Volume 166 — California Reports

<p>The facts are stated in the opinion of the court.</p> <p>H. E. Doolittle, and Doolittle & Morrison, for Appellants.</p>

<p>School District—Inclusion Within Limits or Municipality—Subject to Municipal Building Regulations—Police Power.—A municipal corporation, in the exercise of its police power, has the power to subject a school district erecting a school building within its corporate limits, but which also constitutes territory of the school district, to its regulatory building ordinances and building code.</p> <p>Id.—Extent or Police Power or Municipalities.—Under section 11 of article XI of the state constitution, a municipal corporation is vested with authority to make any such reasonable local police regulations as its legislative body may deem advisable, controlled only by the limitation that they must not conflict with any general laws enacted by the legislature on the subject.</p> <p>Id.—Authority or Trustees or School District not Paramount.— The fact that the school district is an independent governmental agency of the state created under the general law embodied in chapter III of title IV of the Political Code, which invests its trustees with the general control and management of all school property within the district, and gives them the particular authority to plan and erect school buildings, does not exempt it from being subject to be controlled in the exercise of its powers by the police regulations of a municipality purporting to apply to school districts in constructing buildings on its territory embraced within the municipal limits.</p> <p>Id.—School Districts are Without Police Power.—Such general and particular authority conferred on the trustees of school districts does not carry with it, 'by implication, full police power as to all matters pertaining to the erection of school buildings.</p> <p>Id.—Limited Powers of School Districts.—School districts are quasi municipal corporations of the most limited power known to the law. Their trustees have special powers and cannot exceed the limit.</p> <p>Id.—Authority of State to Control Erection of School Buildings.— While the state might provide, in the exercise of its police power and under a general law, for a complete system of regulation for the protection of the public health, safety, and comfort in the erection of school buildings, it has not done so. In the absence of such state regulation, the municipal regulations control, and a school district desiring to erect a school building within the municipal territory, though it is likewise school district territory, must submit to its building code and ordinances and comply with their requirements.</p>

<p>Appeal prom Judgment—Review op Evidence.—On an appeal from a judgment taken within sixty days after its rendition and entry, the sufficiency of the evidence to support the findings may be reviewed as effectually as upon an appeal from an order refusing a new trial. This is so where the appeal is taken under section 940 of the Code of Civil Procedure, as well as where it is taken under the new method prescribed by sections 941a, 941b, and 941c of that Code.</p> <p>Id.—Record on Appeal—Reporter’s Transcript—Bill of Exceptions. In preparing the record on appeal, whether it be taken under the old or the new method, the appellant may follow the method prescribed by section 953a of that code, which provides that the reporter’s transcript, authenticated by the judge, shall be a part of the judgment-roll, and that it may be used on appeal instead of a bill of exceptions.</p> <p>Id.—Insufficiency of Evidence to Sustain Bindings—Specifications of Particulars not Necessary in Reporter’s Transcript.—As such transcript, in a civil case, is required to include all the evidence taken, there is no occasion that it should contain any specifications of particulars in which the evidence is alleged to be insufficient to support the findings, and the code does not require them to be inserted therein. The insufficiency of the evidence to sustain the findings may be urged on appeal without making or filing any specifications in the trial court.</p> <p>Corporation—Subscription to Stock—Specific Performance of Contract—Statute of Limitations.—Where a written contract of subscription to the capital stock of a corporation provided that the certificate for the stock should be delivered to the subscriber upon his making full payment therefor, the right of action of the subscriber to specifically enforce the contract accrued immediately upon his making such payment, and became barred four years thereafter, under subdivision 1 of section 337 of the Code of Civil Procedure.</p> <p>Id.—Contract Contemplating Pooling of Stock.—A pooling agreement referred to in such contract, in accordance with which the stock was to be held and voted, would have been no defense to such an action, where no such agreement was in existence at the time of the contract, and no steps were ever taken to create the contemplated pool.</p> <p>Id.—Certificate to be Held by Corporation as Trustee for Subscriber—Breach of Trust by Corporation Known to Subscriber. If, however, by mutual consent of the parties, the time of issuing the certificate was deferred indefinitely after the payment of the price either until such pool should be formed or until the certificate was demanded by the subscriber, so that an express trust arose between the subscriber and the company, whereby the company became trustee of the stock for him for an indefinite period which would be terminated by the formation of the pool and the issuance of the stock accordingly, or upon a demand by the subscriber for the stock, the statute of limitations applicable to an action to enforce the trust is section 343 of the Code of Civil Procedure, fixing four years as the period of limitations. In such a ease, the statute did not begin to run until there had been a breach of the trust by the corporation which was known to the subscriber. The mere neglect of the company to issue the certificate, or of the subscriber to demand or compel such issuance, did not set the statute in motion.</p> <p>Id.—Evidence of Repudiation of Trust—Knowledge of Repudiation by Foreign Administrator—-Action Barred by Statute of Limitations.—In the present case the evidence is held sufficient to show that, more than five years before the commencement of the action, the corporation repudiated such trust relation by issuing and making various transfers of the certificates of stock in violation of the terms of the trust, and that such repudiation then became known to the plaintiff, who was a foreign administrator and one of the heirs of the subscriber, and that consequently, the action, if considered as one to enforce the trust, was barred by the statute of limitations.</p> <p>Id.—Notice of Repudiation Sufficient to Start Statute.—After the death of such subscriber, who was a nonresident of this state, it was not necessary, in order to constitute a repudiation of the trust sufficient to start the statute of limitations, that notice of such repudiation should be brought home to some person who had capacity immediately to begin an action in this state to enforce the trust.</p> <p>Id.—Duty of Foreign Administrator to Enforce Trust—Notice of Repudiation—Procuring Ancillary Administration—Bringing Action Before Bar of Statute.—The domiciliary administrator of the estate of such subscriber had full power, and it was his duty, to accept performance of the trust, either in this state or elsewhere, and also to demand performance. If he was met with a failure or refusal, the breach of trust would be complete, and it would be his duty to take such steps as should 'be necessary to procure ancillary letters of administration in this state and bring the appropriate action before the statute of limitations had become a bar.</p> <p>Id.—Running of Statute of Limitations—Death of Person Having Vested Right Before Breach—No Person in Being Capable of Maintaining Action.—"Where the person entitled to a right dies after the right vested but before a breach had made a cause of action thereon, the statute of limitations begins to run from the time of the breach, nowithstanding there is then no person in being capable of maintaining an action thereon.</p>

<p>Debtor and Creditor—Accord and Satisfaction—Disputed Demand— Check for Less Amount Sent to Creditor—Acceptance by Creditor.—Where the amount due is in dispute, and a cheek for an amount less than that claimed is sent to the creditor with a statement that it is sent in full satisfaction of the claim, and the tender is accompanied by such acts or declarations as amount to a condition that if the check is accepted at all it is accepted in full satisfaction of the disputed claim, and the creditor so understands, its acceptance by the creditor constitutes an accord and satisfaction, even though the creditor states at the time that the amount tendered is not accepted in full satisfaction.</p> <p>Id.—Pact of Dispute—Tender on Condition That Acceptance Would be Satisfaction—Case at Bar.—Whether there was a dispute concerning the amount due and whether the tender was on condition that acceptance would be in full satisfaction, are primarily questions of fact for the trial court. In the present ease it is held that the amount due was in dispute at the time of the acceptance and retention of the check in question, but that the evidence justified the finding that the tender was not subject to the condition that an acceptance of the cheek would be a satisfaction in full.</p> <p>Id.—Retention of Check not Tendered on Condition It Should Operate as Satisfaction.—It is an essential element of an accord and satisfaction by tender of a check, that the tender should have been made subject to the condition that an acceptance of the check would be a satisfaction in full. In the absence of such condition, the retention of the cheek, at least where the creditor promptly notifies the debtor that he still insists upon payment of the balance claimed, does not establish his assent to the acceptance of the sum tendered as a full settlement.</p> <p>Id.—Acceptance of Check in Satisfaction—Agreement may be Implied.—To constitute a valid accord and satisfaction, not only must it be shown that the debtor gave the amount in satisfaction, but that it was accepted by the creditor as such. The agreement need not be express, but may be implied from circumstances.</p> <p>Id.—Pleading—Action on Express Contract—Delay in Performance —Time Extended by Agreement or by Default of Other Party. The rule that a contractor cannot maintain an action upon an entire express contract for the doing of work, where the work was not completed within the time specified, and that he is then relegated to an action based upon a quantum, meruit, is inapplicable where the parties had agreed upon an extension of the time within which to perform and performance was completed within such extension, or where the other party 'had neglected a duty on account whereof a strict performance could not be had within the specified time, but a subsequent performance was had within a reasonable time after the obstacle to performance had been removed. In such case, the performing party may recover upon the contract, the same being an entire one.</p> <p>Id.—Construction of Pipe-line Over Designated Route—Implied Covenant That Owner has Eight to Construct—Intervening Railroad Eight of Way—Excusable Delay in Performance.— Under a contract for the construction of a pipe-line over a fixed and determined route, the law implies a covenant on the part of the owner either that he possesses or will procure a right to construct such pipe-line over the route specified. No duty devolves upon the contractor, in the absence of an express agreement, to procure the right to cross an intervening railroad right of way. If performance of the work by the contractor be delayed beyond the time stipulated therefor by reason of the owner’s failure to acquire the right to cross such right of way, no right of action accrues to the owner for damages for the delay.</p>

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

The facts are stated in the opinion of the court. ’ W. J. Mossholder, Mark P. Mossholder, and Rusk P. Moss-holder, for Appellant. E. H. Lamme, and E. I. Kendall, for Respondent Christine H. Nelson.

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

<p>Action to Quiet Title—New Parties Brought in by Cross-complaint.—In an action to quiet title, wherein the defense is made that the plaintiffs’ grantor held the property in trust for the defendants, the court properly strikes out paragraphs of a cross-complaint by which it is sought to bring in the plaintiffs’ grantor as a party and to compel him to account for the proceeds of sales to persons other than the plaintiffs of parcels of land included within the tract described in the patent, but different from the property directly in controversy.</p> <p>Id.—Pre-emption Claim—Issuance of Patent to Heir Instead of to Devisee—Limitation of Actions.—Where a testator devises his interest in an incomplete pre-emption claim to his executor, and the executor, on completing the claim after the death of the testator and ignorantly supposing that he as devisee is heir, has the patent issued to the heirs of the testator, records it in the office of the county recorder and in the land-office, takes and holds possession of the property, and several years later discloses the facts to the sole heir, a nonresident, acting at all times in good faith, the statute of limitations commences to run against the heir from the time of receiving such information, and he is then put on inquiry as to the state of the title, and cannot, thirty years afterward, invoke the law to establish his rights.</p> <p>Id.—Laches—Law Refuses Aid to Persons Who Sleep on Rights.— The law does not aid those who thus sleep upon their rights only to assert them when the thrift and enterprise of others have made property, once theirs, valuable and worth coveting.</p>

<p>The facts are stated in the opinion of the court.</p> <p>Oscar A. Trippet, and John E. Biby, for Plaintiff Ida E. Shirey.</p> <p>Tanner, Taft & Odell, for Appellant All Night and Day Bank.</p> <p>Wellborn & Wellborn, Olin Wellborn, Jr., and Alfred H. McAdoo, for W. C. Weaver, Defendant and Respondent.</p>

<p>Negligence—Master and Servant—Failure to Repair Defective Machine—Assumption of Risk—Attempt to Make Repairs.—In an action to recover damages for personal injuries occasioned to an employee while operating a dangerous and defective machine, the defects of which the employer had negligently failed to repair, it is held that the evidence, as matter of law, did not preclude the plaintiff from recovery under the doctrine of the assumption of risk, as the accident occurred after the employer had inspected the machine, had actual knowledge of the defects, and had undertaken to repair it in the very particular which had theretofore made its operation dangerous.</p> <p>Id.—Ordinary Care in Making Repairs.—It is the duty of an employer when he undertakes to repair a defective machine to exercise ordinary care in seeing that it is accomplished, so that the machine might be thereafter safely used by the employee.</p> <p>Id.—Assumption That Repairs Attempted had Remedied Defect.— Where an employer undertakes to repair a defect in a machine, and informs the employee that he has done so, the latter has the right to assume that the defect has been cured, that the machine is in good working order, and to resume his work on it upon this assumption, and unless he knew that the attempted repairs had not remedied the defect and that the machine was still attendant with the same danger as previously, he cannot be held to have assumed the risk in its further operation.</p> <p>Id.—Knowledge of Ineffectual Repairs—Question for Jury.—Under the circumstances of this ease, the question whether the plaintiff did or did not have knowledge that the attempted repairs were ineffectual when he resumed the operation of the machine was a question to be determined by the jury under the evidence.</p>

<p>Counties—Prohibiting Sale of Liquor—Local Option—Initiative Ordinance.—In re Ellsworth, 165 Cal. 677, and Giddings v. Board of Trustees, 165 Cal. 695, are approved, to the effect, (1) that the police power of a city or of a county, and the authority thereunder to restrict or prohibit the sale of liquor, are not limited by the fact that, at a prior election held within two years under the Local Option Law (Stats. 1911, p. 599), a majority of the electors of the city or of one or more supervisorial districts of the county, may have voted in favor of license; (2) that the police power may, under appropriate constitutional and legislative sanction, be exercised by means of the initiative with the same effect as through the board of supervisors or other representative legislative body; and (3), that the right to so legislate is not impaired by the circumstance that the voting body includes some electors residing in territory that will not be affected by the enactment.</p>

<p>The facts are stated in the opinion of the court.</p> <p>E. A. Meserve, Erwin W. Owen, Chase, Overton & Lyman, and Claflin & Owen, for Appellant.</p> <p>Morrison, Dunne & Brobeck, Frank H. Short, George E. Whitaker, and A. E. Bolton, for Respondents.</p>

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

<p>APPLICATION for a Writ of Mandate compelling the defendant registrar to certify and file the plaintiff’s declaration of candidacy for nomination and election to the office of coroner of San Francisco.</p> <p>The facts are stated in the opinion of the court.</p> <p>Frank H. Buck, A. C. Keane, and George B. Keane, for Plaintiff.</p> <p>Percy V. Long, Thomas V. Cator, John F. English, Henry N. Beatty, Thomas E. Curran, Francis Dunn, Chas. N. Fickert, and E. F. Moran, for Defendants.</p>

<p>APPLICATION for a Writ of Mandate directed to the auditor of the City and County of San Francisco.</p> <p>The facts are stated in the opinion of the court.</p> <p>C. M. Fickert, Maxwell McNutt, and Aylett R. Cotton, for Petitioner.</p> <p>Percy V. Long, City Attorney, Robert M. Searles, Assistant City Attorney, and Edward S. Moran, for Respondent.</p>

<p>APPEAL from an order of the Superior Court of the City and County of San Francisco refusing an application for the sale of real property belonging to the estate of a deceased person. J V. Coffey, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>The facts are stated in the opinion of the court.</p> <p>John Ralph Wilson, J. K. Law, and D. M. Young, for Appellant.</p>

The facts are stated in the opinion of the court. Sullivan & Sullivan and Theo. J. Roche, and J. C. Bates, for Appellants. Robert H. Countryman, and William P. Hubbard, for Respondents.

<p>The facts are stated in the opinion of the court.</p> <p>White, Miller & McLaughlin, and. C. E. McLaughlin, for Appellants.</p>

<p>Appeal—Sufficiency of Evidence to Support Findings—Province of Appellate Court.—In examining the sufficiency of the evidence to support a questioned finding, an appellate court must accept as true all evidence tending to establish the correctness of the finding as made, taking into account, as well, all inferences which might reasonably have been thought by the trial court to lead to the same conclusion; and every substantial conflict in the testimony is to be resolved in favor of .the finding.</p> <p>Trover and Conversion—Acts Constituting—Exercise of Dominion. Any act of ownership or exercise of dominion over the property of another, in defiance of his rights, is a conversion of that property. One who sells the property of another, though he believes he has a right to, is liable to the true owner.</p> <p>Id.—Removal and Sale of Debris After Fire—Whether a Conversion.—Where the building occupied by a publishing house as tenant is destroyed by fire, and a subsequent lessee of the premises employs a contractor to remove the debris, the contractor is not liable as for the conversion of valuable melted type metal buried under the debris and owned by the publishing company, because he sells the debris to a third person; neither he nor the publishing company having knowledge of the existence of the metal at the time of the sale, and he offering to rescind the sale and return the purchase money upon discovery of the metal.</p> <p>3b.-—Sale—Offer of Rescission—Effect as Admission.—The contractor, on finding that the purchaser differed with Mm regarding the nature or extent of the property sold, may offer to set aside the transaction, and return what he has received, without thereby conceding the correctness of the buyer’s claim.</p> <p>Id.—Witness—Cross-examination as to Amount op Metal.—Testimony of an officer of the publishing company that he sold all the metal that “he had any idea of being on the premises” for a nominal sum is admissible on his cross-examination, where the admission of such testimony is limited to its bearing upon his testimony on direct examination as to the amount of metal on the premises.</p> <p>Id.—Ownership op Metal—Evidence—Harmless Error.—Error in admitting evidence of sales of part of the metal by the publishing company was harmless, in the presence of findings by the court that the publishing company has at all times in question been the owner of all the metal, which is the only issue to which the evidence has any relevancy.</p>

APPEALS from an order of the Superior Court of Merced County directing the special administrator of the estate of a deceased person to pay counsel fees and costs incurred by an executor in unsuccessfully resisting a contest to revoke the probate of the alleged will of the decedent, and from orders settling, respectively, the first and final accounts of the executor. E. N. Rector, Judge. The facts are stated in the opinion of the court.

<p>The facts are stated in the opinion of the court.</p> <p>John E. Carson, N. W. Bell, and W. S. Wright, for Appellants.</p>

<p>Lessor and Lessee—Chattel Mortgage Securing Lease—Eviction of Assignee of Lessee in Unlawful Detainer—Foreclosure of Mortgage.—A lessor of an apartment house, 'by resorting to the summary action of unlawful detainer for nonpayment of rent against an assignee of the lessees, and thus securing his eviction from the demised premises, did not lose the right to foreclose, as against the original lessees, a chattel mortgage given by them as security for the payment of damages sustained by the lessor on account of the breach of the contract of lease.</p> <p>Id.—Restriction on Actions to Enforce Debt Secured by Mortgage. Section 726 of the Code of Civil Procedure, providing that “there can be but one action for the recovery of any debt, or the enforcement of any right secured by mortgage upon real or personal property,” is inapplicable to such a ease.</p> <p>Id.—Action Against Subsequent Mortgagee of Lessee—Termination of Lease.—The lessor had the right to maintain the action of foreclosure as against a subsequent mortgagee of the mortgaged property, even if the effect of the judgment in the unlawful detainer suit was to terminate the lease, and prevent the original lessees from resuming possession thereunder.</p> <p>Id.—New Trial Granted Subsequent Mortgagee—Non-participation of Other Defendants in New Trial.—Where, in the action to foreclose the mortgage, a new trial was granted on the motion of the subsequent mortgagee, and thereafter it went to trial on the issues without the presence of its codefendants, the original lessees and his assignees, such action by it amounted to a waiver of its right, if any, to have its codefendants made participants in the new trial.</p> <p>Id.—Failure to Serve Amendments to Complaint—No Prejudice to Party not Affected by Amendments.—In such action, the failure to serve on the other defendants amendments to the complaint which could affect them only in the event of their becoming liable for a deficiency judgment, was without prejudice to the subsequent mortgagee, because it could' not have been liable for such judgment, and was only interested in the issue as to the amount of the damages to be satisfied from the mortgage security, which issue was fully tried under the amended pleadings between it and the plaintiffs without protest on its part.</p>

<p>Will—Mental Incompetence—Undue Influence—Evidence.—On an appeal from an order refusing to admit a will to probate, based upon a ver diet of a jury that at the time of the execution of the will the testatrix was of unsound mind and was acting under undue influence, it is held, that the evidence was sufficient to justify the verdict in each particular.</p> <p>Id.—Contest—Evidence—Infirm Mental State—Immaterial Error. On a contest of a will on the ground of the mental incompetence of the testatrix, the admission of testimony of the contestant that at a time about three years prior to the execution of the will the testatrix was in “an infirm mental state,” even if erroneous, will be deemed without prejudice, if similar evidence had been admitted without objection, and it appears that at about the time referred to the testatrix had been judicially declared an incompetent.</p> <p>Id.—Admission of Certificate of Proof of Prior Will—Instructions Limiting Effect of Evidence.—The admission in evidence in such contest of the certificate of proof of will attached to a prior will of the testatrix that had been previously probated, was without prejudice, if the court, at the time the evidence was admitted, immediately charged the jury that the declaration in the certificate that the prior will was the last will of the decedent was not binding in the contest on trial, and in its charge at the conclusion of the testimony, expressly instructed that the probate of the prior will in no way affected the validity of the latter, and that in admitting the former the court was not passing upon the validity of the latter, which was not then before it.</p> <p>Id.—Conspiracy to Procure Will by Undue Influence—Declarations Prior to Execution of Will.—Where it was the theory of the contestant that two persons had joined in a conspiracy to procure, by undue influence, the execution of the will in question, and preliminary evidence in support of such theory had been offered, the declarations of either party to the conspiracy, made prior to the execution of the will, could properly be shown in evidence on the trial of the contest in support of the allegation of undue influence.</p> <p>Id.—Declarations After Execution of Will—Immaterial Error.— The admission of the declarations of one of the conspirators, made after the execution of the will, even if erroneous, is held not of sufficient importance to warrant a reversal.</p> <p>Id.—Verdict Finding Unsoundness of Mind and Undue Influence— EteROR Affecting Only One Ground of Contest.—Where the verdict of the jury found against the validity of the will on both of the issues of unsoundness of mind and undue influence, and no material error affected the verdict so far as concerned the issue of unsoundness of mind, any error bearing upon the question of undue influence only does not warrant a reversal of the order refusing to probate the will.</p>

<p>The facts are stated in the opinion of the court.</p> <p>L. R. Weinmann, and Weinmann, Wood & Cunha, for Appellant.</p>

The defendant by a written contract subscribed for stock in plaintiff corporation to the par value of two thousand five hundred dollars. Thereafter plaintiff’s board of directors passed a resolution -demanding payment of subscriptions and served notice of such demand on the defendant. Upon his refusal to pay, the present action was brought.

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

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

<p>APPLICATION for a Writ of Mandate directed to the election commissioners of the city and county of San Francisco.</p> <p>The facts are stated in the opinion of the court.</p>

<p>APPEAL from a judgment of the Superior Court of Sacramento County, from an order denying a motion in arrest of judgment, and from an order refusing a new trial. J. M. Hughes, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Banks—Deposit op Checks—Indorsement to Order op Bank—Cashing Checks Bearing Special Indorsement—Parol Evidence— Exoneration op Bank.—In an action by a depositor against a bank to recover the amount of various cheeks drawn .in favor of the depositor and indorsed by it to the order of the bank for deposit to- its credit, but which upon presentation had been paid by the bank to the ostensible agent of the depositor, who had feloniously appropriated the proceeds to his' own use, parol evidence is admissible, in exoneration of the bank in making such payment, that the same was done in pursuance of a verbal agreement with the depositor to the effect that all checks presented to the bank which were indorsed with the name of the depositor solely by means of a rubber stamp, should be credited to the account of the depositor, while checks bearing the additional pen and ink signature of certain officials of the depositor, should be paid in cash, if so requested, to the person presenting them. Such evidence did not have the effect of varying the written contract of indorsement.</p> <p>Id—Title op Checks Deposited Passes to Bank—Debtor and Creditor.—When a check indorsed to a bank is deposited in the ordinary course of business, the title immediately passes to the bank which gives credit at once to the depositor. The bank is not the agent of the depositor but the relation created is that of debtor and creditor.</p> <p>Id.—Disbursement op Monet to Credit op Depositor—Independent Check not Necessary.—There is no compulsion arising out of such written contract of indorsement whereby the bank and the customer are prohibited from disbursing the moneys on credit except through the process of an independent check drawn against the former by the latter. This is a matter governed by usage or by special contract.</p> <p>Id.—Ostensible Agency op Person Presenting Indorsed Check.— Even if the person who made such agreement with the bank for the cashing of the specially indorsed checks was without actual authority to do so, the fact that the officers of the depositor did frequently attach their signatures to checks when such signing was not necessary in the usual course of deposit, and did intrust them to the employee who presented "them, was sufficient to confer ostensible authority upon the latter to cash the checks, and to exonerate the bank, acting in good faith, in so doing.</p>

<p>Negligence—Master and Servant—Duty to Furnish Safe Working Place and Tools.—An employer is bound to use ordinary care to see that Ms employees have a safe place in which to work, and that the tools and appliances which they are to work with are in good condition and reasonably safe for the purposes intended. He is also bound to use ordinary care .to maintain them in this condition.</p> <p>Id.—Servant Charged With Duty to Keep Working Place and Tools Safe—Failure of Servant to Perform Duty.—Such rule, however, does not apply between a master and a servant who is employed to perform for the master this duty to the other servants, where the injury happens because of the failure of such servant to do that part of his duty.</p> <p>Id.—Injury to Foreman of Sawmill—Fastening of Bailing Becoming Defective Through Decay.—Where it was the duty of the foreman of a sawmill to take care that a railing and supporting posts situated alongside of a conveyer of refuse lumber were kept in good order and repair, his employer is not liable for personal injuries suffered by him which were occasioned by the giving way of the railing from one of such posts by reason of the defective condition of its fastening caused by the decay of the post.</p>

<p>The facts are stated in. the opinion of the court.</p> <p>Thos. O. Toland, Arthur H. Blanchard, and Don G. Bowker, for Appellant.</p>

<p>Will—Contest—Undue Influence—Due Execution—Refusal to Revoke Probate—Sufficiency of Findings and Evidence.—On a contest to revoke the probate of a will on the grounds that it was the result of undue influence and was not executed with the formalities prescribed by law, it is held that the findings negativing the existence of any undue influence are sufficient to sustain the judgment upholding the will, and are supported by the evidence, and that the evidence showed that the will was properly executed in all respects.</p>

<p>The facts are stated in the opinion of the court.</p> <p>U. S. Webb, Attorney-General, and John H. Riordan, Deputy Attorney-General, for Appellant.</p>

<p>The facts are stated in the opinion of the court.</p> <p>N. J. Barry, R. M. Rankin, and W. F. Williamson, for Appellants.</p> <p>Pardee & Pardee, White, Miller & McLaughlin, and C. E. McLaughlin, for Respondents.</p>

<p>The facts are stated in the opinion of the court.</p> <p>Percy V. Long, City Attorney, and Jesse H. Steinhart, Assistant City Attorney, for Appellant.</p>

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

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

<p>Taxation—Invalid Sale for Delinquent Taxes—Absence of Auditor’s Affidavit to Assessment Book.—There is no authority to sell property for delinquent taxes, and an attempted sale thereof passes no title, if at the time of the attempted sale, no affidavit of the auditor, as required by section 3732 of the Political Code, had been made or attached to the corrected assessment book for the year in which the delinquent tax purports to. have been levied.</p> <p>Id.—Affidavit Attached After Sale.—An affidavit of the auditor attached to the assessment book after the attempted sale had taken place did not validate the sale.</p> <p>Id.—Action Against Owner bt Purchaser at Illegal Sale—Defendant Need not Tender Tax.—Where the purchaser at a delinquent tax-sale which is not effective to pass title proceeds against the owner, the latter may stand upon his strict legal rights and defend Ms title without tendering payment of any tax.</p>

<p>Negligence—Street-railroajds—Municipal Ordinances Regulating Speed—Violation op Ordinance as Evidence of Negligence.— A city may by a general municipal ordinance, or by a special ordinance granting a particular franchise, prescribe reasonable conditions and regulations under which a street-railroad company shall operate its cars over or across the streets of the city, including the rate of speed, and a violation of such regulations is per se evidence of negligence rendering the company responsible for any injury occasioned thereby, provided a violation of the ordinance próximately contributes to the injury complained of.</p> <p>Id.—Ordinance Granting Franchise—Absence of Penalty,—Such rule is applicable to a special ordinance granting a franchise to a street-railroad company, notwithstanding the only penalty provided for a violation of its provisions is that the city may forfeit the franchise.</p> <p>Id.—Death Caused by Car Running at Excessive Speed Over Street Crossing—Ordinance Admissible in Evidence.—In an action against an electric street-railroad company to recover damages for the death of a person who was run over by a car of the company at a public street crossing in a city, alleged to have been caused through the negligence of the company in running its car over the crossing at an excessive rate of speed, in violation of a special ordinance of the city granting the company a franchise, the special ordinance, limiting the rate of speed at which the company could run its cars over street crossings, is admissible in evidence.</p> <p>Id.—Conflict of Evidence—Signals Showing Intent to Stop Car— Warning Signals.—In such action, in view of the conflict of the evidence, it is held that it was for the jury to determine whether certain signals by the motorman as the ear approached the crossing indicated an intent to stop the car at the crossing, or were warning signals given to indicate that the car would not stop.</p> <p>Id.—Contributory Negligence—Confusion Caused by Headlight— Crossing in Front of Car.—It is held further that the evidence respecting the signals given by the motorman of the approaching car, and the confusing nature of the headlight thereon, was such as to warrant the jury in finding that the deceased, who expected to board the ear as a passenger, was not guilty of contributory negligence in crossing the track in front of the car.</p> <p>Id.—Evidence of Damages—Physical Condition of Children of Deceased at Time of Death.—In an action to recover for such negligent killing of a man who was married and the father of several minor children, evidence is admissible, on the question of damages, ' to show the permanent crippled condition of certain of the children at the time of the father’s death.</p> <p>Id.—Evidence of Physical Condition of Members of Family After Death of Deceased.—It is not, however, permissible to introduce evidence of the condition of the family respecting illness or misfortune suffered by some of its members subsequent to the death of the deceased, and not following as a proximate result thereof.</p> <p>Id.—-Appeal—Remitting Part of Damages—Affirmance on Condition That Damages are Remitted.—Where upon appeal by the defendant in such action from a judgment in favor of the plaintiff and from an order denying it a new trial, the appellate court determines that the only ground warranting a reversal was the erroneous admission of incompetent evidence on the subject of damages, it may, instead of ordering a reversal, affirm the judgment and order, on condition that the plaintiff remit such a portion of the judgment as is shown to measure the extent to which the defendant was prejudiced by the introduction of the incompetent evidence.</p>

<p>APPLICATION for a Writ of Mandate directed to the respondent as judge of the Superior Court of San Diego County.</p> <p>The facts are stated in the opinion of the court.</p> <p>George B. Watson, and Hamilton & Lindley, for Petitioners.</p>

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

<p>The facts are stated in the opinion of the court.</p> <p>Carlton W. Greene, J. M. Kile, and A. H. Ashley, for Appellants.</p> <p>Leo C. Lennon, Clary & Louttit, Nutter & Orr, and A. V. Scanlan, for Respondents.</p>

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

<p>The facts are stated in the opinion of the court.</p> <p>Bishop, Hoefler, Cook & Harwood, and Finlay Cook, for Appellant.</p>

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

<p>Fire Insurance—Auto Repair Shop—Gasoline Brought on Premises in Automobiles.—In an action on a fire insurance policy to recover for the loss of an auto repair shop from the ignition of gasoline emptied from the leaking reservoirs of an automobile brought in to be repaired, an instruction that the right of recovery is not affected by the presence on the premises, at the time of the fire, of any gasoline which cam® there in the reservoirs of automobiles, is not open to the criticism that it allows the jury to find for the plaintiff, although thousands of gallons of gasoline may have been brought into the building in the reservoirs of machines and thereafter emptied into gasoline tanks and kept stored in the building. The jury could not so misunderstand it.</p> <p>Id.—Negligence op Insured—Whether Bars Right to Insurance.— In such ease an instruction that the insurance company is not relieved by the fact that the fire occurred through the negligence of the plaintiff or of a -tenant of the building under him, is in conformity with the provision of section 2629 of the Civil Code, declaring that an insurer “is not exonerated by the negligence of the insured, or of his agents or others.”</p> <p>Id.—Number op Automobiles on Premises—Instruction too Favorable to Insurer.—It was allowable under the policy for the insured to keep and have more than one automobile on the premises at' one time, and the fact that the court erroneously instructed the jury to the contrary does not make the verdict against law, or at all events, does not justify a reversal of a judgment in favor of the insured.</p>

MOTION to dismiss an appeal from a judgment of the Superior Court of Mendocino County, J. Q. White, Judge. The facts are stated in the opinion of the court.

<p>APPLICATION for a Writ of Mandate directed to the County Clerk of the City and County of San Francisco, and to J. M. Seawell, one of the judges of the Superior Court thereof.</p> <p>The facts are stated in the opinion of the court.</p> <p>Stoney, Rouleau & Stoney, and Orville C. Pratt, Jr., for Petitioner.</p>

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

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

<p>Banks—Involuntary Liquidation Under Act of 1903—Final Judgment for Liquidation Prior to Repeal of Act—Pendency of Appeal from Order Denying New Trial.—Where a judgment rendered under the Banking Act of March 24, 1903 (Stats. 1903, p. 365), declaring a bank insolvent, ordering it into involuntary-liquidation, and appointing a receiver for purposes of liquidation, had 'been affirmed on direct appeal therefrom and had thus become final, the subsequent repeal, pending an appeal from an order denying a new trial oí the action, of the Banking Act of 1903 by the Banking Act of March 1, 1909 (Stats. 1909, p. 87), without any provision for continuing in force any pending proceedings or litigation under the repealed act, did not render ineffectual the judgment ordering the bank into liquidation, nor divest the receiver of his authority as such to proceed with its liquidation. (People v. Sank of San Ims Obispo, 159 Cal. 65, approved.)</p> <p>Id.—Proceedings for New Trial did not Stay Judgment.—Such judgment was in no way stayed in law by virtue of the pending proceedings under the motion for a new trial.</p> <p>Id.—Stay of Proceedings by Receiver Appointed by Judgment—Appeal—Vacation of Stay Orders.—The effect of such judgment was not affected by orders made by the supreme court during the pendency of the appeal from the order denying a new trial, and after the repeal of the Banking Act of 1903, temporarily staying certain proceedings by the receiver appointed by the judgment until the further order of the court. Such stay orders were vacated by the judgment of the supreme court denying a motion to vacate and annul the judgment and to dismiss the proceedings, and affirming the order denying the motion for a new trial.</p> <p>Id.—Action by Bank Commissioners on Note Held by Bank—Legal Capacity to Sue—Prohibition.—The question whether the bank commissioners, pending a proceeding under the Banking Act of 1903 to have an alleged insolvent bank thrown into involuntary liquidation, but prior to obtaining a decree for the relief sought, had legal capacity to institute and maintain on behalf of the bank an action on a promissory note executed to it, against the maker who had been duly served with summons and had appeared therein, does not go to the jurisdiction of the court to hear and determine the action, but is to be determined in the action itself. Consequently prohibition will not lie against proceeding with such action for the alleged legal incapacity of the bank commissioners to institute it.</p> <p>Id.—Substitution of Receiver in Action Instituted by Bank Commissioners.—The action so instituted by the bank commissioners on behalf of the insolvent bank did not abate by reason of the repeal of the Banking Act of 1903, and the court in which it was pending had authority, on motion, to substitute as plaintiff, the receiver appointed by the judgment to carry on the liquidation, and to allow the action to be continued in his name.</p>

<p>Corporation—Stockholder’s Liability—Legatee Accepting Legacy of Stock—Ownership Attaches at Death of Testator—Liability for Subsequent Corporate Debts.—A legatee of shares of stock in a corporation who, upon distribution of the estate of the testator, does not renounce but accepts the legacy, must be deemed to have been the owner of the stock from the time of the death of the decedent, and is liable as such for his proportion of the corporate debts contracted after the death, but before distribution of the estate.</p> <p>Id.—Estate of Deceased Person—Title to Property Vests at Death.—The estate of a decedent vests in his heirs or devisees and legatees immediately upon his death. In case of testacy, the decree of distribution does not create the title. It merely declares the title that accrued under and by the will.</p> <p>Id.—Constitutional Provision Imposing Liability is Self-executing—Legislature cannot Limit Liability—“Stockholder” and “Owner of Shares” Synonymous Terms.—Section 3 of article XII of the present state constitution, declaring that “each stockholder of a corporation, .'. . shall be individually and personally liable for such proportion of all its debts and liabilities contracted or incurred, during the time he was a stockholder, as the amount of stock or shares owned by him bears to the whole of the subscribed capital stock or shares/’ is self-executing, and any attempt by the legislature to limit its effect would be beyond its constitutional power, and therefore void. The word “stockholder” as so used is synonymous with the term “owner of shares” as used in section 298 of the Civil Code.</p> <p>Id.—Section 322 of Civil Code—Liability not Restricted.—Section 322 of the Civil Code does not show an intent on the part of the legislature to so restrict the meaning of the term “stockholder” as to exclude from liability any person who, being sui juris, voluntarily accepts ownership of stock in the corporation.</p> <p>Id.—Insolvent Banking Corporation—Receivership Proceedings— Enforcement of Stockholder’s Liability.—The pendency of receivership proceedings against an insolvent banking corporation does not affect the right of its creditors to proceed against its stockholders in the enforcement of their stockholder’s liability.</p> <p>Id.—Dividend Paid by Receiver—Pro Tanto Discharge of Corporate Debt.—A dividend paid by the receiver of such insolvent corporation on the indebtedness due by it to one of its creditors, made subsequent to the commencement of an action by the creditor to enforce the stockholder’s liability for such indebtedness, and prior to the trial, operated pro tanto as a discharge of the liability of the stockholders.</p> <p>Id.—Part Payment by Insolvent Corporation is Partial Satisfaction of Debt.—The liability of a stockholder under the constitutional provision is only for his proportion of such part of a corporate debt or liability as remains unpaid, and the fact of the insolvency of the debtor corporation does not prevent a payment by it of a portion of such debt or liability from operating as a partial satisfaction thereof.</p>

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

<p>Criminal Law—Appeal—Province op Appellate Court—Consideration op Evidence—Prevention op Miscarriage op Justice.— While the provision of our constitution restricting the jurisdiction of appellate courts to “questions of law alone” (see. 4, art. VI), has not been in terms amended, the amendment in 1911 of section 4% of article VI makes it the duty of any appellate court, in considering the questions of law presented on an appeal in a criminal case, to consider the “entire cause including the evidence” for the purpose of determining whether any error or erroneous procedure complained of “has resulted in a miscarriage of justice.” If the court is of the opinion that such has been the effect, it must reverse the judgment. The evidence in a ease, while technically sufficient to sustain a finding of guilt, may be so unsatisfactory as to render what in a plain case would be an absolutely harmless error one of vital importance, one affording ample ground for the conclusion that it has resulted in a miscarriage of justice.</p> <p>Id.—Discretion of Appellate Court in Determining Effect of Errors.—Under this amendment to the constitution an appellate court must necessarily be vested with a large discretion in determining the effect of errors, and each case must depend upon its own circumstances. It is the “opinion” of the court based upon a full consideration of the particular record that is to control upon the question whether the error complained of has resulted in a miscarriage of justice.</p> <p>Id.—Record on Appeal—Affidavits on Motion for New Trial— Incorporation in Clerk’s Transcript—Bill of Exceptions Unnecessary.—Since the changes wrought in 1909 in the sections of the Penal Code relating to records on appeal in criminal cases, affidavits used on a motion for a new trial need not be incorporated in a properly authenticated bill of exceptions in order to be considered on appeal; where they are included in the clerk’s transcript provided by section 1246 of the Penal Code, they will be considered as a properly authenticated portion of the record. It was evidently the design of the legislature to have the record provided for in section 1246, as amended, and in section 1247, the new section, cover wholly the matter of records on appeal; and subdivision 6 of section 1246 should be held to include the affidavits presented on motion for a new trial.</p> <p>Id.—Misconduct of Counsel—Absence of Objection—Review on Appeal.—An appellate court will not consider a claim as to the misconduct of a special prosecutor in argument unless objection is made at the time. To properly present such a question on appeal in a criminal ease, the phonographic reporter’s transcript of his notes, showing the portion of the argument complained of and the objection and action of the trial court thereon, should be brought to the appellate court.</p> <p>Id.—Criminal Trial—Expression of Public Opinion in Presence of Jury—Conduct of Bystanders.'—While courts cannot and do not desire to control public sentiment as to the merits of a cause, they are required to see that it is not expressed to or in the presence of the jury in such a way as to be likely to influence their determina-, tion. A trial court should take every .precaution to prevent anything by which the jury may be overawed, or their minds influenced, by an atmosphere surcharged with hostility or partiality.</p> <p>Id.—Misconduct of Special Prosecutor in Referring to Discreditable Acts of Defendant but not Offering Proof Thereof.—Certain statements of .the special prosecutor held, under the circumstances, to be misconduct resulting in a miscarriage of justice, within the meaning of section 4% of article YI of the constitution.</p> <p>Id.—Cross-examination of Accused—Showing Assumed Name.—When there is no dispute as to the true name of the defendant, it is error to permit the prosecution to show on the cross-examination of the defendant that in participating in boxing matches he went under an assumed name so as to escape detection by his employer.</p> <p>Id.—Restriction op Cross-examination as to Interest op Witness.— It is error to restrict the cross-examination of a witness for the prosecution as to the extent of his interest in the outcome of the trial, where he acknowledges' he has an interest therein, hy showing that he has been sued for libel hy the defendant for the publication of an alleged false confession of guilt.</p> <p>Id.—Misconduct op Special Prosecutor.—It is improper for the special prosecutor in such trial to refer in the course of argument to a certain witness for the prosecution as the man “that the sleuth hounds and special agents of the Southern Pacific company tried to bribe, as shown hy the records in this ease,” the .same man “that they offered the fare to Georgia or New York,” the only basis therefor being hearsay evidence which- has been stricken out hy the court.</p>

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

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

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

<p>Lost Instrument—Deed Destroyed by Fire—Action to Compel Reexecution.—In an action under section 3415 of the Civil Code to compel the re-execution of a deed destroyed by fire, it is immaterial that the instrument was delivered to the grantee conditionally. If the defendant has some defense to the apparent efficiency of the deed to pass title without qualification, he may assert it in a proper action, offensive or defensive. Such instruments should be restored even though voidable. A defense not apparent upon the face of the writing may be asserted precisely as if the document had not been burned.</p>

<p>Architects—Preparation op Plans—Mistake in Estimate op Cost— Liability in Damages.—An architect who skillfully draws plans for - the alteration of a building cannot be held liable in damages because the plans involve an expense of construction beyond Eis estimate, when the owner, before the commencement of the work, has means of knowing and sufficient notice to apprise a prudent man of the fact that the work cannot be done for the estimated sum. If the owner, with such knowledge and notice, proceeds with the work, the mistaken estimate of the architect cannot be regarded as the proximate cause of his loss by being compelled to surrender his lease because he lacks financial ability to complete the work.</p> <p>Id.—Estimate op Cost by Architect—Right op Owner op Building to Rely on.—One to whom an architect gives an estimate of cost for the alteration of a building may not recklessly proceed to make contracts which may and probably will make the cost of construction far above that estimated, and then hold the architect responsible for the surplus expenditure.</p>

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

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

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

<p>Vendor and Vendee—Modification of Contract by Extending Time.— Where a vendor of real property, finding himself unable to make title within the time stipulated in the contract of conveyance, executes another agreement merely extending the time of performance of the previous contract, the subsequent agreement is not a novation or a new contract, but simply a modification of the terms of the original one.</p> <p>Id.—Novation—Intention of Parties.—In such cases the question of novation is always one of intention. i .</p> <p>Id.—Notice of Contract—Subsequent Purchasers.—Subsequent purchasers, who read such contracts in the office of the county recorder, are chargeable with notice of them, whether or not they are such documents as might properly be recorded.</p> <p>Id.—Instrument not Entitled to Registration—Record as Notice.— An instrument, not entitled to go upon record, is not constructive notice although recorded; but such an instrument may impart actual notice to one who sees it of record.</p> <p>Id.—Tender by Vendee—Admission in Pleadings.—Where the cross-complaint in a suit by a vendor of land to quiet title alleges a tender by the vendee of the balance of the purchase price and a demand for a conveyance, and the fact of tender is not denied by the pleadings but is admitted by stipulation, the sufficiency as a tender of a letter, written by the vendee, need not be considered.,</p> <p>Id.—Tender by Vendee to Grantees of Vendor.—A vendee, under a contract to purchase real property, is not required to tender the purchase money to the _ vendor’s grantees, although he knows that deeds have been delivered to them; there is no privity of contract between him and them.</p> <p>Id.—Sufficiency of Tender—Question Raised for First Time on Appeal.—An objection that the vendee’s offer to perform was not made with sufficient detail cannot be raised for the first time on appeal.</p> <p>Id.—Laches—Raising Question for First Time on Appeal.—While it is true that the defense of laches need not be pleaded, and that the court may in a proper case deny relief sua sponte to a seeker for relief in equity who has been guilty of laches, it is also true that, where the court’s attention has not been in some manner drawn to the subject, the appellant may not first seek for relief on appeal.</p> <p>3b.—Remedy of Vendee—When not Éarred by Laches.—The vendee in this ease under a contract to purchase real property was not guilty of laches barring his right to affirmative relief in an action against him by the vendor.</p> <p>Id.—Satisfactory Title—Agreement of Vendor to Make.—Where a vendor agrees to make title satisfactory to the vendee and his attorneys, the question is not whether the title is in fact a good or marketable one, but whether it is acceptable to the vendee and his attorneys.</p> <p>Judgment—Setting Aside Within Year.—A person served by publication may come in at any time within a year and have the judgment set aside.</p>

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

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

<p>Deeds—Delivery to Third Person to Hold Until Death of Grantor. Where a grantor delivers his deed to a third .person with directions to hold it during the lifetime of the grantor and upon his death to deliver it to the grantee, intending at the time of the delivery to the custodian to part forever with all right or power thereafter to repossess, retake, or control the deed, such delivery is effectual and valid, and upon the death of the grantor the estate goes, by virtue thereof, to the grantee, who may then compel delivery if necessary.</p> <p>Id.—Delivery must be Free from Conditions.—But it is essential to the validity of such delivery that it be made without any conditions whereby the grantor may again obtain control of the deed.</p> <p>Id.—Conditional Delivery to Third Person to Take Effect at Death.—Where a grantor delivers Ms deed to a trust company, with written instructions to hold it until a specified date, at which time to return it to the grantor if she is then living, and in the event of her death in the mean time, to deliver it to the grantees, the deed is ineffectual to pass title, where the grantor dies prior to the date specified and the depositary then delivers it to the grantees, who record it. '</p>

<p>Estate op Decedent—Determination op Heirship on Conflicting Evidence—Conclusiveness on Appeal.—Where the evidence is conflicting in a proceeding to determine the succession to an estate of a decedent, a finding of the trial court, based thereon, will not be reviewed on appeal; unless an abuse of discretion on the part of the court below is shown, the finding must stand on appeal, though all the' testimony was by deposition.</p> <p>Id.—Evidence—Declarations as to Family History.—Declarations by members of the family of the decedent concerning the family history and relationship, made after the controversy over the succession to his estate arose, are not admissible to prove heirship.</p> <p>Ib.—Declarations to Prove Pedigree—When Inadmissible.—Such declarations are not admissible to prove pedigree or relationship, .except when they are made by the members of the family as natural or spontaneous declarations on the subject and before any dispute has arisen over the question or any claim has been made to the establishment of which the declarations would be material.</p> <p>Id.—Decree op Distribution—Conclusiveness as to Heirship—Collateral Proceeding.—A decree of distribution is conclusive upon those who may thereafter claim the property as heirs of the person whose estate was thereby distributed, but it is not conclusive as to the facts on which such heirship depends when they arise collaterally in another action.</p> <p>Id.—New Trial—Newly Discovered Evidence—When not Ground.— The trial court may, in its sound discretion, refuse a new trial, applied for on the ground of newly discovered evidence, where the new evidence is merely cumulative, or where it tends merely to impair the credibility of the evidence of the prevailing party.</p>

<p>Wills—Devise or Community Property by Husband—Election by Widow.—Where a testator attempts to dispose of the entire community property, as well as his separate estate, and there is nothing in the express terms of the will, nor in its language when read in the light of the circumstances, that indicates an intention on his part that gifts therein to her are to be in lieu of her' community right, she is not required to elect between taking under the will and taking her community interest, but she may claim both.</p> <p>Id.—Community Property—Presumption Against Husband Devising. The testator is presumed to have made his will with knowledge that his power of testamentary disposition did not extend to the surviving wife’s interest in the community property, and that he did not intend to devise or bequeath the one-half of the community property which, upon his death, would vest in her irrespective of any attempt that he might make to dispose of it by will. In the absence of anything in the instrument to indicate a contrary intent, the testamentary dispositions must, accordingly, be understood as intended to cover only the property which the testator had the right to devise or bequeath, that is, his separate property and an undivided half of the community property.</p> <p>Id.—Liberal Bequest to Wife—Whether in Lieu of Community Bight.—The mere fact that provision, however liberal, is made in the will for the wife, is not enough to justify the conclusion that such provision was intended to be in lieu of her interest as survivor of the community.</p> <p>Id.—Obligation of Widow to Elect—When Arises.—The widow’s obligation to elect arises only where the testator has, by the terms of the will, clearly manifested the intention to make the testamentary gift to her stand in lieu of her interest in the community property. The provision may be declared in terms to be given in lieu of the right as survivor of the community, or the language of the will may be such as to show clearly an intent to dispose of the whole of the community property in such manner that the widow cannot take the moiety given her by law without, to that extent, defeating the plain intent of the testator.</p> <p>Id.—Compromise Between Widow and Other Beneficiary—Effect as Estoppel.—A settlement and compromise between the widow of- a testator and another beneficiary under his will, based upon a consideration, whereby such beneficiary waives her objection to the widow’s claim to succeed to one-half of the community property as well as under the will, estops such beneficiary from again raising that objection.</p>

<p>The facts are stated in the opinion of the court.</p> <p>J. W. McKinley, Frank Karr, R. C. Gortner, and W. W. Webster, for Appellant.</p>

<p>Electric Bailway—Track as Sign of Danger—Caution in Approaching Crossing.—An electric railway track is in and of itself a sign of danger, and one approaching such track with intent to cross it is bound to exercise Ms faculties of sight and hearing in order to ascertain whether a train is approaching.</p> <p>Id.—Contributory Negligence—Whether Question for Court or Jury. Whether a person struck in crossing a railway track was guilty of contributory negligence is ordinarily one of fact for the jury. It becomes a question of law for the decision of the court only where • the facts are undisputed, and, even then, only where, on those facts, reasonable minds can draw but one conclusion on the issue of the plaintiff’s negligence. But the conflict of evidence which creates a question of fact for the jury must be substantial and real; if the established facts and conditions are such as to make it plain that a plaintiff, looking and listening, must have seen or heard an approaching train, his testimony that he looked and listened, but did not see or hear, is not enough to support a verdict in his favor.</p> <p>Id.—Collision With Automobile—Sufficiency of Evidence to Sustain Recovery.—In this action for personal injuries sustained by the driver of an automobile from a collision of an electric railway train with his machine at a crossing, evidence that the train was running at from forty to sixty miles an hour, and that the plaintiff brought his automobile to a stop, or nearly so, and looked and listened for the approach of trains, before starting to cross the track, justifies the court in submitting the question of his contributory negligence to the jury, and their verdict in favor of the plaintiff cannot bq said by an appellate court to be contrary to the evidence.</p>

<p>Divorce—Desertion—Separation by Mutual Consent.—Where husband and wife separate by mutual consent, the separation cannot be regarded as a desertion on Ms part which will entitle her to a divorce. And it is not necessary that such a consent should be expressed in writing, or even expressed in words; it may be implied from circumstances which tend to show the plaintiff’s consent, or that the separation, was not against her will.</p> <p>Id.—Consent to Separation—Question for Trial Court.—It is for the court trying the case to determine, from all the facts and circumstances appearing in the case, whether or not there has been an absence of that consent to living separate and apart which is essential to constitute a desertion.</p> <p>Id.—Offer of Reconciliation—Refusal to Accept.—Where husband and wife separate by consent or are living apart by agreement, there can be no desertion until one seeks a reconciliation and is refused. However, when a reconciliation and restoration are, in good faith, sought by one of the parties and refused by the other, the refusal constitutes desertion. But the desertion does not begin until such offer and refusal.</p> <p>Id.—Separation by Consent—Evidence of Offer of Reconciliation— Corroboration.—In this action by a wife for a divorce on the ground of desertion, the evidence shows that she and her husband separated by mutual consent, and her testimony that over one year prior to the commencement of the action she asked him to return to her and he refused is not sufficiently corroborated.</p>

<p>Promissory Note—Liability of Indorser—Necessity of Presentment and Demand.—Presentment to the maker, accompanied with a demand for payment, is essential to fix the liability of an indorser of a promissory note upon his indorsement.</p> <p>Id.—Demand of Payment—Time for Making.—A demand of payment more than four months after the apparent maturity of a promissory note is too late to be of any effect to charge an indorser upon his indorsement.</p> <p>Id.—Indorsement of Note—Change by Oral Agreement.—An indorsement by the payee of a promissory note is a contract in writing, and its effect is controlled by the law and cannot be changed by the oral agreement of the parties. Therefore an allegation in a complaint that an indorsement was intended and accepted as a guaranty must be disregarded.</p> <p>Id.—Action on Note—Indorsement or Guaranty—Sufficiency of Complaint—Absence of Allegations as to Presentment.—In an action to recover the balance due on a promissory note, a complaint which alleges the payment of a certain sum thereon and the substitution and delivery of the demand note of a third person, bearing the general indorsement of the defendant, for the remainder, and that the same was intended and accepted as a guaranty of payment, fails to state a cause of action upon the indorsement or the alleged guaranty, when there is no allegation of presentment to the maker and demand for payment within the time required by law, or allegation that presentment was waived or excused.</p> <p>Id.—Substitution or Notes—Suitioiency of Complaint as to Original Debt.—Such complaint states a cause of action upon the original debt, since the substitution of the third-party note, if not taken as payment, merely extends the time of payment of the debt until the maturity of such note.</p> <p>Id.—Payment—Whether Taking of Note Constitutes.—Taking a note, either of the debtor or of a third person, for a prior existing debt, is not payment, unless there is an express agreement to that effect. Upon failure to pay such note, the creditor may ignore it and sue upon the original debt.</p> <p>Id.—Demand Note—Maturity in One Tear—Section 3135 of Civil Code.—Section 3135 of the Civil Code is to be taken as extending the maturity of a note payable on demand only for the purpose of prescribing a time within which the note may be presented in order to fix the liability of the indorser, and does not extend the time of payment or prevent the running of the statute of limitations so far as thq action upon the note itself against the maker is concerned.</p> <p>Id.—Limitation of Actions—Amended Complaint—New Cause of Action.—Where a complaint states a cause of action against the defendant only upon his indorsement of the note of a third person, or upon an alleged guaranty of payment by him, an amended complaint, which is sufficient only upon the theory that it is a suit upon the defendant’s note to the plaintiff, states an entirely new cause of action as to which the statute of limitations runs until the filing of the amended complaint.</p>

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

<p>Negligence—Personal Injury by Falling of Pile of Lumber—Contributory Negligence.—Where one goes upon premises of other persons to see to the removal therefrom of a boiler purchased by his employer, and while he is following a truck, as it leaves the premises loaded with the holier, a pile of lumber falls upon him, the question of his contributory negligence in going near the lumber, in view of the fact that he had seen the men piling it and observed that the work was not done in a safe way, is for the jury.</p> <p>Id.—Dangerous Premises—Choice of Route in. Leaving.—The fact that, instead of following the truck, in leaving the premises, he could have left the place safely by stepping through the defendant’s office, did not, as a matter of law, make him guilty of contributory negligence in walking behind the truck.</p> <p>Id.—Forgetfulness of Danger—Whether Constitutes Negligence.— Forgetfulness of a known danger will not always operate to prevent recovery of damages by a person who is injured.</p>

<p>Easement—Reservation of Right of Way by Grantor—Notice to Successor in Interest.—A purchaser of land is chargeable with notice of a right of way over it reserved by a predecessor in title in a deed which is one of the instruments in his chain of title.</p> <p>Id.—Right of Way—Whether Appurtenant or in Gross.—If such reservation is distinctly of an easement over the soil by a defined route, and withholds from the conveyance that much of the estate otherwise conveyed, the right of way cannot be said to be merely an easement in gross and personal to the grantor who reserves it) but it is an easement appurtenant which passes with the land.</p> <p>Id.—Way Reserved for One Tract—Use for Benefit of Another.— A private way granted or reserved to one person for use in eonneetiou and as an appurtenance to specified land, cannot be used as of right for the benefit of another parcel.</p> <p>Id.—Prescriptive Right to Wat—When Established.—Where one who has obtained a full equitable title to a right of way openly and uninterruptedly uses the way under claim of right for five years, he establishes an easement by prescription against the owners of the land across which it lies.</p> <p>Id.—Uninterrupted Use op Wat—What Constitutes.—In order to establish a way by prescription, it is not necessary for the claimant to use the way every day. If he uses it from time to time, whenever he needs it, this amounts to a continuous use within the rule that an adverse use must be uninterrupted in order to constitute the basis of a title by prescription.</p> <p>Id.—Title by Prescription—Manner op Pleading.—An allegation in a cross-complaint that the defendant is the owner of a right of way described sufficiently puts in issue title by prescription thereto without specially pleading it. Such allegation may be sustainéd by proof of title acquired in any legal mode; and a title by prescription is a legal title.</p>

<p>APPLICATION for a Writ of Mandate to compel the board of directors of an irrigation district to call an election upon the question of an assessment upon the property in the district.</p> <p>The facts are stated in the opinion of the court.</p> <p>Valentine & Newby, and McCutchen, Olney & Willard, for Petitioners.</p>

<p>The facts are stated in the opinion of the court.</p> <p>Tanner, Taft & Odell, and Tanner, Odell, Odell & Taft, for Appellant.</p>

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

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

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

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

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

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

<p>Judgment—Setting Aside Default—Absence of Affidavit of Merits —Verified Answer on File.—The absence of an affidavit of merits on a motion to set aside a judgment by default entered on a cross-complaint is fully excused, if at the time of the motion a verified answer was on file, which stated a good defense to the cause of action set forth in the cross-complaint. The filing of a verified answer is a practice to be preferred to that of filing the ordinary so-called “affidavit of merits.”</p> <p>Id.—Notice of Motion—Reference to Records and Papers on File— Affidavits—Grounds of Motion Dnder Section 473 of Gode of Civil Procedure.—A notieg of motion to set aside a judgment by default, which stated that it would be made upon the record and papers on file and upon the affidavits served with the notice, is sufficient to apprise the adverse parties of the grounds of the motion, if the application be considered as made under section 473 of the Code of Civil Procedure, where the records referred to showed that the entry of the default and judgment was made by the clerk after the answer had been served and filed, and the affidavits stated facts tending to show that the delay in filing the answer was because of a mistake on the part of the attorneys for the moving parties as to the date on which it was due.</p> <p>Id.—-Authority of Clerk to Enter Default.—The clerk is not authorized to enter a default, unless no answer has been filed within the time specified in the summons or such further time as may have been granted.</p> <p>Id.—Pleading Filed After Time Allowed but Before Default is Entered—Default cannot be Entered When Answer is on File. When a party, after the time expressly granted for filing a pleading against him has expired, suffers further time to elapse without taking any action, thereon, and in the mean time the pleading is served and filed, he, by such conduct, in effect grants the additional time and the party filing the pleading is not in default. The clerk is not authorized to enter a default for failure to file an answer when the answer is on file at the time the default is attempted to be entered.</p> <p>Id.—Court may Set Aside Unauthorized Default Sua Sponte.— Where a default is entered by the clerk without authority, he has no authority to enter judgment thereon. A judgment so entered may be set aside by the court of its own motion at any time, and it is immaterial bow the invalidity is called to its attention.</p>

<p>APPEAL from a judgment of the Superior Court of Los Angeles County, from an order refusing to vacate the judgment, 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>McNutt & Hannon, J. E. Hannon, George H. Smith, and O ’Melveny, Stevens & Millikin, for Appellant.</p>

<p>APPEAL from a judgment of the Superior Court of Sacramento County dismissing a contest of a will after probate, and from an order refusing a new trial. C. N. Post, Judge.</p> <p>The facts are stated in the opinion of the court</p>

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

<p>Minors—Deed of Minor Under Eighteen Years is Void—Disaffirmance Unnecessary.—Under sections 33, 34, and 35 of the Civil Code, as amended in 1874, a deed of real estate executed by a ' minor when under the age of eighteen years is absolutely void, and he is under no obligation to disaffirm it within a reasonable time after becoming of age, in order to render it ineffectual.</p> <p>Id.—Construction of Section 35 of Civil Code—Disaffirmance not Necessary to Avoid Certain Contracts.—The provisions of section 35 concerning the disaffirmance of contracts entered into by a minor whilst he is under eighteen, are to be understood as intended to refer solely to contracts other than those described in section 33, and that it is not the purpose thereby to make a disaffirmance necessary to avoid a contract of a minor under that age ■relating to real property, or to personal property not in his immediate possession or control, or delegating a power.</p> <p>Id.—Effect on Title of Piling Petition in Insolvency.—Evidence •that subsequent to the execution of the void deed the grantor filed a petition in insolvency with ithe accompanying schedules, without any further showing as to the result of .the insolvency proceedings, is insufficient to show that the title to the property described in deed passed to the assignee in insolvency.</p> <p>Id.—Ratification of Void Deed of Minor—Estoppel.—The deed of such minor, not being binding in any event, but being void from the beginning, could not be validated by a ratification. There must be some act which is the equivalent of the execution of a new contract, or something which operates as an estoppel.</p> <p>Id.—Facts not Creating Estoppel.—Such void deed could not of its own force operate as an estoppel, nor did the fact that it was duly recorded create an estoppel.</p> <p>Ib.—Estoppel not Shown by Evidence.—It is held that the evidence does not sustain the conclusion that the grantor in such void deed was otherwise estopped to claim title to the property described therein as against the successors in interest of his grantee.</p> <p>Id.—Disclaimer of Ownership of Land in Insolvency Proceedings. A disclaimer of any ownership of real property made by such grantor in insolvency proceedings instituted by him after he had" attained his "majority, and about fourteen years after his execution of such void deed, did not of itself divest his title to the property described in the deed, or create an estoppel against him in favor of one who had no knowledge of it.</p>

<p>APPLICATION for a Writ of Mandate directed to the Superior Court of Kern County and to the County Clerk of said county to compel the issuance of a writ of execution.</p> <p>The facts are.stated in the opinion of the court.</p>

<p>The facts are stated in the opinion of the court.</p> <p>Lafayette J. Smallpage, and Gordon A. Stewart, for Appellant.</p> <p>U. S. Webb, Attorney-General, J. Charles Jones, Deputy Attorney-General, and Edward Van Vrankan, Deputy District Attorney, for Respondent.</p>

<p>The facts are stated in the opinion of the court.</p> <p>Gibson, Dunn & Crutcher, Sheldon Borden, J. W. McKinley, Frank Karr, Ward Chapman, Edward E. Bacon, and W. R. Millar, for Appellants.</p>

<p>Tide Lands—Patent fob Land Within Two Miles of Town of Wilmington is Void—Effect of Patent as to Land Beyond Such Limit.—People v. California Fish Company, ante, p-. 576, followed with respect to the construction and effect of sections 3440 et seq., of the Political Code, and the act of 1872 incorporating Wilmington.</p> <p>Id.—Adverse Possession—Statute of Limitations—Possession by Railroad Under State Authority for Wharf and Railroad Purposes.—The possession by a railroad company of such tide lands within the two mile-limit of the town of Wilmington, solely under a wharf franchise and permits for railroad purposes issued by the state authorities in pursuance to the provisions of section 478 of the Civil Code, was not adverse to the state, as to the fee, but was attributable solely to the right of possession by virtue of the franchise and permits. It did not set the statute of limitations in motion, amd could not support a title by prescription to any subordinate estate in the land.</p> <p>Id.—Effect of Adverse Possession of Tide Lands Subject to Sale. Under the principles stated in the opinion in People v. California Fish Co., ante, p. 576, all that could be gained by adverse possession or the statute of limitations, as to the tide lands situated beyond the two mile-limit, was the title to the soil, subject to the public easements for navigation and fishery.</p> <p>Id.—Appeal—Omission to Find Material Fact—Appellate Court cannot Supply Omitted Finding.—The supreme court cannot make findings of fact in a case before it, on appeal. If facts necessary to support the judgment are proven, but not found, the judgment must be reversed.</p>

<p>The facts are stated in the opinion of the court.</p> <p>J. W. McKinley, Frank Karr, Gibson, Dunn & Crutcher, Ward Chapman, Sheldon Borden, Edward E. Bacon, and W. R. Millar, for Appellants.</p> <p>U. S. Webb, Attorney-General, Leslie R. Hewitt, John W. Shenk, A. P. Fleming, and Anderson & Anderson, for Respondent.</p>

APPEALS for judgments of the Superior Court of Los Angeles County and from orders refusing a new trial. Walter Bordwell Judge. The facts are stated in the opinion of the court. Gibson, Dunn & Crutcher, J. W. McKinley, Frank Karr, Ward Chapman, Sheldon Borden, Edward E. Bacon, W. R. Millar, and Lloyd W. Moultrie, for Appellants.

<p>The facts are stated in the opinion of the court.</p> <p>Gibson, Dunn & Crutcher, J. W. McKinley, Frank Karr, Ward Chapman, Sheldon Borden, Edward E. Bacon, and W. R. Millar, for Appellant.</p>

<p>Railroad .Commission — Both a Court and an Administrative Tribunal—Constitutional Amendment of 1911.—Sections 22 and 23 of article XII of the state constitution, as amended on October 10, 1911, have, in the state railroad commission, created both a court and an -administrative tribunal, and in the performance of its most important duties imposed on it by sections 53 to 81 of the Public Utilities Act (Stats. Ex. Sess. 1911, p. 18), the commission must sit as a tribunal exercising judicial functions of great moment. (Per Henshaw, J., Lorigan, J., and Melvin, J., concurring.)</p> <p>Id.—Public Utilities Act—Review of Orders of Railroad Commission by Supreme Court on Certiorari—Enlargement of Scope of 'Writ.—Section 67 of the Public Utilities Act, providing for a writ of certiorari exclusively before the supreme court for the pur-' pose of reviewing an order or decision of the railroad commission, and authorizing its review to determine whether the commission has regularly pursued its authority “including a determination of whether the order or decision under review violates any right of the petitioner under the -constitution of the United States or of the state of California,” has enlarged the scope of such writ beyond all former constitutional or statutory definitions, and all previous rulings and decisions in this state limiting its scope. (Idem.)</p> <p>Id.—Construction of Constitution—Controlling Effect of Language.—The supreme court in construing such constitutional enactment is limited to the language of the enactment itself and its construction may not be governed by what the framers of the amendments meant to say. (Idem.)</p> <p>Id.—Constitutional Law—Control of Public Utilities by Commission—Unrestricted Bight of Legislature to Confer Powers on Commission—Courts cannot Question Powers of Commission Under State Constitution.—The state constitution, by such amendments of sections 22 and 23 of article XII, has created a commission having control of the public utilities of the state, and has authorized the legislature to confer such additional and different powers upon the commission touching public utilities as it may see fit, unrestrained by other constitutional provisions. The legality of such powers as the legislature has or may thus- confer upon the commission, if cognate and germane to the subject of public utilities, may not be questioned under the state constitution. It follows, that the provisions of section 67 of the Public Utilities Act, depriving all state courts except the supreme court of jurisdiction to review the orders and decisions of the commission, and enlarging the jurisdiction of the supreme court in its review on certiorari of such orders and decisions, cannot be questioned under the state constitution. (Idem.)</p> <p>Id.—Extent of Powers of Supreme Court to Review Orders of Commission—Protection Guaranteed by Federal Constitution Awarded on Certiorari.—Such constitutional provisions are binding upon the supreme court, and under -them it becomes the duty of that court to lend its aid in giving effect to every power and. prerogative with which the legislature may vest or clothe the railroad commission, subject to the limitations imposed on the exercise of its power by the controlling provisions of the constitution of the United States. If, therefore, on the proceeding in certiorari, it shall appear that the exercise by the commission of -the powers conferred upon it by the legislature has violated the petitioner’s rights under the constitution of the United States, protection under that constitution will be awarded Mm. (Idem.)</p> <p>Id.—Reasonableness of Orders of Federal Cognizance Only— Effect of Orders—Findings of Commissioners.—The" reasonableness of the railroad commissioner’s orders and decrees, under the Public Utilities Act, may not be inquired into by any court of this state, and consequently is of federal cognizance only. But while the reasonableness of such orders may not be questioned, resort may be had to the findings of the commission to aid in determining the meaning and effect of its orders. (Idem.)</p> <p>Id.—Police Power—Regulation of Public Utilities—Principles Governing Exercise—Power of Eminent Domain.—In the exercise of the police power in the regulation of public utilities, while each case which is rested upon the exercise of that power must be subject to its- own individual consideration, certain fundamental principles govern all. The first of these is that this power goes merely to the regulation of the public utility, and that when an order passes beyond proper regulation it amounts to a taking of the property and the order is then referable not to the police power but to the power of eminent domain. The second is that this regulatory power falls into three natural subdivisions: 1. The right to regulate tolls and charges, to the end that fair compensation may be returned and excessive charges be forbidden; 2. The right to prevent discrimination upon the part of the public utility directed against those who employ it, or make use of its agencies, or the commodity which it furnishes; S. The right to make orders and to formulate rules governing the conduct of the public" utility, to the end that its efficiency may be built up and maintained and the public be accorded desirable safeguards and conveniences. Beyond these matters regulation, as regulation, does not go, and it is immaterial that the law or order be in terms and in form regulatory, if, in effect, it is a taking of property or a deprivation of the use of property within the meaning of the constitution. No public convenience or necessity, however urgent, will justify such a taking without compensation under the guise of the police power. (Idem.)</p> <p>Id.—Taking of Property—Deprivation of Its Use by Owner.—A “taking” of property .within the meaning of the constitutional guaranty, is not restricted to a mere change of physical possession, but includes a permanent or temporary deprivation of the owner of its use. (Idem.)</p> <p>Id.—Property Devoted to Particular Public Use—Subjection by Legislature to Another Public Use—Exercise of Power of Eminent Domain—Compensation Essential.—The subjection by the legislature, acting directly or through its authorized mandatories, ' of property devoted by its owners to a public use to another public use, or to the same public use by its rivals, "is an act referable to the power of eminent domain and not to the police power, and compensation must be made accordingly. (Idem.)</p> <p>Id.—Devotion to Public Use Does not Destroy Ownership—Management CANNOT BE TAKEN AWAY UNDER POLICE POWER.—The devotion to a public use by a person or corporation of property held by them in ownership does not destroy their ownership and does not vest title to the property in the public so as to justify, under ¡the exercise of the police power, the taking away of the management and control of the property from its owners without compensation, upon the ground that public convenience would better be served thereby, or that the owners themselves have proven false or derelict in the performance of their public duty. A law or order seeking so to do is in excess of the police power. (Idem.)</p> <p>Id.—Railroad Commission may Exercise Power of Eminent Domain—Jury Trial not Essential—Equal Protection of Laws.—The right to exercise the power of eminent domain in matters involving public utilities has been vested by the legislature in the railroad commission by the Public Utilities Act. The exercise of this power and the making of awards thereunder with respect to public utilities, without the intervention and verdict of a jury as required in other cases, are not in violation of the constitution of this state, nor of the provision of the constitution of the United States guaranteeing the equal protection of the laws. (Idem.)</p> <p>Id.—Railroad Commission must Make Compensation and Decree Payment Prior to Taking.-—While the .compensatory award in such cases rests with the railroad commission, it is still the duty of the commission, under section 14 of article I of the state constitution, as well as under the provisions of the Public Utilities Act itself, in the exercise of its powers of eminent domain, to •make compensation for the taking of the property of a public utility, and to decree payment -thereof in advance of the actual taking. (Idem.)</p> <p>Id.—Long Distance Telephone Company—Order Requiring Physical Connection With Lines of Local Competing Company—Exercise of Power of Eminent Domain-—Order not Regulatory or Administrative.—An order of the railroad commission directed to a telephone company which for many years had maintained a long distance service throughout the state of California, and in connection therewith had maintained a local exchange service in certain counties, but which had never dedicated its property to the use of rival and competing companies, compelling it to permit a connection between its long distance lines and the local lines of rival and competing companies operating locally in such counties, under which, by the use of its switchboards, operators, and lines, its property and its agencies, such rival and competing companies and their subscribers should have the same rights to all its long distance instrumentalities as its own subscribers and patrons, involves the exercise of the power of eminent domain and not of the police power, and is not merely regulatory nor administrative. (Idem.)</p> <p>Id.—Extent of Police Power—Regulation of Use Within Dedicated Use—Invalidity of Order.—In dealing with public utilities, regulation of use within the dedicated use is as far as .the police power may be extended, and when the regulation exceeds this, it is always void for unreasonableness and may, depending upon the form and character of the order, be also void as an attempt to take property without compensation in violation of the constitutional protection. (Idem.)</p> <p>Id.—Order a Taking of Property Without Compensation—Order Void Under State and Federal Constitution—Annulment on Certiorari.—Such order of the railroad commission, by subjecting the property of the telephone company conducting the long distance service to a new use, is tantamount to a taking of its property ■without compensation, within the meaning of the prohibitive constitutional provisions, and is therefore void by force and virtue of the constitutions of the state and of the United States, and will be annulled on certiorari by the supreme court. The fact that its property is turned over to the use of a competing company, to the manifest and proved injury to its local business, is an added element of injury in the taking and a proper matter for compensation. (Idem.)</p> <p>Id.—Apportionment of Rates fob Future Service not Compensation fob Taking.—An apportionment of rates and tolls between the companies affected by the order for a service to be rendered in the future is not a compensation for the present taking of the property, nor can the allocation of such, rates and tolls to be earned in the future ever measure up to the constitutional requirement that property shall not be taken without compensation first made and paid to the owner. (Idem.)</p> <p>Id.—Review of Orders of Commission by Courts—Power Limited to Supreme Court.—The supreme court has no power to review the orders of the railroad commission except by means of a writ of certiorari, or to control its action except in appropriate cases by mandamus. No other court of the state has any power to review the orders of the commission or to control its official action. (Per Sloss, J., and Shaw, J., concurring.) •</p> <p>Id.—Review Limited to Questions of Jurisdiction.—Upon a writ of certiorari against the railroad commission the supreme court must inquire whether the commission has acted within its jurisdiction, and if this inquiry be answered affirmatively the proceeding must be dismissed. (Idem.)</p> <p>Id.—Order of Commission cannot be Questioned Under State Constitution—Powers Conferred on Commission must Concern Regulation and Control of Public Utilities.—If the railroad commission has acted in conformity with the powers granted to it by the legislature, the validity of its order cannot be questioned in the supreme court or elsewhere under a claim of violation of any provision of the state constitution other than the provisions relating to the railroad commission. This statement is, however, to be taken subject to the qualification 'that the powers conferred by the legislature on the railroad commission must be such as are cognate and germane to the purposes for which the railroad commission was created, i, e., the regulation and control of public utilities. (Idem.)</p> <p>Id.—Acts of Commission as Affected by Guaranties of Federal Constitution—Violation of Guaranties—Recourse must be Had 'to Federal Courts.—Where the commission has acted within the powers conferred upon it by the legislature, the only recourse of one affected by its action is to the guaranties of the federal constitution. And in eases where the violation of the right guaranteed by the federal constitution does not involve an excess of the jurisdiction of the railroad commission, the federal courts are the only ones in which he may assert his rights under those guaranties. (Idem.)</p> <p>Id.—Order Within Powers of Commission—Taking of Private Property for Public Use Without Compensation—State Constitution not Violated.—If the railroad commission, acting within the powers granted to it by the legislature, makes an order which amounts to a taking of private property for public use without compensation, such order does not violate any provision of the constitution of this state. (Idem.)</p> <p>Id.—Such Order Violates Fourteenth Amendment of Federal Constitution.'—-If in making such order private property is taken for public use without compensation, such taking is a violation of the provisions of the fourteenth amendment to the constitution of the United States. (Idem.)</p> <p>Id.—Public Utilities Act—Provision Authorizing Such Order is Void—Commission Without Jurisdiction to Make Order.—Any provision of the Public Utilities Act is void to the extent that it purports to grant to the railroad commission power to take private property without compensation, and the act confers no jurisdiction on the board to make an order having this effect. (Idem.)</p> <p>Id.—Directing Physical Connection Between Telephone Companies—Void Provision of Public Utilities Act—Taking of Property Without Compensation.—Section 40 of the Public Utilities Act, authorizing the ordering of physical connection between telephone companies, is void in so far, at least, as it purports to require a company having long distance and local service, to make a physical connection for long distance service with a co'mpany competing locally, where the first company has not professed to render this kind of service. An order for physical connection is, in such a case, a taking of the property of the complaining company without compensation. (Idem.)</p> <p>Id.—Order in Excess of Jurisdiction of Commission—Annulment.— The order of the railroad commission under review, which purports to direct such a connection, was in excess of the jurisdiction of the commission and should be annulled. (Idem.)</p>

<p>Quieting Title—McEnerney Suit—Insufficient Affidavit—Appearance of Defendant—Estoppel to Question Jurisdiction.—Where a defendant in an action to quiet title under the McEnerney Act voluntarily appears and submits Ms claim in relation to the property for adjudication, he will not thereafter be heard to contend that the court acquired no jurisdiction by reason of the failure of the affidavit, filed with the complaint, to show that the plaintiff was in the actual possession of the property as is required by section 5 of the act.</p> <p>Id.—Mortgage—Nature of Power of Sale—Extinction With Lien.— A power of sale contained in a mortgage is to be deemed a part of the security; it is a mere incident or appurtenance of the mortgage lien, agreed upon by the parties solely as a means of enforcing such lien, and can have no vitality or force when the lien itself no longer exists.</p> <p>Id.—Sale Under Power—Debt Barred by Statute of Limitations.— A sale under a power contained in a mortgage, made after the debt and mortgage have become barred by the statute of limitations, is ineffectual for any purpose, and the purchaser thereat acquires no interest in the property.</p> <p>Id.—Mortgagee in Possession—Eight of Eetention Against Mortgagor.—If a mortgagee, while the mortgage is still subsisting, obtains possession of the premises in any lawful manner, his interest under the mortgage enables him to retain possession and defend it against the mortgagor or t-hose succeeding to his title.</p> <p>Id.—Possession by Mortgagee—Acquisition Without Eight.—A mortgagee who, without the consent of the mortgagor, acquires possession of the premises after the mortgage lien has become extinguished by the statute of limitations, cannot assert the rights of a “mortgagee in possession” so as to be entitled to retain possession until the mortgage debt is paid.</p> <p>Id.—Quieting Title—Mortgage Barred by Limitation—Necessity of Paying—Bona Fide Purchaser.—Notwithstanding the lien of a mortgage is extinguished by the barring of the debt by limitations,the mortgagor cannot, without paying the debt, quiet Ms title against the mortgagee; but this rule is not applicable to one who acquired the mortgaged land by purchase for a consideration after the lapse of the time within which an action to foreclose the mortgage could have been brought, and at a time -when the records showed that the lien of the mortgage had become extinguished.</p> <p>Id.—Costs—Whether Becoverable in McEnerney Suit.—The general provisions of the Code of Civil Procedure relative to costs are applicable to proceedings under the McEnerney Act as against persons contesting the plaintiff’s claim; and the court does not abuse its discretion, where only one defendant appears and opposes the suit and the action becomes in effect a simple action to quiet title between the parties, in awarding against the defendant the costs claimed by the plaintiff.</p>

<p>The facts are stated in the opinion of the court.</p> <p>M. T. Brittan, J. W. Maddux, John D. Harloe, and John T. Williams, for Appellant.</p>

<p>Corporation—Action Against on Account Stated—Interpretation op Findings.—In an action against a corporation on an account stated, a finding “that no account was stated between the assignor of plaintiff and the defendant as set forth in paragraph III of ithe first and second causes of action herein or at all, and in this •behalf the court finds that at the time and places stated in paragraphs III of the first and second causes of action herein there was an account stated between E. W. MeLellan .the assignor of plaintiff herein and W. H. Obear the president and manager of defendant herein,” cannot be understood otherwise than as a declaration that he stated the account as president and manager, purporting to act for the company, where the evidence without contradiction shows that whatever he did was done not for himself hut for the company.</p> <p>Id.—Findings—Interpretation so as to be Within Issues.—The rule that findings must be interpreted so as to support the judgment, if reasonably possible, is in such case controlled by the rule that findings must be interpreted on appeal so as to be within the issues.</p> <p>Id.—President and Manager—Authority to Make Contracts—Bylaws as Limiting.—Where the president and general manager of a corporation is given authority by a resolution of the board of directors to make all contracts for and on behalf of the corporation, his power to make oral contracts is not limited by a by-law making it .the duty of the president to sign all written contracts which have been first approved by the directors, and hence the admission in evidence of such by-law in an action on an oral contract made by such officer is erroneous.</p> <p>Id.—Account Stated—Conclusiveness—Assent op Dependant.—In an action upon an account stated, the items of the original demand cannot ordinarily be gone into; but where the defendant has raised an issue regarding his assent to the alleged account stated, he may introduce any evidence tending to show that he did not so assent.</p>

<p>Railroad Commission—Jurisdiction to Fix Rates—Transportation Over High Seas Between San Pedro and Avalon.—The state railroad commission has jurisdiction under the Public Utilities Act (Stats. 1911, p. 18) to fix the rates to be charged by a corporation for the transportation of passengers and freight between San Pedro and Avalon on Santa Catalina Island, both ports being situated in Los Angeles County, notwithstanding the vessels, in passing from one of these ports to the other, must travel in part over the high seas and outside of the territorial jurisdiction of the state of California.</p> <p>Id.—Commerce Clause of Federal Constitution.—Under such circumstances the vessels, while on the high seas on their trips between San Pedro and Avalon, are not engaged in “commerce with foreign nations,” within the meaning of the commerce clause of the federal constitution.</p>

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

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

<p>Mortgage—Debt Barred by Statute of Limitations—Grantee may Quiet Title Without Payment.—A grantee of mortgaged property, after the mortgage debt has become barred by the statute of limitations, may maintain an action to quiet Ms title against the mortgagee who had never had actual possession of the property, without first paying the mortgage debt.</p>

<p>Municipal Corporations—Prohibiting Contracts for Sale of Liquors—Ordinance not in Conflict With Wyllie Act.—An ordinance of the town of Winters, making it unlawful, within the corporate limits of the municipality, “to solicit orders, take orders, or make agreements for the sale or delivery of any intoxicating liquors,” is not in conflict with the provisions of the local option law known as the Wyllie Act, (Stats. 1911, p. 599).</p> <p>Id.—Power to Regulate or Prohibit Sale of Liquors.—A state and its subordinate municipal agencies may pass laws, even laws. penal in their character, regulating and indeed prohibiting the sale of •intoxicating liquors, or the soliciting of orders, or the making of contracts for the sale of such liquors.</p> <p>Id.—Police Power—Limited Extent of Town Regulation.—Such laws and ordinances are upheld when they show a reasonable and therefore valid exercise of the police power; and as the justification for such a police regulation in a town is the protection of its inhabitants against the injurious effects of indulgence in intoxicants, it follows of necessity that any ordinance devoted to this end must go to the extent of such protection and not further.</p> <p>Id.—Prohibiting Contracts for Sale of Liquors—Delivery Within Town Limits—Ordinance Construed to Give It Validity.—The utmost right of control of the town of Winters, touching the liquor traffic, is to prevent soliciting and contracts of sale made within its limits for delivery of intoxicants therein. The ordinance, therefore, in order to give it validity, should he construed to apply only to the soliciting and contracting for the sale of intoxicants to be delivered within the town limits. The town could not prohibit the making of a contract within its limits for the sale of intoxicants to be delivered without those limits. Such an ordinance would not be a reasonable exercise of the police power and would be in restraint of contract and of trade.</p> <p>Id.—Complaint Charging in Language of Ordinance.—A complaint which charges a violation of the ordinance in the language thereof is sufficient. The defendant, however, would be completely exonerated by a showing that in fact the delivery was not to be made within the territorial limits of the town.</p>

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

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

<p>APPEAL from an order of the Superior Court of Merced County refusing a new trial. E. N. Rector, Judge.</p> <p>The facts are stated in the opinion in the case of Estate of Jones, ante, p. 108.</p>

<p>Criminal Law—Gambling by Pool-selling, etc.—Joinder of Offenses.—Judgments affirmed on the authority of People v. Plath, ante, p. 227.</p>

<p>Taxation—Absence or Auditor's Affidavit to Assessment Book.— Order denying a new trial affirmed on the authority of Moyer v. Wilson, ante, p. 261.</p>

<p>Railroad—Forfeiture of Right to Build Road—Eminent Domain.— Judgment affirmed on the authority of Northwestern Pacific Railroad Company v. Lambert, ante, p. 749.</p>