Volume 17 — California Appellate Reports

<p>Criminal Law—Postponement op Trial Without Good Cause— Dismissal op Indictments—Mandamus.-—The remedy by mandamus may be invoked to compel the dismissal of indictments pending against a defendant for a series of years, and which were continued for trial from time to time for more than sixty days after the filing of the indictments without good cause, and over the protest of the petitioner.</p> <p>Id.—Duty Besting upon Prosecution to Show Good Cause por Delay.—If there is any good cause for holding a defendant for trial for a longer time than that fixed by law without a trial, it is a duty resting upon the prosecution to- show it.</p> <p>Id.—Constitutional and Statutory Bight to Speedy Trial.—A defendant accused of crime has 'a constitutional and statutory right to a speedy trial, and section 1382 of the Penal Code provides: “The court, unless good cause to the contrary is shown, must order the prosecution to be dismissed: ... If a defendant, whose trial is not postponed upon his application, is not brought to trial within sixty days after the finding of the indictment, or filing of the information.”</p> <p>Id.—Statute a Construction op Constitutional Bight.—The statute is a .construction of the constitutional provision for a speedy trial so far as to indicate what is a reasonable time within which the case should be brought to trial in order that the constitutional guaranty may be kept; and it may be fairly interpreted to mean that this guaranty is violated where over sixty days are allowed to lapse without a trial, there being no good reason for the delay and the defendant not consenting thereto.</p> <p>Id.—Discharge of Prisoner upon Bail No Cause for Delay.—The constitutional guaranty of a speedy trial and the statutory provision against unexcused delay are not affected by the fact that the prisoner is discharged upon bail- and has not suffered by reason of the delay.</p> <p>Id.—Absence of Unsubpoenaed Witness from State No Excuse.— The absence of an unsubpoenaed witness from the state for a series of years, without any information as to when he would return to the state, cannot justify prolonged continuances of the trial for a series of years, without the consent of the defendant, where it appears that such witness left the state without concealment, and without any order of court requiring his attendance at any future trials.</p> <p>Id.—Showing Required as to Absent Witness.—In order to continue a trial on the ground of an absent witness it must be shown, not only that the witness is material, but that the party who applies therefor has been guilty of no neglect, and that the witness can be had at the time to which the trial is postponed, and these rules apply with ever-increasing rigidity where repeated continuances are asked for on account of the absence of such witness, and a stronger showing of diligence and certainty is required in support of each successive application.</p> <p>Id.—Possibility of Absence Due to Defendant.—If there were a showing that the absence of the witness was due to the action of the defendant, the maxim of jurisprudence would apply that “no one can take advantage of his own wrong,” and such a showing would be an ample justification for prolonged, if not indefinite, continuances in aid of a bona fide attempt to apprehend a defaulting witness, which would probably result in his return to the jurisdiction of the court. But no such showing is made or suggested to this court.</p> <p>Id.—Absence of Excuse—Peremptory Mandate to Dismiss Indictments.—It is held that the right of the petitioner is so clear, upon the law and the facts to the relief that he seeks that a peremptory mandate must be issued to the judge of the superior court commanding and directing him to dismiss all indictments pending against the petitioner.</p>

PETITIONS for writs of mandate to compel the dismissal of all indictments against each of the petitioners pending in the Superior Court of the City and County of San Francisco. Wm. P. Lawlor, Judge. The facts are similar to those stated in the opinion in Ford v. Superior Court, ante, p. 1.

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

Wm. H. Waste, Judge. The main facts are stated in the opinion in Tench v. Mc-Meekan, ante, p. 14. Further facts are stated in the opinion of the court in this case.

<p>CROSS-APPEALS from a judgment of the Superior Court of the City and County of San Francisco. Geo. A. Sturtevant, Judge.</p> <p>The facts are stated in the opinion of the court.</p> <p>Page, McCutchen & Knight, and Page, McCutchen, Knight & Olney, for Rialto Construction Company, Appellant and Respondent.</p>

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

<p>Promissory Note—Payment by Accommodation Indorser—Principal and Surety—Remedy—Assumpsit for Money Expended.—It is the settled law in this state that the remedy of an accommodation indorser who has paid the note is not by bringing an action on the note paid, but by counting upon the assumpsit which the law implies where a surety is compelled to advance money for Ms principal.</p> <p>Id.—Ambiguous Complaint—Absence of Demurrer—Support of Judgment.—Where the complaint is somewhat ambiguous and uncertain as to whether the plaintiffs are claiming on the note alleged to have been paid, or for the money advanced, and had the defendant raised the objection by special demurrer, the complaint might have been amended, so as to remove any ambiguity and uncertainty thereon, it will be deemed sufficient to support a judgment for the money paid.</p> <p>Id.—Code Pleading—Facts Set Out—Name Immaterial—Measure of Recovery.—Under our system of pleading, where all the facts of the transaction are s'et out, it can make but little difference as to the measure of recovery, in the generality of eases, whether it be said that an accommodation maker or indorser who has been compelled to meet the obligation of his principal is entitled to sue upon the note, with a recovery limited to the amount he has expended with legal interest, or whether it be said that his action is in assumpsit for money laid out on behalf of his principal, and that his recovery is measured by the amount he has so expended, with legal interest.</p> <p>Id.—Superfluous Finding—Sufficiency and Support of Other Findings.—It is held that a finding of the court that plaintiffs are the owners and holders of the promissory note, and are entitled to judgment against the defendant therefor, was superfluous and unnecessary, where the other findings of fact are supported by the evidence and are sufficient to support the judgment.</p> <p>Id.—Recovery for Money Expended—New Note to Sureties Unpaid. The plaintiffs, upon the facts stated, are entitled to recover for the money expended for their principal, although a new note was given to them by the principal in payment and extinguishment of the first note, and although the new note was unpaid at the time of the trial.</p> <p>Id.—Chattel Mortgage not Referring to Note Paid by Surety—Recovery for Money Paid not Precluded.—Where a chattel mortgage does not refer to the note paid by the surety, and if it was intended to secure such note, the security was extinguished by payment of the note, the former existence of such security would not preclude a recovery against the principal for the money paid, or require the plaintiffs to first seek relief under such chattel mortgage, as they would not be entitled to- such relief under the paid note.</p> <p>Id.—Allowance of Compound Interest—Amount of Recovery.—The plaintiffs having paid the note, with legal interest unpaid thereon to the date of payment, were entitled to recover legal interest thereafter on the amount paid, though it involvesi compound interest upon the interest so paid.</p>

<p>PETITION for writ of mandamus to the Superior Court of Santa Clara County. P. F. Gosbey, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

PETITION for writ of mandate to the Judge of the Superior Court of Monterey County. B. Y. Sargent, Judge. The facts are stated in the opinion of the court.

<p>PETITION for discharge on writ of habeas corpus to the .Sheriff of San Mateo County.</p> <p>The facts <are stated in the opinion of the court.</p> <p>Wm. Hoff Cook, Charles Steward, and Jas. A. Coogin, for Petitioner.</p>

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

<p>Mining Partnership—Sufficiency of Complaint as to Existence— Purpose not Alleged—Presumption—Understanding of Defendants.-—Where a complaint in an action against a mining partnership alleges that the defendants were a mining partnership engaged in working the mine described, and operating the same as such, the mere failure to allege the statutory element that defendants were working the mine "for the purpose of extracting the mineral therefrom,” though it might have been more specific in that respect, does not render the complaint insufficient. The pleader could safely presume that the defendants would in the exercise of common sense easily understand that that was the purpose for which the mine was being operated.</p> <p>Id.—Effect of Cessation of Work Without Agreement to Resume—Dissolution of Mining Partnership—Tenancy in Common.—If the mining operations ceased without any agreement or understanding that the work was to be resumed in future, the effect of such cessation, without any such agreement or understanding, was to dissolve the mining partnership ipso facto, and thereafter the parties would be merely tenants in common, and as such neither party would have power to bind the other by contract. There would no longer be any confidential relation between them.</p> <p>Id.—Effect of Creation and Continuance of Partnership—Presumption—Burden of Proof to Show Dissolution.—From the original creation and continuance of the mining partnership the presumption arises of its' continued existence, and the burden of proof is upon the defendants under a complaint averring its existence to show that the mining partnership had terminated before the alleged cause of action arose.</p> <p>Id.—Abandonment of Work Essential to Dissolution—Understanding, Express or Implied, to Resume Work in Future.—There must be an abandonment of the work before it can be said that the mining partnership is at an' end. If there was an understanding, express or implied, to resume work at a later date, the mere cessation of labor would not result as a dissolution thereof.</p> <p>Ib.—Support of Findings—Partnership not Dissolved—Liability of Partners for Plaintiff's Employment.—It is held from a review of the evidence that there is sufficient evidence to support the findings that the mining partnership had not been dissolved when, plaintiff was employed to take care of the mine during a temporary cessation of operations for the winter, without any notice of dissolution thereof, and with the intention of resuming operations; and that the mining partners were both liable for the debt created by the plaintiff’s employment.</p> <p>Id.—Variance in Proof as to Other Work Done not Alleged— Absence of Objection—Theory of Trial—Waiver.—Where the evidence shows that plaintiff agreed to do other work not alleged in the complaint, and no objection was made as 'to any variance in the proof, it must be held that the case was tried upon the theory that the evidence was within the issues, and it is too late to question it upon appeal.</p>

<p>APPEAL from a judgment of the Superior Court of Tulare County, and from an order denying a new trial. W. B. Wallace, Judge.</p> <p>The facts are stated in the opinion of the court.</p> <p>Bradley & Bradley, and Gray, Barker, Bowen, Allen, Van Dyke & Jutten, for Appellant.</p>

<p>PETITION for writ of review of an order of the Superior .Court of the City and County of San Francisco dismissing an appeal from the Justices’ Court. J. J. Van Nostrand, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Criminal Law—Assault With Deadly Weapon—Support of Verdict. It is held that under an information charging an assault with a deadly weapon, with intent to commit murder, the evidence, though conflicting, is sufficient to support the verdict of guilty of an assault with a deadly weapon against the. person of the complaining witness.</p> <p>Id.—Requested Instruction — Effect of Plea of not Guilty— Commonplace—Request Embodied in Charge.—A requested instruction that by the plea of not guilty entered by the defendant, “he has said that he is not guilty of the crime with which he is charged, or of any crime included therein,” only involves matter of commonplace; but it was properly refused, because embodied in the charge to the jury, that such plea “puts in issue every material allegation of the information, and makes it the duty of the prosecution, before a conviction can be had, to establish, to your satisfaction to a moral certainty, beyond and to the exclusion of a reasonable doubt, by legal and creditable evidence, each and every material fact essential to a conviction.”</p> <p>Id.—Request as to Presumption of Innocence—Proper Refusal.— It was not error to refuse a requested instruction as to the presumption of innocence, which merely states the doctrine in a slightly different form from that fully given in the charge of the court to the jury on that subject, which charge substantially includes the subject matter of the requested instruction, and makes it clear that the doctrine of the presumption of innocence of the defendant is a substantial one, which may not be arbitrarily disregarded by the jury in their consideration of the evidence, and that unless after such consideration they become satisfied of the defendant’s guilt beyond a reasonable doubt, they must acquit the defendant.</p> <p>Id.—Request as to Effect of Arrest and Charge—Proper Refusal. A requested instruction that “the fact that the defendant has been arrested and charged with an offense, and that an information has been filed against him, creates no presumption of guilt”’ was properly disallowed, as being embodied in the charge on the subject as to the presumption of innocence, and also that “the information is a mere accusation by the district attorney against the defendant, and is not to be considered by the jury as evidence, nor are you to infgr or presume the guilt of the defendant therefrom.”</p> <p>Id.—Bequest as to Distrust of False Witness—Refusal not Prejudicial—Charge Favorable to Defendant.—It is held that the court did not err to the prejudice of the defendant, in refusing an instruction as to the distrust of a false witness, where the instruction given to the jury on that subject by the court was more favorable to the defendant than the instruction refused, in stating that it was the jury’s duty to distrust the entire testimony of a witness who has been found to have sworn falsely in a material part thereof. It is held, on petition for rehearing, that an instruction in that form would not be prejudicial in any case, whatever the circumstances might be.</p> <p>Id.—Bule as to Bequests Embodied in Charge.—Where requested instructions are substantially embodied in the charge, the court is not bound to repeat them at defendant’s request. It is held that requests defining a deadly weapon, setting forth the law of justifiable homicide, and the law as to threats, and as to reasonable doubt, were all properly refused, because fully embodied in the charge of the court.</p> <p>Id.—Bequest as to Effect of Exhibiting Weapon in a Rude and Threatening Manner, Without Assault—Refusal not Prejudicial.—It is held that a requested instruction based on the theory that the only offense committed by defendant was in violation of section 417 of the Penal Code, to exhibit a weapon in a rude, angry and threatening manner, without an assault, might properly have been given, yet that the refusal to give it was not prejudicially erroneous, where the court instructed the jury to the effect that if the evidence failed to show an assault of any kind or character upon the complaining witness, it would be their duty to acquit the defendant. It is further held, in view of undisputed evidence, that if the rejected instruction had been given, it would not have affected or changed the verdict rendered.</p> <p>Id.—Evidence—Cross-examination of ' Defendant.—Where the defendant had testified in chief that the crowd arrayed against him were laboring men, including the complaining witness, and that he merely intended to frighten and scatter “the bunch,” the district attorney was entitled to weaken such evidence on cross-examination by showing his hostility toward the complaining witness, and that a majority of the onlookers were business men, having no hostility to the defendant, and it is held that there was no prejudicial error in such cross-examination.</p>

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

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

<p>APPEAL from a judgment of the Superior Court of Amador County, and from an order denying a new trial. Fred. V. Wood, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Criminal Law—Consent and Connivance to Plaoinq of Wife in House of Prostitution—Permission to Remain—Proof—Variance—Support of Verdict.—Where an information charged that the defendant did willfully connive at, consent to, and permit the placing and leaving of his wife in a house of prostitution, and that he did then and there willfully permit and allow her to remain therein, an objection that there was a variance in proof, because the evidence showed that the defendant directly placed his wife therein, is untenable, where there was further proof clearly supporting ■the charge that he permitted his wife to remain in such house.</p> <p>Id.—Sufficient Proof of Character of House.—The proof of the character of the house as a house of prostitution was sufficient. Several police officers familiar with the premises testified to its general reputation as being a house of prostitution, in which gaudily dressed Japanese girls were accustomed to sit and receive in their rooms the visits of Chinese men, and that during the time when defendant’s wife remained therein she and the woman keeper followed the calling of prostitutes.</p>

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

<p>Criminal Law—Burglary—Sufficiency of Information—Entering Tool-house of City — Location—Identification—Averment of Ownership Surplusage.—An information charging defendant with the crime of burglary by entering a tool-house of the city of .Los Angeles, “situated at Lemoyne street and Marcom avenue, in said city,” sufficiently describes the building feloniously entered. The alleged ownership of the building was immaterial, except as affording means of identification, which was sufficiently shown by the alleged location of the building. In the absence of proof that there was more than one building so located, the description of its location was sufficient, and the averment of its ownership was surplusage.</p> <p>Cd.—Instruction as to Proof of Ownership—Sufficient Proof by City Foreman.—Conceding that, by reason of an instruction, given at the defendant’s request, that in order to convict the defendant it was incumbent on the prosecution to prove, among other things, that the house alleged to have been feloniously entered was the property of the city of Los Angeles, as alleged in the information, it was necessary to make such proof, it is held that such proof was sufficiently made by the uncontradicted evidence of a witness shown to be the foreman of the city waterworks, that he, with other workers for the city, was constructing a water-tank for the city, and that the tool-house was constructed from material furnished by the city for the purpose of storing the tools used in the prosecution of such work.</p> <p>Id.—Conviction of Burglary in First Degree—Sufficiency of Proof —Entry After Sunset.—It is held that a conviction of burglary in the first degree is sufficiently sustained by uncontradieted evidence that the burglary was committed in the evening, after dark, which justified the conclusion of the jury that it was committed after sunset.</p> <p>Id.—Production of Codefendant Jointly Charged—Identification— Question—Absence of Prejudice—Instruction.—The production of a defendant jointly charged with the same offense for identification, and the asking by the district attorney of the foreman whether he had permitted him to enter the tool-house, to which no objection was taken, was without prejudice, where the court instructed the jury that they could not consider the identification of the codefendant as evidence of anything.</p>

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

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

<p>APPEAL from an order of the Superior Court of Santa Cruz County allowing defendant’s demurrer to an information for bigamy. Lucas P. Smith, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>State Land—Sixteenth Section—Survey Showins 642.24 Acres— True Affidavit—Good Faith—Full Payment—Bule of Approximation—Bight to Patent—Mandamus.—"Where an applicant to purchase a sixteenth section of state school land under a government survey, showing that it contained 642.24 acres, truly set forth that he applied for no state land exceeding that number of acres, and payment was made in good faith in full therefor, his successors are entitled to a patent therefor under the rule of approximation applied in the land department; and where the trial court had refused a writ of mandamus to compel the register of the state land office to issue the usual certificate to the governor for the issuance of a patent therefor, the judgment must be reversed.</p> <p>Id.—Policy of State—Attitude of Wrongdoer—Just and Liberal Interpretation of Statute.—Though it has not been the policy of the state to sell large tracts of land, but rather, on the other hand, it has been its policy to encourage settlers to live on state lands in small tracts, yet it is equally true that the state should not assume the attitude of a wrongdoer; nor should the letter of the statute be applied in favor of injustice, where it is possible by a liberal spirit of interpretation to reach a righteous conclusion.</p> <p>Id.—Peculiar and Persuasive Facts in Favor of Petitioners.—It is held that the facts are peculiar and persuasive in favor of the claim of the petitioners for the writ of mandate where it appears that the application to purchase the land was made more than twenty-five years prior thereto, that the requisite portion of the purchase price was then paid, and that for twenty-three years the interest on the residue was regularly paid and accepted by the state, at the expiration of which the final payment was made to the state; that there has been no contesting applicant, and no one has been wronged by the purchase, and that the excess over the 640 acres is so trifling as to be scarcely worth considering.</p> <p>Id.—“Bple of Approximation” in Land Department Applied Under State Law.—The well-known rule of approximation applied in the survey of sections by the United States land department, which was in force when section 3459 of the Political Code was amended, ought in justice to be applied thereunder, in view of the equities of this case and the conduct of the state officers during all these years.</p> <p>Id.—Principles of Equitable Estoppel Applied in Interpreting Statute.—Though it is not necessary to hold that the doctrine of equitable estoppel growing out of the conduct of its officers bind the state, yet it is held apparent that justice and good conscience, which are the foundation of that doctrine, should not be laid out of view in interpreting the statute, which should be construed in harmony with those equitable principles that are admittedly the basis of - our jurisprudence, and which are recognized as controlling all upright men.</p> <p>Id.—Right to Patent Distinguished from Application to Purchase. While the principle of a strict observance of the statute is commendable, as applied to the approval of an original application to purchase, yet where, after the approval of an application, the right to a patent has fully accrued, the case is very different, and must be governed by just and equitable principles and the patent should issue where justice so requires.</p>

<p>Estates of Deceased Persons—Appeal from Order Denying Partial Distribution to Devisee of Remainder—Vested or Contingent Estate—Intention Gathered from Will.—Upon appeal from an order denying partial distribution of an estate in remainder after the expiration of a life estate in the widow of the testator, on the alleged ground that the remainder is contingent, the decision of the question whether the remainder is vested or contingent must rest on the intention of the testator, which must be gathered from an interpretation of the language of his last will and testament viewed in the light of established and accepted canons of construction.</p> <p>Id.—Distinction Between Vested and Contingent Remainders.— A future interest is vested when there is a person in being who would have a right, defeasible or indefeasible, to the immediate possession of the property upon the ceasing of the intermediate or precedent interest; and a future interest is contingent whilst the person in whom or .the event upon which it is limited to take effect remains uncertain.</p> <p>Id.—Distinction as to Conditions Precedent or Subsequent.—The true criterion of a vested remainder is the existence in an ascertained person of a present fixed right of future enjoyment of the estate limited in remainder, which right will take effect in possession immediately on the determination of the precedent estate, irrespective of any collateral event, provided the estate in remainder does not determine before the precedent estate. But it does not necessarily follow that every estate which is subject to a contingency or condition is a contingent remainder. If the condition is precedent, the remainder cannot vest until the contingency has happened, and thereby becomes certain. But if the condition is subsequent the estate vests immediately, subject to be defeated by the happening of the condition.</p> <p>Id.—Test of Contingent Remainder.—It is the uncertainty of the right of enjoyment, and not the uncertainty of actual enjoyment, that renders the remainder contingent.</p> <p>Id.—Preference in Law for Vested Estates—Doubt to be Resolved in Their Favor.—The law prefers to consider future estates as vested; and courts will incline in doubtful cases to construe a devise or legacy as vested rather than contingent, .and will give the will that construction if its language will fairly admit of it. The courts have always regarded contingent estates with disfavor; and every interest will be presumed to vest, unless a contrary intention is clearly manifested. If there is the least doubt, advantage will be taken of the circumstances occasioning that doubt to hold that the remainder is vested, and not contingent.</p> <p>Id.—Words Expressive of Vested Remainder—Present Bequest upon Termination of Life Estate.—Where the words expressive of the estate in remainder are words of present devise and bequest, “upon the termination of the life estate,” the latter words relate only to the time of actual enjoyment, but the remainder is immediately vested.</p> <p>Id.—General Rule as to Words of Present Gift.—The use of words of present gift or of language which has the same import or effect is expressly recognized as operating, in the absence of other controlling circumstances, to create a vested interest or estate in the beneficiary in a remainder after the expiration of a life estate.</p> <p>Id.—Construction of Will—Vested Estate—Contingent Estate op Wife.—Where the will bequeathed all of the testator’s property to his wife for life, with remainder over to his sons named, in proportions for the time and upon the conditions expressed, and bequeathed to appellant, upon the termination of the life estate, certain parcels of real estate described, since the appellant was living at the death of the testator, the estate in remainder then became immediately vested in him, and a contingent estate in his wife, created by the will in ease of his death without issue, could only vest in her in case of his death without issue before the testator’s death.</p> <p>Id.—Language Creating Contingent Estate of Wife—Death of Son “Prior to the Vesting in Him” of Estate Devised.—The language of the will, “But should my son Marion die leaving no lawful issue, before the death of his wife, Minnie L. De Vries, and prior to the vesting in him of the estate, or interest so devised, then the property which I have already devised and bequeathed to said Marion shall pass to and vest in and become the property of said Minnie L. De Vries,” clearly expresses the intent that the property shall vest in him, if living at the death of the testator, and shall only vest in his widow at the testator’s death upon the contingency specified of the husband’s death before the death of the testator without issue prior to the vesting of the estate in him, which could only be prior to the testator’s death.</p> <p>Id.—Right op Appellant to Partial Distribution op Vested Remainder—Reversal.—It is held that the appellant, having a vested right in real property described in remainder, is entitled to a partial distribution of Ms estate therein, and an order refusing the same must be reversed.</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>Grant of Right of Wat foe Oil Products—Transfer of Water not Included.—A grant by the owner of the fee to an oil company to lay pipe-lines for the carrying of petroleum oil or its by-products, and telephone and telegraph lines to be used in connection with the operation and maintenance of said pipe-lines, over and along the property of the grantor, does not include any grant of the use of a pipe-line for the conveyance of water.</p> <p>Id.—Action for Injunction Against Dating Pipe-lines for Water— Denial of Temporary Injunction—Discretion.—In an action to enjoin the laying of pipe-lines for the conveyance of water, while it may be admitted if the facts as shown to the court upon an application for a temporary injunction had constituted the whole of the evidence upon a final trial of the action, a sufficient showing would be made to entitle plaintiff to an injunction to prevent water from being conveyed through the pipe-line; yet where there was evidence for the defendant that it was about to construct a pipe-line to be used in part for lawful purposes, it cannot be said that the court abused its discretion in refusing a temporary injunction to restrain the construction of the pipe-line.</p> <p>Id.—Absence of Showing of Insolvency.—Where it does not appear that defendant is insolvent or could not respond to a claim for any damages which might be caused to plaintiff by the commission of any of the acts complained of pending trial of the action, nor that any judgment which the court might finally make in .favor of the plaintiff would be rendered ineffectual because of the failure of the court to issue a temporary injunction, it cannot be said that the court erred in failing to grant the same.</p> <p>Id.—Sound Discretion of Trial Court as to Preliminary Injunction —Review upon Appeal.—The matter of the issuance of a preliminary injunction is one resting in the sound discretion of the court; and an appellate court will not interfere with the action of the trial judge in such a case, except where a palpable abuse of discretion is shown.</p>

<p>The facts are stated in the opinion of the court.</p> <p>Webster & Webster, T. H. Selvage, J. J. Cairns, and Webster, Webster & Blewett, for Appellant.</p>

<p>PETITION for discharge on writ of habeas corpus.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Appeal from Order Refusing Relief from Default—Failure to Prepare Bill of Exceptions—Discretion—Review upon Appeal.— Upon appeal from an order refusing to grant relief under section 473 of the Code of Civil Procedure, on the ground of mistake, inadvertence and excusable neglect in failing to prepare a bill of exceptions in time to be used upon appeal from an order denying a new trial, the order appealed from is a matter purely within the discretion of the trial court, and this court cannot interfere to review .the same, where it does not clearly appear that there has been a plain abuse of discretion.</p> <p>Id.—Suggestions of Advice to Trial Judges— Relief to Moving Party—Decision upon Merits—Rule as to Review of Discretion not Relaxed.—Though appellate courts have suggested, by way of advice to trial judges, that all doubts as to the propriety of their rulings upon applications for relief from default under section 473 of the Code of Civil Procedure should be resolved in favor of the moving party, for the reason that it tends to bring about a decision upon the merits, yet, notwithstanding this fact, the rule which prohibits interference by appellate courts with the decision of the trial court thereupon, save and except in case of an abuse of discretion, has never been relaxed.</p> <p>Id.—Attorney’s Ignorance of Statute as to Appeal from Order Denying New Trial Inexcusable.—The statutory provisions with reference to the procedure to be taken upon an appeal from an order denying a motion for a new trial are of such long standing, so fully set forth in the Code of Civil Procedure, and have been so frequently passed upon and construed by the appellate courts of this state, that ignorance of the time within which a statement or bill of exceptions must be prepared and served cannot be deemed the result of mistake or surprise or inadvertence, and the neglect to prepare and serve it within the time prescribed by the code is not excusable.</p> <p>Id.—Nature and Effect of Showing Made.—It is held that, upon the showing made in support of the application for relief under section 473 of the Code of Civil Procedure in this case, it not only cannot be said that the court failed to exercise a proper discretion, but that it may also rather be said that, had the ruling been otherwise, noninterference by this court would have strained the rule prohibiting interference with an order when it tends to give a hearing upon the merits of the case.</p>

<p>Action for Price of Hat Sold—Number of Tons Delivered—Support of Finding.—In this action to recover the contract price for 150 tons of hay sold and delivered by plaintiff to the defendant, it is held that the court’s finding as to the number of tons sold and delivered under the terms of the contract of purchase is supported by the evidence.</p> <p>Id.—Evidence—Written Contract Showing Tonnage—Execution by' Defendant’s Attorneys — General Objection — Waiver.—The court properly admitted in evidence a contract signed by defendant’s attorneys, tending to show the tonnage of hay sold and delivered, where the only objection to its introduction was the general one that the instrument was incompetent, irrelevant and immaterial, and did not specify the objection that it was not authorized by the defendant. Such special objection was waived, and cannot be urged for the first time upon appeal.</p> <p>Ib.—Contract by Lessees to Share Expense of Loading Landlord’s Share of Hay—Finding Against Claim of Defendant.—Where there was a contract between plaintiff’s assignor and defendant’s assignor as lessees of a ranch to pay the expense of loading the landlord’s share of the hay, and there was testimony tending to establish, the gross sum paid by defendant in handling all of the hay received by the defendant, but it cannot be determined from the evidence what portion, if any, of the amount paid by defendant should be applied to the cost of loading the landlord’s share of the hay, it is held that the court properly found that defendant’s claim that it paid the whole cost of loading the hay belonging to the landlord, and that it was entitled to charge plaintiff with one-half thereof, was untrue.</p>

MOTION to dismiss an appeal from a judgment of the Superior Court of Los Angeles County. F. E. Densmore, Judge presiding. The facts are stated in the opinion of the court.

MOTION to dismiss an appeal from a judgment of the Superior Court of Los Angeles County. Chas. Monroe, Judge. The facts are stated in the opinion of the court.

<p>APPEAL from a judgment of. the Superior Court of Santa Cruz County, and from an order denying a new trial. .Lucas F. Smith, Judge.</p> <p>The facts.are stated in the opinion of the court.</p>

<p>APPEAL from a judgment of the Superior Court of the County of Los Angeles. Charles Monroe, 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>Action fob Broker’s Commissions—Finding Purchaser for Land— Trial of Issue—Findings—Waiver of Objection upon Appeal.— Upon the trial of an action to recover broker’s commissions for finding a purchaser for the land of the defendant, where both the court and the parties regarded the question whether or not the plaintiff had procured a purchaser for the property in accordance with the contract authorizing the sale as the chief issue involved, and without objection both plaintiff and defendant introduced evidence on that question, and the court made findings for the defendant and rendered judgment in his favor thereon, the plaintiff cannot object, • upon appeal, for the first time, that there was no such issue to be tried.</p> <p>Id.—General Rule as to Finding Purchaser—Readiness to Comply With Expressed Terms.—As a general rule of law, where a broker employed to negotiate a sale of property has found a purchaser ready, able and willing to purchase upon the vendor’s expressed terms, the broker’s right to recover commissions does not depend upon the final consummation of the sale by the vendor. In such case, the agent has done all that he can do, and if the vendor under such circumstances refuses to complete the sale, he nevertheless will be compelled to pay the agent his commissions.</p> <p>Id.—Purchaser Unwilling to Comply With Expressed Terms—Half Cash and Half Mortgage—Small Deposit on Time—Forfeiture —Commissions not Earned.—Where the broker was expressly authorized solely to- find a purchaser for the expressed sum of $11,000, payable half in cash and half in one year, secured by mortgage on the property, and he found a purchaser willing only to make a deposit of $1,000, to be forfeited to the owner if the purchaser does not, within fifteen days, deposit the remaining $4,500 in cash, in which case the deposit is to be added thereto, and execute the note and mortgage, upon the purchaser receiving a certificate of one of two named title companies certifying to a satisfactory condition of the title, the broker had no authority to agree to such terms for the owner, and in the absence of an express acceptance thereof by the owner, the broker has not earned his commissions, and cannot recover the same.</p> <p>Id.—Sale for Cash not Inclusive of Credit.—A sale for cash is one wherein the money is to be paid immediately upon the delivery of the property sold. Under the terms of the memorandum authorizing the sale to be made by the plaintiff, the defendant had the right to insist upon the payment of the entire $5,500 and delivery of an executed note and mortgage as proposed, immediately upon tender of a sufficient conveyance transferring a good title to the buyer. To postpone such payment for a period of fifteen days was not “cash” within the terms of the authority given to the plaintiff.</p>

<p>APPEAL from a judgment of the Superior Court of the City and County of San Francisco, and from an order denying a new trial. G. A. Sturtevant, Judge.</p> <p>The facts are stated in the opinion of the court.</p> <p>Chas. F. Hanlon, Pringle & Pringle, and E. K. Taylor, for Appellant.</p>

<p>Criminal Law—Conviction or Embezzlement—Order Denying Motion in Arrest or Judgment not Beviewable.—No appeal lies in a criminal case from an order denying a motion in arrest of judgment; and upon an appeal from an order denying to the defendant a new trial after a conviction of embezzlement, and also an appeal from an order denying the motion of the defendant in arrest of judgment, the latter appeal cannot be considered.</p> <p>Id.—Beview or Order Denying New Trial—Absence or Prescribed Method—Form Used upon Appeal prom Judgment.—The code grants to a defendant in every criminal case an appeal from an order denying a new trial after judgment of conviction, although nowhere in the codes nor in the rules of the court is there to be found a prescribed procedure for the perfecting of such appeal. Yet where the record on such appeal is in the form prescribed by statute upon appeal from a judgment of final conviction, and shows in' full the proceedings and evidence in the lower court, up to and including the hearing of the motion for a new trial, it is held the duty of the appellate court to resort to that record and determine , the appeal upon its merits.</p> <p>Id.—General Rule as to Absence of Prescribed Method of -Appeal —Inherent Power of Appellate Court.—Where a court has been by the constitution invested with appellate jurisdiction in a particular class of cases, that court has inherent power in the exercise of its jurisdiction, and for the purpose of bringing before it a cause in which an appeal has been- granted, to adopt any appropriate and approved mode of procedure which may have been employed by an aggrieved party in the perfecting of his appeal, even though the legislature and the rules of this court have failed to prescribe the means or method of taking such an appeal.</p> <p>Id. — Venue of Offense of Embezzlement — Refusal to Return Money Intrusted upon Demand.—Where the complaining witness upon a charge of embezzlement testified that the embezzled money was intrusted to the defendant to be returned upon demand, and-testified to a demand in the city and county of San Francisco, the place of the venue, and the refusal of the defendant to comply with the same, such demand and refusal, with the evidence of the circumstances surrounding the same, were sufficient proof of the venue of the offense in such city and county.</p> <p>Id.—Prior Demand in Los Angeles—Question for Jury—Conclusive Verdict.—Though there was some evidence of a prior demand by the complaining witness in Los Angeles, such demand does not necessarily fix the venue of the action in that city. It was for the jury to determine where the specific and unqualified demand and refusal of the defendant took place; and it is held that the evidence upon the whole case was sufficient to warrant the finding of the jury implied from the verdict that the only demand and refusal occurred at the city and county of San Francisco, even if there was conflicting evidence upon that subject. The verdict of the jury thereupon is conclusive.</p>

<p>Criminal Law—Offense of “Cohabitation and Adultery”—Charge Against "Unmarried Man”—Insufficient Complaint—Habeas Corpus.—A complaint under section 2.69a of the Penal Code, as amended March 21, 1911, which charges an “unmarried man” with the crime of “cohabitation and adultery with a married woman,” states no offense against him. “Adultery” is defined in section 93 of the Civil Code as “the voluntary sexual intercourse of a married person with a person other than the offender’s husband or wife”; and since it is made to appear in the affidavit of complaint that the defendant was “not a married person,” it shows him incapable of committing the offense charged against him; and he is entitled to be discharged upon habeas corpus.</p> <p>Id.—Defendant not Charged as Principal Under Penal Code— Woman not Charged—Knowledge of Marriage not Stated.— The defendant cannot be treated as a principal offender with the married woman, under section 31 of the Penal Code, where the complaint does not purport to charge the married woman with any offense, nor does it appear therefrom that the defendant knew that she was a married woman. It is therefore held that, in no event, under the circumstances disclosed, can the complaint be said to state a public offense against the petitioner.</p> <p>Id.—Construction of Penal Code—Provision Inapplicable to Person Incapable of Committing Offense.—The opinion is expressed, though held unnecessary to the decision, that it manifestly was not the intent of the legislature, by said section 31 of the Penal Code, to declare a person guilty of aiding and abetting another in the commission of a crime, where such person, by reason of his status, is himself incapable of committing the offense.</p>

<p>Fire Insurance—Policies Procured by Broker—Power to Cancel not Implied—Express Power to Reduce—Action Binding Insured.—Although, as a general rule, the authority of a fire insurance broker tO' procure insurance policies in various companies to a specified amount terminates upon his procuring the policies required, and confers upon him no implied power to cancel any policy, yet express power to cancel may be conferred upon Mm by the insured by ordering the reduction of the insurance procured to a less total amount, and when shown, the broker’s acts and agreements, in that behalf, will be imputed to and are binding upon the insured, it being clear that the order for reduction could not have been executed except by canceling one or more of the policies negotiated.</p> <p>Id.—Cancellation of Particular Policy Before Fire—Acquiescence by Insured — Adjustment — Season — Conflicting Evidence.— Where the broker canceled a particular policy before the fire, and the insured recognized the fact that that policy had been actually canceled, and acquiesced in its surrender to defendant, after the fire, for the express reason that it had been previously canceled, and failed to include the same in his list of adjustable securities, it is immaterial that the insured denied having surrendered the policy for the reason stated by the broker as defendant’s -witness, since all conflict in the evidence must be resolved against the insured, as appellant, and in support of the verdict for respondent.</p> <p>Id.—Cancellation not Affected by Nonsurrender to Defendant Before Fire.—The contention of appellant that the policy cannot be considered as canceled merely because it was not formally and physically surrendered into the possession of the defendant prior to the fire is held to be without merit. The contract of insurance may be as readily rescinded as it was made by the mutual agreement of the parties, or their authorized representatives; and the final surrender of the policy is not necessary to a rescission and cancellation of the contract, but is at best a piece of evidence tending to show a cancellation. If .the fact of rescission is shown by the agreement of the parties, it is as complete and effectual as if the policy had been actually indorsed “canceled” and surrendered into the possession of the defendant.</p> <p>Id.—Construction of Contract of Insurance—Intention of Parties. A contract of insurance must be governed and interpreted by the same rules which ordinarily apply to other contracts, and it will be enforced only according to the manifest intention of the parties.</p> <p>Id.—Proper Instructions as to Cangellation.—The court properly instructed the jury that, if they found from the evidence that the broker was directed- to cancel any particular policy, he would be bound by the direction; but that, if they found that he was given a general, unqualified order to cancel so much of the insurance ordered as might be necessary to reduce it to a specified sum, then his designation of the policy or policies to be canceled would be binding upon the plaintiff; and that if the minds of the parties had met upon the subject of cancellation, it was not necessary to a valid- cancellation of the policy in suit that it be physically delivered and surrendered to the defendant prior to the fire.</p> <p>Id.—Proper Refusal of Plaintiff’s Request—Ignorance of Execution of First Order at Time of Order to Reduce.—The court properly refused an instruction requested by the plaintiff which required a verdict for the plaintiff, if the jury found that plaintiff did not know that the broker had already executed the order first given, when the order to- reduce the insurance was given. The record shows no effort of plaintiff to be informed on that subject, and his knowledge or lack of knowledge thereupon could not alter the situation or modify the duties and responsibilities of the parties under the absolute and unqualified order by plaintiff to reduce the amount of insurance first ordered.</p> <p>Id.—Evidence — Conversation Between Broker and Defendant’s Manager as to Cancellation of Policy.—The court properly admitted evidence of a conversation had between the broker, who was plaintiff’s agent, and the manager of the defendant, with reference to the cancellation of the policy in controversy, tending strongly to show that the policy had been actually canceled before the fire.</p>

PETITION for writ of mandate to the city clerk of the city of Long Beach. The facts are stated in the opinion of the court.

<p>Lease of Ranch from Life Tenant—Death of Life Tenant After Maturity of Ungathered Crop—Right of Lessee to Emblements.—Where the lessee of a ranch from a life tenant for a share of one-half the crop had done all of the labor upon the crop for the preceding year, which had matured, and was ready to gather at the death of the life tenant, the lessee is entitled, as against the remainderman, to his one-half share of the gathered crop, by what is termed the doctrine of emblements, the basis of which is the assuring to the life tenant the compensation for his labor, and the encouragement of husbandry, as a matter of public policy.</p> <p>Id.—Construction of Lease by Remainderman Before Gathering of Crop.—The subject of a lease for the following year, executed by the remainderman and dated over a month before the gathering of the matured crop under the lease from the life tenant, which by its terms expired thereafter, which new lease extended according to custom from May 1st to May 31st of the following year, did not include the previous crop then matured and subsequently gathered by the lessee of the tenant for life, but only included the crop for the subsequent year, of which the lessee is entitled to one-half. The contract cannot be so interpreted as to deprive the plaintiff of any compensation for labor performed by him in the care and cultivation of the orchard leased.</p> <p>Id.—Action to Recover Share of Crop for Subsequent Tear—Defense That Lease was for Prior Crop—Evidence—Proper Rulings.—In an action by the lessee of the remainderman to recover one-half of the crop for the subsequent year, where the defense was that the contract of lease related only to the crop of the previous year picked in June following the lease from the remainder-man, it was not error to overrule objections' of the defendant to questions relating to plaintiff’s possession and occupancy of the crop for the previous year under the lease given him by the life tenant, urged on the ground that such questions were outside of the issues.</p> <p>Id.—Evidence to Remove Uncertainty or Ambiguity.—If there was any uncertainty or ambiguity in the contract, or in the application of the same, it was competent for the plaintiff, in aid of its interpretation, to show the situation of the parties and the surrounding circumstances as they existed when the contract was made. It was proper for the court to allow evidence that the plaintiff was in possession of the premises from the time that the crop of oranges under the life tenant was set until the time when they were picked.</p> <p>. Id.—Language of Court in Ruling upon Evidence not Improper. The language of the court in overruling the objections to plaintiff’s evidence and in stating the right of plaintiff to show the condition under which, the first crop of oranges was made, that “it certainly cannot be that this plaintiff should be required to be content with accepting and receiving a crop he was already entitled to at the time of making the lease, unless- there is some stipulation or understanding by the lease that that was to be so,” was proper and embodied a correct statement of the law, and- could not constitute misconduct.</p>

<p>Action to Recover Bank Deposit—Defense—Payment Under Execution from Justice’s Court—Evidence—Error in Excluding Justice’s Docket.—In an action to recover a bank deposit, in which the defense was pleaded that the deposit was levied upon under execution from a justice’s court, and that payment of the same was made to the constable levying the writ, it was error for the court to exclude the justice’s docket, which is prima facie evidence of the facts stated, and is required to show the title of the action, which would disclose whether the plaintiffs were defendants in the justice’s court, and also the amount of the claim, a minute of the pleadings, and the judgment of the court, which was a necessary part of defendant’s preliminary proof.</p> <p>Id.—Additional Proof — Service of Summons—Loss—Evidence of Justice’s Clerk—Error.—In addition to the justice’s docket, proof was required, in support of the judgment rendered by the justice, to show that service had been made of the summons. Where it appeared that there was no summons on file in the justice’s court, and that it had been lost, the justice’s clerk was a competent witness by whom to prove the issuance and service thereof, and the court erred in excluding questions as to whether he knew that the summons was issued, and as to the contents of the summons.</p> <p>Id.—Findings Bblativb to Defense — Unsupported Finding as to Nonidentity of Parties—Idem Sonans.—Where the court found in relation to the defense pleaded in the answer that an action was brought in the justice’s court against “Geo. Christe and Geo. Perkochin,” that judgment was rendered therein and execution issued thereon, and that the defendant paid to the constable the amount of the plaintiffs’ deposit, but found against the identity of the parties, and that the defendants in that action were not the plaintiffs in. this, it is held that the latter finding is unsustained by proof that the names of defendants therein were spelled “Christe” and “Prkaehin,” while the true names of the plaintiffs are spelled “Kriste” and “Perkaein,” since the names so differently spelled are of such similar sound as to make the rule of idem sonans applicable.</p> <p>Id.—Finding Against Identity Wholly Unsupported—Absence of Evidence by Plaintiffs—Justice’s Becokd Prima Facie Evidence.—Where there is no evidence on behalf of plaintiffs to show that they were not the same persons as those sued in the justice’s court, and the justice’s record is prima fade evidence that the parties were the same, the finding of the court that the parties were not the same is against the evidence, and wholly unsupported.</p> <p>Id.—Objection to Pleading of Defense upon Appeal—Waiver.--Where no objection appears from the record on appeal to have been taken in the trial court as to the sufficiency of the answer of the defendant whenever the judgment of the justice’s court was attempted to be pleaded, and it seems to have been treated by all parties as a sufficient statement of the facts therein set out, the respondents cannot urge for the first time upon appeal that this plea was insufficiently alleged.</p> <p>Id.—Deposit of Indorsed Time Checks by Plaintiffs in Defendant Bank—Delay to Give Notice of Dishonor—Liability of Bank.' Where plaintiffs were the indorsees of negotiable time-cheeks, deposited in defendant bank, and by its delay of over one month in giving to plaintiffs notice of their dishonor they lost their right to proceed against their indorser, the owner of the paper has been prima fade injured to the amount of the face of the paper, founded on the presumption that the indorser was solvent. If the fact is otherwise, it may be shown in reducing the damages.</p>

<p>Appeal—Certification of Transcript—Papers not in Judgment-roll —Duty not upon Clerk.—Upon an appeal where papers not included in the judgment-roll are required upon appeal, no duty is imposed upon the clerk to certify them.</p> <p>Id.—Order Setting Aside Default not Appealable.—An order of the superior court setting aside a default is not an appealable order.</p> <p>Id.—Mandamus Properly Denied.—No mandamus will be allowed to compel the clerk to do a duty not enjoined upon him by law, nor in aid of a nonappealable order.</p>

<p>Prohibition—Eight op Appeal prom Superior Court.—A writ of prohibition will not be issued by the district court of appeal where it affirmatively appears from the petition for the writ that a proceeding in prohibition involving the same matter was instituted in a superior court within the appellate district, and the writ was there denied, which judgment has not become final, the time for appealing therefrom not having elapsed.</p> <p>Id.—Jurisdiction op Appellate Court in Prohibition.—Under the constitution this court has appellate jurisdiction in prohibition; and while it also has original jurisdiction therein, it will not exercise the same, where the petitioner possesses the right of appeal from a judgment had in the superior court where the original proceeding was commenced.</p> <p>Id- '—Application op Bule as to Prohibition.—Under rule XXVI of the supreme court, this court will not issue writs of prohibition in the absence of some showing rendering it proper that the writ should issue from this court; and it is held that, under the circumstances of this case, this court should refuse to issue the original writ.</p>

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

<p>Benefit Societies—Fraternal Order—Beneficiary Certificate—Condition for Payment of Dues—Forfeiture for Nonpayment.— Where by the laws of a fraternal order of which deceased was a member, and from which he had obtained a beneficiary certificate payable to the plaintiff, as well as by the terms of his application therefor, each member was required to pay all assessments and lodge dues on or before a designated day in each month, and by nonpayment, the beneficiary certificate was to stand suspended, without action on the part of the lodge or any officer thereof, the failure of such member to pay the monthly assessments and dues on or before the designated day ipso facto forfeited all rights under the beneficiary certificate. The application for the indorsed certificate was part of the contract.</p> <p>Id.—Failure of Member to Pay Dues for Six Months—Order of Suspension—Validity Immaterial — Forfeiture of Certificate not Affected.—Where by the laws of the order a member was to be suspended upon his failure to pay monthly dues for a period of six months, and an order of suspension was made thereunder, it is immaterial to inquire as to the validity of such order of suspension upon an appeal involving only the forfeiture of rights under the beneficiary certificate, which is unaffected by such order of suspension.</p>

<p>Amendment op Judgment—Power op Court—Materiality op Amendment—Mandamus to Settle Exceptions—Question por Determination.—The superior court has power to amend a judgment at any time as to immaterial matters occasioned by inadvertence; but this power does not exist, if the amendment should materially affect the rights of litigants objecting thereto. Upon an application for a mandamus to compel the settlement of a bill of exceptions upon an amendment to the judgment, the question for determination is as to the materiality of the matters involved ini the amendment, as affecting the rights of objecting litigants.</p> <p>Id.—Better Practice op Trial Court—Policy op Law to Protect Bight op Appeal.—When the trial court is in doubt as to the right of a party to have a bill of exceptions or statement settled, for an assigned reason, the better practice is for the trial court to sign the bill of exceptions or statement, subject to objections thereto, the evidence in support of which should be incorporated in a bill of exceptions, so that the appellate court may be placed in a proper position to determine whether the objection is well taken. This rule is based upon the policy of the law to protect the right of appeal.</p> <p>Id.—Peremptory Mandamus Granted to Protect Bights op Appellants.—It is held that the rights of all parties will be best sub-served by the trial court signing the bill of exceptions presented, to the end that the whole matter involved may be submitted to this court upon appeal, by presenting before it all the pleadings, reports, and judgment, an inspection of which will enable the court to determine the questions involved, and that a peremptory mandamus will issue to that effect as prayed for.</p>

<p>Restoration op Burned Record—Decree op Distribution—Rights op Divorced Widow—Apparent Interest.—Where a decree of distribution following the terms of a will distributed certain real property to a son, as sole heir of the testator, for life, with remainder to his two named children, “provided, that, in ease of his death before his wife Eugenia, she should have during her natural life, and while she remained his widow,” certain specified income, and the decree was destroyed by the fire of April, 1906, it is held that such designated wife, after her husband’s death, has such apparent interest in the burned record as entitles her to restore the destroyed record, regardless of the question whether by her divorce from her husband prior to his death she has by her conduct lost the rights thus given her.</p> <p>Id.—Purpose and Eppect op Restoring Destroyed Record.—The purpose of the proceeding to restore a destroyed record, permitted by statute, is to have conclusive evidence of the contents of the record,' and thus dispense with the necessity of resorting to secondary evidence in any litigation that may arise to enforce rights or obligations established thereby, or in other cases where resort to it is usual or necessary. The sole object of the proceeding is to restore the record, and the ends of justice would not be promoted by complicating it with other issues; but it is proper that the record should be restored, and thus put the parties into a position to litigate their differences precisely as if the record had not been destroyed.</p> <p>Id.—Power op Court to Restore Record—Abuse op Discretion not Shown.—It is held that, under the circumstances of this case, and in view of the facts that the court had power of its own motion to restore its own records, and that the sole object of the statute is to restore the record as it existed, and also that, as a rule, the regularity or legal effect of the record will not be considered, there is no reasonable theory upon which it can be said that the trial court in restoring the record abused its discretion.</p>

<p>APPEAL from a judgment of the Superior Court of Lake County, and from an order denying a new trial. Thos. J. Lennon, Judge presiding.</p> <p>The facts are stated in the opinion of the court.</p> <p>Theodore A. Bell, John T. York, and Charles A. Shurtleff, for Appellants.</p>

<p>Corporation—Complaint by Stockholders—Demurrers Sustained— Judgment — Appeal — Argument — Absence op Respondent’s Brief.-—In an action by the stockholders of a corporation in its behalf to recover for alleged fraud of the defendants upon the corporation, where general and special demurrers to the complaint were sustained, and final judgment was entered thereupon, and upon appeal therefrom appellants filed their brief, but the respondents presented no argument, it is held due to the reviewing court that counsel for both sides should' aid' the court with their points and authorities, and that where plaintiffs were sent out of court upon their pleadings, without a hearing upon the merits, the counsel for the adversary parties should state the grounds of their assault on the complaint, and not throw all the responsibility on this court unaided by an argument on their behalf.</p> <p>Id.—Gatjse of Action—Conspiracy to Defraud Corporation—Misappropriation of Money—False Credits—Fraud in Stock—General Demurrer Improperly Sustained.—Where the complaint of the stockholders avers a combination and conspiracy of the defendants to defraud the corporation by electing directors who were subservient to their will, and to dictate all their acts in the interests of defendants and have thereby caused a misappropriation of $94,000 of its funds to them, and the entry of false credits in their favor of $49,000, and that while owning only 50,000 shares of its stock, they have fraudulently caused to be entered on the books in their favor 400,000 shares thereof, and seeks an accounting against the defendants in favor of the corporation, the return thereto of said money misappropriated, and the cancellation of such false credits, and of 350,000 shares of its stock, and an injunction to prevent the fraudulent use thereof, it states a cause of action in favor of the corporation against the defendants, and a general demurrer thereto was improperly sustained.</p> <p>Id.—Question of Parties — Directors — New Parties to Amended Complaint — Leave of Court — Presumption — Practice.—It is held that, in so far as it appears that the personnel of the board of directors has not been changed under the alleged control thereof by the defendants, complete relief cannot be afforded without their being brought in as codefendants. Where it is objected that new parties plaintiff and defendant were joined in an amended complaint without leave of court, it must be presumed upon appeal that the amended complaint was filed by leave of court; and, as it supersedes the original, the objection cannot be raised upon special demurrer to the complaint, but only on motion to strike out.</p> <p>Id.-—Misjoinder of Causes of Action not Shown—Gist of Action— Acts Done Pursuant to Conspiracy—Grounds for Belief in Equity.—It is held that a special demurrer for misjoinder of causes of action was improperly sustained; the alleged conspiracy is not of the gist of the action, but it is the acts done pursuant thereto which constitute the cause of action for relief in equity. A court of equity may, in the same action by stockholders, grant relief against the fraudulent misappropriation of the money of the corporation by the defendants, and against other acts of fraud, including the fraudulent issue of stock by the defendants charged with such misappropriation, and grant an injunction to prevent similar acts which are part of a common design. The relief granted may be as varied and diversified as the means employed by defendants to produce the grievance complained of.</p> <p>Id.—Time of Acquisition of Stock by Plaintiffs Immaterial to Cause of Action.-—Where the complaint shows that both of the plaintiff stockholders were owners of stock of the corporation prior to the commencement of the action, though one of the plaintiffs is shown to have owned 1,900 shares of stock since two years prior thereto, and the date of the acquisition of the stock of 100 shares by the coplaintiff does not appear, it is held that both plaintiffs have the right to prevent the payment of fraudulent credits shown to stand on the company’s books in favor of the defendants, and to compel a return to the corporation of money fraudulently appropriated by the defendants, even though they may have acquired their shares subsequent thereto.</p> <p>Id.—Complaint not Ambiguous—Control of Corporation by Directors at Time of Acts Complained of.—It is held that the complaint is not ambiguous in not showing that defendants owned a majority of the stock at the time of the commission of the acts complained of, nor because it does not show who were directors at that time, where it sufficiently shows that they then appeared on the books of the corporation to be such owners and thereby had the means of control from their relation to the corporation, and also that the defendants actually controlled its entire board of directors at all times since the corporation was organized.</p> <p>Id.—Certainty in Pleading—Pacts Best Known to Defendant— Less Certainty Required.—It is held that the complaint is sufficiently certain in its averments as to the manner in which and the times when defendants misappropriated and converted to their own use the money wrongfully withdrawn from the corporation, but that the case is one where the defendants practically constituted the managing body of the corporation, and must have had full knowledge of all the facts which they insist plaintiffs should have alleged, though not in a position to ascertain them; and that less certainty is required in the allegations of the complaint, where the facts are such as to which the plaintiffs cannot, from their nature, have as full information as the defendants.</p>

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

<p>Appeal prom Judgment—Action op Replevin—Value op Property —Jurisdiction in Supreme Court.—Upon appeal from a judgment, in an action for replevin, where it appears that the property involved is of the alleged value of $6,000, and judgment is asked for that sum in ease a delivery cannot be had, the supreme court has exclusive appellate jurisdiction of such appeal, and when such appeal was improperly taken to this court, the cause must be transferred to the supreme court.</p> <p>Id.—Test op Jurisdiction—Ad Damnum Clause op Complaint—Limited Jurisdiction op Appellate Court.—The test of jurisdiction is the ad damnum clause of the complaint. The jurisdiction of the ' appellate court is limited to cases where the value of the property in controversy is not less than $300 and does not amount to $2,000.</p>

<p>APPEAL from the Superior Court of San Joaquin County. C. W. Norton, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Criminal Law — Fraudulent Transfer and Concealment of Property—Intent to Defraud Creditor—Support op Verdict.—Where the defendant was convicted of the crime of fraudulently conveying, assigning and concealing his property with intent to defraud a creditor named of a large sum of money, as prohibited in.section 154 of the Penal Code, it is held that considering all of the facts and circumstances in evidence, it was very clearly established that the intent of the defendant was to dispose of his stock of jewelry, and leave his creditors without any means of satisfying his debts, and that the verdict of conviction was upon sufficient evidence.</p> <p>Id.—Joint Notes—Transfer of Business to Father—Legality not Shown—Conduct of Defendant and Creditor—Instructions— Review upon Appeal.—Where joint notes representing part of the debt were signed by defendant and his father, and defendant transferred the business to his father, without proof in the record of a legal transfer, and the debtor charged the notes to the father, yet, as the defendant continued thereafter to conduct the business as his own, and acknowledged the notes as his debt, and the creditor then looked to him for payment thereof, it is held that this court cannot review any error in the instruction based upon such transfer to the father.</p> <p>Id.—Absence from State of Subpoenaed Witness—Deposition at Preliminary Examination—Discretion—Review upon Appeal.— Where a. witness was subpoenaed to appear at a date fixed for trial, and the trial was continued, and the witness announced his intention to leave the state, and he was last heard from in another state, and did not afterward appear in the county of the venue, the trial court might conclude from the facts that such witness could not with due diligence be produced at the trial, and admit in evidence his deposition taken at the preliminary examination of the defendant. The trial judge had discretion in determining whether a sufficient foundation had been laid for admitting such deposition in evidence, and where there is any evidence to support his conclusion, his ruling cannot be disturbed upon appeal.</p> <p>Id.—Sale of Jewelry at Auction—Testimony of Auctioneer—-Refreshing Recollection—Date of Check to Traveling Salesman. Where the defendant sold most of the jewelry at auction, there was no prejudicial error in allowing the auctioneer to refresh his recollection as to the date of sale by the date of a cheek given to a traveling salesman, while he was engaged in selling the stock of jewelry, which check was then dated ahead ten days, after a controversy between them. The jury could not have reasonably drawn any inference unfavorable to defendant from the occurrence testified to by the auctioneer, and the ruling allowing oral testimony as to the contents of the check, if erroneous, was without prejudice.</p>

<p>Criminal Law—Commission op Lewd and Lascivious Acts With Child—Support op Verdict—Review upon Appeal—Question op , Law.—Where defendant was convicted of the crime defined in section 288 of the Penal Code, in willfully committing lewd and lascivious acts with a young girl eight years of age, and the sole contention of the defendant upon appeal is that the evidence was insufficient to justify the verdict of the jury, it is held that that question can only be reviewed upon appeal when there is an entire absence of evidence tending to support the verdict, so as to raise only a question of law.</p> <p>Id.—Question op Fact—Conclusiveness op Verdict.—When the evidence which bears against the defendant, considered by itself, and without regard to conflicting evidence, tends to support the verdict, the question ceases to be one of law, of which alone this court has jurisdiction, and becomes one of fact, upon which the decision of the jury and the trial court is final and conclusive. Under this rule, the sole question is whether the evidence offered by the prosecution, none having been introduced by the defendant, tended to support the verdict. It is held, upon a review of the evidence, the jury having promptly found the defendant guilty as charged, this court cannot say that it was not justified in its conclusion, and the verdict cannot be disturbed.</p>

<p>Lease op Pumping Plant—Action por Rent—Measure op Rights— Lessee not Bound to Install Plant—Absence op Warranty.— In an action to recover a balance due for rent, under a lease of a pumping plant, the rights of the parties are to be measured by the terms of the lease, which imposed no duty upon the lessor to install the plant, for the use of the lessee, it appearing that the only covenant therein was for an option to purchase for a stipulated sum, and that it contained no covenant warranting the efficiency of the engine or the capacity of the pump. It is held that if plaintiff installed the pump, his act, so far as shown by the record, was voluntary, and without consideration, or pursuant to some agreement not pleaded; and that if the plant, when installed, failed to do the work the lessee expected it to do, he cannot complain after failing to exact a covenant of warranty.</p> <p>Id.—Compliance of Plaintiff With Terms of Lease—Finding—Repairs — Conversion — Substantial Compliance.—The only question is whether plaintiff performed the covenants imposed upon him, which the court, upon sufficient evidence, found that he did. Where defendant claimed a failure of such compliance on plaintiff’s part, by not delivering eighty feet of casing, but only sixty feet, it is held that if the claim were well taken, it would still, under the facts shown by the record, be a substantial compliance with the terms of the lease. But where the evidence shows a clear delivery of eighty feet, which were retained until near the close of the term, when, owing to the complaint by the lessee that the plant was not working satisfactorily, the plaintiff, at defendant’s request, reduced the casing to sixty feet, in the nature of repairs, expecting the plant to work better, to which no objection was made until after the end of the term, any liability arising from the conversion of the extra twenty feet, near the close of the term, by plaintiff, cannot be said to show a lack of substantial compliance by plaintiff with the terms of the lease.</p> <p>Id.-—Evidence—Contemporaneous Writing not Pleaded—Relevance not Shown — Proper Exclusion.—A contemporaneous writing claimed to have been signed by the defendant, when the lease in question was signed, which was not pleaded by the defendant, and which does not tend to show on its face, and is not proven to have, any connection with the transaction in question, or to be relevant to any issue involved, was properly excluded.</p>

<p>Appeal prom Judgment—New Method—Notice of Entry not Shown —Review of Insufficiency of Evidence.—Where an appeal is taken from the judgment within six months after the entry of the judgment, under the new or alternative method provided in sections 941a and 941b of the Code of Civil Procedure, and the record does not disclose that any notice of the entry of the judgment has been served, the appeal appears to have been taken in due time; and the appellant is entitled, under section 941c, to have a review of the sufficiency of the evidence to support a finding, with the same effect as is provided in case of an appeal taken under section 939 of such code, within sixty days after the entry of the judgment.</p> <p>Id.—Duty of Respondent to Prove Notice of Entry.—Where the respondent on appeal from the judgment to the district court of appeal objects to any review or consideration of the evidence on the ground that the appeal had not been taken within sixty days after notice of the entry of the judgment, it is his duty to furnish proof of the service of the notice to that court, which would have prevented a review of the evidence on such appeal. (By the Court in Bank, on Petition for Rehearing.)</p> <p>Id.—Relief of Respondent After Judgment not Allowed on Petition for Rehearing in Bank.—If the respondent desires relief after judgment in the district court of appeal from the consequences of his omission to supply proof of a service of the notice of entry of the judgment, which he offers upon a petition for rehearing in bank, he should have sought that relief in the district court of appeal having original jurisdiction of the appeal, and of all questions essential to its decision; and the court in bank cannot sanction such irregular practice. (By the Court, in Bank, on Petition for Rehearing.)</p> <p>Id.—Express Contract for Work and Material—Construction of Storeroom — Unauthorised Change bt Architect — Finding Against Evidence.—Where the plaintiff performed work and furnished material under an express contract with the owner of a building to construct a storeroom, it is held that a finding that the terms of such written contract were altered to day’s work by an agreement between plaintiff’s foreman and the architect of the owner is against the evidence, where it clearly shows that such architect had no power to bind the owner by such agreement.</p> <p>Id.—Absence of Implied Power of Architect to Change Contract. An architect who is employed by the owner of a building to draw the plans and specifications for a storeroom, in accordance with which the work of fitting it up was to be performed, and to superintend the work and see that it is performed in compliance with such plans and specifications, has no implied power to change or alter the terms of a contract made with the owner to perform it expressly according to such plans and specifications.</p> <p>Id.—Burden to Establish Novation not Sustained—Assumed Power of Architect not Binding or Estopping Owner.—The burden to establish the novation of a contract is upon the party asserting its existence. Though the evidence of plaintiff’s foreman is sufficient to bind the plaintiff in relation thereto, yet as the defendant personally was not a party to the contract of novation, he could not be bound thereby, unless it is made to appear that he had authorized the architect to assent thereto; but it is held that there is an entire absence of evidence tending to establish such authority, or to estop the defendant from disputing his assumed authority.</p>

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

<p>Election Contest—Office of City Marshal—Statement Showing Termination—Dismissal of Appeal.—Where an election contest involving the office of a city marshal was brought to this court upon appeal, and it appears from a statement in writing signed by the attorneys for appellant that the respondent plaintiff has voluntarily resigned the office -of city marshal to which he was declared elected, and that the defendant appealing has been appointed by the board of trustees of the city to fill the vacancy, which office he now holds, and it appearing therefrom that the public can have no interest in the result of the appeal, and appellant having consented thereto, the appeal will be dismissed.</p>

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

MOTION to dismiss an appeal from a judgment of the Superior Court of Los Angeles County. George E. Church, 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>Venue—Order Denying Change—Review upon Appeal—Objections to Record—Omissions not Fatal—Transcript Certified,—Upon appeal from an order denying a motion for a change of venue, based on the convenience of witnesses and the ends of justice, a hearing thereof upon the merits will not be denied on the ground that the appeal, which was taken under sections 953a, 953b, and 953c of the Code of Civil Procedure, does not show a service of the notice of appeal, nor that an undertaking to pay the cost of the transcript was given, nor that there was any notice and request for a transcript, where it appears that the requisite transcript was written out in longhand by the appellant, and that the same was properly certified and authenticated by the judge, and is before this court for its consideration.</p> <p>Id.—Appeal Under New Method—Presumption of Notice of Presentation of Transcript—Service of Notice of Appeal or Cost Bond not Required.—Where an appeal is taken under the new method, it is to be presumed from the fact of the judge’s approval of the transcript, in the absence of any showing to the contrary, that the clerk gave the attorneys appearing in the cause the requisite notice that the transcript had been filed, and that within five days after such notice it would be presented to the judge for his approval. In the ease of such appeal, the service of the notice of appeal upon the adverse party or his attorney is not essential, nor is any cost bond thereon required.</p> <p>Id.—Refusal to Change Venue for Convenience of Witnesses— Abuse of Discretion.—The order refusing to change the place of trial for the convenience of witnesses, in the interest of justice, is held to be an abuse of discretion where it clearly appears that the county to which the change is asked will best accommodate all of the witnesses to the accident which resulted in the injury to the plaintiff, and all can be reached by subpoena therefrom, which could not be so reached from the place of the residence of the defendants, and that a far more speedy trial can be had in such other county than in the city and county of San Francisco, where defendants reside, and to which the action had been removed on their demand, and where the showing made by plaintiff is not controverted and there is practically no legal showing in opposition thereto by defendants.</p> <p>Id.—Conclusions in Counter-affidavit for Defendants.—The statement in the counter-afiidavit for defendants that certain witnesses in San Francisco “are necessary and material for the defendants,” involves a conclusion of law. Another statement therein to the effect that defendants expect to disprove the statements contained in plaintiff’s affidavit, and to prove that the accident was caused by the negligence of the plaintiff himself, and not by or through the negligence of the chauffeur of the defendants, is a mere conclusion of the affiant.</p> <p>Id.—Proposed Testimony of Nonexpert as to “Apparent Condition of Plaintiff.”—The proposed testimony of a nonexpert witness who saw the plaintiff after the accident and “can testify as to his apparent condition previous to the time the doctor arrived, and that plaintiff was not injured as badly as he claims to have been,” can have but little, if any, tendency to show his real condition, or the extent of his injury, where it would not be obvious to the common mind, but involves only the opinion of such nonexpert witness, without the statement of any material fact upon which the opinion was based.</p> <p>Id.—Proposed Immaterial Testimony as to Skill and Efficiency of Chauffeur—Question of Negligence and Proximate Cause. The proposed testimony of many San Francisco witnesses as to the skill and efficiency of the chauffeur of the defendants, who drove the automobile at the time of the injury to the plaintiff, is immaterial to the question at issue, which involves only the inquiry whether at that time he was negligent, and whether his negligence was the proximate cause of the injury to the plaintiff. This inquiry as to the conduct of the chauffeur at that time is to be unembarrassed by any consideration of his general qualifications.</p> <p>Id.—Absence of Conflict—Ends of Justice Promoted by Change of Venue—Prima Facie Bight of Defendants Overcome—Error of Court.—Since it appears that there is no conflicting evidence in the record to preclude this court from considering the same, and it clearly appears therefrom that the interest of all material witnesses and the ends of justice will be promoted by the change of the place of trial as requested by plaintiff, that it is preferable to have all the material witnesses compelled to attend, rather than to have their depositions taken, and it also appears that the plaintiffs have sustained the burden of proof resting upon them to overcome the prima facie right of defendants to have the case tried at their place of residence, it is sufficiently established that the court erred in refusing plaintiff’s motion.</p> <p>Id.-—Bule of Discretion, When not Controlling.—The general rule ■ that the matter of refusing or granting a motion for a change of venue rests in 'the discretion of the court to which the application is made is not always controlling; but where no reason appears in the record against the change, the order refusing to grant such a motion cannot be justified upon the ground that granting such orders is in the discretion of the court.</p>

<p>Municipal Ordinance — Construction—“Moving Pictures”—License Fee—Approval by Police Commissioners—Arbitrary Action not Allowed.—A municipal ordinance regulating a license fee for a "kinetoseope,” without otherwise specifying “moving pictures” therein, specifies the character of the business as clearly as if “moving pictures” were specified therein; and where such ordinance provides that such license shall not be granted except upon approval by the police commissioners, and prohibits a permit within a specified distance from a church or sehoolhouse, except in the case of prior buildings, provides for no arbitrary action by the police commissioners, but limits their inquiry to the cases specified.</p> <p>Id.—Construction and Effect of Supplementary Ordinance—Regulation of “Moving Pictures”—Harmony With Prior Ordinance. A subsequently enacted supplementary ordinance regulating “moving pictures,” and making it unlawful for any person to conduct or carry on any “moving picture” exhibition, without first applying for and receiving a permit from the board of police commissioners, upon an application signed with his name and address, and specifying the street and number of the place where the proposed “moving picture” exhibition is to be located, and otherwise regulating such exhibition, is to be construed in harmony with the original ordinance, and as auxiliary thereto.</p> <p>Id.—Construction of General Grant of Power—Duty to Adopt Reasonable Means and Methods.—It is a recognized rule of statutory construction that a general grant of power, unaccompanied by specific -directions as to the manner in which the power is to be exercised, implies the right and duty to adopt such means and methods as may be reasonably necessary to a proper exercise of the power. Applying this rule, if the ordinances under consideration did no more than denounce the issuance of a license without the previous procurement of a permit from the board of police commissioners, this would of itself imply an inquiry as to the granting of a permit in any given case; and tested by this rule, it cannot be said that the board of police commissioners is vested with an undefined and whimsical discretion as to the granting of a permit, the power being expressly limited to specified conditions of such permit.</p> <p>Id.—Reasonable and Necessary Conditions of Permit.—The conditions to be complied with before a permit or license can be granted by the police commissioners cannot be said to be unreasonable or unnecessary, since the manifest menace of fire and panic likely to result to school children and church congregations from the close proximity of kinetoscope exhibitions is a valid and commendable reason for prohibiting new permits near thereto; and the requirement of the supplementary ordinance that the applicant for a new permit shall specify, by street and number, the precise place in which he desires to locate, is a reasonable and necessary expedient intended to aid in the proper enforcement of the ordinance.</p> <p>Id.—Uniformity of Conditions—Mandatory Restriction of Power.— The conditions prescribed by the ordinance apply equally and uniformly to all persons alike who apply for permits from the board of police commissioners; and the express direction therein that “no other restriction of such places, as to the location of places, shall be considered by the police commissioners,” is mandatory, and clearly contemplates that no discretion is given to that board to withhold a permit, if it be found that the location or building selected conforms to the requirement of the ordinance.</p> <p>Id.—Duty of Police Commissioners—Mandamus.—-The ordinances impose upon the board of police commissioners the plain duty of granting a permit, upon ascertaining that the conditions precedent to the performance of such duty exist; and the refusal of a permit, in such a case, would be an abuse of power, rather than the exercise of a discretion, which could be reached and remedied by mandamus.</p> <p>Id.-—Ordinances not Delegating Legislative Powers to Police Commissioners.—The ordinances do not delegate legislative powers to the police commissioners, but designate all of the conditions upon which a permit for a license may be issued; and the requirement that a license shall issue only after a permit has been granted confers no power upon that board to determine the necessity for a license, or legislate as to the terms and conditions upon which it may be issued by the license collector. The requirement is but a preliminary step in the procedure for the procurement of a license, and in no sense can it be said to be an improper delegation of power.</p> <p>Id.—Improper Mandate to License Collector—Defense of Ordinances and Permit not Obtained.—Where a writ of mandate was granted to the license collector by the superior court, notwithstanding a defense setting forth the ordinances, and that no permit had been applied for to the board of police commissioners, an averment in the petition that the location of the place was in conformity therewith cannot take from the board of police commissioners the power to determine that fact; and where the superior court improperly sustained a demurrer to the answer, and granted the writ of mandate on untenable grounds against the validity of the ordinance, the judgment granting the writ must be reversed with directions to determine the issues raised by the pleadings.</p>

<p>Costs—Right op Recovery Statutory—Basis op Discretion op CpURT. The right to recover costs is purely statutory, and, in the absence of a statute, no costs can be recovered by either party. Assuming that the legislature would have the constitutional right to enact legislation making the recovery of costs in the discretion of the court, the question whether the matter of costs in a given case rests in the discretion of the court must depend upon whether the legislature has committed such discretion to the court.</p> <p>Id.—Costs in Consolidated Election Contests—Construction op Statute—Discretion op Court—Apportionment Between Losers —Erroneous Judgment.—Where contests of election for different offices were consolidated under the statute, for convenience in counting the votes and to lessen the expense of separate contests, the proviso added by the amendment of 1907 to section 1125 of the Code of Civil Procedure (which section still provides for the recovery of costs against the losing party to a contest), “that where two or more contested elections are joined for the purpose of recounting votes, as in this title provided, the costs shall be apportioned among the parties, in the discretion of the court,” must be construed to mean a just apportionment of the costs and expenses of the contest, as against the losing parties thereto, in the sound discretion of the court; and it was error to adjudge that each of the parties to the contest should pay his own costs.</p> <p>Id.—Harmonious Construction op Statute as to Costs.—It being undisputed that, in each separate contest, it is the . duty of the court, under the plain mandates of section 1125 of the Code of Civil Procedure, to award costs to the victorious party, the statute providing for a joinder of contests should be harmoniously construed with the purpose of the legislature to make such award; and there is no just reason why the victorious parties in a single proceeding involving the right to different offices should not each be awarded costs, just as they would be if their respective contests were each tried alone, or not so joined, the only difference being that there should be an equitable apportionment of the joint expense as to each losing - party, liable therefor in a consolidated contest.</p> <p>Id.—Purpose op Statute as to Joinder op Contests.—The purpose which the legislature had in view in authorizing the joinder of • election contests was to make the expense in prosecuting the same less onerous, the bulk of which flows from the necessity of employing special clerks to examine, count and tally the ballots under the supervision of the court, as well as to save time and trouble to the court, which would otherwise be compelled to hear several different contests in as many different proceedings, where all may just as conveniently be heard in one.</p> <p>Id.—Just Ground por Equitable Apportionment op Expense—Joinder op Township and County Ofpices.—There is a limited, but just, ground for an equitable apportionment of expense in the consolidation of contests, since the special contest here involved was for a township office, while the other contest was for the office of county clerk, the expense of which could only be saved in so far as the joint count of the township ballots was commensurate. It is only where any item is incurred by two or more parties jointly that the court should apportion the amount equitably between them as to the liability of the losing parties.</p>

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

PETITION for a writ of prohibition to a justice of the police court of the city of Los Angeles. Warren L. Williams, Justice. The facts are stated in the opinion of the court.

<p>Action fob Personal Injuries—Battery by Defendant—Evidence— Nature of Injuries.—In an action to recover damages for personal injuries, inflicted by defendant upon the plaintiff by severely beating and seriously injuring him, the plaintiff was properly permitted, as a witness, to describe the nature of his injuries so sustained; and an objection that such evidence was merely an opinion or conclusion of the plaintiff was properly overruled. The plaintiff, though not an expert, was competent to give, in a general way, an approximately correct description of the bruises and other injuries received by him from the defendant.</p> <p>Id.—Consistency of Plaintiff’s Evidence With Physician’s Testimony—Defendant not Prejudiced.—Where the evidence of the plaintiff was in harmony with that of his physician, who testified as an expert, and gave a detailed description of the injuries sustained by the plaintiff, the defendant was clearly not prejudiced by the ruling permitting plaintiff to testify as to the nature of his injuries.</p> <p>Id.—Proof of Earning Capacity of Plaintiff—Damages.—The court properly allowed the plaintiff to prove the wage rate he was receiving for his labor up to the time of his injury, where it appeared that, on account of his injuries, he was deprived of any earnings while confined, as the result thereof, and that he has since been unable to do the amount of labor he was capable of performing prior to his injuries. The earning capacity of the plaintiff prior to receiving the injuries complained of, in the business which he had customarily followed, was a proper element to be considered in the assessment of damages.</p> <p>Id.—Testimony of Witness to Doctor’s Operation.—The court did not err in allowing a witness' who was present when the doctor examined the plaintiff to describe what the doctor did in preparing to treat the plaintiff and what he did in order to reset his dislocated shoulder. Such evidence, while practically without inherent force, tended, if anything, to corroborate the doctor as to his treatment of the plaintiff.</p> <p>Id.—Impeachment of Italian Witness for Defendant—Use of English—Foundation—Record—Objection upon Appeal.—On the impeachment of a witness for the defendant, who was an Italian, understanding some English, and who used English, when the foundation for his impeachment was laid upon cross-examination by proof that upon a trial of defendant in the police court upon a criminal charge of battery he gave evidence at variance with his evidence upon the present trial, and there is nothing in the record upon defendant’s appeal to show that the witness did not use English in the police court, nor that the impeaching witnesses did not understand his language there used, an objection urged that the testimony of such impeaching witnesses was inadmissible hearsay as to what the impeached witness then testified to, through an interpreter, is not available to the defendant upon appeal.</p> <p>Id.—Impeaching Testimony not to Collateral Matter—Question as to First Aggressor.—The impeaching testimony being with respect to the circumstances of the trouble between the parties, and as bearing upon the question whether, the defendant or the plaintiff was the first aggressor, cannot be said to be addressed to a collateral matter not the subject of impeachment.</p> <p>Id.—Proper Foundation for Impeachment — Memory of Former Statement Immaterial.—A proper foundation for the impeaching evidence was sufficiently laid, where the witness - stated that he remembered the occasion to which the counsel referred, that the persons named were present, and that he then gave testimony, which is all that the statute requires. The answer that he “did not remember ” whether he made the alleged inconsistent statement did not render it improper to show, by way of impeachment, that he did in fact make such statement at the time mentioned.</p> <p>Id.—Impeachment of Defendant—Proper Foundation.—Where the defendant was asked on cross-examination whether he testified in the police court-that he knocked plaintiff down, as to which he said he had no recollection, this was a sufficient ground for proof that the defendant did testify or admit in the police court that in the encounter with plaintiff “he knocked him to the ground,” and that he stated under oath in that court that he “beat .said C. J. Ehat, or did him as well as he could.”</p> <p>Id.—Immaterial Findings Unsustained—Findings Sustained Supporting Judgment.—The fact that some of the findings are unsustained by the evidence is immaterial, where the remaining findings are fully sustained by the evidence arid are sufficient to support the judgment.</p> <p>Id.—Damages Allowed not Excessive.—It is held that, considering all of the evidence as to plaintiff’s loss of earning power, and the expenses of his illness, including his doctor’s bill, and as to the circumstances of aggravation attending his injuries, it was in the power of the court to add to the actual damage sustained such exemplary damages as would represent a'just punishment for the wantonness of the. acts of. the defendant resulting in the injuries complained of, and it cannot be said that the sum of $500, allowed as damages, was excessive.</p>

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

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

PETITION for writ of review to annul proceedings in the Superior Court of Tehama County. J. E. Prewett, Judge presiding. The facts are stated in the opinion of the court.

<p>APPEAL from a judgment of the Superior Court of Kern County, and from an order denying a new trial. <J. W. Mahon, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Criminal Law—Lewd and Lascivious Acts With Child—Sufficiency of Information to Support Conviction.—Where an information charging the defendant with the crime of committing lewd and lascivious acts with a child, in violation of section 288 of the Penal Code, is in the language of the statute and is free from any defects, it is sufficient, .if proved, to support a conviction, and a general demurrer thereto was properly overruled.</p> <p>Id.—Continuance—Absence of Material Witnesses—Diligence not Shown.—Where an affidavit for the continuance of the trial for the absence of material witnesses is vague and indefinite, and fails to show any personal diligence on the part of the defendant to secure their attendance, or to ascertain their whereabouts, other than to cause a subpoena to be issued and placed in the hands of the sheriff of the county, and it is made to appear that they were absent from their homes at the date of the trial, such showing is not inconsistent with the fact that they might have been at their homes at all prior dates, and the court did not err or abuse its discretion in denying the application.</p>

<p>Criminal Law — Obtaining Money Under False Pretenses—Nonexistence of Mechanics’ Liens—Sufficiency of Information.— An information alleging that the defendant obtained money under false pretenses by means of false representations as to the nonexistence of mechanics’ liens on certain real property, whereas there existed liens thereon under the constitution at the time of the representations to the amount of $6,000, and that subsequently and within the statutory time notices of lien to that amount were filed and recorded, sufficiently shows the falsity of the representations and pretenses under which the money was obtained.</p> <p>Id.—Time When Mechanic’s Lien Attaches—Constitutional Right. The lien of a mechanic or materialman is a constitutional right, and attaches to the structure as the material is furnished or the labor performed. The statutory procedure for the enforcement of such right has reference only to the remedy. The lien which is created by the constitution cannot be made subordinate to or dependent on any legislative act. It exists with all of its force at all times between the furnishing of the material and the performing of the labor, and the expiration of the time within which notices of lien may be filed.</p> <p>Id.—Power op Legislature as to Liens.—The only power the legislature possesses, with reference to such liens, is to obey the mandate of the constitution, by providing means for the enforcement of the liens existing by force of the constitution.</p> <p>Id.—Necessity of Allegations as to Filing op Liens—Showing op Injury.—The allegations in the indictment for obtaining money under false pretenses as to the nonexistence of liens, with reference to the filing of the notices of lien, were only necessary as showing that an injury was caused by the false statements, as this injury could only be worked out through a compliance with the statutory provisions requisite to the enforcement of the right of lien.</p> <p>Ib.—Reliance upon False Pretenses op Dependant — Representations op Others Immaterial.—Where the whole record shows that the prosecuting witness relied upon the false pretenses and representations of the defendant, like representations made by others are immaterial. If the false pretenses alleged are among the means by which defendant obtained the money, he has committed the crime, the same as though no other influence combined therewith.</p> <p>Id.—Requested Instruction as to Reliance upon All False Pretenses—Proper Refusal.—The court did not err in refusing a requested instruction to the effect that the jury were required to find that the prosecuting witness relied upon all of the pretenses made by the defendant. It is sufficient if he relied upon some of the material misrepresentations made by him.</p> <p>Id.—Proper Instruction—Presumptions as to Acts and Intent.—The court properly instructed the jury that “a person is presumed to do that which he voluntarily and willfully does in fact do, and that he is presumed to intend the natural, probable and usual consequences of his own act.”</p>

<p>Action for Services—Contract to Deepen Oil Well—Failure to Furnish Tools Agreed—Prior Negligence of Plaintiff’s Servant—Prevention of Performance — Defendant Estopped.—In this action to recover damages for the reasonable value of services performed by plaintiff under a contract with defendant to deepen an oil well on defendant’s land to a depth of 1,500 feet, at a stipulated price, by the terms of which defendant was to furnish all necessary machinery, tools, etc., to complete the contract, where it appears that by the careless handling by plaintiff’s servant of part of the tools furnished plaintiff was unable to shut off the water for further performance, without an additional necessary tool of a wire cable, which plaintiff requested of defendant corporation, and which it failed to furnish as agreed, and it is apparent that if it had furnished the same, plaintiff could have completed its contract, and was prevented by such failure from performing the same, it is held that defendant is not in a position to complain of plaintiff’s negligence while in such default on its own part.</p> <p>Id.—Unsupported Finding—Compromise and Cancellation of Contract—Unauthorized Act of Secretary of Corporation.—A finding that there was a compromise and settlement of all demands, and a cancellation of the contract between the parties, is unsupported by the evidence, where the only party representing the corporation was its secretary, who in the absence of authority from the board of directors, or of auy facts appearing from which any ratification thereof by the corporation would follow, is without any authority, express or implied, to release the plaintiff’s obligation or cancel the contract, even if done with the plaintiff’s consent.</p>

George D. Murray, Judge. The facts are stated in the opinion of the court. Denver Sevier, C. P. Cutten, and Thomas, Frick & Beedy, for Appellant. Thomas, Grestle, Frick & Beedy, and Charles P. Cutten, for United States Fidelity and Guaranty Company, Surety for Appellant.

<p>APPEAL from an order of the Superior Court of Santa Cruz County, granting a motion to set aside an information. Lucas F. Smith, Judge.</p> <p>The facts are stated in the opinion of the court.</p> <p>U. S. Webb, Attorney General, and Benjamin K. Knight, District Attorney, for Appellant.</p>

<p>Contested Election — Consolidation of Separate Contests — Dismissal of One Contest—Costs—Improper Judgment—Case Applied.—Where separate election contests are consolidated for the purpose of convenience in counting the votes, and one of the contests is thereafter dismissed on motion of the contestant, the contestee is entitled to recover his costs and expenses incurred in such contest; and the court improperly adjudged that each of the parties thereto shall pay his own costs. Such judgment must be reversed, with proper directions to modify the same, on the authority of Duley v. Peacock, ante, p. 418.</p>

<p>Execution—Sale of Beal Property—Bedemption Limited.—Under a sale of real property under execution, redemption is expressly limited to twelve months from the date of the sale, either by the judgment debtor or any holder of a judgment lien. Where the judgment debtor fails to redeem, and there is no subsisting judgment lien existing within the period of redemption, there can be no ground for redemption, at law or in equity, by force of a judgment not subsisting as a lien within the statutory period of redemption.</p> <p>Id.—Judgment Delayed Until After Statutory Period—Intervention of Holidays not Ground for Equitable Belief.—A judgment creditor whose judgment is delayed from becoming a lien within the statutory period for redemption from the execution sale is not entitled to equitable relief as a redemptioner thereafter, on the ground that the delay was caused by the intervention of legal holidays specially declared by the governor. It might as well have happened that because of congestion of business in the courts, plaintiff had been delayed in securing a trial and judgment within the statutory period of redemption, and if such condition existed, there would be no difference in the ground of equitable relief.</p> <p>Id.—Act Extending Time for Performance of Acts—Effect Claimed Unconstitutional — Obligation of Contract Impaired.—If the act of the legislature of June 3, 1906, extending the time of performance of certain acts to a time beyond the period of the time fixed therefor be deemed applicable to the extension of the time for a statutory redemption from an execution sale beyond the time Umited therefor, it cannot have that effect, because such result would be in violation of the constitution of the state and of the United States, as impairing the obligation of the contract.</p>

<p>Attorney and Client — Collection of Litigated Notes — Disputed Fees—Cashed Check—Residue Tendered in Full Settlement— Accord and Satisfaction—Notice—Estoppel.—Where an- attorney had conducted a protracted litigation for his client in the superior and supreme courts for nearly two years for the collection of notes, and there was a dispute as to the amount of the attorney’s fees, and the attorney, after collecting the notes, tendered a check for the residue, less his fees, which was avowedly “given in full settlement of all matters between us,” and was cashed by the client, an accord and satisfaction was thereby established; and notwithstanding a letter then written to the attorney and afterward received by him, stating that the check, though cashed, was not accepted by the client in full settlement, the client by cashing the cheek is estopped from maintaining any action against the attorney for any residue of the amount collected.</p> <p>Id.—Effect of Tender of Unliquidated Sum in Dispute—Duty of Offeree—Rejection or Acceptance upon Precise Terms.—Where tender is made to a party to whom a debt is owing of an amount less than that which is claimed to be due on a disputed account, and the amount claimed to be due is unliquidated, and the party making the tender in express terms offers the payment in full satisfaction of the disputed account, the offeree in that case is bound either to reject the offer or to accept it upon the precise terms denoted by the tender. If he appropriates to his own use the amount tendered, he cannot afterward be heard to say that he did so on any other terms than those which the person making the offer imposed upon him.</p> <p>Id.—Estoppel of Payee of Check.—The payee of the check cannot assert that he did not understand that the sum thereby offered “in full” was not, when accepted and used, a payment in full. He was bound either to reject the check tendered, or, by accepting it, to accede to the terms offered. He could not accept the benefit and reject the condition. The use and cashing of the cheek tendered was ipso facto an acceptance of the condition.</p> <p>Id.—Defense of Accord and Satisfaction Proved.—It is held that, in ' view of the uncontradicted testimony, that the defense set up in the answer that there had been an accord and satisfaction was clearly made out, and that, as matter of law, a judgment should have been directed for the defendant on that plea, and that the evidence does not sustain the verdict or judgment rendered for the plaintiff.</p>

<p>Deed to Mother for Life—Remainder to Heirs of Her Body—Living Children During Life Estate Without Title—Specific Performance—Deed Ineffective.—Where a deed is made to a mother for life “and then to the heirs of her body begotten forever,” the title to the remainder after the expiration of her life estate vests only in such heirs of her body as may be surviving at her death; and living children joined with her in an action for specific performance of a contract to convey real estate, or represented by her, have no title that can be conveyed to the defendant in such action, nor can the mother, during her life, be vested with any title of deceased children, as such deceased children have no title to which she could succeed or which she can convey, and she can only convey her life estate.</p> <p>Id.—Nature of Remainder—Title by Purchase—Contingent Future Interest.—When property in this state is so conveyed to a mother for life, with remainder to the heirs of her body, the heirs living at the time of her death take the remainder by purchase, and not by inheritance from the mother. Such remainder is a contingent interest, future in character, and the person or persons to whom it is to come and the time of the happening of the event upon which it is limited to take effect were both uncertain at the time of its creation.</p> <p>Id.—Continuous Uncertainties—Time of Vesting of Contingent Remainder.—Since the uncertainties at the time of the creation of the contingent remainder continue to exist until the death of the life tenant, it could not vest until her death, because she could have no “heirs of her body” prior to her decease; and in the interval all of her children may die, and the entire estate might vest wholly in her unborn grandchildren.</p> <p>Id.—Interests of Unborn Grandchildren not Void as Improbable or Merely Possible.—The interests of unborn grandchildren in the contingent remainder are not void, because of the improbability of the contingency on which they are limited to take effect; nor can such interests be regarded as mere possibilities, such as the expectancy of an heir apparent, as they do not depend upon the law of succession to determine whether or not they will take effect, and they cannot be defeated by the testamentary or other act of the ancestor.</p> <p>Id.—Construction of Civil Code—Vesting of Future Estates.—Section 694 of the Civil Code, as to the vesting of a future interest “in a living person,” has no application to the vesting of a future contingent remainder in heirs which must be living at the death of a life tenant and which may vest in unborn grandchildren then living, under sections 779 and 780 of the same code.</p> <p>Id.—Distinction Between Vested and Contingent Remainders.— When the preceding estate is limited so as to determine on an event which must certainly happen, and the remainder is so limited to a person in esse and ascertained that the preceding estate may by any means determine before the expiration of the estate limited in remainder, such remainder is vested. But when the preceding estate is limited so as to determine only on an event which is uncertain and may never happen, or is limited to a person not in esse, or not ascertained, or is limited so as to require the concurrence of some dubious, uncertain event, independent of the determination of the preceding estate limited in remainder, to give it a capacity of taking effect, then the remainder is contingent.</p>

<p>Appeal from Judgment—Bill of Exceptions—New Trial—Review.— A bill of exceptions, which was settled within the time required for its use upon an appeal from the judgment, may be considered thereon, notwithstanding that in the first instance it was the intention to use such bill of exceptions upon a motion for a new trial, the proceedings upon which were abandoned. It is held immaterial, in such case, what may be the purposes for which the bill was expected to be used.</p> <p>Action to Quiet Title—Claim of Prescriptive Right Unfounded— Agreement to Purchase—Trust in Holder of Record Title.— An action to quiet title based upon a claim of prescriptive right is untenable, where the evidence clearly shows that plaintiff entered into possession under agreement to purchase the premises from the holder of the record title, and that one of the defendants now holds the record title in trust for the plaintiff, and that there was no holding by the plaintiff adverse to the record title.</p>

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

<p>APPEAL from a judgment of the Superior Court of Marin County, and from an order denying a new trial. Edgar T. Zook, 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 R. Kirby, Oval Pirkey, and Eugene Daney, for Appellant.</p>

<p>Sales—Olive Crop on Trees—Delivery by Vendor—Passing op Title. Where a contract for the sale of an olive crop growing on the trees of the vendor, which was nearly ripe and about full grown, provided that the vendor should pick the same when fully ripe, and ship them at specified rates per ton, payable one-half on demand when delivered and the remaining one-half thirty days after delivery, the contract is not to be interpreted as passing the title to the crop on the trees, but under the conditions specified, the title to the olives did not pass until delivery was made.</p> <p>Id.—Absence of Implied Warranty.—Under section 1764 of the Civil Code, a mere contract of sale or agreement to sell does not imply a warranty, except as otherwise provided. There was no implied warranty as to the olive crop as “nonexistent,” under section 1768 of that code, nor as “inaccessible to the examination of the buyer,” under section 1771 of the same code. It is held that the testimony showed, without contradiction, that the contract related to olives in existence on the trees nearly ripe, where they could be observed at any time, and that they were at no time inaccessible to the buyer.</p> <p>Id.—Bule op Caveat Emptor Applicable.—Under the common-law rule, as well as under the facts of this case, as applied under our statutes, the rule of caveat emptor would apply, and no warranty would be inferred for the benefit of the vendee.</p> <p>Id.—Crop Delivered not Unmerchantable—Finding Unsupported.— It is held that under the testimony, the court was not justified in finding that the olives delivered were of unmerchantable quality, but that the most that can be said of defendant’s claim in this regard is that while the olives sold were capable of being manufactured into olive oil, the quality of the oil was of an inferior grade, but that it could be sold for a dollar a gallon. There is nothing in the contract to show that any special grade or quality was expected to be furnished. The contract referred only to the state of ripeness of the olives when picked.</p> <p>Id.-—Definition op "Merchantable” Goods.—The requirement, when it exists, that goods shall be “merchantable,” does not make it essential that the goods shall be of first quality, or even that they shall be as good as the average of goods of the sort. If there is no warranty of fitness for a particular purpose, the buyer cannot claim more than that the goods, with their defects known, shall be salable as goods of the general kind which th.ey were described to be when bought.</p> <p>Id.—Terms of Sale not Modified by Agreement.—Where the terms of sale were not modified by agreement, the plaintiff is not bound to accept the proceeds of the oil manufactured by defendant from the olives sold and delivered under the contract, in lieu of payment therefor according to the terms of the contract.</p>

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

<p>Mining Claims—Location of Placer Claim—Action to Quiet Title— Findings—Insufficient Proof of Prior Discovery of Gold.—In an action to quiet title to a placer mining claim, where the court found that neither the plaintiffs nor the defendants were at anytime the owners of the claim, and only the plaintiffs appeal, the rights of the defendants cannot be considered; and the only question is whether the plaintiffs made a sufficient location, or a discovery of gold prior to their location. It is held that the evidence is too slight to show any sufficient discovery of gold prior to the location by the plaintiffs.</p> <p>Id.—Effect of Stipulation of Parties as to Character of Land— Proof of Prior Discovery not Dispensed With.—The stipulation of the parties “that the land in controversy is unpatented placer mineral land of the United States” could not have the effect to dispense with the necessity of proof that there was an actual previous discovery of gold in paying quantities before a location by either party. The parties were competent to stipulate as to their contending and conflicting rights, but it was necessary for each to show that he had made a discovery of gold such as would satisfy the statute.</p> <p>Id.—Discovery of Mineral Prior to Location Essential to Title.— The discovery of mineral is the source of the miner’s title, and is an essential prerequisite to a valid location, and must precede the location. This rule applies alike to lode and placer locations; and there must be such a discovery of mineral as gives reasonable evidence of the fact, either that there is a vein or lode bearing the precious mineral, or, in the case of placer ground, that it is valuable for placer mining.</p> <p>Id.—Bule not Arbitrary—Question of Fact—Ordinary Prudence— Failure of Test.—No arbitrary rule as to what will constitute a sufficient discovery can be stated which will govern all cases alike, either in respect to lodes or placers. The question whether a sufficient discovery has been made is one of fact for the jury to determine, under the guidance of the court. Where minerals have been found, and the evidence is of such a character that a person of ordinary prudence would be justified in the further expenditure of his labor and means, with a reasonable prospect of success in developing a valuable mine, the requirements of the statute have been met. But the rule is otherwise when the evidence falls short of meeting the statutory requirements as to a diseovgry of valuable minerals.</p>

<p>The facts are stated in the opinion of the court.</p> <p>Frank M. Silva, District Attorney, and Theodore A. Bell, for Appellant.</p>

<p>APPEAL from a judgment of the Superior Court of Los Angeles county, and from an order denying a new trial. W. R. Hervey, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>APPEAL from a judgment of the Superior Court of the City and County of San Francisco, and from an order denying a new trial. William P. Lawlor, 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>The facts are stated in the opinion of the court.</p>

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

<p>APPEAL from a judgment of the Superior Court of Kings County, and from an order denying a new trial. John G. Covert, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

APPEALS from a judgment of the Superior Court of Los Angeles County, and from an order denying plaintiff’s motion for a new trial. Frederick W. Houser, Judge. The facts are stated in the opinion of the court.

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

<p>Divorce—'Appeal by Defaulting Defendant from Interlocutory Decree—Evidence not Review able.—Upon an appeal by a defaulting defendant from an interlocutory decree in an action for divorce, who has not answered, and in which no issue of fact was raised, such defendant is not entitled to any review of the evidence taken at the hearing, or to have the testimony incorporated in the transcript, and the mere fact that the evidence is inserted in the record here does not warrant the court in reviewing or considering it for any purpose.</p> <p>Id.—Issue of Fact not Raised by Law.—The law does not raise an issue of fact in a divorce ease merely because it requires from the plaintiff sufficient proof of the right to a divorce, as alleged in the complaint, before granting the relief asked; nor does it provide for a trial on that ground, nor allow a new trial, or any re-examination of any issue which does not in fact exist.</p> <p>Id.—Limited Rights of Defaulting Defendant—Scope of Review.— A defaulting defendant is not entitled to a new trial because appealing from the interlocutory decree, nor to have any bill of exceptions settled or certification of evidence; but the only question that can be considered on such appeal is a legal one, and the appellate court is limited in its examination to any questions arising upon the judgment-roll, consisting of the papers mentioned in subdivision 1 of section 670 of the Code of Civil Procedure.</p> <p>Ib.—Effect of Evidence Appearing in Record to Sustain Decree.— Although the defendant is not entitled to have the evidence reviewed, yet it is noticeable that the evidence inserted in the transcript is amply sufficient to sustain the interlocutory decree, and was fully corroborated by other witnesses in every essential feature as to the ground of extreme cruelty on which the decree for the plaintiff was based.</p> <p>Id.—Waiver of Objections to Evidence.—Where no objection was made by the appellant to the evidence, nor any exception taken to its admission, he cannot complain of its admission on appeal.</p>

<p>APPLICATION for writ of habeas corpus.</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>Criminal Law—Murder—Self-defense — Befusal of Bequested Instruction—Embodiment in Charge of Court.—Where a defendant charged with" murder and convicted of manslaughter requested an instruction upon the subject of self-defense, the refusal, to give it is without prejudice, if the instruction, assuming it not to be objectionable in other respects specified, was, in its last analysis, but a reiteration of that portion of the charge of the court wherein the jury were told, in substance, that in deciding to what extent a man may go in resisting an assault, he may act upon the circumstances as they appear to him, and will not be held to the same strict accountability for an error in judgment, or for the use of force disproportionate to the impending danger as one who is not required to act quickly.</p> <p>Id.—'Sufficiency of Charge of Court—Befusal of Bequested Instruction not Prejudicial.—Where no complaint is made that the charge of the court, as a whole, did not completely and correctly cover every phase of the case, including the law and the evidence applicable to the defendant’s claim of self-defense, it cannot be said that the refusal of the trial court to give the particular requested instruction prejudiced the defendant, or tended to his prejudice in respect to any of his substantial rights.</p>

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

<p>APPEAL from a decree of the Superior Court of the City and County of San Francisco granting partial distribution under the will of a deceased testator. J. V. Coffey, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

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

<p>The facts are stated in the opinion of the court.</p> <p>John W. Shenk, City Attorney, and Charles D. Houghton, Deputy City Attorney, for Appellants.</p>

<p>APPEAL from a judgment of the Superior Court of Orange County, and from an order denying a new trial. Z. B. West, Judge.</p> <p>The facts are stated in the opinion of the court.</p> <p>Anderson & Anderson, Watkins & Blodgett, E. W. Freeman, and Victor Montgomery, for Appellant.</p>

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

<p>Eminent Domain—Proceeding to Condemn Riparian Rights—Disqualification of Judge fob Interest—Duty to Transfer Cause —Prohibition.—In a proceeding in eminent domain to condemn riparian rights, in which the judge of the superior court is disqualified to act by reason of his interest in the proceeding, it is made his legal duty to transfer the proceeding, under section 170 of the Code of Civil Procedure, to the nearest and most accessible court for trial, where the like objection or cause for making the order does not exist; and where he refused to' make such order, and signified his intention to call in another judge, the writ of prohibition will lie to compel the judge to desist from making any other order in such ease than that provided by statute.</p> <p>Id.—Construction of Code—Disqualification of Judge as Such— Transfer of “Proceeding.”—While title VII relating to “eminent domain” is silent as to the steps which shall be taken therein when the judge is disqualified as such for interest, yet section 1256 thereof provides, “Except as otherwise prohibited in this title, the provisions of part two of this code are applicable, and constitute the rules of practice in the proceedings mentioned in this title.” Hence, section 170 of the Code of Civil Procedure forbidding any judge “to sit or act in any action or proceeding in which he is interested,” and section 398 thereof, providing for the transfer of “an action or proceeding” in which “the judge is disqualified from acting as such,” both apply to a “proceeding in eminent domain,” where the judge is disqualified for interest.</p> <p>Id.—Powerlessness of Judge to Act Otherwise Than as Directed by Statute.—A judge who is interested in an action or proceeding can only act as directed by law. He cannot transfer the same to a judge of his own selection, nor call in any other judge to try the ease. There is a marked distinction between accidental disqualification allowing such action under section 160 of the Code of Civil Procedure, and disqualification of the judge by reason of interest, under section 170 thereof, which will not permit such action.</p> <p>Tir.—Provision of Political Code as to Conflicting Provisions Inapplicable.-—Section 4481 of the Political Code, which provides that “if the provisions of any title conflict with or contravene the provisions of another title, the provisions of each title must prevail as to all matters and questions arising out of the subject matter of such title,” can have no application to the case at bar, since title VII is silent as to the disqualification of a judge, and expressly refers to part II for rules of practice, by which no conflict is created on that subject.</p>

<p>Trust—Construction of Instrument—Rules of Interpretation— Beneficiary Favored.—Not only must the instrument creating a trust be considered in determining the nature, extent and object of the trust, but also, in determining the intent of the trustor and the scope of the trust, the familiar rules for the interpretation of contracts found in title III of the Civil Code must be applied. And, if the language of the trust be ambiguous or uncertain, it will be construed, if possible, in favor of the beneficiary and against the trustee.</p> <p>Id.—Trust Under Will—Duties of Trustee Limited—Completion of Duties—Termination of Active Trust.—Where a trust created by will provides that the trustee is to sell certain land, and invest the proceeds for the benefit of two beneficiaries named, and makes no further provision for any further duties of the trustee, the active trust is terminated upon the discharge of the duties specified; and ■thereafter the trustee holds the bare legal title for the beneficiaries. Nothing can be read into the trust which is not found therein; and without regard to the reasons for so limiting the duties of the trustee, it is sufficient that they are so limited, and effect can only be given to its language as used.</p> <p>Id.—Original Trust for Husband and Wife—Agreement for Separation and for Severance of Eights With Trustee—Dry Trust not Enlarged.—Where the original trust, as created, was for a husband and wife jointly, and after the active duties of the trust had been fully performed by the trustee there was an agreement for a separation between the husband and wife, and a separate agreement was thereafter entered into between the trustee and each of the beneficiaries for a severance of the trust, as to each of them, though the original trust was thereby superseded as to each of the beneficiaries, yet the dry trust as to the mere legal title held for each of them, severally, was not thereby enlarged.</p> <p>Id.—Effect of Dry Trust—Eights of Beneficiary—Possession— Transfer—Enforcement of Conveyance.—Where there is a mere dry trust of the naked legal title for a particular beneficiary, such beneficiary is entitled to the actual possession and enjoyment of the property so held, and to dispose of the same, and to call upon the naked trustee for such conveyances of the legal estate as he may direct, and his grantee may also proceed, in accordance with law, to enforce a conveyance.</p> <p>Id.—Eights of Persons of Full Age to Terminate Trust.—Where all of the beneficiaries of a trust are of full age, they have the right in equity to a dissolution of the trust and the discharge of the trustee, where no reason appears why they should not exercise the right to dispose of the property.</p>

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

<p>Criminal Law—Preliminary Examination—Resistance op Oppicer— Assault With Deadly Weapon — Evidence TTnauthenticated— Suppiciency—Habeas Corpus.—A writ of habeas corpus cannot be allowed for the discharge of a prisoner held to answer upon a preliminary examination for the offenses of resisting a public officer, and of an assault with a deadly weapon, where the evidence is not authenticated, but, if authenticated, is sufficient to show that, though the aggressive act of the defendant were directed toward a third party, they so terrorized the police officer that he was prevented from discharging his duty, and had the effect to resist the officer, and, though insufficient to show an assault with a deadly weapon, is sufficient to sustain a conviction of lesser offenses included therein, and where the bail allowed is not excessive.</p>

<p>Appeal—Order Granting New Trial—Application for Order—Untenable Objection—Bill of Exceptions.—Upon appeal from an order granting a new trial, it is held that appellant’s objection that the order was made without an application therefor by the respondent is untenable, where the bill of exceptions upon such appeal shows the notice of intention and grounds of the motion, that the cause came on for hearing, with counsel for both parties present, and that the cause was submitted, and thereafter the court granted the motion and ordered a new trial.</p> <p>Id.—Order Nunc Pro Tunc Pending Appeal not Considered.—Since the record shows that nothing remained for hearing but the motion, that the cause which came on for hearing was the motion, and the order was in connection therewith, and the application for a new trial and the grounds therefor sufficiently appear in the record, it is unnecessary to consider an order of the trial court made pending the appeal, and directed to be entered nunc pro tunc.</p>

<p>APPLICATION for discharge upon writ of habeas corpus.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Criminal Law—Assault With Intent to Murder—Support op Verdict for Assault With Deadly Weapon.—Under a charge of an assault with intent to commit murder, it is held that the facts and circumstances proved are sufficient to sustain a verdict for an assault with a deadly weapon, notwithstanding the prosecuting witness at the trial made an attempt to shield the defendant, and gave testimony inconsistent with her prior declarations, and that the appellate court cannot, even if disposed to do so, legally interfere with the verdict.</p> <p>Id.—Requested Instruction Defining Reasonable Doubt—Embodiment in Charge—Error not Committed.—Though a requested instruction' defining reasonable doubt correctly stated the law, and might well have been given in the language asked, yet, where such instruction was substantially given elsewhere in the charge of the court, it cannot be held that error was committed in refusing it.</p> <p>Id.—Requested Instruction as to Privilege of Dependant not to Testify—Prejudicial Error not Shown.—A requested instruction merely embodying the statement that “the defendant is not required to take the witness-stand and testify in his own behalf,” without embracing the statement that no unfavorable inference can be drawn from his failure to testify, merely states a fact that the jury might have inferred from his failure to testify; and where the record upon appeal does not show that the requested instruction was either given or refused, no ground of objection or prejudicial error can be assigned in relation thereto.</p>

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

<p>Dismissal of Action—Order Denying Motion in Court—Absence of Affirmative Relief for Defendant—Jurisdiction—Certiorari.—• A motion in open court to dismiss an action in which no affirmative relief is demanded by the defendant invokes the inherent power of the court, and an order denying such motion was an exercise of the jurisdiction of the court, and left the case pending, and subject to its jurisdiction to try the ease and render judgment therein, and if the order denying the motion to dismiss was not justified by the facts, it merely constituted an error in the exercise of jurisdiction which cannot be reviewed or annulled upon certiorari.</p> <p>Id.—Right of Plaintiff to Dismiss—Mode Provided the Measure of Power.—Under subdivision 1 of section 581 of the Code of Civil Procedure, the plaintiff, where no affirmative relief is demanded by the defendant, may himself dismiss the action by filing with the clerk a written request therefor, the effect of which act on his part is, ipso facto, to dismiss the case, even though the clerk fails to make entry thereof in the register. While the plaintiff had thus an inherent and absolute right to dismiss the action, yet such right could be exercised only in the mode or manner prescribed by the statute, and is measured by the mode provided for its exercise.</p> <p>Id.—Remedy for Order—Absence of Remedy Essential to Writ of Review—Motion to Vacate Judgment for Error Affecting Jurisdiction—Order Appealable.—The absence of a remedy by appeal, or by any other plain, speedy and adequate remedy, is essential to the office of a writ of review. Though no direct appeal lies from an order refusing a motion to dismiss the action, and assuming, without deciding, that the order cannot be reviewed on appeal from the judgment, nevertheless there is a plain, speedy and adequate remedy by means of a motion to vacate the judgment rendered after trial, for error affecting the jurisdiction, for want of facts to support such order, and the order made upon such motion is appeal-able and reviewable upon a bill of exceptions as an order made after judgment.</p> <p>Id.—Judgment After Trial not Assailable by Evidence Dehors Record to Support Writ of Review.—In no event can the record of the superior court, as a court of general jurisdiction, showing a judgment duly rendered upon trial, be contradicted by evidence dehors the record, to support a writ of review, whether such evidence be controverted or the truth thereof admitted.</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.. John E. Raker, 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>APPEAL' from a judgment of the Superior Court of Contra Costa County, and from an order denying a new trial. A. J. Buckles, Judge presiding.</p> <p>The facts are stated in the opinion of the court.</p> <p>Lee D. Windrem, J. J. Dunne, and H. M. Owens, for Appellant.</p>

<p>APPEAL from a judgment of the Superior Court of Los Angeles County, and from an order denying a new trial. John G. Covert, Judge presiding.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Depositions—Eight of Defendant to Plaintiff’s Deposition Before Answer.—The defendant in an action, who has appeared by demurrer, has the right, under section 2021 of the Code of Civil Procedure, before the filing of his answer, to take the deposition of the plaintiff. Under the clear and explicit terms of that section, the testimony of a witness who is a party to an action may be taken therein by deposition at any time after service of summons or the appearance of the defendant.</p> <p>Id.—Refusal of Plaintiff to Answer “Matter not in Issue”—Contempt Proceeding—Prohibition.—The plaintiff was not justified in refusing to answer the questions propounded to him for the defendant, for the purpose of taking his deposition pursuant to the code provision, on the ground that there was “matter not in issue,” and where he was cited to answer before the court in a contempt proceeding for such refusal, the writ of prohibition will not lie to prevent the court from hearing such proceeding for contempt.</p> <p>Id.—Construction of Code Provision as to “Matter in Issue.”—The provision of section 2065 of the Code of Civil Procedure, that “a witness must answer questions legal and pertinent to the matter in issue,” is not to be construed narrowly as applying solely to allegations of the complaint which are denied by an answer. Such construction would not only nullify the plain provisions of section 2021 of the same code, but would likewise destroy the right given by the statute for the perpetuation of testimony. The matter of the com•plaint is the matter to be litigated, and its allegations are deemed denied, and thus to constitute the matter in issue for the purpose of taking the deposition of plaintiff as allowed by law to the defendant before answer.</p>

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

PETITION for writ of mandate to the board of trustees of the City of Auburn, Placer County. The facts are stated in the' opinion of the court.

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

<p>APPEAL from a judgment of the Superior Court of Contra Costa County, and from an order denying a new trial. B. H. Latimer, Judge.</p> <p>The facts are stated in the opinion of the court.</p> <p>Leo J. McEnerney, Thomas S. Lynch, and H. E. Manning, for Appellant.</p>

<p>Criminal Law—Contributing to Dependency of Minor Under Juvenile Court Law—Pleading and Proof.-—Under the terms of the juvenile court law of 1909, before a defendant can be convicted of a misdemeanor for contributing to the dependency of a minor under the age of eighteen years, the fact that such minor has become a dependent thereunder, in one of the modes therein provided, or that there has been an adjudication of such dependency, must be distinctly alleged and proved.</p> <p>Id.—Charge of Contributing to Dependency of Female Minor— General Allegation of Delinquency—Insufficient Information.—Where the defendant was charged with contributing to the dependency of a minor female child under the age of eighteen years, named in the information, the general allegation that such female child “was then and there a dependent child—within the meaning of that certain act of the legislature,” referring to the title of the juvenile court law of 1909, is insufficient to inform defendant of the particulars of the charge which he is called upon to meet, and his demurrer to the information should have been sustained.</p> <p>Id.—Ground of Insufficiency of Information—Certainty Required. Merely charging that the child was a delinquent within the meaning ef the juvenile court law, when the statute enumerates many and different acts by reason of which a child may become a delinquent, cannot be said to satisfy the requirement of section 952 of the Penal Code, which provides that an indictment or information “must be direct and certain, as it regards, ... 3. The particular circumstances of the offense charged, when they are necessary to constitute a complete offense.”</p> <p>Id.—Facts Required to Make Information Sufficient—Lack of Allegation not Supplied by Acts of Defendant.—If the child against whom the offense of contributing to its delinquency is alleged to have been committed had been adjudicated to be a dependent child, it would have been sufficient to plead such adjudication; but when no legal adjudication is relied upon, the facts which constitute the child a dependent must be particularly stated. The lack of such necessary facts in the pleading cannot be supplied by statements in the information as to acts and things which the defendant is alleged to have done with the female child described in the information.</p>

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

<p>Boundaries op Incorporated Town op Antioch—Legislative Change —Adoption op Old Survey—Extension op Shore Line—New Map op Old Survey.—It is held that the boundaries of the town of Antioch, as incorporated and fixed by the supervisors of Contra Costa county February 6, 1872, so as to include three square miles along the shore line of the San Joaquin river, were changed' by the act of the legislature of March 30, 1872, to “define the boundaries of the town of Antioch, and extend the same,” which assumed only, to extend “the boundary and line of the town of Antioch, in front of said town, as surveyed and laid out by R. Eddy in the year 1866 to extreme low-water mark and low tide,” and to provide for a new survey of the town as shown on the map of the Eddy survey, which map included only a small fraction of the incorporated front line, and a very small fraction of the incorporated boundaries.</p> <p>Id.—Construction op Statute as to Extension op Boundary—Intention op Legislature.—Though the language of the statute is not as clear and free from ambiguity as it might be, its sections must be construed together, and its title must be looked to as an index to its meaning, and reading the entire act, including the title, it appears that the legislature intended to define the boundaries of the town, and not to extend its northern boundary as incorporated, there being no reference in the act to any incorporated boundary; nor can it be construed as extending its northern boundary except as shown in the Eddy map, but the northern boundary as shown on that map is treated as its correct boundary, which was intended by the legislature to be changed merely so as to be shifted northerly to the line of low tide.</p> <p>Id.—Practical Interpretation op Statute—Long Acquiescence by Public—Doubt as to Ambiguity Removed.—Where such interpretation of the statute was practically accepted as correct by the town authorities, and all persons in any way interested in the questions involved, and has been acquiesced in and acted upon by the town and its officers and the public for upward of thirty-eight years, and was never questioned until shortly before this suit was brought to test its right now to tax citizens within its original incorporated boundaries, outside of the boundaries fixed under the act of 1872, such contemporaneous construction, so long acquiesced in, is sufficient to justify the court in resolving any doubt as to the meaning of the ambiguous language employed by the legislature in favor of such long unquestioned interpretation.</p> <p>Id.—False Becital in Act as to Date op Record op Eddy Map— Identity 'Unappected—-Disregard op Recital.—Although the act of May 30, 1872, improperly recites that the Eddy map was filed for record at the time the survey was made, whereas it was filed for record two years later, which was four years prior to the date of the act, such recital may be treated as would a false call in a deed, where the description is otherwise sufficient for identification, and may be disregarded. Where the map is otherwise referred to as in existence, and as recorded, and there was only one map of Antioch made by Eddy, the map is fully identified, and the false recital as to the date of its record should- be disregarded.</p>

<p>APPEAL from a judgment of the Superior Court of Ventura County, and from an order denying a new trial. Frank R. Willis, Judge presiding.</p> <p>The facts are stated in the opinion of the court.</p> <p>Hiatt & Selby, Geo. F. Hatton, H. F. Peart, and Orestes Orr, for Appellants.</p>

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

<p>Criminal Law—Murder—Qualification of Jurors—Implied Bias— Contradictory Answers—Province of Court—Discretion—Review upon Appeal.—Where, on the impaneling of a jury for the trial of a defendant charged with murder, some of the jurors, in reply to questions by defendant's counsel, stated that they would enter the jury-box with an opinion that the accused was guilty, or would throw the burden of proof on him, with other similar statements, and were challenged for implied Mas, but upon being questioned by the district attorney, invariably replied that they would be governed by the law presented by the court, would presume the defendant innocent until his guilt was proved to their satisfaction, and would require the prosecution to establish Ms guilt beyond a reasonable doubt, under this state of the record, it was the province of the court to determine whether or not such jurors were disqualified for implied Mas; and its discretion will not be disturbed upon appeal, if no abuse thereof appears.</p> <p>Id.—Action of Juror in Other Murder Trials—Proper Disallowance of Questions—Presumption—Public Policy.—The court properly disallowed questions for defendant to a proposed juror upon the present murder trial, as to the verdicts rendered in several other murder trials, upon which the juror had theretofore served upon the jury. Such action of the juror in other cases, or in any particular case, would not constitute a criterion by which Ms conduct as a juror in tMs case might be judged, though involving a similar charge. The presumption is that such former verdicts were based upon the evidence then before the jury; and it would violate public policy to permit such presumption to he set aside to show ulterior motives in reaching such verdicts.</p> <p>Id.—Implied Bias—Relation of Attorney and Client Between . Juror and District Attorney—Proof at Time of Trial Essential—Guess of Juror—Challenge Properly Disallowed.—In order to sustain a challenge for implied Mas, on account of the relationsMp of attorney and client between the district attorney and a juror (assuming, without deciding, that such relationship comes within the terms of section 1074 of the Penal Code), it is not sufficient to show that such relationship previously existed, nor that it may be resumed in the future, but it must be affirmatively shown that it existed at the time of the trial. If the district attorney was then engaged in legal service for the juror, the challenger, by pushing the inquiry, could have proved it; but when he rested with the mere vague and indefinite “guess” of the juror “that he might be considered his attorney now,” the challenge is not sustained, and was properly disallowed.</p> <p>Id.—Beason fob Buling Disapproved—Delation of Attorney and Client Between District Attorney and Juror not a Ground of Challenge.—The reason for the foregoing ruling is disapproved. The proper answer to defendants’ claim is that the existence of the relation of attorney and client between the district attorney and a juror is not a ground for challenge, under section 1074 of the Penal Code, which does not include such a case. (By the supreme court in bank, on order denying rehearing.)</p> <p>Id.—Evidence—Means of Homicide—Bloody Bock—Exhibit—Expert Testimony—Broken Skull—Blunt Instrument.—The court properly admitted evidence that after the joint assault made by the defendant and his codefendant, separately tried, upon the deceased, a bloody rock was found near the scene of the homicide, and admitted the same as an exhibit, and also the expert evidence of physicians who knew that deceased had a broken skull, which must have been caused by some blunt instrument, which the rock exhibited was adequate to produce.</p> <p>Id.—Evidence as to Murder With Bock—Eye-witnesses.—Evidence of eye-witnesses who saw the defendant holding the deceased, while his codefendant was beating him with a rock, is admissible, not merely as part of the res gestae, but as the most significant and direct proof that could be adduced, in support of the very transaction of murder charged against them; and it sufficiently establishes defendant’s connection with and participation in the commission of the crime.</p> <p>Id.—Evidence of Conspiracy to Murder—Difficulty in Boardinghouse—Joint Departure of Codefendants Following and Killing Deceased.—Evidence that the defendant and his codefendant, separately tried for murder, had a joint difficulty with deceased in a boarding-house, and that after deceased left the house, the co-defendants jointly departed therefrom, and jointly pursued, assaulted and killed the deceased, was admissible as tending to show significant and pertinent links in the chain of circumstances leading to the establishment of a conspiracy between the codefendants to murder the deceased.</p> <p>Id.—Opening Statement of District Attorney—Correct Statements of Elements of Murder—Defendant not Prejudiced—Instruction.—Where the district attorney, in his opening statement, correctly explained to the jury the elements of the crime of murder, the defendant was not prejudiced thereby, especially when the court, upon the conclusion of such opening statement, emphatically warned and instructed the jury that they should not accept the law of the case from the counsel, but that it was their duty to be guided solely by the law as stated to them by the court.</p> <p>Id.—Loss op Visible Blood Stains on Bock at Time op Trial—Expert Evidence op Physician—Chemical Analysis—Compensation—Public Funds.—Where the rock exhibited, which was testified to have some blood thereon when found, had lost the visible appearance thereof at the time of trial, though the physician in attendance might be asked as to such visibility on his mere inspection, he could not be required, without compensation, to make a chemical analysis in order to qualify himself as an expert to testify whether there were blood stains on the rock. But the court properly declined, on motion of defendant’s counsel, to order such compensation to be paid out of the public funds.</p> <p>Id.—Exclusion op Offered Evidence op Intoxication of Dependant not Prejudicial—Sole Defense op Alibi—Deliberate Murder.— The exclusion of offered evidence of intoxication of the defendant was not prejudicial, where the sole defense claimed was that of alibi, to which such evidence was not germane, and where the ruling, if erroneous, could not be prejudicial, in view of the evidence and the nature of the circumstances under which the assault was committed, disclosing a deliberate and cruel murder, so that the excluded evidence could not result in a miscarriage of justice; and it could not reduce the offense to manslaughter.</p> <p>Id.—Seasons op Exclusion Disapproved—Evidence Clearly Erroneous—Bearing Only on Degree of Murder—Verdict op Second Degree.—The reasons given for the exclusion of evidence of such intoxication are disapproved. Such exclusion was clearly erroneous. But the utmost effect of the evidence would be to exclude the idea of the deliberation and premeditation essential to murder of the first degree, and reduce the offense to murder of the second degree. The defendant was found guilty of murder of the second degree only, doubtless because of the testimony of other witnesses tending to show a degree of intoxication. For this reason, plainly, no prejudice was suffered by defendant because of the erroneous ruling. (By the supreme court in bank, on order denying rehearing.)</p> <p>Id.—Befusal op Bequested Instructions.—The court properly refused instructions requested by the defendant, which were substantially embodied in the charge of the court, or which were objectionable because misstating the law, or as being argumentative or misleading or otherwise subject to just criticism. Where the court gave an elaborate and explicit statement of, the law pertinent to the case in all its features, it was not required to add thereto a prolix discussion on the law of homicide because requested.</p> <p>Id.—Requests as to Presumed Good Character op Dependant—Absence op Evidence.—Where there was no evidence as to the good character of the defendant as to the traits involved in the charge in the information, instructions requested by defendant, declaring that it was the duty of the jury to consider in the determination of the issue the presumption of good character of the accused, were properly refused. The court can neither consider a presumption of good character not proved, as adding weight to the presumption of innocence of the defendant, nor give weight to his assumed bad character, in determining the question whether the evidence establishes his guilt.</p> <p>Id.—Support op Verdict and Judgment.—It is held that the evidence is sufficient to support the verdict, and that no ground appears for reversal of the judgment or of the order denying a new trial.</p>

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