Volume 168 — California Reports

<p>The facts are stated in the opinion of the court.</p> <p>Wm. B. Bosley, and L. T. Hatfield, for Appellants Sacramento Electric, Gas and Railway Company et al.</p>

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

<p>APPLICATION for a Writ of Prohibition.</p> <p>The facts are stated in the opinion of the court.</p>

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

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

<p>Negligence — Street Railway — Collision With Vehicle Going in Same Direction as Car.—In operating an electric street-car over a public street a motorman cannot under ordinary circumstances run down a vehicle proceeding in the same direction without having been negligent in the operation of his car. The mere fact that he does so furnishes cogent evidence of negligence which is rarely capable of explanation.</p> <p>Id.—Vehicle Close to Track—Oar Running at Prohibited Speed— Absence op Warning — Unobstructed View Along Track.—An electric street railway company, in operating one of its ears upon a public street of a city, is guilty of negligence in running into the rear of a vehicle being driven, in close proximity to its track, in the same direction with the ear, where it appears that, at the time of the collision, the motorman had a straight clear track ahead of him with nothing to obstruct his view of the position of the vehicle or to prevent him perceiving the danger of a collision; that he was running his car at a prohibited rate of speed, and that, without lessening such speed or having Ms ear under control, and without any warning of its approach, he ran down from behind upon such vehicle.</p> <p>Id.—Duty op Driver to Exercise Reasonable Care—-Being Near Track not Negligence.—The driver of such vehicle was required to exercise reasonable care in driving along the public street in the vicinity of the car track—such care and diligence as a reasonably prudent man would have exercised under the circumstances; but it was not negligence per se for him to drive along the street in proximity to the track.</p> <p>Id.—Rights op Vehicles to Use Public Streets—Use op Space Between Tracks.—The streets of a municipality are for the use of the traveling public, and the right of a .street-car company is only to use it in common with the public. The fact that the company has been granted a right to lay tracks and operate cars along the streets gives it no exclusive right to travel even over that portion of a street covered by its tracks. Other vehicles have a right to travel over the entire street, including the space between the tracks, even when other portions of the street may not be crowded or in bad condition.</p> <p>Id.—Looking Backward for Approaching Oars.—The fact that the driver of the veMcle did not keep a constant watch behind for an approaching ear while driving near the track did not show want of ordinary care on his part or constitute negligence per se.</p> <p>Id.—Rule Applicable to Looking in Crossing Steam Railroads.—The rule as to “looking” applied to the drivers of vehicles about to cross the track of a steam railroad at highway crossings does not apply to those driving along street railroad tracks laid upon public highways.</p> <p>Id.—Duty op One Driving in Same Direction as Approaching Car.—• The conduct of one driving along or near a street railroad track in the same direction that a ear coming from behind may approach is not measured by the same rule as to looking that governs one about to drive across the street railroad track substantially at right angles.</p> <p>Id.—Duty op Driver to Look Ahead—Reciprocal Rights and Duties op Travelers.—In the exercise of ordinary care, one driving along a public street is under the duty to look ahead of him so as to avoid collision with those in advance of him. They have the right to expect that he shall do so, and as all travelers owe reciprocal rights to each other, he, too, has a right to expect this from those approaching from behind, no matter in what capacity they are using the streets.</p> <p>Id.—Failure op Driver to Look Back During Brief Interval.—The fact that the driver of such vehicle, after looking back and not seeing any approaching ear, failed to again look back during an interval in which he drove a distance of about five hundred feet, did not constitute negligence per se.</p> <p>Id.—Vigilance of Driver — Question for Jury — Right to Rely on Warning of Approaching Car.—What amount of vigilance was requisite to constitute reasonable care upon the part of the driver of such vehicle, and whether he exercised it while driving along the street, was to be determined by the jury not alone from what he ■ did in the way of looking, but from a consideration of the reciprocal rights of the parties on the highway and all the facts and circumstances in the case, which would include whether he had a right to rely upon some warning or signal being given him by the motorman of any ear approaching from behind in order that he might drive away from Ms position in proximity to the track.</p> <p>Id.—Warning Should be Given op Approaching Gar—Contributory Negligence op Driver op Vehicle.—One driving a veMcle over or in proximity to a street railroad track has a right to expect and rely upon some warning to be given him by the motorman of a car approaching him from behind, and such right should be taken into consideration by the jury as an element in determining the question of the contributory negligence of the driver.</p> <p>Id.—Instruction—Use op Expression "Pee Se” Without Defining It—Violation op Ordinance.—In an action against a street railway company to recover damages resulting from a collision caused by its alleged negligence in operating one of its ears, an instruction that the violation by the company of a municipal ordinance limiting the rate of speed of its cars constituted negligence per se, will not be deemed erroneous merely because the court failed to define the meaning of the words “per se," in the absence of any request by the defendant for a definition of that expression, or an instruction as to its meaning.</p> <p>Id.—Abstract Instruction as to Effect of Violation of Ordinance— Omission to Bequest Qualification.—The giving of such instruction, as an abstract proposition of law, without a qualification that such violation could only be considered by the jury if they found that it contributed proximately to the injury, will not be deemed erroneous, in the absence of any request by the defendant for an instruction embodying the qualification.</p>

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

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

<p>Estate of Deceased Person—Letters of Administration—Property of Estate Consisting of Equitable Demand.—Where, under an application for letters of administration, it is made to appear that the sole property of the estate is an equitable claim or demand, the court in probate may treat such claim as property justifying the issuance of letters in advance of its establishment in a court of equity.</p> <p>Id.—Effect of Decree Granting Letters.—In so doing, the decree of the court granting letters of administration will in no sense be considered an adjudication either upon the value or validity of the equitable demand, but will be an adjudication solely that the estate makes a prima facie showing of an equitable claim which justifies the issuance of letters of administration.</p> <p>Id.—Inquiry into Nature of Equitable Demand—Refusal of Letters When Demand is not Reasonable.—The foregoing rules do not mean that any and every assertion of an equitable right demands of the court in probate the issuance of letters. While the court is not called upon to try, and will not therefore try, the question of the validity and enforceability of such an asserted equity, it is both its right and its duty to consider the nature of the asserted equity, at least to the extent of determining whether, if it be all that it is asserted, it may be made the subject of an equitable decree substantiating it and giving it legal validity, and it will deny letters of administration where the claim presented to it has not such reasonable and colorable value.</p> <p>Id.—Discretion of Court in Granting or Refusing Letters.—The court in probate has a real discretion in the matter of granting or refusing to grant letters testamentary or of administration. It will always grant such letters where administration is either necessary or advisable or desirable. But it will not grant them, in its dr«cretion, where the purpose to be accomplished can be as well or better attained in another forum.</p> <p>Id.—Letters of Administration Properly Refused—Equitable Claim to Attack Sale of Interest in Estate for Fraud.—The deceased, on whose estate ancillary letters of administration with the will annexed, were applied for in this state, was a resident of Kansas, where she died testate, and where her estate had been finally.probated and the rights of all beneficiaries under her will decreed and determined. At the time of her death her estate consisted of an undivided interest in property in California belonging to another estate then and there in process of settlement. Pending the settlement of the two estates, the interest of the Kansas beneficiaries in the property in the California estate was sold under order of the Kansas court, the purchase price paid, the money distributed to them, and the Kansas estate finally closed. Subsequently, distribution of the California estate was had to the purchaser of the interests of the Kansas beneficiaries, and the decrees of distribution had become final. The petitioner for ancillary letters of administration in this state was an assignee of a very small part of the interest of one of the beneficiaries in the Kansas estate, and claimed that the sale of the interests of such beneficiaries in the California estate was procured by fraud of the purchaser, and that the equitable right to avoid such sale constituted property in California, to administer which he was entitled to letters of administration. Seld, that the court did not abuse its discretion in refusing to issue letters of administration, and remitting the beneficiaries to the establishment of their rights by direct action in a court of equity.</p> <p>Id.—Probate of Foreign Will—Estate of Testator Must Exist in County When Administration is Sought.—Section 1322 of the Code of Civil Procedure, touching the probate of foreign wills and providing that administration may be had in any county in which the testator shall have left any estate, means any county in which there shall be estate of the testator at the time administration is sought.</p> <p>Id.—McEnerney Act—Decree Establishing Title in Distributee of Estate—Finality of Decree Against Beneficiaries of Estate— Fraud in Distribution.—A final decree in an action brought under the McEnerney Act, establishing the title to land in a plaintiff claiming title under a prior decree of distribution in the estate of a deceased person, is as binding upon other persons claiming as beneficiaries of such estate as upon all the rest of the world. If the decree establishing title were obtained wholly upon the evidence offered by the decree of distribution, and the distribution itself had been secured by fraud, it would amount to nothing more than the introduction of fraudulent evidence in the trial of a cause, which fact would not militate in the slightest against the validity of the decree, nor be a ground for setting it aside.</p>

<p>APPEAL from a judgment of the Superior Court of San Mateo County, from an order refusing a new trial, and from an order denying leave to file a complaint in intervention. George H. Buck, Judge.</p> <p>The facts' are stated in the opinion of the court.</p>

<p>The facts are stated in the opinion of the court.</p> <p>Lewis W. Andrews, Thos. O. Toland, and Cedric E. Johnson, for Appellant.</p>

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

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

<p>Water—Riparian Rights—Diversion at Point Above Land—Use op Reasonable Share op Water Attributable to Riparian Right.— Tho owner of riparian land has the right to use the water of the stream, and in order to obtain it, he has the right to go to a point on the stream above his land, with the consent of the abutting and intervening owners, and there take out the water and conduct it to his land. So long as he takes in this manner only his reasonable share of the water and uses it only on his riparian land, he is exercising Ms riparian rights and nothing more.</p> <p>Id.—Carrying Water Through Canal—Delivery to Intermediate Riparian Owner—Use not Adverse.'—The taking by a lower riparian proprietor of water into its canal above, carrying it down to and delivering an appropriate share thereof upon the land of an intermediate riparian proprietor for use by the latter thereon, was not an act in itself hostile, adverse, or injurious to such intermediate proprietor, so far as concerns the right to and the water itself so delivered.</p> <p>Id.—Right to Divert prom Particular Place—Acquisition op Right by Prescription as Against Intermediate Proprietor.—The right of the lower riparian proprietor to take the water from such place of diversion is not identical with the right to the water itself, and the two rights are not dependent. The lower proprietor may acquire the prescriptive right to divert the water at that particular place, and to insist that the appropriate share of the intermediate proprietor should also be taken out at that place and through its canal, without acquiring the right to take that water from the intermediate proprietor and use it elsewhere, or any right whatever to the use of that water.</p> <p>Id.—Right of Riparian Owner to Reasonable Share of Water.—The mere use by a riparian proprietor of his reasonable share of the waters of a natural stream is not adverse to those above or below. There is attached to riparian land the right to the reasonable use, as compared to other riparian lands, of the waters of the stream.</p> <p>In.—Irrigation Company—Right of Landowner to Continued Supply of Water.—Under section 552 of the Civil Code, the owner of land lying on the line and within the flow of the canal of a company furnishing water for irrigation, who has been furnished water from such canal for the irrigation of Ms land, is entitled to have the supply of water continued upon the established rates and terms.</p>

<p>Contract—Furnishing Steam for Three Buildings—Partial Assignment of Contract to Purchaser of Two of Buildings—Consent to Assignment—Novation.—A contract which obligates the promisor, for a specified time, to furnish steam for heating three separate buildings belonging to the promisee, is not of such a character that it may not be divided by consent of the parties; and a partial assignment of the contract by the promisee, with the consent of both parties, to a purchaser of two of the buildings, operates as a novation under section 1531 of the Civil Code, and the promisor continues under the obligation of furnishing steam to the other building.</p> <p>Id.—Destruction by Fire of Two Buildings Sold—Excuse of Performance.—In the absence of any provision in the contract to a contrary effect, the obligation of the parties to perform was not dependent upon the continued existence of the three buildings, and performance was not excused by the accidental destruction by fire of the two buildings sold.</p> <p>Id.—Inevitable Accident—Act of God—Express Contract to do Lawful Thing.—As a general rule, where a person actually contracts to do a certain lawful and not impossible thing, neither inevitable accident nor those events denominated acts of God will excuse him, the reason being that he might have provided for such contingencies by contract.</p> <p>Id.—Partial Assignment Believed Assignor of Pro Tanto Obligation to Pay fob Steam.—Where there was no stipulation in the contract obligating the owner of the three buildings to pay for all ■of the steam furnished at all events, the general assignment of the contract, so far as it affected and applied to the two buildings sold, carried with it the obligations and benefits relating to the entire subject matter of the agreement so far as those two buildings were involved, and relieved the assignor from the obligation to pay for steam furnished such buildings.</p> <p>Id.—Continued Existence op Steam Plant—Obligation to Furnish Steam Not Dependent on.—The obligation of the promisor to furnish steam was not dependent upon the continued existence of its steam plant, there being no provision in the contract to that effect.</p>

<p>Estate of Decedent—Contract of Nonresident Devisees With Attorney to Represent Them During Administration—Whether Amounts to Mortgage or Present Grant of Portion of Their Interest in Estate.—Where, pending the administration of a testator’s estate, nonresident devisees enter into an agreement with an attorney, whereby in consideration of his promise to represent them in his professional capacity throughout the administration, they agree to grant him a certain interest in their respective shares, and thereafter, and while the administration is still pending, a second agreement is executed which cancels the first, and on its face expresses an absolute, present grant to the attorney of an interest equal to three per cent of their respective shares, for the expressed consideration of services already rendered and to be rendered, the second agreement is to be construed as a present conveyance of the interests, not as a mere security for the payment of the attorney’s services, notwithstanding a provision in the contract that any allowance made to the attorney by the court as attorney for absent heirs, should be first applied to reimburse him for all outlays made by him in rendering his services for his clients, and the balance should be credited to them on final settlement.</p> <p>Id.—Intepretation of Contract—Law of Case.—Such interpretation of the instrument, on a former appeal, has become the law of the case and is conclusive upon the court in this present appeal.</p> <p>Id.—Allowance by Court to Attorney—Whether Considered as Advancement on His Share Under Contract With Devisees.— Allowances made by the court in probate to such attorney as attorney for such “absent heirs” are to be considered as having been advanced to the devisees, and as between them and him as a part of his three per cent given to him in advance, so that on the final settlement between them he should receive property of a value, or money in a sum, which, with the sums already received, would make up his full three per cent of their shares of the estate.</p> <p>Id.—Advancement to Cotenant—Legal Effect.-—The legal effect of an advancement to a tenant in common of a part of his estate is •to give him that part in severalty prior to a general partition, with the result that upon a general partition he must account for the property so received and can have only the proportion of the remainder to which he is equitably entitled. This is what was actually accomplished by the allowances in question. They were chargeable solely to the shares devised and bequeathed to the devisees, of which he had an undivided three per cent. They constituted a receipt by him of that much of said shares in severalty, being to that extent a division thereof, and they reduced the amount to which he would be ultimately entitled and correspondingly reduced his interest in what remained undivided of said shares.</p> <p>Id.—Adjustment Between Attorney and Devisees—Time for Making.—A provision in such contract between the attorney and the nonresident devisees that whatever allowance the court in probate should make to him as attorney for “absent heirs” should first be applied by him to reimbursing himself for all outlays made by him for their benefit, and the balance credited to them on final settlement, does not contemplate an adjustment between him and them every -time he received an installment of the allowance, but rather one adjustment when his services, outlays, and the payment under the order of court ceased.</p> <p>Id.—Undue Influence—Presumption in Oase of Contract Between Attorney and Client.—Since the relation of attorney and client did not exist between the attorney and the nonresident devisees until the execution of the first contract, there can be no presumption that he obtained such contract by undue influence; but when the second contract was made, the confidential relation of attorney and client existed, and any advantage gained therein by him was attended ■by the presumption that it was entered into by them without sufficient consideration and under undue influence.</p> <p>Id.—Pinal Settlement and Distribution—Effect as Adjudication.— The contention that the proceedings upon the settlement of the final account and distribution constituted an adjudication to the effect that the attorney was not entitled to receive any additional portion of the shares of the devisees is not supported by the record.</p> <p>Id.—Partnership Property of Testator—Bights of Devisees and Their Grantee.—Where the estate of the testator consisted of an interest in a partnership of which he was a member, the interest of his devisees, and hence the interest of their attorney under the contract, was subject to liquidation and settlement of the partnership affairs by the surviving partner, and thereafter to administration by the executor of the testator’s will. The attorney, no more than the devisees, had the unconditional right to a specific interest in any particular parcel of the firm property, and Ms interest therein, as theirs, was subject to disposal thereof by the surviving partner for the purpose of liquidation.</p> <p>Id.—Transfer of Property to Corporation—Divestiture of Interest. If, during liquidation and settlement by the surviving partner, the partnership interest of the decedent is transferred to a corporation in exchange for shares of stock therein, and upon administration of the estate of the testator those shares are distributed to Ms devisees, the attorney is thereby divested of his right in the property of the testator’s' estate, and his claim, if any, becomes limited to the shares of stock received by the devisees in lieu of their undivided interest in the property.</p> <p>Id.—Partnership—Death of Partner—Inventory and Appraisement.—The interest of a deceased partner in the property of the firm of which he was a member at the time of his death must he inventoried by Ms administrator or executor, and must be appraised as a single item, no matter how extensive and varied in character the firm property may be, and for the purposes of administration it is deemed a part of the personal estate and may be sold as such.</p> <p>Id. — Death of Partner —• Dissolution of Eirm — Liquidation of Affairs.—Death dissolves a partnership, and thereafter the surviving partner is authorized to act in the liquidation of its affairs. The surviving partner so acting in liquidation may dispose of the partnership property.</p> <p>Id.—Possession and Control of Property on Death of Partner— Who Entitled to.—On the death of one partner neither the executor nor the heirs have any right of possession of the partnership property until the surviving partner has proceeded to its liquidation and has delivered it over to them. The executor or administrator has only the right to demand and enforce settlement and payment and delivery over of such part thereof as may remain after final settlement by the surviving partner of the partnership affairs. The surviving partner is the only legal representative of the partnership, at least as between him and the heirs and legal representatives of the deceased member.</p>

<p>The facts are stated in the opinion -of the court.</p> <p>Wm. A. Cheney, Herbert J. Goudge, and Le Roy M. Edwards, for Appellant.</p>

<p>Sanitary District—Territory That may be Included in—Identity Detained After Part is Absorbed by a Municipality.—In enacting the Sanitary District Act of March 31, 1891, the legislature had in mind the sanitation of any territory which might conveniently be served by a single system, whether wholly unincorporated or not, and a sanitary district formed under that act preserves its identity and retains its powers over the whole territory, except in the event of its complete absorption by a municipality.</p> <p>Id.—Constitutional Law—Sanitation not Local or Municipal Affair.—While generally the question of sanitation is a municipal affair, in many instances it is one of broader scope, which cannot be adequately handled by the municipal authorities of a single town. Therefore it cannot be said to be a “local” or “municipal” affair within the inhibition of sections 12 and 13 of article XI of the constitution, but it falls within the class of public purposes for which the legislature has the authority to provide governmental agencies or districts by general laws.</p>

<p>Quieting Title—Prior Possession as Evidence of Ownership.—As between the parties to an action to quiet title, neither of whom can connect himself with the legal title, the one who proves prior possession in himself or those through whom he claims, makes out a sufficient showing of ownership entitling him to a decree quieting his title.</p> <p>Id.—Occupancy as Evidence of Title.'—Occupancy for any period confers a title sufficient against all except the state and those who have title by prescription, accession, transfer, will, or succession.</p> <p>Id.—Possession is Prima Facie Evidence of Ownership.—It has always been the law in this state that possession is prima facie evidence of ownership.</p> <p>Id.—Bona Fide Purchaser—Recordation of Prior Deed—Lis Pendens. A subsequent purchaser from a defendant in an action to quiet title is not a bona fide purchaser as against the plaintiff claiming under a prior deed from the same grantor, if the plaintiff’s deed had been previously recorded, and the deed to the subsequent purchaser was made after a Us pendens had been recorded in the action.</p> <p>Id.—Deed—Defect in Description—Omission of Word “Feet” in One Call.—The omission from a deed of the word “feet” in the call locating the starting point of the description, does not render it so indefinite as to make impossible the identification of the land sought to be conveyed, and thus to warrant its exclusion from evi- . denee in an action to quiet title, if every other distance therein is given in the terms of “feet,” and the addition of such word would make the description cover the lot in controversy.</p>

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

<p>The facts are stated in the opinion of the court.</p> <p>Charles W. Slack, A. M. Seymour, W. H. Carlin, and A. F. Jones, for Appellant.</p>

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

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

<p>Insurance—Power of Soliciting Agent—Waiver of Warranty.—A mere soliciting agent of an insurance company has no power to effect the waiver of a warranty exacted from the insured by the insurer, either expressly, or by himself writing the application for insurance and embodying a known false statement touching such warranty therein.</p> <p>Id.—Accident Insurance—Application Prepared by Agent—Knowledge of Agent—Waiver of Warranty.—Where a mere soliciting agent for an accident insurance company himself prepares the application of the insured for a policy, which contained a warranty that the insured was neither partially nor totally deaf, the fact that such agent knew that the insured was deaf did not effect a waiver of the warranty, there being an express provision in the policy that no such waiver should result from such knowledge or notice.</p> <p>Id.—Acceptance of Policy by Insured.—The insured, by accepting and retaining the policy without objection for upward of six years became bound by its terms, and cannot be heard to say that he did not read it or know its terms.</p> <p>Id.—Breach of Warranty Defense to Action on Policy.—The breach of such warranty is a defense to an action on the policy notwithstanding the deafness of the insured did not contribute to the injury sued for.</p>

<p>Criminal Law—Homicide—Sueeiciency oe Evidence to Sustain Verdict oe Guilty.—In this prosecution for homicide the jury was warranted, under the evidence, in determining that the defendant, incensed and angered by the vile epithets addressed to him by the deceased, and smarting under the repeated accusations against his honesty, left the place where the statements were made, went to his room and procured the dagger with which the crime was committed, with the intention of attacking the deceased; and that, having procured the weapon, he returned to the vicinity of the homicide, waited until the deceased appeared, and then stabbed him to death.</p> <p>Id.—Murder in First Degree—Intent and Premeditation.—A homicide committed under such circumstances and with such intent constitutes murder of the first degree; and as the evidence here is sufficient to support such a verdict, this court cannot disturb it on appeal</p> <p>Id.—Interpreter por Witness—When Properly Refused.—It was not error in such a prosecution to refuse to permit the defendant, an Italian who was about twenty-five years of age and who had lived in Canada and the United States for some six years, to give his testimony through an interpreter, in the absence of anything in the record, covering a long direct and cross-examination, disclosing that he did not readily understand the questions asked him or have any difficulty in narrating all that occurred between himself and the deceased according to his account of it.</p> <p>Id.—Cross-examination of Defendant—Matters Proper to Bring Out.—It was proper in such case to permit the prosecution to cross-examine the defendant on the matter of opening his pocket knife in the card room of the saloon where the deceased reviled him, and rushing toward the barroom where the deceased was, notwithstanding the defendant gave no testimony on such subject on his direct examination, though he did undertake to testify to all that occurred in the saloon from the time he and the deceased met there until he left.</p> <p>Id.—Scope of Cross-examination—Categorical Review of Testimony in Chief.—While ordinarily the cross-examination of the defendant must be confined to matters testified to in chief, this does not mean that the examination must he confined to a mere categorical review of matters testified to on direct examination.</p> <p>Id.—Dying Declaration—Lack of Realization of Impending Death —Subsequent Ratification.-—A declaration made by a wounded person at a time when he was not impressed with the sense of impending death, but. thereafter reaffirmed by him at a time when he was impressed with the fact that all hope of living is gone, is admissible in evidence.</p>

<p>APPLICATION for a Writ of Certiorari to be directed against the Superior Court of Los Angeles County.</p> <p>The facts are stated in the opinion of the court.</p>

<p>APPEAL from a judgment of the Superior Court of the City and County of San Francisco, from an order discharging a writ of attachment, 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>John A. Wright, George F. Hutton, and H. F. Peart, for Appellant.</p> <p>Frank McGowan, Knight & Heggerty, Gillett & Cutler, McGowan & Westlake, and Otto C. Gregor, for Respondents.</p>

<p>Specific Performance—Agreement to Execute Lease—Adequate 'Consideration—Just and Reasonable Contract.—An executory agreement to execute a lease is in substance an agreement to grant an estate for years in land, and specific performance thereof cannot be enforced against a party, if he has not received an adequate consideration therefor, or if it is not as to him, just and reasonable.</p> <p>Id.—Pleading—Pacts Showing Adequate Consideration and Just and Reasonable -Contract must be Alleged.—In an action to specifically enforce such an agreement, the plaintiff, in order to allege a good cause of action, must set forth facts which show that the consideration provided for in the contract is adequate, and that the contract is just and reasonable to the defendant. A complaint which fails to state such facts does not state a .cause of action to enforce the contract.</p> <p>Id.—Pleading Such Conclusion in Haec Yerba Insufficient.-—The foregoing rule of pleading does not mean that it must be alleged in' haec verba that the contract was supported by an adequate consideration; and is, as to the defendant, fair and just. The fact that the contract is such as will satisfy the conscience of the chancellor in these respects must appear from a proper statement of facts.</p> <p>Id.—Liberal Construction of Complaint on Appeal—Objection Raised by Demurrer—Reversal of Judgment for Specific Performance.—An appellate court should give the language of a complaint on this subject liberal construction in favor of the action of the court below, where it shows an attempt by the pleader to comply with this requirement; but where there is no attempt to state any facts at all, there being nothing more than an allegation of a legal conclusion that the contract was just and reasonable, and objection was properly raised by demurrer, a judgment for specific performance of the contract must be reversed.</p> <p>Id.—Description of Land in Contract—Uncertainty Preventing Specific Performance—Bounding Land by Names of Individuals. In the absence of explanatory extrinsic facts, an executory contract to lease a specified acreage of tule land, which omits to show the state or county in which the land is situated, and which gives as the boundaries of the land the names of individuals, is so uncertain in its description of the land that specific performance of the agreement cannot be enforced.</p> <p>Id.—Identifying Land by Extrinsic Evidence Overcoming Uncertainty.—Such uncertainty is overcome, when it is made to appear on the trial, by extrinsic evidence, that the defendant is the owner of a tract of tule land of the specified acreage, situated in the county in which.the action was brought, which is bounded on the sides indicated in the contract by the lands of the individuals named.</p> <p>Id.—Evidence Sufficient to Establish Identity of Land—Presumption of Identity.—It will not be presumed, for the mere purpose of nullifying the agreement, that there is another tract of tule land of the specified acreage, either in such county or elsewhere, that is bounded by other lands belonging to the same persons as are named. If such a coincident exists, it is incumbent on the defendant to plead and prove it. In the absence of such proof it will be presumed, upon the other facts shown, that these boundaries do identify the tract.</p> <p>[d.—Uncertain Description of Bight of Way—Description of Appurtenant Bight of Way in Decree—Pleading Location and Description.—Such agreement is also indefinite and uncertain with regard to the exact location of a right of way agreed to be leased, where the same is described merely as' “a right of way to said tule land.” An existing right of way, appurtenant to the land, would pass with a conveyance thereof without special description. The plaintiff, however, if he prevailed in the action, would be entitled to have the right of way properly described in the lease executed under the order of the court, but to obtain such relief, should allege and prove extrinsic facts showing its location and description.</p> <p>Id.—Identity of Corporation Designated by Wrong Name.—If a particular corporation, the owner of one of the adjoining tracts of land, was also known by a different designation used in the agreement, that fact should be alleged in the complaint.</p> <p>Id.—Admissibility of Extrinsic Evidence to Identify Land.—In an action to specifically enforce such agreement evidence of extrinsic facts is admissible to identify and apply the description of the land.</p> <p>Id.—Certainty as to Duration of Term and Time of Payment of Bent.—A statement in the agreement that the lease was to be “for a term of 3 years commencing Jan. 1912, at a rental of $200 per yr. paid in advance before taking possession,” renders it sufficiently certain with respect to the duration of the term and the time of payment of the rent. Its effect in these particulars is that the term began January 1, 1912, and extended three years from that date, and that the first year’s rent was to be paid when the lessee should take possession, and the subsequent rentals on the 1st of January of each subsequent year, and in advance.</p> <p>Id.—Option to Purchase Land During Term—Failure to Designate Time for Making Deed—Covenants for Payment and Transfer of Property are Dependent.—Where such agreement gave the lessee an option, during the term, of buying the land at a stated price, but failed to fix the time for the making of the deed in case the option should be exercised, or to expressly declare that the lessor would execute a deed, the exercise of the option made the contract one for the sale of the land at the stated price, and, under section 1731 of the Civil Code, bound the seller to convey the title. The covenants to pay the price on the one hand and to transfer the property on the other, are dependent, and a conveyance would be due upon payment of the price.</p>

<p>Setoff and Counterclaim—Insolvent Trust Company—Intervention by Administratrix in Insolvency Proceedings.—Where insolvency proceedings against a trust company are pending in the superior court, that court has jurisdiction to entertain a petition in intervention filed by an administratrix to determine the validity of a setoff, growing out of a deposit by her of funds of the decedent’s estate with the Trust Company before its insolvency, which setoff she is asserting against an allowed claim of the receiver of the Trust Company against the estate, founded upon a debt created before the death of the decedent. She is not required to maintain a separate action against the receiver, nor to pay her indebtedness in full and accept a pro rata distribution with other creditors on her deposit claim.</p> <p>Id.—Subsequent Insolvency and Receivership—Effect on Right of Setoff.—The right of the administratrix to assert such setoff is not affected by the Trust Company becoming insolvent and passing into the hands of a receiver after the mutual claims arose.</p> <p>Id.—Receiver—Interests Acquired—Whether Subject to Setoff.— A receiver acquires no greater interest in an estate than the one from whom he takes, and ehoses in action pass to him subject to any right of setoff existing at the time of his appointment.</p> <p>Id.—Insolvent Bank—Bight of Setoff Determinable as of What Time.—This rule applies in the ease of an insolvent bank or Trust Company, so that the right of setoff is to be determined by the condition of things as they existed at the moment the bank or Trust Company became insolvent.</p> <p>Id.—Mutuality of Claims-—Whether Essential to Setoff in Eavor of Administratrix.—The administratrix of an estate has the right to setoff against the allowed claim of an insolvent Trust Company, based on a debt created by the decedent prior to his death, her claim for funds of the estate deposited by her with the Trust Company during her administration of the estate, so far as such claims compensate each other, although the respective demands are not mutual, where the allowance of the setoff will not embarrass the administration of the estate or prejudice the rights or interests of any other person interested in its assets.</p> <p>Id.—Strict Bule of Mutuality—When Should not be Applied to ■Setoff Affecting Estate of Decedent.—When by reason of the special character of an asserted setoff it appears that in no particular can -the rights of any person interested in the assets of the estate be affected by its allowance, or when the estate is solvent and able to pay all claims against it, including the allowed claim of a defendant asserting it as a setoff, the courts in the first instance do not, and in the latter should not, apply the strict rule of mutuality to prevent the allowance of the setoff.</p>

<p>APPEAL from an order of the Superior Court of the City and County of San Francisco directing the payment by an administratrix of an allowed claim against the estate of her decedent. J. V. Coffey, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

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

<p>Malicious Prosecution—Probable Cause—Advice of Counsel—-Failure to Disclose All Known Facts.—The defendant, in malicious prosecution, cannot maintain the existence of probable cause in law by proving that he acted upon the advice of counsel, unless he also shows that he made to such counsel before receiving the advice, a full, fair, and honest statement of the facts then known to him bearing upon the guilt of the accused person. In the present case, the evidence is held sufficient to warrant the conclusion that the defendant did not disclose to his counsel all the facts known to him.</p>

<p>National Banks—Cashier mat Sell Stock Acquired Under Pledge. McBoyle v. Union National Bank, 162 Gal. 277, affirmed, to the effect that the cashier of a national bank, as a part of the ordinary business of the bank, has authority to sell shares of corporate stock owned by it, which it had acquired in satisfaction of a pledge to it. Id.—Stock Carried in Bond Investment Account.—The fact that the bank, after its purchase of the stock in satisfaction of the pledge, carried it on its books in the “bond investment account,” does not affect the authority of the cashier to sell it.</p>

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

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

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

<p>The facts are stated in the opinion of the court.</p> <p>Jordan, Rowe & Brann, H. K. McKevitt, and L. J. Maddux, for Appellants.</p>

<p>APPLICATION for a Writ of Certiorari directed to the Railroad Commission of the state of California.</p> <p>The facts are stated in the opinion of the court.</p> <p>W. G. Cooke, E. W. Sargent, and Tanner, Odell, Odell & Taft, for Petitioners.</p>

<p>Sale—Offer to Purchase Corporate Stock—Acceptance of Offer— . Completion of Contract—Option to Purchase.—An offer • to a corporation to purchase, at a fixed price, specified blocks of its capital stock, to be delivered “in amounts as called for and as paid for,” subject to the understanding, in the event of the acceptance of the offer, that no sales of the stock were to be made by the corporation to other parties, and, unless special arrangements were made, that the maximum demands that might be made on the buyer for the purchase price during stated periods were limited to specified amounts, is neither ambiguous nor uncertain, and the acceptance of the offer created a contract of purchase and sale, and not a mere option to purchase the stock.</p> <p>Id.—Evidence—Surrounding Circumstances.—In an action by the seller to recover the purchase price due under such contract, the admission of evidence touching the circumstances surrounding the execution of the contract, which tended to confirm its proper legal construction, is without injury.</p>

<p>Habeas Corpus—Delinquent Minor—Vacating Order op Commitment—Discharge op Writ.—A writ of habeas corpus issued by the supreme eour.t to test the validity of an order of the superior court committing an alleged delinquent minor to the custody of a probation officer will be discharged, when it appears upon the hearing that the order of commitment had previously been vacated by the superior court.</p>

<p>APPLICATION for a Writ of Habeas Corpus directed to the Superior Court of the City and County of San Francisco. Frank J. Murasky, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Evidence—Circumstances Discrediting Testimony op Witness— Findings.—The trial court, in making its findings on controverted facts, is not obliged to accept as true the testimony of the sole witness who gave direct evidence on the subject, where there were other circumstances in evidence which warranted the'Court in discrediting the testimony of the witness.</p> <p>Will—Inadmissible to Prove Title Until Probated.—A will which has never been offered for nor admitted to probate is inadmissible in evidence for the purpose of proving title to land in a person therein named as a devisee.</p>

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

<p>APPLICATION for a Writ of Mandate directed to the Secretary of State of the State of California.</p> <p>The facts are stated in the opinion of the court.</p> <p>■ Percy V. Long, City Attorney, Thos. V. Cator, and William McDevitt, for Petitioners.</p>

<p>Criminal Law—Murder Committed in Perpetration or Conspiracy to Bob—-All Conspirators are Guilty—Absence op Intent to Murder.-—Murder committed by one of several conspirators during the perpetration of a conspiracy to commit robbery is murder of the first degree, for which all of the conspirators are equally responsible. It is immaterial that the conspirators may not have intended to bring about their victim’s death.</p> <p>Id.—Misconduct op District Attorney—Statement op Conpession op Co-conspirators—Admonition to Jury to Disregard—Admission op Facts by Dependant.—In a prosecution of one of the conspirators for such murder, a statement made by the district attorney in his opening to the jury, narrating certain incriminating facts claimed to have been confessed by a co-conspirator, which merely went to indicate the formation of a plan of the robbery, will not be deemed prejudicial misconduct, if that officer, immediately upon objection being made, withdrew his statement regarding the confession, admitted that it could not be used and should not be considered against the defendant, and the defendant, when a witness in his own behalf, admitted the substantial truth of the facts so stated to have been confessed.</p> <p>Id.—Statement op Co-conspikator to Third Person—Hearsay Evidence.—On such trial, the testimony of a witness, to the effeet that a co-conspirator had stated to him. that he and not the defendant had done the killing, is incompetent as hearsay.</p> <p>Id. — Instructions —• Circumstantial Evidence — Degree op Proof Warranting Conviction — Admission op Killing—-Reasonable Doubt.—Notwithstanding the prosecution on the trial produced no eye-witness to the homicide, the refusal of the court to charge the jury upon the proposition that a conviction in a criminal case is not warranted unless the proof made is inconsistent with any theory or hypothesis other than that of the guilt of the accused) will be deemed without prejudice, if the unlawful killing of the deceased, and the defendant’s participation in the killing, were affirmatively Shown by the defendant’s own testimony, and the court gave very full instructions defining reasonable doubt and emphasizing the obligation of the prosecution to establish, beyond such doubt, every material allegation of the information.</p> <p>Id.—Oral Admissions of Dependant to be Viewed With Caution.— A judgment of conviction will not be reversed either for the giving or the refusing of an instruction to the effect that “evidence of the oral admissions of the defendant ought to be viewed with caution.”</p>

<p>Election—Candidates at Primary—Member oe One Party may Seek Nomination oe Another Party.—Subdivision 4 of section 5 of the Primary Election Law of 1913 (Stats. 1913, p. 1379), expressly authorizes a member of one political party, seeking its nomination for an office, to be a candidate at the same time, either by his own initiation or through the action of five electors, for the nomination of another party for the same office. Such provision is not violative of any constitutional restriction.</p> <p>Id.—Constitutional Law—Legislature may Prescribe Conditions for Candidates.—Under section 2% of article II of the constitution, added by the amendment of 1908, and directing the legislature to enact laws providing for direct nominations at primary elections, and to determine the tests and conditions upon which electors, parties, or organizations of electors shall participate, the legislature may prescribe tests and conditions for candidates, as well as for electors, but it is not bound to make membership in a party a condition of the right to seek the nomination of that party.</p> <p>Id.—Selection oe Candidates Leet to Party Members.—The selection of candidates of the party is, under the law, committed to those who have declared their affiliation with it. If they, the members of that party, seek to select as their candidate one affiliated with another party, or with no party, that is their privilege.</p>

<p>Mortgage—Statute of Limitations—Effect of Absence of Mortgagor from State.—The running of the statute of limitations in favor of a subsequent grantee of mortgaged premises is not suspended by absence from the state or by any other act of the original owner or mortgagor.</p> <p>Id.—Absence of Grantee of Mortgagor from State.—Where, however, the subsequent grantee of the absent mortgagor also was and remained absent from the state, the running of the statute is suspended in favor of the mortgagee, during the time of such grantee’s absence, and the mortgagee’s right of foreclosure would not be barred if, after the lifting of the suspension, the action was timely brought.</p> <p>Id.—Priorities—Bona Fide Mortgagee—Subsequent Mortgage First Kecorded—Actuad Notice.—Under section 1214 of the Civil Code, unless a prior deed of land which is subsequently mortgaged is first recorded, it is void as against the mortgagee in good faith and for a valuable consideration, whose mortgage is first duly recorded. If the mortgagee has actual notice of the prior conveyance he cannot he such a mortgagee in good faith.</p> <p>Id.—Running op Statute Against Subsequent Mortgage First Recorded.—The statute of limitations cannot begin to run in favor of one claiming under an unrecorded conveyance as against a mortgage given subsequent to the execution and delivery of the conveyance, for a valuable consideration, which is first duly recorded, in the absence of actual notice of such conveyance to the holder of the mortgage, until such conveyance is recorded.</p> <p>Id.—Rights op Subsequent Grantee Against Prior Mortgagee Accrue Only From Recordation.—Where, however, the grantee is not a prior grantee, and therefore as to him no question can arise of the good faith of the mortgagee in accepting his mortgage, the rights of such a subsequent grantee as against the mortgagee arise only from the recordation which the law prescribes. It never arises from mere notice.</p> <p>Id.—Foreclosure—Parties Dependant.—The presence or absence of the subsequent conveyance upon the record in the proper office when the foreclosure action is commenced is the exclusive test as to whether the holder thereof need or need not be made a party defendant, so as to bind him by the foreclosure decree.</p>

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

<p>Estate of Deceased Persons—Contest of Allowed Claim—Trial by Jury—Ground of Contest—Issue Eaised as to Value and Legality of Items of Claim.—On a contest tried before a jury, as provided by section 1636 of the Code of Civil Procedure, of an allowed claim against the estate of a deceased person, which as presented and allowed consisted of several specified amounts claimed to be due for various items of materials furnished and services rendered, a ground of contest that the “claim is not a proper or legal claim against the estate,” puts in issue, in the absence of a demurrer to the contest, or other objection to its sufficiency, both the value and the legality of the various items of the claim.</p> <p>Id.—General and Special Verdicts—Consistency as to Amount Awarded—Erroneous Order for Judgment in Full Amount Claimed.—Where there is no inconsistency between the general and special verdicts of the jury as to the amount awarded by them to the claimant, which was less than the face of the claim, it is error for the court to grant a motion of the claimant for judgment for the full amount claimed, on the theory that the value of the several items were not in issue.</p> <p>Id.—Sufficiency of Evidence to Support Finding of Value—Appeal —Stipulation Limiting Questions to be Considered.—On an appeal from the order granting such motion and from the judgment, the question of the sufficiency of the evidence to support the jury’s findings of value will not be considered, where the parties to the contest had stipulated that the motion was to be heard only upon the record consisting of the claim, the contest thereto and the general and special verdicts.</p> <p>Id.—Costs—Absence of Assignment of Error—Delay in Serving Cost-bill.—Where there is no assignment of error in the taxation of costs presented by the record on appeal, the appellate court will not review error claimed to consist in the service and filing of the bill of costs after the time allowed by the statute.</p>

<p>Appeal—Settlement op Transcript—Failure to Bequest Preparation in Time—Mandamus.—A writ of mandate will not lie against a judge of the superior court requiring him to settle, allow, and properly certify a transcript on appeal attempted to be prepared under the provisions of section 953a of the Code of Civil Procedure, for use on an appeal from a judgment, if the appellant has neglected, for more than ten days after filing his notice of appeal, to file with the clerk of the superior court a notice requesting the preparation of the transcript, as required by the express provisions of that section.</p> <p>Id.—Notice to Clerk to Prepare Transcript—Time to Give—Notice of Entry op Judgment—Notice op Appeal.—Section 953a of the Code of Civil Procedure requires that the notice to the clerk referred to therein must be filed within ten days after notice of entry of the judgment, order, or decree appealed from. The filing of a notice of appeal is conclusive evidence that the appellant knew of said judgment or order, and its contents, at the time of the filing of said notice, and such filing fixes the beginning of the time to give said notice to the clerk, in the absence of anything to show that he had notice thereof theretofore;</p> <p>Id.—Actual Knowledge op Entry op Judgment or Order Appealed prom.—A written notice of the entry of the judgment or order is not necessary to start running the time for filing said notice to the clerk, when the appellant has actual knowledge thereof.</p> <p>Id.—Effect op Failure to Notify Clerk—Belief prom Failure.—By failing to give such notice to the clerk within the time fixed by law, the appellant loses his right to proceed with the preparation of Ms transcript on appeal in the manner provided by said section 953a, and relief from the failure to give such notice, if it can be given at all, must be sought in the lower court.</p>

<p>The facts are stated in the opinion of the court.</p> <p>Flint, Gray & Barker, and Rupert B. Turnbull, for Appellant.</p>

<p>Estate of Decedent—Widow Dying Intestate—Succession to Property Acquired by Gift prom Husband-—Children of Half Blood. Upon the death intestate of a widow who had been twice married, and who left surviving a child by each marriage, property which had once been the separate property of her last husband, and which he had conveyed to her by deed of gift, descends in equal shares to each ■ of her children, in accordance with the provisions of subdivision 1 of section 1386 of the Civil Code.'</p> <p>Appeal—Determination of Title—Damages for Frivolous Appeal.— The title to the property in controversy having been previously finally determined adversely to the contention of the appellant, in the case of Thompson v. McKenna, 22 Cal. App. 130, the present appeal is deemed frivolous, and damages are awarded against the appellant.</p>

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

<p>Divorce—Failure to Support Wife—Wife Having Sufficient Separate Property for Her Support.—The failure of the husband, having the ability so to do, to provide his wife with the common necessaries of life, does not entitle her to a 'divorce, if the wife is wealthy in her own right, and in the receipt of sufficient income from her own property to provide herself and her children with such necessaries, while the earning capacity of the husband is not great, and she had not asked him for assistance during the period of their separation.</p> <p>Id.—Power of Court to Deny Divorce for Nonsupport.—The court’s power to refuse a divorce upon the ground of nonsupport, where the complaining spouse has an income from separate property, is somewhat analogous to the authority to relieve a party to an action for divorce from the payment of alimony, where it is not necessary, because of her wealth, for the divorced wife’s maintenance.</p> <p>Id.—Desertion—Offer to Eeturn and to Fulfill Marriage Contract—Good Faith.—It is for the trial court to determine whether evidence introduced in that behalf by the deserting spouse amounted to a return and offer by him to fulfill the marriage contract, and a soliciting of condonation, and whether or not he acted in good faith, and the appellate court cannot disturb a finding based upon such evidence.</p> <p>Id.—Denial of Divorce for Nonsupport—Immaterial Findings.—In an action by a wife for divorce on the ground of nonsupport by her husband, in which the court finds that the wife had ample means of self-maintenance, further findings as to the'extremely limited value of the husband’s property, that he was dependent upon his labor •for his support, and that he was physically weak and ill, are immaterial in support of a judgment denying a divorce, and the evidence will not he reviewed on appeal to see if it sustains such findings.</p>

<p>Mortgage—Foreclosure—Reasonableness of Attorney’s Fee—Appeal.—In an action to foreclose a mortgage securing an indebtedness of fifteen hundred and fifty dollars, in which the pleadings were exceedingly simple and the actual trial required less than one hour of time, the allowance of an attorney’s fee in the sum of one hundred and fifty dollars, in pursuance of a provision in the mortgage for a reasonable attorney’s fee in the event of a suit to foreclose, will not be held unreasonable on appeal. The amount of such a fee is peculiarly within the discretion of the trial court.</p>

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

<p>Partition—Enforcing Delivery of Deed in Pursuance of Agreement —Description — Finding Against Mistake — Evidence.—In an action between tenants in common to compel the delivery of a deed executed by the defendant to the plaintiff in pursuance of their agreement for the partition of the land held by them in common, the evidence is held sufficient to sustain the finding that there was no mistake in the description of the property referred to in such deed. Ib.—Action not for Specific Performance—Adequacy of Consideration.—Such action is not one for the specific performance of a contract of sale and purchase, and the adequacy of the consideration paid by the plaintiff for the land is not involved.</p> <p>Id.—Evidence—Review on Appeal.—Assignments of error, based on certain rulings of the trial court made during the examination of witnesses, are examined and held to be without merit.</p>

<p>Appeal—New Method—Bequest to Clerk to Prepare Transcript— Failure to Give Undertaking por Costs.—The clerk of the trial court is justified in disregarding a request by a person intending to appeal for the preparation of a transcript of the testimony, as provided in section 953a of the Code of Civil Procedure, if such person fails to file any undertaking to pay the cost of the transcript, as required by section 953b of that code.</p> <p>Id.—Printing Transcript on Appeal—Construction op Sections Dispensing With—Applicability op Bules op Supreme Court.—The provision of section 953c of the Code of Civil Procedure dispensing with the necessity of printing the transcript of the record on appeal, applies only where the appellant has availed himself of the method of appeal provided by section 953a of that code, and the latter section relates and applies only to cases where a reporter’s transcript is prepared and settled; it follows, therefore, that in cases where there is no substitute for a bill of exceptions or reporter's transcript prepared, under that section, there is no statutory exemption from the necessity of printing the transcript, and the rules of the supreme court on that subject must prevail.</p> <p>Id.—Appeal prom Judgment on Judgment-roll Alone—Transcript on Appeal to be Printed.—Sections 953a and 953c of the Code of Civil Procedure, do not permit the filing of a typewritten record on appeal in all cases, and do not permit it in the case of an appeal from the judgment upon the judgment-roll alone, meaning by that term the papers constituting the judgment-roll as specified in section 670 of that code. On such an appeal, the appellant cannot avoid the rule of the supreme court requiring the record upon appeal to be printed, by giving the clerk a notice, purporting to be within the terms of section 953a, to have the judgment-roll prepared as a typewritten record by the stenographic reporter. That section does not apply to such a case.</p> <p>Id.—Dismissal op Appeal—Typewritten Record Filed in Good Faith. Owing to the doubt attending the construction of those sections, the failure to print the transcript on appeal in a case where the rules of the supreme court required such printing, will not warrant a dismissal of the appeal, if the appellant seasonably and in good faith filed a typewritten record prepared by the stenographic reporter, believing it to be a sufficient transcript.</p>

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

APPEAL JErom a judgment of the Superior Court of Los Angeles County. Wm. D. Dehy, Judge presiding. The facts are stated in the opinion of the court. J. W. McKinley, R. C. Gortner, and W. W. Webster, for Appellant.

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

<p>Wills—Contest After Probate—Failure to Issue Citation Within Year—Refusal of Relief to Contestant—Appeal.—Where one who flies a petition for the revocation of the probate of a will fails to have a citation issued within one year, an order refusing him relief from such failure may be reviewed on an appeal from an order dismissing the contest.</p> <p>Id.—Failure to Issue Citation Seasonably—Nature of Order Refusing Relief.—If the trial court refuses to grant such relief solely because it believes that it has no power, on any showing, to relieve a contestant from failure to have a citation issued within the time limited by the statute, its refusal is not an exercise of its discretion to refuse relief under section 473 of the Code of Civil Procedure, but a dismissal of the motion for lack of jurisdiction.</p> <p>Id.—Relief from Excusable Neglect—Sufficiency of Affidavit of Merits.—An affidavit of merits, on motion for an order relieving a contestant in such case from neglect and default in failing to have citation issued within one year, on the ground of excusable neglect, is sufficient if it declares that the contestant “stated all the facts in connection with the said contest” to her attorney, and upon such' statement was advised by him and believed that she had a good and meritorious case. The word “contest” means not merely the ground of attack, but the entire dispute involved in such attack and the defense thereto.</p> <p>Id.—Jurisdiction in Will Contest—When Attaches—Purpose of Citation.—Jurisdiction of the subject matter in a proceeding to contest a will after probate is vested in the court on the filing of the petition, and the office of the citation is only that of a summons in a civil action,—namely, to give jurisdiction of the persons of those whose rights will be affected by revocation of the probate. While the issuance of citation within the year is requisite to the maintenance of the contest, and a failure to have it thus issued will, in the absence of an appearance by adverse parties, justify the dismissal of the contest, the proceeding is none the less commenced by the filing of the petition, and the court’s jurisdiction of the contest attaches upon such filing.</p> <p>Id.—Failure to Issue Citation—Whether Requires Dismissal of Will Contest.—While section 1328 of the Code of Civil Procedure requires that the citation shall be issued within one year, in case of a contest after probate, there is no provision, as there now is in the ease of a summons, prohibiting further prosecution of the proceeding, and requiring a dismissal, for failure to comply with the requirement.</p> <p>Id.—Power of Court to Grant Relief Where Citation not Issued Within One Year.—The trial court has power, under section 473 of the Code of Civil Procedure, to relieve a contestant, whose petition for revocation of the probate of a will, duly filed, has not been dismissed, from the failure to have citation issued and served within the year.</p> <p>Id.—Section 473 of the Code of Civil Procedure—Liberal Interpretation.—Courts give a very liberal interpretation to the provisions of section 473 of the Code of Civil Procedure.</p> <p>Id.—Time Limited for Proceeding—Distinction Between Instituting New Proceeding and Taking Step in Pending Proceeding.— Where a party desires to institute a new proceeding, such as a motion for a new trial, or an appeal transferring the cause to the jurisdiction of another court, or the commencement and .prosecution of an action, his right depends upon his taking the initial step within the time limited by law; but where the proceeding itself is pending, and the delay relates to a step in the course of that proceeding, the court may, upon a proper showing, relieve from the effect of delay, unless the statute expressly provides that the delay shall terminate the right to proceed further.</p> <p>Id.—Appeal—Review of Action of Trial Court in Granting or Refusing Relief.—It is only in extreme cases that the action of the trial court, in granting or denying relief, can he reversed on appeal.</p>

<p>The facts are stated in the opinion of the court.</p> <p>Edwin E. Meserve, Shirley E. Meserve, Lewis R. Works, Works & Jordan, C. H. Jordan, and Eugene S. Ives, for Appellants.</p> <p>McCutchen, Olney & Willard, Page, McCutchen, Knight & Olney, and O’Melveny, Stevens & Millikin, for Respondents.</p>

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

<p>Judgments—Bes Judicata—Matters Actually Decided and Matters That Might Have Been Determined.—A former judgment between the parties to an aetion is conclusive in all subsequent actions involving the same question, not only as to the matters actually decided in the former controversy, but as to all matters belonging to the subject of the controversy and properly within the scope of the issues which also might have been raised and determined; the presumption being that all such issues were presented • and decided.</p> <p>Id.—Presumption, as to Matters That Might Have Been Adjudicated in Former Action.—But as to matters which might have been litigated and decided in a former suit as within the scope of the issues, but which were not actually or expressly in issue and adjudicated, only a presumption is indulged that they were decided; and this presumption is disputable and may he overcome by showing that although a particular matter was involved in the former action, it was by consent of the parties withdrawn from consideration at the trial and did not at all enter into or constitute any part of the verdict of the jury or the final determination of that action.</p> <p>Id.—Belease of Claim for Personal Injuries—Bepudiation—Credit • for Money Paid—Bes Judicata.—A judgment in an action to recover for personal injuries is not conclusive on the right of the defendant in its subsequent action to determine its right to credit on the judgment the amount paid by it to the plaintiff before the commencement of the damage 'action for a full release of his claim for injuries, where the right to the credit is not questioned in the damage suit, hut the validity of the release alone contested, and the jury are instructed, by consent of both parties, after the refusal of the court to give an instruction at the request of the plaintiff that they should disregard the release, except if they found for the plaintiff they should credit the amount paid for the release, that “in case you find for the plaintiff, you are instructed that you shall find and insert in your general verdict the full amount of his damages without crediting defendant for the one thousand two hundred and fifty dollars which it has paid, and without making any allowance therefor.”</p> <p>Id.—Instruction by Consent of Parties—Effect in Withdrawing Issue.—The purpose of such “consent” instruction immediately following the refusal of the court to give the “credit” instruction was to withdraw the matter of the right of the plaintiff to such credit from present consideration by the jury, leaving its application on any judgment which might be obtained against the defendant for consideration when it should be called on to satisfy it.</p>

<p>Taxation—Public Service Corporations—Gas and Electric Company—Exemption prom Payment op License-tax Imposed by Motor Vehicle Act.—Section 14 of article XIII of the state constitution, imposing taxes upon the operative property of public service corporations at specified percentages of their gross receipts, and providing that such taxes shall “be in lieu of all other taxes and licenses, state, county and municipal” upon such property, has the effect to exempt a public service corporation, organized under the laws of ■ the state of California, and engaged in the business of transmitting and selling gas and electricity in that state, from the payment on motor vehicles owned by it, and used exclusively in the operation of its public service business in that state, of the license-tax imposed on such vehicles by the Motor Vehicle Act.</p> <p>Id.—License por Motor Vehicles An Excise or Privilege Tax—Not a Rental or Toll Charge por Use op Highways.—The license charge imposed by the Motor Vehicle Act is an excise or privilege tax, established for purposes of revenue in order to provide a fund for roads under the dominion of the state authorities. It is not a tax imposed as a rental charge or a toll charge for the use of the highways owned or controlled by the state.</p> <p>Id.—Method op Taxing Public Service Corporations—Substitute por Ad Valorem and Privilege Taxes..—The method of taxation of public service corporations adopted by section 14 of article XIII of the constitution is intended as a substitute not only for the ad valorem taxes theretofore levied upon their franchises and physical properties, but also for all privilege taxes, whether the same are imposed upon the right to conduct business, or upon specific personal property as a condition of the right to use it generally or for some specific purpose.</p>

MOTION to dismiss an appeal from a judgment of the Superior Court of the City and County of San Francisco. Adolphus E. Graupner, Judge. The facts are stated in the opinion of the court.

<p>Taxation—San Francisco—Suspension op Dollar Limit—Question op Necessity One op Fact.—The question of the necessity for the suspension of the “dollar limit” of taxation, as fixed by section 11, chapter I, article III of the charter of the city and county of San Francisco, is one of fact, and the determination by the supervisors of the existence of such necessity is not final.</p> <p>Id.—Action to Recover Excess Taxes—Finding Against Existence of Emergency—Appeal—Evidence—Absence of Bill of Exceptions.—In an action to recover taxes levied in the city and county of San Francisco in excess of the “dollar limit,” a finding that no such great emergency as that contemplated by the charter justified the suspension of the “dollar limit,” must be assumed on appeal, in the absence of a bill of exceptions, as supported by the evidence.</p> <p>Id.—Public Utilities—Necessity for Acquisition—Defeat of Bonds at Special Election—Proceedings Become Functus Officio.—• Thé determination of the board of supervisors of the city and county of San Francisco, acting in pursuance of the powers conferred upon them by article XII of the charter, that public necessity demanded the acquisition and construction as a public utility of a particular street railway, to be paid for by the proceeds of a bond issue, and the subsequent proceedings had in that connection, terminated and became fúnctm officio with the special election called to authorize the issuance of the bonds, at which the proposition was defeated by a vote of the people.</p> <p>to.—Proceedings to Raise Money to Construct Street Railway are Mandatory—Invalid Tax Levy.—In order that money might thereafter be raised for such purpose, either by taxation or bond issue, it was necessary that the supervisors should proceed anew under the provisions of article XII of the charter. These provisions are mandatory and the failure to comply with them made void a subsequent attempted levy of a tax for the construction of such street railway.</p> <p>Id.—Void Levy of Excess Taxes for Specified Purposes—Void Ordinance Determining Necessity—Invalidity of Tax—Adding Amount of Special to General Levy.—Where an ordinance of the city and county of San Francsico, purporting to determine the existence of “a great public necessity and emergency” for two specified purposes, is void because no such necessity or emergency exists, the special levy founded thereon of additional taxes for such purposes, in excess of the “dollar limit,” falls with it, and the taxes levied therefor are void. The special levy for one of such purposes cannot be upheld on the ground that the amount thereof, added to the amount of the general levy, after the exclusion therefrom of an illegal item, would not exceed in the aggregate the dollar limit. Id.—Taxes for County Purposes—Dollar Limit Applicable to.— The limitation prescribed by section 11 of chapter I of article III of the charter of the city and" county of San Francisco on the rate of tax levy applies to taxes imposed purely for county purposes as well as to those for city purposes.</p>

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

<p>Gas Company—Regulation of Rates by City—Authority not Limited to Fixing Maximum Rate.—The power conferred by section 19- of article XI of the constitution upon a municipal corporation “to regulate the charges” for gas sold by a public service corporation, is not limited to the establishing of a maximum rate, but authorizes a municipality to fix a rate and prohibit the lowering thereof, directly or indirectly by any sort of device which the gas company may adopt.</p> <p>Id.—Regulation of Charges of Public Service Corporations—Prevention of Ruinous Competition.—Regulation of the charges imposed by public service corporations includes the power to prevent ruinous competition among the producers as well as unjust charges to the consumers.</p> <p>Id.—Fixing of Gas Rate by City—Whether Gas Company may Lower by Discounting Bills Paid at Office.—A municipal ordinance fixing a rate to be charged for gas and making it unlawful for a public service corporation to charge a lower rate unless consent to a reduction is obtained from the board of public utilities, is enforceable against a gas corporation which, without obtaining. such consent, adopts a rule to discount its customer’s bills in consideration of the payment of the same at the office of the company on or before the tenth day of the month next succeeding that during which the indebtedness was incurred.</p>

<p>Banks—Deposit op Check on Another Bank—Credit Given to Depositor—Relation op Debtor and Creditor Established.—Where a regular depositor of a bank in the ordinary course of business, deposits with it a cheek drawn in his favor on another bank and bearing Ms indorsement in blank, the title to the check is transferred to the depositary, and upon its placing the amount of the check to the credit of the depositor on its books the relation of debtor and creditor is created between them. It is unnecessary to the creation of such relation that the accounts between the depositary and the bank on which the cheek was drawn should have been balanced.</p> <p>Id.—Insolvency op Depositary—Want op Knowledge op Bank’s Oppicers.—The fact that the depositary was insolvent at the time of the deposit is immaterial to the creation of such relation, if that fact was unknown to its officers at that time.</p> <p>Id.—Draft Sent Bank fob Collection—Proceeds Remitted by Dbaft op Collecting Bank—Relation op Debtor and Creditor—Custom op Banks.—Where a bank, following the customary course of banking institutions in collecting drafts and remitting the proceeds, receives a draft for collection and collects it from the drawee, and then sends to the person entitled to the proceeds, who had knowledge of the banking custom, its own draft on its foreign correspondent for the amount thereof, the manner of remitting the proceeds of the collected draft changes the relation of principal and agent previously existing between the owner of the draft and the collecting bank to that of general creditor and debtor.</p> <p>Id.—Relation op Agency Changed to Debtor and Creditor.-—When paper is received for collection a trust relation often exists in the beginning which is changed by agreement or custom into that of debtor and creditor after the collection of the proceeds. The transformation does not affect the depositor unless it is known by Mm either by agreement or usage.</p> <p>Id.—Action to Recover Amount op Collection—Evidence op Bank- ' ing Custom Admissible.—In an action by the owner of the draft sent for collection to recover the amount thereof, brought against the superintendent of banks after the insolvency of the collecting bank, evidence of such banking custom in disposing of the proceeds of colled ions is admissible, and the custom, if proved, is of controlling force.</p>

<p>Boundaries—Uncertainty—Agreement Between Adjoining Owners as to True Location—Acquiescence by Parties.—Where adjoining proprietors, being uncertain of the true position of the boundary between their lands, agree upon its true location, mark it upon the ground or build up to it, and occupy on each side up to the place thus fixed and acquiesce in such location for a period equal to the statute of limitations, or under such circumstances that substantial loss would be caused by a change of its position, such line becomes, in law, the true line called for by the respective descriptions, regardless of the accuracy of the agreed location, as it may appear by subsequent measurements.</p> <p>Id.—Statute of Frauds—Whether Applies to Agreement for Establishing Boundary.—The apparent transfer of land under this rule, if the agreed line varies from the true line, does not violate the statute of frauds, the reason being that it is a fixing of the line and merely serves to establish the location upon the ground of the line described in the deeds.</p> <p>Id.—Proof of Agreed Location Must be Clear.—But as it does in fact, so far as the agreed line varies from the true line, affect the ownership of land, the proof of such agreed location should be clear.</p> <p>Id.-—Purpose of Boundary Agreement as Affecting its Validity.— And if the line is located and agreed to, not for the purpose of settling an uncertainty in the minds of the parties as to the position of the true line upon the ground, but to take land from one owner and transfer it to the other, or without the intent to fix the true line, such agreement is invalid and does not change the legal boundary nor affect the title of either party to the land which he previously owned. In such case the title can be changed only by adverse possession for the period of limitation.</p> <p>Id.—Agreement as to Part of Line—Extension by Implication or Construction.—The doctrine as to the establishing of boundaries by agreement and acquiescence applies only to the lines so far as marked or fixed by the agreement. The actual location is the thing to which the parties must agree, and where such agreement extends to only a part of the line, it cannot be extended by construction or implication, so as to embrace .a part of the bounds which were not considered or included in the agreement and as to which there was no agreement.</p> <p>Id.—Representation as to Boundaries—Estoppel of Successor in Interest.-—-Where one purchases land in reliance upon the statements of an adjoining proprietor as to the location of the boundary line between the properties, and enters into possession of the tract so purchased, the adjoining proprietor and his subsequent successor in interest are estopped to dispute the location of the boundary as thus represented.</p>

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

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

<p>Negligence—Collision Between Automobile and Pedestrian—Action por Personal Injuries—Instructions.—In an action to recover for personal injuries sustained by a pedestrian, through being struck by an automobile going in the same direction that she was walking, an instruction “that the act of a pedestrian on a public highway in running in front of an automobile, as the result of fright or terror, caused by the sudden discovery of the automobile near him, or by a noise caused by the automobile, does not necessarily constitute contributory negligence on Ms part, or, in other words, if the act of the defendant caused fear and loss of presence of mind on the part of the plaintiff, so as to impel her to rush into danger, as stated before, her mere error or mistake of judgment in so acting shall not be taken by you to be contributory negligence on her part,” is properly given, if it appears from the testimony given on behalf of the defendant that the plaintiff suddenly and seemingly in a panic rushed blindly into the automobile, notwithstanding the testimony on behalf of the plaintiff fails to show any knowledge upon her part of the presence of any danger.</p> <p>Id.—Basis op Instructions—Evidence op Entire Case.—In such ease the court is not under any duty to model its instructions solely upon the evidence given on behalf of plaintiff; its duty is to give instructions expounding the law upon every reasonable theory of the ease finding support in the evidence.</p> <p>Id.—Bight op Pedestrian in Highway—Becklessness op Driver op Vehicle—An instruction in such action that pedestrians have in general, and under reasonable restrictions as to exercise of care by them, a right to travel anywhere upon a public highway, and that it is negligence for a driver of a vehicle upon a public highway to recklessly run upon a pedestrian who is standing or walking with his back toward him, is not erroneous as imputing reckless driving to the defendant. It states an unimpeachable proposition of law, holding responsible for the injuries which he may inflict, the reckless driver of a vehicle.</p> <p>Id.—Law of Boad—Passing Vehicles—Obstructed Highway.—The law that vehicles and pedestrians, shall pass to the right when they meet in a highway, and to the left when they approach from the rear, does not mean that where the driver of an automobile seeks to enter upon a highway which is impassable in part by reason of obstructions, he must abandon the highway because Ms machine cannot cross to the right hand side. It is then legally permissible for him to use the left hand side of the highway if the roadway is of ample width to permit that use with safety to pedestrians and a clear passage to approaching vehicles.</p> <p>to.—Poot Passengers—Bight to Use All Parts of Boad or Street— Place of Crossing.—As to foot passengers, the old common-law freedom of use of the king’s highway has not been modified in this state, by any positive enactment, so that it still remains the law that they have the right to use and traverse the highway at all its points, being chargeable only for exercise of a due amount of care, which care, in its quantum, is governed by the circumstances attending the use which the pedestrian actually makes. Even in populous streets of cities, pedestrians are not restricted to the crossings in traversing a street, but may cross it at any point, and the same is true of their right to walk along the roadbed of a highway.</p> <p>Id.—Belative Cabe Bequibed of Pedestrians and Drivers of Automobiles.—While both pedestrians and drivers of motor vehicles are charged with the exercise of the same degree of care, the amount of care by law demanded of the latter is far greater than the amount exacted from the former, especially when the latter are approaching foot passengers from the rear. Of the driver of a motor vehicle under such circumstances, the law in terms requires that he shall not only give reasonable warning of Ms approach, but “use every reasonable precaution to insure safety.”</p> <p>Id.—Driver of- Automobile—Duty to Exercise Seasonable Precautions.—In the exercise of “every reasonable precaution” which the law enjoins, it is well within the spirit of the law to say that the driver of an automobile approaching pedestrians from the rear, and particularly women, must have his ear under such control as that it may be promptly stopped. The sounding of the horn and the noise of the muffler cut-out are each and both well enough in their way, but they do not embrace and conclude all of the duties of the driver.</p> <p>Id.—Pedestrians in Street—Duty to be on Lookout for Vehicles from Bear.—The pedestrians, in such ease,- are not required to. look back to see if they are in danger of being struck from behind.</p> <p>Id.—Collision Between Automobile and Pedestrian—Instruction Exonerating Driver.—Where the right side of a street is impassable, and one of a group of pedestrians walking on the left side is struck by an automobile approaching from the rear, the driver of the machine, in an action against him for personal injuries suffered by the pedestrian, is entitled to an instruction that he was lawfully and rightfully on that part of the highway, and that he is not liable if he used every reasonable precaution in bis approach, notwithstanding which the pedestrian ran into the machine; there being evidence that the pedestrian was unaware of the approach of the automobile until it struck her, and also evidence that she suddenly became aware of its proximity and in fright ran from a place of safety into one of danger.</p>

<p>Negligence — Railroad — Injury to Passenger — Exoneration op Agents in Charge op Train—Want op Negligence in Operation.—In an action by a passenger against a railroad company and the conductor and engineer of the train, to recover damages for personal injuries caused by the derailment of the train, as the result of a washout, a verdict exonerating the conductor and engineer is conclusive upon the proposition that there was no negligence in the operation of the train.</p> <p>Id.—Derailment op Train—Negligence in Maintaining Roadbed— Undermining op Track by Stormwaters—Apparent Sape Condition op Track.—A railroad company is not liable to a passenger for personal injuries resulting from the derailment of the train on which he was traveling, on the theory that it was negligent in not maintaining its roadbed in a safe condition, where the accident occurred at a place previously believed to be safe, and was caused by the undermining of the track by storm waters of unprecedented severity, in a manner which did not affect the surface conditions, so that the track seemed to be in sound condition.</p> <p>Id.—Conditions not Reasonably to be Anticipated.—A carrier of passengers is not obliged to proceed to provide against casualties which have not been known to occur before and which may not reasonably be anticipated. That which never happened before and which in its character is such as not naturally to occur to prudent men to guard against its happening at all, cannot, when, in the course of years, it does happen, furnish good grounds for a charge of negligence in not forseeing its happening and guarding against that remote contingency.</p>

<p>Appeal—Sufficiency of Notice—New Method—Notice to Clerk.— A notice of appeal from an order setting apart a homestead to the widow of a decedent reading as follows: “Notice is hereby given, pursuant to section 953a, Code of Civil Procedure, to all persons concerned that the undersigned desires to appeal, and does hereby appeal to the supreme court from the order” etc., is sufficient in substance as a notice of appeal under section 941b of that code. The fact that it is drawn so as to serve the double office of a notice of appeal and a notice to the clerk, under section 953a, does not destroy its effect as a notice of appeal, nor is the statement that it is given “pursuant to section 953a” fatal to its sufficiency as such a notice.</p> <p>Probate Homestead—Lot Set Apart must be Fit for Residence— Intent of Decedent to Build Residence.—A lot in a city, having no improvements upon it except two small buildings, each of which was unfit for a dwelling place,—one of them being scarcely large enough to inclose an ordinary buggy, and the other being used as a garage,-—cannot be set* aside as a probate homestead to the widow of a decedent, notwithstanding evidence tending to show that the decedent prior to his death, intended to build a dwelling house on the lot, and had made indefinite plans for its erection.</p> <p>Id.—Unexecuted Intent to Build Residence.—An unexecuted and conditional intent to fit' a place for residence is not sufficient to justify a court in setting it apart as a probate homestead under section 1465 of the Code of Civil Procedure.</p> <p>Evidence—Law of Foreign Country—Layman may Testify to.— Under section 1902 of the Code of Civil Procedure, oral testimony as to the unwritten law of a foreign country regarding property rights, both real and personal, may be given by any witness who is skilled therein. It is not necessary that the witness be engaged in the practice of the law in such country or as a professor of law therein. The fact that the witness was not a lawyer, or a professor of law, would go to the weight of his testimony and not to its competency.</p>

MOTION to dismiss an appeal from a judgment of the Superior Court of Sacramento County. J. W. Hughes, Judge. The facts are stated in the opinion of the court. Wm. B. Bosley, Thos. J. Straub, and L. T. Hatfield, for Appellant.

<p>Hines and Minerals—Safe Premises for Employee to Work—Duty of Inspection.—It is not the duty of a mining employee to inspect the roof of an underground station where he is working, nor the shaft and tunnel; he is required only to exercise such an amount of care as the law presumes every man will employ for his interest and preservation. The duty of inspection rests with the employer.</p> <p>Id.—Miners—Degree of Care Required to Exercise—New Formations.—Where miners are employed in drifting and are working into new formations, the degree of care which they are called upon to exercise for their own protection to avoid injury from a cave or from falling rock, is much greater than that imposed upon .them in using the older workings which are or should be in a thoroughly protected condition, and which they have the right to assume are in such condition.</p> <p>Id.—Unsafe Roof of Mining Station—Assumption of Risk.—A right of action for the death of a mining employee by the fall of rock from the roof of an underground station in which he was working cannot be defeated on the ground that the roof was unsafe and that he knew or should have known it, in view of the abolition of the defense of assumption of risk by the Employer’s Liability Act (Stats. 1911, p. 796.) .</p> <p>Id.—Changing Conditions in Place of Work—Failure to Timber Mine.-—In such ease the employer cannot interpose the defense that he was not hound to furnish a reasonably safe place to work because of the changing conditions, if there was extra timbering at the mouth of the shaft ready to make the place safe.</p> <p>Id.—Defense Arising from Changing Conditions—Necessity of Specially Pleading.—Sugh a defense, in order to be available in any event, must be specially pleaded.</p> <p>Id.—Contributory Negligence—Necessity and Sufficiency of Pleading.—In such action contributory negligence cannot be relied upon as a defense unless pleaded. And while the pleader may charge contributory negligence in general terms, yet he must plead the facts of such negligence, and the facts pleaded must show a causal connection with the injury. An answer which consists of a general denial and general allegations that the accident was caused by the employee’s own gross negligence and failure to use ordinary care for his own protection, is not a sufficient pleading of the defense of contributory negligence.</p> <p>Id.—Nature of Plea of Contributory Negligence.—Contributory negligence is in its nature a plea of confession and avoidance. Contributory negligence in law is predicated upon the existence of negligence upon the part of the defendant, the responsibility for which he avoids by showing a concurrent and contributing negligence upon the part of the person injured.</p> <p>Id.—EXercise of Ordinary Care—Presumption.—Where a miner working in an underground station is killed by rock falling from the roof, and there are no witnesses to the accident, the law presumes that he was taking ordinary care for his own safety; and if there is no evidence tending to rebut this presumption, instructions on the subject of contributory negligence are properly refused in an action for his death.</p> <p>Id.—Wrongful Death—Measure of Damages.—An award of twenty thousand dollars for the death of a skillful miner, to his widow and four children is not excessive, where it appears that he was thirty-three years of age and had earned six dollars a day but was earning only three and a half dollars at the time of the accident.</p> <p>Id.—Elements of Damages—Loss to Society:—In such case the jury is entitled to take into consideration the loss of society, comfort, and care suffered by the surviving children on account of the death of their father.</p>

<p>The facts are stated in the opinion of the court.</p> <p>George H. Moore, and Charles M. Ackerman, for Appellant.</p>

<p>The facts are stated in the opinion of the court.</p> <p>J. W. McKinley, and Allen W. Ashburn, Jr., for Appellant.</p>

<p>Intoxicating Liquors—Prosecution Under Local Option Law_ Judicial Notice or Election—In a prosecution for an unlawful sale of alcoholic liquors in “no-lieense territory,” under the Wyllie law (Stats. 1911, p. 599), the court cannot take judicial notice of the result of a local election to put the law in operation in the district where the sale was made, but the character of the territory as “no-license” must be proved as provided by the act itself, or by other sufficient evidence.</p> <p>Id.—Wyllie Local Option Law—Nature and Operation op Act.—In respect of this question, the Wyllie law is not essentially different from other laws operating upon specific classes of things. It is general, in that its force extends throughout the state; but it is in actual operation only where the subjects, or the prescribed conditions, upon which alone it is to operate, exist. The people of a city, town or district do not, by voting against license, enact the law in that territory; the law, in substance, declares that no liquor licenses shall be issued in any city, town or district in which the sentiment is not in favor of it. The election is authorized solely to .afford a means whereby this sentiment may be conclusively determined, and it merely establishes the local status or condition.</p>

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

<p>Public Officer—Proceeding for Removal—Whether Civil or Criminal.—A proceeding instituted by an individual, under section 772 of the Penal Code, for the removal of a public officer, is a criminal proceeding, though not “prosecuted by indictment or information.”</p> <p>Id.—Appeal from Judgment—-Jurisdiction of Court to Entertain.— An appeal from the judgment in such case in favor of the informer is not within the jurisdiction conferred by the constitution upon the supreme court or the district courts of appeal, and will be dismissed, notwithstanding the provision of section 770 of the Penal Code purporting to authorize such an appeal to the supreme court.</p> <p>Id.—Jurisdiction of Courts—Power of Legislature to Extend.— The legislature has no power to confer upon courts jurisdiction beyond- that given or authorized to be given them by the constitution.</p> <p>Id.—Special Proceeding—Appeals.—Such an appeal cannot be maintained as one in “a special proceeding” under the constitutional grant of jurisdiction to appellate courts in special proceedings provided by law.</p> <p>Id.—District Courts of Appeal—Appellate Jurisdiction.—The provision of section 770 of the Penal Code, purporting to give an appeal to the supreme court alone from a judgment removing a public officer, cannot be treated as applying to the district court of appeals by virtue of the paragraph of section 4 of article VI of the constitution, declaring that “all statutes now in force allowing, providing for, or regulating appeals to the supreme court shall apply to appeals to the district courts of appeal so far as such statutes are not inconsistent with this article.”</p> <p>Id.—Section 770 of Penal Code—Validity and Interpretation.—■ Section 770 of the Penal Code, providing for an appeal from a judgment of removal from office, was unconstitutional at the time of the adoption of the amendment to the constitution creating the district courts of appeal and was not revived by it.</p> <p>Id.—Extension of Appellate Jurisdiction—Section 18 of Article IV of Constitution.—Such section cannot be sustained under section 18 of article IV of the constitution, providing for the trial of officers for misdemeanors. This constitutional provision should not be interpreted as authorizing the legislature to enlarge the appellate jurisdiction of the higher courts beyond the limits expressly laid down in another part of the constitution. It does not authorize the legislature to grant a right of appeal t..' the supreme court in cases which the constitution has not included within its appellate jurisdiction.</p> <p>Id.—Trial—Meaning of Term—Whether Includes Appeal.—Except where there is a trial de novo after appeal, as in certain appeals from justices’ courts, the word “trial,” as commonly understood in our practice, includes nothing beyond proceedings in the court in which the case originated. In criminal cases it embraces steps tending to and culminating in a judgment of conviction or acquittal. But an appeal is no part of a trial, it ÍS' a means for remedying errors which have occurred at a precedent trial.</p>

<p>The facts are stated in the opinion of the court.</p> <p>W. H. Davis, A. N. Seymour, and Archibald Yell, for Appellant.</p>

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

<p>Mines and Minerals—Inspection of Property—Bight of Stockholder to Make.—A stockholder in a mining corporation is entitled to inspect the mining property of the company, and this includes the right to be accompanied by an expert.</p> <p>Id.—Contract to Purchase Mining Stock—Specific Performance— Sufficiency of Complaint.—In an action by a purchaser of stock to enforce specific performance of the contract of sale, which makes time of the essence and provides for periodical payments, the complaint fails to state a cause of action if, after alleging, as an excuse for the failure of the plaintiff to make the payments as provided, that the defendant in conspiracy with the other directors of the company prevented the plaintiff’s engineer from, making an examination of the mine, which examination was necessary to enable him to obtain funds wherewith to make the payments, it alleges nothing from which it can be inferred that the plaintiff was unable to pay the comparatively small amount which was called for as the first payment or that the defendants prevented Mm from making such payment and thereby put him in default.</p> <p>Id.—Contracts—Making Payments—Timé as Essence.—Provisions of a contract calling for payments strictly at a time specified cannot be applied where the efficient cause of the failure of the party seeking specific performance to comply strictly and literally with the contract was the conduct of the other party; but in the present ease the conduct of the defendants was not the efficient cause of the plaintiff’s default in making his first payment.</p> <p>Id.—Unreasonableness of Contract—Inadequacy of Consideration. A contract which does not appear just and reasonable, or founded upon an adequate consideration, will not be specifically enforced. Hence specific performance cannot be had of a contract for the sale of mining stock which fixes a grossly inadequate price.</p> <p>Id.—Pleading—Misjoinder of Parties and Causes of Action.'—If the complaint in an action for specific performance, brought by the buyer of mining stock against the seller, the corporation and its directors, is treated as a complaint for damages for breach of contract, it is subject to demurrer for improper joinder of defendants, and for improper joinder of causes of action affecting some, but not all, of the defendants.</p>

<p>Negligence — Gravamen of Case — Collision With Automobile — Pleading and Proof.—Where a man traveling on horseback and leading or driving an unbroken horse by a sixty-foot lariat around ■ the animal’s neck, is struck by an automobile, and thereafter he brings an action against the owner of the machine for personal injuries thereby sustained, an allegation in the complaint that the defendant “so unskillfully, carelessly and negligently and recklessly ran, propelled, and operated said automobile that said automobile was driven wantonly and maliciously, and at a rate of speed in excess of twenty miles per hour, upon, against, and over the plaintiff,” does not make the gravamen of the case wantonness and malice due to driving at a speed exceeding twenty miles an hour. The essence of the charge is that the defendant so- unskillfully and negligently ran the machine that it was driven against the plaintiff; and this can be established by proof of the collision, that it was caused by negligence of the defendant, without proof of malice, wantonness, or recklessness, and without proving that the automobile was going twenty miles an hour.</p> <p>Id.—Leading Unbroken Horse on Highway—Negligence a Question for Jury.—Whether it was negligence for the plaintiff to thus lead or drive an unbroken horse upon the highway is a question for the jury.</p> <p>Id.—Frightened Horse—Degree op Care Required of Owner in Emergency.—It cannot be said that the plaintiff was negligent, upon the horse becoming frightened and startirig to run across the street as the automobile approached, in not dropping the lariat and letting him run away, or, after checking him in the middle of the street, in not pulling him back to the side from whence he started, instead of trying, as he did, to get across the street with him before the automobile reached the place. The jury would not be bound to find the driver or leader negligent, in such emergency, merely because he failed to act in a manner which a deliberate review of the ease after the event might show to have been wiser or safer than the course he followed.</p> <p>Id.—Last Clear Chance—Sufficiency of Instruction Respecting.— In such case a charge to the jury: “You are instructed that the party who has the last clear chance to avoid the accident, notwithstanding the previous negligence of his opponent, is considered solely responsible,” while an extremely bare and terse statement of the doctrine, actually embraces all its elements.</p> <p>Id.—Meagerness of Instruction—-Raising Question for First Time on Appeal.—If the defendant desires a fuller and more elaborate instruction on the doctrine of the last clear chance, it is his duty to prepare and present the same to the court, or in some way make known to the court the lack of a clearer instruction and his desire for a better definition of the rule. If he fails to do this he cannot complain on appeal of the meagerness of the instruction.</p>

<p>Attachment—Motion to Dismiss—Decision on Conflicting Affidavits—Bbview on Appeal.—A decision on a motion to dismiss an attachment, based upon conflicting affidavits, will not be disturbed on appeal.</p> <p>Id.—Affidavits in Attachment—Interpretation and Effect.—An attachment affidavit in an action on promissory notes which alleges that they were made and payable in the state, - and that the payment of the same has not been secured by any mortgage or lien upon real or personal property, or pledge upon personal property, does not show affirmatively that there was any security for the notes in the shape of a lien on personal property.</p> <p>Id.—Amendment of Affidavit—Signing by Attorney.—If the original affidavit in such case, made by the plaintiff, was defective, it was proper to allow the filing of an amendatory affidavit signed by one of his attorneys.</p> <p>Id.—Motion to Dismiss Attachment—Evidence That Debt is not Secured.—On a motion to dismiss such attachment, because the debt sued on is secured by assignments of certain contracts, it is unnecessary that the plaintiff should introduce the assignments in the evidence to show that the debt is not thereby secured, when they would thus prove nothing more than what is admitted, and an officer of the assignee corporation makes an affidavit declaring in detail the purposes for which the assignments were made.</p> <p>Id.—Burden of Proof on Motion to Dismiss Attachment—How Met or Shifted.—If the mere denial by affidavit on such motion of the truth of the attachment affidavit is to be considered as shifting the burden of proof to the attaching creditor, this burden is met, as to the claim that the debt sued on was secured by assignments of contracts, by an affidavit declaring in detail the purposes for which the assignments were made, which is accepted by the trial court as true.</p>

<p>Declamation District—Action to Foreclose Lien—Amendment of Complaint to Correct Name of Plaintiff.—In an action to foreclose a lien for an assessment for reclamation purposes it is proper to permit an amendment of the complaint to correct a mistake in the corporate name of the plaintiff by changing it from “Swamp Land Declamation District No. 673” to “Declamation District No. 673.”</p> <p>Id.—Assessment List—Correction at Trial.—Under section 3460 of the Political Code it is proper, on the trial of such action, to permit a correction by the commissioners of the description of the land designated in the assessment list as the property of the defendant, in order to add to the clearness of the description. The time for amendment is not restricted to the period during which the lists remain in the actual possession of the county treasurer.</p> <p>Id.-—Effect of Amendment—Whether Precludes Decovery in Action.—Such an amendment does not create a new assessment or a new lien which precludes recovery in the original action; it simply makes the list conform to existing facts.</p> <p>Id.'—Property Occupied in Part by Owner and in Part by Lessee—• Whether Separate Assessments Necessary.—The fact that part of a tract of land is held by the owner and part by other persons under lease, does not make the holding two separate parcels for the purposes of drainage assessments.</p> <p>Id.—Deport of Trustees of Declamation District—Statement as to Work Done.—A report of the trustees of a reclamation district, listing the outstanding warrants and stating the purpose for which they were issued, and estimating the indebtedness not covered by warrants and stating the purpose for which it was incurred, is sufficient. The provision of section 3459 of the Political Code that the report of the board of trustees shall contain a statement of the “work done or to be done, and its estimated cost,” means the work done and unpaid for, and does not require a detailed statement of all work performed under the expended assessment.</p> <p>Id.—Statement as to New Work—Widening and Strengthening - Levee.—It is a sufficient report by such trustees of new work in widening and strengthening a cross levee, within the requirements of section 3455 of the Political Code, to state: “That a break has occurred from the high water of the winter of 1907 and 1908, in the cross levee of said district, and portions thereof have been washed away, and it has been estimated by a competent engineer, and the said board of trustees estimated and determined, that it will be necessary to widen and strengthen said cross levee, and to raise it to a uniform height, and that it will require the excavation and removal of four thousand cubic yards of sand and earth to make such repairs and improvements to said cross levee, and that it will cost twenty-five cents per cubic yard, making a total of one thousand dollars to do said work and make said repairs and improvements to said cross levee, and the said board of trustees did also approve and adopt said plan of repairing and improving said cross levee and the estimated cost thereof.”</p> <p>Id.—Repair op Boiler—Statement in Report op Trustees.—The specification in such report that the boiler then in use for making steam to run the pump is not only old and worn out, but inadequate to carry the amount of steam necessary for operating the engine used for driving the pump, and that it will be necessary to replace the old boiler with a new one, and that the estimated cost of such new boiler will be four thousand two hundred and fifty-three dollars, is a statement in reference to- the repair of old work, rather than of a plan for new work.</p> <p>Id.—Assessment in Proportion to Benefits—Presumption as to Fairness.—The inclusion of the balance of all the money which was to be raised to pay the outstanding indebtedness of the district under the head of “incidentals,” and the assessment of it against each acre of land in the district equally, is not essentially unfair, and the burden is on a landowner to show that the assessment is not in proportion to the benefits.</p> <p>Id.—Description of Land in Assessment—Reference to Adjoining Owners—Liberal Interpretation.—A description of the tract to be assessed for reclamation purposes by reference to lands of adjoining owners is sufficient. Courts approve a very liberal construction in dealing with descriptions of land.</p>

<p>Municipal Corporations—Water Supply—Validity op Contract pob Term op Tears With Water Company.—A contract between a municipal corporation owning its own water system and a corporation engaged in the business of developing and supplying water, for a bulk supply of water for the use of the municipality and its inhabitants for a period of ten years, is not void as in violation of section 1 of article XIV of the constitution, which provides that the use of all water appropriated for sale or distribution is a public use and subject to state control, and that the rates to be collected for the use of water supplied to any municipality or its inhabitants shall be fixed annually by the governing body of the municipality and continue in force for one year and no longer.</p> <p>Id.—Purchase op Water in Bulk—Constitutional Provision—Purpose and Interpretation.—While the words of this section of the constitution are very general and refer to the “rates or compensation” to be collected for the use of water supplied to a municipality “or the inhabitants thereof,” it is clear from the context that the fixing of rates contemplated is a legislative function, and that there was no intention on the part of the framers of the constitution to make the section apply to the case of a municipal corporation owning its water system and purchasing water in bulk for sale to its inhabitants.</p> <p>Id.—Section 1 op Article XIV op Constitution—-To What Cases Applicable.—Such section of the constitution must be understood to apply to cases where one has appropriated water generally, for sale, rental, or distribution, and not to cases where sales are made to particular persons at a fixed price by ordinary contracts of purchase and sale.</p> <p>Id.-—Dedication op Water to Public Use—Bulk Sale to Municipality.—A sale and delivery of water by a water company to a municipality owning its own water system, to be sold by the municipality to its inhabitants, is not a dedication of the water to a public use so that the rates are subject to municipal regulation.</p> <p>Id.—Regulation op Bates por Public Service—Basis op Right.—The right to regulate rates to be paid for a service or commodity rests fundamentally upon the dedication to public use of the property of the person or corporation compelled "to submit to the regulation.</p> <p>Id.—Legislative Capacity—When City Does not Act in While Administering Water Supply.—A city does not act in a legislative capacity in administering a public utility, such as a water system, even within its own limits, but in a proprietary and only quasi public capacity.</p> <p>Id.—Contract for Water Supply—Power of Municipality—Terms and Duration of Agreement.—A city of the sixth class owning its own water system has power to enter into a contract with a water company to furnish the municipality a bulk supply of water for the use of its inhabitants for ten years, under section 862, subdivision 3, of the Municipal Corporation Act (Stats. 1883, p. 269); and when a municipal corporation possesses authority to enter into contracts for the supply of water for its own use and for the use of its inhabitants the terms and duration of the agreements rest within the sound discretion of the municipal authorities, and such contracts may be overthrown by courts only in eases of fraud, abuse, or excess of authority, or inequity in the terms of the agreements.</p> <p>Id.—Contract for Water Supply—Quantity to be Furnished—Inconsistency Between Different Provisions.—In such contract there is no inconsistency between a paragraph providing that the water company shall receive a maximum rate of thirty cents per thousand gallons when the total amount of water furnished shall not exceed an average of two> hundred thousand gallons per day, and a paragraph obligating the municipality to pay for not less than one hundred and fifty thousand gallons the first year and not less than two hundred thousand gallons for every other year during the life of the agreement.</p> <p>Id.—Minimum Payment Clause—Validity Where One Party to Contract is Municipality.—A minimum payment clause is valid in a contract to which one of the parties is a municipality as well as in ease of contracts between individuals.</p> <p>Id.—Mutuality of Contract—Promise of Water Company to Use Diligence and Best Endeavors.—A provision in such a contract that the water company will “use due diligence to maintain its pipes” in good condition, to employ its “best endeavors” to cause an adequate supply of pure water to flow through its conduits, and in case of deficiency to prorate the supply between the municipality and its other customers, does not invalidate such contract for lack of mutuality; it is the usual provision whereby a public service corporation protects itself from liability for failure to furnish its commodity because of strikes, accidents, and the like, against which it cannot reasonably provide.</p> <p>Id.—Protection Against Emergencies—Validity of Provisions in Contract.—Where a party to a contract is excused from absolute performance because of an emergency the contract is not thereby void for lack of mutuality,</p> <p>Id.—Unilateral Contracts—Enforcement After Execution.—But even if the water contract here involved were regarded as at first lacking in mutuality, it would be sustainable if the water company has at all times been ready, able, and willing to perform, and has performed all its duties arising under the agreement, including the supplying of an abundance of pure, fresh water. Contracts unilateral at first are sustained upon execution of the optional consideration.</p> <p>Id. — Taxation of Decreased Population ■— Whether Invalidates Water Contract.—Such contract is not void on the theory that it unreasonably binds the municipality to make payments which may possibly be raised by taxes to be paid by a decreased population.</p> <p>Id.—Section 548 of Civil Code—Granting of Exclusive Right.—Section 548 of the Civil Code is no bar to the purchase of water by the municipality under such a contract, if that part of the section prohibiting the granting of an “exclusive right” is regarded as still in force. The agreement does not violate that portion of the section because it does not contemplate the possibility of the town’s future purchase of water from sources other than those owned by the water company.</p> <p>Id.—Section 4412 of Political Code—Application to Water Contract.—Section 4412 of the Political Code, even if still in force, has no application to such contract, but has reference to the supplying of water to public buildings and the term of contract for such service.</p> <p>Id.—Prevention of City from Procuring Water Supply of Its Own —Contract Having That Tendency.—Such a contract is not invalid as disabling the municipality from acquiring a municipal water supply of its own. A city or town clothed with power to buy water for its own distributing system may agree to purchase water up to a given quantity exclusively from one company. The power to contract for a reasonable length of time implies the power to forego other means of procuring water for a like period.</p> <p>Id.—Loan of Credit of Municipality—Extension of Water System. A promise in such contract to pay for not less than two hundred thousand gallons of water a day does not amount to a loan of the credit of the municipality contrary to the provisions of section »31 of article IY of the constitution, in that the promise is based upon the covenants of the water company to construct a pipe-line extending its system to the municipality.</p> <p>Id.—-Breach of Contract—Measure of Damages.-—Such contract is ■ not the usual agreement to accept and pay for personal property, and the measure of damages for its breach is not the difference between the contract price and the value of the water to the water company which the municipality does not take. The minimum rate is the true measure of recovery, the promise to pay such sum being a part of the direct obligation of the contract and in no sense a covenant for liquidated damages.</p> <p>Id.—Action to Recover for Water Furnished—Sufficiency of Complaint.—In an action by the water company to recover the balance due for water furnished under such contract, the omission to allege in the complaint that there was money enough for the payment of the plaintiff’s claim in the “Water Supply Fund” or in the “General Fund,” to which the plaintiff had promised to look for payment in case of deficiency in the former fund, is not a failure to state a cause of action.</p> <p>Id.—Water rates—City Purchasing Water to Distribute Through Its Own System—Constitutional Provision.—The municipality, by going into the business of furnishing its inhabitants with water itself, purchasing water from a water company and then delivering it through its own system to its inhabitants, did not become subject to the provisions of article XIV, section 1 of the constitution and violate it when agreeing to establish for a period of ten years rates which will produce a sum sufficient to pay for all water furnished by the water company.</p> <p>Id.—Application of Water to Public Use—Contract Price—Bates and Their Regulation.—While the water supplied by the company to the city is ultimately applied “to public use,” the contract price therefor does not constitute the “rates” for the “compensation” subject to the “regulation” mentioned in section 1 of article XIV of the constitution.</p>

<p>Fraud and Mistake—Action to Set Aside Deed—Findings on Conflicting Evidence—Appeal.—Where suit is brought by the guardian of a grantor to set aside her. deed on the ground of fraud and mistake, findings in favor of the defendant, based upon conflicting evidence, will not be disturbed on appeal.</p> <p>Id.—Credibility of Witness—Question for Trial Court.—The amount of credit to be given to the positive testimony of any witness is solely a question for the trial tribunal, except, perhaps, where the testimony, in the light of the undisputed facts, is inherently so improbable and impossible of belief as, in effect, to constitute no evidence at all.</p> <p>Id.—Specifications of Error—Strictness of Rule Governing.—The earlier strictness of the rule governing the sufficiency of specifications has been much abated; but nevertheless the specifications in any ease must be sufficient to convey fair and correct knowledge both to the adverse party and to the trial court of the precise findings excepted to as not being sustained by the evidence, and this for the manifest purpose that the adverse party may know what evidence by way of amendments to embody in the statement or bill, and that the trial court’s attention may be properly directed to these designated matters.</p> <p>Id.—Sufficiency of Findings—Consideration by Court—Necessity of Specifications.-—Neither the trial court nor the supreme court can consider the question of the sufficiency of the findings when such specifications are not made in substantial terms, for the law itself declares that unless so made they shall be disregarded.</p>

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

APPLICATION to set aside the submission of an appeal from a judgment of the Superior Court of Fresno County. M. L. Short, Judge presiding. The facts are stated in the opinion of the court.

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

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

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

<p>The facts are stated in the opinion of the court.</p> <p>William H. Fuller, and Charles E. Putnam, for Appellant.</p> <p>Leonard B. Slosson, and George E. Farrand, for Respondents.</p>

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

<p>Marriage—Necessity of Solemnization.—Solemnization of a marriage is, since the amendment of 1895 to section 55 of the Civil Code, essential to its validity.</p> <p>Id.—Marriage Without License—Offspring Entitled to Inherit as Legitimate.—The offspring of a marriage for which no license was secured, _but which was otherwise legally solemnized, is entitled to inherit as the legitimate child of its father, by virtue of the clause k of section 1387 of the Civil Code, providing that "the issue of all marriages null in law, or dissolved by divorce, are legitimate.”</p> <p>Id.—Meaning of Term “Marriages Null in Law.”—The term '''marriages null in law,” as used in that section, is not limited only to the marriages which are subject to an action for annulment on one of the grounds specified in section 82 of the Civil Code, but applies to an attempted marriage, contracted in good faith, so far, at least, as one of the parties is concerned, where there is a concurrence of the elements of marriage, as defined in section 55 of the Civil Code; that is, where there has been the consent of parties capable of making a contract of marriage, followed by a solemnization authorized by the code.</p>

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

<p>Limitation of Actions—Suit to Vacate Judgment—Annulment of Purchase of School Land.—A suit in equity to vacate a judgment in favor of the state annulling a certificate of purchase of school land, brought by the hblder of such certificate against claimants under a subsequent certificate, is barred by the statute of limitations if not begun within four years after the issuance of the second certificate.</p> <p>Id.—Laches—Delay of Eleven Years in Suit Affecting Land— Change of Conditions.—Such suit is also barred by laches if it is not begun until eleven years have passed since the issuance of the first certificate, during which time the holder thereof has taken no steps to complete the purchase or assert any right, and the claimants under the second certificate have expended large sums of money resulting in the discovery of oil and making the property extremely- valuable.</p>

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

<p>Appeal from Portion of Judgment—Right to Take—Jurisdiction of Appellate Court—Effect of Reversal.—A party may appeal from a specific part of a judgment, and such appeal ordinarily will bring up for review only the part appealed from, leaving all other parts of the judgment in full force. In that case the appellate court has no jurisdiction to review any part of the judgment except the part to which the appeal is directed, and an order of reversal, although general in its terms, will be construed to apply only to the part brought up for review.</p> <p>Id.—Mechanics’ Liens—Action to Foreclose—Appeal from Part of Judgment—Effect of Reversal on Portion not Taken Up for Review.—Where, in consolidated actions for the foreclosure of mechanics’ liens, an appeal is taken by some of the claimants from that part of the judgment in favor of the owner and against them, another part of the judgment, distributing to other lien claimants the fund deposited in court by the owner, from which no appeal is taken, becomes final, and upon a second trial the court properly limits the claims of the appellants against the owner to the difference between the total amount found applicable to liens, and the amount awarded by the first judgment to other lien claimants.</p> <p>Id.—Abandonment of Work by Contractor—Apportionment of Contract Price to Liens—Validity of Code Section.—The rule of section 1200" of the Code of Civil Procedure, fixing the portion of the contract price applicable to the liens of other persons than the contractor where he abandons the work before completion, is not an invasion of the constitutional rights of the owner, where the application of the section results in the payment by him of a total sum in excess of the contract price.</p> <p>Id.—Failure to Complete Building on Time—Loss of Rents—Deduction from Amount Available to Liens.—Damages claimed by the owner of a building for loss of rents occasioned through failure of the contractor to finish the building within the time agreed, cannot he deducted from the fund available to lienors where the contractor has abandoned his contract.</p>

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

<p>Mortgage—Release op Portion op Property—Enforcement Against Remainder.—Where one, who owns ten acres of land and holds another twenty acres in trust, mortgages the whole tract and thereafter conveys the ten acres to his wife, subject to the mortgage, she having knowledge of the trust and it being agreed at the time of the execution of the mortgage that the twenty acres should not be held liable as security, the ten acres remain primarily liable for the mortgage debt, and it is no defense to an action of foreclosure against it that the mortgagee has released the twenty acres.</p> <p>Id.—Foreclosure op Mortgage—Tender op Payment—Counsel Fees. If such mortgage and the note which it secures provide for the payment of attorneys’ fees in the event of legal proceedings, a tender, after the commencement of foreclosure proceedings, and when a demurrer is on file ánd undisposed of, of the full amount of the principal and interest due, together with costs, without including attorneys’ fees, is insufficient, notwithstanding the complaint contains no specific prayer for such fees and no answer has been filed.</p> <p>Id.—Tender of Portion of Debt—Whether a Defense.—A tender by the defendant in such ease of one-third of the debt, interest, and costs, upon an agreement that the ten acres should be released upon her payment of one-third of the debt, is unavailing as a defense if not pleaded.</p> <p>Id.—Default Judgment—Section 580 of Code of Civil Procedure.— Section 580 of the Code of Civil Procedure, regulating the relief that may be granted where there is no answer, has no application in such case.</p> <p>Id.—Pleading—Prayer in Complaint for Less Than Amount Due.— Although the plaintiff, by praying for less than is' his due, exposes himself to the risk, in case of default, of having to take judgment for a limited relief, he does not, by the mere filing of his complaint, irrevocably surrender or release the balance of his demand. The complaint is still subject to amendment, and it is also possible that the defendant, by answering, may enlarge the scope of the relief to any extent consistent with the ease made by the complaint and embraced within.the issue.</p> <p>Id.—Note Secured by Mortgage—Proof of Ownership in Foreclosure Proceedings.—In an action to foreclose.a mortgage the plaintiff’s ownership of the secured note is prima facie established by its introduction in evidence, bearing the indorsement of the payee in blank, and by the testimony of the plaintiff’s attorney as to the purchase of the note by him for the plaintiff with the latter’s money. The chain of title is not impaired by the fact that the instrument bears another indorsement, concerning which no proof is offered.</p>

<p>Setoff and Counterclaim—Sustaining of Demurrer—Consideration of Question on Appeal.—Where the allegations of a counterclaim are treated by all parties and by the court as being still in the case, notwithstanding the sustaining of a demurrer to the answer, they will be so considered on appeal.</p> <p>Id.—Mortgage Foreclosure—Grantee of Property—-Counterclaim.— Where a power company has purchased mortgaged property without assuming the payment of the encumbrance, and an action is brought against it and others to foreclose the mortgage, wherein no personal or deficiency judgment is asked against the power company, its claim for water furnished by it to the plaintiff is not a proper subject of counterclaim.</p> <p>Id.—Waiver of Objection to Counterclaim—What Does not Constitute.—The right of the plaintiff in such case to object to the counterclaim is not waived by its counsel admitting the truth of the allegations therein and consenting that the amount thereof, without interest, be treated simply as an offset on the mortgage debt, but not as a basis for a money judgment against the plaintiff.</p> <p>Id.—Grantee of Mortgagor—Monet Demand as Counterclaim in Foreclosure Proceedings.—A money demand upon the part of a subsequent grantee of a mortgagor, who has not assumed payment of the mortgage debt and against whom no personal judgment is asked, is not a proper counterclaim in an action to foreclose the mortgage.</p> <p>Id.—Appeal—Absence of Brief or Appearance on Part of Appellant. An appellate court is not called upon to give any consideration to an appeal wherein no brief is filed by the appellant and no appearance is made by him at the oral argument.</p>

<p>APPEAL from an order of the Superior Court of Solano County refusing to appoint a guardian of the person and estate of a minor. Henry C. Gesford, Judge presiding.</p> <p>The facts are stated in the opinion of the court.</p>

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

<p>Husband and Wife—Community Property—Gift to Wife.—A husband may, orally or in writing, make to Ms wife a gift of community property, and when this is done it becomes her separate estate.</p> <p>Id.—Note Executed to Wife in Consideration of Home for Maker— When Separate Property.—Where a husband and wife agree to permit a third person to make Ms home with them in consideration of Ms executing a promissory note to her, the transaction, in connection with the attending circumstances, constitutes evidence sufficient to support a finding that the husband made a gift of the note to Ms wife.</p> <p>Id.—Action Against Administrator on Note—Husband as Witness. In an action on the note by the wife against the administrator of the estate of the deceased maker, the husband is a competent witness in her behalf. Inasmuch as the note never was bis property, section 1880 of the Code of Civil Procedure, which makes the party, or assignor of the party, incompetent when the action is against an executor or administrator upon a claim or demand against the estate of a deceased person, has no application to him.</p>

<p>Venue—Determinaton op Character op Action prom Allegations op Complaint and Nature op Judgment.—The character of an action, when the proper place of trial is in question, must be determined from the allegations of the complaint, and from the character of the judgment which might be rendered against the defendants upon their default.</p> <p>Id.—Action to Declare Trust in Real Property—Place op Trial.— An action to have it determined that the defendants hold the legal title to certain real property in trust for the benefit of the plaintiff and themselves, under the terms and conditions of certain contracts set forth in the complaint, is an action for the determination of a right or interest in real property within the meaning of section 392 of the Code of Civil Procedure, providing that such action is to be tried in the county in which the subject of the action, or some part thereof, is situated.</p> <p>Id.—Partnership—Lands Held in Trust—Action to Determine.— ' Assuming that such contracts created a partnership between the parties as to the profits and losses that might arise in transactions contemplated thereby, there is no rule of law forbidding an action to have it determined that certain persons holding the complete legal title to land hold it in -trust for the purposes of the partnership.</p>

<p>Municipal Corporations—Referendum Election—Railway Franchise — Action to Annul Order of Trustees — Railway not Necessary Party.—Where a citizen and taxpayer brings an action to annul an order of the board of trustees of a municipal corporation declaring that by a referendum election an ordinance granting to a railroad company a franchise for a spur track has been rejected by the requisite number of voters of the municipality, the railroad company is not a necessary party.</p> <p>Id.—Taxpayer and Citizen—Whether may Maintain Action.—Such action may be maintained by a single citizen and taxpayer.</p> <p>Id.—Parties to Action—General Rule as to Who Should be Made— Exception to Rule.—According to the general rule, all persons interested in a suit ought to be parties to it, but one of the exceptions to this rule is that where a decree with reference to the subject matter of the litigation may be made without concluding in any way the rights of a person having an interest, such person is not a necessary party to the action.</p> <p>Id.—Adjourned Meeting of Board of Trustees—Hour of Assembling. Where the hour of assembling is not specified in the motion to adjourn a regular meeting of the board of trustees of a municipal corporation, the adjourned meeting, from which two of the trustees are absent, is invalid, and an ordinance thereat passed, calling a referendum election on a “franchise ordinance,” is void.</p> <p>Id.—Notice of Meeting—Resolution.—Such ordinance cannot be regarded as a “resolution” so as to validate the election, sinee^ the law (Stats. 1883, p. 268) requires that the notice of the election must be in accordance with an ordinance.</p> <p>Id.—New Party—Bringing in by Cross-complaint.—A new party, not necessary to the decision of the matter before the court, cannot be brought in by cross-complaint.</p> <p>Id.—Cross-complaint—Bringing in New Party and Seeking Relief Foreign to Subject Matter of Suit.—Where a citizen and taxpayer brings an action to annul an order of the board of trustees of a municipal corporation declaring that by a referendum election an ordinance granting a railroad company a franchise for a spur track has been rejected by the requisite number of voters of the municipality, a cross-complaint alleging wrongful acts on the part of the railroad company in laying its tracks, and praying that the action abate until the company is made a party, that the company be adjudged to be without a franchise to lay such tracks, that the franchise ordinance be declared of no present effect and the franchise granted thereby be held suspended pending an election, and that the plaintiff be adjudged a person without interest in the controversy, is demurrable as seeking relief foreign to the subject matter of the suit and bringing in a new party not necessary to the decision of the matter before the court.</p>

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

<p>Action for Personal Injuries—Death of Plaintiff After Judgment —Abatement of Action.—An action to recover damages for personal injuries does not abate by reason of the death of the plaintiff after a judgment in his favor and while a motion for a new trial is pending, although the motion is granted and a new trial ordered.</p> <p>Id.—Granting of New Trial—Effect on Judgment.—A right of appeal exists from an order granting a new trial, and if upon such appeal the order is reversed, the judgment will remain or be restored to its original condition as if the order vacating it had not been made. The order, in such case, is vacated and the original judgment stands. An order granting' a new trial does not absolutely vacate the judgment; it is absolutely vacated only when such an order becomes a finality.</p> <p>Id.—Order Granting New Trial—Reversal on Appeal—Effect upon Judgment.—During the time within which an appeal may be taken from such an order, and while the appeal therefrom, if taken, is pending, the order is subject to the condition that if it is reversed its effect to vacate the judgment will be annulled, and the judgment will then stand as if no order granting a new trial had been made, or as if the motion had been denied and such denial had become final or had been affirmed on appeal.</p> <p>Id.—Examination of Jurors—False Answers on Voir Dire—Time of Discovery of Misconduct—Sufficiency of Affidavits on Motion for New Trial.—An order granting a new trial on-the ground that one of the jurors gave untrue answers to questions asked him on his voir dire as to whether he had ever had any suits against the defendant railroad company, is erroneous, if the affidavits in support of the motion merely show that the attorneys for the defendant were not aware of the falsity at the time the impanelment of the jury was completed, but fail to show that they did not discover such facts afterward during the trial and before the rendition of the verdict.</p> <p>Id.—Misconduct of Juror—Affirmative Showing as to Time of Dis-covert.—Where misconduct or irregularity of this character is,relied on as a ground for a new trial, the affidavits of the moving party must show affirmatively that both he and his counsel were ignorant of the facts constituting the misconduct or irregularity charged until the rendition of the verdict.</p>

<p>APPLICATION for a Writ of Prohibition to he directed against the Superior Court of San Bernardino County, and S. F. Kelley.</p> <p>The facts are stated in the opinion of the court.</p>

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

<p>The facts are stated in the opinion of the court.</p> <p>Frank Freeman, Frank H. Gould, Frank H. Short, C. W. Thomas, and Vincent Surr, for Appellants.</p> <p>A. L. Shinn, J. W. Dorsey, R. M. F. Soto, E. M. Weyand, S. C. Denson, and A. C. Huston, for Respondent.</p>

<p>Estate or Decedent—Legacies—Interest—Decree op Distribution to Determine.—Where a legatee under a will claims interest on the legacy, the claim should be asserted in the proceeding for distribution, and if this is not done no interest can be recovered for the period prior to the decree of distribution.</p> <p>Id.—Distribution—Eights op Legatees and Devisees Settled on— Eemedy por Error—Appeal—Collateral Attack.—The distribution of an estate includes the determination of the persons who by law-are entitled thereto, also the proportions or parts to which each of these persons is entitled. If the decree is erroneous, the remedy is by appeal, and if no appeal is taken the decree becomes a final and conclusive adjudication of the rights which might be claimed by any person as legatee or devisee under the will, and is not subject to collateral attack.</p>

<p>APPEAL from an order of the Superior Court of Santa Clara County settling the account of an administrator of the estate of a deceased person. P. F. Gosbey, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Estate of Deceased Person—Misconduct of Administrator—Personal Use of Estate Property—When Chargeable With Compound Interest.—Where the administrator of the estate of a deceased person, from the time of Ms appointment, has been guilty of neglect of the estate, has claimed all the estate as his own, has used and conducted all the business and property thereof as his own, and has used the rents, issues, and profits thereof in his own business and for his own benefit, he should be charged with interest at the legal rate, compounded with annual rests, upon the amount found due from him as the rental value of the real property of the estate.</p> <p>Id.—Trustees—Liability for Misuse op Trust Property.—Where a trustee has used trust property for his own benefit, if any loss occurs, the loss must be borne by him, while the beneficiaries are entitled to any profits realized.</p> <p>Id.—Delay in Settlement op Estate—Misuse op Property by Administrator—Compound Interest—Discretion op Court.—Where the only reason for a long delay in the settlement of the estate of a deceased person is that the administrator asserted a claim to certain lands against the estate, which claim was adjudged to he based upon his own fraud and undue influence, and he violated his trust by using the property in conjunction with his own property, there . is no room for play of discretion in regard to charging him with compound interest on the rental value of the property.</p> <p>Id.—Unliquidated Damages—Interest on—When Allowable.—The rule prevailing in actions for damages for tort or breach of contract, that interest as such cannot be allowed where the amount of damages is unliquidated and incapable of being made certain, does not apply to the case of an administrator who has violated his trust by using for his personal benefit the property of the estate.</p>

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

<p>Taxation—Banks—Constitutional Law—Municipal Occupation Tax is Invalid.—Section 14 of article XIII of the state constitution, providing for the taxation of the capital stock df all banks doing business within the state, and declaring that the tax so prescribed “shall be in lieu of all other taxes and licenses, state, county and municipal, upon such shares of stock and upon the property of such banks, except county and municipal taxes on real estate and except as otherwise in this section provided,” renders invalid an excise or occupation tax attempted to be imposed by a municipal ordinance upon the right of such banking institutions to conduct their business. (San Francisco v. Pacific T. T. Co., 166 Gal. 244; Hartford Insurance Co. v. Roberts, ante, p. 270; Pacific Gas # Electric Co. v. Roberts, ante, p. 420, approved.)</p>

<p>Taxation—Insurance Agents—Occupation Tax—Unconstitutional Municipal Ordinance.—As a corporation can act only through agents, a revenue tax, imposed by a municipal ordinance, upon agents of insurance companies for the right to do business, is a tax upon the corporation’s right to do business; and such an ordinance imposing a license-tax upon every person, firm, or corporation conducting, managing, or carrying on the business of a general or local insurance agent within the municipality, is in violation of section 14 of article XIII of the state constitution requiring every insurance company within the state to pay an annual tax of one and one-half per cent upon the amount of gross premiums received by it upon its business done in the state, and declaring that such tax shall be in lieu of all other taxes or licenses, except county and municipal taxes on real estate, and except as otherwise provided in this section.</p>

<p>Estate of Decedent—Ademption of Legacies—Delivery of Certificate of Deposit.-—Where a woman by her will gives each of the two nieces of her deceased husband five hundred dollars, and thereafter delivers to them two certificates of deposit aggregating one thousand dollars, upon the condition expressed in her letters to the cashier of the bank and to the legatees that the principal of the certificates is not to be paid to them during her lifetime, but only the interest thereon, and that she is to have the certificates back if she needs them, the certificates are in ademption and satisfaction of the legacies.</p>

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

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

<p>Action fob Damages—Personal Injuries—Negligence—Motion for Nonsuit—When Amendment to Complaint Allowable.—In an action for damages for personal injuries, where the only negligence alleged in the original complaint was that defendant had failed to provide plaintiff, his employee, with a safe and proper place in which to work, but the evidence showed that the only negligence was that of a fellow employee in detaching a piece of steel and allowing it to fall on plaintiff, there was no error; after motion for nonsuit, in allowing plaintiff to amend his complaint by adding allegations as to the negligence of the fellow employee, and denying the motion for nonsuit. Such an amendment in no way changed the cause of action.</p> <p>Id.—Master and Servant—Act of April 8, 1911—Negligence of Fellow-servant no Defense.—Under the act of April 8, 1911 (Stats. 1911, p. 796), it was not a defense to an action for personal injuries brought by an employee against his employer, that the injury was caused in whole or in part by the want of ordinary or reasonable care of a fellow-servant. The negligence of the fellow-servant was the negligence of the employer under this act.</p> <p>Id.—Pleading—Amendment During Trial—Right of Defendant to Demur or Answer—Continuance.—The trial court has the right to allow an amendment to a complaint upon such terms as may be just, and the defendant is entitled to meet the new allegations by demurrer and answer, and also to any time reasonably necessary to enable him to obtain available evidence material to the issue; but where the defendant has set up in his original answer substantially what the amendment to the complaint contains, and no showing of necessity for a continuance of the trial is attempted to be made, there is no error in denying defendant’s application for a continuance.</p> <p>Id.—Fellow-workmen—Right to Assume Other will use Care— . Lack of Contributory Negligence.'—A workman on a building has a right to assume that the workmen above him will exercise reasonable care for the safety of those below from injury at their hands; and where a fellow-workman of the plaintiff negligently detached a steel rod and allowed it to drop on plaintiff, who was working below, the latter cannot be charged with contributory negligence in not perceiving and guarding against the danger, where he had no notice or means of notice of the threatened danger.</p> <p>Id.—Evidence—Error Without Prejudice—Plaintiff’s Financial Condition Immaterial.—In an action for personal injuries alleged to have resulted from defendants negligence, it is error to allow evidence that plaintiff has no means of support for himself and family other than Ms daily labor, but such error is not prejudicial, where the record shows that the trial judge, who tried the ease without a jury, did not consider the financial condition of the plaintiff or the obligation of support of others incumbent on him as matters to be considered in fixing the amount of damages.</p>

<p>Quieting Title—Basement—Former Adjudication Conclusive—Admissible as Evidence.—In an action to quiet title to a tract of land, where the defendant by answer claims ownership of an easement over the land claimed by plaintiff, consisting of a roadway leading from defendant’s land across the plaintiff’s land to a public highway, a final judgment in a former action between the same parties declaring defendant herein to be entitled to the identical easement, is conclusive of the rights of the parties, and is admissible in evidence without the necessity of setting it up as a former adjudication.</p> <p>Id.—Former Judgment—Effect of.—Practically the sole purpose of resorting to courts for a judgment establishing a right is to furnish the party with a record on which he can rely as conclusive proof of his right whenever it is again assailed.</p>

<p>Landlord and Tenant—Lease of Farm, Implements, and Cattle— When Lessee not Authorized to Sell Leased Property.—A lease of land, together with certain farming implements and other personal property, including a designated number each of cows, yearlings, heifers, steers, bulls, and horses, for the term of five years, “for the rental value of one-half the increase of said stock, i, e., that is to say that at the end of said term of five years, the said lessee shall surrender to the lessor the said premises in good condition, wear, tear, and the elements excepted, make the number of stock herein contained good, and one-half of all increase, together with all personal effects, herein described as going with the land such as wagons, harness, farming implements,” etc., does not authorize the lessee to sell any of the demised property. The provision that the lessee shall “make the number of stock herein contained good,” means that he shall replace such stock as might die or be lost during the term.</p> <p>Id.—No Authority in Lessee to Sell Leased Property Unless Express or Fairly Implied.—No authority rests in a lessee to sell or otherwise dispose of the lessor’s property unless there -be express provision therefor in the lease, or unless by fair implication from the terms of the lease such authority may be inferred.</p> <p>Id.—Evidence—Unambiguous Lease—Parol Evidence Inadmissible to Explain Intent.—There is no such ambiguity in the words, “make the number of stock herein contained good,” used in such lease, as to justify a resort to parol evidence to show that it was intended to give the lessee authority to sell any of the demised property, where admittedly the words were used in their primary and general acceptation.</p>

<p>The facts are similar to those stated in the opinion in Josselyn v. San Francisco, mite, p. 436.</p>

<p>Elections—Primary—Nomination of Candidates.—Writ of mandate denied on the authority of Hart v. Jordan, ante, p. 321.</p>

<p>Receiver—Jurisdiction to Appoint—Prohibition.—Peremptory writ of prohibition issued on the authority of Elliott v. Superior Court, ante, p. 727.</p>

<p>APPLICATION for a Writ of Prohibition directed to the Superior Court of San Bernardino County and to S. P. Kelley.</p> <p>The facts are stated in the opinion in Elliott v. Superior Court, ante, p. 727.</p>