Volume 167 — California Reports

<p>Criminal Law—Murder—Abortion—Corpus Delicti—Evidence.—In a prosecution for murder in causing the death of a woman by means of a criminal abortion, the evidence is held sufficient to establish the corpus delicti,—namely, that the woman was dead, and that her death had been occasioned by unlawful means, and also sufficient to sustain the verdict against the defendant, in that it established that the unlawful means were chargeable against him.</p> <p>Id.—Murder as Besult oe Abortion—Absence of Elements of Manslaughter—Instructions.—In abortion cases, where the defendant rests simply upon a denial of the crime charged, no element of manslaughter enters into the ease, and the court’s instructions are properly limited to a charge upon murder in the second degree. Where, however, the evidence discloses a reasonable ground to- believe that the defendant might not have been guilty of murder, but migjit have been guilty of involuntary manslaughter, the definition and explanation of this kind of manslaughter should be included in the charge.</p> <p>Id.—Involuntary Manslaughter—Failure to Instruct Concerning— Defense Bested upon Conflicting Theory.—Notwithstanding the existence of evidence, which, if believed by the jury, would have justified a verdict of involuntary manslaughter, the failure of the court to instruct upon that subject is without prejudice to the defendant, if other instructions proposed by him disclosed the deliberate purpose to rest his defense upon the proposition that he had committed murder in .the second degree or was innocent of any crime.</p> <p>Id.—Declarations of Woman as to Condition of Pregnancy—Purpose of Visit to Defendant.—In such a prosecution, declarations of the woman as to her condition of pregnancy and the purpose of her visit to the defendant are inadmissible as direct proof of the commission of the abortion, but are admissible as evidence establishing her condition and the avowed purpose of her visit.</p>

<p>Adoption—Welfare of Child—Evidence in Opposition to Petition— Normal Contest Unnecessary.—In a proceeding for the adoption of a minor the all important question for determination is" the welfare of .the child, and a formal contest of the petition is not a necessary prerequisite .to the taking of testimony in opposition to the prayer of the petitioner.</p> <p>Id.—Discretion in Matter of Adoption.—The matter of adoption rests in the sound discretion of the court, and in the exercise of that discretion the court should seek information from all proper sources.</p> <p>Id.—Denial of Petition for Adoption—Appeal—Abuse of Discretion.—As the matter of adoption rests so strongly in the sound discretion of the court, a denial of a petition to adopt will not be disturbed on appeal without the showing of a very grave abuse of discretion by the court. It is held that no such abuse is shown in the present ease.</p>

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

<p>APPLICATION for a Writ of Review directed to the Superior Court of Sonoma County, and to Emmet Seawell, Judge thereof.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Appeal—Application fob Writ of Supersedeas—Title of Proceeding.—An application for a writ of supersedeas to stay execution pending an appeal from a final judgment should bear the title of the original action, and not be entitled the petitioner against the superior court.</p> <p>Id.—Stay of Execution Pending Appeal—Sale of Perishable Property.—The exception in section 949 of the Code of Civil Procedure, which section provides that the perfecting of an appeal by giving an undertaking or making a deposit stays proceedings in the court below upon the judgment or order appealed from, except where it directs the sale of perishable property, has reference to the ease where the order appealed from and directing a sale of certain prop- • erty has been made upon the ground that the property is perishable, and contemplates an adjudication or a finding to that effect on the part of the court making such order.</p> <p>Id.—Judgment Dissolving Partnership and Directing Sale of Property in Possession of Receiver—Stay of Execution Pending Appeal—Necessity of Stay Bond.—The execution of a judgment dissolving a partnership and directing a sale, by a receiver therefore appointed, of the partnership property, consisting of both real and personal property, is stayed on appeal by the filing of a bond in the sum of three hundred dollars for “damages and costs” as provided by section 941 of the Code of Civil Procedure, and a writ of supersedeas will issue to restrain the receiver from selling the property pending the appeal.</p> <p>Id.—Finality of Judgment—Reservation of Questions for Future Determination.—A judgment dissolving a partnership, directing a sale of the firm property, and providing for the distribution of the proceeds between the parties, is a “final judgment” within the meaning of the code sections governing appeals, although the compensation of the receiver appointed in the action, and the amount of money to be paid to the creditors of the partnership, are reserved for future determination.</p> <p>Id.—Rule for Determining Whether Judgment is Final or Interlocutory.—The general rule applicable in determining whether a judgment is final or merely interlocutory is, that if anything further in the nature of judicial action on the part of the court is essential to a final determination of the rights of the parties, the judgment is interlocutory only..</p>

<p>APPEAL from a judgment of the Superior Court of Sonoma County. Emmet Sea well, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Estate op Decedent—Proceedngs to Determine Heirship—Character op Property as Separate or Community—Findings and Evidence.-—-In this proceeding between the heirs of a husband and those of his wife to determine heirship to his estate, the finding that a certain tract of land was his separate property, and not the property of the community, is a finding of fact, not a conclusion of law, and it has sufficient support in the evidence.</p> <p>Id.—Ownership op Property—Pleading and Finding—Ultimate Fact.—An allegation or finding that a person is the owner of certain property is none the less an allegation or finding of an ultimate fact because the question of ownership depends upon the application of rules of law to the facts shown.</p> <p>Id.—Community or Separate Property—Allegations and Findings.— The same considerations apply to an averment or finding that certain property owned by a married person is separate or community property. The evidence from which this ultimate fact is determined is not to be set forth in a pleading nor need it be found by the court.</p> <p>jb.-—Findings — Probative Facts Overcoming Ultimate Facts.— Findings of probative facts can be used to overcome an express finding of the ultimate fact only where the probative facts are inconsistent with the ultimate facts found, or where it appears that the trial court made the alleged finding of the ultimate fact simply as a conclusion from the particular facts found.</p> <p>[d.—Community or Separate Property—Consistency op Findings.— On this appeal in proceedings between the heirs of a husband and those of his wife to determine heirship to his estate, the probative facts in the finding are not inconsistent with the conclusion that the property was his separate property. There being no finding that the purchase price paid by him for the property was. not his separate property, the appellate court cannot, for the purpose of overthrowing the ultimate finding of the separate character of the property, read into the findings one to the effect that the purchase money was community property.</p> <p>I'd.—Presumption as to Character op Property as Community—Rebuttal.—Property acquired by a husband during coverture is presumed to be community property, in the absence of a showing that it was acquired by gift, bequest, devise, or descent, or was purchased with his separate property; but this presumption is rebut-table.</p> <p>Id.—Equitable Considerations—Admissibility to Show Whether Property is Community.—In determining whether the property acquired by a husband was separate or community, regard should be had to his equitable status as purchaser, not simply to the technical mode by which the legal title came to be vested in him.</p> <p>Id.—Admissions op Wipe—Admissibility to Show Property is Separate.—Sworn statements by the wife in her inventory of her husband’s estate, and in her application for a homestead, that the property was his separate estate are evidence against her successors in interest.</p> <p>Id.—Judgment Setting Apart Homestead—Conclusiveness as Showing Property Separate.—Where a widow petitions to have a portion of the estate of her deceased husband set apart to her as a homestead, alleging the property to be his separate estate, the decree setting aside the homestead as prayed is binding upon her and her heirs, and estops them from asserting that the property belonged to the community (Department opinion).</p>

<p>Vendor and Vendee—Option—When Becomes Executory Contract to Purchase.—An option to buy land becomes an executory contract of purchase when the vendee makes payments contemplated by the agreement and binds himself to covenants and conditions to be performed in the future.</p> <p>Broker—Bight to Commissions on Failure op Purchaser to Complete Contract and Sale op Property to Others.—Where the owner of land agrees to pay a. broker commissions for effecting a contemplated sale to a certain person upon specific terms, but, after a contract of sale is entered into, the vendor terminates it because the vendee defaults in payment as agreed, the broker is not entitled to commissions when a sale of the property is subsequently made to other persons upon different terms, whatever may have been his expectation and belief as to right to compensation under' such subsequent sale.</p>

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

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

<p>Negligence—Employer’s Liability—Safe Place to Work—Guarding Machinery.—'Where an employee was placed in charge of fish cleaning machinery, a part of which consisted of a shaft to which was attached a moving pulley, it was the duty of the employer, if not to box the shaft, to furnish a reasonably safe place to work; and if, while the employee was replacing a belt on the pulley, his clothing was caught by a collar and set-screw projecting from the shaft, which were unguarded and which made the place dangerous, the employer might properly he held liable for the resulting injuries.</p> <p>Id.-—Dangerous Machinery—Duty of Employee to Observe.—In an action by the employee to recover for such injury it is for the jury “to say whether or not under all of the circumstances he was hound to observe the set-screw attached to the collar, when it was more than five feet above his head as he worked on the floor, and was shut off from all possible observation from many parts of the building by a running hoard beneath it, and rendered invisible by rapid motion during the time when the machinery was in operation.</p> <p>Id.—Investigation of Danger—Duty of Employee to Make.—If the employee was ignorant of the existence of the set-screw, he was under no obligation to investigate the danger.</p> <p>Id.—Assumption of Bisk—Unknown Dangers.—The rule of assumption of risk by an employee does not apply where the danger is not obvious, where it is unknown to the employee, and where by the exercise of ordinary care the employer could have discovered and removed it.</p> <p>Id.—Contributory Negligence—Question of Fact or of Law.—The employee was not guilty of contributory negligence, as a matter of law, in attempting to replace the belt on the running pulley in proximity to the shaft. Whether or not an injured person was guilty of contributory negligence is usually a question of fact; it is a question of law only when the evidence will support no other legitimate inference than that he was negligent.</p> <p>Id.—Putting Belts on Bunning Pulleys—Admission of Evidence— Harmless Error.-—Error, if any, in admitting testimony that the employee had seen other employees put belts on running pulleys, was harmless, if all of the witnesses testified without objection that it was proper for an experienced person to put on the belt while the shaft was revolving.</p> <p>Id.—Discovery or Knowledge by Employee of Danger—Instructions.—An instruction to the jury that “if you find . . . that the plaintiff did not know and did not in the exercise of ordinary care discover the existence of the set-screw,” etc., was not erroneous on the theory that the test is not what the employee did discover but what he could have discovered by the use of ordinary care and diligence. The meaning of the expressions is substantially the same.</p> <p>Id.—-Propriety op Putting Belt on Moving Pulley—Instructions.— An instruction that if a fellow-servant taught the employee to put the belt on a moving pulley, the employer was not liable for the result of such instructions, was properly rejected as assuming that putting the belt on a moving pulley was improper when the evidence did not so indicate.</p> <p>Id.—Guarding Shaft—Instructions as to Duty.—An instruction was properly refused which told the jury that the employer was under no duty “to guard or protect” the set-screw on the shaft, if by this is meant there was no duty resting upon him to cover the shaft and set-screw with easing or guard; there being no contention nor suggestion that the employer owed such a duty to the employee.</p>

<p>Municipal Corporations—Public Laundries—Restricting Hours or Labor—Police Power.—An ordinance of the city and county of San Francisco limiting the hours of labor in public laundries within the municipality to the period between seven o’clock in the morning and six o’clock at night is a reasonable exercise of the police power, and is constitutional.</p> <p>Id.—Usual Period op Employment.—The board of supervisors of the municipality have authority to prescribe hours of cessation from labor in laundries, and the fair measure of the extent of that power is the usual period of business activity in similar sorts of employment.</p>

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

<p>Fire Insurance—Sole and Unconditional Ownership—Interest op Vendor.—One who has entered into, though not recorded, an agreement to convey property, received installments of the purchase price, and placed the vendee in possession, is not the sole and unconditional owner of the property within the meaning of a provision in a policy of insurance thereon that the policy shall be void “if the interest of the assured be other than unconditional and sole ownership.”</p> <p>Id.—Condition in Policy—Waiver by Soliciting Agent.—An agent whose duties are confined merely to soliciting fire insurance cannot waive a condition in a policy that the policy shall be void if the ownership of the insured is not sole and unconditional.</p> <p>Id.—General Insurance Agents—Authority to Waive Conditions.— It is ordinarily only those agents of an insurance company who are empowered to issue and deliver policies who may be regarded as having the power to waive conditions; they are the general agents of the company and vested with full authority to consummate the contract of insurance, and are deemed, as such respresentatives, to have the same power to waive conditions as the companies themselves.</p>

<p>APPEAL from an order of the Superior Court of Alameda County granting a new trial. F. B. Ogden, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>APPLICATION for a Writ of Habeas Corpus to be directed against the State Prison Warden at San Quentin.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Eminent Domain—Foreign Corporation—Eight to Condemn Property.-—A foreign corporation, which has complied with the laws of this state governing its right to do business herein, may exercise the power of eminent domain.</p> <p>Id.—Public School Land—Effect of Forest Reservation.—Where title to a section of land has completely vested in the state by virtue of the federal school land grant, the subsequent creation of a national forest reservation, which within its exterior boundaries includes the school land, does not affect or impair the title of the state thereto.</p> <p>Id.—Creation of Forest Reserve—Effect on Title to Lands.—The creation of a national forest reserve is, as to such lands as are under control of the federal government, a dedication and an appropriation of these lands to a public use. But lands which are surrounded by- such reserve and which are held in private ownership, either by the state or by other locators, pre-emptors or purchasers from the general government, or from the state, are not likewise appropriated to a public use.</p> <p>Id.—Property Subject to Condemnation—School Land Surrounded by Forest Reserve.—School land granted to the state by the federal government and surrounded by a national forest reserve is not appropriated to a public use and may therefore be condemned in eminent domain proceedings instituted by a public service corporation.</p> <p>Id.—Offer of State to Exchange School Land—Want of Acceptances by Federal Government.—The taking of appropriate steps by the state in the various federal land-offices to exchange such school land for other equivalent public land, pursuant to the provisions of sections 3398 to 3409 of the Political Code, which provide that such lands may be used as “bases for indemnity selections provided by law,” does not constitute a dedication of such to “public use” so that it cannot be condemned under the power of eminent domain.</p> <p>Id.—Loss of School Land by State—Indemnification by Federal Government—Exchange of Lands.—Section 2275 of the United States Revised Statutes of 1891, the only federal law on the v subject, which declares that when any school sections conveyed to a state are lost to the state, either by superior claims of homestead or pre-emption settlers, or because they are mineral lands, or are included within any Indian, military, or other reservation, or because they are otherwise disposed of by the United States, “other lands of equal acreage are hereby appropriated and granted and may be selected in lieu of such as may be thus” lost, does not contemplate an exchange of lands between the state and the United States, but the making good to the state of a loss which it may sustain through failure to get land which the United States attempted to grant it.</p> <p>Id.—Indemnity Selections—School Sections as Bases—Status op Federal Law.—While the state has by appropriate legislation offered to exchange such lands for other lands of the United States, there is no law of the United States authorizing such an exchange, and no act of Congress taken in contemplation of any such exchange, present or future. Therefore the position of our state law that these sections may be used as “bases for indemnity selections provided by law” is without any present efficacy by reason of the fact that there is no law of the United States either authorizing indemnity selections in such eases or authorizing an exchange of lands in any other way.</p> <p>Id.—Eminent Domain—State Lands Reserved prom Sale.—The state statutes do not say that state lands reserved from sale, or state lands not offered for sale, shall not be subject to the right of eminent domain. They declare that all the lands of the state shall be subject to this right, saving such lands alone as are devoted to a public use.</p> <p>Id.—Public Domain—Exclusive Control of Congress.—The control of the public domain is vested in Congress alone, and Congress only can dispose of the public lands of the United States.</p> <p>Id.—Ruling of Executive Department—Whether Superior to Adjudication of Court.—The ruling of an executive department of the United States government cannot stand superior to the construction of a federal statute by a federal court.</p> <p>Id.—Public Service—Necessity of Corporation Engaging in Before Condemning Land.—The law does not contemplate that a corporation organized to render public service must first be engaged in such service before its right to condemn property under the power of eminent domain accrues, and hence its complaint in condemnation proceedings need not show It to be in charge of a public use.</p> <p>Id.—Complaint in Condemnation Proceedings—Sufficiency in Al- . leging Purposes.'—The fact that such complaint alleged certain purposes of the proceedings not expressly enumerated in section 1238 of the Code of Civil Procedure does not operate against the judgment, when there was no demurrer, and the most of the purposes set forth in the complaint came strictly within the language of the section, and the evidence was ample to sustain the complaint in these respects.</p> <p>Id.—Articles or Incorporation—Power to “Acquire” Lands Includes Bight to “Condemn.”—The power “to acquire” property for the purposes of a public use, given to a public service corporation by its articles of incorporation, includes the right “to condemn.”</p> <p>Id.—Action to Condemn Entire Section—Sufficiency of Complaint.—Where the plaintiff in eminent domain seeks to condemn a whole section of land, not rights of way thereover, it is unnecessary for the complaint to conform to the requirements of section 1244 of the Code of Civil Procedure, which is applicable to eases where a right of way only is sought.</p> <p>Id.—Beserve—Locked Lands—Transfer by State to Federal Government—Acceptance by Land Department.—The statutes of the state nowhere contemplate a gift of lands surrounded by United States forest reserves to the United States, but only an exchange for equivalent lands. Therefore an unauthorized acceptance by the United States land department of a listing of such lands by the state, with no further act upon the part of the United States, cannot operate to divest or even to impair the title of the state.</p> <p>Id.—State Land Within Forest Beserve—-Condemnation not Opposed to Interests of State.—The condemnation of state land, which is surrounded by United States forest reserves, by a public service corporation under the power of eminent domain, is not contrary to public policy and the interest of the state.</p>

PROCEEDING to review an order of the Railroad Commission dismissing a complaint presented to it. The facts are stated in the opinion of the court.

<p>APPEAL from a decree of distribution of the Superior Court of Los Angeles County. James C. Rives, Judge,</p> <p>The facts are stated in the opinion of the court.</p>

<p>Building Contract—Interpretation—Duty op Contractor to Protect Adjoining Structures During Excavations.—A provision in a building contract that “the contractor shall do all that is necessary to protect the adjoining buildings, streets and the public during the excavation, doing all shoring,” bracing, and trenching required to that end, does not place upon the contractor the duty of going upon adjacent property and putting supports beneath the foundations of buildings thereon, nor impose upon him any greater liability than that imposed on the owner by section 832 of the Civil Code, which does not require support for buildings which have been superimposed upon the land adjacent to that upon which an excavation is to be made.</p> <p>Id.—Underpinning Adjacent Property—Liability op Contractor por Cost.—Under a clause in a building contract requiring the contractor to assume all responsibility for damages which may occur to the building or to any adjoining building by any act or omission of himself or his employees, he is not liable for the cost of underpinning the walls of a building on adjoining property. Nor is he made liable for the. cost of such work by a clause in the contract requiring him to furnish any necessary thing which may have been omitted from the specifications, nor by a clause whereby he is to furnish all requisite' materials for the contract price.</p> <p>Id.—Meaning of Terms in Building Contract—Expert Testimony.— In a controversy between the contractor and the owner of the building as to which is liable under the contract for the cost of underpinning a building on adjacent property, an expert witness may testify that under the custom prevailing in the city the terms “shoring, bracing and trenching” have no reference to underpinning.</p> <p>Id.—Cost of Underpinning—Implied Promise to Pay.—If the authorized agent of the owner of the building ordered the contractor, while constructing the building, to underpin the walls of the building on adjacent property, an implied promise to pay the reasonable value thereof arises.</p> <p>Ib.—Disputes as to Specifications—Settlement by Architects.— A provision in a building contract that all disputes as to the meaning of the specifications shall be settled by the architects, has no application to a dispute as to extra work on adjacent property, which work is entirely outside the contract.</p>

<p>Municipal Corporations—Street Assessment—Completion op Work Within Time.-—The right to recover a street paving assessment depends upon the completion of the work within the time limited by the contract or a valid extension thereof.</p> <p>Id.—Action to Recover Assessment—Sufficiency of Complaint in Showing Time of Completion of Work.—A complaint in an action by a contractor to recover a paving assessment which alleges that under the contract with the city, October 17, 1907, was fixed as the time for the completion of the work; that, on September 23, 1907, ■ the common council authorized the superintendent of streets to extend the time within which the work might be completed, sixty days from and after October 17, 1907; that on September 25, 1907, that official “extended the time for the completion of said work for sixty days from and after the 17th day of September, 1907, and indorsed such extension of time on said contract”; that the plaintiff completed the work “before the 12th day of December, 1907,” sufficiently shows, in the absence of special demurrer, that the work was done within time.</p> <p>Id.—Uncertainty in Pleading—Taking Advantage of Under General Demurrers.—The uncertainty in the pleading cannot be taken advantage of on appeal under general demurrers which were not argued.</p> <p>Id.—Assessment Against Unknown Owners—Conclusiveness of Certificate of Street Superintendent.—An assessment for street paving is not void on its face because the street superintendent assessed all of the pieces of property involved to “unknown” owners, where he has made his certificate that the ownership of such properties was unknown to him; and in an action to recover the assessments evidence in the shape of record's from the auditor’s office showing the names of the persons to whom the lands along the street had been assessed, is properly rejected.</p> <p>Id.—Power of Attorney—Execution of Paving Contract—Meaning of “Asphalt Pavement” and “Asphalt Macadam Pavement.”— A power of attorney authorizing the execution of a contract “for laying asphalt pavement” on a certain street is sufficient to authorize the execution of a contract for paving the street with “asphalt macadam pavement,” where the evidence, though conflicting, warrants the conclusion that the term “asphalt pavement” is the general designation within which the specific name “asphalt macadam pavement” is properly included.</p> <p>Id.—Contract for Street Work—Effect of Clause Limiting Hours of Labor.—A specification in a contract for street paving that no person doing work thereunder shall be required to labor more than eight hours a day, except in eases of extraordinary emergency, does not invalidate the contract, where there is a general custom of the authorities in charge of such work to # demand a clause in every contract similarly limiting the hours of labor.</p> <p>Id.—Custom as to Hours of Labor—Controlling Effect.'—Such custom does not necessarily control a contractor; he is bound by the law alone. And it cannot be said as a matter of law that all bidders would accept a custom rather than the letter of the law as the controlling factor in their offers to do the work.</p> <p>Id.—Bond by Contractor—Constitutionality of Statute Requiring.— The requirement of the Vrooman Act that a public improvement contractor shall give a bond to the superintendent of streets which shall inure to the benefit of all persons who perform labor on or furnish materials to be used on the improvement, is constitutional.</p>

<p>APPEAL from an order of the Superior Court of Los Angeles County assigning the entire estate of a decedent to his widow. James C. Rives, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Will—Revocation of Probate—Contestant must have Interest.—A proceeding for revocation of probate of a will cannot be maintained by any person unless he is in some way interested in the will. If he is a legal heir of the deceased that constitutes a sufficient interest. But if he is not an heir he must show that he has some interest in the estate of the deceased which the will he attacks would jeopardize.</p> <p>Id.—Probate of Will of Resident Testator—Original Probate must be in California.—Where a testator, at the time of his death, was a resident of the state of California, his will must be proved originally as a domestic will in the county of his residence, and, so far as that state is concerned, it cannot be proved elsewhere and brought into that state for the purposes of secondary or ancillary administration.</p> <p>Id.—Foreign Probate of Will of Resident Testator—Denial of Probate in California—Absence of Evidence of Execution of Will.—A document offered for probate in the state of California as a foreign will, under sections 1322 to 1324 of the Code of Civil Procedure, must be denied probate therein, if the testator, at the time of his death, was a resident of that state, and there was no evidence given at the hearing to show the execution of the will other than the decree of the foreign court admitting it to probate, and no offer made to prove the execution of the will as an original document.</p> <p>Id.—Evidentiary Effect of Foreign Probate—Interest in Estate of Legatee.—Such foreign probate affords no legal proof in this state of the existence of the will purporting to be probated, and does not show an interest in the estate of the decedent, on the part of a person whose only claim of interest was based upon a legacy under such purported will.</p>

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

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

<p>Charitable Uses—Suspension of Power of Alienation.—The code provisions prohibiting the suspension of the power of alienation beyond prescribed limits have no application to charities and charitable uses.</p> <p>Id.—Beneficiaries of Charitable Gift—Direct Benefit to Animals. It is not essential to the validity of a gift to charitable uses that • the persons constituting the general public be the direct beneficiaries of the gift. Gifts to benefit man through the medium of benefiting animals are good charities.</p> <p>Id.—Bequest to Municipality—Fountain fob Benefit of Animals and Birds.—A pecuniary bequest to the city of Sacramento, “to be used in erecting a suitable fountain for the benefit of thirsty animals and birds,” is for a charitable use.</p> <p>Id.—Construction of Gift—Benefits Limited to Useful Animals.— Such gift is not invalid because its benefits are not in terms limited to animals or birds useful to man. If it be assumed that a gift which might in part benefit noxious animals would be objectionable, the gift in question should be fairly construed as designed for the advantage of useful animals only.</p> <p>Id.—Fountain Designed as Memorial for Private Person.—The fact that the testatrix by her will stated that the bequest was given as a memorial for her husband, does not show that it was intended for a private rather than a public purpose.</p> <p>Id.—City of Sacramento may Accept Gift and Maintain Fountain.— The city of Sacramento, under section 1275 of the Civil Code and the provisions of its charter (Stats. 1893, p. 547), has the power to accept such bequest; and the future maintenance of the fountain would be within the legitimate scope of its municipal functions.</p>

<p>Practice—Dismissal of Action—Failure to Prosecute—Inherent Power of Court.—The superior court, without the aid of statutory authority, has power, as a court of general jurisdiction, to dismiss an action because of the failure of the plaintiff to prosecute it with reasonable diligence.</p> <p>lb.—Limitation on Power Where Answer has Been Filed.—Section 583 of the Code of Civil Procedure, enacted in 1905, deprives the superior court of power to dismiss an action for neglect of the plaintiff to prosecute the same, in eases where an answer has been filed, unless the plaintiff fails to bring the action to trial within two years after the filing of the answer.</p> <p>Id.—Construction of Section 583 of Code of Civil Procedure.—That section evinces an attempt to cover the entire subject of dismissals for failure to bring an action to trial after answer filed, and to fix (1) a minimum period of two years within which mere delay is not to be deemed sufficient cause; (2), an immediately ensuing interval of three years, during which the court, in its discretion, may adjudge it sufficient; and, (3), a maximum period of five years, upon the expiration of which, the delay is declared to be sufficient as a matter of law and the dismissal is made mandatory.</p> <p>Id.—Determination op Motion—Condition Existing at Time op Motion.—The situation existing at the time a motion to dismiss for want of diligence in prosecution was noticed is that which controls its determination.</p> <p>Id.—Discretionary Power op Court Where no Answer has Been Filed—Demurrer not Equivalent to Answer.—Section 5-83 of the Code of Civil Procedure applies only to the particular instance of delay in bringing the ease to trial after answer filed. Where an answer has not been filed, the court’s power to dismiss an action for want of prosecution remains, as it was before, limited only by a sound discretion. For the purposes of that section, the filing of a demurrer does not have the same effect as an answer.</p> <p>Id.—Unexplained Delay por Almost Two Years—Discretion not Abused.—It is held that it was not an abuse of discretion for the court to dismiss the present action as against defendants who had not filed an answer, where there was an entirely unexplained and inexcusable delay for nearly two years in prosecuting the action at the time the motions to dismiss were noticed.</p> <p>Id.—Neglect op Attorneys Attributable to Client.—If the delay in prosecuting an action is due to the neglect of the attorneys of the plaintiff, such neglect is imputable to the plaintiff as her own neglect.</p>

<p>Will—Construction of Bequest to Employees of Corporation.—A testator, who died March 18, 1911, by his holographic will dated January 9, 1911, made the following bequests: “Fifth: To all employees of the Henry Cowell Lime and Cement Co., now working for said firm at Santa Cruz and who have been in said employ for twenty years the sum of one thousand dollars and to all who have worked over ten years the sum of five hundred dollars each. “Sixth: To all employees in the S. F. of said firm who have worked three years the sum of one thousand dollars and who have worked two years the sum of five hundred dollars each. In all eases.these dates are of January first, nineteen hundred and eleven.” Held, that the benefits' conferred by the fifth paragraph were limited to persons who were employees of the company on January 1, 1911, and that to entitle them thereto, it was not necessary that they should have been employed continuously for twenty and ten years respectively.</p> <p>Id.—Person Employed to Cut Wood—Payment by the Cord.—A person engaged in cutting wood for the company on its property, at a specified price per cord, and who worked exclusively for the company, under the supervision of its agent, cutting where he was told to cut, and devoting all his time to such work, was an employee of the company within the meaning of that term as used in the will.</p>

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

<p>Mechanics’ Liens—Lien for Power—Statute Authorizing not Unconstitutional.—Section 1183a of the Code of Civil Procedure, enacted in 1909 (Stats. 1909, p. 1003), giving a lien to persons supplying power by means of teams, wagons, vehicles, implements, or appliances, used in the construction, alteration, addition to, or repair of any of the improvements or works mentioned in section 1183 of that code, and providing the same procedure for enforcing the lien, and the same right to give notice to withhold payments, as is given to persons furnishing materials, is not unconstitutional because such lien is not one of those specified in section 15 of article XX of the constitution.</p> <p>Id.—Constitutional Provision Providing for Certain Classes of Liens—Legislature may Grant Liens to Other Classes.—That section of the constitution, declaring that “mechanics, materialmen, artisans and laborers of every class, shall have a lien upon the property upon which they have bestowed labor or furnished material for the value of such labor done and material furnished; and the legislature shall provide, by law, for the speedy and efficient enforcements of such liens,” neither expressly nor impliedly prohibits the legislature from granting liens to other classes of persons.</p> <p>Id.—Construction of Claim of Lien—Damages for Failure to Use Power During Entire Contract Period.—A claim of lien for power actually supplied, covering only the period during which it was furnished and used by the contractor, cannot be construed as claiming damages for the failure of the contractor to use the power during the entire period for which he agreed to take it, merely because it contains a statement that the power was not retained for the full contract period, and that this was due to no fault of the claimant.</p> <p>Id.—Payment for Power—Measuring Compensation by Number of Mules Employed.—An agreement to furnish mules, together with equipment, for a compensation measured by the number of mules employed, the equipment and appliances not to be separately paid for, is not 'uncertain as to the amount and mode of payment.</p>

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

<p>Negligence—Collision of Street Car With Wagon—Injury to Passenger—Bes Ipsa Loquitur.—Where a street car collides with a wagon, and as a result a passenger on the car is injured, the doctrine of res ipsa loquitur applies in favor of the passenger, and a presumption of negligence arises against the railway company which it must rebut in order to escape liability.</p>

<p>APPLICATION for Writ of Supersedeas to be directed against the Superior Court of Los Angeles County, N. P. Conrey, Judge thereof, and W. H. Holabird, Commissioner.</p> <p>The facts are stated in the opinion of the court.</p>

<p>APPEAL, from an order of the Superior Court of Los Angeles County dismissing an action and from a judgment of dismissal entered thereupon. Walter Bordwell, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Power of Attorney—Revocation—Reinstatement by Oral Declaration.—A power of attorney, when once' revoked by a writing of ^equal solemnity, cannot be reinstated and revived by mere oral declaration.</p> <p>Criminal Law—False Pretenses—Misrepresentation as to Authority Under Power of Attorney—Materiality of Representation. Where a husband obtains a loan by transferring vendor’s lien notes which belong to his wife, his false representation that he has a power of attorney from her to make the transfer does not make him gidlty of obtaining money under false pretenses, if the transfer of the notes by him would be valid under the law without any power of attorney. In order that the crime of obtaining money by false pretenses may be predicated upon a representation, the representation must be not only false but material.</p> <p>Id.—Law of Another State—Conflicting Evidence—Duty of Court. If it appears on the trial for such offense that the property covered by the notes is in another state, and the evidence is conflicting as to the law of that state regarding the authority of the husband to transfer the notes, the court is neither authorized nor required to determine from the conflicting testimony what the settled law of that state may be, but it should assist the jury in reaching a just conclusion by analyzing the testimony and showing its possible application to the theories of the respective parties.</p> <p>Id.—Misconduct of District Attorney—Imputation of Immorality to Defendant.—In a prosecution for obtaining money by false pretenses it is misconduct warranting a reversal for the district attorney to repeatedly ask the defendant questions insinuating that he is guilty of immoralties, over the objections of the defendant and the rulings of the court.</p> <p>Id.—Functions op District Attorney.—Duty Toward Dependant.— The function of a district attorney is largely judicial, and he owes to the defendant as solemn a duty of fairness as he is bound to give to the state full measure of earnestness and fervor in the performance of his official obligations.</p>

<p>Sale—Third Person as Arbiter of Quality or Quantity of Goods— Conclusiveness of Determination.-—-Where the parties agree that the performance or nonperformance of the terms of a contract, or the quantity, price, or quality of goods sold, is to be left to the determination of a third person, his judgment or estimate is binding, in the absence of fraud or mistake.</p> <p>Td.—Contract to Sell Lumber—Failure to Deliver Agreed Amount —Action for Damages by Buyer.—Where owners of a sawmill agree to sell a lumber dealer the product of their mill for a period of one year and to furnish within that time at least a designated quantity of lumber, and the contract expressly provides for the grading of the lumber by a named person, whose decision in that connection shall “be final and conclusive upon the parties,” it is error, in an action by the buyer to recover damages for failure of the sellers to deliver the amount of lumber agreed upon, to refuse to strike from the answer an alleged excuse based upon an averment that the grader rejected lumber that he should have accepted, in other words, that he erred in the exercise of his judgment.</p> <p>Id.—Impeachment of Arbiter’s Decision—Mistake of Fraud.—The “mistake” which will justify an impeachment of the arbiter’s decision is not mere error of judgment, but is the kind of mistake which “amounts to fraud,” that is, such mistake as has prevented a fair exercise of judgment upon the question to be determined.</p> <p>Id.—Refusal to Deliver Lumber — Refusal to Make Payment.— The refusal of the seller to further perform such contract is not justified because of the buyer’s refusal to pay an installment for lumber already delivered, the payment being withheld as an offset to the buyer’s claim for damages arising from the seller’s breach of the contract.</p> <p>Id.—Entire Contract—Breach as to One Part or Installment.— "Where there is an entire contract for the sale of a quantity of goods, to be delivered and paid for in installments, a refusal, without sufficient cause, by the seller to furnish, or by the buyer to take or pay for, any installment, justifies a repudiation of the contract by the party not in default.</p> <p>Id.—Default of One Party—Rescission by Other Party Who is Also in Default.—But such rule does not go so far as to justify a party, who is himself in default, in rescinding upon the ground of a subsequent default by the other party. The right to rescind a contract rests only with the party who is without default. One party cannot violate the contract himself, and then seek a rescission on the ground that the other party has followed his example.</p> <p>Id.—Measure of Damages for Failure of Seller to Deliver Agreed Quantity of Lumber.—The measure of damages for the failure of the seller of lumber to deliver the agreed amount is the excess, if any, of its value to the buyer over the amount which would have been due to the seller under the contract, had it been fulfilled; and the value to the buyer is deemed to be the price at which he might have bought an equivalent in the nearest market.</p>

APPLICATIONS for Writs of Habeas Corpus, the first two of which were directed against D. A. White, Chief of Police of the City and County of San Francisco, and the other against Charles E. Sebastian, Chief of Police of the City of Los Angeles. The facts are stated in the opinion of the court.

<p>Constitutional Law—Regulation of Chauffeurs—License Fees.— The occupation of a chauffeur is one calling for regulation, ancl therefore permitting a regulatory license fee, under the rule that when a calling or profession or business is attended with danger or requires a certain degree of scientific knowledge upon which others must rely, then legislation properly steps in and imposes conditions upon its exercise.</p> <p>Id.—Classification of Drivers of Motor Vehicles—Whether Reasonable.—The Motor Vehicle Act (Stats. 1913, p. 639) is not unconstitutional as making an arbitrary and unwarranted classification, in that it requires professional chauffeurs, or drivers of motor vehicles for hire, to pay an annual license tax, but exempts all other operators of such vehicles from such tax and regulation.</p>

<p>Husband and Wife—Community or Separate Property—Evidence.— In this action for a divorce evidence tending to show that certain real estate was paid for with community funds was insufficient to sustain the finding of the trial court that the property belonged to the community, where the conveyance of the property was to the wife, and there was evidence that before and at the time of the marriage she had sufficient funds to purchase the property, and she testified positively that she purchased it with such money alone.</p> <p>Id.—Conveyance to Wife—Presumption That Property is Separate— Evidence to Overthrow.—Where real estate is conveyed to a married woman, a presumption arises that the title thereto is vested in her as her separate property. The burden is then upon the husband, who contends that the property belongs to the community, to overcome the presumption by clear and convincing evidence; and his surmise or belief that the property was purchased with community funds, based in his ignorance of the fact that the wife had any separate property, is insufficient to overcome the presumption.</p> <p>Id.—Misappropriated Funds—Whether Belong to Community.—If a woman, while in partnership with a man, appropriates partnership funds, the money thus appropriated will not, upon their subsequent marriage, be regarded as community property.</p> <p>Id.-—Separate Property—-Rooming House ' Conducted by Wife— Profits.—Where a rooming house is the separate property of a married woman, all the profits from its management by her do not constitute community funds.</p>

<p>APPLICATION for Writ of Habeas Corpus to be directed against W. J. Petersen, Chief of Fblice of the City of Oakland, County of Alameda.</p> <p>The facts are stated in the opinion of the court.</p>

APPEALS from an order of the Superior Court of Alameda County directing the payment of accrued family allowance, and reducing the amount of the monthly allowance for the future. F. B. Ogden, Judge. The facts are stated in the opinion of the court.

THE PETITIONER is a corporation organized under the laws of the State of California, and having a capital stock of one hundred thousand dollars, divided into one thousand shares of the par value of one hundred dollars each. At a meeting of its stockholders, a resolution was adopted, increasing the number of its directors from five to seven by the affirmative vote of stockholders owning nine hundred and eighty-five shares.

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

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

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

<p>APPEAL from an order of the Superior Court of Santa Clara County refusing a new trial. J. R. Welch, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>APPEAL from an order of the Superior Court of the City and County of San Francisco refusing to vacate a judgment. J. J. Trabucco, Judge presiding.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Marine Insurance — Freightage — Insurance While Ship is Being Loaded.—Under section 2662 of the Civil Code the owner of a ship has an insurable interest in the “freightage” while the ship is being loaded. His insurable interest is not postponed until the loading of the cargo is complete.</p> <p>Id.—Cargo Policy—Insurance Attaching to Cargo as Fast as Loaded.—A provision in a cargo policy that the risk shall begin “from and immediately following the loading” of the property on board the vessel implies that the risk will begin with respect to any part of the cargo as soon as that part is loaded; and under the covering agreement for insurance, involved in this ease, there was an insurable interest upon the whole cargo; to become effective and attach as the loading proceeded.</p> <p>Id.—Interpretation of Policy in Favor of Insured—Covering Agreement.—The rules that policies of insurance are to be construed liberally in favor of the assured, and that courts are disinclined to construe stipulations in contracts as conditions precedent, are especially applicable to covering agreements for cargo insurance.</p> <p>Id.—Valued Policy as Distinguished from Open.—A covering agreement for insurance on the amount to be earned as freightage on a shipment of lumber, which provides that the amount of the insurance is to be “valued at actual freight,” and which fixes the rate to be charged for the shipment will be construed as a valued rather than an open policy.</p> <p>Id.—Declaration of Amount of Freightage—Whether Material or Condition Precedent.—In such case, when the loading was complete, the insured immediately became liable for the premium and the insurer became liable for any loss covered by the policy, without any declaration of the amount of freightage as soon as known to the insured. Such declaration was not a condition precedent to the attachment of the risk, nor was the agreement therefor material to the risk, and the failure to make such declaration did not avoid the policy.</p> <p>Id.—Materiality op Warranty—Interpretation op Code Sections.— Under sections 2608-2611 of the Civil Code, no right to avoid or rescind a subsisting policy of insurance occurs from the violation of any provision thereof, whether technically a warranty or not, unless such provision is material, except in cases where the policy itself declares that such breach shall avoid it. And the principles stated in sections 2608 and 2610 are not confined to implied warranties.</p> <p>Id.—Constructive Total Loss—Necessity op Actual Abandonment.— Under section 2705 of the Civil Code it is not necessary, ip order to . constitute a constructive total loss under a policy of marine insurance, that there should be an actual abandonment; it is enough if the right to abandon exists.</p> <p>Id.—Bight to Abandon With Bespect to Freightage—When Exists. This right to abandon exists, with respect to freightage, when the situation of the vessel, brought about by one of the perils insured against, is such that the cargo cannot be taken to its destination and the freightage thereby earned, “without incurring an expense to the insured of more than half the value of the thing abandoned.” Id.—Existence op Bight op Abandonment—Time op Determination. The existence of the right to abandon, so as to make a constructive total loss, is determined by the situation at the time of the stranding. The question is whether at that time it was reasonably possible to bring the cargo into port without an expense of more than half its value, if the insurance is upon cargo, or if it is upon freightage, without an expenditure of more than half the amount thereof.</p> <p>Id.—Policy Covering Freightage—When Bight to Becover Insurance Exists.—In this action on a policy of marine insurance covering the freight to be earned on a shipment of lumber, the right to abandon existed and the loss was a constructive total loss for which the insured was entitled to recover, and the contention of the insurance company that because the cargo was partly saved, and because of the statement in the covering agreement that it was “free from partial loss and particular average,” the loss was not within the terms of the policy, is untenable.</p>

<p>Sale—Change of Possession-—What Constitutes.—To constitute the delivery and change of possession required to constitute a valid sale of personal property under section 3440 of the Civil Code, there must be a visible and apparent change of the custody of the property such as to give evidence to the world of the claims of the new owner.</p> <p>Id.—Actual Change of Possession — Marks of Ownership.—The change of possession must be actual, not merely constructive; it must be open and unequivocal, carrying with it the usual marks and. indications of ownership.</p> <p>Id.—Question for Trial Court or Jury — Review on Appeal.— Whether, under these tests, there has been a delivery and change of possession is a question of fact, to be determined by the trial court or jury upon a consideration of all of the evidence. The finding upon this, as upon other issues of fact, is conclusive on appeal,' unless, reading the evidence in the light and with the inferences most favorable to the conclusion reached below, the appellate court can say that that conclusion is without substantial support in the record.</p> <p>Id.—Continued Custody by Person Who, Before Sale, was in Possession for Seller.—It is not the rule that a continued custody by a person who, before the transfer, had been holding custody for the seller is, as a matter of law, necessarily inconsistent with the delivery and change of possession required by the Civil Code. It is a circumstance entitled to considerable weight, but its effect may be explained and overcome by the other facts appearing.</p> <p>Id.—Personalty Connected With Mine—-Change of Possession.— In this action by a judgment creditor to set aside, on the ground of fraud, a sale of personal property consisting of mining and other machinery, some iron and steel, ten tons of concentrates, thirty tons of hay, eighty cords of wood, three horses, three sets of harness, and a wagon, belonging to a mining company and situated on certain mining claims, the evidence justifies the finding that the transfer was accompanied by the delivery and change of possession required by the statute.</p>

<p>Pleading—Allegation of Nonpayment of Contract Price—Inferential Denial—Denial of Contract.—In an action to foreclose a lien for the contract price of labor performed and materials furnished in the construction of a canal, the allegation of nonpayment contained in the complaint, although not formally denied, is put in issue by an answer which denies the existence of the contract under which the plaintiff charged the liability of the defendant or of any contract whatever between them, or that the labor and materials claimed to have been furnished were of any value.</p> <p>Id.—Traverse Need not be Pleaded Negatively.—In order to constitute a good traverse it is not necessary that it should be expressed in negative terms. It is sufficient if the matters set forth in the answer are contrary to what is charged in the complaint.</p>

<p>Conversion—Gist of Action.-—The foundation for the action of conversion rests neither in the knowledge nor the intent of the defendant. It rests upon the unwarranted interference by the defendant with the dominion over the property of the plaintiff from which injury to the latter results. Therefore, neither good nor bad faith, neither care nor negligence, neither knowledge nor ignorance, are of the gist of the action.</p> <p>Id—Sale of Barrels Containing Wine—Ignorance of Contents.— The grantee of a building, who, without authority, sells barrels of wine that were left on storage therein by a tenant of his grantor, in ignorance of their contents and ownership, and under the mistaken belief that the barrels were empty, is liable for a conversion of the wine.</p>

<p>Negligence—Collision op Automobile While Under 'Control op Repairer—Owner not Liable.—The owner of an automobile, which he has turned over to a mechanic to put in order, but who exercises no control over the repair work nor over the mechanic in its performance, is not responsible for personal injuries resulting from a collision due to the negligence of the mechanic, while testing the car, in the due performance of his work, by operating it on a public street.</p>

<p>Mining Claims—Oil Land—Possession as Title Against Intruders. Possession alone of oil lands is adequate title as against a mere intruder or trespasser entering upon that possession without color of title.</p> <p>Id.—Invalid Location — Actual Possession by Locator — Eight of Others to Initiate Location.—Where one is in the actual occupancy of land after his discovery of oil therein, though the location under which he is in possession is invalid, the land is not open and unoccupied mineral land which warrants others, in bad faith and with knowledge of the facts, in invading such possession and under such entry attempting to initiate a location of the property.</p> <p>Id.—Intrusion on Claim Held Under Invalid Location — When Amounts to Trespass.—An intrusion under such circumstances constitutes the intruders naked trespassers who are in no position to raise any issue whatever upon the question of title under which the occupant holds possession of the property.</p> <p>Id.—Location of Land in Possession of Another—Necessity of Good Paith.—While it is true that any competent locator for the purpose of initiating a location for himself may enter upon mineral land of the United States which is not covered by a valid subsisting location, even though it is in the actual possession of another, still such entry must be peaceable and in good faith. Good faith confronts any subsequent locator who enters upon the actual possession of a senior locator for the purpose of initiating a claim to the same ground, though the senior location is invalid; and when such entry is in bad faith, his acts done thereunder confer upon him no right whatever, his intrusion constitutes a naked trespass.</p>

<p>Mortgage—Sufficiency of Evidence That Conveyance was Intended as Security—Review on Appeal.—While it is true that an instrument purporting to convey the title to real property may be shown to have been intended as a mortgage, clear and convincing proof of that fact must be shown to justify a court in so finding, and appellate courts are slow to disturb a finding either against or in favor of the theory that a mortgage has been shown to exist.</p> <p>Id.—-Purchase of Property by Attorney for Client—When Constitutes a Trust, not a Mortgage.—Where the property of a client is sold under a trust-deed given by him to secure an indebtedness, and thereafter, at the client’s request, his attorney purchases the property upon an agreement with the client that the client may repurchase it upon payment to the attorney of promissory notes and book accounts due from the client to him, the transaction constitutes a trust, not a mortgage, and the attorney may sue on the notes before the expiration of the time accorded the client in the agreement to repurchase.</p> <p>Partnership—VVhether Name Shows Individuals Constituting Pirm. The firm name “Lamberson & Lamberson” sufficiently indicates the persons composing the partnership, and hence an assignee of such firm is not barred from suing on the assigned claim because of the failure of the members of the firm to file the certificate required by sections 2466 and 2468 of the Civil Code.</p>

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

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

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

<p>APPEAL from an order of the Superior Court of Napa County. Henry C. Gesford, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

APPEALS from an order of the Superior Court of the City and County of San Francisco setting apart a probate homestead. J. Y. Coffey, Judge. The facts are stated in the opinion of the court.

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

<p>New Trial—When Motion for cannot be Entertained—Submission op Cause upon Pleadings.—Where there has been no trial of a cause upon issues of fact, it having been submitted for decision on the pleadings, a motion for a new trial cannot be entertained.</p> <p>Municipal Corporations — Police Regulations — Consideration op Surrounding Circumstances.—In determining the advisability or necessity of a proposed police measure, a legislative body is presumed to take into consideration the circumstances and conditions under which the thing to be regulated or forbidden exists or may occur. And courts, in considering the question whether or not such measure is reasonable in its application and effect, may also look to these general circumstances and conditions, so far as they are matters of judicial knowledge, and so far as they may be admitted or shown by undisputed, clear, and satisfactory evidence in the record of the particular case.</p> <p>Id.—Crematories—Validity op Ordinance Restricting Number.—A county ordinance which prohibits the establishment or maintenance in any one township of more than one crematory for the cremation of human bodies cannot be upheld as a police measure as against a cemetery association located near another crematory and in close proximity to several cemeteries and in a neighborhood where there are but few dwelling-houses and no buildings devoted to any business except that of burying the dead.</p> <p>Id.—Injunction Against Enforcement of Ordinance—When Lies.— Such cemetery association is entitled to an injunction against the enforcement of the ordinance, under the doctrine that an action will lie to enjoin the enforcement of a municipal ordinance in cases where such enforcement will cause substantial and irreparable injury to private property or private property rights, and where there is no adequate remedy in the ordinary course of law.</p> <p>Id.—Judicial Notice—Process of Cremation.—The practice of cremation has become so general, and crematories are now so common in many of the larger cities, that courts may take judicial notice of the usual method of operation of such institutions.</p>

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

<p>Divorce—Prior Judgment in Another State—Effect as Bes Judicata.—A judgment of the supreme court of the state of New York in an action for a limited divorce on the grounds of willful desertion and willful neglect, denying a decree to the plaintiff, is a bar to her maintenance of a subsequent action in this state for absolute divorce on the ground of willful neglect.</p> <p>Id.—Judgment as Bar to Subsequent Action—General Bule.—A cause of action between parties can be litigated to judgment but once, and when a subsequent suit is brought for identically or substantially the same cause of action that was set up and litigated in the former suit, the former judgment is a bar.</p> <p>Id.'—Bes Judicata — Identity of Issues — Difference in Belief Sought.—Whether or not such prior judgment constitutes a bar to a subsequent suit does not depend on the difference in relief sought in the two actions, but upon the question whether the same matter put in issue in the second suit between the same parties was actually in issue in the first and adjudicated. If the issue is the same, the former judgment is conclusive upon it in any subsequent action between the parties and bars the right to seek a different remedy based on the same facts or cause of action.</p> <p>Id.—Action for Divorce—Pleading Willful Neglect.—An allegation in a divorce complaint that subsequently to the date of Ms alleged desertion the defendant “has since left the above named plaintiff abandoned and destitute without any means of support and that during the said time has failed to contribute anything toward the support of the above named plaintiff,” is a general allegation charging willful neglect.</p>

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

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

<p>APPEAL from an order of the Superior Court of Kings County. John G. Covert, Judge presiding.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Estate op Decedent—-Proceeding to Determine Heirship—Interest op Heir not Subject to Subsequent Administration.—Where a proceeding is instituted under section 1664 of the Code of Civil Procedure, to determine and declare the rights of all persons in the estate of a decedent which is still in process of settlement, and the public administrator has notice thereof, the decree therein is conclusive in, the matter of the distribution of the estate, and the fact that the interest of one of the parties is, under the will of the decedent, a vested interest, and that such party dies during the pendency of the proceeding, does not make her interest, which the decree awards to her heirs, subject to administration and justify the granting of letters thereon to the public administrator.</p>

<p>Oil Lease—Breach by Lessor—Action for Damages by Lessee—Parties After Assignment.—In this action by a lessee of oil property to recover his damages for a breach of the lease, consisting of the expense incurred in the examination of title, the drawing of papers necessary to the performance of the contract, and the preparation to enter upon the premises, the lessee is held to be the proper party plaintiff, although he had assigned the lease, but the defendant, with knowledge of the assignment, failed to raise the question, by demurrer or otherwise, of the right of the lessee to sue, and allowed the ease to be tried on the theory that the plaintiff was entitled to sue if any one was.</p> <p>Id.—Character of Lease — Whether Conferred Mere Bight to Search for Oil.—The contract in such case whereby the lessor “leased and let” to the lessee the oil lands in question was not simply an “oil lease” merely intended as a permission to enter upon the premises for the purpose of prosecuting a search for oil and other minerals, but it purported to be a conveyance of a present leasehold estate, as well as of a right to extract oil and other minerals from the land itself. Therefore the discovery of oil was not a prerequisite to the existence of the cause of action.</p> <p>Id.—Failure to Deliver Possession—Necessity of Eviction Before Action.—In this action by the lessee for breach of such contract it was not necessary to show an eviction, if possession had not been delivered to him. One who has never been in possession of demised premises cannot be evicted.</p> <p>Cd.'—Measure of Damages Where Lessor Knew He Could not Perform Agreement.—If it appears in such action that the defendant, being in default in its contract with the owner of the legal title, agreed to lease the property in question to the plaintiff upon conditions which required of the plaintiff the expenditure of money, and that the defendant acted in bad faith, knowing the impossibility of performance on its part, the damages recoverable are those which would ordinarily and proximately follow from the breach of such a contract under the peculiar circumstances known to both parties.</p>

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

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

<p>Appeal—Denial of Belief from Default Judgment—Presence of Counsel in Court—-Notice of Entry.—The necessity for notice of the entry of an order denying a motion for relief from a default judgment is not obviated by the fact of the presence of counsel in court during the argument of the motion. His presence does not imply actual knowledge, either of the making or of the entry of the order, and the time to serve and present the bill of exceptions on appeal from the order does not begin to run immediately upon the decision of the court under such circumstances.</p> <p>Id.—Notice of Entry of Judgment—When Unnecessary.—In order to deprive an appellant of his right to written notice of the entry of an order or judgment, there must be facts of record clearly indicating a waiver of such notice.</p> <p>Id.—Bill of Exceptions—Failure to Present in Time—Becord.— Where the respondent contends that the bill of exceptions was not presented in time, but the bill is settled over his objection, it is his duty to have the matter incorporated in the bill. Otherwise it must be presumed that the court acted within its proper authority when it proceeded to settle the bill.</p> <p>Id.—Default Judgment—Befusal to Open—Abuse of Discretion.— The, trial court abuses its discretion in refusing to open a default judgment where the defendant’s affidavits make a strong showing of excusable neglect and allege a substantial defense as against the plaintiff’s unverified complaint, and no answering affidavits are filed.</p>

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

<p>Negligence—Use of Elevator—Boy Falling Down Shaft—Contributory Negligence.—Where a boy fifteen years of age, having a package to deliver on one of the upper floors of a building, personally operates the elevator in accordance with the practice of the owners of the building permitting persons having business therein to thus use the elevator, and, upon arriving at the floor of his destination and finding the elevator door partly open, further opens the door, delivers the package, returns to the elevator in about a minute, and, without looking, steps into the shaft and is killed, the elevator having in the mean time been moved by some one else, he is guilty of such contributory negligence as prevents any recovery of damages for his death.</p> <p>Id.—Elevators—Noncompliance With Ordinance Prescribing Devices for Doors.—And it is immaterial, so far as the right to recovery in such case is concerned, that the elevator was not constructed ■and operated in accordance with a municipal ordinance prescribing certain safety devices for opening and shutting the doors.</p> <p>Id.—'Care in Entering Elevator—Boy Fifteen Years of Age.—A boy fifteen years of age, who lives and works in a great city where hundreds of elevators are in daily use, cannot be considered ignorant of the necessity of exercising ordinary caution in entering an elevator.</p> <p>Id.—Contributory Negligence—When Question of Law.—Ordinarily the question of contributory negligence is one largely of fact for the consideration of the jury; but where the standard of conduct required of persons under given circumstances has been plainly neglected by the person seeking relief, it then becomes a question of law.</p>

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

<p>County Recorder—Increase of Compensation During Term—Employment of Copyist.—The appointment by the recorder of the county of Calaveras of a copyist to assist him in his official duties, and the payment of his salary out of the county treasury as provided by section 4262 of the Political Code as amended in 1907, violates section 9 of article XI of the constitution prohibiting the increase of the compensation of a county officer during his term of office, where at the time of the election of the recorder the statute provided that the compensation fixed therein should be in full compensation for his services and those of any deputies or assistants.</p> <p>Id.—Money Illegally Paid by Officer—Right of County to Recover. The county may maintain an action against the recorder to recover moneys paid, upon warrants approved in good faith by the auditor, to such copyist for his services; the recorder holding the consolidated offices of county clerk, county auditor, and county recorder.</p>

<p>Vendor and Vendee—Contract to Sell Land to Which Vendor has No Title—Fraud upon Vendee.—A contract to sell a piece of land by one without title will not be held fraudulent and void by virtue of the mere fact that the vendor has not such title. Deceit, concealment, or false representations upon which a vendee is entitled to rely will avoid such a contract; but where the dealings between the parties are openhanded, and where, as is the general rule, the vendee is charged with the duty of acquiring his own knowledge of the condition of the vendor’s title, such contracts will be enforced upon the theory that the vendee has contracted with his eyes open and contracted not in the belief that the vendor did have title, but in the expectation that he would be able to make title.</p> <p>Id.'—Sale by Vendor to Third Person—Breach of Contract With Vendee.—A vendor does not breach his contract of sale if he conveys the property subject to or under circumstances such as to protect the rights of his vendee; but where his conveyance has been in disregard of those rights, under such circumstances that those rights are not protected, this is a breach of contract and a fraud on the vendee. Where a vendee contracts with one having none or an imperfect title, he contracts in the hope or expectation that the vendor may be able to perfect the title. Such is not the case where the vendor has title and thereafter parts with it. Of the essence of the contract is the security to the vendee, in his payments, of the title which the vendor has; and if the vendor parts with that title to the impairment or destruction of that security, the vendee may be heard justly to complain, and it is no answer to say that the vendor thereafter may be able to go into the open market and repurchase the property.</p> <p>Id.—Action by Vendee for Breach of Contract'—Sufficiency of Complaint.—In an action for breach of an executory contract to sell land, basqd upon a conveyance by the vendor to a third person during the existence of the contract, the averment merely that the vendor has sold does not state a complete cause of action.</p> <p>Id.—Note Given by Vendee—Fraud and Failure of Consideration Where Vendor Conveys to Third Person.—A promissory note, executed by a vendee upon the threat of the vendor to sue for specific performance of an executory contract between them for the sale of land, cannot be said to have been procured by fraud or "to be without consideration merely because the vendor had previously sold the property to a third person and concealed the sale from the vendee, in the absence of any showing that the property was not sold subject to the vendee’s rights under the contract.</p>

. APPEAL from a judgment of the Superior Court of Los Angeles County and from an order refusing a new trial. Gavin W. Craig, Judge. The facts are stated in the opinion of the court.

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

<p>Criminal Law—Rape—Female Under Age op Consent—Limitation op Cross-examination.—In a prosecution for rape upon a female of the age of fourteen years, the court does not improperly limit the cross-examination of the prosecutrix as to whether or not she made any resistance or outcry, for the purpose of showing the improbability of the commission of the offense as related by her, she having been otherwise examined sufficiently to test her credibility.</p> <p>Id.—Consent op Prosecutrix—Outcry or Complaint.—In.a rape case where the willingness of the prosecuting witness is immaterial by reason of inability to consent, the matters involved in outcry or complaint have no significance.</p> <p>Id.—Evidence—Prior Acts op Familiarity by Defendant.—It is proper to permit the prosecution, in such a case, to prove conduct and acts of familiarity of the defendant toward the prosecutrix at a time prior to the commission of the offense.</p> <p>Id.—Sufficiency op Evidence—False Statement by Defendant— Instructions.—An instruction to the jury that “if you find the evidence otherwise insufficient to justify a verdict of guilty, a conviction cannot be found in this case by the mere fact that the defendant, when a witness in his own behalf, made a false statement as to a matter in no way connected with the crime of which he is accused,” is properly refused.</p> <p>Id.—Witness False in Part—Instructions.—It is not error to instruct the jury that a witness false in one part of his testimony is to be distrusted in others, etc., where the qualifications incorporated therein make it a correct statement of the law as contained in section 2061 of the Code of Civil Procedure.</p> <p>Id.—Reprimand op Counsel—-Misconduct op Court in Administering.-—An affront to counsel or a wounding of his feelings, "by remarks of the court, although unjustified, will not furnish a basis for appellate review, unless the rights of the defendant are in some way prejudiced; and under this rule it cannot be said that the characterization of the conduct of counsel for the accused in this prosecution for rape as “ungentlemanly and unprofessional” was calculated to work substantial injury to the ease of the defense.</p> <p>Id.—Comment by Trial Judge on Issues op Fact—Invasion op Province op Jury.—Under our system of law, which prohibits judges from charging juries with respect to matters of fact and gives to the jury the exclusive power to determine the facts, the trial judge should use the greatest care to avoid, in the presence of the jury, any utterance which may be construed as an intimation of his opinion on the issues of fact which are to be determined.</p> <p>Id.—Witness—Favorable Comment by Court.—Under this rule the trial court should not designate the prosecutrix in a rape case as a “courteous, kind and modest” witness.</p> <p>Id.—Misconduct op Court or Counsel—Necessity op Objection in Order to Review on Appeal.—A claim of misconduct on the part of the district attorney or the trial judge will not ordinarily be considered on appeal, unless the complaining party has promptly called the attention of the court to the alleged impropriety and assigned misconduct thereon.</p>

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

<p>APPEAL from an order of the Superior Court of Riverside County refusing a new trial. P. E. Densmore, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

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

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

<p>School Districts—Division op County—Joint District.—The law recognized and declared, even before the adoption of section 1580 of the Political Code, that a school district whose territory, by the division of a county, lay partly in one and partly in another county, ipso facto became a joint district.</p> <p>Id.—Annexation op Territory by District in New County—Levy op Taxes.—Where a county is divided so that part of an existing school district falls in the new county, the board of supervisors of the new county is without authority to order the annexation of that portion of the district to one of its own districts, and if such order is made, the district to which the annexation is thereby attempted is without authority to levy taxes upon the property so annexed.</p> <p>Id.—Injunction Against Tax Sale—When Proper Bemedy.—If such a tax is levied, an owner of land affected thereby is entitled to an 'injunction against a sale of his property for nonpayment of the tax. The equitable consideration of a disturbance of the revenues or fiscal system is absent in such case.</p> <p>Id.—Unauthorized Levy op Tax—Jurisdiction op Equity to Grant Beliep.—Where an assessment is of property not subject to the particular tax or where the persons exacting it are without authority in the premises, and where they are seeking to exercise authority over lands not within their corporate jurisdiction, equity will raise its restraining hand.</p>

<p>Libel and Slander—Charging Violation of Neutrality Laws— Transportation of Arms to Insurrectionists in Another Country.—The publication in a newspaper of an article charging a violation of the neutrality laws of the United States, in carrying arms and ammunition to and for the subjects of a foreign country in a state of insurrection against their own government, which country is at peace with this government, does not necessarily involve such elements as would impute to a person deemed guilty thereof anything infamous, ridiculous, disgraceful, or in the nature of moral turpitude, except in so far as the commission of any act forbidden by law, however innocent and free from censure it might otherwise be, would produce such a result.</p> <p>Id.—Publication Charging Filibustering—Delivery of Arms to Mexican Insurrectos.—A newspaper article, with the word filibustering in the heading, which at most charges a person with being concerned in an attempt to secretly carry by sea from San Francisco to some point on the Mexican coast a cargo of arms and ammunition • for delivery to the “Mexican insurrectos,” is'not libelous.</p> <p>Id.—Complaint in Action for Libel—Sufficiency to State Cause of Action—Question for Court.—It is for the court to determine whether, in the light of such extrinsic facts as are alleged to be libelous, the writing can be a libel; if, in the light of such extrinsic facts, the article is not fairly susceptible of the defamatory meaning sought to be attributed to it, the complaint fails to state a cause of action.</p> <p>Id.—Interpretation of Language—Question for Jury.—But if the language of the article is capable of two meanings, one of which is harmless and the other libelous, and it is alleged that the same was used and understood as conveying the latter meaning, a cause of action is stated, and it is the province of the jury to determine in which sense the language was used and understood by the readers of the article.</p> <p>Ed.—Neutrality Law—Transportation of Arms and Ammunition.— It is not an offense against the neutrality law of the United States to transport arms, ammunition, and munitions of war from this country to any foreign country, whether they are to be there used in war or not.</p> <p>Id.—Foreign Belligerent—Aid Through Commercial Dealings.—An expedition or enterprise designed only to transport munitions of war as merchandise for a foreign belligerent, though for use of an army, is not within.the inhibition of section 5286 of the United States Revised Statutes.</p>

<p>Appeal—Record-—Notice of Intention to Move for New Trial.—It ig not necessary that the notice of intention to move for a new trial should be included in the record on appeal.</p> <p>Id.—Denial of New Trial—Record—Presumption on Appeal as to Assignment of Error and Notice of Intention.—While on an appeal from an order denying a new trial it is necessary that it should in some way be made to appear in the record what the grounds of the motion for a new trial were, still where there was a statement on motion for the new trial or a bill of exceptions, containing specifications of insufficiency of evidence and assignments of errors of law, the presumption is, that notice was duly given, and that the specifications and assignments in the statement or bill of exceptions conform to those in the notice and constitute the grounds upon which the court was asked to grant a new trial.</p> <p>Vendor and Vendee—Misrepresentation as to Quantity of Land— Waiver of Right to Rescind by Delay.—In an action by a vendor of swamp land to require the vendee in default in his payments to pay the moneys due under the contract of purchase or be foreclosed of all his rights thereunder, the right of the vendee to plead a rescission ■ of the contract because of misrepresentations by the vendor as to the quantity of the land is waived, if no attempt is made to rescind until two months after the commencement of the action and more than a year after the vendee has knowledge of the truth or falsity of the representations, and he has retained possession and control of the property in the mean time.</p> <p>Id.—Rescission of Contract—Necessity of Promptness.—A prompt disaffirmance of a contract by one entitled to rescind, upon discovery ■ of the facts entitling him to rescission, is essential. If he fails to act promptly, and continues to treat the contract as binding, he will be held to have waived his right to rescind and to have elected to affirm the contract.</p> <p>Id.—Promptness in Rescission—Question for Trial Court.—Whether a person entitled to rescind has acted promptly is a question to be decided by the trial court upon the facts of the particular ease. The evidence in this case is of such a nature as to support a conclusion that the vendee, with full knowledge of the facts, was not ready to end the contract, and that, continuing to treat the same for his own purpose as valid and binding, he failed to make known any desire to terminate the contract for such a length of time and under such circumstances as to preclude the exercise by him of any right of rescission.</p> <p>Id.—Foreclosure of Contract to Purchase—Judgment Allowing Vendee Time to Pay.—A provision in the judgment, in this action by a vendor to require his vendee to pay the moneys due under the contract of purchase or be foreclosed of all rights thereunder, fixing a time within which the vendee should pay the amounts due or be foreclosed of his rights, was in consonance with equity, and ten days were, under all the circumstances, not an unjustly short limit of time.</p> <p>Id.—Extension of Time—Kefusal of Court to Grant.—And the trial court was not guilty of any abuse of discretion in subsequently refusing to grant an extension of time, even if it is assumed that it had the power thus to change the provision as to time contained in the judgment.</p> <p>Id.—Payments Made by Vendee—Bight to Their Eeturn.—There having been no rescission or abandonment of the contract by consent, and the vendor having insisted on standing upon the terms of the agreement, the vendee was not entitled to a return of the payments already made by him.</p> <p>Id.—Judgment for Vendor—Extent of Belief.—The vendor was not entitled to a judgment against the vendee both for a forfeiture and for the amounts the vendee is in default under his contract.</p>

<p>Deeds—Interpretation op Words—Ordinary Meaning.—Words used in a conveyance are to be given their ordinary and popular meaning, unless they are used in a special or technical sense, or the context shows that they are used in a different sense.</p> <p>Id.—Word “Half”—Literal Significance.—The word “half,” when used without qualification in a deed, must be given its literal significance as one of two equal parts of the property described.</p> <p>Id.—Fractional Quarter Section—Grant of “Bast Half.”—A deed to the “east half” of a fractional quarter section of land, which makes no mention of- acreage, conveys the east half in quantity, where the division of the quarter section, under the rule as to government surveys, divides the quarter into halves of equal quantity or acreage.</p> <p>Id.—Surveys—Division oe Fractional Quarter Section.—Where in the survey of public land there has been no return of a line run in the field dividing a fractional quarter section into halves, and no corner common to the east and west halves fixed at any point along the boundary line of such quarter, and the field notes show that a continuous unbroken line was run from the southeast to the southwest corners of the quarter section, it is the duty of the surveyor-general, in drawing a line on the plat dividing such quarter section into east and west halves, to run the line through the quarter section north and south from a point on the boundary line equidistant from the southeast and southwest corners of the quarter section.</p> <p>Id.—Practical Construction oe Deed.—The rule as to the practical construction of a deed applies only when the language on the face of the instrument is doubtful, uncertain, or ambiguous.</p>

<p>Mortgage—Assumption by Grantee—Action op Foreclosure—Failure op Answer to Deny Assumption.—The failure of the mortgagor in an action of foreclosure against him and a subsequent purchaser of the mortgaged premises to deny the allegation of the complaint that such purchaser agreed to assume and pay the mortgage as a part of the consideration of the deed to him, does not constitute an admission of such assumption so far as concerns the mortgagor and the plaintiff.</p> <p>Id.—Complaint Against Two Persons—Separate Answers—Scope op Denials.—Where a complaint is directed against two persons, and the liability of one involves some facts which are not material to the liability of the other in the cause of action declared upon, and they answer separately, neither is required to answer those allegations which relate solely to the liability of the other.</p> <p>Id.—Amendment op Complaint—Conpormanoe to Proop—Discretion op Court.—The court has discretion in such an action to permit the plaintiff, upon a motion made under sections 663 and 663a of the Code of Civil Procedure, to amend his complaint so as to conform to the proof by omitting the allegation that the purchaser assumed payment of the mortgage debt.</p> <p>Id.—Assumption op Mortgage by Grantee—When not Shown—Presumption.—A statement in a deed of encumbered land that the property is conveyed “subject to” the mortgage, describing it, does not import an assumption of the mortgage by the grantee, even if the deed recites as the consideration the full value of the land as estimated in the purchase; and if the deed recites only a nominal consideration, a strong presumption arises that the grantee does not assume payment of the mortgage as part of the price, but merely buys the land as it is with the encumbrances on it.</p> <p>Id.—Form of Agreement to Assume Mortgage.—It is not necessary that the promise to pay the mortgage should appear in the deed, or in writing. The obligation may be made orally or in a separate instrument; it may be implied from the transaction of the parties, or it may be shown by the circumstances under which the purchase was made, as well as by the language used in the instrument.</p> <p>Id.—Executory Agreement to Purchase Land—When Does not Include Assumption of Mortgage.—An agreement by a grantee to. assume a mortgage existing on the property is not established by the recital in the executory contract of purchase that the property is sold “subject to” the mortgage, and that “the balance of the said purchase money is due and payable upon tender of a good and sufficient deed of the property sold,” where it appears that the agent who executed the agreement upon the part of the grantee was without authority to make such an agreement for such an assumption and that the mortgage was not due at the time provided for the payment of such balance of the purchase price.</p> <p>Id.—Estoppel to *Deny Assumption of Mortgage.—Such recitals in the executory contract of purchase do not estop the grantee from denying an assumption of the mortgage.</p>

<p>Criminal Law—Pleas op not Guilty, Former Acquittal, and Once in Jeopardy—Withdrawal op Plea op not Guilty—Denial op Application por Probation—Sentence.—Where the defendant in a criminal case enters pleas of not guilty, former acquittal, and once in jeopardy, but thereafter withdraws his plea of not guilty, enters a plea of guilty and applies for a release on probation, he cannot, after the denial of his application and the pronouncement of judgment, insist on a trial on the issues raised by the special pleas.</p>

Duffy et al., members of the State Board of Prison Directors of the State of California, and M. E. Noon, clerk of said board. The facts are stated in the opinion of the court.

<p>Tide Land—Patent Does not Convey Absolute Estate Free from Easement.-—-A patent for tide lands does not convey to the patentee the absolute estate in the land free from the public easement for navigation and fishery.</p> <p>Id.—Reservation of Tide Land from Sale—Effect of Purchase During Period of Reservation.—The approval of an application to purchase swamp or tide land, the acceptance of the purchase money, and the issuance of patent during a period when the land is reserved from sale, are unauthorized acts and the patent is void.</p> <p>Id.—Statute of Limitations—Action by State to Quiet Title.—The words “right or title” in the first subdivision of section 315 of the Code of Civil Procedure, limiting the time in which the people will sue in respect to real property, refer to the right or title of the state to sue, not to the right or title upon which the state bases its right to sue; and under this section an action by the state to quiet title to lands may be brought at any time within ten years after the cause of action accrues.</p> <p>Id.—Operation of Statute of Limitations—Presumption of Grant. The running of the statute of limitations does not depend upon the presumption of the existence of any grant.</p> <p>Id.—Adverse Possession—Effect as Against State.—The statute of limitations operates upon the state, with respect to any property not dedicated or held for a public use, as soon as adverse possession thereof begins, without regard to the existence or presumed existence of a lawful grant. And an adverse occupancy for the period, of limitation confers title to the property occupied, regardless of the possible existence of a previous grant. But this applies, so far as the state is concerned, to proprietary land alone; it does not apply to property dedicated to public use.</p> <p>Id.—Swamp Lands—Action by State to Quiet Title Barred in Ten Years.—Au action by the state to quiet title to swamp lands which have been held in actual adverse possession for more than ten years by persons claiming under a state patent, the former ownership by the state having been in its proprietary capacity, is barred by the provisions of section 315 of the Code of Civil Procedure.</p> <p>Id.—Littoral Rights of Owner of Swamp Lands—Public Easement of Navigation.—Littoral rights of swamp land owners over adjoining tide lands and waters are subject and subordinate to the public right of navigation and fishery. Such littoral rights are not greater against the state than against the United States, with respect to the public easement for navigation held concurrently by the two sovereignties, the one for intrastate and general navigation, the other for interstate and foreign navigation.</p> <p>Id.—Easement oe Navigation and Fishery—Adverse Possesion.— Title to tide lands cannot be acquired against the state by adverse possession so as to affect the public easement of navigation and fishery.</p>

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

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

<p>APPLICATION for Writ of Review to be directed against John M. Eshleman, Alex. Gordon, H. D. Lovel, Max Thelen, and Edwin O. Edgerton, as constituting the Railroad Commission of the State of California.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Negligence—Pedestrian Crossing Street—Duty to Look BotWays.—It is the duty of a foot passenger to look both ways before starting to cross a street, particularly when the street is a busy thoroughfare in the heart of the business district of a great city.</p> <p>Id.—Collision With Automobile Sunning at Prohibited' Speed— Contributory Negligence of Injured Person.—In this action to recover for personal injuries received by a pedestrian from being struck by an automobile while he was crossing a street, the evidence is sufficient to justify the conclusion that he was guilty of contributory negligence barring his recovery, notwithstanding the driver of the machine was operating it at a speed prohibited by ordinance and hence was negligent as a matter of law.</p>

<p>Husband and Wife—Community Property—Overcoming Presumption. The presumption which attends the possession of property in California by either spouse that it is community property may only be overcome by clear and certain proof that it is really separate property. In the present ease, the evidence is sufficient to overcome this presumption.</p> <p>Id.—Real Property Purchased in California With Separate Property Acquired in Another State.—Real property situated in the state of California, which was purchased during coverture by a married man who was a resident of the state of Illinois, with money acquired by him while domiciled in the latter state, becomes his separate property, there being no law of community property in Illinois resembling the California statutes on that subject.</p> <p>In.—Investment oe Separate Property Does not Change Status.— The status attached to separate personal property, enjoyed under the law of the domicile by one of the spouses at the time it was acquired, is not lost by its investment in real property in another jurisdiction where a different law is in force.</p>

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

<p>Brokers—Revocation of Authority by Principal—When not Permissible.—Authority to a broker to sell specified real estate “for the term of thirty days from date hereof, and until this agreement is canceled in writing fey ten days’ notice,” cannot be revoked within the thirty days, where the broker has expended money and effort in seeking a purchaser.</p> <p>Id.—Commission of Broker—Excess Over Stipulated Price—Payment in Something Other Than Money.-—A contract authorizing a broker to sell real estate for a specified sum within a certain time, and providing as payment for his services whatever amount he may obtain therefor over such sum, gives the broker the right to anything beyond that sum as his commission, and the principal, so long as he receives such amount, is not interested in the terms agreed upon between the agent and the purchaser for the payment of the excess, nor in the fact that the excess is to be paid in something other than money, such as fruit growing on the land.</p> <p>Id.—When Commissions ake Earned—Procuring of Purchaser.—The obligation of a broker, authorized to sell real estate upon certain terms, is fully performed when he procures from a prospective purchaser a valid contract to purchase, which can be enforced by the vendor if his title is perfect.</p> <p>Id.—Amount of Compensation—Fruit Growing on Land.—Where a contract authorizing a broker to sell certain real estate gives him as his commission all over a specified price, and the purchaser procured by him agrees to pay the price specified and further to make conveyance of the fruit growing on the land, the transaction is in effect an agreement to purchase the entire property and to return as part of the purchase price the fruit crop, which becomes the measure of the broker’s compensation.</p> <p>Id.—Action to Recover Commissions—Instructions—Whether Conflicting.—In an action by the broker to recover his commission an instruction to the jury that “if you believe from the evidence that in executing the contract with plaintiff, the defendant understood that his apple crop was reserved from sale, you must return a verdict for the defendant,” is not in conflict with another instruction, dealing with an entirely different matter, that if a person “executes a contract with another and before signing the same obtains independent advice as to the meaning and contents of the instrument and causes the same to be drafted by his own adviser and read over and explained to him by such adviser, he cannot afterward be heard to say that he did not understand it, and is not bound by it.”</p> <p>Td.—Error in Modifying Instruction—When Harmless.—Error, if any, in such action in modifying an instruction requested by the defendant as to the effect of misrepresentations made by the broker to him as to the nature of the writing signed by them, is without prejudice, if the evidence does not, under any view of the law, warrant a finding in favor of the defendant on the issue to which the instruction is directed.</p>

<p>APPEAL from an order of the Superior Court of Mendocino County vacating a prior judgment and directing a new judgment in plaintiff’s favor. J. Q. White, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Will—Mental Incapacity op Testatrix—Evidence Insufficient to Show.—On this appeal from a judgment revoking the probate of a will on the ground of the mental incapacity of the testatrix, it is held that, under the evidence, the trial court should not have allowed the issue of unsoundness of mind to go to the jury, and that the burden of proving unsoundness of mind, which rested upon the contestants, had not been sustained by them.</p> <p>Id.—Hallucinations not Affecting Objects of Testatrix Bounty— Want op Impairment of Normal Testamentary Capacity.—Proof of mere hallucinations by a testatrix, having no relation to the objects of her bounty, which do not indicate an impairment of the normal testamentary capacity, is not sufficient to overthrow a solemnly executed will.</p>

<p>Contract to Make Will—Oral Evidence to Establish—Specific Performance.—Where an alleged contract to make a will, resting in parol and sought to be enforced after the death of the promisor, comes before a court of equity for review, it is scrutinized, and should be scrutinized, with particular care, and only upon a satisfactory showing that it is definite and certain and just will it be enforced. The proofs of the contract should be clear, and the acts of the claimant referable alone to the contract. Proof of the contract to make a certain kind of will must be definite and distinct before a chancellor will enforce specific performance.</p> <p>Id.—Sufficiency of Proof to Support Contract—Testimony of Plaintiff.—Under this rule it cannot be said that the chancellor, in this suit for specific performance of an alleged oral agreement to devise real estate, erred in holding that the character of the plaintiff’s testimony was such that there was no proof of such a contract.</p> <p>Id.—Credibility of Witnesses—Improbabilities as to Truth of Testimony—Circumstances Showing Falsity.—While it is the general rule that the uncontradieted testimony of a witness to a particular fact may not be disregarded, but should be accepted by the court as proof of the fact, this rule has its exceptions. The most positive testimony of a witness may be contradicted by inherent improbabilities as to its accuracy contained in the witness’s own statement of the transaction; or there may be circumstances in evidence in connection with the matter which satisfy the court of its falsity; the manner of the witness in testifying may impress the court with a doubt as to the accuracy of his statement and influence it to disregard his positive testimony as to a particular fact.</p> <p>Id.—Findings of Facts—Reluctance of Courts to Overturn Even in Case of Conflicting Evidence.—Courts are very slow to overturn findings of fact made by a jury, and a fortiori those made by a court acting without a jury, even when contrary statements which are. uncontradieted appear in the testimony of witnesses.</p> <p>Id.—Credibility and Weight of Testimony—Province of Appellate Court.—As it is within the province of the trial court to determine what credit and weight shall be given to the testimony of any witness, the supreme court cannot control its finding or conclusion denying the testimony credence, unless it appears that there are no matters or circumstances which at all impair its accuracy.</p> <p>Id.—Changing Theory of Case on Appeal.—-Where in an action for the specific performance of an alleged oral contract to devise real property, the pleadings and proof are based on the theory that a contract was made, the theory of a resulting trust in the property cannot be advanced for the first time on appeal.</p>

<p>District Court of Appeal—Jurisdiction in Original Mandamus Proceeding—-Entry of Default in Case Appealable to Supreme Court.—The district court of appeal has original jurisdiction of a proceeding by mandamus to compel a county clerk to enter the default of the defendant in a cause pending in the superior court, although the action in which the entry of default is sought is one in which the appellate jurisdiction is in the supreme court.</p> <p>Id.—Jurisdiction Coextensive With That of Supreme Court.—The constitution gives the district court of appeal original jurisdiction of proceedings in mandamus, in language identical with that giving such jurisdiction to the supreme court. This jurisdiction in such matters is, therefore, coequal with that of the supreme court, and does not depend upon the existence of appellate jurisdiction over the ease to which the mandamus relates.</p> <p>Id.—Proceeding cannot be Transferred to Supreme Court.—Rule XXXII of the supreme court does not apply to such a proceeding, and the district court of appeal had no authority to forward the papers therein to the supreme court, or to transfer the cause, and its order to that effect did not give the latter court jurisdiction of the proceeding.</p>

<p>Will—Separate Sheets of Paper Folded Together and Arranged in Sequence.—Three sheets of paper, of the same size and character, and apparently torn from the same writing pad, which were found arranged and folded together in proper sequence, and each of which contained writing of a testamentary character entirely in the hand of the testatrix, are properly construed as forming a single continuous instrument constituting the last will of the deceased.</p> <p>Id.—Separate Sheets Need not be Mechanically Fastened.—In order that several detached pieces of paper should constitute one instrument, it is not necessary that the sheets should be fastened together by mechanical or other device.</p>

<p>Divorce—Duty op Court to Grant—Review of Evidence.—The court is not authorized to deny a divorce where the evidence of the plaintiff, adequately corroborated, establishes the truth of the allegations of the complaint. A case having been made out, there is no arbitrary power to grant or refuse the relief. But, in every action for divorce, the court is called upon to determine whether the evidence before it does establish the truth of the charge made in the complaint.</p> <p>Id.—Appeal—Presumption in Eavor op Bindings.—In such a case, every intendment is in favor of the finding made by the trial court, and such finding will not be overthrown on appeal unless it is very plain to the appellate court that the conclusion reached cannot be supported on any rational view of the testimony.</p> <p>Id.—Desertion—Separation With Consent op Wipe.—Under the evidence in the present case,—which showed that the husband, a man of eighty-one years of age, had left his wife without any intention of returning, and that his departure was induced by his inability to support her,—the court was justified in deciding that a case of willful desertion had not been made out, and in its inference that the separation was with the wife’s consent and acquiescence.</p> <p>Id.—Consent How Manifested—Acquiescence in Separation.—Consent to a separation may be implied from acquiescence, or from other circumstances which show the plaintiff’s consent, or that the separation was not against her will. It need not be express, but may be tacit, as where the plaintiff is willing and has made no objection.</p>

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

<p>Appeal—Costs of Appeal—Amendment of 1913 to Section 1027 of Code of Civil Procedure—Printing Briefs.—Since the amendment, in 1913, of section 1027 of the Code of Civil Procedure, the prevailing party on appeal, except in case of a modification of the judgment, has an absolute rig-.t to his costs, and the expense of printing briefs, to the limit of fifty dollars as fixed by that section, is included in the category of taxable costs.</p> <p>Id.—Bules of Supreme Court—Omission to Provide for Costs.—The omission of the existing rules of the supreme court to provide for a judgment, to which the prevailing party is entitled under that section, cannot take away his right.</p> <p>Id.—Costs on Affirmance—Bemittitur Should Provide for.—Since the enactment of that amendment, remittiturs on affirmance, as well as on reversal, should include a judgment for costs of appeal in favor of the prevailing party.</p>

<p>Life Insurance—Waiver of Forfeitures—Authority of General Agent.—The waiver of forfeitures and the reinstatement of lapsed policies are within the apparent scope of the authority of a general agent of a life insurance company, but the company can place limitations on the power of such an agent in this connection if third persons are informed of the restriction.</p> <p>Id.—General Agents—Scope of Authority—Express Restrictions.— There is no peculiar magic in the title “general agent” which prevents an employer of such an agent from limiting his authority, although without such limitation his powers are great and ordinarily will support any of his acts or contracts which might have been done or executed by his principal.</p> <p>Id.—Insurance Agents—Limitations on Powers—Question of Fact. An insurance company may, in its contract with the assured, limit the authority of any agent, and whether or not a general agent’s powers have been so limited, or whether or not they have been waived by the conduct of the principal, are questions of fact, and the mere proof without contradiction that one has been made a “general agent” under the provisions of section 616 of the Political Code, does not make it a question of law.</p> <p>Id.—Action on Policy—Instruction as to Waiver of Forfeitures by General Agent.—In an action on a life insurance policy containing a provision that “no condition or provision of this policy shall be varied or altered by any one unless by written consent of the president or secretary of the company,” it is error to instruct the jury that a general agent has the right to waive forfeitures and to accept money for premiums even if overdue.</p>

<p>Gift—Deposit of Money in Joint Names—Completion of Gift by Drawing Money—Investment in Land—Tenancy in Common.— Where a woman, living illicitly with a man, deposits her separate funds in a bank to their joint account, so that either could check against the account and draw out and use all or any part of the money as they saw fit, a gift of the money was tendered by her which became complete when the man drew the money and devoted it to his own use; and if he uses the money so drawn by him in the purchase of land, the title to which was taken in their respective names, they became tenants in common of the land.</p>

'APPEAL from a judgment of the Superior Court of Los Angeles County and from an order refusing a new trial. Gavin W. Craig, Judge. The facts are stated in the opinion of the court.

<p>Criminal Law—Homicide—Plea op Guilty—Refusal to Permit Withdrawal.-—It is not an abuse of discretion, for the court in a murder ease to refuse to permit the defendant to withdraw his plea of “guilty” and to substitute therefor a plea of "not guilty,” where he was fully advised as to his rights upon his arraignment, but declined the offer of counsel, and was neither surprised nor cajoled when he entered his plea.</p> <p>Id.—Murder—Commission in Perpetration of -Robbery.—A murder committed in the perpetration or attempt to perpetrate robbery is murder of the first degree. Section 189 of the Penal Code is not meant to apply only to such a murder as would be included in the scheme of robbery and planned as a part of the execution of that crime.</p> <p>Id.—Insanity of Accused—Conclusion of Trial Judge on Hearing of Application to Withdraw Plea.—It cannot be said that the trial judge in this case, who heard the application of the accused to withdraw his plea of not guilty, erred in finding that there was no evidence of his insanity.</p> <p>Id. — Issue of Insanity — Testimony That Accused Appeared Rational.—It was proper for the court, in such case, to permit witnesses to testify to the fact that at various times the defendant appeared rational.</p>

<p>Municipal Corporation—Suspension op Tax Limit in San Francisco-Unanimous Vote op Supervisors.—The provision in the charter of San Francisco that the suspension of the “dollar limit” of taxation in case of great necessity or emergency can be done only “by the unanimous vote of the supervisors,” does not require, for such suspension, the unanimous vote of all the supervisors constituting the board, but only the unanimous vote of all who are actually present at the meeting.</p> <p>Id.—Taxes Paid Under Protest—Action to Recover—Pleading— Legal Conclusion.—In an action to recover taxes paid under protest because in excess of the “dollar limit,” an allegation “that no great emergency or necessity existed so as to authorize all or any part of said extra tax levy,” is good as against general demurrer, although it would be subject to special demurrer as the pleading of a legal conclusion.</p> <p>Id.—Suspension or Tax Limit 'by Supervisors—Review of Act by Courts.—The existence or nonexistence of a great necessity or emergency, justifying the temporary suspension of the “dollar limit” of taxation in San Francisco, is a question of fact, and a finding of the existence of such fact is a prerequisite to the right of the supervisors to suspend the limit, but their determination of the question is not final, but is subject to review by fhe courts.</p> <p>Id.—Intermingling of Item:s in Tax Levy—Question for Trial Court.—The question whether such an emergency levy embraces some purposes which are not emergency or necessity purposes so as to invalidate the levy, calls for first consideration by the trial court, and is not for determination on appeal from a judgment sustaining a demurrer to the complaint in an action to recover taxes paid under protest.</p> <p>Id.—Meaning of Word “Great.”—The use of the word “great” in the charter of San Francisco, providing for the suspension of the “dollar limit” of taxation in “any great necessity or emergency,” means a necessity or emergency of grave character and serious moment.</p> <p>Id.—Definition of “Emergency.”—“Emergency” means “an unforseen occurrence or combination of circumstances which calls for an immediate action or remedy; pressing necessity, exigency.”</p> <p>Id.—Terms of City Charter—Whether may be Ignored in Case of Hardship.—No argument of hardship or inconvenience will justify a court in setting at naught the written terms of a city’s charter, even at the instance of the city’s officials.</p> <p>Id.—Inferior Board or Tribunal—Jurisdiction—Conclusiveness of Determination.—When the power or jurisdiction of an inferior legislative tribunal is made to depend upon the existence of a fact, its determination of the fact is not conclusive unless declared to be so in express terms or by necessary implication. And if so declared to be conclusive, the declaration or finding can operate to bind the citizen whose property is affected thereby, only in the event that at some stage of the proceedings he shall have been afforded an opportunity to be heard on the question, in short, shall have had his day in court.</p>

<p>Life Insurance Policy—Assignment as Collateral Security— Bights of Assignee and Assignor.-—One to whom a policy of life insurance is assigned by another, as security either for his own debt or for the debt of a third person, is entitled to collect from the insurance company the whole amount of the policy when it falls due, if he is still entitled to hold the security.</p> <p>Id.—Statute of Limitations—Effect of Bar of Debt.—It is immaterial in such case, so far as the right of the creditor to continue to hold the security is concerned, that the obligation on account of which he holds it is barred by the statute of limitations.</p> <p>Id.—Consideration for Assignment of Policy—Pre-existing Debt.— The assignment of a life insurance policy by the insured and the beneficiary, as security for the payment of a promissory note of the insured given in settlement of his pre-existing indebtedness, is supported by a sufficient consideration.</p> <p>Id.—Promissory Note—Pre-existing Debt as Consideration—Sureties.—A pre-existing debt is a sufficient consideration for the execution of a promissory note, so far as the sureties thereon are concerned, where the obligation for the pre-existing debt is canceled upon the delivery of the note.</p> <p>Id.—Payment of Note.—Whether Accomplished by Giving New Note.-—The giving of a new note for an old note does not constitute a payment, unless expressly so agreed, but simply operates as an extension of the time of payment, and as soon as the time expires the payee has the right to sue upon the old note.</p> <p>Id.—Surrender of Old Note—Whether Shows Agreement for Payment.—The mere fact that the old note is surrendered to the debtor at the time of receiving the new note is insufficient to show the existence of such an agreement.</p> <p>Ip,—Assignment of Insurance Policy as Security—Beneficiary as Surety—Release by Extension of Time.—Where a life insurance policy is assigned by the insured and the beneficiary as security for the payment of the promissory note of the insured, the beneficiary becomes a surety of the debtor with relation to the assigned policy, and the taking of a renewal note by the creditor extending the time of payment for any period, without the consent of such surety, releases the policy from the obligation.</p> <p>Id.—Right to Recover Policy—Limitation of Actions.—The right of the beneficiary to recover the policy on account of such extension of the time of payment of the original note, without the consent of the assignor, accrues at the time of the extension; and if the beneficiary allows the assignee to hold the policy during the full period prescribed by the statute of limitations and thereafter until the time of the death of the insured, without bringing any such action, her right thereto is barred.</p>

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

<p>Certiorari—Review by Supreme Court oi Justice’s Court Judgment—Similar Proceeding Pending in Superior Court.—The supreme court will not entertain an original proceeding in certiorari to annul a judgment and orders subsequent thereto made by a justice of the peace, on the ground that the same were in excess of his jurisdiction, where a similar proceeding, based upon the same facts, duly instituted in the superior court, is pending and undetermined. Prom an adverse judgment or order of dismissal in the superior court proceeding, the petitioner would have a right of appeal to the district court of appeal; and in the event that the superior court refuses to take any action whatever in the matter pending therein, it may be compelled to do so by appropriate proceedings.</p>

<p>APPLICATION for a supersedeas to stay proceedings upon a judgment of the Superior Court of Los Angeles County.</p> <p>The facts are similar to those stated in the opinion in Southern Pacific Company v. Superior Court, ante, p. 250.</p>

<p>APPLICATION for a supersedeas to stay proceedings upon a judgment of the Superior Court of Los Angeles County.</p> <p>The facts are similar to those stated in the opinion in Southern Pacific Company v. Superior Court, ante, p. 250.</p>

<p>Negligence—Collision.—Judgment and order refusing a new trial reversed on the authority of Housel v. Pacific Electric Bailway Co., ante, p. 245.</p>

APPEALS from judgments of the Superior Court of Los Angeles County, and from orders refusing a new trial. Gavin W. Craig, Judge. The facts are similar to those stated in the opinion in Smith v. Post, ante, p. 69.

<p>APPEAL from an order of the Superior Court of San Joaquin County denying a petition for letters of administration on the estate of a deceased person. Frank H. Smith, Judge.</p> <p>The facts are similar to those stated in the opinion in the case of Estate of Horman, ante, p. 473.</p>

<p>Estates or Deceased Persons—Proceeding to Determine Heirship.— Order refusing an application for letters of administration affirmed, on the authority of Estate of Borman, ante, p. 473.</p>