Volume 165 — California Reports

<p>Mortgage—Note Secured not Negotiable Instrument—Notice of Mortgage.—In this state, where a note is secured by a mortgage on land, both being executed at the same time, or as parts of one transaction, the note, although negotiable in form, is not negotiable in law, where the purchaser takes it with knowledge of the existence of the mortgage.</p> <p>Id.—Recital of Security is Notice to Indorsee.—A recital in the note that it was secured by such a mortgage is notice to an indorsee of the fact that it was so secured.</p> <p>Id.—Purchaser of Note Before Maturity—Indorsee Takes Subject to Equities of Mortgagor—Partial Want of Consideration— Future Advances.—A purchaser of such note before maturity, although the consideration paid therefor was the full face of the note, is not entitled to the protection which the law gives to an indorsee of a negotiable note, in good faith, for value and before maturity; and the successor in interest of the mortgagor in the mortgaged premises, unless he is estopped so to do, may set up as a defense in an action to foreclose the note and mortgage, a partial want of consideration, arising out of the fact that the payee of the note, which was given to secure future advances, actually advanced less than the face value of the note.</p> <p>Id.—Recital of Consideration in Note—Impeachment of Consideration of Non-negotiable Instrument.—A recital in a note that it was given for value received is merely prima facie evidence of a valuable consideration sufficient to support the promise to pay, although, since the contract is in writing, such consideration would be presumed without the aid of the recital. But neither the recital nor the presumption is conclusive upon the maker, and the consideration may always he impeached, if the instrument is not negotiable, notwithstanding such presumption and recital.</p> <p>Id.—Deed of Trust—Becital of Priority of Lien of Mortgage for Stated Amount—Mortgage Given to Secure Future Advances —Intent of Parties.—Where a deed of trust given to secure the purchase price of land, recites that the same was subject to the “lien of a mortgage in the sum of three thousand dollars,” in favor of a person named therein to whom a note negotiable in form for that amount, secured by such mortgage, bad been given, and all the immediate parties to the transaction, including the beneficiary of the trust-deed, understood that no money was loaned on the mortgage at the time of its execution, and that it was to be advanced subsequently, although such understanding was not stated in the mortgage, it must be concluded that it was not the actual intention of such parties, including the beneficiary, that the mortgage should be a valid lien at any time for a sum larger than had been advanced thereon at such time.</p> <p>Id.—Assignment of Mortgage to Bona Fide Purchaser for Full Value—Estoppel of Beneficiary Under Deed of Trust from Impeaching Amount Dub on Note.—Where, however, the payee of such note, prior to its maturity, and after the recordation of the mortgage and deed of trust, assigned it for its full face value, and the assignee took it, relying upon such recital in the deed of trust, and upon a written statement of the mortgagors and trustors declaring that the mortgage was “given for value received, and that there are no offsets to the same,” and without notice or knowledge that the note was given merely to cover future advances, or that the mortgagors had not received the full amount named in the note, the beneficiary of the deed of trust, after acquiring title to the land in pursuance of a sale under the power contained therein, is estopped, by reason of such recital, under the provisions of subdivisions 2 and 3 of section 1962 of the Code of Civil Procedure, from denying that the note, in the hands of the assignee, is good for the full face value thereof. This result follows, although the assignee made no inquiry, personally, in regard to the amount due on such note, of the mortgagors, or of the beneficiary, or of the trustee.</p> <p>Id.—Bule of Caveat Emptor Inapplicable.—Under such circumstances, the rule of caveat emptor, applicable to the purchase of a nonnegotiable obligation for the payment of money, does not obviate the estoppel.</p> <p>Id.—Becital in Mortgage of Priority of Another Mortgage—Estoppel of Mortgagee.—Where a person accepts a mortgage which recites that it is subject to another mortgage on the same property, he is estopped thereby and is not allowed to defeat or impair the other mortgage by denying its priority or validity at the time he took it to the amount of it as recited in his own mortgage.</p> <p>Id.—Beneficiary Under Deed of Trust Similar to Second Mortgagee.—The beneficiary of the deed of trust stood in the same situation as a second mortgagee, with regard to the recital therein, and his subsequent purchase of the land under the power in the deed did not change his position in this respect.</p> <p>Ib.—Presumption op Following Ordinary Course of Business—Note and Loan Presumed Contemporaneous.—In the absence of anything in the language of the recital, or in the note or mortgage to which it refers, suggesting the contrary, the assignee of the note was justified in assuming that the ordinary course of business had been followed at the time of the execution of the note, and that the loan of the money was contemporaneous therewith.</p> <p>Id.—Erection of House on Mortgaged Land not Notice to Assignee That Note was for Future Advances.—The mere fact that the assignee, before buying the note, had seen a house in process of erection on the mortgaged property, was not sufficient to impute knowledge of the fact that the mortgage was made to secure money for use in the erection of the building, or of the fact that it would not be loaned until required for payment of the cost thereof.</p> <p>Id.—Negligence op Beneficiary—Omission to Recite Real Character op Note.—The beneficiary under the deed of trust, knowing that the mortgage was taken for future advances and that it was to be paramount to his claim under such deed, was negligent in not causing the recital in the deed to state that such was the character of the mortgage, and his interest should be deemed subject to the entire mortgage, in the hands of the assignee, under the principle embodied in section 3543 of the Civil Code, that “where one of two innocent persons must suffer by the act of a third, he by whose negligence it happened must be the sufferer.</p>

<p>Quieting Title—Land Conveyed to State for Taxes—Holder of Mere Bight .of Redemption cannot Maintain Action.—One having the mere inchoate right to redeem land, the title of which has been conveyed to the state of California for nonpayment of taxes, cannot maintain an action to quiet title as against a party in possession under claim of title.</p> <p>Id,—Plaintiff in Action must Show Title in Himself.—A plaintiff in an action to quiet title must fail unless he shows title in himself, and he is not in a position to complain if some one else, even when that person is also without title, asserts an interest in the property.</p>

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

<p>APPLICATION for a Writ of Mandamus directed to the Secretary of State of the State of California.</p> <p>The facts are stated in the opinion of the court.</p>

<p>APPEAL from an order of the Superior Court of Shasta County refusing to vacate a judgment and open a default. J. E. Barber, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

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

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

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

<p>APPEAL from an order of the Superior Court of Los Angeles County granting a new trial. Frederick W. Houser, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Criminal Law—Murder op Nonunion Workman by Union Striker^— Evidence Showing Motive.—On the trial of a member of a labor union, that was conducting a strike against a manufacturing corporation, for the murder of a nonunion employee of the latter, the prosecution, for the purpose of showing a motive for the killing, may prove the existence of the strike, the connection of the defendant with the organization conducting it, and the employment of the deceased as a nonunion workman by the corporation. The evidence in that connection should be limited to a general showing of the relation of the parties.</p> <p>Id.—Evidence of Contemporaneous Assault on Other Nonunion Workman.—In such prosecution, the fact that the defendant, immediately following the firing of the shot1 that killed the deceased, made an assault upon a person who was then accompanying him, and who was also a nonunion, employee of the corporation, was admissible in evidence for the purpose of showing the motive and intent of the defendant.</p> <p>Id.—Evidence op Separate Offenses Where Admissible.—Where two offenses are part of a single transaction, every element of defendant's conduct in that transaction can be shown to the jury for the purpose of illustrating his motive and intent in committing the act which was the basis of the charge against him.</p> <p>Id.—Dependant Witness in Own Behalf—Cross-examination to Show Intent to Kill.—Where the defendant in such prosecution, as a witness in his own behalf, testified on his direct examination, that he had never seen the deceased and his companion before the night of the shooting, and that he shot his gun without aiming at and without intending to kill him, and merely to scare him and to make him stop while he was running away, it was proper, on cross-examination, to ask the defendant any questions so, framed as to elicit answers which might tend to show that he had in fact entertained and acted upon the purpose of killing or injuring the deceased.</p> <p>Id.—Relation ' of Dependant to Union Conducting Strike—Impeachment.—In such connection it was permissible to cross-examine the defendant upon his relation to the strike as an “organizer” for the union, and as to his movements on the night of the homicide, and to draw out Ms statements of the occurrences leading up to the shooting. If, in any of his-answers, he testified in such manner as to lend support te his declaration made on direct examination, that he had not intended to shoot the deceased, the prosecution was not bound by such answers, but had the right to impeach him by proof of contradictory statements made at other times.</p> <p>Id.—Statements Made by Defendant Before Grand Jury After Arrest—Involuntary Statements—Evidence of Statements Inadmissible—Constitutional Law.-—"Where the defendant, after being arrested on suspicion of being concerned in the killing, and while he was held in custody in the county jail, but before any formal charge had been made against him, was taken into the presence of the grand jury by the sheriff, and was sworn and examined by that body concerning his actions before and at the time of the shooting, without being informed of Ms constitutional right to decline to be a witness against himself, nor warned that his statements might be used against him, it cannot be said that his submission to the interrogation was in any fair sense voluntary, and the testimony so given by Mm cannot be used against him. The admission of such testimony is in violation of the constitutional right of every person, secured by article I, see. 13, of the state constitution, not to “be compelled, in any criminal ease, to be a witness against himself."</p> <p>Id.—Defendant Tried upon Information.—It is immaterial on the question of the admissibility of the testimony so elicited, that the grand jury did not return an indictment, and that the defendant was in fact tried upon an information.</p> <p>Id.—Construction of Section 4% of Article VI of Constitution— Review of Evidence on Appeal-—Error in Admitting Evidence not a Miscarriage of Justice.—It is held, by Sloss, J., Angellotti, J., and Shaw, J., that in view of the terms of section 4% of article VI, added to the constitution by amendment in 1911, and providing that “no judgment shall be set aside, or new trial granted in any criminal ease on the ground of misdirection -of the jury or the improper admission or rejection of evidence, or for error in any matter of pleading or procedure, unless after an examination of the entire cause including the evidence, the court shall be of the opinion that the error complained of has resulted in a miscarriage of justice,” and upon a consideration of the entire case, including the evidence, the error in the admission of the testimony so given by the defendant before the grand jury, cannot be said to have resulted in a miscarriage of justice, and that it did not warrant a reversal.</p> <p>Id.—Abrogation of Rule Presuming Prejudice from Error of Law— Effect of Section on Constitutional Rights of Defendant.— It is also held, by Sloss, J., Angelotti, J., and Shaw, J., that section 4% of article VI of the constitution must be given at least the effect of abrogating the old rule that prejudice is presumed from any error of law, and that where error is shown it is the duty of the court to examine the evidence and ascertain from such examination whether the error did or did not in fact work any injury, and that the mere fact of error does not make out a prima facie ease for reversal which must be overcome by a clear showing that no injury could have resulted. It is further held, that the section was not designed to repeal or abrogate the guaranties accorded persons accused of crime by other parts of the constitution, or to overthrow all statutory rules of procedure and evidence in criminal cases, but that every invasion of even a constitutional right does not necessarily require a reversal.</p> <p>Id.—Section Applicable to Offenses Committed Prior to its Adoption—Ex Post Pacto Laws.—It is further held, by Sloss, J., Angellotti, J., and Shaw, J., that section 4% of article VI, as so construed, is applicable to offenses committed prior to its adoption, and is not obnoxious to the provision of the federal constitution against ex post facto laws, as it does not affect the crime with which the defendant' was charged, the punishment prescribed therefor, or the quantity or degree of proof necessary to establish his guilt, but merely alters the rules for the disposition of an appeal after trial. Such a change is permissible on the ground that it merely goes to matters of remedy or procedure.</p> <p>Id.—Error in Admitting Evidence Cured by Testimony of Defendant. It is held by Lorigan, J., Melvin, J., and Henshaw, J., that the present ease does not require a construction of section 4% of article VI of the constitution and its application under the evidence, for the reason that the error in admitting in evidence the statements made by the defendant before the grand jury was cured by testimony to substantially the same effect that was given by the defendant while a witness in his own behalf.</p>

<p>Undue Influence—Assignment of Life Insurance Policies—Gift by Daughter to Father—Finding—Conflict of Evidence.—In an action involving the validity of an assignment by a daughter to her father of certain paid up policies of life insurance, which the trial court found was executed by the daughter without consideration, and as the result of undue influence, coercion, and menace exercised by the father, it is held, upon a review of the evidence, that while the direct evidence in the ease strongly preponderates in favor of the fairness of the gift by the daughter to the father, yet where consideration is paid to the character of the daughter, her habits of life, the restraint put upon her under her father’s roof, her nervous condition, her apparent inability because of her habits to maintain herself, and the final fact that by this gift she is irrevocably parting with nearly half of her small property, the appellate court cannot hold that the trial court was not justified in declaring the gift to have been one not freely and voluntarily made.</p> <p>Id.—Evidence—Striking Out—Voluntary Evidence.—It is not error for the trial court to refuse to strike out the voluntary evidence of a witness, when the evidence would have been-admissible if given in response to direct questions asked the witness.</p> <p>Id.-—Threats Made to Daughter—Mental Condition.—In such action, evidence of certain asserted threats made to the daughter by her stepmother, and of the condition of the daughter’s mind, shortly before the execution of the assignment, is admissible.</p> <p>Id.—Refusal to Answer—Humiliation of Witness.—A witness may properly refuse to answer questions, if the answers tended unnecessarily to humiliate the witness.</p> <p>Id.—Evidence of Physical and Mental Condition.—A witness may testify to the physical and mental condition of the daughter at a specified time, and that she was then purturbed and in tears; and the fact that the witness did not know the cause of the daughter’s distress, other than what she had been told, did not render her evidence inadmissible.</p> <p>Id.—Evidence of Coercion and Undue Influence to Impeach.Letter. The daughter may testify that a letter written and signed by her after the execution of the assignment, and on its face purporting to ratify it, was the result of the coercion and undue influence of her father.</p> <p>Id.—Exclusion of Letter not Voluntary Act of Daughter.—It was not error for the court to refuse to admit in evidence a typewritten document purporting to he a letter from the daughter to her trustee, which was not signed by her nor sent to the addressee, where the daughter had testified, and the letter itself bears internal evidence of the fact, that it was not her free voluntary act, and that only some of its expressions were hers and others were those of her father.</p>

<p>Public Officers—County Clerk of Sacramento County—Bight to Pees for Collecting Hunting Licenses.—Under section 2 of the act to regulate and license the hunting of wild birds and animals, (Stats. 1909, p. 663), the county clerk of Sacramento County, whose term of office commenced after such act went into effect, is entitled to retain as his personal property, the ten per centum of the amount ' accounted for by him, payment of which had been made him by the fish and game commission out of the game preservation fund.</p> <p>Id.—Increase of Official Salaries—Constitutional Limitation—Increase by Method of Pees.—As the only constitutional limitation upon the legislature in fixing the compensation of officers is a prohibition against increasing their salary or emoluments during the term for which the officers are elected (Canst., art. XI, see. 9), it is permissible for the legislature to make any such increase to apply to future terms. Such an increase may be made by the allowance of fees based upon a per centum of the amounts received for the issuance of licenses.</p> <p>Id.—Right to Fees Unaffected by Amendments to Political Code.— The amendments enacted subsequent to the passage of the Game License Act to sections 4290 and1 4235 of the Political Code, which fixed the salary of such county clerk, and declared that the same should be in full compensation for all services of every kind rendered by him, made no change in the said sections as they previously stood, which could affect the right of the county clerk to retain the fees so received by him for his services in collecting hunting licenses.</p> <p>Id.—Increase of Compensation and Number of Deputies of Clerk.-—• The fact that section 4235 of the Political Code was amended two . days after the approval of the Game License Act, by increasing the compensation and number of deputies of the county clerk in the class of counties to which Sacramento belonged, does not necessitate the conclusion that such increase was designed to cover the added service required in the issuance of hunting licenses.</p> <p>Id.—Statute Amended in Part—Rule of Construction.—Where a section or part of a statute is amended, the statute as a whole is not to be considered as having been repealed and re-enacted in the amended form; but the portions which are not altered are to be considered as having been the law from the time when they were enacted.</p>

<p>Trademark—Certificate of Secretary of State.—A certificate of the secretary of state merely declaring that a certain person has filed, “a claim to a trademark to be used in connection with van, truck, and storage business. Said trademark consists of the words ‘Los Angeles Van, Truck & Storage Company,’ a description of which is more fully set forth in the specifications attached to and made a part of the claim to trademark above referred to,” cannot be construed as a certificate awarding an exclusive trademark in the indicated name.</p> <p>Id.—Name Deferring to Place and Nature of Business.—Under section 991 of the Civil Code, the name “Los Angeles Van, Truck and Storage Company,” cannot be appropriated as an exclusive trademark, for the reason that it has reference in its first words to the place of business, and in the remaining words to a description of the business.</p> <p>Id.—Equitable Belief—Invalid Trademark.—A person attempting to appropriate such name as a trademark, cannot obtain equitable relief based merely upon an asserted invasion of his property rights therein as a trademark.</p> <p>Id.—Unfair Trade—Belief Based upon Fraud and Deceit of Competitors—Fraud must be Pleaded.—In the interest of fair commercial dealing, courts of equity, where a person has been first in the field doing business under a given name, will protect him to the extent of making competitors use reasonable precautions to prevent deceit and fraud upon the public and upon the business first in the field. Relief in such cases rests upon the fraud or deceit which the later comer into the business field is practicing upon the earlier comer and upon the public. Such fraud and deceit is not presumed but must be pleaded and shown.</p> <p>Id.—Similarity of Names not Conclusive of Fraud.—The use by the second comer in the business field of a name similar to that used by the first comer is not in itself sufficient to establish such fraud. There must be such a misuse of the name by advertising and soliciting as amounts to fraud, and without proof thereof no relief may be granted.</p> <p>Id.—Conspicuous Advertising by Similar Name—Confusion to Business.—The use by the second comer of a similar name, even for conspicuous advertising, so long as the advertisements are true, is not a violation of any of the first comer’s rights. The fact that confusion to the business of the first comer results from such use in itself affords no ground for relief.</p>

<p>Injunction—Employer and Employee—Disclosure op Trade Secrets. Equity will always protect an employer against the unwarranted disclosure and unconscionable use by an employee of trade secrets and confidential business communications. The equitable jurisdiction in this connection is not dependent upon express provisions in the contract of employment prohibiting such disclosure or use.</p> <p>Id.—Laundryman—Duties of Driver of Laundry Wagon—List of Customers—Confidential Agency.—An employee of a laundryman, whose duties were to drive a laundry wagon along a designated route in a city, to serve well the customers of his employer, to increase his business, to solicit new business, and keep a complete and confidential list of all the customers on the route, is engaged in an agency of trust and confidence, and such list, even though in part prepared by him, is the absolute, and a valuable part of the property of the employer.</p> <p>Id.—Knowledge of Business Acquired by Driver—Trade Secrets— Injunction—Soliciting Business from Customers of Dormer Employer.—Knowledge acquired by such employee during his employment of the names and addresses of the customers along the route is in the nature of a trade secret or confidential communication, and equity will enjoin him, after the termination of his employment, from soliciting or receiving, on behalf of another laundryman, laundry work from any of such customers.</p>

<p>APPEAL from an order of the Superior Court of Tehama County refusing a new trial. John F. Ellison, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

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

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

<p>Specific Performance—Vendees Agents for Vendor—Default of Vendees.—In this action, in which the defendants sought to secure the specific performance by the plaintiff of a contract for the sale to them of certain lands, which was entered into at a time when they were acting as the agents for the plaintiff for the sale of such lands, it is held, upon a review of the evidence, that the defendants, and not the plaintiff, had defaulted under the contract, and that its specific performance was properly refused.</p>

<p>Bank-—Deposit of Draft on Another Bank—Credit Immediately Given Depositor—Debtor and Creditor—Insolvency of Depositary—Payment by Drawee.—Where a bank, in opening an account with another bank which at the time was apparently solvent although in fact insolvent, deposited its own draft on a third bank, in which it had a deposit to its credit sufficient to pay the same, accompanying the draft with the request that the amount thereof be placed to its credit by the depositary, and the latter immediately complied with such request, and notified the depositor that the draft had been placed to its credit, and both banks then treated the transaction as completed, the relation created between the depositor and depositary is that of creditor and debtor, and not merely that of principal and agent, and if the drawee bank honors the draft, without notice of the insolvency of the depositary, and payment thereof is received by the latter before it closes its doors on account of its insolvency, the drawee is not liable to the drawer of the draft for the value thereof.</p> <p>Id.—Fraud—Receiving Paper for Collection by Insolvent Bank— Innocent Holder of Check.—It is a fraud for an insolvent depositary to receive paper for collection, and no matter what may be the indorsement, the bank acquires no title. But if a check indorsed in blank is transferred to another bank and advances are made thereon in good faith, it can hold the check.- The depositor in such case must suffer, that the great rule, where a bona fide holder of paper is protected in taking it, may be preserved.</p> <p>Id.—Facts Showing Draft was not Received Merely for Collection. The fact that the drift was sent for the purpose of opening a new account with the depositary, that the latter immediately opened such account and credited the depositor with the amount oí the draft, and on the next day sent the depositor for collection a check drawn against it, which the depositor entered on its books to the credit of the depositary, thus reducing the amount of its credit with the depositary by the amount, of such check, and that the depositary sent the draft to the drawee, bearing the indorsement “Pay to the order of yourself, previous indorsement guaranteed,”1 and accompanied by a slip announcing that it was sent "for collection and credit,” evidence a contemporary construction of the relations between the depositor and depositary totally at variance with the claim that the draft was received merely for collection,</p> <p>lb.—Pacts Showing Collection of Draft by Depositary.—If it be admitted that such draft was sent by the depositor to the depositary merely for collection from the drawee, the facts that the latter, in payment of the draft, sent to the depositary, with whom it had a credit account, a cheek drawn on itself, in its own favor, accompanied by a draft on another bank more than sufficient in amount to make such check good, and that such cheek and draft reached the depositary before it closed its doors, are sufficient to show a collection of the draft. The fact that such draft and cheek were not at once entered to the drawee’s credit on the books of the depositary, was without prejudice to the drawee, and it is immaterial that subsequently, without authority or right, some official of the insolvent bank returned the uncollected draft on the other bank to the drawee.</p>

<p>Criminal Law—Drawing Check on Bank Without Funds or Credit to Meet It—Want of Funds or Credit Essential to Establish Corpus Delicti—Proof by Prosecution—Hearsay.—Under section 476a of the Penal Code—providing that “every person who, willfully, with intent to defraud, makes or draws, or utters, or delivers to another person any check or draft on a bank, banker or depositary for the payment of money, knowing at the time of such making, drawing, uttering or delivery, that he has not sufficient funds in or credit with such bank, banker or depositary to meet such check or draft in full upon its presentation, is punishable by imprisonment in the state prison. . . . The word ‘credit’ as used herein shall be construed to be an arrangement or understanding with the bank or depositary for the payment of such check or draft,”—the want of funds in or credit with the bank upon which the draft or cheek is drawn constitutes one of the essential elements of the crime which must be proven by the prosecution to establish the corpus delicti, and which cannot be shown by hearsay testimony.</p> <p>Id.—Conviction—Confession—Proof of Corpus Delicti.—A conviction cannot.be had upon the extrajudicial confession of the defendant, unless corroborated by proof aliunde of the corpus delicti.</p> <p>Id.—Insufficient Proof of Corpus Delicti—Hearsay Evidence of Dishonor of Check.—In a prosecution for such offense, proof that the cheek in question, which was drawn on a bank in another state, had been deposited by the payee in a bank in this state for collection and had been forwarded by its banking correspondent, in the manner customary with bankers and in the usual course of business, to the drawee, and had been returned to the sender, with the words “no account” written across its face, and that it was customary, whenever a check was presented to a bank, and the drawer had no funds there to meet it, for an officer of the bank to write on the cheek the words “no funds” or “no account," and then return it to the sender, is insufficient to establish the corpus delicti, in the absence of testimony on the part of any one connected with the drawee that the words “no account” on the face of the cheek were written by any person connected with the drawee, or by any one who knew or could know the facts.</p> <p>Id.—Defendant Not Required to Prove Existence of Funds or Credit.—Such a prosecution does not come within the rule that negative allegations regarding matters peculiarly within the knowledge of the defendant need not be proven. It cannot be said of a drawer of a cheek that he has such peculiar knowledge of the state of Ms bank account or credit that mere allegations of their nonexistence places upon him the burden of proving them.</p> <p>Id.—Evidence of Confession Without Proof of Corpus Delicti.— The admission of evidence of the confession of the defendant, upon such insufficient proof of the corpus delicti, was reversible error.</p> <p>Id.—Instructions—Failure to Define Term “Corpus Delicti.”—In such prosecution, an instruction to the jury, requested by the defendant, as follows: “Before you can find the defendant guilty, you must be satisfied that the corpus delicti has been proven. This term means exactly what it says. It involves the element of crime. It is not sufficient that it is shown that the defendant drew a check or draft upon a bank, banker or depositary where he had no funds or credit, in order to establish the corpus delicti. This would simply establish the corpus, and proof thereof joined with a confession by the defendant of his guilt, would not be sufficient to convict,” was properly refused, because it was erroneous and calculated to mislead the jury, and because it failed to give any definition of the term corpus delicti.</p> <p>Id.-—Instruction Requested bt Defendant — Facts Establishing Prima Facie Case of Guilt.—Another instruction requested by the defendant, the first part of which was of similar import, and which concluded as follows: “and in this case,.if the only evidence before you shows that the defendant drew a cheek or draft upon a bank in which he had no deposit or credit, and that he knew this to be true at the time of drawing the cheek or draft, then you must find the defendant not guilty,” was properly refused. The proof outlined would have amounted to the establishment of a prima facie case against the defendant.</p> <p>Id.—Failure to Instruct With Reference to Confession and Necessity of Proof Aliunde of Corpus Delicti.—Under such evidence, the court should have charged the jury as to the true rule with reference to the admission of confessions and the necessity for independent'proof of the corpus delicti, and its failure to do so was error.</p> <p>Id.—Hearsay Evidence—Statements in Letter to Sender of Check. A letter, purporting to have been sent from the place where the drawee of such' check had its place of business, to the sender of the check, was inadmissible as hearsay to prove the fact that another specified bank had succeeded to the corporate rights and business of the drawee of the check.</p> <p>Id.—Constitutional Law—Construction of Section 4% of Article VI.—Section 4% of article VI of the constitution, cannot be construed so as to sustain a conviction of a criminal offense, where there was no proof made of one of the essential elements of such offense.</p>

<p>Water—When Beal or Personal Property—Water Stored in Reservoir of Irrigation Company is Realty—Right to Use may Become Appurtenant to Land.-—Water, in its natural state, is part of the land. Like any other part thereof, it may become personal property by being severed from the realty, but not until then. When it is sold for domestic use and delivered by means of pipes to the premises in the usual manner, the pipes themselves are fixtures and part of the realty, and this severance takes place when the water is taken from the pipes by the consumer. In the ease of. water for irrigation, delivered in ditches or pipes, the severance does not take place at all. The water, by that use of it, permeates the soil and remains a part of the realty. The water, therefore, of an irrigation company, stored in its reservoir, is real property, the right to the use of which may become appurtenant to land.</p> <p>Id.—Construction of Contract Between Water Companies.—It is held, that a certain contract, referred to in the opinion, between the two water companies defendants, did not vest in one of them any interest whatever in the water belonging to the other, and that the plaintiffs had not, by mesne conveyances, obtained any interest in the water of the latter which can now be enforced.</p> <p>Id.—Agreement for Segregation of Waters of Stream—Executory Agreement to Sell Water—Right of Property in Water not Transferred.—Where two water companies, each having or claiming interest in the waters of a particular stream, enter into an agreement the effect of which was to segregate and define the parts of the stream which should thereafter be deemed to belong to each company, respectively, a provision of such agreement, whereby one of the companies merely undertakes, in the event that the water so segregated to the other shall at any time be insufficient to supply and irrigate its lands, to furnish water to such other upon the same terms and price that it furnishes water to third persons, and to deliver such water into the pipes of the other on their lands at such points on the line of its pipes to which the other may lay their pipes, does not operate to transfer to the promisee any property right or interest in the supply of the promisor. At most, it is a mere executory agreement for sales of water, to be effective at the option of the promisee.</p> <p>Id.—Uncertainty op Agreement — Incapability of Enforcement Against Specific Property.-—Such agreement, considered as one to sell an interest in property, lacks the essential element of certainty as to the property which is to be delivered. It does not state the quantity of water to be furnished, nor give any means of determining that quantity. The precise act to be done in its performance is not clearly ascertainable. It is therefore incapable of enforcement against any specific property.</p> <p>Id.—Eight to Supply op Water Lost by Laches—Failure to Demand Water Under Contract.—Where subsequent to the making of such contract the water so segregated to the promisee was always insufficient to irrigate its lands, and- for a continuous period of more than twenty-one years no water was ever demanded to be furnished under the contract, and its validity as a conveyance or agreement to convey an interest in the waters of the promisor was never at any time recognized by that company, all right of action to enforce the contract in equity has become barred by loches.</p> <p>Id.—Irrigation Company—Water Dedicated to Public Use—-Necessary Qualifications of Applicants por Water.—An irrigation company, whose water is devoted to public use, cannot be compelled to furnish water to applicants therefor in the absence of evidence to show that their lands are within the area to which such water has been dedicated, or that they are entitled to water from its system, or that it has any surplus to apply to lands not within the original dedication.</p> <p>Id.—Hiparían Eight in Entire Tract—Sam op Parcels op Tract With Proportion op Water-right—Proximity of Parcel to Stream.—An owner of a tract of land abutting upon a natural stream, to every part of which the riparian right extended, upon dividing and selling the tract in several parcels, may apportion and preserve to each parcel sold a portion of the water-right originally belonging to the entire tract, regardless of the proximity of such parcels to the stream. Such an apportionment is good as between the owners of the several parcels; how far it is good against owners of other riparian lands upon the same stream, not part of such tract, is not determined.</p> <p>Id.—Transfer of Water-right to Corporation as Trustee of Owner of Tract—Issuance op Stock Certificates Entitling Holder to Proportion op Water—Transfer of Stock to Purchasers of Lots.—This result might be, and in the present instance was, accomplished through the device of a transfer, by the owner of the tract, without consideration, of the entire riparian right to a corporation, acting as a naked trustee for the benefit of the owner, the immediate issuance to the latter of shares of stock in the corporation, the aggregate of which entitled it to the whole of such water-right, and the subsequent sale and transfer by the owner to each purchaser of a parcel of the tract of shares of such stock entitling the holder to a proportional part of the water-right.</p> <p>Id.—Transfer of Water-right by Certificates of Stock.—Where the certificates of stock so issued by the transferee of the water-right declared that the holder thereof was “entitled” to a certain part of the water “belonging to” the corporation, the legal effect was to transfer to the holder the title to that part of the water held by the corporation at the time.</p> <p>Id.—Purchasers of Lots Became Cotenants of Water-right With Owner of Tract—Owner Trustee for Cotenants in Operation of Water System.-—Where such parcels were so sold, with the certificates of stock carrying the water-right, -the owner of the tract immediately became a tenant in common of the water-right with the purchasers, each being entitled to his proportional share therein; and if such owner, through its actual control of the operation of the corporation to which the naked legal title to the water-right had been conveyed, was in practical control of the waterworks and the distribution of the water for the benefit of all the owners thereof, it stood in the relation of trustee for the owners of the several parcels of land so conveyed.</p> <p>Id.—Attempted Transfer to Corporation Having No Legal Existence—Title Does not Pass.—A .contract purporting to transfer property to a fictitious person, or to one who is dead at the time, or to a corporation having no legal existence, passes no title at all. The title to the property attempted to be transferred remains in the transferrer.</p> <p>Id.—Adverse Possession of Water System by Owner of Tract— Effect on Water-right of Purchasers of Lots.—If the owner of the tract subsequently takes actual adverse possession of the system of waterworks constructed by such corporation, and thereafter holds the same and continues the operation thereof adversely to the corporation, for a sufficient time to acquire its right and title thereto by prescription, such fact would not, of itself, divest the right and title of the purchasers of such parcels to their proportion of the water-right.</p> <p>Id.—Essentials of Adverse Possession by Owner of Tract Against Cotenants of Water-right—Bepudiation of Claim; of Cotenants. As the owner of the tract occupied the relation of trustee toward such purchasers, and tenant in common of the water supply with them, in order to make its possession adverse to them and to their right and title to the water so acquired by them, it was necessary for it to distinctly inform them that it repudiated their claim and right to a share of the water, under their water stock, and that it claimed the ownership of all the water adversely to their title.</p> <p>Id.—Imposition of Charges for Water Distributed.—If such owner claimed the right to impose charges to cover more than the cost of upkeep and a fair charge for the service of administering the system, it was necessary, under such circumstances, that it should make such claim clearly known to its eotenants, and give them notice that its charges were for other purposes; otherwise, its conduct in taking possession o'f the works and distributing the water for all concerned would not be adverse to the title of its cotenants and their right to receive a proportion thereof.</p> <p>Id.—Imposition op Charges Did not Make Possession Adverse.— The mere fact that the owner of the tract, after it took possession of the waterworks, imposed charges for the water similar to those imposed by its predecessors, and based such charges upon the quantity of the water delivered without regard to the proportional share of each cotenant, did not make its possession adverse. The imposition of such charges was not notice to the eotenants that their right or title to their proportional shares of water was disputed or invaded. They would reasonably suppose that the charges were imposed because of the necessity of raising money to defray the expense of repairs and the cost of service.</p> <p>Id.—Cotenants Bights not Lost by Adverse Possession.—It is held that the finding that the plaintiffs had lost their right to their proportional share of the water of the stream because of the adverse possession of the owner of the tract, is contrary to the evidence.</p> <p>Id.—Proper Charges Against Cotenants por Delivery op Water— Beturn on Value op Water-right not Permitted.—The owner of the tract, in its operation of the waterworks and in the distribution of the water among the cotenants thereof, is entitled to impose charges necessary to pay the cost of service and expense of upkeep, and to include in such charges a sum sufficient to cover the cotenants’ proportional shares of the interest on the amount expended by it in renewing and repairing the pipes and conduits of the system, and perhaps to enforce contribution of the principal. It has no right to base its charges upon the theory that it is the owner of the water delivered to the eotenants, and that it is, consequently, entitled to a reasonable return upon the value of that water considered as an investment.</p> <p>Id.—Sale op Interest in Water-right Acquired by Prescription or Appropriation—Failure op Vendee to Use Water.—Where one who has diverted water and thereby acquired a water-right, whether by prescription or statutory appropriation, sells an interest in it to another and thereafter continues to divert the water himself for the vendee, the fact that the vendee does not demand or use the water he has bought will not forfeit his right thereto to the vendor who has in the mean time continued the diversion, unless such vendor in some manner informs the vendee that such forfeiture will be claimed because of nonuse, or asserts it against him by some hostile act.</p> <p>Id.—Water-right Originally Acquired as Basement by Enjoyment —Transfer by Original Acquirer—Vendee Does not Lose Bight by Mere Disuse.—If it be assumed that the wetter-right appurtenant to the tract was an easement or servitude originally acquired by the owner of the tract by enjoyment, it having transferred the right after its acquisition by contract to the purchasers of lots, the right became, as between them and their vendor, a right which they acquired by conveyance, and not by prescription, and the doctrine that an easement acquired by use is lost by mere disuse does not apply to such right.</p> <p>Ib.—Transfer of Hiparían Bight Did not Change Its Character— Such Bight not Lost by Mere Disuse.—The right originally belonging to the tract was a riparian right, and its nature was not changed by its transfer to the holding company, and the simultaneous retransfer thereof to the owner of the tract by virtue of the issuance to it of the entire capital stock, and' the subsequent transfer of such stock to purchasers of lots. So long as such purchasers retained the stock accompanying their purchase, the water- • right so conveyed to them retained its riparian character, and was not lost by mere disuse, and until the owner of the tract manifested an intention to take and hold adversely to them the water to which their lands were entitled, its title against them by prescription would not begin to run.</p>

<p>Landlord and Tenant—Lease of Building Forbidden by Fire Ordinance—Termination of Lease—Order of City Authorities to Remove Building.—A lease, made shortly after the great fire of 1906, of a lot of land in the burnt district of San Francisco “together with a building to be erected” thereon by the lessor, contained a condition that if the building to be erected “shall be ordered to be taken down or razed by the municipal authorities, . . . then this lease shall thereupon terminate, and1 that neither party thereto shall be liable or responsible to the other thereunder.” The building erected was of a character not permitted in the district in which it was situated by the fire ordinance of the city then in force, but its erection was made with the unofficial consent of the city authorities to temporary buildings of that character, subject to removal at any time if such authorities so directed. Subsequently, the board of supervisors of the city enacted an ordinance declaring that all such buildings should be demolished or removed on or before a specified future date. -Held, that the lease terminated at the date when the order for the removal of such buildings was made, and did not continue to the expiration of the time allowed in which to obey the order.</p> <p>Id.—Holding Over After Termination of Lease—Tenancy from Month to Month.—The continued occupation by the lessee of the demised premises, after the lease had become so terminated, became a tenancy from month to month, under a further clause of the lease providing that such holding over should be a tenancy from month to month only.</p> <p>Id.—Action to Recover Rent—Lease Declared on as Continuing Obligation.—An action by the lessor to recover rent alleged to be due by the terms of the lease, for a period subsequent to the date when it became so terminated, which declares solely upon the express covenants of the lease, and bases the right of recovery entirely upon the theory that the lease was still in force when the action was begun, cannot be construed as an action to enforce the liability for rent under such tenancy from month to month.</p>

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

<p>Municipal Corporations — San Francisco — License — Restaurant Keeper not Engaged in Business op Selling Goods.—One who keeps a restaurant is not engaged in the business of selling goods, within the meaning of the provision of the charter of the city and county of San Francisco (sec. 1 of chapter II, article H; Stats. 1899, p. 248), prohibiting the imposition of a license-tax upon “any person who at any fixed place of business in the city and county, sells or manufactures goods, wares and merchandise,” and an ordinance imposing a license-tax upon such a person is valid.</p>

<p>Contempt—Injunction Against Attacking Validity of Judgment Canceling Certificate of Purchase of Land.-—Parties who have been enjoined, by a final judgment, from asserting or claiming any right or interest in certain real estate originally belonging to the state of California, to which they made claim under a certificate of purchase which had been cancelled by a judgment in a prior action instituted by the state, and further enjoined from in any manner asserting or claiming that the judgment canceling the certificate is not a good, valid, and subsisting judgment, may be prosecuted fox contempt for asserting their claim and attacking the validity of the judgment of cancellation in a subsequent action.</p> <p>Id.-—State Land—Judgment Canceling Certificate of Purchase— Injunction Against Attacking Validity of Judgment—Appeal from Order Refusing New Trial—Affirmance of Order—Effect of Judgment.—The assignees of a prior certificate for the purchase of state land, for the cancellation of which a judgment had been rendered in an action by the state, on account of the alleged failure of the purchaser to pay interest on the unpaid balance of the purchase price, brought an action against a subsequent patentee of the land, asserting the validity of the prior certificate and the invalidity of the proceedings resulting in the issuance of the state patent, and seeking to charge such patentee as trustee of the naked legal title for their benefit. The answer of the patentee set up the judgment canceling the prior certificate, averring that it was duly given and made and was a valid and subsisting judgment, under which all the rights of the prior purchaser and his successors in interest in and to the prior certificate were foreclosed and annulled. The trial court found in favor of the patentee as to the effect and validity of the judgment of cancellation, and entered a decree sustaining the patent, declaring the judgment canceling the prior certificate to be good and valid, and the rights of the prior purchaser and his successors in interest therein to have been foreclosed, and enjoining such assignees from asserting or claiming any right to or interest in said land, or from in any manner asserting or claiming that the judgment canceling the certificate is not a good, valid, and1 subsisting judgment. The assignees of the certificate appealed from an order denying their motion for a new trial in such action, without appealing from the judgment therein, and the supreme court affirmed the o-rder. Held, that the trial court had full jurisdiction to render the judgment as entered, and to embody therein the injunctive provisions, and that such injunction must he given effect in accordance with its plain terms, irrespective of the declarations of the supreme court, on the appeal from the order, in reviewing the rulings of the trial court in receiving and rejecting evidence, which were made the basis of the motion for new trial.</p> <p>Id.—Contempt by Successor of Party Enjoined—Notice of Injunction.—A successor of an assignee of the canceled certificate, who acquired his interest after such injunctive judgment had been rendered, and with notice of it, was bound by the judgment, and chargeable in contempt proceedings for subsequently attempting to impeach, in another action, the validity of the judgment canceling the certificate.</p> <p>Id.—Contempt by Attorney—Maintaining Pleading in Violation of Injunction.—An attorney for the parties claiming under such canceled certificate, who was ignorant of the injunctive provisions of such judgment at the time he filed a pleading attacking the validity of the judgment canceling the certificate, was guilty of contempt, if he contumaciously insists upon maintaining such pleading after his attention had been called to the injunction.</p>

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

<p>APPEAL from a judgment of the Superior Court of San Mateo County and from an order refusing a new trial. M. T. Dooling, Judge presiding.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Practice—Belief from Default—Abuse of Discretion.—The appellate courts will not reverse the decision of the trial court refusing or granting relief, under section 473 of the Code of Civil Procedure, from a default taken against a party through his mistake, inadvertence, surprise, or excusable neglect, unless it clearly appears that there was an abuse of discretion.</p> <p>Id.—Failure to Serve Proposed Bill of Exceptions in Time—Unsuccessful Efforts to Compromise to Avoid Appeal.—Where a defendant against whom judgment had been rendered on a promissory note, was ignorant of the limitation of time allowed him by law in which to serve a draft of a proposed bill of exceptions on appeal, and did not advise with his attorneys on that subject, but merely stated to them that he desired to compromise the ease rather than take an appeal, and was engaged in unsuccessful negotiations to effect the compromise until he had suffered default in the service of such proposed bill, it cannot be held that the trial court was guilty of an abuse of discretion in refusing to relieve him from the default.</p>

APPEALS from portions of a decree of the Superior Court of the City and County of San Francisco settling the final account of an executor, and finally distributing the estate of a deceased person. J. V. Coffey, Judge. The facts are stated in the opinion of the court.

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

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

<p>MOTION to dismiss appeals from a judgment of the Superior Court of Tehama County and from an order striking out a proposed statement and affidavits on motion for a new trial, and dismissing a motion for a new trial, and a motion for an order vacating and setting aside the judgment. J. E. Prewett, Judge presiding.</p> <p>The facts are stated in the opinion of the court.</p>

<p>APPEAL from an order of the Superior Court of Solano County granting a temporary injunction pendente lite. John F. Ellison, Judge presiding.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Contempt—Separate Act op Disobedience is Separate Contempt.— Disobedience of any lawful judgment, order or process of the court is a contempt, and every separate act of disobedience is a separate contempt.</p> <p>Id.—Injunction Restraining Operation op Ferry—Operation on Separate Days.—The continuous operation of a ferry service upon three separate days, in violation of a temporary restraining order prohibiting its operation, constitutes three separate contempts.</p>

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

<p>Mechanics’ Liens—Notice to Owner to Withhold Payments to Contractor—First Moneys Becoming Due Must be Withheld.— Under section 1184 of the Code of Civil Procedure, as the same read during the period covered by this litigation, it is the duty of the owner of a building in course of construction, upon service upon him of a notice of labor performed for or materials furnished to the contractor, to withhold from the moneys due under the contract, 'or from the first moneys that may become due, a sum sufficient to protect him against the demand of the notice. If he does not do so he becomes liable under later notices to withhold which may be served upon him.</p> <p>Ib.—Materialman not Charged With Knowledge op Prior Notices to Withhold.—No materialman is charged with knowledge that another materialman has served the owner with such notice to withhold, still less with Knowledge that the owner contemplates withholding the funds out of the last payments that may become due the contractor.</p> <p>Id.—Payments Made at Peril op Owner.—Progress payments made in accordance with the terms of the contract, after service upon the owner of notice to withhold, and payments made before they became due under the contract, are at the peril of the owner.</p> <p>Id.—Legality of Requirements for Withholding Payments.—The provisions of section 1184 of the Code of Civil Procedure, requiring the owner to withhold moneys due or to become due under the contract, upon the service of a notice to withhold, are not illegal as interfering with the right of contract.</p> <p>Id.—Legal Effect of Notice to Withhold—Equitable Garnishment, Subrogation, and Assignment.—The notice to withhold operates as an equitable garnishment. It is a form of equitable subrogation regulated by statute, and an equitable assignment of the amounts due or thereafter becoming due the contractor under the contract, and entitles the persons serving the notice to receive so much of said amounts as would satisfy their claims. The right to a recovery of the money so garnisheed by the notice does not depend upon the establishment of a lien. It is a cumulative remedy.</p> <p>Id.—Failure of Materialmen to Perfect Liens—Right to Personal Judgment—Interest.—Materialmen who have served notices to withhold on the owner, at times when there was sufficient moneys due or to become due under the contract to satisfy their claims, are entitled to recover personal judgments against the owner, irrespective of whether their claims of lien were filed prematurely or too late. They are entitled to interest on their demands, computed from the date when the last payment became payable under the contract after the completion of the building.</p> <p>Id.—Premature Payments to Contractor.—Premature payments made by the owner to the contractor are available to such materialmen, notwithstanding their failure to perfect their claims of lien.</p> <p>Id.—Enforcement of Personal Judgment.—The judgments in favor of such materialmen are enforceable by the usual remedies of execution levy, and should not be made payable out of the money arising from the sale of property.</p>

<p>Contract—Construction a Question of Law—Existence of Consideration a Question of Fact.—The construction of a contract, whether it is to be arrived at from a mere reading of the contract • itself, or from such reading aided by extrinsic evidence of circumstances and the like, is always a question of law. On the other hand, the question whether or not there is a sufficient consideration to support a contract is always one of fact.</p> <p>Guaranty—Consideration.—A contract of guaranty, not entered into concurrently with the original obligation, requires a distinct consideration to support it.</p> <p>Id.—Forbearance to Enforce Original Obligation—Agreement for Forbearance—Proof of Consideration.—In the absence of evidence to the contrary, a declaration in a written contract of guar- " anty, that the consideration thereof was an agreement by the creditor to forbear the enforcement of the principal obligation, together with the fact that the forbearance was extended, is sufficient to support a finding that the guaranty was based upon a distinct consideration.</p> <p>Id.—Application of Payments—Deed 'of Trust to Secure Personal Obligations at Bank.—It is held, upon a review of the evidence, that a certain deed of trust executed to the bank in whose favor the guaranty in question was made, was intended primarily to secure the trustor’s direct personal indebtedness to the bank, as distinguished from his contingent liability as indorser upon the * notes, the payment of which were guaranteed, and that the bank • was justified in first applying the proceeds of the trust property to the extinguishment of the trustor’s personal indebtedness.</p>

<p>APPLICATION for a Writ of Certiorari to review an order of the hoard of trustees of the City of Auburn, sitting as a board of equalization, increasing an assessment of real property.</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 granting a new trial. J. M. Seawell, Judge.</p> <p>The facts' are stated in the opinion of the court.</p>

<p>Novation—Substitution of Contract for Prior Executory Contract —Breach of New Obligation—Former Contract not Bevived.— Where a subsequent contract is entered into without fraud and with an agreement of minds that it was to be in substitution of a former, and by the express terms of the latter the former is declared to be rescinded, canceled and annulled, a novation is effected, and the former agreement is extinguished and is not revived upon a mere failure to perform the new obligation. This result follows although the new agreement is itself exeeutoiy.</p> <p>Id.—Bights of Parties Limited to New Contract.—After such novation, the rights of the parties are to be governed by the new contract alone, and a failure to perform it does not, under any theory of rescission or revivor, operate to restore the extinguished obligation.</p> <p>Id.—Bescission—Intervening Bights of Third Parties.—-Where the rights of others have intervened and circumstances have so far changed that rescission may not be decreed without injury to those parties and their rights, rescission will be denied and the complaining party left to his other remedies.</p> <p>Id.-—Condition of Bescission-—Placing Other Party in Statu Quo.— Upon rescission, the other party must be restored to the condition he was in when the contract was made, or, in other words, as a condition of rescission the rescinding party must first place the other in statu quo.</p> <p>Id.—Judgment—Decreeing Bonds to Plaintiff.—The judgment of the trial court, decreeing to the plaintiff certain bonds, in accordance with the terms of such substituted "contract, with accrued interest thereon, in view of the circumstances of this ease, and the intervening rights of third parties, is held to give him everything to which he was entitled for the breach of such contract.</p>

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

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

<p>Marriage op Divorced Person Within Tear op Divorce is Nullity-Collateral Attack.—Under section 61 of the Civil Code, as amended in 1897 (Stats. 1897, p. 34), where a former marriage has been dissolved in this state, a subsequent marriage contracted in •this state by the divorced husband with another woman, during the life of his former wife, and within a year of the time when the decree of divorce was rendered, is a nullity, and open to attack collaterally by any one interested.</p> <p>Ib.—Consent not Sufficient to Establish Marriage—Solemnization Essential.—Under the law of this state as it existed prior to the amendment of section 55 of the Civil Code in 1895 (Stats. 1895, p. 121), marriage might be presumed from cohabitation as husband and wife, even though the intercourse had been, in its inception, illicit. Since that amendment, mere consent, followed by a mutual assumption of marital rights, duties, or obligations, is insufficient to constitute marriage. In addition to consent, a solemnization authorized by the Civil Code is essential.</p> <p>Id.—Cohabiting as Man and Wife After Illegal Marriage Ceremony—Bepute as Man and Wife.—Where the only ceremony of ■the subsequent marriage was performed after the amendment of section 55 of the Civil Code, and was absolutely ineffectual, because in contravention of section 61 of that code, evidence that the divorced husband and such other woman, for a period of ten years, cohabited as man and wife, together with repute to the same effect, was insufficient to establish their marriage.</p> <p>Ib.—-Presumption of Marriage—Void Attempt at Lawful Marriage. Since the amendment of section 55 of the Civil Code, the presumption “that a_ man and woman deporting themselves as husband and wife have entered into a lawful contract of marriage,’'’ can have no force, where it appears that the only attempt to enter into a lawful marriage was in fact illegal and void.</p> <p>Id.—Amendment of Section 61 of Civil Code—Title of Act of 1897 —Subject of Act Stated in Title.—The title of the act of 1897, amending section 61 of the Civil Code, and reading as follows: "An act to amend section sixty-one of the Civil Code, relating to the granting of divorces,” sufficiently stated the subject of the act to meet the requirement of section 24 of article IV of the constitution, that the subject of every act shall be embraced in its title. It cannot be said that “the granting of divorces” is so foreign to the subject of the act, as to make the reference thereto in the title a sufficient cause for declaring the act illegal.</p> <p>Id.—Title of Act Amending Section of Code—Addition of Further Description.—The title of the act would have been sufficient if it had read, simply: “An act to amend section 61 of the Civil Code.” The addition of further descriptive words cannot vitiate this sufficient title, unless such further words indicate a subject not really related to the matters covered by the body of the bill.</p> <p>Id.—Effect of Amendment of 1903 to Section 61 of Civil Code— Previous Void Marriage not Validated.—The further amendment of section 61 of the Civil Code in 1903 (Stats. 1903, p. 176), whereby the prohibition upon marriage within one year from the rendition of a decree of divorce was taken from the section, and instead there was inserted a provision invalidating a 'marriage within one year after the entry of an interlocutory decree of divorce, did not-have the effect to validate a marriage contracted in this state while the amendment of 1897 was in force, which was invalid because entered into within one year of the divorce in this state of one of the parties.</p> <p>Estate op Deceased Person—Competency op Daughter to Administer Mother’s Estate—Want op Integrity—Introduction op Evidence Disclosing Mother’s Adultery.—A daughter, in applying for letters of administration on her mother’s estate, does not establish her incompetency for want of integrity, by offering in evidence a decree of divorce, which was admissible for the purpose for which it was introduced, although it showed that her mother had been guilty of adultery in her. lifetime.</p>

<p>Negligence—Safe Place to Work—Bill-board Sign—Giving Way of Hook Supporting Staging—Evidence—Assumption off Risk-Contributory Negligence.—In an action by a “bill-board” sign painter, to recover damages for personal injuries sustained by him as the result of the giving way of a hook attached to the top of the bill-board and supporting a staging on which he was at work at the time of the injury, the evidence is held sufficient to support the conclusion of the jury that the board to which the hook was attached was defective and rotten, and that this was the real cause of the breaking of the board and the giving way of the hook, rather than the absence of “stringers” on certain parts thereof, and that the plaintiff neither knew nor was guilty of want of ordinary care in not knowing that such was the condition of the board. Under these circumstances, it cannot be held as matter of law either that the plaintiff is precluded from recovery by reason of assumption of the risk or that he was guilty" of contributory negligence.</p> <p>Id.—Instruction—Assumption of Increased Bisk Due to Negligence of Employer.—In such action, it was not erroneous to substantially instruct the jury that the ordinary risks of his employment assumed by an employee did not include such increased risk as was caused by the negligence of the employer to perform some duty that he owes to the employee, if in other instructions they were fully instructed as to the necessity of such increased risk being unknown to the employee.</p> <p>Id.—Defects in Place of Work—Instructions Reviewed.—Certain instructions given by the court upon the subject of the duty of an employee in the matter of discovering defects in the place of work, rendering the same unsafe, are reviewed and held not to be in conflict.</p> <p>Id.—Employee Directed to Work at Particular Place—Obvious Defects—Investigation as to Defects not Obvious.—While an employee, who is simply directed to do a certain thing at a certain place, and who has no duty in connection with the preparation of •the place, cannot be held ignorant of defects that are so obvious that, under the circumstances, he must have known or simply failed to give ordinary attention to his surroundings, he may rightfully ■ assume, in the absence of information to the contrary, that the employer has in other respects discharged his duty of reasonable care to furnish him a safe and proper place wherein to work, and that the place furnished is reasonably safe and secure. He is not called upon to make investigation for such defects as are not so obvious, unless he has been put upon inquiry by some discovery or suggestion which it was negligent for him to pay no attention to.</p>

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

<p>Taxation—Sale of Land by State—Mailing Notice of Sale to Person Last Assessed.—Under section 3897 of the Political Code, it is essential to the validity of a sale by the state of land which has been sold to it for delinquent taxes, that the tax-collector mail a copy of the notice of sale, postage thereon prepaid and registered, to the party to whom the land was last assessed next before the sale, at his last post-office address, unless the last post-office address is unknown.</p> <p>Id.—Insufficient Eecital of Mailing.—A recital in the tax-collector’s deed from the state, that he “did mail a copy of said notice, postage thereon prepaid and registered, to the party to whom the land was last assessed next before such sale,” is not a recital either that the notice had been mailed to such party “at his last known post-office address,” nor of the fact that no post-office address was known, which would excuse the want of mailing.</p> <p>Id.—Absence of Evidence Aliunde to Show ob to Excuse Mailing Notice.—If the giving of a notice by mailing, or the fact that such notice was excused because no post-office address was known, may be shown by evidence aliunde, the burden of proof is on the party claiming under such deed to show it. In the absence of such evidence, the party claiming under the deed does not establish title.</p>

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

<p>Boundary—Agreement for Location of Uncertain Line—Acquiescence for Period of Limitation.—When the owners of parcels of land divided by a common boundary described in their deeds, being uncertain of the true position of the boundary so described, agree upon its true location, mark it upon the ground, or build up to it, occupy on each side up to the place thus fixed and acquiesce in such location for a period equal to the statute of limitations, or under such circumstances that substantial loss would be caused by a change of its position, such line becomes, in law, the true line called for by the respective descriptions, regardless of the accuracy of the agreed location, as it may appear by subsequent measurements.</p> <p>Td.—Review of Evidence.—This case, which involved the establishment of the boundary line between adjacent pieces of land, is held, upon a review of the evidence, to clearly come within the foregoing rule.</p>

<p>APPEAL from an order of the Superior Court of Los Angeles County granting a new trial. Frederick W. Houser, Judge.</p> <p>The facts are stated in the opinion of the court. ,</p>

<p>APPEAL from an order of the Superior Court of Orange County denying a motion for relief from the effect of a failure to present within the time allowed by law a proposed bill of exceptions for use on a motion for a new trial. Z. B. West, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

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

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

<p>Deed—Covenant of Seizin—Time of Breach.—The breach of a covenant of seizin contained in a deed of land to which the grantor never had any title occurs at the time it is made.</p> <p>Id.—Covenant for Quiet Enjoyment — Time of Breach — Eviction Under Paramount Title—Statute of Limitations.—There is no breach of a covenant for quiet and peaceable possession of land until there has been an eviction by the true owner, or an assertion by him of his paramount right in such a manner that the holder through the covenantor is compelled to yield possession or buy the outstanding superior title. The statute of limitations upon an action for breach of this covenant begins to run only from the time of such breach.</p> <p>Id.—Measure of Uamages—Price Paid Grantor—Conveyance by Covenantee for Less Price.—Under section 3304 of the Civil Code, the price paid to the grantor constitutes one of the elements of the measure of damages for a full breach of a covenant of quiet enjoy-meat, and it remains such, notwithstanding the covenantee, prior to the breach, had conveyed the land, with a similar covenant, for a less consideration, and after the breach had settled with his grantee for á corresponding lesser amount.</p> <p>Id.—Action fob Possession by Holder of Paramount Title—Demand on Covenantor to Defend—Voucher to Warranty—Judgment Conclusive on Covenantor.—Where a covenantee in a deed containing a covenant to warrant and defend the quiet and peaceable possession, or one who derives title to the land from Mm, is sued for possession by a person claiming a paramount title, the defendant may give notice of the suit to any previous covenantor under whom he derives title and request him to come in and defend the title he warranted. This proceeding is called a “voucher to warranty.” The covenantor so vouched in may then appear in the action and defend the same, and whether he appears or not, - he is bound by the judgment rendered in the action. It is conclusive upon the person thus vouched in, with respect to the superiority of the adverse title asserted by the plaintiff in the action. 1</p> <p>Id.—Tenants in Common—One may Eecover Possessk/n op Entire Estate—Eviction as to Entire Land—Complete Breach of Covenant.—One tenant in common may recover possession of the whole estate against all persons except his cotenants, and his recovery inures to the benefit of Ms cotenants. Consequently, a judgment for the possession of the entire land embivcv-d in such a deed, rendered in favor of two of three tenante in common who held the paramount title, operated as an evietioM of the entire land, and as a complete breach of the covenant.</p> <p>Id.—Estoppel of Covenantor ,tÓ Impeach Judgment of Ouster.—A covenantor, who was regularly vouched to warranty in an action to recover the possession from a grantee "of her covenantee, and who failed to respond, /cannot, in a subsequent action for breach of the warranty instituted by her immediate covenantee, impeach the judgment of ouste;r by urging defenses which might have been made in the action f'or the possession.</p> <p>Id.—Attorney's Pees in Defending Action for Possession.—In an action i ", the covenantee to recover damages for the breach of the covenant', attorney’s fees, properly incurred in defending the action for possession instituted by part of the tenants in common holding •the paramount title, are recoverable, notwithstanding the failure of the jeovenantee and Ms'gfSStéeTo set up the title of the other tenant in common as a defense to the action for possession.</p>

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

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

<p>Municipal Corporation — Police Power — Restriction on Certain Kinds op Occupations—Limitation to Certain District op City. The power of a municipality to regulate the carrying on of certain lawful occupations therein includes the power to confine the carrying on of the same to certain limits, whenever such restrictions may reasonably be found necessary to subserve the ends for which the police power- exists, viz., to protect the public health, morals, safety, and comfort.</p> <p>Id.—Legislative Determination—Review by Courts.—It is primarily for the legislative body clothed with this power to determine when such regulations are essential, and its determination in this regard, in view of its better knowledge of all the circumstances and the presumption that it is acting with a due regard for the rights of all parties, will not be disturbed in the courts, unless it can plainly be seen that the regulation has no relation to the ends above stated, but is a clear invasion of personal or property rights under the guise of police regulation.</p> <p>Id.—Restricting Business op Brickmaking to Specified District— Business not a Nuisance.—The city of Los Angeles has authority, in the exercise of its police power, to regulate the business of brick-making by restricting the location within the city limits in which it may be followed. It is immaterial to the right of regulation that the conduct of such business is not a nuisance.</p> <p>Id.—Diminution of Value of Investments in Prohibited Business.— The right of the legislature, in the exercise of the police power, to regulate or, in proper cases, to prohibit the conduct of a given business, is not limited by the fact that the value of investments made in the business prior to any legislative action will be greatly diminished.</p> <p>Id.—Restrictions must be Reasonable.—The power to regulate the use of property or the conduct of a business is not arbitrary. The restriction must bear a reasonable relation to some legitimate purpose within the purview of the police power.</p> <p>Id.—Proof of Reasonableness of Restriction.—The reasonableness of a municipal restriction prohibiting the carrying on of the business of manufacturing brick within a specified portion of the city is sufficiently established, when, in addition to the presumptions in favor of the propriety of the legislative determination, there is evidence tending to show that the region in question had become primarily a residential section, and that the occupants of neighboring dwellings were seriously discommoded by the operations of the business.</p> <p>Id.—Good Faith of City Council in Enacting Ordinance.—A claim that such ordinance was not enacted in good faith as a police measure, but was designed to discriminate against the proprietors of two brickyards within the limited district, is not supported by a mere allegation that the boundaries of the district were fixed by the city council “for the sole and specific purpose of prohibiting and suppressing the operation and maintenance of thg brickmaking business” of such persons..</p> <p>Id.—Failure to" Apply Restriction to Other Districts of City.— Such a restriction, limited to a particular district, is not invalidated by the fact that the maintenance of such yards was not prohibited in other districts of the city where their existence was equally as injurious to their neighbors.</p>

<p>Justices’ Courts—Special Jurisdiction—Affirmative Showing of Jurisdictional Facts.—The jurisdiction of justices’ courts being special and limited, the law presumes nothing in favor of their jurisdiction, and a party who asserts a right under a judgment rendered in such court must show affirmatively every fact necessary to confer such jurisdiction.</p> <p>Id.—Service of Summons Outside of County—Contract not in Writing—Execution—Justification by Sheriff.—A sheriff, in justifying the levy of an execution issued upon a judgment of a justice’s court, rendered by default upon a service of summons made upon the defendant outside of the county in which the action was brought, must show affirmatively that the justice’s court had jurisdiction to enter it. It was essential in making such proof to show that the action itself was based upon a contract in writing, as provided in section 848 of the Code of Civil Procedure, which alone would warrant the service of summons on defendants residing outside the county.</p> <p>Id.—Injunction Against Enforcement of Judgment—Denial of Application to Vacate Service of Summons and Judgment.—A default judgment rendered by a justice’s court in an action to enforce a contract not in writing, upon a service of summons made outside of the county in which the action was brought, is void, and the defendant, after a denial by the justice’s court of his application to set aside the service of summons and the judgment, is entitled to an injunction against the execution of the' judgment.</p> <p>Id.—Recall of Execution—Stay of Execution.—To entitle the defendant to such injunctive relief, it was not necessary for him to move in the justice’s court, in terms, for the recall of the execution or for a stay of further proceedings on the judgment.</p>

<p>Estate of Deceased Person—Eight of Widow to Administer Estate—Mere Charge of Conspiracy to Murder Husband.—A creditor of a deceased person cannot contest the widow’s priority of right to letters of administration upon his estate, merely by charging her with having entered into a conspiracy to murder her husband, and by innuendo and insinuation implying that his death was the successful outcome of this conspiracy.</p> <p>Id.—Conviction of Crime Necessary to Defeat Eight to Administer. Under section 1409 of the Civil Code, only a person who has been convicted of the murder of the deceased is debarred from succeeding to his estate, while section 1350 of the Code of Civil Procedure only renders incompetent to serve as executor or administrator a pgrson who has been convicted of an infamous crime.</p>

<p>Appeal Under Section 941b op Code op Civil Procedure—Notice of Entry—Time op Appeal.—Under section 941b of. the Code of Civil Procedure, actual service of a written notice of the entry of a judgment, order or decree is essential to start in motion the sixty-day period allowed by that section within which to appeal therefrom.</p> <p>Id.—Necessity op Notice op Entry—Actual Knowledge op Entry— Recital op Waiver op Notice in Order Appealed prom.—The necessity of giving notice of the entry, for the purpose of starting the running of the sixty-day period for appeal, is not dispensed with, either by the actual knowledge of the party appealing of the entry, or by a recital in the order appealed from that a notice of the entry had been waived, or by a previous waiver of such notice. ■</p> <p>Cancellation op Deed—Escrow—Delivery Contrary to Instructions—Approval by Agent op Grantor.—In an action for the cancellation of a deed executed by the plaintiff to the defendant, on the alleged ground that a depositary with whom it had been left in escrow had delivered it without first securing compliance with certain conditions precedent embodied in the escrow instructions, requiring the execution of a written guaranty by a third person to repay the preferred stockholders of the plaintiff the amount of their investment in said stock, and the securing of such guaranty by the assignment of specified property, it is held, upon a review of the evidence, that the approval by the authorized agent of the plaintiff of the guaranties arid assignment actually executed in performance of the escrow conditions, and which approval was inserted in the written instructions signed by such agent, formed a part of the instructions, and was conclusive upon the plaintiff as authority for the depositary to deliver the deed.</p>

<p>APPEAL from a judgment of the Superior Court of the City and County of San Francisco. B. Y. Sargent, Judge presiding.</p> <p>The facts are stated in the opinion of the court.</p>

<p>APPEAL from a judgment and from an order of the Superior Court of Alameda County granting a permanent injunction. T. W. Harris, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Estates op Deceased Persons—Foreign Will—Provisions op Code Governing Issuance op Letters Testamentary or op Administration.—The article of the Code of Civil Procedure, (sections 1322-1324), on probate of foreign wills, must prevail over all conflicting provisions as to all matters and questions arising out of the subject matter of such article. Under that article, the executor named in a foreign will is entitled to letters testamentary if he applies for such letters, and in the absence of such an application by the executor, letters of administration must be granted “to any other person interested in the will” who applies for them, provided the applicant has the qualifications prescribed by the law for administrator.</p> <p>Id.—Issuance of Letters of Administration With Will Annexed.— Except in so far as there is special provision to the contrary in the article on foreign wills, the general provisions of the Code of Civil Procedure relating to the issuance of letters of administration with the will annexed control.</p> <p>Id—Executor cannot Nominate Administrator.—In the ease of a foreign will, the executor named in the will, as such, is not authorized to nominate an administrator with the will annexed, and any attempted nomination by him is ineffectual for any purpose.</p> <p>Id.—Persons “Interested in Will” have • Preferential Eight to Letters.—Any person “interested in the will,” which term includes any devisee or legatee, or an assignee of any devisee or legatee, who is in all respects competent to serve as administrator under the laws of this state, is entitled as matter of right to such letters in preference to any person not “interested in the will,” by virtue of the provisions specially applicable to foreign wills.</p> <p>Id.—Nominee of “Person Interested in Will.”—Any attempted nomination of another as administrator by one “interested in the will” who is himself incompetent to serve as administrator under the laws of this state, except where the nomination is made by the surviving husband or wife, is ineffectual for any purpose.</p> <p>Id.—Preference Between “Persons Interested in Will.”—Where there are applications for appointment by two or more persona “interested in the will” who are competent to serve as administrator under the laws of this state, the relative rights of the parties are determined by the rules applicable in eases of intestacy.</p> <p>Id.—Public Administrator has Preference Over Nominee of Executor or Incompetent Person Interested.—Where none of the applicants is “interested in the will,” the rules applicable in cases of intestacy control. Such rules require the appointment of the public administrator in preference to one whose only claim, apart from the fact that he is legally competent, is based on the nomination of the executor of the will or the nomination of some one interested in the will, óther than the surviving husband or wife, who is himself incompetent to .serve as administrator.</p>

<p>Judgment — Setting Aside — Conflicting Affidavits — Appeal.—An order setting aside a judgment and default entered against a defendant, made upon conflicting affidavits, is conclusive on appeal.</p> <p>Id.—Satisfaction of Judgment Does not Prevent Appeal.—In this state, the enforced satisfaction of a judgment does not prevent the prosecution of an appeal therefrom by the defendant.</p> <p>Id.—Satisfied Judgment may be Vacated—Relief Under Section 473 of Code of Civil Procedure.—Under section 473 of the Code of Civil Procedure, a defendant against whom a money judgment has •been obtained through his surprise and excusable neglect, may have the judgment vacated, where the facts are such as to justify such relief, notwithstanding the judgment has been 'satisfied before the application therefor.</p> <p>Id.—Direction for Payment into Court of Money Received in Satisfaction.—In making the order vacating the judgment, the court is without authority to include therein a direction requiring the plaintiff to deposit in court the money received by him in satisfaction of the judgment.</p> <p>Id.—Service of Process on Defendant While 111 and Under Arrest. The plaintiff in this action caused the defendant to be arrested in Los Angeles on October 17, 1911, while he was ill in bed, had him taken to the emergency hospital of that city and held as a prisoner until the next day, and there served upon him the summons in the action. The summons and all other papers on his person, together with the money belonging to him, were taken from him and kept in Los Angeles. On that day he was taken to Kern County and there placed in jail where he was kept until after the judgment by default herein was rendered. He had no opportunity to read the summons and no information of the beginning of the action until after the judgment was rendered. Held, that the facts showed surprise and excusable neglect, sufficient to warrant setting aside the judgment under section 473 of the Code of Civil Procedure.</p>

APPEALS from a judgment of the Superior Court of Los Angeles County, from an order refusing a new trial, and from an order retaxing costs. J. P. Wood, Judge. The facts are stated in the opinion of the court.

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

<p>Corporation—Offer to Sell Stock and Bonds of Another Corporation.—A corporation, which is the owner of the stock andjmnds of another corporation, is not bound by any rule of law to limit the sale thereof to its own stockholders.</p> <p>Id.—Unlimited Offer for Subscription by Stockholders—Subscription by Stockholder for Benefit of Nonstockholder—Absence of Fraud on Corporation.—Where a corporation, owning the stock and bonds of another corporation, offers the same for sale to its own stockholders, without in t'erms prohibiting a stockholder from subscribing for more than he intended to retain on his own account, or from subscribing on behalf of some one not a stockholder, or limiting the right of subscription in proportion to the subscribers’ stock ownership, but, on the contrary, reserves the right to make such allotments to the subscribers as may in its judgment seem just and equitable to all of its stockholders, a subscription to and purchase of such stock and bonds by a stockholder, ostensibly in his own name but in reality for the benefit of a person not a stockholder who furnished the consideration for the purchase, and who was known to the corporation as the beneficial purchaser before it issued its certificate evidencing the transfer, is not a fraud on the corporation of which the stockholder making the subscription is entitled to complain, in justification of his refusal to deliver the stock and bonds to the person in whose behalf the purchase was made, where it does not appear that any other stockholder of the seller had ever complained that he had received a smaller allotment than he was entitled to.</p> <p>Id.—Evidence to Vary Written Offer for Subscriptions.—In an action by the beneficial purchaser to compel the delivery to him of the stock and bonds purchased on his behalf, it was not error to exclude paroi evidence of the intention of the selling corporation ■to limit the terms of its offer, in contravention of the terms of a written circular in which its offer was made.</p> <p>Id.—Promise to Subscribe for Nonstockholder not Conditional— Failure of Consideration.—It is held, upon a review of the evidence, that the appellant’s promise to make the subscription for the benefit of the plaintiff, which was communicated in a letter addressed to an agent of the latter, was not conditional upon such agent’s agreement to provide at any future time for such credit as he might desire, and the fact that the agent did not render such financial assistance, prior to the consummation of the purchase, which was effected by the appellant without any request therefor, did not constitute a failure of consideration for the promise.</p> <p>Id.—Evidence—Offer of Part of Deposition—Introduction of Best by Adverse Party—Appeal.—As a general rule, the offer by a party of a part of a deposition does not necessarily authorize the adversary to introduce the rest of it. His right is limited to the offer of such other parts as related to the same subject. Where, however,' the court permits the adversary to offer the entire deposition* its action cannot be deemed erroneous on appeal, if the substance of the deposition is not embodied in the record.</p> <p>Id.—Consideration—Promise to Subscribe for Another—Payment of Subscription Price.—It is not necessary to the existence of a good consideration that a benefit should be conferred upon the promisor. ' It is enough that a prejudice be suffered or agreed to be suffered by the promisee. Consequently the payment of the subscription price of the stocks and bonds of the plaintiff was a good consideration for the agreement of the nominal subscriber to trams- . fer them to him</p> <p>Id.—Parol Evidence to Vary Meaning of Letters.—Where the meaning of letters exchanged between the parties and of the circular offering the stock and bonds for subscription was perfectly plain, evidence to vary their terms was inadmissible.</p> <p>Id.—Ostensible Subscriber Became Trustee of Beneficiary—Equity will Specifically Enforce Trust.—After the stockholder, in pursuance of Ms agreement to that effect, had subscribed for and received the allotment of stock and bonds for the benefit of the person who paid the consideration therefor, he became a trustee for the latter, and equity will compel him to transfer the same to the beneficial owner, and will not remit the latter to an action at law.</p> <p>Ib.—Equity will Specifically Enforce Trust as to Personal Property.—The general rule that equity will not compel the delivery of specific personal property wrongfully withheld, nor enforce the specific performance of a contract to sell chattels, unless it is shown that money damages for the breach of' the obligation would not afford adequate relief, is not applicable to a suit by the beneficiary against Ms trustee to enforce a trust as to personal property.</p>

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

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

<p>Action for Services—Verdict for Plaintiff for Less Than Amount Sued for—Motion for Judgment for Pull Amount—Trial on Theory of Sufficiency of Answer—Appeal.—In an action to recover the value of professional services, in which a verdict for the plaintiff was rendered for an amount less than that sued for, and in which a trial was had of the issues on the theory that the answer contained a sufficient denial of all the allegations of the complaint, the plaintiff, on an appeal by him from an order made after judgment, refusing to set aside the judgment and to enter a new judgment, based upon the verdict, for the full amount sued for, cannot raise for the first time the matter of the failure of the answer definitely to deny the averments of the complaint as to the value of the services.</p> <p>Id.—Presumption of Trial on Merits—Minutes of Court.—On such appeal, and in the absence of any showing to the contrary in the record, it must be assumed that the minutes of the court showed a trial on the merits, and that the answer was treated as a denial of all the allegations of the complaint.</p> <p>Id.—Services Rendered Under Contingent Contract.—The trial court was justified in denying such motion in view of the defense that the services sued for were performed under an agreement for payment of fees contingent upon success, where the record reveals nothing which would not comport with thei theory that the jury may have concluded that the contract was a contingent one, that one of the matters undertaken had been completed, and that the amount awarded by the jury was for that work.</p>

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

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

<p>Sale—Contract of Corporation—Authority of Person Executing— Reception of Contract in Evidence Without Objection—New Trial.—A corporation, in an action to enforce its liability as seller for the breach of a written contract for the sale of goods, which on its face purported to be executed in its name by an individual, and which was admitted in evidence at the trial without objection of any kind, and was then frequently made the subject of other evidence, cannot on a motion for new trial for the first time raise the objection of the want of evidence showing authority in the individual signing the contract to act in. its behalf, or showing its ratification of the contract.</p> <p>Id.—Contract Executed in Duplicate—Copy Signed by Each Party. Where the evidence was conflicting as to whether the contract of sale was drawn in duplicate, each party respectively signing the copy given to and retained by the other, the finding of the jury that the contract was so executed will not be disturbed on appeal.</p> <p>Id.—Measure op Damages—Breach by Seller—Coal Deliverable at “Ship’s Side”—Coal Yards Only Open Market por Purchase.— The measure of damages for the breach by the seller of a contract for the sale of a cargo of coal, which was deliverable at a specified place at “ship’s side,” is the difference between the market value of the coal in the coal yards at the place of delivery and the price agreed to be paid by the contract, without any deduction for the difference between its value at such yards and at “ship’s side,” if the purchaser could not have bought the coal in the open market at the place of delivery except at such coal yards.</p>

. The facts are stated in the opinion of the court. The opinion reversing the judgment on which the remittitur issued is reported in 164 Cal. 221, [128 Pac. 924].

<p>APPLICATION for a Writ of Mandate directed to the Superior Court of San Joaquin County and to J. A. Plummer, a judge thereof.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Quieting Title—Mining Claim Designated by Particular Name— Indefiniteness op Description of Boundary—Construction of Findings—Defendants- Owners of Adjoining Claim—Pleadings.—In an action to quiet title to a mining claim, the complaint, while alleging that the property was known by a particular name, was indefinite in the description of its boundaries. The answer, after denying that the plaintiff had any interest in the property referred to in the complaint, or that the defeudants had trespassed on the plaintiff’s claim, set up title in the defendants to a specific mining location, and admitted that they were conducting mining operations upon such land claimed by the plaintiff as was within the limits of their location. The court found that the plaintiff owned the claim designated by the name alleged in the complaint, particularly describing it, but that it was not the owner or entitled to the possession of any other land described or attempted to be described in its complaint; that none of the defendants had ever claimed or had any interest in the property so described in the findings and constituting the plaintiff’s claim, or had ever entered thereon, or any part thereof, or taken any mineral therefrom, or ever threatened so to do; and that all of the defendants’ mining operations had been upon land not included in the plaintiff’s claim, but upon land forming a part of their own location, which adjoined the plaintiff’s claim. Seld, that the pleadings put in issue the ownership of the property attempted to be described in the complaint, and that the findings, in view of the uncertainty of the description of the plaintiff’s claim in the complaint, were sufficient to support a judgment for the defendants, as to the land included in their location, notwithstanding the fact found that the defendants never claimed any interest in the property found to belong to the plaintiff, was opposed to the express statements of the answer.</p> <p>Id.—Eight of Plaintiff to Judgment Establishing Its Ownership. Under such pleadings and findings the plaintiff was entitled to have the judgment decree it to be the owner of so much of the property attempted to be described in the complaint as was found to belong to it, the rights of the defendants being protected as to the remainder of the property.</p>

This was a proceeding for a Writ of Review, instituted in the District Court of Appeal for the First Appellate District, for the purpose of annulling an order of the board of supervisors of Contra Costa County, annexing to the city of Richmond, for school purposes, a portion of the Stege School District adjoining that city.

<p>Pleading—Complaint fob Services—Allegations of Express Contract and Quantum Meruit—Findings—Judgment.—Where the complaint in an action to recover for services rendered was so drawn as to make it sufficient to support a judgment either upon the theory that the amount of the compensation was fixed by agreement, or upon the theory that it was not so fixed, and that the plaintiff was seeking the reasonable value of his services, and no objection to its form was raised in the trial court, findings determining the reasonable value of the services, but ignoring the issue as to the agreed compensation, are sufficient to support a judgment for the plaintiff for the amount found to be reasonable.</p> <p>Id.—Findings Construed to Support Judgment.—Findings must be given such a construction as will support the judgment, if this may reasonably be done, rather than one that will not support it.</p> <p>Id.—Sustaining Demurrer to Answer—Findings not Essential on Eliminated Issues—Appeal.—Where a demurrer is sustained to a defense interposed by answer, the issues of fact thus made are eliminated, and no findings thereon are essential. The ruling of the court sustaining the demurrer may be reviewed on appeal 'from the judgment.</p>

<p>Taxation—Operative Property op Railroad—State Board op Equalization—Conclusiveness op Determination—Mandamus to Compel Assessment by Board.—The decision of the state board of equalization upon the question whether property of a railroad is operative or nonoperative for purposes of taxation, within the meaning of the first and second paragraphs of section 14 of article XIII of the constitution, and the act of April 1, 1911 (Stats. 1911, p. 530), is not conculsive upon the courts in a proceeding by mandamus to compel the assessment of such property as operative, where there was no conflicting evidence, nor any dispute about the facts upon which its decision depended. In such a case, the decision of the board depends wholly upon a question of law, and if the facts show that the property is operative, mandamus will lie against the board to compel its assessment as such.</p> <p>Id.—Railroad Operating Part op Line—Regular Running op Mixed Train por Ebeight and Passengers—Property Used is Operative and Taxable as Such.—Where a railroad company has built fourteen miles of its line and has run thereon regularly, on. a fixed schedule time, each way, every day except Sundays, a mixed train carrying all freight and passengers offered by the public, at fixed rates, earning thereby over ten thousand dollars a year, and still continues such operation, the part of the line so operated is “operative property,” within the meaning of section 2 of the act of April 1, 1911, and of section 14, article XIII of the constitution, and is taxable only for state purposes.</p> <p>Id.—Construction op Act op April 1, 1911—Courts may Review Determination op Board.—The provision of section 8 of the act of April 1, 1911, that the state board of equalization “shall finally determine the fact of such operation and the liability of any such company to be taxed upon its gross receipts,” must be construed in connection with section 10 which declares that such determination shall be binding upon all parties “unless set aside by a court of competent jurisdiction.” Prom this' it follows that the determination of the board on the subject is not final, but may be reviewed and set aside in a proper action in any court having jurisdiction, if good cause exists therefor.</p> <p>Id.—When Mandamus Lies to Compel Assessment by Board.—Mandamus will lie to compel the state board of equalization to assess the operative property of a railroad whenever the time to elapse is such that such remedy can be made available to protect the road against an unlawful imposition of taxes by county officials because of a wrongful decision of the board. Section 23 of the act of 1911, authorizing the taxpayer to sue for and recover taxes paid, if they have been unlawfully assessed and collected, is not an exclusive remedy.</p> <p>Ib.—"Full Operation” of Railroad—Definition Contained in Section 468 of Civil Code—Forfeiture.'—Section 468 of the Civil Code, first enacted in 1872, defining when a railroad is to be deemed in “full operation” and providing for its forfeiture for failure to so keep it, has no application to the determination of the question whether or not the property of a railroad or other public service corporation is “operative,” within the meaning of section 14 of article XIII of the constitution, and the act of 1911.</p> <p>Id.—Forfeiture of Railroad Property—Liability for Taxation When Forfeiture has not Been Availed of—Mode of Taxation.—Statutes providing for a forfeiture are not ordinarily to be extended by implication to qualify statutes upon other subjects. So long as the state does not avail itself of the forfeiture, but permits the railroad company to continue to carry on its business for. compensation, the property owned, used and possessed by it must be taxed in the manner provided in the taxation laws relating to such property and to such companies. The act of 1911, defines for itself what shall be deemed “operative property” for taxation. This provision excludes the definition of “full operation” in section 468 of the Civil Code, and it must be given controlling effect whenever the right to taxation, the liability for taxation, or the mode of taxation, is involved.</p>

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

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

<p>APPEAL from an order of the Superior Court of the City and County of San Francisco denying a motion for an order setting aside the default of all persons and vacating a judgment entered for the plaintiffs in a proceeding to establish title to land under the so-called McEnerney Act. James M. Seawell, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

APPEALS from orders of the Superior Court of the City and County of San Francisco, one from a decree of partial distribution and the other from a decree of final distribution of the estate of a deceased person. J. V. Coffey, Judge. The facts are stated in the opinion of the court.

<p>Will—Contest—Evidence—Incompetency of Testatrix—Undue Influence.—OA this contest of the probate of a will, the evidence properly admitted is held amply sufficient to sustain the findings of the court both that the testatrix did not have the sound and disposing mind and memory essential to the making of a last will, and that the document offered for probate was the result of undue influence.</p> <p>Id.—Nature of Mental In competen cy.—One may be mentally incompetent to make a last will by reason of a want of development of the mental faculties, although he is neither a lunatic nor an idiot, nor in any way possessed by delusions.</p> <p>Id.—Requisites to Sound and Disposing Mind.—It is essential to the sound and disposing mind requisite for the making of a will that the testator have an understanding of the nature of the business in which he is engaged, and an understanding and recollection as to his property which he means to dispose of, of his relations to his relatives and those around him, of the persons who are the objects of his bounty, and the manner in which it is to be distributed.</p> <p>Id.—Arrested Mental Development Amounting to Incompetency.— The evidence properly admitted is held to sustain the theory of the contestant that, while the testatrix was neither a lunatic, an idiot or an imbecile, nor in any way a victim of insane delusions, her mind was arrested in development during childhood and never materially progressed, with the result that in so far as her mind was concerned she was practically a child to the day of her death, and was never mentally competent to dispose of her large estate by will.</p> <p>Id.—Evidence of Undue Influence.—The evidence is also held amply sufficient to sustain the finding of undue influence operating directly upon the testamentary act, notwithstanding the testimony to the contrary of the only persons who were present at the time of the execution of the alleged will.</p> <p>Id.—Evidence of Incompetence—Business of Testatrix Transacted by Others.—On the trial of such contest, letters written by the proponent of the will, at times when she had personal charge of the deceased, to the manager of the latter’s property, acknowledging receipt of monthly drafts for the deceased and advising him how much she would need per month for the future, were admissible in evidence on behalf of the contestant as tending to show the actual transaction of the business of the deceased by the writer, a matter going to the acts and conduct of the deceased herself.</p> <p>Id.—Manner of Treatment by Family—Conduct of Testatrix.— While the manner in which a person whose sanity is in question was treated by his family is not, taken alone, competent substantive evidence tending to prove insanity, because it is a mere extrajudicial expression of opinion on the part of the family, still it is proper evidence when given in connection with the conduct of the alleged insane person under treatment, as illustrating and explaining such conduct.</p> <p>D>.—Acquiescence of Testatrix in Course of Conduct.—Absolute acquiescence by the person whose soundness of mind is in question in a course of conduct on the part of those around him with relation to his property and personal affairs, which no person of sound mind would tolerate or acquiesce in, is competent evidence tending to show an unsound mind.</p> <p>Id.—Letters as Part of Res Gestae of Transaction of Business.— Where the business of such person is transacted by others by means of letters and cablegrams from one to the other, such letters and cablegrams constitute a part of the res gestae in the matter of the actual transaction of business.</p> <p>Id.—Declarations of Legatees and Devisees upon Question of Mental Competency.—The declarations of any number of legatees or devisees less than all upon the question of the mental competency of a testatrix is not admissible in evidence on the issue of competency. This rule is applicable to the declarations of a person who is executrix, proponent and principal beneficiary of the will. The same rule applies where the evidence is addressed to the question of undue influence.</p> <p>Id.—Admission of Declarations for Limited Purpose—Appeal.— Where the trial judge, upon the hearing of the contest, consistently ruled out such declarations when offered as independent substantive evidence on the issues of ineompeteney and undue influence, and subsequently found against the validity of the will because of mental incompetence of the testatrix and undue influence, it will be assumed on appeal, that such declarations, when admitted in evidence for particular purposes, were not considered by the trial judge for any other purpose than the ones for which they were' admitted.</p> <p>Id.—Paper Used to Refresh Memory not Testimony.—A paper used solely for the purpose of refreshing the memory of a witness is in no sense testimony, and admissible in evidence as such by the party producing the witness, except in so far as it is testified to by the witness to be true, and thus made a part of his evidence.</p> <p>Id.—Surprise—Impeaching Witness—Failure to Testify—Collateral Matters.—A party has no right, on the ground of surprise, to impeach his own witness by showing previous inconsistent statements made by him as to matters concerning which he has failed to testify, as for instance upon matters as to which he has said that he did not remember, or as to matters concerning which he has given testimony that are purely collateral or irrelevant. The test whether the matter is collateral is, could the fact as to which the inconsistency is predicated, have been shown by evidence by other witnesses, independently of the inconsistency.</p> <p>Id.—Impeaching Witness by Contradictory Letters.—Where the contestant of the will offers the proponent as a witness in his behalf, and the witness gives testimony against the contestant as to a matter clearly material and competent upon, the issue of competency, letters previously written by the witness to the contestant containing statements inconsistent with her testimony on the trial upon such subject, are admissible for the purpose of impeaching the witness.</p> <p>Id.—Attempt to Impeach as to Collateral Matters—Objection must be Specific.—Where letters offered for the purpose of impeaching such witness are inadmissible solely because the matters as to which the impeachment was attempted were collateral, objections to their introduction should have been based on that specific ground. A general objection, on the ground that as declarations of the witness the letters were incompetent against the other beneficiaries in the will, is not sufficiently specific.</p> <p>Id.—Immaterial Error in Admitting Incompetent Evidence.—It is held, that the erroneous admission of such letters, although they contained statements tending to show that the witness had expressed herself at various times substantially as entertaining the opinion that the testatrix was mentally incompetent, was without prejudice, as they in no substantial degree added to the showing to the same effect that was made by such portions of her testimony as either were given without objection or properly admitted over objection.</p> <p>Id.—Objection to Evidence First Made on Motion to Strike Out.— Where such witness, who was a sister of the testatrix, had testified in response to questions asked by the contestant, that their mother had not made in her will any request of her children for the care and protection of the deceased, and the contestant then offers the mother’s will for the purpose of impeachment, an objection to its admission, on the specific ground that the attempted impeachment was upon a collateral matter, although it would have been good if made prior to the admission of the will in evidence, cannot be considered if made for the first time on a motion to strike out the will.</p> <p>Id.—Discretion of Court in Striking Out Evidence.—The trial court is not compelled to strike out evidence received without a sufficiently specific objection, where such objection was practically available to’ the party before the admission of the evidence, and may refuse to do so in the exercise of a reasonable discretion.</p> <p>Id.—Accounts and Letters Showing Transaction of Business fob Testatrix.—Written settlement of accounts, and letters and other matters relating to a compromise of a litigation, as to each of which the testatrix had a pecuniary interest, and in which she was represented by members of her immediate family who assumed to act in her behalf, without consultation with her, were properly received in evidence on behalf of the contestant, as tending to show the actual transaction at all times, by her relatives, of all the business and personal affairs of the deceased, without consultation with her at any time. Such circumstances, taken in connection with her acquiescence therein, constituted material and competent evidence on the issue of mental competency.</p> <p>lb.—Part of Letter Admissible—Objection Directed to Entire Letter.—Where part of a letter offered in evidence is admissible, the remainder being incompetent, an objection of incompetency directed to the whole letter is properly overruled.</p> <p>Id.—Reception of Evidence Admittedly Incompetent—Appeal— Error Assumed to be Without Prejudice—Opinion.—Where the trial judge, over the sufficiently specific objection of the proponent to the admission of a certain part of a letter offered by the contestant, erroneously admits the entire letter in evidence, but at the time of so doing expresses the opinion that the part objected to was not competent, it will he assumed on appeal that the objectionable portion of the letter was not considered by him in reaching his decision in favor of the contestant, and that the error was therefore without prejudice to the proponent. This assumption will be indulged, notwithstanding the trial judge, in an unofficial opinion rendered by him in deciding the contest, referred to such objectionable matter as one of the things tending to show the incompetency of the deceased.</p> <p>Id.—Letter from Parent Recommending Testatrix to Care of Family—Evidence of Conversation in Presence of Testatrix—■ Remoteness—Weight of Evidence.—A letter from the father of the testatrix, in which he recommended her to the care of other members of the family “on account of her weak mind,” was admissible in evidence as a part of a conversation had regarding it by the members of the family, in the presence of the testatrix, during which the deceased remained silent and unconcerned. Under the circumstances of this case, the fact that such conversation took place some thirty-five years prior to the death of the testatrix, goes only to the weight to be accorded the evidence, and not to its admissibility.</p> <p>Id.—Conduct of Person at Meeting Where Her Competency was Discussed.—The conduct of a person within a few months of the age of majority, at a family meeting, where in her presence and hearing her mental competency is being discussed and the claim asserted and apparently accepted by all present that she is so weak minded as to need the guardianship and care af others throughout her life, and it is being discussed whether or not a writing expressing the view that she is so affected shall be made a public record, is some evidence on the question of her competency at the time.</p> <p>Ed.—Deposition of Witness—Intimate Acquaintance—Impeaching Witness Who has not Given Hostile Testimony.—Where the deposition of a witness offered by the contestant disclaimed any intimacy of acquaintanship with the testatrix, and failed, to give any testimony as expected by the contestant touching her incompetency, it was error to admit in evidence, on the ground of surprise, a contradictory letter written by the witness, in which she expressed the opinion that the testatrix “was completely incapable of taking any determination for herself.” Under the circumstances, however, the error is held to have been without prejudice, as it is also so held with respect to the admission of certain correspondence had between the proponent and the contestant and his son, subsequent to the death of the testatrix and prior to the filing of her alleged will.</p> <p>Id.—Statements in Deposition Referred to on Cross-examination— Deposition not Rendered Admissible.—Where a witness for the contestant, upon his cross-examination by the proponent, has his attention directed to certain statements in a deposition claimed to have been previously made by him, and he was asked if he so stated and answered affirmatively, no part of the deposition being put in evidence by the proponent, the contestant, on redirect examination, is not entitled to offer the entire deposition in evidence, but may show, that in connection with the matters already called to his attention, he had stated other matters, thus giving his whole statement on the subject.</p> <p>Id.—Evidence to Explain Impeaching Fact Brought Out on Cross-examination.—Where a witness for the contestant, who was a connection by marriage and an intimate acquaintance of the deceased, had testified on direct examination to her long continued mental' ineompeteney, and on cross-examination the impeaching fact had been brought out that during the period of her ineompeteney he had tendered for approval and had approved by the court an official bond on which the deceased was a surety in a very large amount, the contestant was. entitled, on redirect examination, in explanation of the witness’s conduct in that particular, to show by him the uniform assumption by all the members of the family that deceased was mentally weak and incapable of managing her affairs; the constant desire on their part to prevent any disclosure of that fact to the public; and the fact that while recognizing her ineompeteney they nevertheless, for the purpose of protecting her both as to person and property, and preventing a disclosure of her ineompeteney and a consequent necessity for the appointment of a guardian, adopted and uniformly carried out a policy of having her business transacted in her own name, under their immediate personal supervision and direction, with the understanding that they stood behind and in support of everything that was done.</p>

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

<p>Corporation—Stock Issued Under Agreement That it shall be Fully Paid and Nonassessable—Directors cannot Assess— Bights of Creditors not Involved.—A Californian corporation, which sells shares of its capital stock upon an express agreement that the stock shall be issued as fully paid and shall be nonassessable, and the certificates of which recite that the stock is fully paid and nonassessable, cannot, by its directors, levy an assessment upon such stock, where no rights of a creditor are directly involved.</p> <p>Id.—Assessment Intended to Pay Corporate Debts.—The fact that the assessment was designed primarily for the purpose of paying the claims of its creditors did not authorize the corporation to levy it on such stock.</p> <p>Id.—Contracts Between Corporation and Stockholders.—A corpora-1 tian may enter into an agreement with its stockholders to do or to refrain from doing something where such action or abstention is not contrary to express law or to public policy.</p> <p>Id.—Validity of Contract—Constitutional Provision Imposing Personal Liability on Stockholders—Power to Levy Asssesments. Such contract is not inimical either to section 3 of article XII of the constitution, which merely imposes a direct personal liability on the stockholder to.the creditor, without referring to the relations existing between the corporation and its stockholders; or to sections 331 and-332 of the Civil Code, the first of which merely gives the directors of a corporation the right to levy, assessments upon paid-up stock, without compelling them to do'so, while the latter merely announces certain limitations upon the general power of assessment.</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>County—Ordinance Prohibiting Sale of Liquor—Failure to Enact Penalty—Prior Ordinance Licensing Sale and Enacting Penalty—Subsequent Ordinance not Amendatory of First.—An initiative county ordinance which, except in certain enumerated cases, absolutely prohibits the sale of intoxicating liquors in any portion of the county outside of the corporate limits of a city or town, without making any provision to license such sale, but which fails to declare the violation of any of its terms a misdemeanor, or to provide any punishment for such violation, cannot be construed as amendatory of a prior ordinance adopted by the board of super-1 visors, regulating the sale of such liquors, providing for the licensing thereof, and making it a misdemeanor to sell or give away such liquors without having procured a license so to do. Hor can the penal provisions of the prior ordinance be deemed as transported into the subsequent initiative ordinance.</p> <p>Id.—Punishment Essential to Make Prohibited Act a Crime.—A description, definition, and denouncement of acts necessary to constitute a crime do not make the commission of such act or acts a crime, unless a punishment be annexed, for punishment is as necessary to constitute a crime as its exact definition.</p> <p>Id.—Licensee Under Prior Ordinance cannot be Punished for Doing Acts Prohibited by Second Ordinance.—A person who has not violated the terms of the prior ordinance, but has complied .therewith and holds a license issued by the authorities under that ordinance, cannot be punished on the ground that the acts done by him are in violation of the initiative ordinance, nor can he be punished under section 435 of the Penal Code, making it a misdemeanor to carry on a business for which a license is required, without having procured such license, (1) because he has procured the license called for, and (2) because the initiative ordinance contains no provision for the issuance of a license for the sale of intoxicants.</p> <p>Id.—Local Option—Wyllie Act is Constitutional—Electors do not Exercise Legislative Functions.—The so-called Wyllie Act (Stats. 1911, p. 599) which in effect prohibits the sale etc. of alcoholic liquor in any incorporated city or town, or the portion of any supervisorial district not included within the boundaries of any such city or town, in which at least twenty-five per cent of the electors petition for an election on the question, unless a majority of the electors voting on the question declare themselves in favor of such sale, is constitutional. Under that act, the electors exercise no legislative function, the only thing left to the electors of each supervisorial district being to determine whether they will avail themselves of the prohibitions contained in the act.</p> <p>Id.—Construction of Local Option Act—Districts Voting for and Against Liquor License—Police Power to Regulate or Prohibit Sale of Liquor in Different Districts.—Where one of the territorial units established by th§ so-called Wyllie Act has voted against licensing the sale of alcoholic liquors, the sale of intoxicants may not be authorized therein even under license; but where another territorial unit has voted for license, this amounts to no more than an expression of the electors’ pleasure in the matter, and is not controlling upon the legislative body,—either .the board of supervisors, the common council of a municipality, or the electors at large acting through the initiative,—which is authorized, under its police power, to enact a subsequent ordinance, applicable to such territory, regulating or prohibiting the sale of intoxicants therein.</p> <p>Id.—Initiative Ordinance Regulating Sale of Liquor Throughout County—Applicability to Different Districts—Electors in Municipalities may Vote at Election.—Where one supervisorial district of a county, outside of the municipalities therein, at an election held under the so-called Wyllie Act, voted in favor of licensing the sale of liquors in the district, and another such district, at a similar election, voted against licensing such sale, the electors at large of the county, including those residing in municipalities, have authority, through the initiative, to enact a subsequent regulatory or prohibitory ordinance affecting the sale of liquors throughout the entire county. The district which voted in favor of a license, would be subject to the terms of such ordinance, while the district which voted against a license, could-not be subjected to the terms of any regulatory license. This fact, however, would not render the ordinance void as to such other parts of the county as are subject to its operation.</p> <p>Id.—Construction of Ordinance—Keepers of Hotels.—A provision in a county ordinance authorizing keepers of hotels having at least thirty-five guest-rooms to sell liquors within the county, will be construed as applying only to persons who keep such hotels within the limits of the county.</p> <p>Id.—Unreasonableness of Ordinance must be Clearly Shown.—The objection that such ordinance is unreasonable in limiting the right to sell liquors to the managers of hotels containing thirty-five guest-rooms and upward cannot be sustained without a clear showing of the absolute unreasonableness of the limitation.</p>

<p>APPEALS from a judgment of the Superior Court of the City and County of San Francisco. James M. Seawell, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>APPLICATION for a Writ of Mandate directed to the Board of Trustees of the City of San Buenaventura.</p> <p>The facts are stated in the opinion of the court.</p>

<p>State Building Act—State Department of Engineering—Contract in Excess of Estimated Cost Prohibited—Deduction from Cost of Omitted Work.—Under the act of 1909 commonly known as the State Building Act (Stats. 1909, p. 656), the department of "engineering is prohibited from entering into a contract for the erection of any state structure—in this instance the erection of a group of buildings for the state normal school at Los Angeles— the cost of which exceeds in amount the estimates of cost approved by the advisory board of engineering; and if omissions of some of the work included in the plans and specifications may legally be made by the department of engineering from the contracts awarded, the estimated cost of the matters so omitted must be deducted from the estimated cost of the entire work, and the remainder is the estimate of cost beyond which the department may not go in awarding contracts.</p> <p>Id.—Different Schemes of Proposed Work—Notice for Bids.—Assuming that the department of engineering may submit different schemes of proposed improvement for bids at the same time and in one proceeding, the notice for bids, required by the statute, should show that such is the proposition.</p> <p>Id.—Notice for Bids Restricted to Single Scheme—Insufficient Reference to Plans and Specifications.—Where the plans and specifications on file showed it to be the intention of the department so to submit different schemes of the proposed improvement for bids, the notice for bids must show on its face, in general terms at least, what the scheme of the department is as to bids, and a notice which did not do this, but which in fact indicated a different scheme,—namely, a single definite plan for the proposed improvement, and a single bid for the whole, with bids for the separate parts of the whole designated by the statute, cannot be held sufficient because of a reference therein to the plans and specifications.</p> <p>Id.—All Parts of Work must be Estimated.—Under the statute, the department is required to make an estimate of cost for all parts of the proposed work, and if it omits to do so, it is not authorized to proceed in the matter of letting a contract for such work.</p>

<p>APPLICATION for a Writ of Prohibition directed to the Superior Court of Los Angeles County. Curtis D. Wilbur, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Divorce—Desertion—Attempts at Reconciliation bt Deserting Spouse not Made in Good Faith.—Where one spouse deserts the other, although the law permits the delinquent spouse to repent and seek reconciliation and restoration, and, if refused, makes it thereafter desertion on the part of the otherwise innocent spouse, the offer of the spouse originally at fault to resume conjugal relations must be made in good faith. Whether good faith exists in making such an offer is a question of fact, and the determination of that question by the trial court will not be disturbed if there is any ground for supporting it.</p> <p>Id.—Evidence—Finding.—The evidence in this case is held to sustain the finding of the trial court, to the effect that the attempts of the plaintiff, after his desertion of his wife, to effect a reconciliation with her, were not made in good faith.</p>

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

<p>Pledge op Property Fraudulently Acquired by Pledgor—Bona Fide Pledgee Protected as Against Creditors op Grantor op Pledgor. A tana fide pledgee of corporate stock, which the pledgor had acquired from his immediate grantor under such circumstances as to make the transfer fraudulent and void as against the grantor’s creditors, is entitled, a® against such creditors who had not acquired a prior lien, to hold the stock as security for the loan for which it was pledged, and, upon default in the payment of the note evidencing the loan, to enforce the lien of the pledge against the stock. Under such circumstances, the rights of the pledgee are paramount to the rights of the fraudulent grantor’s creditors.</p> <p>Id.—Execution Sale op Pledged Property—Purchaser Acquires Interest op Pledgor.—Where subsequent to the pledge, it was adjudged that the stock had not belonged to the pledgor but was the property of his grantor, and the interest of the latter therein was sold under execution, the execution purchaser acquired, subject to the pledge, all of the pledgor’s interest therein, and thereafter stood in the pledgor’s shoes, so far as concerned any proceeding against the pledged property instituted by the pledgee, with notice of his rights.</p> <p>Id.—Unauthorized Sale by Pledgee—Consent of Pledgor—Sale Ineffectual as to Execution Purchaser.—After such execution sale, the pledgee, having notice thereof, could not sell the pledged property, except as sanctioned by the contract of pledge, without the consent of the execution purchaser. An attempted sale thereof, in contravention of the toms of the contract, although with the consent of the pledgor, was ineffectual, except in so far as the pledgor himself was concerned, and did not affect the rights of the execution purchaser.</p> <p>Id.—Bights of Successor of Pledgor in Pledged Property.—The execution purchaser, as the successor of the pledgor, acquired no right in regard to the pledged property other than the right to receive it from the pledgee upon paying the debt for which it was pledged, or in the event of a legal sale thereof by the pledgee to enforce the lien of the pledge, to receive any surplus over the amount necessary to satisfy the debt.</p> <p>Id.—Effect of Unauthorized Sale by Pledgee on Bights of Successor of Pledgor.—-The attempted unauthorized sale of the pledged property by the pledgee to herself, with the consent of the pledgor, and the surrender of the note secured to the pledgor, did not destroy the lien of the pledge, or enlarge the rights of such exe- - eution purchaser in regard to the property.</p> <p>Id.—Sale by Pledgee to Himself—Successor of Pledgor cannot Treat Sale as Ineffectual and Take Property Without BeDEMfTiON.—Where the attempted unauthorized sale by the pledgee was to himself, the pledgor or his successor in interest may, at his option, insist that the sale is ineffectual for any purpose, and that the pledgee still holding the property holds it solely as pledgee, bound to deliver it up upon the actual payment to him of the amount of the debt for which it was pledged. Such successor has no right, in exercising his right to treat the sale as ineffectual, to insist either that the debt satisfied'in no other way than by such attempted purchase has in fact been satisfied, or that he may take the property without paying such debt.</p> <p>Id.—Motives of Pledgee in Making Sale Immaterial.—Under such circumstances, the motives of the pledgee in attempting to make the unauthorized sale to himself are immaterial to the rights of the successor of the pledgor.</p> <p>Id.—Surrender of Secured Note to Pledgor—Debt not Satisfied as to Successor of Pledgor.—The facts that at the time of such attempted sale there was an understanding between the pledgor and the pledgee that the obligation was thereby discharged, and the note secured was thereupon surrendered to the pledgor as paid, did not so affect the rights of the successor of the pledgor as to authorize him to treat the sale as ineffectual to transfer the pledged property to the pledgee, and as effectual to satisfy the debt.</p> <p>Id.—Redemption by Successor of Pledgor—Surrender of Secured Obligation—Assignment of Obligation.—The purchaser at execution sale of the pledged property subject to the lien of the pledge, did not acquire the personal obligation of the pledgor to the pledgee, and the surrender of such obligation to the purchaser was not essential to the protection of Ms rights upon Ms redemption of the property, nor was he entitled to insist upon the assignment of such obligation by the pledgee as a condition of Ms redemption of the property.</p>

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

<p>Estates of Deceased Persons—Notice to Creditors—Notice of First Publication-—Time for Filing—Decree Establishing Due Notice.—In the settlement of the estate of a deceased person, the court is not authorized to make the decree establishing due notice to creditors provided by section 1492 of the Code of Civil Procedure, unless a printed copy of such notice accompanied by a statement setting forth the date of the first publication thereof and the name of the newspaper in which the same is printed, has been filed in court, within thirty days after the first publication of the notice, as required by section 1491a of that code, enacted in 1911.</p> <p>Id.-—Provisions as to Filing Statement of First Publication are Mandatory.—The provisions of section 1491a of that code, requiring the printed copy of the notice and the statement as to its publication to be filed within thirty days after the first publication of the notice are mandatory and not merely directory.</p>

<p>Negligence—Collision Between Automobile and Motor Car of Street-railway—Failure to Give Warning Signals—Evidence. In an action by one who had been a passenger for hire in an automobile to recover damages for personal injuries resulting from a collision with a motor car of a street-railway, evidence of the persons riding in the automobile; who were in a position to hear warning signals, by bell or whistle, of the approach of the motor car, had they been given, that they heard no such signals, is sufficient to sustain a finding by the jury that no warning was given, notwithstanding the positive testimony of other witnesses to the contrary.</p> <p>Id.—Passenger for Hire in Automobile—Contributory Negligence of Chauffeur.—A passenger for hire in an automobile, the chauffeur of which was not employed by her, and who did not undertake to direct the manner in which the automobile should be operated, is not precluded, by reason of the contributory negligence of the chauffeur, from maintaining an action to recover damages for personal injuries resulting from a collision with a motor car of a street-railway, which was being negligently operated by its employees at the time of the accident.</p> <p>Id.—Degree of Care Required of Passenger for Hire in Reference to Management of Vehicle.—A passenger in a vehicle operated by another is bound to exercise ordinary care for his own safety* and if he is aware that the operator is carelessly rushing into danger, it may be incumbent upon him to take proper steps for his own safety. Under the circumstances of the present case, it is held, that it cannot be said, as matter of law, that the plaintiff was negligent in failing to call the attention of the chauffeur to the danger of the situation, nor was the evidence of his incompetency or inattentiveness so manifest as to impose on her any greater obligation of watchfulness than that which would otherwise have been herí.</p> <p>Id.—Application of Doctrine of Last Clear Chance—Defendant must have Known of Plaintiff’s Peril.—In determining the question of liability for a negligent act, the “last clear chance” doctrine is only applicable to a defendant who was actually aware of the fact that the plaintiff had negligently put himself in a position of danger; it does not apply to the ease of a defendant who would have discovered the plaintiff’s peril but for romissness on his part. Under the circumstances of this case, an instruction which announced the contrary doctrine must be deemed prejudicial.</p> <p>Id.—Automobile Approaching Street-railway Crossing—Care Esquired op Motorman to Avert Collision—Assumption That Automobile Would Stop.—Where a motor ear on a street-railway and an automobile on a public highway were going in the same direction toward a place where the highway crossed the railway, the duty of taking added precautions to avert a collision was not cast upon the motorman by the mere fact that he saw the automobile when at a distance of two hundred and fifty feet from the crossing. He had the right then to assume that the automobile would stop before coming to the track, and a realization of danger by the motorman, which would render the railway company liable for negligence under the doctrine of the “last clear chance,” would arise only when it appeared either that the automobile was being driven in ignorance or disregard of the possibility of meeting the approaching car, or that it had gotten so near the track that it could no longer be stopped.</p>

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

<p>Judgment—Effect of Judgment Before It Becomes Final—General Bule.—As a general rule, a judgment, until it becomes final by affirmance on appeal or by the lapse of the time within which an appeal might be taken, is not admissible in evidence and cannot be relied upon as the foundation of rights declared in it.</p> <p>Id.—Creditor’s Bill—Nature op Action—Application op Rule.— -Such rule has no application to an action of the kind commonly known as a creditor’s bill, the purpose of which is to apply to the satisfaction of the creditor’s demand property of the debtor which was transferred by such debtor with intent to delay or defraud any creditor or other person of his demand.</p> <p>Id.—When Creditor’s Bill Lies—Creditor Entitled to Execution hat Maintain Action.—Under section 3441 of the Civil Code, a creditor is not in a position to attack a transfer for fraud unless he has a specific lien upon the property transferred or has reduced his claim against the debtor to judgment. The judgment creditor’s action to that end, is not, strictly speaking, an action upon the judgment, but is really an action for equitable relief against the obstruction caused by the transfer which hinders him in satisfying his claim by the ordinary process of law, that is, by execution. If then, he is in a position to levy execution, he may maintain the action.</p> <p>Id.-—Monet Judgment—Execution mat Issue Pending Appeal in Absence op Stat-bond.—The fact that the time for appeal has not expired does not prevent the issuance or the levy of execution under a money judgment, nor is the right to have execution affected by the fact that an appeal is actually taken, unless an undertaking to stay execution has been given. In the absence of such undertaking, the judgment creditor may maintain a creditor’s bill, notwithstanding the fact that the time for an appeal has not expired, or an appeal has actually been taken and is pending.</p> <p>Id.—Reversal op Judgment on Which Creditor’s Bill is Based—Appeal prom Judgment in Creditor’s Action—Judicial Notice op Reversal op Original Judgment.—Where such a judgment creditor, pending an appeal from the judgment on which no stay-bond was given, recovers judgment in an action in the nature of a creditor’s bill against the judgment debtor, the supreme court, on appeal from the latter judgment, will take judicial notice of the fact of its reversal of the previous judgment on which the creditor’s bill was based, and on that account will reverse the latter judgment. In order that such judicial notice may be taken, it is not necessary that the defendant in the creditor’s bill should have pleaded, in abatement of that action, the want of finality of the original judgment. Such a plea would have been unavailing, and the fact that the defendant did not make it cannot operate to his prejudice. The ease of Sewell v. Price, 164 Cal. 265, in so far as it holds the contrary, is disapproved. (Per Lorigan, J., Henshaw, J., and Melvin, J.)</p> <p>Id.—Judicial Notice op Matters Dehors the Record—-Matters Occuring Subsequent to Appeal.-—-The general rule that there must, in the record on appeal to which the doctrine of judicial notice is invoked, be some pleading or matter referring to or involving the record and action of this court in another case before it may be judicially noticed, is not an inflexible one, and should not be applied so as to prevent this court from taking judicial notice in a pending appeal of its action in another case intimately connected with it and occurring subsequent to the taking of such appeal, when it is evident that unless such notice is taken and acted on injustice to the appellant will result.</p> <p>Id.—Showing Matters Dehors the Record on Motion.—It is held by Angellotti, J., Sloss, J., and Shaw, J., that in order to warrant the reversal of the present judgment in the creditor’s suit, it is not necessary to invoke the doctrine of judicial notice; that the real . question involved is, whether the facts of the reversal of the prior judgment, and its identity with the judgment on which the creditor’s suit was based, may be brought before the supreme court on motion and supported by evidence outside the record, and considered in disposing of the appeal, and that such course may be followed under the circumstances.</p>

<p>Citizen ship—Status Determined bt Federal Constitution and Statutes.—The status of persons as citizens of the United States or aliens, respectively, is controlled entirely by the constitution of the United S-tates and the acts of Congress passed in pursuance thereof, and in determining their meaning and effect the state courts are bound by the interpretation put upon them by the courts of the United States.</p> <p>Id.—Expatriation Permitted by Federal Statutes.—' The act of Congress of July 26, 1868 (15 U. S. Stats. 223, U. S. Eev. Stats., see. 1999), the preamble of which declares that the right of expatriation is a natural and inherent right of all people, and the body of which further declares that any decision of any officer of the government denying, restricting, or impairing the right of expatriation is “inconsistent with the fundamental principles of this government,” is operative to the extent that it gives the consent of the national government to the expatriation of any citizen by his or her voluntary act. If such consent of the nation is essential to a valid expatriation, this law is evidence thereof. The absolute right of expatriation is now recognized as the settled doctrine of this country.</p> <p>Id.—Control op Congress Over Naturalization and Expatriation.— The entire subject of naturalization and expatriation, including the method by which each might or could be accomplished and manifested, is a matter within the exclusive control of Congress.</p> <p>Id.—Marriage op Alien Woman to Citizen.—Under the act of Congress of 1855 (10 U. S. Stats. 604; U. S. Eev. Stats. 1994), every alien woman who marries a citizen of the United States becomes perforce a citizen herself, without the formality of naturalization and regardless of her wish in that respect.</p> <p>Id.—Marriage op Female Citizen to Alien—Loss op Citizenship— Woman Takes Nationality op Husband—Act op Congress op March 2, 1907.—The act of Congress of March 2, 1907 (34 U. S. Stats. 1228), now controls the subject of expatriation, and under section 3 thereof, a woman citizen of the United States by birth, who, after the passage of that act, married an alien, thereupon took the nationality of her husband and ceased to be a citizen of the United States, whether she intended that result as a consequence of her marriage or not. This results although the woman was married in this country to an alien permanently residing therein, and she and he continued to reside there.</p> <p>Id.—Woman Who has Lost Citizenship by Marriage to Alien not Entitled to Vote.—A woman who has lost her United States citizenship by such a marriage, is not entitled to vote, under section 1 of article II of the state constitution, as amended on October 10, 1911, which extends the privilege of suffrage to “every native citizen of the United States.”</p> <p>Id.—Constitutional Law—Fourteenth Amendment Does not Forbid Expatriation.—That act of Congress is not in contravention with the provision of the fourteenth amendment of the federal constitution declaring that “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside.” That provision does not forbid expatriation nor take from Congress the power to legislate concerning it.</p> <p>Id.—Marriage to Alien Prior to Act of 1907.—The question of the effect of the marriage of a native female citizen to an alien, where such marriage had taken place before the passage of said act of Congress of 1907, is not decided.</p>

<p>Practice—Setting Aside Default—Mistake of Clerk of Defendant’s Attorney—Discretion.—It is not an abuse of discretion for the trial court to set aside the default of a defendant for failure to answer an amended complaint in time, when the omission was occasioned through the mistake of a clerk in the office of the attorneys for the defendant in placing the pleading among the papers in another action between the same parties then pending in their office, and noting the time to answer in their office calendar under the number of such other action.</p> <p>Id.—Appeal—Review of Exercise of Discretion.—Where the trial court has opened a default and placed the cause in a condition for trial on the merits, an appellate tribunal is slow to interfere with the discretion therein exercised, even when the showing made in support of the motion is not of the strongest character.</p>

<p>Tenement Houses—Act of 1911—Different Regulations Affecting Existing Tenements and Those to be Built—Discrimination Justifiable.—The Tenement House Aet of 1911 (Stats. 1911, p. 860), which makes detailed provisions regulating the mode of construction and occupation of all tenement houses, is not rendered invalid on account of unjustifiable discrimination, merely because it establishes, in certain respects, different regulations for existing tenement houses from those made applicable to buildings to be erected.</p> <p>Id.—Police Power—Regulation of Construction and Occupation of Buildings.—The legislature, in the exercise of the police power, has the right to regulate the manner of the construction and occupation of buildings, and particularly tenement houses, to the end of safeguarding the health of their occupants, and lessening the fire hazard.</p> <p>Id.—Classification of Subjects of Regulation.—While constitutional provisions prohibit arbitrary discrimination in favor of or against selected individuals or groups, it is within the legislative power to classify subjects of regulation and to pass laws applicable to all of a class, provided that the classification so made be founded upon some reasonable, intrinsic basis of differentiation.</p> <p>Id.—Validity of Glassification.—The question whether a classification of subjects for the exercise of the police power is proper is not to be determined upon any hard and fast rules, but must be answered after a consideration of the particular subject of litigation.</p> <p>Id.—Diffebence Between Existing Tenements and Those to be Built.—There is a substantial, inherent, logical difference between tenement houses already constructed and those to be built, and this difference is one that the legislature might fairly make the basis of the different treatment that it has accorded to the two classes by such act.</p>

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

<p>Corporation—Forfeiture of Charter for Nonpayment of License-tax—Effect on Pending Action.—Order refusing to set aside and vacate a judgment, is affirmed for the reasons stated in Lowe v. Superior Court, ante, p. 708.</p>

<p>Corporation—Forfeiture of Charter for Nonpayment of License-tax—Effect on Pending Action.—Order refusing to set aside and vacate a judgment, is affirmed for the reasons stated in Lowe v. Superior Court, ante, p. 708.</p>