Volume 171 — California Reports

<p>The facts are stated in the opinion of the court.</p> <p>U. S. Webb, Attorney-General, George Beebe, Deputy Attorney-General, and John T. Nourse, Deputy Attorney-General, for Appellant.</p> <p>Henry T. Gage, W. I. Foley, O’Melveny, Stevens & Millikin, J. Wiseman Macdonald, Haas & Dunnigan, Hunsaker & Britt, and Lewinsohn & Kline, Amici Curiae, for Appellant.</p>

<p>Appeal from Judgment Refusing Injunctive Relief—Supreme Court cannot Give Relief by Supbp-Sedeas.—Where the superior court by its final judgment has denied the injunctive relief sought, refusing to make any provision in such judgment by way of injunctive relief pending appeal, the supreme court has no power, in aid of its appellate jurisdiction, t'o grant such relief by way of supersedeas.</p>

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

<p>Corporation Law—Subscription for Stock—Liability on—Insufficient Showing of Cancellation.—In an action to recover the amount of a subscription for capital stock of a corporation, where it appears that a certain amount of common stock had been issued to various parties, including the defendant, and that thereafter it was agreed amongst these parties, who were directors of the corporation, that their stock should be canceled and a lesser amount of fully paid up preferred stock issued to each, which agreement was approved by resolution (the resolution being signed and ratified by defendant), at a special meeting of the stockholders, and the common stock was surrendered, each party receiving his preferred stock, but no mention being made of the cancellation of the previous stock subscription of defendant in a written agreement embodying the stipulations of the parties, nor in the resolution of the stockholders approving the agreement, by the adoption of the terms of the resolution defendant deprived himself of the right to set up by way of defense any secret unfulfilled agreement for the cancellation of his subscription.</p> <p>Id.—Cancellation of Stock Subscription—Consent of Stockholders.—A subscription for capital stock of a corporation may only be rescinded or canceled with the unanimous consent of the stockholders, unless such 'subscription was obtained by fraud or mistake; but the stockholders may by their acquiescence ratify a release which the directors have given.</p> <p>Id.—Pleading—Amendments—Variance Between Verified Pleadings.—A party should not' be permitted to allege as ultimate facts matters at variance with facts to which he has previously sworn in a prior pleading, and the court can resort to the earlier pleadings to determine whether or not the one finally offered is . sham.</p> <p>Id.—Amended Answer—Proper Refusal of.—In such a ease the court properly refused to permit the defendant to file a third amended answer, on the ground that it was sham and not made in good faith, it appearing therefrom that wherever the newly proffered pleading varied from it's immediate predecessor it sought to aver conclusions instead of facts, and where by the omission from it of the -resolution of the stockholders, which was the fundamental trans action upon which the defendant must stand or fall, and by pleading that t'he corporation ratified the alleged contract of cancellation, defendant sought to avoid the result of a written, executed agreement which had been pleaded in his second amended verified answer.</p>

<p>Insurance Law—Semi-tontine Policy-—Bights of Beneficiary and Insured—Separation Agreement of Husband and Wife.—Where a semi-tontine life insurance policy, in which the tontine dividend period was twenty years, contained the usual covenants and provided that if the insured should die within any time during the existence of the policy, the insurance company would pay to the beneficiary (the insured’s then wife) the sum named, but also provided that upon the completion of the tontine dividend period, provided the policy should not have been terminated by lapse or death, the assured and his assigns, if creditors, should, without the consent of any other person named as beneficiary, have certain options, one of which was to surrender the policy and receive therefor in cash its entire share of assets, that is, accumulated reserve, together with the surplus apportioned, which reserve the company guaranteed should not be less than a certain named sum, in addition t'o said surplus, the interest in the accumulations of the policy after the period of twenty years from its issuance was property “standing in the name of” the assured which he was entitled to under a separation agreement between himself and his wife (the beneficiary), which conveyed to him all property standing in his name.</p> <p>Id.—Construction of Policy—Separate Provisions.—-The part of such policy providing for insurance and payment of the principal sum to the beneficiary in the event of the death of the insured within a certain period of years is separate and distinct from the contract to pay the “surrender value” to the insured if he should outlive that' term.</p> <p>Id.—Surrender Value—Uncertainty in Amount.—In such a case the uncertainty of the amount which the insured was to receive at' the expiration of the period of twenty years does not alter the situation in any respect, as that' amount was a property right standing in the insured’s name; and it is also immaterial whether the property at the expiration of the period was separate or community property, as it was a chose in action due at that time, which the wife surrendered her right's in by her contract.</p> <p>Id.—Interest of Assured—Assignability of.—The authorities fully sustain the proposition that the interest of the assured in such a case may be assigned before maturity.</p>

<p>APPLICATION for a Writ to Review an order of the Industrial Accident Commission of the State of California awarding to the widow of an employee of the Sierra Nevada Wood & Lumber Company (a corporation) compensation for the death of such employee from accidental injury in the course of his employment, on the ground that the evidence did not justify the finding of the commission that the proximate cause of death, was from the fracture of the fibula of the leg received in the accident, but that the evidence showed that the death was proximately caused from hypostatic pneumonia, which developed ten days after the happening of the accident from either chronic interstitial nephritis or fatty degeneration of the heart, from both of which diseases the deceased was suffering at the time of the accident.</p>

<p>Action fob Damages—Destruction of Asparagus Crop—Damages—■ Evidence—Gross Receipts and Expenses for Preceding Years — In an action for damages brought by a lessee of certain agricultural land planted to asparagus, against Ms lessor, who it is claimed unlawfully took possession of the leased property and plowed up and destroyed the asparagus growing thereon, it' is proper for the plaintiff to show the gross receipts and expenses of the premises for the five years preceding the destruction of the crop, in order to establish the average yield per acre of the land in ordinary years and under usual conditions.</p> <p>Id.—Evidence—Account Books-—-Erroneous Admission.—In such a case, however, it' was reversible error to allow one of the plaintiffs to testify to the contents of the account books of plaintiffs showing that the average yield of the net profits of the asparagus from the land for the preceding five years had exceeded a certain sum, where the only evidence of authentication of the books was the testimony of the witness that they were kept under his direction, that he was familiar with them and had examined them within the last day or two, that they were kept by the foreman on the premises and he saw them occasionally, and that they were in the Chinese language, there being no other substantial evidence of the probable value of the crop claimed to have been destroyed.</p> <p>Id.—Account Books—Foundation for Admission.-—In order to lay the foundation for the admission of such evidence it must be shown that the books in question are books of account kept in regular course of t'he business, that the business is of a character in which it is proper or customary to keep such books, that the entries were either original entries or the first permanent entries of the transactions, that they were made at the time, or within reasonable proximity to the time, of the respective transactions, and that the person making them had personal knowledge of the transactions, or obtained such knowledge from a report regularly made to him by some other person employed in the business whose duty it was to make the same in the regular course of the business.</p>

<p>Action to Recover Real Property—Proof op Title—Deeds—Evidence—Original Record.—Under section 1951 of the Code of Civil Procedure the original record of a deed properly acknowledged may be read in evidence to prove the contents of the deed, with like effect as the deed itself and without further proof.</p> <p>Id.—Instrument Recorded in Wrong Book—Evidence—Construction op Section 4135a, Political Code.—The effect of section 4135a of the Political Code would probably be that the record of an instrument in a wrong book in the recorder’s office, if it is properly indexed, would be competent evidence of the contents of the instrument; but where no proof was offered that a deed, recorded in the miscellaneous records, was properly indexed, a ruling of the trial court admitting it in evidence, over objection, cannot be sustained upon that ground.</p> <p>Ib.—U. S. Grant of Bight of Wat fob Transcontinental Railroad— Determination of Necessity of Land for—Lack of Power of Alienation.—The act of Congress of July 1, 1862, granting to the Central Pacific Railroad Company a strip of land four hundred feet in width through the public lands of the United States as a right of way upon which to construct and operate a railroad from the Pacific Ocean eastward to connect with the Union Pacific Railroad to be built westerly from the Missouri River, was a conclusive determination by the United States that the entire strip granted was-necessary for that purpose, and the grantee had no power to alienate or dispose of any part of it for any other purpose; and a transfer of the railroad from one company to another, as its successor in the administration of the public use and for the purpose of continuing the operation thereof, carried with it a transfer of the entire right of way, and gave to the transferee a right of possession thereto.</p> <p>Id.—Adverse Possession—Proof of Ownership—Sufficiency of Evidence.—In an action by the successor in interest of the Central Pacific Railroad Company to recover a portion of said right of way from an individual claiming title by adverse possession, the finding that the plaintiff company had acquired title from the latter railroad company prior t'o the beginning of the action, was sustained by the evidence, where it appeared from numerous references and statements made during the trial that the plaintiff had been given possession of a strip along the railroad one hundred feet wide fenced by plaintiff’s predecessor in interest and had been operating t'he railroad thereon for several years before the beginning of the action, and it being practically conceded that the plaintiff had in some manner acquired lawful possession of the railroad and of the one hundred foot strip before the action was begun, as the inference from these facts is that plaintiff had acquired the right to both the right of way and railroad from the former owner, which would carry the corresponding right to the entire strip of four hundred feet, since the railroad company could not-lawfully separate a part from the whole.</p> <p>Id.—Transfer of Right of Way—Proof of—Stipulation—Admissions. In such a case, where t'he parties to the action made and put in evidence a stipulation declaring that, pursuant to section 3664 of the Political Code, statements describing the franchise, roadbed, rails, and rolling stock of the railroad had been furnished to the board of equalization each year from 1880 to 1910 by “plaintiff’s prede cessor in title Central Pacific Railroad Company and plaintiff,” and that these statements described “the right of way or roadway of said Central Pacific Railroad 'Company and of plaintiff,” as being one hundred feet in width, this is a direct- admission that the plaintiff had succeeded to the title of the Central Pacific Railroad Company to the railroad and to the right of way therefor to the extent of one hundred feet, and as the original grantee could not, without the consent of Congress, alienate or dispose of the right of way or any part thereof, except in connection with and as a part of it's railroad for railroad purposes, this carried with it a transfer of the entire right of way.</p> <p>Id.—Construction of Grant—Rule of -Construction of States not Followed.—The supreme court of the United States has established the rule that the courts of the United States will construe the grants of the general government without reference to the rules of construction adopted by the states for their grants; and the effect of such a grant must be determined in accordance with the decisions of the federal courts.</p> <p>Id.—Nature of Grant—Estate in Fee—Public Use—Lack of Power to Alienate—Determination of Necessity of Land for Right of Way.—The estate granted in the strip designated as a right of way by said act of Congress was an estate in fee for a special public purpose, subject only to reverter at the instance of the United States if the public use was not properly maintained, and the railroad company could not alienate any part of the right of way so as to interfere with the full exercise of the franchise granted, and the grant was a conclusive determination that the entire four hundred foot strip was necessary for the publie purpose for which it was granted.</p> <p>Id.—Public Way—Adverse Possession—Title not Acquired by.— Title to a public way cannot be gained by adverse possesion, no matter how long continued.</p> <p>Id.—Act of Congress of 1912-—Title by Prescription-—-Construction of Act—Act not Retroactive—Beginning of Running of Statute.—The act of Congress of June 24, 1912, purporting to allow prescription in such portion of the right of way granted to the Union Pacific Railroad as should be in the adverse possession of individuals long enough to acquire title by prescription under the state laws, and granting the same to persons thus in possession, is specifically made applicable to the grant to the Union Pacific Railroad Company, and it' cannot be extended by implication to the right of way granted to the Central Pacific Railroad Company; and, moreover, it is held by the supreme court of the United States that the act of 1912 is not retroactive, that the statute of limitations of a state did not begin to- run as to such lands until its passage and that possession prior to the statute had no effect' on the title.</p> <p>Id.—Police Powers of State—Grant not Subject to.—The railroad to be built over the right of way in question was a transcontinental road operating through several states and in furtherance of interstate commerce, a subject over which the federal authority is paramount, and -a state could not impair or restrict a public way declarecl necessary by the United States for that purpose by any attempt to limit the width of the right of way established by Congress over the public lands of the United States; and a state law-authorizing a railroad company to lay out its road not exceeding nine rods wide cannot' be held to divest the railroad company of that part of the right of way in excess of four and one-half rods from the center line of its railroad.</p> <p>Ib.—Eight op Way—Forfeiture.—There could be no forfeiture of such right of way without the consent of Congress, and there has been no consent.</p> <p>Id.—Estoppel—Payment fob Land—Improvements.—In such a case plaintiff is not estopped from maintaining an action by reason of the fact that the defendant paid for the subdivisions of land, which included the right of way in question, at the rate of five dollars an acre, computed on the entire acreage of said subdivisions, and has improved and cultivated the land during the forty-one years of his possession thereof.</p> <p>Id.—Improvements—Equity.—No equitable considerations arise in such a case from the fact that the defendant made improvements upon the land, which consisted only in leveling to make it fit for cultivation, and more productive, where he received the entire profit thereof for many years, which more than equaled t'he expense of these improvements.</p>

<p>Criminal Law—Murder—"Verdict Justified by Evidence.—In this prosecution for murder, it is held that while the accounts of the tragedy which were given by the various witnesses differed in many particulars, there was ample evidence to justify the verdict if the jurors believed the statements of the witnesses for the people.</p> <p>Id.—Evidence—Impeachment of Defendant—Statements Made in Interview With Officers—Use on Cross-examination—Proper Practice.—In such a prosecution, it is not an objectionable mode of procedure, but one quite in accordance with the usual practice as provided by section 2052 of the Code of Civil Procedure, to permit the district attorney upon the cross-examination of the defendant to ask him a number of impeaching questions based upon an interview between the defendant, a deputy sheriff and the district attorney in the presence of a phonographic reporter, where it is shown that the defendant was fully advised of his rights before Such interview was had,</p> <p>Id.—Evidence—Threats of Defendant—‘Conflict of Testimony— Duty of Jury—Appeal.—Where the evidence is conflicting as to whether or not the defendant had uttered threats against the deceased, it is the duty of the jurors, under proper instructions, to determine the fact from the conflicting testimony, and the appellate court has no power to set aside their conclusions so reached.</p> <p>Id.—Proof of Interview — Testimony of Reporter — Introduction After Testimony of Defendant — Proper Refusal to Strike Out.—Where in such a prosecution, the phonographic reporter is called to testify that the defendant had given the answers indicated by the impeaching questions, it is not error to refuse to strike out such testimony on the ground that it should have been received, if at all, as a part of the prosecution's main case, as such witness was only called for the purpose of impeachment.</p> <p>Ib.—Direct Examination of Reporter—Proof of Parts of Interview —Narration of Entire Conversation—Order Properly Refused. Where the testimony of such reporter upon his direct examination is confined to the giving of parts only of the interview, it is not error to refuse to order that he read his notes of the entire conversation, part of which was given upon his direct examination.</p> <p>Id.—Private Memoranda of District Attorney—Piling as Exhibit— Requested Order Properly Refused.—The refusal of the court to order the district attorney to file as an exhibit the paper which he was using as a memorandum in framing his questions to the defendant concerning the conversation held shortly after the latter’s arrest, is not error, where it was stated that the writing contained such officer’s private memoranda of the interview and it was offered to opposing counsel for inspection.</p> <p>Id.—Impeachment of Defendant — Rebuttal Testimony — Threats Against Deceased.—It is proper in such a prosecution after the denial by the defendant that he ever made any threats against the deceased, to permit the state to prove the contrary by the witness to whom such threats were made, although such testimony might have been introduced by the prosecution as part of its case in chief for the purpose of showing malice.</p> <p>Id.—Misconduct of District Attorney—Defendant not Prejudiced.— It is held herein that after a careful consideration of all of the instances of the district attorney’s alleged misconduct, that neither singly nor in the aggregate, they present any reason for a reversal of the judgment or of the order refusing a new trial.</p>

APPLICATION originally made in the Supreme Court for a Writ of Review against the members of the industrial accident commission to review its findings allowing compensation to an employee for disability. The facts are stated in the opinion of the court. T. T. C. Gregory, D. Hadsell, and J. G. Sweet, for Petitioner.

APPLICATION originally made to the Supreme Court of the State of California for a Writ of Certiorari to review the action of the railroad commission in refusing a certificate to a telephone company that the public convenience requires the extension of its system in a certain city. The facts are stated in the opinion of the court.

APPLICATION originally made to the Supreme Court of the State of California for a Writ of Certiorari to review the proceedings of the industrial accident commission denying an application of a father and mother for compensation for the death of their son. The facts are stated in the opinion of the court.

APPLICATION originally made to the Supreme Court of the State of California for a Writ of Habeas Corpus. The facts are stated in the opinion of the court.

<p>APPLICATION originally made to the Supreme Court of the State of California for a Writ of Habeas Corpus.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Contracts—Exchange of Lands—Speoifio Performance—Defense— Inadequacy of Consideration—Burden of Proof.—Whatever maybe the rule in the absence of statute,—and on this point the authorities in other jurisdictions are not in harmony,—section 3391 of the Civil Code and the decisions of the supreme court of California establish the rule in this state, that inadequacy of consideration is an independent and distinct ground for denying specific performance, and the burden of alleging and proving the adequacy of the consideration is upon the party seeking the relief.</p> <p>Id.—Determination of Adequacy of Consideration.—In determining whether the consideration is adequate the court is not guided solely by a comparison of the price agreed to be paid with the value of the property to be conveyed, but this is a factor to be viewed by the court in conjunction with all of the other facts and circumstances of the case, and it is peculiarly a question of fact for the trial court to determine in the light of all the circumstances, which determination will not be set aside on appeal unless it is clear that it has no support in the evidence.</p> <p>Ib.—Value op Property and Contract Price Need not be Same.—It is not necessary to the granting of the relief of specific performance that the value of the property to be conveyed, as found by the court, shall be exactly equal to the price agreed to be paid. A price which may vary somewhat from the value found may be deemed adequate, if it has been fixed by the free agreement of the parties acting with full knowledge of all the conditions, and the contract is fair and just in other respects.</p> <p>Id.—Findings—When not Inconsistent.—There is no legal inconsistency in the findings in an action for the specific performance of a contract to exchange lands that the plaintiff’s property was worth one thousand eight hundred dollars, that the defendant’s property was worth two thousand five hundred dollars, and that the consideration was not adequate, nor the contract fair, just, or reasonable as between the parties; and, if it ik possible, as it clearly is, t'o suppose a state of facts under which the transfer of property worth one thousand eight hundred dollars would not be an adequate consideration for the conveyance of property worth two thousand five hundred dollars, it must be inferred in support of the judgment, that such facts were shown to the trial court.</p>

<p>Appeal—Findings—Conflicting Evidence.—A finding of fact upon a substantial conflict in the evidence will not be reviewed on appeal.</p> <p>Inheritance Tax—Value op Land—Evidence—Opinions op Witnesses.—In the determination of the value of land for the purpose of fixing the amount of the inheritance tax, while the opinions of witnesses qualified by their knowledge of the subject are competent evidence, the witnesses cannot, upon direct examination, be allowed to testify as to t'he price at which other property in the neighborhood had been actually sold, at or near the time of the death of the decedent. The only part of the examination of the witnesses in which evidence of the prices of particular sales can be admitted is in cross-examination by the opposing party, and such questions can be asked for the purpose of testing the witness’ knowledge and impeaching his opinion; nor ig the rule any different in this regard in valuing land for the purpose of fixing inheritance taxes from the rule in any other case where value is in issue.</p> <p>Id.—Qualimoation op Witness—Familiarity With Other Property.— The party calling a witness to give his opinion on value may qualify Mm by showing his familiarity with the property and with other property in the neighborhood, his experience in the business, his familiarity with the state of the market and of sales of similar property in the vicinity, and any other facts tending to show his knowledge of the subject and capacity to give an opinion thereon.</p> <p>Id.—Evidence—'Cost op Subdividing Property.—In such a proceeding it is not improper to allow the introduction of evidence showing the cost of subdividing the property into lots and improving t'he same to make them suitable for sale.</p> <p>Id.—-Opinion op Witness—Reasons 'por—Waiver op Objection.—In such a case an objection to a ruling of the court refusing to allow expert witnesses, after they had given their opinions as to the value of the property, to state the reasons upon which such opinions were based, is waived, where the record shows that the ruling made upon the examination in chief was not a final one and that, both in the preliminary examination and in the cross-examination of each witness, the reasons for the opinions' were fully stated, and where before the close of the trial, opposing counsel Withdrew all objections and offered to allow the appellant to recall the witnesses and elicit from them the reasons which formed the bases of their respective opinions, which offer was rejected, and the record indicates that the court would have allowed it.</p>

APPLICATION originally made to the Supreme Court of State of California for a Writ of Review against the industrial accident commission. The facts are stated in the opinion of the court.

<p>Corporations—Drainage Districts—Residence—Principal Place of Business—Section 392, Code of Civil Procedure.—A corporation, like an individual, has a legal residence somewhere, and it is thoroughly settled that within the contemplation of such statutes as section 392 of the Code of Civil Procedure, a private corporation must be held to reside at the place “where its principal office or place of business is established,” and this applies to a municipal corporation, as well as to a public body known as a drainage district.</p> <p>Id.—Drainage Districts—Corporations—Powers of Legislature to Create.—The public body known as the defendant drainage district, created by an act of the legislature approved May 26, 1913 (Stats. 1913, pp. 252-276), amending a previous act (Stats. 1911, pp. 117, 118), for the purpose of controlling the flood water of the Sacramento River and its tributaries, establishing and creating by-passes or overflow channels to carry and convey such flood water, to acquire property and easements for such purposes and to pay for the same by assessments to be made and levied upon the lands within the drainage district, which district is managed and controlled by a reclamation board comprising seven members, is a corporation, although not a private or municipal corporation, but nevertheless one which the legislature has the power to create and control. Its principal place of business, and place of residence, is Sacramento County.</p> <p>Id.-—Construction of Section 16, Article XII of Constitution—Applicable to Private Corporations Only.—The twelfth article of the constitution relates exclusively to private corporations, and consequently the provisions of section 16 have no application to a suit against a public or municipal corporation, nor against a drainage district’; and the contention that under this section an action against a drainage district for compensation for land taken for a by-pass may be tried at the election of the plaintiff “in the county where the contract is made, or is to be performed, or where the liability arises or the breach occurs, or in the county where the corporation has its principal place of business,” cannot be maintained.</p> <p>Id.—Claim for Land Taken for By-pass—Character of Action on— Venue.—Under the first provision of the act creating the defendant drainage district, the person who, with the consent of the reclamation board, has provided or left land for a by-pass or waterway for the purpose' of complying with the plans, is entitled to “proper compensation . . . for the right of way or easement through such by-pass,” prior to the conveyance, where the board has accepted his proffer and, with his consent, has gone into possession, and an action to recover such compensation is not one for injury to real property within the meaning of section 392 of the Code of Civil Procedure, and does not differ in character from any ordinary action to recover money due upon contracts, and it is in no sense a local action; and such an action should on motion of the defendant therefor be changed for trial to the county where the defendant’s legal residence is.</p>

<p>Dismissal of Action—Delay in Serving Summons—Power of Court. The trial court has power to dismiss an action for undue delay in issuing or serving summons, even though the delay has been for a shorter period than that which, under the terms of section 581a of the Code of Civil Procedure, gives the defendant an absolute right to dismissal.</p> <p>Id.—Insufficient Grounds for Delay in Serving Summons—When Court’s Discretion not Abused.—In an action to set aside a lease which had about nine years to run at the time the complaint was filed, the court did not abuse its discretion in dismissing the action for lack of prosecution where there was over twenty-one months’ delay in serving the summons after its issuance, the sole reason assigned for the delay being that one of the defendant's was arrested on a charge of murder, and that from the time of his arrest until his acquittal the plaintiff held the proceedings in the present action in abeyance because of her desire not to prejudice him in his defense against so grave a charge, but the evidence showing that the murder charge was not instituted until four months after the action was commenced, and there was a period of seven months or more after the termination of the criminal proceeding before the summons was served, neither of which delays was explained, and it appearing that the defendants had expended large sums of money in making permanent improvements on the land leased to them.</p> <p>Id.—Excuse for Delay—Alleged Misrepresentation—Hearsay Evidence of Amicable Settlement.—There was no abuse of discretion in such a case in denying a motion to vacate the judgment of dismissal based upon a claim of misrepresentation made by the attorney for the defendants who, it is alleged, informed the associate of plaintiff’s attorney that all the differences between the parties had been amicably adjusted and that they were again all living happily together, where the only proof of such misrepresentation was contained in the affidavit of the attorney that his client told him that the statement was untrue, this evidence being purely hearsay and entitled to no consideration.</p>

<p>Criminal Law—Murder—Sufficiency of Evidence.—In this prosecution for murder it is held that the record is such as to indicate that the jury could not reasonably arrive at any other conclusion except that the defendant was guilty of murder in the first degree.</p> <p>Id.—Testimony Taken Before Grand Jury—Construction of Sections 925, 869, Penal Code.—Section 925 of the Penal Code prescribes the only instance under which the testimony given before a grand jury shall be reported by a stenographic reporter or at all, and that is, “on the demand of the district attorney” the grand jury must appoint such a reporter. Where no such demand is made by the district attorney, it is not required that the testimony be reported. Section 869 of the Penal Code is applicable only to preliminary examinations by magistrates.</p> <p>Id.—Bight of Defendant to Copy of Testimony.—The provision of section 925 of the Penal Code, that the defendant shall be furnished with a copy of the testimony given before the grand jury, does not purport to apply to a case in which no demand is made for a reporter and the testimony has not been taken down by a reporter.</p> <p>Id.—Qualification of Juror—Challenge for Actual Bias.—It is held in this case that the challenge for actual bias interposed against a certain juror who was subsequently excused by peremptory challenge, was properly denied by the trial court.</p> <p>Id.—Evidence—Cross-examination.—Cross-examination of a witness on a collateral matter, as to which no examination was warranted by anything adduced on the direct examination of the witness, is properly refused; and in such a case a question asked of the widow of the deceased on cross-examination, “And was there not a Japanese arrested by reason of his being at your place and disturbing your ■peace and that of your husband?” is objectionable for this reason.</p> <p>Id.-—Examination of Deputy District Attorney—Causing Arrest of Japanese Threatening Life of Deceased—Opinion.—In such a case objection on the general grounds was properly sustained to a question asked by the defendant of a deputy in the district attorney’s office as follows: “Did you not cause the arrest of a Japanese for threatening to take the life of the wife of this man that was killed?” Such an act on the part of the witness would have amounted to no more than an expression of opinion by him to the effect that information given him was sufficient to warrant a judicial investigation, something that is clearly inadmissible.</p> <p>Id.—Pistol and Cartridge Shells Pound Near Body of Deceased.— In such a case there was no error in allowing in evidence a 38-eali-her pistol found near the body of the deceased, and the cartridge shells (five loaded and one unloaded) taken therefrom, where one of the bullets causing the death was of 38-caliber.</p> <p>Id.—Instructions—Circumstantial Evidence.—An instruction that, “There is nothing in the nature of circumstantial evidence that renders it any less reliable than in other classes of evidence. A man may as well swear falsely to an absolute knowledge of the facts as to a number o-f facts from which, if true, the facts on which the guilt' or innocence depends must inevitably follow,” is more in the nature of argument than a declaration of law, and might better have been omitted from the instruction, but it does not constitute reversible error, nor can it' he held that under the circumstances of this case the instruction in effect and inferentially told the jury to disregard the testimony of the defendant.</p> <p>Id.—Motion tor New Trial—'Claim That One op the Jurors Slept While Part op Testimony Taken—Conflicting Evidence—¡Ruling op Court Conclusive.—In such a case where an affidavit of one of the attorneys for t'he defendant was filed on motion for new trial in which it was substantially charged that one of the jurors was asleep during a great portion of the time that one of the witnesses for the prosecution was testifying, which fact was positively denied by the affidavit of the juror, there being a conflict of evidence on the question, the ruling of the trial court denying the motion for a new trial in so far as this ground was concerned, thereby accepting the statement of the juror as true, is conclusive on appeal.</p>

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

APPLICATION originally made to the Supreme Court for a Writ of Mandate against the chairman of the board of supervisors of Los Angeles County to compel him to sign a contract and to fix the time for beginning and completing certain road work. The facts are stated in the opinion of the court. Albert J. Sherer, Robert Young, Hartley Shaw, and Arthur G. Baker, for Petitioner.

<p>Criminal Law—Habeas Corpus—Motion to Quash Writ—Unauthorized Procedure.—A motion to quash a writ of habeas corpus is in the nature of a demurrer to the petition, and is not contemplated by the procedure on habeas corpus in this state.</p> <p>Id.—Act Imposing License Tax on Itinerant Drug Venders—Constitutionality of.—The act of 1903 (Stats. 1903, p. 284), as amended in 1907 (Stats. 1907, p. 765) and 1909 (Stats. 1909, p. 419), is not repugnant to section 1 of the fourteenth amendment of the constitution of the United States.</p> <p>Id.—Definition of Itinerant Venders—Hawkers and Peddlers.— The definition of an itinerant vender as found in section 3 of the act is broad enough to include hawkers and peddlers.</p> <p>Id.—Police Power—Construction of Constitution.—The fourteenth amendment of the federal constitution was not designed to interfere with the reasonable exercise of the police power in the several states; and said act constitutes a valid exercise of the police power of the state.</p> <p>Id.—License Tax Act—General Law.—Said act imposing a license tax is a general law, enforceable in every part of the stat'e, regulating the business of selling or in any manner disposing of drugs within the state by itinerant venders, as that term is defined in section 3 of the act.</p> <p>Id.—Regulation of Business—Act not for Revenue.—By said act the legislature only intended to regulate the business of selling drugs by itinerant venders within the limits of the police power of the state and did not assume to exercise the power of taxation for the purposes of revenue.</p> <p>Id.—Amendment of 1907 — Exemption of Ex-Union Soldiers and Sailors—Constitutionality of Act.—The third proviso of section 2 of the act as amended in 1907, relating to the exemption of ex-Union soldiers and sailors, does not render the act unconstitutional, as it is a general law enforceable throughout the state and the proviso plainly indicates that the exemption applies only to a license tax of any county, town, or village, incorporated city or municipality in the state of California, and is merely a legislative disclaimer of any intention to interfere in any sense with the exemption act of 1905 (Stats. 1905, p. 307), permitting such ex-soldiers and sailors to vend, hawk and peddle goods in any county, town, or .village, incorporated city or municipality within the state, without a license, and cannot be held to apply to persons required to pay the state license tax.</p> <p>Id.—Act of 1903 and Pharmacist Act—Construction of.—The act of 1903, as amended in 1907 and 1909, and the Pharmacist Act' to which it refers, are supplementary to each other and together constitute the legislative plan for regulating the entire business of selling drugs, nostrums, and ointment's, and they indicate an intent to regulate rather than to tax, and cannot be held to arbitrarily place an unequal burden upon a class.</p> <p>Id.—Amount of License Fee—Reasonableness of.—It cannot be held as a matter of law that the legislative judgment as to the amount of fee or charge reasonably necessary for the regulation of the business covered by the act of 1903, viz.: one hundred dollars for each half year, is wrong.</p>

<p>APPLICATION for a Writ of Mandate directed to the Board of Supervisors of Los Angeles County.</p> <p>The facts are stated in the opinion of the court.</p>

<p>APPLICATION for a Writ of Mandate' directed to the registrar of voters of the City and County of San Francisco.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Trespass—Injury'to Gate—Finding not Sustained by Evidence.—In an action for trespass in breaking and injuring a gate alleged to belong to the plaintiff, a finding that the gate was situated upon land described in the answer belonging to the defendant is held not sustained by the evidence.</p> <p>Appeal—Printing Evidence in Briefs.—On an appeal from the judgment, where the evidence is presented in the method provided by section 953a of the Code of Civil Procedure, its sufficiency to support a particular point raised will not be considered unless it is printed in the briefs.</p>

<p>Street Assessment—Improvement of Single Block—Posting Notices Along Line of Work—Pleading.—Under the Vrooman Act and its amendments (Stats. 1885, p. 147), as it stood in October, 1911, if was a jurisdictional prerequisite to the validity of a contract for the improvement of a single city block, and of the assessments based thereon, even if the block were only one hundred feet long or less, that at least three of the notices required by section 3 of the act be posted along the line of the work; and a complaint to enforce the lien of such assessments, which alleges the posting of two notices, implies that nothing more was done in that respect, and fails to state a cause of action.</p> <p>Id.—Regularity of Assessment—Documents Establishing Prima Facie Regularity—Rule of Evidence.—Such defect in the complaint is not cured by other allegations concerning the making of the assessment for the expenses of the work which show that the warrant, assessment, certificate, and diagram, with the affidavit of demand and nonpayment, were regular in form, as section 12 of the act providing that these documents shall be prima, facie evidence of the regularity of the assessment and of the prior proceedings creates a mere rule of evidence and not a rule of pleading, and does not obviate the necessity of alleging the facts essential to give the city council jurisdiction to proceed with the work.</p> <p>Id.—City of San Jose—Charter Provisions in Conflict With Vrooman Act.—Under the amendment of 1896 to section 6 of article XI of the constitution, the provisions of the charter of San Jose adopted in 1897, relating to street improvements, prevail over those of the Vrooman Act wherever a conflict exists.</p> <p>Ib. — Affidavit of Contractor — Filing With Superintendent of Streets—Condition Precedent to Assessment.—In an action for the foreclosure of a street assessment for a street improvement in the city of' San Jose, the complaint must allege the filing by the contractor with the superintendent of streets of the affidavit required by section 8 of chapter 1 of article VIII of the city charter, as a condition precedent to the making of the assessment.</p> <p>Id.—Affidavit Accompanying Bid—Condition Precedent to Power to Make Contract.—Compliance with the provisions of section 6 of the same section of the charter, requiring each bidder to place on Ms bid Ms affidavit that it is not sham and that he intends no fraud or collusion, is a condition precedent to the power to enter into the contract for the work, and must be alleged in the complaint.</p>

<p>Schools—Competitive Plans and Specifications—Act of 1872 Superseded.—The aet entitled “An act to regulate the erection of public buildings and structures” (Stats. 1871-72, p. 925), in so far as it originally applied to the construction of school buildings, has been superseded by the subsequent enactment of various sections of the Political Code applying to the erection of school buildings, and the provisions of the aet calling for competitive plans and specifications are no longer in force.</p> <p>Id.—Prior Statute Superseded by Later on Same Subject—Bepeal by Implication.—While it is true that repeals by implication are not favored, whenever it becomes apparent that a later statute is revisory of the matter of an earlier statute and is designed as a substitute for it, the later statute will prevail and the earlier will be held to have been superseded even though there be found no inconsistencies' or repugnancies between the two. It is not so much a repeal by implication as it is that the legislature having made a new and complete expression of its will upon the subject this last expression must prevail, and whatever is excluded therefrom must be ignored.</p>

<p>Union High School Districts—Contract fob Erection of School Building—Advertising fob Bids Essential to Validity.—Under section 1674 and subdivision 22 of section 1617 of the Political Code, the trustees of a union high school district have no power, in the course of the construction of a high school building, to contract for a portion of the work involving an expenditure of more than two hundred dollars, without advertising for competitive bids and awarding the contract to the lowest responsible bidder. A contract so attempted to be made is void.</p> <p>Id.—District not Liable on Quantum Meruit.—In view of the express limitations upon the power of the board to contract imposed by subdivision 22 of section 1617 of the Political Code, the fact that the district received the benefit of the labor and materials of the contractor, does not render it liable therefor on an implied contract in an action on quantum meruit.</p> <p>Id.—Statutory Limitations on Power to Contract.—When by statute ■the power of a board or municipality to make a contract is limited to a certain prescribed method of doing so, and any other method of doing it is expressly or impliedly prohibited, no implied liability can arise for benefits received under a contract made in violation of the particularly prescribed statutory mode. Under such circumstances, the statutory mode is the measure of the power.</p>

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

<p>Easements — Bight of Wat for Pipe-line — Adverse Possession— Declarations of Plaintiff’s Predecessor in Interest.—In an action to recover damages caused by the defendant in interfering with the flow of water in a pipe-line constructed by the predecessor of the plaintiff across the defendant’s land to the land of the plaintiff, in which the plaintiff claims an easement to maintain the pipeline arising from"adverse user and not under the terms of a contract entered into by the predecessors of the parties, evidence is admissible of the declarations of the predecessor in interest of the plaintiff showing, or tending to show, that his use of the pipe-line was not adverse.</p> <p>Id.—Insufficient Evidence of Adverse Possession.—The acquisition of title to such easement by adverse possession is not established by evidence that the plaintiff’s predecessor built the pipe-line under the erroneous view that the law gave him the right to use the land of another for his pipe-line, provided he laid it “plow deep,” where such conception of his legal rights was not communicated to the owner of the land.</p> <p>Id.—Elements Essential to Adverse User.—One claiming a right of way by prescription has the burden of proving clearly, by competent evidence, all of the elements essential to such a title. The user must have been actual, open, continued, under claim of right, adverse and hostile to the true owner’s title. To make the user adverse, in the legal sense, it must have been with the knowledge and acquiescence of the owner of the land.</p> <p>In.—Contract Granting Bight of Wat for Pipe-line—Want of Execution bt Beneficiaries of Contract.—In such action the defendant, in support of his contention that the pipe-line was laid across his land under the terms of a recorded contract made between a company supplying the water and previous owners of the land for the benefit of adjacent lands, including that of the plaintiff, is entitled to have such contract admitted in evidence for all purposes, notwithstanding it was not signed by the owners of such adjacent lands.</p> <p>Id.—Notice—Becorded Contract.—Such a recorded contract was notice to the owners of property who laid pipes across the land of the defendant’s predecessors in interest, that if they acted under its terms they must also hear the burdens of it.</p> <p>Id.—Acceptance of Benefits of Contract.—One for whose benefit a contract is made, although he fails to sign it, is nevertheless bound thereby, if he takes advantage of its provisions and proceeds to act under them.</p> <p>Id.—'Cutting Off Water Used for Irrigation—Elements of Damage. In estimating the damage resulting from cutting off the supply of water used for irrigating an orchard, the costs of cultivation and marketing the crop are proper elements to be considered.</p> <p>Id.—Witness—Memoranda Made by Third Person.—A witness, whose testimony was based entirely on memoranda made by a third person, cannot testify as to the amount of water delivered to the plaintiff.</p> <p>Contract—Construction Primarily for Trial Court—Appeal—Law of Case.—Whether a contract is in any of its terms or provisions ambiguous or uncertain is a matter of determination in the first instance by the trial court. If it is found so to be, it is primarily the duty.of the trial court to construe it, after a full opportunity afforded the parties to produce evidence of the facts, circumstances and conditions surrounding its execution, and the conduct of the parties relative thereto. Until so construed, and the accuracy of the determination of the' trial court is directly questioned on appeal, the supreme court should not in the first instance undertake to construe it so that its determination would operate as the law of the case on a new trial.</p>

APPEALS from a judgment of the Superior Court of Los Angeles County, from orders refusing a new trial, and from orders refusing to vacate the judgment and to. enter a different judgment. Walter Bordwell, Judge. The facts are stated in the opinion of the court. Eugene S. Ives, Irving M. Walker, and Joseph H. Call, for Appellants.

MOTION by the Southern Pacific Company, an appellant in the case of Title Insurance & Trust Co. v. California Development Co., ante, p. 173, for an order of the supreme court approving an agreement of sale. The facts are stated in the opinion of the court, and in the opinion in Title Insurance & Trust Co. v. California Development Co., ante, p. 173. Eugene S. Ives, Irving M. Walker, and Joseph H. Call, for Appellants.

<p>Deed of Trust—Foreclosure—Bondholders Represented by Trustee —Appearance bt Bondholder.—In an action of foreclosure instituted by the trustee under a deed of trust securing a bond issue, a bondholder is represented by the trustee on the application of the latter for the appointment of a receiver, and is bound by the trustee’s iona fide acts so long as he does not appear in the proceeding individually. When he does so appear, he is entitled to stand upon his own rights and take such action as he sees fit for their protection.</p> <p>Id.—Receiver—Objection to Appointment—Waiver.—It is the duty of an intervening bondholder to make timely objection to the appointment of the receiver, if he is not content to have it stand. Failure to make such objection is a waiver of the right to make it, and the intervener cannot on appeal present points of attack which he did not present in the trial court.</p> <p>Id.—Motion to Discharge Receiver—Insufficiency of Complaint and Affidavit.—Having founded Ms motion to discharge the receiver on the sole ground that the undertakings were insufficient, he cannot, after final decree, raise the objection for the first time on appeal ■that the complaint and the accompanying affidavit were insufficient to authorize the appointment of a receiver, although such objection would have been good if not waived.</p> <p>Id.—Defects in Undertakings—New Undertakings Filed Prior to Motion.—Where the intervening bondholder moves to discharge the receiver for defects in the undertakings filed in pursuance of the provisions of sections 566 and 567 of the Code of Civil Procedure, and, prior to the determination of the motion, new undertakings sufficient in form are filed by order of the court, the defects in the original are thus cured, so as to make the appointment of the receiver valid at least from the time of the filing of the new undertakings.</p> <p>Id.—Receiver’s Certificates—Private Corporation—Care and Preservation of Property.—In an action to foreclose a deed of trust securing a bond issue against the property of a private, as distinguished from a gnosi-public corporation, the court, while it cannot, as against the objection of bondholders, issue receiver’s receipts and make them a prior lien upon the mortgaged property, for the purpose of procuring funds to continue the management and operation of the business, may issue such certificates and give them priority to enable the receiver to care for and preserve the property. In the present case the evidence shows the certificates were issued for the latter purposes.</p> <p>Id.—Unaccomplished Fraudulent Scheme to Acquire Property Through Certificates.—Where the trustee for the bondholders, after actual default, in good faith instituted the action of foreclosure and asked for the appointment of a receiver, certificates 'issued by the receiver, and used for the preservation of the property, should not he denied recognition, merely because they have come into the hands of a party which had designed a fraudulent scheme, which was never consummated, for the acquisition of the mortgaged property under receiver’s certificates.</p> <p>Id.—Expenditures on Property in Foreign Country—Effect on Priority.—The expenditure of the money realized from the sale of certificates upon properties situated in a foreign country, on which the bondholders had an equitable lien, under the provisions of the deed of trust, did not destroy the priority of the certificates as to the mortgaged property situated in this state, when such expenditures were necessary to protect the latter property.</p>

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

<p>Jury—Special Issue—Consent oe Appellant.—The impropriety of a special issue that was submitted to the jury at the request of both parties cannot he complained of by the appellant.</p> <p>Agency—Sale oe Real Estate—Commissions Contingent on Payment oe Purchase Price—Prevention oe Payment by Principal. In this action by an agent for the sale of a tract of land, to recover commissions, under a contract which provided that it was to receive twenty-five per cent of the selling pribe, “ten per cent out of the first payment and one-half of all other payments until said commission is paid in full,” the evidence is held to show that the defendant, by the breaches of its agreements of sale with purchasers, had prevented the latter from paying the full amount of forty per cent of the purchase price of the property sold, although more than that amount had become due, and that consequently the plaintiff was entitled to the full amount of the commissions, notwithstanding the fact that less than forty per cent of the purchase price had been paid.</p>

<p>Fort Mason Military Reservation — Boundaries — Governmental Survey.—The boundary of the land in San Franeiseo, now known as the Fort Mason military reservation, reserved by the proclamation of the President on December 31, 1851, and therein described as “the promontory of Point Jose within boundaries not less than eight hundred yards from its northern extremity,” as surveyed and mapped by the United States War Department in 1874, is the circumference of a circle having a radius of eight hundred yards in length, the northern extremity of Point Jose being the center of the circle, and not a square, -the sides of which run east and west and north and. south, and located so as to be tangent to such circle.</p> <p>Id.—-Acts Regulating Survey op Public Lands Inapplicable.—The act of Congress of March 3, 1853, and other acts of Congress, and regulations of the surveyor-general providing for surveys of the public lands to be offered for sale to settlers and requiring subdivisions thereof to be made in rectangular form upon east and west and north and south lines, relate exclusively to the public lands of the United States, and have no application to land within the pueblo grant from Mexico to San Franeiseo.</p> <p>Id.—Pre-emption Claim Within One Mile op Reservation.—Section 7 of the act of Congress of 1853, declaring that no pre-emption claim shall be allowed upon land within a military reservation, or within one mile thereof,. did not extend the -boundary of such reservation to the distance of one mile from its northern extremity.</p> <p>Id.—Government may Fix Form op Reservation—Map as Evidence.— If the description of the reservation contained in the presidential proclamation be indefinite, the United States government had the authority to determine its form and fix its limits, and the map of its survey is competent evidence of the fact.</p>

<p>Guardian and Ward—Appointment ot Minor’s Nominee—Displacement op Parent.—A minor over the age of fourteen years has the absolute right to replace the guardian appointed when he was under that age with one of his own selection, and it is immaterial that the displaced guardian is a parent of the minor. The order appointing the nominated guardian constitutes an approval of the minor’s selection, and makes the order valid under the statute unless it appears that the court abused its discretion in such approval. In, re Kirkman Estate, 168 Cal. 688, approved.</p>

<p>Estate ot Deceased Person—Distribution op Nonresident’s Estate —Law Governing.—Personal property of a nonresident testator, situated in this state at the time of his death, is subject to distribution under the laws of this state.</p> <p>Id.-—•Charitable Bequests—Limitation on Amount—Value op Entire Estate.—The provision of section 1313 of the Civil Code, limiting the amount which a testator may give to charitable purposes to one-third of the estate, means, in the case of a nonresident, one-third of the entire estate, not merely one-third of that part of the estate which is situated in this state.</p> <p>Id.—Abatement a.s Between Specific and Residuary Charitable Bequests.—Where the aggregate amount of charitable bequests exceed one-third of the estate, and are given as specific legacies and by the residuary clause, the residuary bequests should be abated before an abatement is made of the specific legacies. In such a case, the provision of section 1313 of the Civil Code for a pro rata reduction of all legacies, where they exceed one-third of the entire estate, does not apply.</p>

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

<p>Sale—Breach of Warranty of Quality of Brandy—ETndins—Evidence.—In this action for "breach of warranty of the quality of certain brandy sold by the defendant to the plaintiff, the finding that at the time of delivery the brandy was of the quality contracted for, based upon the testimony of the defendant’s employees with respect to inspections of its quality made shortly before delivery, is held supported by the evidence, notwithstanding the testimony of experts as to its inferior quality, based upon samples taken nearly two years after delivery.</p> <p>Id,—Presumption as to Quality.—Presumptions do not run backward, and there is no presumption that the brandy at the time of delivery was of the same quality that it was shown to be two years afterward.</p>

<p>Public Lands — Bestjrvey oe Lands in San Diego County — Act or Congress op July 1, 1902 — New Survey Supersedes Old — Boundaries op School Lands.—Nichols v. McCullom, 169 Cal. 611, approved, to tlie effect that under the act of Congress of July 1, 1902, providing for a resurvey of specified townships in San Diego County (now Imperial County), the new survey supersedes the old one, and regulates the disposition of the public lands within the area affected as to all persons not in the actual occupancy of the land; that unoccupied sixteenth and thirty-sixth sections passing to the state of California upon the approval of the old survey are governed, in respect of their boundaries, by the resurvey; and that parties going upon the land after the passage of the act, and with constructive knowledge that the resurvey was to be made, took the chance that such survey might establish that the land occupied by them was a school section, and not subject to entry as vacant lands of the United States.</p>

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

<p>Estate op Deceased Person — Contingent Claim — Agreement por Annuity — Accrual op Eight op Action. — A rejected claim against the estate of a decedent, based upon a written agreement whereby the deceased bound himself while living and charged his estate, in the event of his prior death, to deposit a specified sum of money in bank on a certain day of each year for the benefit of his mother and sister, cannot" be sued on until after the date upon which the next installment was payable under the terms of the instrument..</p> <p>Id.—Happening op Contingency Essential to Eight op Action.— Although it is proper to present a contingent claim against the estate of a deceased person before it becomes due, an action thereon may not be maintained until after the happening of the contingency.</p> <p>Id.—Segregation op Funds to Provide por Contingent Claim.—Such contingent claim may not be the basis of segregated funds created in advance of any liability under the provisions of section 1648 of the Code of Civil Procedure.</p>

<p>Prohibition — Municipal Corporations — Certiorari to Review Annexation Proceedings.—Prohibition will not lie, at the instance of a municipal corporation, to restrain the superior court from proceeding in certiorari to review the acts of the municipality had in proceedings for the annexation of territory, as the municipality has a plain, speedy, and adequate remedy by appeal from any judgment rendered in the certiorari proceeding by which it may be aggrieved.</p>

<p>Pleading—Common 'Count—Money had and Received.—As against either a general or a special demurrer on the ground of uncertainty, a statement of a cause of action for money had and received for the use of the plaintiff, in the form previously known as the cómmon count, is sufficient under section 426 of the Code of Civil Procedure.</p> <p>Id.—Action Against Partners—Partnership Need not be Alleged. In an action against partners upon a partnership obligation, it is not necessary to allege a partnership between the defendants, but they may be declared against as any joint debtors.</p> <p>Id.—Date of Accrual of Indebtedness—“Within Four Tears Last Fast.”—An allegation in an amended complaint that the indebtedness sued on accrued “within four years last past” shows that the accrual could not have been more than four years before the filing of the original complaint.</p> <p>Id.—Demurrer—Statute of Limitations.—A demurrer on the ground of the bar of the statute of limitations does not lie where the complaint merely shows that the action may have been barred. It must appear affirmatively that, upon the facts stated, the right of action is necessarily barred.</p> <p>Id.—Accrual of Items of Indebtedness—Bill of Particulars.—In an action to recover the balance due on an open, mutual, and current book account, the dates of the accrual of the indebtedness, or the various items thereof, need not be alleged. If the defendant desires further information on this point, the proper course is to demand a bill of particulars.</p> <p>Id.—Distinct Indebtednesses—Accord and Satisfaction as to One.— A complaint in such action, alleging two distinct indebtednesses upon two open book accounts, and showing the extinguishment of one only of the indebtednesses by an accord and satisfaction, will be construed as seeking a recovery on the other indebtedness as to which no .accord and satisfaction was had. As to such indebtedness, the plaintiff need not show when he discovered that the balance was due him, or that he brought his action within a reasonable time after such discovery.</p>

<p>The facts are stated in the opinion of the court.</p> <p>Maddux & Maddux, Griffin & Carlson, and R. R. Fowler, for Appellant.</p>

<p>Action to Quiet Tithe—Community Property—Order Granting New Trial.—In an action by a husband to quiet title to a parcel of land, title to which was taken in the name of his wife, which was later conveyed by them to another party, who conveyed it back to the husband, against a creditor of the wife who had attached her interest in the property, the evidence is held to be such that an order of the trial court granting a new trial upon the ground that the evidence was insufficient to support the finding that the property was community property of the husband and wife and not the separate property of the wife should not be reversed.</p> <p>New Trial—Order Granting When Reversed.—If upon undisputed facts found but one correct conclusion of law is possible, and the superior court, mistaking the law, orders a new trial, the appellate court will reverse such order.</p> <p>Id.—Discretion of the Court—Conflicting Evidence.-—The granting of a new trial rests largely in the discretion of the trial court, and where there is a substantial conflict in the evidence, an order of the trial court granting a new trial will not be disturbed on appeal.</p> <p>Id.—Ground for Support of Order.—If the order granting a new trial may be supported upon any ground, that ground will be presumed to be the one upon which the court founded its action.</p> <p>Pleading—Ownership an Ultimate Pact.—The ownership of property may be pleaded, proved and found as an ultimate fact, based upon the probative facts adduced from the.evidence.</p>

<p>Account Stated—Not a Written Contract—New Cause of Action— Statute of Limitations.—An account stated arising out of the rendering of an account to the debtor and his assent thereto by conduct does not constitute a written contract but does create a new cause of action, against which the statute of limitations commences to run from the time of agreement that the statement of account is correct.</p> <p>Id —Amended Complaint—Identical Transaction Originally Pleaded —Statute of Limitations.—Where an account stated arises out of the identical transactions pleaded in the original complaint, an amendment to the complaint alleging the account stated is not subject to the bar of the statute of limitations if the original complaint was filed before the statute of limitations had become a bar, because the action itself must he deemed to have been commenced when the original complaint was filed.</p> <p>Id.—Finding Supported by Evidence.—A finding of an account stated is supported by evidence that defendants made no objection to an account and letter sent them, and that they wrote a letter to plaintiffs promising to pay them monej’- which would he due only on the theory that the account was correct, although before receiving the account they had complained that the rates to he charged would be ruinous, but did not object to the account as rendered.</p> <p>Landlord and Tenant—Presumption from Holding Over—Disputable by Circumstances.—The presumption under subdivision 2 of section 1161 of the Code of Civil Procedure that the holding over after the expiration of the lease continued it in force for another year, may be rebutted by circumstances showing an acquiescence in increased payments to be made by the tenant and demanded by the owner.</p> <p>Law op the Case—Applicable to Law on Retrial—When not Applied.—The doctrine of the law of the ease refers only to principles of law announced by the court as applicable to a retrial of facts, but does not embrace the facts themselves, and does not apply to a ease in which the judgment was reversed as a whole, the case retried upon amended pleading, and the evidence at the two trials was not identical. .</p>

<p>The facts are stated in the opinion of the court.</p> <p>Louis P. Boardman, and Philip C. Boardman, for Appellant.</p>

<p>The facts are stated in the opinion of the court.</p> <p>E. W. Wilson, J. H. G. Weaver, and W. F. Clyborne, for Appellants.</p>

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

<p>APPLICATION for a Writ of Review, prayed to be directed against A. J. Pillsbury et al., members of the Industrial Accident Commission.</p> <p>The facts are stated in the opinion of the court.</p> <p>T. T. C. Gregory, D. Hadsell, and Joe G. Sweet, for Petitioners.</p>

<p>Place of Trial—Amendment of 1911 to Code of Civil Procedure, Section 395, Valid.—The amendment of 1911 to section 395 of the Code of Civil Procedure authorizing an action for injury to person, or property, or for death from wrongful act, or negligence, to be tried in the county where the injury occurs, or the injury causing death occurs, or in the county in which the defendants, or some of them, reside at the commencement of the action, is a valid exercise of legislative power.</p> <p>Id.—Amendment of 1911 to Code of Civil Procedure, Section 395, not Applicable to Actions Against Nonresidents.—The provision of section 395 of the Code of Civil Procedure added by the amendment of 1911 has no application to actions against nonresidents of the state. The change in the law was designed to enlarge the rights of plaintiffs by giving them a choice of two counties in which to sue, where theretofore the defendant had enjoyed the right of trial in the county of his residence, but was not intended to limit the broader rights which plaintiff had always had as against nonresidents.</p> <p>Id.—Code of Civil Procedure, Section 397, Applicable.—Under any construction that may be given to section 395, the place of 'trial may still be changed when the “convenience of witnesses and the ends of justice” would be promoted by the change, as provided by section 397 of the Code of Civil Procedure.</p>

<p>Bankruptcy—Invalid Homestead—Fraudulent Conveyance.—In an action by the trustee of a bankrupt to set aside a deed from the bankrupt to his wife of, and to declare invalid a homestead declared on, five adjoining lots, a judgment that the homestead was invalid as to the four lots not built-upon is supported by the findings that at the time the declaration of homestead was filed the defendants resided in the house situated on one of the lots, and that that lot was sufficient in size for the convenient use and enjoyment of the house as a home, that they never resided on the four other lots, and that neither said four other lots nor any part thereof were then or ever necessary for the use and enjoyment of the house or home on the other lot.</p> <p>Id.—Findings—Use op Adjoining Land as Homestead—Findings Supported by Evidence.—The findings above set forth are supported by the evidence which showed that the five lots were uninelosed; that the lot built upon was 50 by 150 feet in size, and that the house was located thereon at a place suitable for use in connection with that lot and that it could be conveniently used as a home without the other lots; that no use was made of the other lots in connection with the house, and that the bankrupt occasionally threw tools on the other lots, pastured his horse thereon, and cut wild grass for feed; that this use was for the purposes of his trade rather than of the home, and that it occurred after the filing of the declaration of homestead.</p> <p>Id.—Fraudulent Intent—Findings Supported by Evidence.—A finding that the conveyance was made with fraudulent intent is supported by the evidence, which showed that the consideration for the conveyance was $10, which was not paid as a price, but because it was deemed necessary to make the deed “legal,” and that the deed was made because the grantor feared that creditors were about to attach the property, rather than as a voluntary gift.</p> <p>Id.—Discharge op Bankrupt—Bight op Trustee to Becover Property.—A discharge in bankruptcy does not affect the right of the trustee to recover property fraudulently conveyed by the bankrupt, unless it is shown that all the debts and expenses have been paid.</p>

<p>Divorce—Desertion by Wipe—Custody op Child—Support op Child.— In an action for divorce by the husband based on the desertion of the wife the court has discretion to give the custody of a minor child of the marriage to the mother and require the husband to contribute or provide for its support.</p> <p>In.—Fault op Wipe—Permanent Alimony not Allowable.—Where a divorce is granted to the husband for the fault of the wife, no other circumstances appearing, the court has no power to allow permanent alimony to the wife.</p> <p>Id.—Desertion by Wipe—Support op Wipe.—The husband cannot be required to support the wife when without his fault and against his will she voluntarily deserts and lives apart from him.</p> <p>Id.—Permanent Alimony—Not Authorized by Section 137 op the Civil Code.—An allowance to the wife in the nature of permanent alimony in an interlocutory decree of divorce granted on the ground of desertion by the wife is erroneous, and finds no support in section 137 of the Civil Code, which authorizes the court to order payments by the husband to the wife for maintenance, support of child, and prosecution of the suit only while the action is pending,</p>

<p>APPLICATION for a Writ of Review directed to the Industrial Accident Commission of the State of California.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Vendor and Purchaser—Failure to Pay Installment of Purchase Price—Notice of Rescission—Retention of Possession by Vendees.—In an action of ejectment by the vendor against the vendees in possession under an executory contract of sale providing for the payment of the purchase price in installments at stated times, based upon a notice of rescission delivered to the vendees under a provision of the contract entitling the vendor to rescind in case of nonpayment of any installment, for the failure of the vendees to pay the second installment, the contention of defendants that they were excused from paying the second installment because of a previous notice of rescission based on their failure to pay the first installment is without foundation, because the vendees cannot take the position of not paying the purchase price and nevertheless retaining possession of the land. »</p>

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

<p>Wills—Devise op Residue to Person not Related to Testatrix “and to his Heirs and Assigns Forever”—Not Words op Substitution. Under a devise of the residue of testatrix’s estate to one not related to her, “and to his heirs and assigns forever,” upon the death of the devisee before the death of testatrix, the heirs of the deceased devisee do not take the devise by substitution under section 1343 of the Civil Code.</p> <p>Id.—Circumstances in This Case Showing Intent.—The circumstances surrounding the making of this will are held not to show an intent to use the phrase, “and to his heirs and assigns forever,” by way of substitution, but to show that the devise was made without any intention concerning the destination of the property, if the devisee should outlive the testatrix.</p> <p>Id.—Construction—Intent op Testator—How Ascertained.—The intention sought for in resolving an ambiguity in a will is not that which may have existed in testator’s mind, but that which is expressed in the language of the will, giving to it, if clear, its ordinary meaning, and if ambiguous, its proper meaning in the light of the context and the circumstances shown to explain it.</p>

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

<p>Eight or Wat — Construction or Contract — Intent — Trespass — Specific Performance—Findings Supported bt Evidence.—In an action for trespass and for an injunction by plaintiff as tenant in common of a tract of land adjoining another tract owned by plaintiff in severalty against a railway company for trespass in building its railroad on the first named tract, in which defendant set up a contract to deed a right of way and a cross-complaint praying for specific performance of the contract, contending that it referred to both parcels, it was held that the intention of plaintiff as expressed in the language of the deed here shown was to grant a right of way across both parcels, and this finding as to intention is supported by the evidence here shown of the circumstances surrounding the execution of the contract.</p> <p>Id.—Evidence as to Intent.—-In such an action evidence of the facts and circumstances surrounding the execution of the contract, and of the grantor’s understanding of it when she executed it, are admissible; but evidence of the undisclosed intention of the grantor to convey a right of way across only the parcel owned by her in severalty was properly rejected.</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>W. A. Anderson, A. G. Bailey, and G. Clark, for Appellants.</p>

<p>Deed—Delivery—Possession op Instrument by Grantor.—The 'finding of a deed in the possession of the grantor supports a presumption that it never was delivered.</p> <p>Id.—Intent op Grantor to Divest Himselp op Title.—The rule is fundamental that whatever method of delivery is adopted, there must be a plain showing that the grantor by acts or words, or both, intended to divest himself of title.</p> <p>Id.—Deed prom Mother to Son—Conduct op Grantor Inconsistent With Delivery—Evidence.—In determining whether a deed from a mother to her son had been delivered, it is proper to consider the facts that, subsequent to the date of the alleged delivery, the grantor, without objection from the grantee, encumbered the property, executed leases to a part of it, paid the taxes, and insured it in her own name.</p> <p>Ib.—Delivery a Question op Fact—Finding Based on Conflicting Evidence—Appeal.—Delivery or nondelivery of a deed is always a fact to be found from the surrounding circumstances of each transaction, and whether or not the grantee’s conduct, after the time when, as he asserts, he received the deed, was such as to authorize the inference that it had not been delivered to him is a question to be determined by the trial court upon the evidence adduced at the trial, and the finding upon that subject, based upon conflicting evidence, will not be reviewed on appeal.</p> <p>Id.—Subsequent Acts and Declarations op Grantor.—As bearing upon the question of the delivery of a deed which was in the possession of the grantor at the time of her £eath, her declarations and acts made and done after the signing of the instrument are admissible in evidence.</p>

<p>Eminent Domain—Condemnation by Municipality—Fund fob. Payment Provided Before Action—Taxpayer May be Juror.—In an action by a municipal corporation for the condemnation of land, which did not involve the levying of a tax for the payment of the award, a fund for that purpose having been provided before the commencement of the action, a citizen and taxpayer of the municipality is not disqualified, under section 602, subdivision 5, of the Code of Civil Procedure, to serve as a juror.</p> <p>Id.—Noncontiguous Lands Constituting one Parcel—Question of Law for Court.—In an action to condemn a leasehold interest in land, where the probative facts are without controversy, the question whether two pieces of land constitute “one parcel,” within the meaning of section 1248 of the Code of Civil Procedure, authorizing an award for damages accruing to the portion of the parcel not sought to be condemned, is one of law for the determination of the court.</p> <p>Id.—Amount of Award—Determination by Jury.—In an action to condemn land, it is only the “compensation,” the “award,” winch the constitution declares shall be found and fixed by a jury. All other questions of fact, or of mixed fact and law, are to be tried without reference to a jury.</p> <p>Id.—Unity of Use of Noncontiguous Lands.—In determining whether two noncontiguous pieces of land constitute “one parcel,” unity of use should not be regarded as the controlling factor.</p> <p>Id.—Measure of Damages—Injury to Business.—Under section 1248 of the Code of Civil Procedure and the provisions of the constitution, the award of damages is limited to the property taken and the resultant damages to contiguous property injured by the severance. An award for damages to the business or goodwill of the business of the owner is not authorized.</p> <p>Id.—Market Value.—It is the market value, that is, the highest price estimated in terms of money, which the land would bring if exposed for sale in the open market, which measures the damages for a taking.</p> <p>Id.—Market Value of Leasehold.—In the ease of the condemnation of a leasehold, unless exceptional circumstances are shown, the value of the lease is its market value.</p>

<p>Negligence—Street Railroad—Death of Passenger—Counts Charging Different Acts of Negligence.—In an action against a street railroad company to recover for the death of a passenger while alighting from a street-car, the plaintiffs may charge the negligence of the defendant in separate counts, as occurring in as many ways as they believed their evidence would show, and are entitled to recover if any one well-pleaded count is supported by sufficient evidence.</p> <p>Id.—Injury While Attempting to Alight from Car—Standing on Platform or Steps.—An allegation in such a complaint that the passenger was injured while she was “attempting to alight” from the car is not to be construed as an admission that the passenger was actually and negligently in the act of alighting from a moving car. Fairly construed, the allegation means that the car had slowed down, was approaching the place where it usually stopped, and that the passenger had made preparations to alight, and was in readiness to alight, when and if it stopped. The fact that she had gone upon the platform for this purpose, or was upon the steps, was not in and of itself negligence in law.</p> <p>Id.—Guardian ad Litem—Pleading Appointment.—In an action by minor plaintiffs, the overruling of a demurrer to the complaint for insufficiency in the allegations of the appointment of their guardian ad litem is without prejudice, where the facts of the due appointment and acceptance by the appointee were shown without contradiction upon the trial.</p> <p>Id.—Evidence—Denial of' Nonsuit.—Under the evidence in this case, it was proper to deny the motion for nonsuit as to the cause of action which averred that after the car had slowed down and arrived at or near the place where it usually stopped to allow passengers to debark, and while the deceased was attempting to alight therefrom, the defendants’ agents and servants negligently caused the car to be suddenly and violently jerked and started forward.</p> <p>Id.—Bes Gestae—Declarations of Conductor After Accident.—The declarations of the conductor of the car, made after the accident, in explanation as to how it occurred, are not part of the res gestae, and are inadmissible in evidence.</p> <p>Id.—Judicial Notice — Tables of Life Expectancy.—Courts take judicial notice of the standard tables of life expectancy, and of the tables that are standard tables, and any such table satisfactory to the court may be introduced in evidence without foundation proof.</p> <p>Id.—Impeachment of Witnesses—-Contradictory Written Statements.—Witnesses for the plaintiff in such action cannot be impeached by showing that they made contradictory statements in writing to a notary public, who took their statements at the instance of the defendant, unless a proper foundation for the impeaching questions is laid.</p> <p>Id.—Contributory Negligence—Standing on Steps Preparatory to Alighting.—A passenger on a street-car has the right, in the sense that he is not guilty of contributory negligence per se in so doing, to be upon the steps of the car preparatory to debarking therefrom. It is for the jury to determine whether or not the passenger is guilty of contributory negligence in going upon the platform of the car or the steps thereof preparatory to alighting therefrom when the car stops.</p> <p>Id.—Instructions—Starting to Leave Car Before it Stops.—In such action, where the court fully and correctly charged the jury on the subject of contributory negligence, an isolated instruction stating that “it is not contributory negligence as a matter of law for a passenger to start to leave a street-car before it comes to a full stop, but it is a question of fact for the jury to determine whether the act of the passenger in so doing constituted negligence,” cannot be deemed misleading.</p> <p>Id.—Burden of Proving Contributory Negligence—Instructions.— Although the defendant is relieved from the burden of proving contributory negligence if the evidence of the plaintiff establishes it, an instruction that such burden is cast upon the defendant will not be deemed misleading, when the other instructions repeatedly informed the jury that no recovery could be had if they believed from all the evidence that the passenger had been guilty of such negligence.</p> <p>Id.—Verdict not Excessive.—In this action by a husband and three minor children to recover for the death of his wife and the children’s mother, a verdict of eighteen thousand dollars cannot be held excessive.</p>

<p>The facts are stated in the opinion of the court.</p> <p>William G. Griffith, and H. H. Trowbridge, for Appellant.</p>

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

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

Thomas F. Graham, Judge. The facts are stated in the opinion of the court. Houghton & Houghton, and Sullivan & Sullivan and Theo. J. Roche, for Appellant. Charles W. Slack, for Respondent, Hebrew Home for Aged Disabled. Marshall B. Woodworth, for Respondent, Edward R. Lande, Executor. Edmund Tauszky, for Respondent, I. M. Friedberg, Executor.

<p>Express Trust in Land—Trust to Convey is Invalid.—Under the statute of this state as it existed at the time of the taking effect of the will in question, an unambiguous express trust in land, which required the trustees, upon the death of prior beneficiaries, to convey and transfer the trust property absolutely to certain named persons, was unlawful and void. (Estate of Fair, 132 Cal. 523, approved.)</p> <p>Id.—Direct Devise of Trust Property to Beneficiaries—Construction of Will.—To escape that result, words must be found in the will which may be construed as a direct devise of the trust property .to the persons to whom the trustees are directed to convey it, words which express the idea that it is to go to those persons, irrespective of the direct devise to the trustees, and without a conveyance by the trustees. A mere belief or understanding is not sufficient.</p> <p>Id.—Words not Operative to Pass Title.—Words which are not operative to pass title at all, which are not dispositive in meaning or effect, but which merely show a knowledge on the part of the testator of the dispositions made in other clauses of the will, cannot avail.</p> <p>Id.—Direction for Absolute Conveyance by Trustees.—The word “absolutely,” in the clause of the will directing the trustees to convey the trust property, did not indicate an intent on the part of the testatrix that the property should go to the beneficiaries independent of the conveyance. It merely describes the character of the estate to be conveyed, and means that the conveyance is to be unconditional and the estate to be transferred shall be the entire estate in fee.</p> <p>Id.—Effect of Dispositive Words Confined to Lapsed Devises.—A direct devise of the trust property to the persons named as the beneficiaries of the trust is not affected by dispositive words'used in a subsequent clause of the will which operated only to pass the title to any lapsed devise or legacy to the devisees and legatees of the residue.</p> <p>Id.—Word “Children” in Will When Includes Grand children.—The word “children,” in a will, is held to include grandchildren in only two classes of cases. The first class is where there is an ambiguity in the will itself which leaves the meaning of the testator in respect to the word “children” uncertain. In such cases extrinsic evidence may be introduced to explain the meaning intended by the testator and to show that the word was used to include grandchildren. This class is within the scope of section 1318 of the Civil Code. The other class consists of eases where there is a latent ambiguity, and comes within section 1340 of the Civil Code.</p> <p>Id.—Construction op Unambiguous Will—Intent op Testator—Evidence op Extrinsic Circumstances.—Where the meaning of the will, on its face, taking the words in the ordinary sense, is entirely clear, and where no latent ambiguity is made to appear by extrinsic evidence, there can be no evidence of extrinsic circumstances to show that the testator intended to do something not expressed in the will. Id.—Bequest to “Children” op Brothers and Sisters.—Where a testatrix had a number of children of her brothers and sisters living, both at the time of the execution of her will and at the time of her death, ■and there is nothing in the context of the will or in the disposing clause which raises an uncertainty as to the meaning of the words, a bequest to the “children” of brothers and sisters cannot be held to include grandchildren.</p>

APPLICATIONS for writs of mandate directed to the Auditor of the City of Sacramento. The facts are stated in the opinion of the court. Devlin & Devlin, and Downey, Pullen & Downey, for Petitioners.

<p>Criminal Law—Infamous Crime Against Nature—Accomplices— Corroborative Evidence.—=A boy of sixteen years of age, possessed of the average mentality of lads of that age, who submits to the perpetration upon his person of the infamous crime against nature, is an accomplice, and under section 1111 of the Penal Code, as amended in 1911 (Stats. 1911, p. 484), the defendant charged with the crime cannot be convicted on his testimony unless he is corroborated by other evidence which tends to connect the defendant with the commission of the offense. The corroboration is not sufficient if it merely shows the commission of the offense or the circumstances thereof.</p> <p>Id.—Construction of Amendment to Section 1111, Penal Code.—The amendment of 1911 to section 1111 of the Penal Code did not change the pre-existing rule as to the nature of the corroborating testimony essential to warrant a conviction.</p> <p>Id.—Courts are Bound to Apply Section 1111, Penal Code, in all Cases.-—The court has no discretion in the application of section 1111 of the Penal Code, but is bound to apply it to all eases where-ever an accomplice appears as a witness, and the state’s ease depends solely upon his uncorroborated testimony.</p> <p>Id.—Sufficiency of Corroboration—Mere Suspicion of Guilt Insufficient.—It is necessary that the corroborative evidence shall connect or tend to connect the defendant with the commission of the crime. The evidence is insufficient where it merely casts a grave suspicion on the accused. And where the circumstances proved, taken separately or collectively, are consistent with the innocence of the accused, there is no corroboration, and a verdict of conviction will be set aside.</p> <p>Id.—Insufficient Corroborative Evidence.—In this prosecution for the infamous crime against nature, it is held that the evidence of the complaining witness was not sufficiently corroborated to sustain the conviction.</p> <p>Id.—Opportunity to Commit Crime.—The mere opportunity to commit such crime is not an incriminating corroborative circumstance sufficient to sustain a conviction.</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>

APPEALS from a judgment of the Superior Court of the City and County of San Francisco, from an order refusing a new trial, and from an order substituting an assignee as party plaintiff. James M. Troutt, Judge. The facts are stated in the opinion of the court. Frank H. Gould, and Vincent Surr, for Appellant in Nos. 6653 and 7055, and for Respondent in No. 6903. William M. Cannon, and Kingsley Cannon, for Respondent in Nos. 6653 and 7055, and for Appellant in No. 6903.

<p>Corporation—Liability op Stockholder—Contract por Purchase op Goods—Future Delivery—Accrual of Liability.—Under section 3 of article XII of the constitution, and section 322 of the Civil Code, making a stockholder individually liable for a proportionate part of the “debts and liabilities” of the corporation “contracted or incurred during the time he was a stockholder,” the liability of stockholders to pay their proportionate parts of an indebtedness of the corporation arising out of an executory agreement of the corporation to purchase certain goods at an agreed price, which goods were subsequently delivered to and accepted by it, attached to the stockholders owning stock in the corporation at the time the contract was made, and not to those who were stockholders at the time the goods were delivered.</p> <p>Id.-—Creation op Corporate Liability Determines Liability op Stockholders.—The “liability” of the corporation for which the stockholders are so made proportionately liable is created when a contract binding on it is made by the corporation, independent of any question as to whether that “liability” is absolute or contingent or as to when the right to enforce it may accrue; and those who are stockholders when the “liability” is created or incurred are alone liable in any actions arising from its breach.</p> <p>Id.—Statute of Frauds—Acceptance op Goods Sold by Purchaser-Validation op Contract.—The delivery to and acceptance by the purchaser of goods under a parol contract of purchase and- sale which was within the statute of frauds when made, relates back to and operates upon the contract so as to validate it as of the date it was originally entered into.</p> <p>Id.—Pleading Contract op Purchase by Corporation.—The creditor, seeking to enforce the liability of the stockholders created by such contract, cannot question its validity under the statute of frauds, where the complaint expressly pleaded and relied on the contract as the basis of its cause of action against the stockholders.</p> <p>Id.—Evidence—Findings—Delivery Under Contract.—Such creditor cannot question the sufficiency of the evidence to sustain a finding that all the goods delivered to the corporation were delivered under such contract, when it averred that fact in the complaint.</p>

<p>The facts are stated in the opinion of the court.</p> <p>W. P. Netherton, and J. L. Johnston, for Appellant I. T. Bloom.</p>

The facts are stated in the opinion of the court. Bicksler & Smith, and Bicksler, Smith & Parke, for Appellant. Irwin, White & Rosecrans, and Randall & Bartlett, for Respondents Thomas Darling et al. Ernest E. Nichols, for Respondent Joseph Musto Sons-Keenan Co.

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

<p>Estates of Deceased Persons—Appeal From Decree of Distribution—Extent of Review—Abolition of Motions for New Trial.—The amendment of section 1714 of the Code of Civil Procedure, abolishing motions for new trial in probate proceedings except in will contests, does not deprive the supreme court, on an appeal from a decree distributing the estate of a decedent, of the right to examine the record and to direct the lower court to do anything which may be proper in the exercise of its probate jurisdiction.</p> <p>Wills—Advancements—Limitations to Specific Kinds of Payments—Accounts Against Testator’s Children.—Where a will specifically limits the payments made by the testator to his children during his lifetime that are to be treated as advancements against their distributive shares to certain payments made to one of his sons “as shown by my books of account,” and to payments made to his other children “as represented by their promissory notes, now in my possession,” charges shown by his account-books against Ms other children, not evidenced by their promissory notes, are not to be treated as advancements to them. This result follows, notwithstanding a clause in the will declaring the testator’s purpose in charging the advancements was that none of his children should receive more than an equal share of his estate.</p> <p>Id.—Promissory Notes in Testator’s Possession—Sufficiency of Description.—The description of the notes contained in the will as “notes now in my possession” is sufficiently definite to render the documents intended capable of identification.</p> <p>Id.—Mere Accounts With Children not Evidence of Advancements.</p> <p>. Accounts contained in books of account' kept by the testator, which merely showed that he had given his daughters a monthly allowance and had credited them with a like amount, so that, according to the books, their accounts were virtually closed, are not admissible as evidence of advancements to the daughters under section 1397 of the Civil Code.</p> <p>Id.—Advancements Prior to Will.—As a general rule, advancements made before the will was executed cannot be considered on distribution unless specified in the will, because it is presumed that the testator had in view all previous advancements when he made his will and acted accordingly, so as to make the final division conform to his actual wishes.</p> <p>Id.—Interpretation of Will—Reference to Prior Will.—A will must be interpreted by the language used therein, and cannot be varied or explained by reference to a prior revoked will.</p> <p>Id.—Contest of Will—Opposition to Distribution.—An opposition to a petition for distribution is not a contest of the will within the meaning of a provision therein curtailing the share of any legatee or devisee contesting the will.</p>

The facts are stated in the opinion of the court. F. E. Johnston, H. L. Johnston, and L. E. Johnston, for Plaintiff and Appellant. Nathan F. Coombs, and J. T. York, for Defendant and Appellant Napa Valley Brewing Co. Frank L. Coombs, for Respondent Jas. H. Goodman & Co. Bank.

The facts are stated in the opinion of the court. E. H. Jolliffe, and R. L. Horton, for Plaintiffs and Appellants. Bicksler & Smith, and Bicksler, Smith & Parke, for Appellant Maryland Casualty Company.

<p>Mechanics’ Liens—Constitutional Law—Preference of Laborers and Materialmen Over Subcontractors.—Section 1194 of the Code of Civil Procedure, as it existed- prior to the amendments of 1911 to the mechanics’ lien law, in so far as it gave a preference to laborers and materialmen over subcontractors in participation in the amount applicable to liens, was not unconstitutional.</p> <p>Id.—Subcontractor Defined—Furnishing Material for and Erecting Part of Building.—The meaning of the term “subcontractor,” as used in the -then existing mechanic’s lien law, must he determined by reference to the classification of liens then made by section 1194 of the Code of Civil Procedure, and embraces all persons who agree with the original contractor to furnish the material and construct for him on the premises some part of the structure which the original contractor has agreed to erect for the owner.</p> <p>Id.—'Comparative Cost of Labor and Materials.—Something more than a mere comparison of the cost of the labor of attaching materials to the building with the total price of the work and materials is necessary in many cases to determine whether a claimant is a subcontractor or a materialman. Generally speaking, one who, under an agreement with the contractor, enters upon the premises, and there, with materials furnished by himself, erects a definite part of the structure composing the building, is a subcontractor, within the meaning of the section, regardless of the comparative cost of labor and materials.</p> <p>Id.—Various Persons Deemed Subcontractors.—All those persons are to be deemed subcontractors who respectively agree with the contractor for the erection of a building to do the lathing and plastering and to furnish the material therefor; or to furnish the material and construct in the building, a considerable part of the floors and walls thereof; or to furnish the necessary tile and erect a part of the walls of the bathrooms; or to furnish the material and put on the building a tile roof; or to furnish and lay the flooring in -certain rooms; or to furnish the materials and erect in the building the tin, galvanized iron, and copper work required by the plans and specifications.</p> <p>Id.—Erection of Fireplaces—Finding that Person is Subcontractor—Appeal.—A finding that a person who agreed with the contractor to build certain fireplaces in the building, using brick and tile, was a subcontractor, will not be disturbed on appeal, where there is nothing in the record to show that such fireplaces did not constitute a substantial part of the building, or of making a comparison of the cost of the labor with the total cost of the fireplaces.</p> <p>Id.—Tending as to Laborers and Materialmen.—A finding that certain lien claimants were materialmen and laborers, which is sustained by their respective claims of lien, will not be disturbed on appeal, when there is no evidence to the contrary in the record.</p>

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

<p>Estates op Deceased Persons—Setting Aside Homestead*—Jurisdiction—Decree Operates in Bem—Conclusiveness as to Creditors. The superior court, sitting in probate, is one of general jurisdiction, and where it has acquired jurisdiction by a proper petition and notice of a widow’s application for a homestead, its decree rendered therein is not void because of errors committed in the exercise of the jurisdiction. Such decree operates in rem, and is conclusive upon creditors of the deceased.</p> <p>Id.—Homestead Declared on Separate Property—Excessive Value— Decree Setting It Aside Absolutely to Widow — Collateral Attack by Creditor.—A decree in probate, based upon a proper petition and notice, setting aside absolutely to the widow of the deceased as a homestead property upon which she had declared a homestead prior to the death of her husband, and which was alleged to be community property in the petition, and so returned in the inventory of the estate, cannot be collaterally attacked by a creditor of the deceased on the settlement of the final accounts of the widow as administratrix of the estate, on the grounds either that the property set aside was in fact the separate property of the deceased, or that it had been valued in the inventory in excess of five thousand dollars.</p> <p>Id.—Vesting op Homestead in Surviving Spouse—Valuation by Appraisers—Community Property.—If a homestead selected from the community property vests in the survivor upon the death of the husband or wife,- such vesting may not be made to depend upon the mere estimate of the appraisers, but upon the fact that the premises selected are of the community property.</p> <p>Id.—Error in Determining Pacts Requisite to Vesting op Homestead.—The court having acquired jurisdiction to decide whether or not the homestead vested upon the death of the husband in his widow, had the power to determine all the necessary facts. If the property was worth more than five thousand dollars and the court nevertheless set it aside, that was at most error subject to correction on appeal, but not to collateral attack.</p> <p>Id.—Partial Rejection op Claim—Payment op Amount Greater Than That Allowed.—The approval by the administrator and the allowance by the court of a claim against the estate of a deceased person in an amount less than that for which it was presented is a partial rejection of the claim, and the court in probate cannot order payment of the rejected amount in the absence of any suit by the creditor for its recovery.</p>

<p>APPLICATION for a Writ of Prohibition directed to the Superior Court of the City and County of San Francisco.</p> <p>The facts are stated in the opinion of the court.</p>

<p>APPLICATION for a Writ of Habeas Corpus addressed to the Chief Justice of the Supreme Court.</p> <p>The facts are stated in the opinion of the court.</p>

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

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

<p>The facts are stated in the opinion of the court.</p> <p>Paul C. Morf, William M. Cannon, and F. J. Solinsky, for Appellant.</p> <p>F. E. Cook, Goodfellow, Eells, Moore & Orrick, and Samuel M. Shortridge, for Respondents.</p>

<p>Sale—Statute op Frauds—Receipt or Acceptance—Prior Possession in Vendee.—The rule that mere words are not sufficient to prove a receipt or acceptance of personal property to take an oral contract of its sale out of the statute of frauds, is inapplicable to cases where the actual possession is in the vendee, and the real question is whether that possession has been transformed from that of bailment or pledge to that of complete ownership.</p> <p>Id.—Evidence op Retention op Possession as Owner.—Where a sale is made to a vendee in possession, whatever may have been the nature of his prior possession, the law does not require a quitting of it and a retaking of possession as the new owner. All that is required is evidence showing that the possession is retained by the vendee in his new capacity of owner.</p> <p>Id.—Declarations of Vendee as to Ownership.—This may be established by proof of acts or dominion over the property inconsistent with his former holding as bailee or pledgee, or by his declarations that he so holds the property as owner.</p>

<p>Corporation—Stock Issued in Payment op Property—Conspiracy.— It is within the power of a corporation to issue all of its stock in payment of .property conveyed to it, and no illegal or fraudulent conduct is shown in such a transaction, on the parts of the grantors, by merely designating the transfer as the outcome of a conspiracy.</p> <p>Id.—Fraudulent Representations by Stockholders to Purchasers— Wrong Against Corporation.—Fraudulent representations by the holders of the stock in a corporation, made for the purpose of inducing the public to purchase it, to the effect that the stock was treasury stock and that the proceeds of its sale would go into the treasury of the company and be used in developing its properties, do not constitute a wrong against the corporation, which could be made the basis of an action by a stockholder suing on its behalf. The right of the individual stockholder thus defrauded is simply the right to proceed against the wrongdoers who had made the fraudulent representations to his injury.</p> <p>Id.—Injuries to Corporation—Action by Stockholder on Behalf of Corporation—Accounting—-Fraud.—Stockholders of a corporation, who in pursuance of a conspiracy between themselves and by means of a control of the corporation by a dummy directorate, caused false dividends to be declared and paid out of the proceeds of the sale of the corporate stock, and false credits to be entered on the company’s books, whereby their individual indebtednesses to the company were made to appear to have been paid and canceled, and who took commissions for the sale of treasury stock without authority from the corporation, and for the purpose of stilling the alarms of the stockholders and lulling them into repose, issued false statements as to the financial condition of the corporation, are guilty of wrongs against the corporation itself, for which an action will lie by a stockholder, suing on behalf of the company, for an accounting and a recovery into the treasury of the company of the amount of which it might be determined that the company had been defrauded.</p> <p>Id.—Statute of Limitations—Discovery of Fraud,—The provision of the statute of limitations applicable to such action by a stockholder is subdivision 4 of section 338 of the Code of Civil Procedure, providing that actions for relief on the ground of fraud or mistake must be commenced within three years, but that the cause of action is not to be deemed to have accrued until the discovery, by the aggrieved party, of the facts constituting the fraud or mistake.</p> <p>Id.—Knowledge of Fraud by Other Stockholders not Suing.—The right of a stockholder to maintain such an action on behalf of the corporation, which is commenced timely after the discovery by him I of the facts constituting the fraud, is not affected by the fact that other stockholders had notice of the fraud and failed to bring action within the statutory limitation.</p> <p>Id.—Stockholder Suing is Trustee—Authority to Compromise Liability to Corporation.—A stockholder who institutes such an action sues purely in a representative capacity and as a trustee to redress corporate injuries. His position in the litigation is similar to that of a guardian ad litem, and he has no authority, without the sanction of the trial court, to enter into a composition agreement with certain of the defendants for the release of their liability to the corporation.</p> <p>Id.—Costs—Accrued Costs cannot be Charged to Intervener.—In , such action costs which accrued before an intervener connected him-I self with the litigation should not be awarded against him.</p>

<p>APPEAL from an order of the Superior Court of the City and County of San Francisco refusing to revoke letters of guardianship of the person of a minor. Bradley V. Sargent, Judge presiding.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Trust—Equitable Lies Estate in Trustor With Vested Remainders in Heirs—Divestment by Exercise op Power op Nomination by Will.—Á conveyance of property to a trustee, with powers of management, investment and reinvestment, upon the trust that the net income shall be paid to the trustor, and containing the declaration that “this trust shall be irrevocable and shall last during the lifetime of the trustor, and upon her death the trust property shall go to and vest as she shall provide in her last will and testament, and leaving no last will and testament shall go to and vest in her heirs at law according to the laws of succession of the State of California as such laws now exist,” does not create a mere dry, naked trust which is terminable upon the option of the trustor. It creates an equitable life estate in the trustor, with equitable remainders vested in the trustor’s heirs at law according to the succession laws of California existing at the time of the execution of the conveyance, subject to divestment only upon the exercise of the power of nomination by will reserved to the trustor.</p> <p>Ib.—Absence op Power op Revocation—Equity cannot Terminate Trust.—In the absence of any power of revocation reserved to the ■trustor by the instrument creating such trust, a court of equity cannot decree a termination of the trust in an action in which the trustor and trustee are the only parties before the court.</p>

<p>Criminal Law—Burden op Establishing Depense op Insanity—Instructions—Preponderance op Evidence—Reasonable Doubt.— In a criminal prosecution, after the court had correctly instructed the jury that the burden of establishing the defense of insanity rested on the defendant, and that the insanity may be established “by a preponderance of evidence merely,” it was erroneous to further define that phrase as meaning “that degree of evidence which proves to a moral certainty, or, in other words, that degree of proof that produces conviction in an unprejudiced mind, regardless of the number of witnesses from whom it proceeds.” The definition so given was substantially the same as that of “proof beyond a reasonable doubt,” and the instruction in effect erroneously told the jury that it was incumbent on the defendant to establish insanity beyond a reasonable doubt.</p> <p>Id.—Depinitton op Teem: “Preponderance op Evidence.”—The term “preponderance of the evidence” simply means that the evidence on one side outweighs, preponderates over, is more than, the evidence on the other side, not necessarily in number of witnesses or quantity, but in its effect on those to whom it is addressed.</p> <p>Id.—Appeal—Evidence op Insanity—Section 4% op Article VI op Constitution.—In view of the evidence as to the insanity of the defendant contained in the record, it cannot be held that the giving . of such instruction did not substantially affect the rights of the defendant within the purview of section 4% of article VI of the constitution.</p> <p>Id.—-Arguments Should not be Embodied in Transcript.—Arguments made by counsel to the court on questions of law arising during the trial of a criminal case should not be embodied in the reporter’s transcript of the proceedings to be used on appeal.</p>

<p>Bank—Stockholders' Liability to Creditors—Superintendent or Banks cannot Enforce—Banking Act.—The superintendent of banks, after taking over an insolvent bank for the purpose of liquidation, cannot maintain an action to enforce the constitutional liability of the stockholders of the bank to the creditors thereof as fixed by section 3 of article XII of the constitution and section 322 of the Civil Code. Section 136 of the Banking Act' (Stats. 1909, p. 87), authorizing him to enforce by action the “individual liability of the stockholders,” does not confer such power.</p> <p>Id.—Stockholders’ Liability to Creditors not Assets of Bank.—■ The stockholders’ liability to the creditor is no part of the property or assets of the bank, and the superintendent of banks has no power to act for or on behalf of the creditor in pursuit of his claim from such source.</p> <p>Id.—Enforcement by Superintendent of Individual Liability of Stockholder.-—The “individual liability of the stockholder,” which the Banking Act authorizes the superintendent to enforce, must be construed to be that due to the bank and arising upon assessments made, or nonpayment of subscriptions to the corporate capital, constituting a common fund out of which to pay the cost of administration and corporate debts.</p> <p>Id.—Liability of Stockholder to Creditor not Embraced in Title of Banking Act.—If such provision of the Banking Act be construed as authorizing the superintendent of banks to enforce the constitutional liability of stockholders to the creditors, it would be void as being obnoxious to the provisions of section 24, article IV," of the constitution, providing that every act shall embrace but one subject, which shall be expressed in its title.</p>

<p>APPLICATION for a Writ of Mandate directed to the Secretary of State of the State of California.</p> <p>The facts are stated in the opinion of the court.</p> <p>Frank C. Hill, Lynden Bowring, and George S. Hupp, for Petitioners.</p>

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

S. Mahon, the Judge thereof, and Emmet Seawell, a Judge of the Superior Court presiding therein. The facts are stated in the opinion of the court.

<p>Appeal—Certification by Judge op Transcript Prepared Under Section 953a, Code op Civil Procedure—Order Granting Change of Place of Trial—Want of Certification by Clerk.—A transcript of the proceedings claimed to have been prepared in accord with the provisions of section 953a of the Code of Civil Procedure, for use on an appeal from an order granting a motion for change of the place of trial to the county of the defendant’s residence, should not be refused certification by the trial judge, merely because it was not certified by the clerk as containing true and correct copies of the original documents, papers, files, and records, where no objection on any such ground was made by the opposing attorneys, and it appears that various corrections suggested by the attorneys were agreed to and the transcript was amended accordingly.</p> <p>Id.—Contents of Transcript—Statements by Judge—Objections of Counsel.—Statements made by the court at the hearing of such motion, or objections of counsel for the plaintiff to the granting of the same, are not required to be inserted in the transcript where the only evidence considered at the hearing was the files and records of the action, and such indorsements of admission of service and filing as there were thereon.</p> <p>Id.—Undertaking to Secure Costs of Preparing Transcript—Waiver of Giving by Clerk.—The mere failure to give to the clerk the undertaking provided for by section 953b of the Code of Civil Procedure to secure to him the cost of preparing the transcript, is not a good ground of objection to the certification by -the judge of a transcript in fact prepared and delivered by the clerk to the judge for settlement. The clerk had the right to waive the giving of such undertaking.</p> <p>Id.—Appeal from Order Granting Change of Place of Trial—Record on Appeal.—The provisions of sections 953a, 953b, and 953c of the Code of Civil Procedure, providing a record on appeal in lieu of the ordinary bill of exceptions, authorize such a record on an appeal such as one from an order granting a motion to change the place of trial, where the proceedings at the hearing were not taken down by a stenographic reporter, and the evidence submitted to the court consisted entirely of the files and records of the action.</p>

MOTION to affirm certain judgments of the Superior Court of Orange County. W. H. Thomas, Judge. The facts are stated in the opinion of the court. Kimball Fletcher, Wm. A. Gaines, and D. J. Hinkley, for Appellants.

<p>APPLICATIONS for Writs to review certain decisions and orders of the Railroad Commission of the State of California.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Estates of Deceased Persons—Attorney’s Fees of Administrator— Services in Opposition to Revocation of Letters.—Services performed by an attorney for an administrator of an estate in filing a brief in opposition to a petition for the revocation of his letters of administration and in the preparation of the order therein, are not the ordinary proceedings referred to in section 1619 of the Code of Civil Procedure. In such a contest, the public administrator of Los Angeles County, as administrator of the estate, was not acting as a trustee of the estate, but acting solely for his own interest or that of the municipality entitled under the charter to the fees of administration. Hence, the services so rendered constituted no basis for the allowance of the statutory fees.</p> <p>Id.—Attorney’s Fees not Allowable Where No Legal Services are Rendered.—The estate of a deceased person is not properly chargeable with attorney’s fees where the attorney claiming them gives no advice and renders no service to the estate or administrator thereof, the sole basis for his demand being that he permitted the administrator to sign his name to the petition for letters of administration and other documents prepared by the administrator, and to which the latter’s signature as administrator would give them the same legal effect as though signed by the attorney.</p> <p>Id.—Administrator not Required to Employ Attorney—Estates Administered by Public Administrator of Los Angeles County.— There is no law, statutory or otherwise, which requires an administrator to employ an attorney, and where a claim for statutory fees is presented for services rendered in conducting the ordinary probate proceedings, the burden, where objection is made thereto, rests upon the attorney to show that he has rendered such services. This rule is applicable in estates administered by the public administrator of Los Angeles County, and to claims for attorney’s fees made by the county counsel under section 21 of article VI of the county charter.</p>

<p>The facts are stated in the opinion of the court.</p> <p>Wm. M. Abbott, Wm. M. Cannon, and Kingsley W. Cannon, for Appellant.</p>

<p>APPLICATION for a Writ of Certiorari to review a decision of the Railroad Commission of the State of California.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Practice—Dismissal of Action—Failure to Bring to Trial Within Five Years After Answer.—The provision of section 583 of the Code of Civil Procedure, providing that an action shall be dismissed by the court, “after due notice to plaintiff or by the court on its own motion, unless such action is brought to trial within five years after the defendant has filed his answer, except where the parties have stipulated in writing that the time may be extended,” is mandatory in any ease where the facts bring it within its provisions.</p> <p>Id.—Stipulation for Extension of Time — Counsel may Make.—A stipulation for an extension of time, within the meaning of the section, need not be made by the parties personally. It is sufficient if made by their respective counsel.</p> <p>Id.—Right to Dismissal.—Under that section, unless the parties have, in effect at least, stipulated in writing that the action need not be brought to trial within five years from the date of the filing of the answer, it must be dismissed at the expiration of such five years, if not “brought to trial” within that time.</p> <p>Id.—Stipulation Setting Trial Date Within Five Year Period.— Stipulations fixing successive dates of trial within the five year period after answer filed do not have the effect to extend the five year period, and, in the absence of some element of estoppel, cannot be an effective answer to a motion to dismiss, if the action has not been brought to trial within the five year period.</p> <p>Id.—Death of Administrator Defendant After Expiration of Period. The death after the expiration of the five year period of an administrator of an estate, who was one of the defendants, against whom the action was originally brought, and a delay in the substitution of his successor until the day before the motion to dismiss was noticed, do not affect the defendant’s right to a dismissal.</p> <p>Id.—Death of Attorney for Plaintiff During Period.—Where the attorney for the plaintiff died after the five year period had commenced to run, the running of that period was not suspended during the time intervening his death and the service of a notice by the defendant on the plaintiff requiring it to appoint another attorney or to appear in person. The running of the five year period was not a “proceeding” had against the plaintiff, within the meaning of section 286 of the Code of Civil Procedure.</p> <p>Id.—Defendants Without Attorney During Portion of Period.— The fact that for a portion of the five year period there was ao acting attorney of record for any of the defendants does not affect the defendants’ right to a dismissal, as the plaintiff could, nevertheless, have brought the case to trial, resorting to the procedure for the appointment of another attorney or an appearance in person contemplated by section 286 of the Code of Civil Procedure.</p> <p>Id.—Action to Quiet Title—Dependants Alleging Title in Themselves—Duty to Bring Action to Trial.—The defendants’ right to a dismissal of an action to quiet title for failure to bring it to trial -within the five years after their answers were filed is not affected by the mere fact that in their answers they set up their own alleged title and asked that they be adjudged the owners. Under such pleadings, the defendants did not become actors in the sense that any duty devolved upon them to bring the plaintiff’s asserted claim to trial.</p> <p>Id.—Mandamus to Secure Dismissal.—A defendant, as matter of right, is entitled to a writ of mandate to secure' the dismissal of an action for the failure to bring it to trial within the five year period, where there is nothing to show that the dismissal will work injustice or operate harshly or not promote substantial justice.</p> <p>Id,—Bight to Peremptory Mandamus—Alternative Writ Awarded for Purposes Only Partially Proper.—The' rule that a petitioner for a writ of mandate is concluded by tho terms of the alternative writ, and that where the alternative writ is awarded for a purpose partly proper and partly improper, the court will not enforce it by a peremptory mandamus as to that which is proper, but will give judgment for the respondent, is not an iron-bound one, to be enforced by a court regardless of circumstances, but is one to be applied in consonance with principles of fairness and justice. The rule should not be applied to the circumstances of this application.</p>

<p>APPLICATION for a Writ to Review an award of compensation made by the Industrial Accident Commission of the State of California.</p> <p>The facts are stated in the opinion of the court.</p> <p>Alfred C. Skaife, Guy Le Roy Stevick, and Redman & Alexander, for Petitioner.</p>

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

<p>Divorce—Alimony Pending Appeal by Wipe prom Judgment Against Her—Discretion of Trial Court.—Where a judgment of divorce has been awarded against the wife, the matter of the allowance to her of alimony pending her appeal therefrom, and attorneys’ fees and costs in connection therewith, is within the discretion of the trial court, and its action is subject to correction on appeal only where there is a plain abuse of discretion.</p> <p>Id.—Court may -Consider Matters Arising on Trial.—In exercising his discretion in the decision of the motion for such alimony, the trial court has the right to- consider all of the matters and evidence that came before him on the trial.</p> <p>Id.—Determination That Husband was not Charged With Wife’s Support.—The trial court’s conclusion upon the main ease that the wife’s action for separate maintenance was without merit and that the -husband was entitled to a divorce, necessarily contained in it his conviction that the husband was no longer legally or equitably charged with the support of the wife.</p> <p>Id.—Attorneys’ Fees Pending Appeal—Reservation of Fixing Until Termination of Litigation.—A writ of mandate will not lie to compel the trial court to award attorneys’ fees to the wife pending such appeal, where it appears that such court, with the consent of the husband, is presently prepared to fix a minimum fee in a limited sum, reserving the fixing of the ultimate amount to be awarded until the termination of the litigation.</p>

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

<p>Estate op Deceased Person—Family Allowance to Widow—Instrument Executed by Wipe Cotemporaneous With Husband’s Will —Construction.—A written instrument, executed by a wife at the request of her husband at- the time he executed his will and annexed to it', wherein she declared that she understood that such will disposed not only of all the individual property of the husband, but also of all their community property, that she elected to accept and acquiesce in the provisions of the will, and “waived all claims to her share of the community property and any and all other. claims that she might have upon any of the estate disposed of by the said will,” should be construed in connection with the preamble of the will, wherein the testator declared that it was his intention thereby to dispose of all of his own property, and also, with his wife’s “written consent and acceptance,” of all of their community property, and in further connection with the attestation clause, in which the witnesses certified that the wife declared that she executed the instrument “in token of her assent to the will of her husband and her waiver of all rights inconsistent with said will.” So construed, the instrument does not have t'he effect, either as a contract or by way of waiver or estoppel, to deprive the wife of the right to a family allowance from the estate of her husband.</p> <p>Id.—Law Favors Widow’s Claim to Family Allowance.—The widow’s claim to,a family allowance is strongly favored in our law, and her right thereto should not be held to have been surrendered by an agreement between the spouses, except by clear and explicit' language.</p> <p>Id.—Election Between Will and Family Allowance.—A widow is not put to an election between the provisions made for her by the will and her right to a family allowance, where the will, although it plainly shows that the testator intended to require her to elect between taking under the will and taking one-half of the community property, contains nothing to indicate an intention to put her to an election so far as family allowance is concerned.</p> <p>Id.—Legacy by Way of Periodic Payments to Widow—Entire Estate Specifically Disposed of.—The fact that the legacy to the wife takes the form of a provision for payments at stated periods, beginning from the testator’s death, does not deprive her of the right to a family allowance, nor does the further fact that the will disposes specifically of the entire estate have that effect, in and of itself.</p>

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

<p>Trust—Purchase op Trust Property by Trustee—Judicial Sale by Court Oppicers.—The inhibition upon a trustee from purchasing the trust property at his own sale is removed by the determination of a court of equity that he may be such purchaser; and when the sale is made under the direction of a court of equity, by officers appointed by the court, it is not a sale by the trustee, and there is no rule or principle preventing him from becoming a purchaser. This rule is not limited to cases where the trusteeship is coupled with a power of sale.</p> <p>Id.—Sale Under Partition Decree in Foreign Jurisdiction—Collateral Attack.—Where a court of another state has acquired jurisdiction of all the parties and of the subject matter in partition proceedings, its decree for the sale of the property, authorizing any of the parties to become purchasers, is res judicata and binding on all the parties to the action. Neither such decree nor the order confirming the sale by the master in chancery to certain of the parties is subject to collateral attack in a suit in this state on the ground that the purchasers were trustees of the property.</p>

<p>The facts are stated in the opinion of the court.</p> <p>J. W. McKinley, Frank Karr, and Parker & Moote, for Appellant.</p>

<p>Corporations—Public Utilities—Incurring Indebtedness in Excess op Capital Stock—Liability op Directors Under Section 309 op Civil Code—Bepeal by Public Utilities Act.—Section 309 of the Civil Code, in so far as it imposed on participating directors of a corporation a liability for debts of the corporation created in excess of its subscribed capital stock, was repealed as to public utility corporations by sections 52b and 52e of the Public Utilities Act which went into effect on March 23, 1912 (Stats. Ex. Sess. 1911, p. 18).</p> <p>Id.—Pending Action to Enforce Directors’ Liability—Abatement op Action by Bepeal op Section 309 op Civil Code.—As the Public Utilities Act contains no clause saving pending litigation or imperfect or inchoate rights, the effect of the repeal was to destroy the right of a creditor further to prosecute a pending action to enforce the liability of the directors, under section 309 of the Civil Code, for such excess indebtedness. This result follows whether the action be in its nature penal or remedial.</p> <p>Id.—Statutory Bight of Action—Effect of Bepeal on Pending Litigation.-—-The right of action against directors for incurring corporate indebtedness in excess of the subscribed capital stock, conferred by section 309 of the Civil Code, is purely statutory, and it is a rule of almost universal application that, where a right is created solely by a statute, and is dependent upon the statute alone, and is still inchoate and not reduced to possession, or perfected by final judgment, the repeal of the statute destroys the remedy, unless the repealing statute contains a saving clause.</p>

<p>Agency—Authorization to Enter into Contract of Lease.—The written authorization from the owner of land, in order that it may be sufficient to permit the agent to enter into a binding contract of lease, must express within its terms the intention of the owner to confer upon the agent complete authority so to do.</p> <p>Id.-—Employment of Agent to Sell or Lease.—The mere employment by the owner of an agent to sell or lease his real property is usually insufficient as a grant of power to execute a binding conveyance or lease.</p> <p>Id.—Authorization "to Negotiate a Lease”—Surrounding Circumstances.—A written authorization to an agent merely “to negotiate a lease” does not confer on the agent the power to enter into a contract of lease on behalf of his principal, and such authorization, not being uncertain in its terms, cannot be construed as conferring the power to lease by any consideration of the surrounding circumstances.</p> <p>Id.—When Surrounding Circumstances may be Considered.—The surrounding circumstances may only be considered in construing a contract when its terms are such as to make the intention of the parties to it uncertain.</p>

The facts are stated in the opinion of the court. Peter F. Dunne, C. W. Durbrow, and C. H. Wilson, for Appellant. T. C. Van Ness, and T. C. Van Ness, Jr., for Respondent Sun Insurance Office of London. Chickering & Gregory, and W. S. Dorn, for Other Respondents.

APPEALS from orders of the Superior Court of Yolo County refusing to change the place of trial. W. A. Anderson, Judge. The facts are similar to those stated in the opinion in Gallup v. Sacramento and San Joaquin Drainage District, ante, p. 71.