.</p> <p>George Clark, W. A. Anderson, and Black & Clark, for Appellants.</p>

<p>Miner’s Lien—Work on Mining Claim—Claim of Lien—Nature of Work.—Under section 1187 of the Code of Civil Procedure, a claim -of lien for labor performed on mining property need not state ■the particular character of the labor done, although in an action to enforce the lien, the claimant must show by his proof that his labor was of such kind as is made lienable by section 1183 of that code, that is, that it was development work or mining by the subtractive process.</p> <p>Id.—Contract Authorizing Working of Mine—Accounting of Profits —Notice of Intention to Do Work.—A contract by a hydraulic mining corporation, whereby it gave a third person an option to purchase a block of its shares, and authorized him to enter upon its mining property and repair the company’s flume, and to prospect and examine its mines, accounting to the company for a portion of the gold extracted, is sufficient to put the officers of the corporation on notice that he intended to go to the mine to carry out its objects.</p> <p>Id.—Agent of Corporation—Development Work on Mine—Work by Subtractive Process.—The holder of such option, in performing the work contemplated by the contract on such mining property, was the agent of the owner, within the meaning of the Mechanics’ Lien Law, (Code Civ. Proc., sec. 1183), and the work done by him in repairing such flume and in extracting minerals, was “development work,” and work by the “subtractive process.”</p> <p>Id.—Construction of Flume for Hydraulic Mine.—The construction of a flume and the bringing of water to a hydraulic mine, for the sole purpose of working it by the only way that it could be worked, is development work.</p> <p>Id.—Assignment of Claims of Lien—Assignment Prior to Recordation.—Where the claims of liens of persons doing work on such mining property were executed in the individual names of the claimants, and were so recorded, an assignment thereof, although it was executed prior to the recordation of the claims, authorizes the assignee to maintain an action in his own name to foreclose the liens, if by its terms it was not to take effect until after the recordation of the claims.</p> <p>Id.—Assignee Agent of Claimants to Record Claims.—Such claimants, after the execution of the assignment, could delegate to the assignee, as their agent, the power to file the claims in their behalf with the county recorder.</p>

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

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

<p>Fraud—Necessity of Pleading.—Fraud is not presumed, and whenever it constitutes an element of a cause of action which is of an affirmative nature or is invoked as conferring a right, it must be alleged.</p> <p>Estate of Deceased Person—Family Allowance to Wife—Separation Agreement—Fraud of Husband not Pleaded.—Where a wife, who had been living separate and apart from her husband, up to the time of his death, under written articles of separation, applies for a family allowance from Ms estate, and at the time of filing her petition therefor had knowledge of fraudulent acts of her husband which would nullify the effect of such separation articles as a bar to her receiving such allowance, it was incumbent upon her to have pleaded the fraud. In the absence of such pleading, the agreement remained unimpeaehed for fraud before the trial court on the application for the allowance, and the rights of the parties were to be adjudicated in accordance with its legal terms and effect.</p> <p>Id.—Separation Agreement as Defense to Claim for Allowance—■ Evidence to Show and Rebut Fraud—Necessity of Findings— Review on Appeal.—On such an application, in which the personal representative of the estate sets up the separation agreement as a defense, if it be assumed that the petitioner had the right, under • the implied replication allowed by section 462 of the Code of Civil Procedure, to give evidence of the fraud, the representative of the estate would have the right, by way of implied rejoinder, to prove estoppel, a failure to rescind, laches, the statute of limitations, or any other matter of defense. On the new issues so raised, the trial court must make specific findings one way or the other, before a judgment can be entered for an. allowance, and before such matters can be reviewed upon appeal.</p> <p>Id.—Husband and Wife—Separation Agreements not Against Public Policy.—Notwithstanding the confidential relations which exist between husband and wife, separation agreements, providing for the division of all the community property of the parties, and obligating each of them not to assert any claim against the estate of the other, are not against public policy, and may be entered into and will be enforced in accordance with their terms when undue advantage has not been taken of either spouse.</p> <p>Id.—"Waiver of Bight to Family Allowance—No Minor Children at Time of Application.—A wife may, by the terms of a separation agreement, waive her right to receive a family allowance from the estate of her husband, notwithstanding there were minor children at the time the agreement was executed, if such children had ceased to be minors at the time her application for an allowance was made.</p> <p>Id.—Provision for Deeds from and to Spouses—Invalid Trust to Convey Land—Estoppel to Assert Invalidity of Agreement.— Where the separation agreement provided, as a mode of establishing title to the real property divided by the spouses, that deeds should be made by them to a third person, who in turn should make to them the deeds contemplated by the agreement, they are estopped to assert the invalidity of the agreement on the ground that it created a void trust to convey land, if they assented to the deeds so made to them, acted under them, and maintained actions in the court to enforce them.</p> <p>Id.—Invalidity of Means to Carry Out "Valid Contract.—The provision for deeds to and from such third person was a mere means for carrying into effect the principal purposes of the agreement, but was not an integral nor an essential part of it, and after such method was executed and accepted by both parties, the entire contract, in itself valid, will not be permitted to fall because of the supposed invalidity attaching to the means adopted.</p> <p>Id.—Bight to Family Allowance—Conditions Essential to Bight. Upon the death of the husband the surviving wife may receive a family allowance when and only when she is a member of the family and receiving or entitled to receive support as such member, and when, even though a member of the family, she has not parted with or relinquished her right to make demand for such allowance.</p> <p>Id.-—Waiver of Bight to Allowance—Denunciation of Claim as Heir and as Surviving Wife.—A provision in a separation agreement, by the terms of which the wife renounced and waived all claim which she has or may have against her husband’s estate as heir of the husband or as his surviving wife, is a relinquishment of her right to a family allowance, notwithstanding such right was not renounced eo nomine.</p> <p>Id.—Wife Ceasing to be Member of Husband’s Family—tWant of Bight to Support.—A wife who has voluntarily and deliberately severed her relationship as a member of her husband’s family, and whose right to support by him does not rest upon the family relationship, but upon the terms of articles of separation, is not entitled to a family allowance from his estate.</p> <p>Id.—Probate Court mat Construe and Enforce Separation Agreement.—The court in probate, on an application by the surviving wife for a family allowance from her husband’s estate, has equitable jurisdiction to pass upon the effect and validity of a separation agreement, which has been interposed as a defense by way of estoppel to her claim. „</p>

<p>Toll-bridge—Expiration op Lips op. Franchise to Collect Tolls— Bridge Becomes Free Public Highway.—Upon the expiration of the twenty-year period limited by the act of March, 1862 (Stats. ' 1862, p. 76), authorizing the construction of a bridge across the Mokelumne Biver at Big Bend, situated partly in Calaveras County and partly in Amador County, and granting the right to collect tolls thereon for twenty years, the right to collect tolls ceased by limitation, and the bridge so constructed became a free public highway. This result would have followed even in the absence of any statute to that effect.</p> <p>Id.—Dedication op Toll-road or Bridge to Public Use—Termination op Bight to Take Tolls.—The construction of a road upon the grant of a franchise to collect tolls is a dedication of the road to public use, subject only to the right to collect tolls. The road belongs to the public, and the only interest of the holder of the franchise is the right to collect tolls as a compensation for building the road, and there is no right to compensation when the right to take tolls has ceased by expiration of the term for which it was granted or by abandonment. The same rules apply to bridges, which are highways under section 2618 of the Political Code.</p> <p>Id.—Bridges Situated in Two Counties.—Section 2619 of the Political Code, providing that “whenever the franchise for any toll-bridge . . . has expired by limitation or nonuser, such bridge . . . becomes a free public highway,” is not limited in its application to bridges or roads wholly within a single county.</p> <p>Id.—Certiorari—Annulling Order of Supervisors Declaring Bridge a Publio Bridge.—A judgment in certiorari proceedings annulling, for want of jurisdiction to make it, an order of the board of supervisors declaring such bridge to be a free public bridge, which order had been passed after the expiration of the period limited for the collection of tolls, was not an adjudication that the bridge had not become a free public highway upon the expiration of that period.</p> <p>Id.—Franchise to Collect Tolls on Pub mo Highway—Limitation on Power of Supervisors—Bridge Across Waters Separating Two Counties.—A board of supervisors has no power to grant a franchise to collect tolls on a bridge constituting a free public highway, except in the case- authorized by subdivision 33 of section 4041 of the Political Code, when in their judgment the expense necessary to operate or maintain it as such is too great to justify the county in so operating or maintaining it. That subdivision, however, is limited to the case of bridges situated entirely in a single county, and has no application to the case of bridges across waters separating two counties.</p> <p>Id.—Construction of New Toll-bridge—Statutory Requirements must be Followed.—The board of supervisors of the county situated on the left bank of a river dividing two counties has no power, under section 2843 of the Political Code, to grant the right to construct a new toll-bridge across such river, except upon compliance with the various requirements made necessary by sections 2870 and 2872 of that code.</p> <p>Id.—General Powers of Supervisors—Construction of New Toll-Bridge—Collecting Tolls on Existing Public Highway.—The boards of supervisors of the counties bordering upon such river, are not authorized, under their general powers, to enter into a contract for the construction of a new toll-bridge, for with respect to that subject the legislature, by sections 2843 et seq. of the Political Code, has made specific provisions limiting both the extent of the power and the mode of its exercise; nor can the power to grant a franchise to collect tolls upon an existing public and open bridge be implied from any general expression in the code defining their powers, because, in the absence of statute expressly granting it, they have no power to authorize the taking of tolls upon a public highway.</p> <p>Id.—Estoppel as Against Public—Invalid Ebanohise fob Toll-bridge. The doctrine of estoppel cannot be applied so as to validate, as against the public, grants of franchises to collect tolls upon a bridge constituting a public highway, made by boards' of supervisors in excess of the powers conferred upon them.</p>

APPEAL'from a judgment of the Superior Court of the City and County of San Francisco. George A. Sturtevant, Judge. The facts are stated in the opinion of the court. Rothchild, Golden & Rothchild, and J. A. Pritchard, for Appellant.

Court of Santa Clara County denying a motion for a new trial of an application for letters of administration upon the estate of a deceased person. P. F. Gosbey, Judge. The facts are stated in the opinion of the court.

<p>Will—Contest Before Probate—Time for Filing Written Opposition.—In the case of a contest of a will before probate, the Code of Civil Procedure nowhere in terms prescribes when the written opposition must be filed, in order to entitle it to be considered. Obviously, to be effectual as a contest before probate, it must be filed before the alleged will is admitted to probate, and the statute contemplates that it will be filed at or before the time designated in the notice for the hearing of the petition for probate. But the person proposing to contest before probate does not forfeit his right to do so merely by reason of failing to file his opposition at or prior to the time so designated in the notice for the hearing.</p> <p>Id.—Opposition Filed Before Time of Continuance of Hearing.—A written opposition to the probate, which was properly served on the attorney for the petitioner, and filed before the time to which the hearing of the petition for probate had been continued, is in time and must be considered, and is a bar to the admission of the will to probate, until disposed of in the manner provided by law.</p> <p>Id.—Taking Preliminary Testimony at Date of Hearing—Convenience of Witness—Testimony Taken Without Prejudice to Contestant.—Where the written opposition is so served and filed, the mere fact that the court, at the time designated in the notice for the hearing of the petition for probate, received testimony in support of the will sufficient to make a prima faeie case for its admission, does not defeat the right to maintain such contest, if the ■ court, at the time of taking such testimony, expressly declared that he did so preliminarily and merely for the convenience of witnesses and without prejudice to the rights of the contestant.</p> <p>Id.—Refusal to Entertain Contest—Contestant Prejudiced.—The refusal of the court to entertain a properly instituted contest of a will before its probate must be deemed prejudicial to the contestant, notwithstanding the law gives the contestant the right to institute a new contest at any time within one year after the alleged will is admitted to probate.</p>

<p>Specific Performance—Contract to Make Will.—To warrant the specific enforcement of a contract to make a will in favor of a particular person, the contract must be definite and certain and also just and fair.</p> <p>Id.—Orphans Taken from Charitable Institution—Promise to Care for as Children—Indefiniteness of Contract.—A contract ■entered into by a man and wife, at the time of taking two orphan minors from a charitable institution of which they were inmates, to the effect that they would take such children to their home, and would take good care of them and would rear and educate them in a suitable and proper manner, and would treat them in all respects as their own children, is too indefinite and uncertain to warrant a construction that would impose any obligation on the promisors to bequeath or devise any property to such children, or even to make them their heirs by legally adopting them as their own children.</p> <p>Id.—Subsequent Promise to Leave Property to Children—Uncertainty of Contract—Unfairness and Inadequacy of Consideration.—Promises subsequently made by such man and wife to such minor children, at various times while the latter were living with them as a part of their family, to the effect that if they continued to remain with them at their home, they should have their property, in consideration of which the children agreed to remain with them for an unspecified and indefinite time, and did so remain until their respective marriages, during all of such time conducting themselves as dutiful children and rendering dutiful services to them, will be refused specific performance as a contract to make a will in favor of such children, both on account of the vagueness and uncertainty of the promises of the children, and also because their promises did not constitute a fair and adequate consideration for the contract.</p> <p>Id.—Enforceability op Contract to Make Will.—Courts of equity will, under special circumstances, enforce a contract to make a will, or to make a certain testamentary disposition; and this may be done, even when the agreement was parol, where in reliance upon the contract the promisee has changüí Ms condition and relation so that a refusal to complete the agreement would be a fraud upon him.</p>

<p>Laches—Defense Need not be Pleaded—Denial of Dependant’s Motion for Judgment.—The defense of laches need not be pleaded, but when it appears from the evidence that the seeker of relief in equity has been guilty of laches, the court will deny such relief sua sponte without any pleading. The denial of defendant’s motion for judgment on the ground of laches amounts to a declaration and finding to the effect that the plaintiff was not guilty of laches.</p> <p>Id.—Statute op Limitations—Elements Constituting Laches.—Entirely independent of any statutory period of limitations, stale demands will not be aided in equity where the claimant has slept upon his rights for so long a time and under such circumstances as to make it inequitable to enter upon an inquiry as to the validity thereof, or to allow the remedy sought. Where such is the condition, the demand is, in a court of equity, barred by laches. Unless such conditions exist, the demand is not so barred.</p> <p>Id.—Question op Laches Primarily for Trial Court.—Whether such is the situation is a question in the first instance for the trial court, and if its conclusion thereon can reasonably be held to find sufficient support in the evidence, an appellate court should not interfere therewith.</p> <p>Id.—Cancellation of Deed—Evidence Insufficient to Establish Laches.—In an action to set aside a deed executed by the plaintiff" ■to her brother-in-law, on the ground that its execution was procured by means of duress and undue influence exercised by him upon her, it is held, upon a review of the evidence, that the trial court was justified in its conclusion that the defendant could not have been prejudiced by the plaintiff’s delay of a year and nine and one-half months in commencing the action, and that the plaintiff was not guilty of laches.</p> <p>IP.—Ratification of Deed—Taking and Recording Contemporaneous Instrument.—The mere taking and recordation by such plaintiff of an instrument executed by the defendant practically contemporaneously with the deed and as part of the same transaction, whereby the defendant undertook, in conjunction with the plaintiff, to execute a note secured by a mortgage of the granted premises, if the same became necessary to raise money for the plaintiff’s support, did not amount to a subsequent ratification of the deed.</p>

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

<p>Ejectment—Mesne Profits—Joinder of Claims in One Action.— Whatever may be the right in this state of one out of possession of land to sue for mesne profits alone without setting up possession or the recovery of judgment in ejectment, section 427 of the Code of Civil Procedure authorizes a plaintiff unlawfully dispossessed to unite in the same action a claim “to recover specific real property,” with one for “damages for the withholding thereof, or for waste committed thereon, and the rents and profits of the same.”</p> <p>Id.—Demand for Mesne Profits Without Prior Possession or Judgment in Ejectment.—Under that section, a demand for mesne profits may be enforced without prior possession or judgment in ejectment when the demand is.made in the very action of ejectment itself.</p> <p>Id.—Action for Mesne Profits—Allegations Showing Bight of Possession—Answer—Judgment.—Where a complaint alleges the ownership of land in the plaintiff, that the defendant wrongfully entered and dispossessed him and that he still keeps Mm out of possession, and also facts essential to a demand for rents and profits, but without praying for restitution of the premises, and the answer takes issue thereon, the court may grant the plaintiff any relief consistent with the ease made by the complaint and embraced within the issues, and the action may properly be regarded as one for the recovery of possession, as well as for rents and profits.</p> <p>Id.—Bestitution of Possession Pending Action—Judgment for Mesne Profits.—In such action, the fact that the plaintiff came into possession of the premises after the commencement of the action did not deprive Mm of his right to a judgment for mesne profits. Such a judgment may be rendered, without a judgment for restitution, or findings establishing the plaintiff’s right to restitution.</p> <p>Id.—Damages—Interest on Mesne Profits.—The plaintiff is entitled to recover in such action interest,on the amount found to be the value of the rents, issues, and profits, from the date of the restitution of the possession to the date of the judgment.</p> <p>Id.—Evidence of Damages—Bental Value.—The damages in such an action may be established either by showing the rents and profits actually received or by proving the rental value of the land.</p> <p>Id.—Failure to Bring Action to Trial for Five Tears—-Stipulation for Delay—Dismissal.—Under section 583 of the Code of Civil Procedure, the failure to bring an action to trial within five years after the answer had been filed will not necessitate its dismissal, if the parties had stipulated in writing for the extension.</p> <p>Id.—Judgment Against Estate—Payable in Course of Administration.—A judgment for mesne profits against the estate of a deceased person should be made payable in due course of administration.</p>

<p>Quieting Title—Defense of Purchase at Trustee’s Sale Under Deed of Trust—Evidence of Fraud in Sale Admissible Without Being Pleaded.—In an action to quiet title to land, in which the defendant by his answer sets up title through a sale by a trustee under a deed of trust, executed by the plaintiff’s predecessor in interest, the plaintiff, in avoidance of such defense, may offer evidence to show that the trustee’s sale and deed made in pursuance thereof were inv&lid by reason of fraud, without pleading the fraud in his complaint.</p> <p>Id.—Fraudulent Sale by Trustee—Absence of Default in Paying Interest—New Trial—Finding—Specifications of Insufficiency of Evidence.—In such action, where the court in effect found that the plaintiff was the owner of the land subject to such deed of trust, and that the attempted trustee’s sale for default in the payment of interest on the note secured by the trust deed was void because the payer of such note had had sufficient funds at the place of payment for the purpose of paying such interest, specifications in the notice of intention to move for a new trial on the minutes of the court, that the evidence was insufficient to justify the findings (1) that plaintiff is the owner of the premises, (2) “that the interest which defendant has in the premises is without right,” and (3) “that the money for the payment of the interest on said note was at all times ready at the place of payment,” are sufficient to present the question whether or not the finding on the subject of the default in the interest payments is sustained by the evidence.</p> <p>Id.—Recital of Default in Trustee’s Deed—Conclusiveness in Absence of Fraud.—A recital in a deed executed by a trustee in pursuance of a sale by him under a deed of trust given to secure the payment of a note, that the payer of the note was in default at the time of sale, is conclusive on the trustor and his successors in interest, where the deed of trust empowers the trustee to make it, in the absence of fraud of which the purchaser at the trustee’s sale had notice.</p> <p>Id.—Sale by Trustee in Absence of Default—Knowledge by Purchaser-—-Fraudulent Sale—Evidence Insufficient to Establish Fraud.—The facts that the payee of the note, knowing that there had been no such default, declared the principal and interest due and caused the trustee to make a sale under the power by falsely informing him that the payer was in default, and that the payee himself bought in the property at the trustee’s sale, and that the owners of the property were not informed of the sale or of the notice given thereof and had no knowledge of it, would be sufficient to avoid the trustee’s sale and deed. It is held, however, that the evidence is insufficient to show that the payer of the note was not in default in the payment of interest, and that the payee knew he was not in default.</p> <p>Id.—Demand for Payment of Note—Default in Payment.—Under section 3130 of the Civil Code, no demand of payment upon the payer of a promissory note is necessary in order to create a default in payment.</p> <p>Id.—Negotiable Instrument Payable at Specified Plage—Ability and Willingness to Pay—Equivalent to Offer of Payment—• Funds for Payment Essential.—The provision- of section 3130 of the Civil Code, to the effect that if a negotiable instrument is by its terms payable at a specified place, and the principal debtor thereon is able and willing to pay it there at maturity, such ability and willingness are equivalent to an offer of payment upon his part, cannot be complied with by a mere passive ability and willingness. There must be an ability to pay manifested by providing funds at the place of payment in the hands of some person there present who-is authorized to pay it on the debt and is willing to do so.</p> <p>Id.—Insufficient Evidence of Ability and Willingness to Pay.— Where a' promissory note is made payable at the office of a specified person, mere evidence that such person, or some other person in his office, had money enough to pay the interest on the note at any time had it been demanded, without any showing that the money belonged to the payer of the note, or had been provided or placed there by him, or any other person, for the purpose of paying the interest, or that the proprietor of the office, or any other person there, was willing to pay it out on the interest, or had been authorized or instructed to do so, or that any of them intended to do so if the interest had been demanded, is insufficient to establish the equivalent of an offer to pay the interest, under section 3130 of the Civil Code.</p>

<p>Pledge—Refusal to Return Property—Single Cause of Action— Judgment for Return—Bar to Subsequent Action for Damages—The wrongful refusal of a pledgee to redeliver the pledged property creates but a single cause of action in favor of the pledgor, and a judgment in his favor in an action for the return of such property is a bar to a subsequent action to recover damages for wrongfully withholding its possession, or for the repayment of attorney’s fees incurred in the prior action.</p> <p>Id.—Depreciation in Value of Property During Litigation.—The continued withholding of stocks and bonds after the bringing of action to enforce their delivery, pending the litigation and up to the time of the enforcement of the decree, is not a new wrong redressible by a new action, but is simply a continuation of the original wrong for which the only redress given by the law must be had in the original action, and consequently a second action will not lie for the damage due to depreciation in the value of the stocks or bonds occurring between the time of the commencement of the first action and the determination of such action on appeal.</p>

<p>Mortgage—Foreclosure—Statute or Limitations—Mortgage Executed Out or State—Absence or Mortgagor ritOM State.—Under subdivision 1 of section 339 of the Code of Civil Procedure, the time within which an action can be brought to foreclose a mortgage securing a note, each of which were executed out of the state, is two years from the maturity of the indebtedness. So far as concerns the original mortgagor, under section 351 of that code, the time during which he was absent from the state is not a part of the time limited for the commencement of the action.</p> <p>Id.—Waiver of Statute by Mortgagor—Subsequent Purchasers or Encumbrancers not Affected.-—A mortgagor cannot, by waiving the bar of the statute of limitations, affect the right of a subsequent purchaser or encumbrancer of the mortgaged premises to insist, as to himself, that the action to foreclose the mortgage was not brought in time. This rule applies not only to eases where the waiver has been by express agremeent, but also to cases where the original mortgagor has lost his right to plead the statute by absenting himself from the state.</p> <p>Id.—Purchaser at Execution Sale Against Mortgagor—Commencement of Running of Statute.—Where the mortgaged premises were purchased at an execution sale, after the maturity of the mortgage indebtedness, the statute of limitations commenced to run in favor of the execution purchaser, who was present in the state, and against the right of the mortgagee to foreclose the mortgage as to him, at least as early as the date on which the sheriff’s deed to such purchaser was recorded.</p> <p>Id.—Quieting Title by Execution Purchaser—Plaintiff not a “Resident” of State—Stipulation.—In an action by such subsequent purchaser to quiet his title to the mortgaged premises as against the successors in interest of the mortgagee, a stipulation that the plaintiff had never been a “resident” of the state of California, is in no wise inconsistent with the fact of his physical presence there, and does not preclude him from setting up the bar of the statute against the mortgage. ■</p> <p>Id.—Nonresidents Entitled to Benefits of Statute.—-Section 351 of the Code of Civil Procedure does not deprive nonresidents of the benefits of the statute of limitations. It merely excludes from computation the time during which any defendant, resident or nonresident, may have been out of the state.</p> <p>Id.—Judgment Quieting Title—Payment of Mortgage Indebtedness —Appeal from Order Denying New Trial.—In such action, the contention that the plaintiff should not have had a judgment quieting his title without paying or offering to pay the mortgage debt, even though an action to foreclose the mortgage be barred, involves a consideration of the claim that the findings do not support the judgment. Such claim might properly be made -on an appeal from the judgment, hut is not involved and cannot be considered on an appeal from an order denying a new trial.</p>

<p>Trust in Land—Application of Bents and Profits forJTse of Minor During Minority—Direction for Accumulation of Surplus— Termination of Trust—Devolution of Property upon Death of Minor.—A deed conveying land in trust, to hold, manage, and control the same, to collect the rents, issues, and profits thereof, to make all necessary repairs, improvements, etc., and “to pay out of the balance of the proceeds of said premises, all sums necessary for the proper education, maintenance, and support of” the minor son of the grantor, “until he shall have arrived at the age of twenty-one years,” and giving to the trustee “full power and discretion as to what may be necessary for the proper education, maintenance, and support of the said minor, in so far as the same relates to the trust fund hereby created,” with the power to sell the property, reinvest the proceeds, and to do all things necessary or proper in the management of the trust fund, and further providing, that in the event and upon the condition that the said minor should arrive at the age of twenty-one, the trust should terminate and the property conveyed, or the trust fund then in the hands of the trustee should be and become the absolute property of said minor, but in the event he should die before reaching that age, such property, or the trust fund which might exist at the date of his death, should be and become the property of other persons specified, who were not minors, creates a trust solely for the benefit of such minor, terminable upon Ms arriving at the age of majority or upon his death prior to such time, which is valid under subdivisions 3 and 4 of section 857 and section 724 of the Civil Code.</p> <p>Id.—-Imperative Direction to Apply Bents for Use of Minor—Discretion of Trustee.—The requirement of such deed that the trustee shall apply to the use of said minor so much of the net profits of the property as is necessary for his proper education, maintenance, and support during his minority, is absolute and imperative, leaving no discretion whatever in the trustee other than one to determine what things are necessary or proper to accomplish the education, maintenance, and support commanded. It will be assumed that the trustee will exercise that discretion fairly and honestly, with a view to provide so far as the net profits will warrant, for such education, maintenance, and support as are reasonable and proper.</p> <p>Id.—Implied Direction for Accumulation of Surplus.—Fairly construed, such deed requires any possible surplus of thg net profits to accumulate for the benefit of the minor during his minority, as authorized by subdivision 4 of section 857 of the Civil Code, although no specific direction is given the trustee “to accumulate” them.</p> <p>Id.—Devolution oe Accumulations upon Death oe Minoe During Minority.—It is immaterial to the validity of the trust for such minor, that under other provisions of the deed as to the devolution of the property upon the termination of the trust by his death before his majority, such accumulations, if any, will become the property of others IVho are not minors and who are persons in whose favor a direction to accumulate would not be valid. That result is a mere incident to the exercise by the trustor of the right given by the law to transfer the property subject to the execution of the trust.</p>

<p>APPEAL from an order of the Superior Court of the City and County of San Francisco directing the payment of a family allowance from the estate of a deceased person until the return of the inventory of the estate. Thomas F. Graham, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Mechanics’ Liens—Lien por Street Improvement.—Section 1191 of the Code of Civil Procedure gives a lien to any person who, at the request of the owner of a lot in any incorporated city or town, “grades, fills in, or otherwise improves the same,” or the street or sidewalk in front of such lot, or who “makes any improvements in connection therewith.”</p> <p>Id.—Notice op Completion op Work not Esquired.—Section 1187 of the Code of Civil Procedure, as it existed prior to the revision of the Mechanics’ Lien Law in 1911 (Stats. 1911, p. 1313), requires a notice of completion of work to be filed by the owner in every ease in which a lien may be filed under section 1183, but is silent as to liens under section 1191; therefore in case of improvements under the latter section a notice of completion is not required.</p> <p>Id.—Time for Filing Lien for Street Improvement—Statement op Lien.—The proviso of section 1187 of that code, as then existing, “that in any event all claims of lien must be filed within ninety days after the completion of said . . . improvement,” is applicable to any and every improvement for which a lien is given, including those under section 1191 as well as those under section 1183, and the provisions of that section prescribing the form of the statement of liens and requiring that such statement be filed, apply to all such liens. Id.—Time for Commencement of Action to Enforce Lien.—Section 1190 of that code, as then existing, providing that “no lien provided for in this chapter binds any . . . improvement . . . for a longer period than ninety days after the same has been filed, unless proceedings be commenced in a proper court within that time to enforce the Same,” applies to actions for the enforcement of liens for work done under section 1191.</p>

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

<p>Rescission of Exchange of Land—Judgment fob Restoration of Property—Appeal by Plaintiff from Other Portions of Judgment—Acceptance of Deed Pending Appeal.—Where a judgment was rendered in an action for the rescission of an exchange of land on the ground of fraud and deceit, directing a restoration to each of the parties of the property formerly owned by him, and also decreeing the payment by the plaintiff to the defendant of a certain sum of money laid out by the defendant upon the land received by him on the exchange, and authorizing the defendant to retain the amount of the income derived by him therefrom, and refusing to allow the plaintiff costs, the plaintiff, by accepting a deed to the property ordered to be restored to him, pending an appeal by him from those portions of the judgment that were against him, did not lose his right to further prosecute the appeal.</p> <p>Id.—Liability of Defendant for Rents—Reimbursement for Outlays.—Where the court found that the plaintiff was defrauded in the exchange, the judgment for the restitution of the property should also require the defendant to account to the plaintiff for the rents of the property received by him on the exchange, after reimbursement for his outlay thereon.</p> <p>Id.—Arbitrary Fixing Amount of Outlay.—Where the judgment decreed that the plaintiff should pay the defendant the amounts expended by him on account of the property received on the exchange, “provided said amounts are determined by agreement of the said parties or proofs to be presented to this court, within ten days,” it was error for the court, in the absence of such agreement or proofs, to arbitrarily fix the amount so expended, and to enter judgment against the plaintiff for such amount.</p> <p>Id.—Costs—Plaintiff Entitled to as Matteb of Eight.—Notwithstanding such action was in equity, its purpose was the recovery of real property, and it involved the title of real estate. In such action the plaintiff, upon a judgment in his favor, was entitled to his costs as a matter of right, under subdivisions 1 and 5 of section 1022 of the Code of Civil Procedure.</p>

<p>The facts are stated in the opinion of the court.</p> <p>T. T. C. Gregory, Gaillard Stoney, and Orville C. Pratt, Jr., for Appellant.</p>

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

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

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

<p>Appeal by New Method—Review of Evidence—Negligence—Failure to Embody Evidence in Brief or Otherwise Identify It.—On an appeal taken by the new method by the plaintiff from a judgment of nonsuit in an action to recover damages for the alleged negligence and want of skill of the defendant, as a physician and surgeon, it will be assumed that there was no evidence of such want of care or skill, when counsel for the appellant omits to print in his brief any part of the testimony on that subject, as required by section 953c of the Code of Civil Procedure, or to refer to any part of the record where it is contained, or to argue the question at all.</p> <p>Id.—Continuance of Trial—Attendance of Witness—Want of Diligence—Discretion.—It was not an abuse of discretion for the trial court to refuse to continue the trial of such case from the afternoon of the last day thereof until the following morning, in order to give the plaintiffs an opportunity to secure the attendance of three additional unnamed witnesses, when there was an entire absence of any showing of diligence made in support of the application for continuance, and no affidavit was made or proposed to be made, and it was not shown that any subpoena had been issued or served on them, or that they had promised to attend then, or at any other time, or that they would, if examined, testify to any material fact, or that they knew anything about the facts of the case, or what counsel expected to prove by them.</p> <p>Id.—Discretion of Trial Court Respecting Continuances.—Continuances should not be granted without good cause, and the granting or refusing thereof is usually a matter largely within the discretion of the trial court. An abuse of discretion must be shown to justify a reversal of the judgment because of a ruling on such matters.</p> <p>Id.—Notice of Appeal—Notice to Clerk to Prepare Transcript.— The notice to the clerk requesting the preparation of a transcript on appeal, being the notice provided for by section 953a of the Code of Civil Procedure, given in the form there prescribed and without other appropriate words, is not a good notice of appeal.</p>

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

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

<p>Life Insurance—Date of Issuance of Policy—Exemption from Liability for Suicide Within One Year.—A condition in a policy of life insurance, providing that the insurance company shall not be liable in the event of the insured’s death by his own act during the period of one year after the “issuance of this policy,” does not exempt the company for a death by suicide occurring less than one year after the day when the policy was in fact signed by the officers of the company, but more than one year after the day designated in the policy as its date; where it appears from other provisions of the policy, read in connection with the application for insurance which was made a part of the contract, that the latter date was intended to be and was adopted by both parties as the day when the risk attached.</p> <p>Id.—Construction op Writing—Usual Meaning op Word mat be Disregarded.—In construing any writing, the usual definition of a single word is not a conclusive test of the meaning to be attributed to it in the connection in which it is found. The sense in which the parties employed the particular word or phrase in question must be ascertained from an examination of the entire instrument, read in the light of the circumstances surrounding its execution.</p>

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

APPLICATION to the Supreme Court to transfer to it a proceeding in habeas corpus, after the decision therein of the District Court of Appeal of the Third District. The facts are stated in the opinion of the court. The opinion of the District Court of Appeal discharging the petitioner is reported in 20 Cal. App. 360, [129 Pac. 295],

<p>APPLICATION for a Writ of Habeas Corpus directed, to the Chief of Police of the City of Los Angeles.</p> <p>The facts are stated in the opinion of the court. •</p>

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

<p>Reformation of Deed—Prior Demand not Necessary to Action.—An action will lie in this state for the reformation of a deed without a demand previously made.</p> <p>Id.—Prior Demand When Essential to Cause of Action.—Wherever a right arises or is dependent upon demand, that is, when the demand is an integral part of the cause of action, it must be made before action brought. But when it is an unconditional duty of a defendant to perform a certain act, the suit itself is the only demand necessary. In some cases, no other consequences follow a failure to make demand before suit brought, than that the plaintiff will not be allowed to recover his costs.</p> <p>Id.—Quantity of Land Conveyed—“More or Less”—Mistake as to Quantity.—The inclusion in a deed of the words “more or less” in the description of the quantity of land conveyed, does not preclude a reformation of the deed for mistake in not embracing all the acreage agreed upon.</p> <p>Id.—Value of Omitted Land—Reformation not Refused Because of Smallness.—The fact that the value of the omitted land, upon the basis of the purchase price, was only eighty-three dollars, will not in itself prevent a court of equity from granting a reformation of the deed.</p> <p>Id.—Statute of Limitations—Laches—Error Patent on Face of Deed.-—Where the omission to convey all the land agreed upon was patent upon the face of the deed, the mere fact that the grantee failed to discover it does not charge him with laches, or set the statute of limitations in motion prior to the discovery of the mistake.</p>

<p>The facts are stated in the opinion of the court.</p> <p>Gibson, Dunn & Crutcher, and Edward E. Bacon, for Appellant.</p>

<p>Will—Mental Incompetency—Undue Influence — Evidence — Conduct and Statements of Testator Shortly After Executing Will.—On a contest of a will on the ground of the mental ineompetemey of the testator and the undue influence of his wife, evidence that about ten or fifteen minutes after the will had been fully executed, the testator returned to 'the ofSee of the person who had drafted it in an apparently nervous condition and in a state of physical collapse, and of statements then made by him to the effect that matters would have been extremely uncomfortable at his home if the will had not been properly executed, wias competent solely upon the issue as to the testator’s mental condition, and was incompetent to prove the undue influence, and an instruction so limiting its effect was properly given.</p> <p>Id.-—Conduct and Statements not Part of Ees Gestae.—The conduct and utterances of the testator on such occasion were not part of the res gestae of the execution of the will, so as to render evidence thereof competent on the issue of undue influence, and the mere fact that but a trifling period of time elapsed between the testamentary act and this occurrence,' does not render the evidence admissible for such purpose.</p> <p>Id.—Res Gestae Defined.—The res gestae are those circumstances which are the undesigned incidents of particular litigated acts, and are admissible where illustrative of such acts. These incidents may be separated from the act by lapse of time more or less appreciable. Their sole distinguishing feature is that they should be necessary incidents of the litigated act in the sense that they are part of the immediate preparations for, or emanations from, such acts, and are not produced by the calculated policy of the actors. They must stand in immediate causal relation to the act, a relation not broken by individual wariness seeking to manufacture evidence for itself. Declarations which are the immediate accompaniments of an act, their immediateness being tested by closeness, not of time but by causal relation, are admissible as part of the res gestae.</p> <p>Id.—Facts Constituting Undue Influence—Evidence of—Declarations of Testator.—In order to establish that a will has been executed under undue influence, it is necessary to show, not only that such undue influence has been exercised, but also that it has produced an effect upon the mind of the testator, by which the will is not the expression of his own desires. The external facts constituting the exercise of undue influence must be established by other evidence than the declarations of the testator. His declarations are incompetent to show either that the influence was exercised, or that it affected his actions, and are inadmissible, except as they may illustrate his mental state, and give a picture of the condition of his mind contemporaneous with the declarations themselves.</p> <p>Id.—Immaterial Error—Insufficiency of Evidence of Undue Influence.—Even if such subsequent conduct and statements of the testator were properly part of the res gestae of the execution of the will, the error of the trial court in refusing to admit the evidence thereof on the issue of undue influence was immaterial, when the other evidence in the case fell far short of establishing that the will was the result of undue influence exerted upon the testator by his wife in such manner as improperly to influence him in the making of the will. In the present ease, such other evidence is held insufficient to show that the will was the result of the wife’s undue influence.</p> <p>Id.—Undue Influence must Operate at Time Will was Made.—A duly executed will cannot he set aside on the ground of undue influence, unless there be proof of a pressure which overpowered the mind and bore down the volition of the testator at the very time the will was made.</p>

<p>Will—Estate of Decedent cannot Take Under Will.—The estate of a deceased person is not a person or entity which can take under a will.</p> <p>Id.—Bequest to Estate of Person Named—Construction.—A bequest of the residue of the property of the testatrix to “father Glass’s estate,” the person whose estate was indicated being alive at the date of the will but having predeceased the testatrix, cannot be construed as a bequest to such person if alive, and if not, to his legal heirs, or his devisees or legatees as the case may be.</p>

<p>The facts are stated in the opinion of the court.</p> <p>L. E. Clawson, M. M. Meyers, Howard Green, and E. B. Drake, for Appellant.</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>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>Corporation—Bepur chase of Stock.—Judgment reversed on the authority of Schulte v. Boulevard Gardens Land Company, ante, p. 464.</p>