Volume 172 — California Reports

<p>The facts are stated in the opinion of the court.</p> <p>Smith, Miller & Phelps, and M. M. Meyers, for Appellant.</p>

<p>New Trial—Transfer of Cause for Prejudice and Bias of Judge— Duty of Judge to Negative by Affidavit.—It is the duty of the trial judge, if he can do so, to negative by his affidavit, reciting his mental attitude, allegations of prejudice made in proceedings to obtain a transfer of the cause.</p> <p>Id.—State of Mind of Judge—Disclaimer of Bias.—The state of mind of the judge in sueli an application is the matter in dispute, and it was therefore proper to refuse to strike out as conclusions those portions of the affidavit of the judge in which he disclaimed bias and prejudice.</p> <p>Id.—Rulings of Judge as Indicating Prejudice.—The showing, in plaintiff’s affidavit of prejudice, that the judge, after ruling against plaintiff, granted her motion for a new trial, and on the appeal this ruling on the motion was sustained, does not indicate bias or prejudice on the part of the judge, but, on the contrary, showed a desire on his part to do justice.</p> <p>Id.—Rulings Indicating Fairness.'—A showing that the judge generally decided against plaintiff on objections made by her counsel, but not asserting that the rulings were not generally correct, or that they had been reversed by the judge on his own motion, does not indicate prejudice, but, on the contrary, indicates a 'desire on the part of the judge to be fair.</p> <p>Id.—Erroneous Rulings not Ground of Bias.—Erroneous rulings against a litigant, even when numerous and continuous, form no ground for a charge of bias or prejudice, especially when they are subject to review.</p> <p>Id.—Expressions of Opinion as Evidence of Bias.—The expressions of opinion uttered by a judge, in what he conceives to be a discharge of his judicial duties, are not evidence of bias or prejudice.</p> <p>Id.—Vexation of Judge and Remarks About Verdict as Evidence of Bias.—The vexation of the judge, and his remarks that he did not know how the jury could possibly reach such a verdict, indicates that he had formed an opinion regarding the legal questions presented in connection with the proof, and being based upon the observation of the witnesses, hearing their testimony, and his knowledge of the law applicable thereto, do not amount to that prejudice against a litigant which the statute contemplates as a basis for a change of venue.</p> <p>Id.—Inconsistent Demeanor of Judge as Evidence of Bias.—An inconsistency between the demeanor of the judge at the time the verdiet was rendered, and that previous to the submission of the ease to the jury when denying a motion for a directed verdict in favor of defendant, merely indicates that, upon more mature consideration of the case, after the refusal to direct a verdict for defendant, the judge deemed it to be his duty under his oath to grant a new trial and is not an indication of prejudice.</p> <p>Id.—Denial of Motion for Change of Venue.—In this case the showing of prejudice was slight, and was met so fully by the affidavit of the judge that there can be no doubt of the justice and propriety of his action in denying the motion of the plaintiff made under section 170 of the Code of Civil Procedure.</p> <p>Id.—Display by Judge of Annoyance at Verdict not Ground fori Transfer of Cause.—A display by the judge of annoyance at what seemed to him to be misconception of the jury of the effect or weight of the evidence, and his suggestion that a motion for a new trial should be made upon the minutes of the court, is not that prejudice which the statute makes the basis of the removal of the cause to another court.</p> <p>Id.—Action on Accident Insurance Policy-Insufficiency of Evidence to Support Verdict—Sufficient Specification.—A specification of the insufficiency of the evidence to support the verdict, reciting that there was no evidence tending to prove that' the death of the decedent was not due to the concurrence of nephritis and rheumatism with the effect of a fall, if any, containing the language “but on the contrary, the evidence proves by an overwhelming preponderance, that if the said fall suffered by the said MeEwen contributed in any manner or degree to the death of said MeEwen, that it served merely to accelerate the progress of the disease's from which the said MeEwen was then suffering, and the last stages of which were then approaching, to wit: nephritis and rheumatism, and at most, concurred with said disease in bringing about said death,” sufficiently directed the attention of the court and the adverse party to the particular point on which the evidence was claimed to be insufficient, and complies with the requirements of section 659 of the Code of Civil Procedure.</p> <p>Id.—Specification Sufficiently Definite.—A specification of insufficiency of the evidence to support a verdict, to the effect that there is no evidence tending to prove that deceased and plaintiff fulfilled the conditions of the policy, but that on the contrary decedent made a certain quoted warranty which was false, sufficiently shows defendant’s theory, and the evidence which it was desired to call to the court’s attention.</p> <p>Id.—Burden of Proof—Ground of Awarding New Trial Assumed on Failure of Proof by Defendant.—The execution and delivery of the policy being admitted, the burden was upon the insurance company to show the falsity of statements of the insured by way of warranty when the answer attacks the truth of such statements, and if the defendant company failed to establish such falsity, -and no such proof was made, it must be assumed that the court granted the motion for a new trial for some other reason.</p> <p>Id.—Discretion of Trial Court in Granting New Trial—Order Conclusive ie Sustained on Ant Ground.—Unless there has been an abuse of discretion, the action of the lower court in granting a new trial is conclusive, and the order to that eifeet, in general terms, must be affirmed if it can be sustained upon any of the assigned grounds.</p>

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

<p>Election Law—Primary Act—Statement of Party Affiliation in Affidavit of Registration.—Under the law as it now exists, notwithstanding the amendment of section 1096 of the Political Code, at the regular session of 1915, which strikes from the section, the provision that an elector may state in his affidavit of registration the name of the political party with which he intends to affiliate at the ensuing primary election, the elector is entitled to state that fact in his affidavit.</p> <p>Id.—“Test and Condition” fob Participation in Primary Election— Constitutional Law.—The statement by the elector of the political party organization with which he intends to affiliate, in his affidavit, is the' “test and condition” upon which electors may participate in the ensuing primary election, and under section 2% of article II of the constitution the legislature is empowered to prescribe such a test.</p> <p>Id.—Statutes—Incorporation by Reference—Subsequent Repeal.— Section 1096 of the Political Code, so far as essential to the maintenance of the party primary provisions of the Primary Act was thus made a part of such act by incorporation by reference, and the legislature could not subsequently affect the Primary Act by merely amending section 1096 so as to eliminate party registration.</p>

The facts are stated in the opinion of the court. Morrison, Dunne & Brobeck, E'dward Lynch, Stratton, Kaufman & Torchiana, W. W. Kaufman, Geo. T. Hatfield, and J. Howard Smith, in pro. per., for Appellants. McCutchen, Olney & Willard, E'dward J. McCutchen, and A. Crawford Greene, for Respondents.

<p>Municipal Corporation—Ordinance Prohibiting Solicíitation por Charity—Constitutional Law.—A municipal ordinance, to the extent that it gives a commission established by the municipality the absolute and arbitrary power to forbid any person from soliciting for private charity, regardless of his personal character, worth, or fitness, or from selling goods donated to such charity, is unconstitutional and void.</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>

Crothers, one of the judges of said Superior Court, presiding in Department No. 1 thereof. The facts are stated in the opinion of the court.

<p>Negligence—Personal Injuries—Passenger Injured in Elevator— Facts Showing Presumptive Negligence.—In an action for damages for personal injuries sustained by plaintiff while being conveyed as a passenger in an elevator owned and operated by defendant, in order to make out a case showing presumptive negligence on the part of the defendant it is only necessary to show that he was injured by the rapid descent and sudden stopping of the elevator, and that the elevator was under the control and management of defendant.</p> <p>Id.—Bes Ipsa Loquitur.—The doctrine of res ipsa loquitur applies .to a passenger elevator.</p> <p>Id.—Instructions—Burden of Proof of Negligence.—The giving of an instruction that plaintiff had sustained the burden of proof of negligence on the part of defendant “by a showing that the plaintiff was injured while a passenger in the elevator of defendant,” although incomplete in failing to include the further statement that it must appear that the injury was caused by the operation of the elevator, its mode of motion, or from something connected therewith, is not prejudicial, where it appears by the evidence that if plaintiff suffered the injury complained of at all while in the elevator it was because of its manner of operation, its rapid descent, and sudden stop.</p> <p>Id. — Pleading ■—■ Allegation of Damages from Impaired Earning Power.—It is not necessary to allege specially the damage to the plaintiff by reason of the impairment of his power to earn money occurring by reason of the injury.</p> <p>Id. — Sufficient Allegation of Damages — Includes Those Arising from Loss of Earning Power.—An allegation in the complaint, that by reason of the injury plaintiff suffered in a certain manner “all to his damage in the sum of fifteen thousand dollars,” is a sufficient allegation of damage and includes whatever loss of earning power may have been caused by the permanent injury stated.</p> <p>Id.—Necessary Consequences from Injury.—Consequences which naturally follow from a personal injury because of the nature of the injury are general damages, and need not be specially pleaded in order to recover damages resulting therefrom.</p> <p>Id.—Evidence Sustaining Damages from Loss of Earning Power.— Where there was evidence that prior to the injury the plaintiff was enjoying good health, was active for a man of his age, and that he had been engaged in real estate business, although his income from such business does not appear, and that his leg was stiff from the injury and too weak to support his weight, the jury could form some estimate of his earning power and the extent of his damage in that particular.</p> <p>Id.—Instructions—Distinction Between Past and Future Impairment of Earning Power.—An instruction which permits the jury to allow compensation for the “loss of power to earn money in the future,” and further states that no damages could be allowed “for loss of specific wages or earnings” since none was proved, could not mislead the jury by the omission of the words “in the future,” and the instruction was therefore good as against that objection.</p>

<p>Pleading—Alienation of Wife’s Affections—Criminal Intercourse. A husband’s cause of action for the alienation of the affections of his wife is separate and distinct from a cause of action arising from the defendant’s criminal intercourse with her.</p> <p>Id.—Letters of Wife to Defendant—Evidence.—Letters of the wife, addressed to the defendant, which were never received nor in any way assented to or acted upon by him, are not' admissible in evidence against him in support of such charges.</p> <p>Id.—Gambling Habits of Plaintiff—Record not Embodying Entire Evidence.—In an action by the husband joining such causes of action, the admission of evidence touching the plaintiff’s habits of gambling, which had been set up in the answer as a defense and no motion made to strike it out, will not warrant a reversal of a judgment for the defendant, where all the evidence is not brought'up for review. It will, if necessary, be inferred in favor of the regularity of the court’s procedure, that other evidentiary matters made this particular evidence pertinent, competent, and admissible.</p> <p>Id.—Wealth of Defendant—Immaterial Exclusion of Evidence.— On an appeal by the plaintiff from a judgment for the defendant, error, if any, in rejecting evidence offered by the plaintiff to show defendant’s wealth, is immaterial, unless the appellant is otherwise entitled to a reversal.</p>

<p>Appeal — Alternative Method — Transcript of Testimony must be Made by Stenographic Reporter—Certification by Judge.—On an appeal taken by the alternative method provided by section 941a of the Code of Civil Procedure, the trial judge is not authorized to certify to a transcript of the testimony and proceedings had on the trial, unless the same has been prepared by the official stenographic reporter present at the trial, as required by section 953a of that code.</p> <p>Id. — Certification by Clerk Insufficient. — On an appeal from a judgment taken by the alternative method a transcript of the testimony certified to by the clerk alone cannot be considered.</p>

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

<p>Bun-mm Contract—Accord and Satisfaction—Estoppel—Pleading. In order to take advantage of an accord and satisfaction or an estoppel, the facts constituting the same must be pleaded.</p> <p>Id.—Bond Given to Owner—Final Payment Prior to Time When Due—Receipt “in Full as Per Contract”—Accord and Satisfaction—Estoppel—Extras.—A bond given by a contractor to an owner to hold the owner harmless against loss occasioned by the owner’s paying the final payment on the contract due thirty-five days after the completion of the work, prior to that time, and accepting a receipt for such payment “in full as per contract,” do not constitute an accord and satisfaction, or an estoppel against setting up a claim for extras under the contract.</p> <p>Id.—Explanation of Receipt—Accord and Satisfaction—Estoppel.— Such a receipt can be explained, and it was error to regard the transaction as an accord and satisfaction, or as one creating an estoppel against claiming compensation for the extras, and to reject evidence of the transaction explaining the receipt.</p>

<p>Personal Injuries—Appeals—Conflict of Evidence.—In an action for damages for personal injuries sustained by the driver of a team, in the employ of a municipality, against the owner of the team who furnished the team to t'he municipality under a contract for supplying it with teams for street-sprinkling service, caused by a horse’s starting suddenly, throwing the driver from the sprinkling wagon and running over his leg, on appeal it must be assumed that the jury accepted t'he testimony of plaintiff’s witnesses as to whether the horse was a dangerous animal, and the verdict will not be disturbed.</p> <p>Id.—Vicious Animal—Knowledge of Servant Intrusted With Care, The knowledge of a servant intrusted by the master with the care of an animal is knowledge to the master of the character of the animal.</p> <p>Id.—Information Given to Servant in Charge.—The information given by the drivers of teams to the persons intrusted with the care of the . teams by the owners of them, where on the premises there is no other representative of the owner, except that the foreman occasionally visited the premises, is imputable to the owner of t'he teams.</p> <p>Id.—Knowledge by Plaintiff Prior to Injury.-—In such a ease it is essential to a recovery that the plaintiff be ignorant of the viciousness of the animal until the injury has happened.</p> <p>Id.—Pleading — Appeal — Harmless Error.—When a demurrer to a complaint might possibly have been sustained to compel the plaintiff to plead more specifically, if the defendant was not deceived nor misled at the trial by the imperfections of the pleading, the error will he disregarded on appeal under section 475 of the Code of Civil Procedure and section 4% of article VI of the constitution.</p>

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

<p>Homestead — Public Land — Contiguous Tracts.—A declaration of homestead upon a tract of two hundred and one acres of land consisting, by government subdivisions, of eighty acres, upon which the claimant resided with his two minor children and had filed a preemption declaratory statement, and an adjacent eighty acres and two fractional lots, upon which claimant had a timber culture entry at the time of filing the declaration, after which claimant canceled the timber culture entry and filed a homestead entry in its place, which in turn was canceled and a state lieu selection filed, creates a valid homestead upon the entire tract.</p> <p>Id.—Limitation as to Amount of Land Included.—There is no limitation in this state as t'o the amount of land or the number of contiguous tracts which may lawfully be impressed with a homestead.</p> <p>Ib.—Sole Limitation is upon Value—Excess of Statutory Limitation Subject to Eights of Creditors.—The limitation is upon the value of the land and not upon the acreage, but if the value of the land is proved to be in excess of five thousand dollars, the homestead exemption goes only to that amount, and the excess over that sum is subject to the demands of creditors.</p> <p>Id.—Character of Title Unessential — Possession Sufficient— Affects Subsequently Perfected Title.—The homestead does not depend upon the character of the title of the claimant, a mere naked possession being sufficient to receive the homestead characteristic, and every improvement in the title including its perfection will be impressed with the same homestead characteristic.</p> <p>Id.—Public Lands in Possession of Claimant—Eights of Owner of Superior Title.—One can acquire a homestead upon, public lands of the United States of which he has possession and can maintain his homestead rights against all the world except the owner of the superior title.</p> <p>Id.—Abandonment—Sole Method Prescribed by Statute.—Under the statute now in force (section 1243 of the Civil Code), a homestead can be abandoned only in the manner therein prescribed, which is declared to be “by a declaration of abandonment, or a grant thereof, executed and acknowledged.”</p>

<p>The facts are stated in -the opinion of the court.</p> <p>John Murray Marshall, Walter Gould Lincoln, Perry F. Backus, and Roy V. Reppy, for Appellant.</p>

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

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

<p>The facts are stated in the opinion of the court.</p> <p>Joseph L. Lewisohn, Daniel M. Hunsaker, J. Henry Harris, Hunsaker & Britt, and Hunsaker & Harris, for Appellant.</p>

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

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

<p>The facts are stated in the opinion of the court.</p> <p>A. J. Treat, L. Horwitz, and Henry Conlin, for Appellant.</p> <p>Warren Gregory, Allen L. Chiekering, and William H. Gorrill, for Respondents.</p>

<p>Divorce—Residence not Bona Fide—Service by Publication—Effect of Decree in Foreign State.—Where one spouse goes to a state other than that of the matrimonial domicile and there obtains a divorce under a residence simulated for that purpose and not in good faith, the judgment is not binding upon the courts of other states of the Union, and upon proof of the fraudulent residence and of the fact that the divorce is obtained by substituted service only, it may be held void in any other state than that in which it was rendered.</p> <p>Id.—Validity in State Where Granted.—Whether a divorce granted under such circumstances would be held valid in the state in which it was rendered is a question depending on the law of that state.</p> <p>Id— Estoppel by Bemarriagb to Attack Decree. — A party, against whom a divorce has been obtained in a state not the residence of the parties, by the plaintiff upon service by publication of summons, and upon a residence not established in good faith, is estopped to claim marital rights in the courts of the state of the matrimonial domicile against the party obtaining such divorce, by the fact of having married another person after the divorce.</p> <p>Id.—Estoppel by Bemarriagb to Attack Divorce.—A remarriage es-tops the party entering into it from denying the validity of the previous divorce.</p>

<p>Mechanics’ Eiens—Contract With City for Public Building—Garnishment by Creditor of Contractor — Notice to Withhold — Priority.—The claim of one who has garnisheed, under section 710 of the Code of Civil Procedure, money then due to a contractor under a contract' for the erection of a public building, is superior to the claims of materialmen and laborers who had furnished materials and performed labor upon the building, and who served notices to withhold the amount due to the contractor and to apply the same to their claims, under section 1184 of the Code of Civil Procedure, after the garnishment had been made.</p> <p>Id. — No Materialmen’s or Laborers’ Lien on Public Building. — Neither the constitution nor the statute gives laborers or material-men any lien against public buildings.</p> <p>Id.—Equitable Garnishment by Notice to Withhold.—The proceeding authorized by section 1184 of the Code of Civil Procedure is substantially an equitable garnishment by t'he claimant of the fund due to the contractor from the owner, and secures to the person giving the notice a claim on the funds due, which is paramount to that of the contractor, or any person claiming under him by assignment or attachment made after the service of such notice.</p> <p>Id.—Notice to Withhold—Assignment by Contractor—Attachment or Eights oe Contractor.—If, before the service of the notice under section 1184 of the Code of Civil Procedure, the claim then due to the contractor has been assigned by the contractor, or other parties have obtained rights to the claim by attachment or otherwise, the rights of the persons giving such notice are subordinate to such other rights by assignment, attachment, or otherwise.</p> <p>Id.—Time When Notice may be Given.—Section 1184 of the Code of Civil Procedure gives to laborers and materialmen a right to give their notice at any time after they contract to furnish the labor or materials, and by doing so they may anticipate any subsequent attachment or execution.</p>

<p>Creditor’s Bill—Enforcement of Unpaid Stock Subscription to Debtor Corporation.—A creditor who has exhausted his legal remedies to collect his debt may maintain in equity a creditor’s bill against a stockholder of the debtor corporation on an unpaid stock subscription.</p> <p>Id.—Judgment Against Corporation after Forfeiture of Charter.—■ A judgment against a corporation after its charter had been forfeited is a nullity, and will not support a creditor’s bill against a stockholder of the corporation on an unpaid stock subscription.</p> <p>Id.—Estoppel—Corporation as Instrumentality for Transaction of Business of Individual—Estoppel.—Where the stockholder of t'he debtor corporation against whom the creditor’s bill to enforce an unpaid stock subscription is brought is also a corporation, both such corporations having a common president, facts sufficient to create an estoppel against the president personally do not create an estoppel against the stockholder corporation to prevent it from relying upon the invalidity of the judgment, in the absence of proof showing that the stockholder company was but the instrumentality through which the president conducted his business.</p> <p>Id.—Pleading.—It is not necessary for a plaintiff to plead facts which he claims create an estoppel against t'he defendant’s maintaining a certain defense to the complaint!</p> <p>Id. — Corporation not Estopped by Knowledge of President. — Evidence that one is the president of a corporation and the owner of the greater portion of the stock of the corporation does not create an estoppel against the corporation by reason of his knowledge and conduct in the matter of another corporation of which also he is president.</p>

<p>The facts are stated in the opinion of the court.</p> <p>Hartley Shaw, and Kemp, Mitchell & Silverberg, for Appellants.</p>

<p>Trusts — Laches — Discretion of Chancellor. — In determining the question of laches there is wide scope for the exercise of the discretion of the chancellor.</p> <p>Ib.—Circumstances Failing to Show Laches.—Laches will not be inferred from the lapse of eighteen years before the bringing of an action by a mother in possession of a dwelling, the legal title to which is in the daughter, and which had been built by the daughter with her own funds upon the understanding that it should be the property of the mother," as compensation for caring for the daughter’s child, where the mother had always claimed to own the dwelling whenever in the presence of the daughter, and the daughter had stated that she was building the place for her mother, and had frequently stated that she intended to convey the property to the mother, which statements had been repeated to the mother.</p>

<p>The facts are stated in the opinion of the court.</p> <p>Watkins & Blodget, and Victor T. Watkins, for Appellant.</p>

<p>Municipal Corporations — Discriminatory Ordinance — Arbitrary Prohibition op Stables in Restricted District.—An ordinance of a municipality which absolutely prohibits the maintenance of stables within a small district of the city which was comparatively sparsely settled, while permitting their maintenance in other districts more thickly populated and densely settled and exclusively devoted to residence purposes, is oppressive, discriminatory, and void.</p>

<p>Negligence — Putting Head into Elevator Shaft — Contributory Negligence.—A person who protrudes his head into an elevator shaft, through an aperture in the elevator door of sufficient dimension to afford a view of the interior of the shaft without so doing, is guilty of contributory negligence, if he fails to take reasonable precautions to ascertain whether or not the elevator was in operation or in dangerous proximity. ‘</p> <p>Id.—Unwarranted Inferences as to Cause of Accident.—In an action to recover damages for the death of a person killed by the descending elevator while so protruding his head into the shaft, • the jury are not at liberty to infer, in the absence of evidence to support such theory, that the deceased, while walking along the floor, may have stumbled and fallen into the opening of the door, or may have lost his balance while looking in, and was not able to get out in time.</p>

<p>Husband and Wipe—Deed to Wipe—Presumptions—Tenants in Common—Separate Property.—Under section 164 of the Civil Code, as amended in 1897, a deed to a man and his .wife presumptively vests the property in them as tenants in common, and a deed to the wife alone presumptively vests the property in her as her separate property.</p> <p>Id.—Eppect op Presumptions—Evidence to Overcome.—Such presumptions are not conclusive, and may be overcome by evidence sufficient to establish that the property, although conveyed to the wife, was in'faet community property.</p> <p>Id.—Disputable Presumption as Evidence.—A presumption declared by statute, although disputable, is itself evidence, and it is for the trial court to say whether the evidence offered to overthrow it has sufficient weight to effect that purpose.</p> <p>Id.—Finding in Accordance with Presumption.—Against a proved fact, or a fact admitted, a disputable presumption has no weight, but where it is undertaken to prove the fact against the presumption, it still remains with the jury to say whether or not the fact has been proven; and, if they are not satisfied with the proof offered in its support, they are at liberty to accept the evidence of the presumption.</p> <p>Id.—Finding—Property not Purchased with Community Funds — In this action by a surviving husband to have land standing in the name of his wife declared to be community property, the evidence is held sufficient to justify the trial court’s conclusion that the property was not purchased with community funds.</p> <p>Id.—Intention op Husband to Make Gift to Wipe.—If the property had been purchased with community funds, the presumptions arising from the face of the deeds to the wife required the husband to further show that he had not caused the conveyances to be made to her with the intention on his part to make a gift of the property to her. /</p> <p>. Id.—-Court may Disregard Husband’s Testimony of His Intention.— The testimony of the husband that he had no such intention, while competent, was not conclusive on the trial court, if, in its view of the circumstances, it deemed the testimony improbable.</p> <p>Id.—Declarations of Wife as to Status op Property.—In such action, evidence of the wife’s declarations that she had the property fixed so that if she died first it would all belong to her husband, and if he died first it would all belong to her, is immaterial on the issue as to the status of the property.</p>

<p>Vendor and Vendee—Construction of Contract for Sale of Minino Property—Covenant for Development Work and Installation of Improvements.—The contract for the sale of certain mining property, to avoid which this action was brought, after providing that deferred payments of the purchase price should be made out of the gross output of the mine, contained covenant's on the part of the vendee to fit up the mill with described machinery, and to continue development work on the property at such rate as to keep the mill in operation, provided said vendee with due diligence should find ores sufficiently valuable, and should not be prevented from such work by unavoidable accident. This was immediately followed by a covenant reciting that “abandonment of work for a period of six months at any one time except as above,” should operate to forfeit the vendee’s rights. It was also agreed that the property should be kept free from debts and liens on account of the development or other work done by the vendee, and that the vendee should make a report of its gross earnings to the vendors four times a year. Eeld, that' the contract, read as a whole, justified the construction that development work was to be commenced by the vendee from the time it took possession, or at least very promptly following that event, and that the evidence supported a finding that such work had not been done by the vendee as agreed, and that it had also failed to place upon the property the promised improvements.</p> <p>Id.—Pleading—Contract Set up in Answer—Allegation of Full Performance—Covenant not Alleged in Complaint.—Where the defendant in its answer set out the contract and alleged compliance with it in all particulars, the plaintiffs, under the issue of full performance thus tendered hy the defendant and presumed to be denied, were entitled to offer evidence of a breach of a covenant not specifically alleged in the complaint.</p> <p>Id.—Evidence—Letters Showing Diligence of Vendee.—-Certain letters written to one of the vendors by the manufacturer of certain machinery intended for the mine and ordered by the vendee, were properly admitted in evidence for the limited purpose of showing diligence or lack of it on the part of the vendee.</p>

<p>The facts are stated in the opinion of the court.</p> <p>George Clark, Black & Clark, and W. A. Anderson, for Appellants.</p>

<p>The facts are stated in the opinion of the court.</p> <p>Haas & Dunnigan, Flint, Gray & Barker, and Gray, Barker & Bowen, for Appellant.</p>

<p>Will—Statutory Requirements—Compliance With Essential to Validity.—The privilege of making testamentary disposition of property is not an inherent or even a constitutional right; it is wholly statutory, and compliance with the statutory requirements is absolutely necessary to the validity of any instrument offered as a testament.</p> <p>Id.—Holographic Will Must be Dated.—The general rule that the provisions of the code “are to be liberally construed with a view to effect its objects,” does not excuse lack of substantial compliance with the statutory requirement that a holographic will must be dated by the testator.</p> <p>Id.—Insufficient Date.—The words and figures “Winters To lo Co 10 1912,” are insufficient as a date to a holographic will, within the meaning of the requirement of section 1277 of the Civil Code, that such a will must not only be entirely written and signed by the testator, but must also be dated.</p>

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

<p>Negligence—Street Railway—Accident to Pedestrian Crossing Track—Reliance on Ordinance Limiting Speed.—In an action against a street railway company to recover for personal injuries tó a pedestrian resulting from a collision with one of its ears, which occurred while the plaintiff in broad daylight was attempting to cross the car-track in front of the approaching car which she plainly saw, it is error to instruct the jury that the plaintiff had the right to assume, until she knew to the contrary, that the defendant would not violate the city ordinance limiting the speed of the cars.</p> <p>Id.—Duty of Pedestrian Crossing Track.—A pedestrian about to cross a street in front of an approaching car has no right to omit any of the precautions which the law demands, nor to rely upon the strict compliance by the servants of the railway company with the speed laws.</p> <p>Id.—Knowledge of Approaching Car—Failure to Sound Warning.— If the pedestrian was aware of the approach of the car, the failure of the railway company to sound an alarm has no causal connection with the accident, and becomes immaterial with respect to its negligence.</p> <p>Id.—Last Clear Chance—Knowledge of Plaintiff’s Position of Peril—Failure of Motorman to Use Ordinary Care.—An instruction which, after defining the expression “last clear chance,” in effect told the jury that if the motorman saw the plaintiff in such a position that an ordinarily prudent person would have known that she was in danger of being injured, and he then failed to use ordinary care in an effort to avoid injuring her, they should measure the company’s liability by the rule of “last clear chance,” is in harmony with such rule, which is based not upon opportunity by the exercise of common prudence to observe the danger in which another has placed himself, but upon actual knowledge of sueli peril.</p> <p>Id.—Evidence—Time of Discovery of Plaintiff’s Position of Peril. In such action, the motorman of the colliding car should have been permitted to testify when he first discovered that the plaintiff was in danger from his car. His belief and knowledge were relevant facts.</p> <p>Ib.—Plea of Contributory Negligence.—A plea of contributory negligence, which is set up not merely in denial of the allegations of the complaint but as “a further, separate, and distinct answer and defense,” is sufficient.</p>

<p>Sale or Stock—Restraint or Trade—Covenant or Seller to Pat Damages.—An agreement by the seller of stock in a manufacturing corporation, whereby he covenants to pay to the purchaser the sum of five thousand dollars as liquidated damages in the event that he, within a period of three years, becomes directly or indirectly interested in any business carried on in the states of California, Oregon or Washington, similar to the business of the corporation whose stock was sold, is void, under section 1673 of the Civil Code, as operating to restrain the seller from exercising a lawful profession, trade, or business.</p> <p>to-—Contract in Partial Restraint of Trade.—Section 1673 of the Civil Code makes no exception in favor of contracts only in partial restraint of trade.</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>Benjamin E. Page, Arthur C. Hurt, Arthur P. Coe, and Lyle Pendergast, for Appellant.</p>

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

<p>Appeal — New Trial — Insufficiency op Evidence — Bill of Exceptions—Failure to Incorporate All Evidence.—The insufficiency of the evidence to justify the verdict or findings of the court cannot be considered on an' appeal from an order denying a motion for new trial, where the certificate of the trial judge to the bill of exceptions used on the motion affirmatively states that the bill does not contain a full, true, and correct statement of the evidence, and that the same was sufficient to justify the verdict and findings.</p> <p>Id.—Absence of Instructions prom Record—Error in Giving or Refusing not Reviewable.—Alleged error predicated upon the giving or refusing to give to the jury certain isolated instructions cannot be reviewed on appeal where the instructions given are not incorporated in the record.</p> <p>Id.—Newly Discovered Evidence—Absence of Affidavits.—Alleged error in refusing to grant a new trial upon the ground of newly discovered evidence cannot be considered, when the affidavits presented to the trial court at the hearing of the motion in support thereof are not incorporated in the record, and no suggestion made of diminution of the record in accordance with rule XV of the supreme court.</p> <p>Execution—Notice of Judgment and Findings.—Notice of the rendition or entry of judgment or of the making and filing of findings, is not a condition precedent to the issuance of an execution and a sale of property thereunder.</p> <p>Attorney at Law—Action for Fee—Fixing of Reasonable Fee by Defendant—Bad Faith—Special Interrogatories Construed.— In an action by an attorney at law to recover for professional services, in which the jury found, in answer to a special interrogatory, that the plaintiff had agreed to charge only a reasonable fee, the fixing of which was to be left to the defendant, their negative answer to another interrogatory inquiring whether in fixing the fee the defendant acted “in good faith, and upon and after full consideration and on advice of those persons whom he had a right to believe and" expect were qualified to advise him in said matter,” is properly construed, in view of the allegations of the answer, as equivalent to a finding that in fixing the amount of the fee the defendant acted in bad faith.</p> <p>Id.—Pleading—Presumed Denial of New Matter Set Up by Answer —Establishment of Bad Faith.—In this state, bad faith may be established in an action under the presumed denial of new matter set up by way of answer or counterclaim.</p> <p>Id. — Fraud — Fixing Compensation Under Contract. — A party to a contract, having the power to fix the compensation of the other, may not act fraudulently.</p>

<p>Appeal—Time por Taking—Jurisdiction.—Statutes limiting the time of appeal are jurisdictional and mandatory, and in the absence of an express authorization in the statute itself, a court has no power to extend the time for taking an appeal, or to relieve an appellant from the effect of misfortune, accident, surprise or mistake. If the appeal was not taken within the time allowed by law, the court has no power to entertain it.</p> <p>Id.—New Trial—Limitation on Time to Decide Motion—Termination op Proceedings in Trial Court — Time to Appeal prom Judgment.—Under section 660 of the Code of Civil Procedure, as amended in 1915, a trial court is empoivered to grant a new trial, upon a motion duly made to that end, at any time within three months after the verdict of the jury or service on the moving party of notice of the decision of the court, but not thereafter, and its failure to determine within such time any motion regularly made is a denial of such motion and a “termination in the trial court” of the proceedings on such motion, within the meaning of section 939 of that code, as amended in 1915, limiting the time to appeal from the judgment, in an action in which a motion for new trial is pending, to thirty days after the termination of such proceedings.</p> <p>Id.—Limitation op Time to Act on Motion is Constitutional.—The-provision of said section 660 prohibiting the trial court from granting any such motion after the expiration of the specified time, and making its failure to act within that time tantamount to a denial of the motion, is not an abridgment of any power granted to the supreme court by the constitution and is a valid exercise of legislative power.</p> <p>Id.—Computation op Time—Last Day to Act Falling on Saturday. The fact that the last day of the three months within which an order determining the motion for a new trial could legally be made was a Saturday, did not operate to extend the pendency in the trial court of the proceedings on the motion until the following Monday.</p> <p>Id. — Saturday not a Holiday as Regards Computation oe Time. — Notwithstanding the provision of section 10 of the Code of Civil Procedure making Saturday from 12 o’clock noon until 12 o’clock midnight a holiday as regards the transaction of business in the. public offices of the state, it is not a holiday within the meaning of section 12 of that code providing that “The time in which any act provided by law is to be done is computed by excluding the first day and including the last, unless the last day is a holiday, and then it is also excluded.” Section 12 only excludes the last day when it is a holiday during the whole period of its existence.</p> <p>Id.—Dismissal op Appeal.—An appeal which is not taken within the time allowed by law will be dismissed.</p>

<p>APPLICATION to recall a Remittitur.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Municipal Corporation—Recall op Officer—Municipal Affair.—The subject of the removal of officers of a city and county, by means of a recall, when provided for in a special charter, is a municipal affair, within the meaning of that phrase as used in section 6, article XI, of the constitution, and, consequently, it is not subject to or controlled, as regards the mode of removal provided therein, by general laws inconsistent therewith.</p> <p>Id.—San Francisco—Charter Scheme for Recall is Complete—Date of Signature to Petition not Required.—The freeholders’ charter of the city and county of San Francisco contains a complete scheme for the recall of municipal officers, (Stats. 1911, art. XI, chap. V, p. 1661) and does not require the voter, in signing a petition for recall, to add to his signature the date upon which he writes it.</p> <p>Id.—Section 1083a of Political Code not Fart of Charter.—Section 1083a of the Political Code', as amended in 1915, requiring the signer of a recall petition to affix thereto the date of such signing, did not become, by adoption, a, part of such charter, under the provisions of section 7 of chapter V of article XI, and of section 5 of chapter I of article XI of the charter.</p> <p>Id.—Inconsistency Between General Law and Charter.—The provisions of the general law requiring the voter to add the date of his signature to a recall petition are inconsistent with the provisions of the charter allowing him to make a petition without such date, and consequently such provisions of the general law do not apply to or affect proceedings for recall under the charter.</p> <p>Id.—Time .for Election Commissioners to Act on Petition.—The refusal of the board of election commissioners to examine the petition, within the time prescribed by the charter, to ascertain whether or not it is signed by the requisite number of electors entitled to vote, does not destroy the rights of the signers, nor terminate the proceeding.</p> <p>Id.—Directory Provision.—The provision of section 3, chapter V, article XT, of the San Francisco charter requiring the election board to examine a recall petition and, if found sufficient, to make an order within ten days after the petition is filed, calling an election thereon, is directory only. Such order may be made after ten days if good cause exists for the delay.</p>

<p>Taxation—Levee District Tax—Assessment for Benefits.—The tax levied by Levee District No. One of Sutter County to pay the principal and interest on an outstanding bonded indebtedness of the district is a tax and not an assessment for benefits.</p> <p>Id.—Public Service Corporation—Operative Property Within Levee District—District Tax to Pay Bonded Indebtedness.—The provisions of section 14 of article XIII of the constitution, establishing a method of taxing the operative property of certain public service corporations for state purposes, and providing that such taxes shall be in lieu of all other taxes and licenses, state, county and municipal, upon such property, except as otherwise provided in such section, have the effect to exempt the operative property of such corporations, situated in a levee district, from all taxation by such district, except to pay the principal and interest of bonded indebtedness created and outstanding by the district before the adoption of that section of the constitution.</p> <p>Id.—Payment of Entire Taxes to State—Subsequent Levee of Dis trict Tax—Liability of State to District for District Taxes— Payment Under Protest.—Where in pursuance of and at the time required by such constitutional provision, a railroad company, owning operative property within a levee district, pays into the state treasury the entire amount of the four per cent of its gross revenue due from it in full of all its taxes, before a levee district tax thereon for the payment of such outstanding bonded indebtedness of the district had been assessed and levied, it became the duty of the state controller, after the amount of the district tax was lawfully fixed and payable, and demand had been made upon him for the payment of the same, to pay it to the district. If he refuses so to do, and the railroad company pays the same to the district under protest, it may recover it back.</p> <p>Id.—Self-executing Provisions of Constitution—Controller Justified in Paying District.—Such constitutional provisions being self-executing, the mere fact that the legislature has omitted- to provide adequate methods for the payment to such districts of the amounts of their taxes, does not justify the controller in refusing to make the payment. Proper vouchers showing the payment and proper entries in his books disclosing the nature and amount of the disbursement, will amply protect the controller.</p>

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

<p>Public Land—Resurvey or Lands in Imperial County—New Survey Supersedes Old—School Lands.—Under the act of Congress of July 1, 1902, providing for a resurvey of certain townships now situated in Imperial County, to cure the obliterations of the monuments of the original survey, 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; and school sections, which had passed to the state of California upon the approval of the old survey are governed, in respect of their boundaries, by the resurvey.</p>

N. D. Arnot, Judge presiding at trial. K. S. Mahon, Judge refusing new trial. The facts are' stated in the opinion of the court. R. H. Countryman, .Chapman & Trefethen, and William P. Hubbard, for Appellants. Charles W. Slack, Chauncey S. Goodrich, and Perry Evans, for Respondents.

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

Rector, Judge of the Superior Court of Merced County. The facts are stated in the opinion of the court. Sullivan & Sullivan and Theo. J. Roche, and C. H. Oatman, for Petitioner. Edward P. Treadwell, Ostrander, Tuttle, Griffin & Shaffer, Brickley & Schino, Edward Briekmore, and P. W. Henderson, for Respondent.

<p>The facts are stated in the opinion of the court.</p> <p>Allen & Weyl, Bennett, Turnbull & Thompson, and Delphin M. Delmas, for Appellant.</p> <p>U. S. Webb, Attorney-General, Robert M. Clarke, Deputy Attorney-General, and Ray E. Nimmo, for Respondent.</p>

<p>Medical Practice Act—Information—Charge of Single Offense.— An information charging “the crime of practicing medicine without a certificate from the medical board,” followed by the averment that the crime was “committed as follows: That the said T. P. Ratledge . . . , did willfully and unlawfully practice, attempt to practice, and advertise and hold himself out as practicing a system and mode of treating the sick and afflicted in the state of California, without then and there having a valid, unrevoked certificate authorizing him to practice a system or mode of treating the sick and afflicted in this state from the Board of Medical Examiners of the State of California,” sufficiently charges a violation of section 17 of the Medical Practice Act, and is not open to the criticism that it charges many offenses because any one of the acts or omissions averred and conjunctively pleaded would suffice as the basis of an information.</p> <p>Id.—Evidence as to “Treatment”—Conclusion of Witness.—On the trial for such offense, the testimony of witnesses that they had received “treatments” from the defendant was properly admitted. Such testimony was not an unwarranted conclusion of the witness that certain acts constitute a “treatment.”</p> <p>Id.—Evidence of Prior Offense—Intent and Motive—Remoteness. Evidence of occurrences upon the occasion of a visit of a witness to the defendant’s office nearly six months before the time set forth in the information, was competent as tending to show the intent and motive of the defendant in the commission of the acts charged in the information, and was not too remote.</p> <p>Id.—Practicing Without License—Evidence of Want of Examinations by Board of Medical Examiners.—The only question with which the court was concerned on such trial was whether or not the defendant was practicing without a license, and evidence tending to show that the state board of medical examiners held no examinations for practitioners such as the defendant is properly excluded.</p> <p>Id.—Drugless Healers—Reasonableness of Act—Extent of Examinations.—The requirement of the act that such subjects as histology, elementary chemistry, toxicology, physiology, elementary bacteriology, and pathology shall be included in the examinations to be taken by applicants for certificates t'o practice as drugless healers, does not render the act unreasonable as to them.</p> <p>Id.—Legislative Discretion—Necessary Scientific Education.— It is the duty of the legislature to determine the amount and quality of scientific education necessary for t'he individual to possess before he may hold himself out to practice the healing art. Unless the legislative conclusion upon that subject is obviously unfair, the courts will not interfere with the exercise of its discretion.</p>

<p>Workmen’s Compensation Act—Constitutional Law—Award op Compensation—Dependents op Killed Employees—Industrial Accident Commission.—The legislature has no authority, independently of the express constitutional sanction conferred by section 21 of article XX of the constitution, adopted October 10, 1911, to vest in the Industrial Accident Commission the power to make awards against employers, in favor of dependents of employees, where injury to the latter has resulted in their death.</p> <p>Id.—Power Exercised by Commission is Judicial—Constitutional Authorization Necessary to Exercise op Power.—The power granted to the commission by the Workmen’s Compensation, Insurance, and Safety Act of 1913, t'o determine that a right to compensation exists, and to fix by an award the amount of such compensation, is judicial in its nature, and, in exercising this power, the commission is performing precisely the same functions that are performed by any court in passing upon questions brought before it. In the absence of a special enabling provision of the constitution, such judicial power could not, in view of the provisions of section 1 of article VI of the constitution, be vested in the Industrial Accident Commission.</p> <p>Id.—Construction op Section 21, Article XX op Constitution— Awards to Dependents op Killed Employees Authorized.— Section 21 of article XX of the constitution, authorizing the legislature to “create and enforce a liability on the part of all employers to compensate their employees for any injury incurred by the said employees in the course of their employment,” contemplates and authorizes legislation creating a liability to pay compensation to dependents of employees whose death has resulted from injury incurred in the course of their employment, and empowers the legislature to provide for the adjudication of questions concerning the liability by an Industrial Accident Commission.</p> <p>Id.—Change in Laws Regulating Relation of Employer and Employee.—The amendment of section 21 of article XX of the constitution, was designed to establish the authority of the legislature to pass laws making the relation of employer and employee subject to a system of rights and liabilities different from those prevailing at common law, and should not be given too strict or literal an interpretation.</p> <p>Id.—Provision for Death Benefits not Inimical to Federal Constitution.—The provisions of the Workmen’s Compensation Act authorizing such death benefits, like 'that for the payment of compensation t'o injured employees themselves, is a regulation of the conditions surrounding the employment of labor, and is to be justified upon similar grounds. There is nothing in such provision inimical to the federal constitution.</p> <p>Id,—Awards to Alien and Nonresident Dependents.—The statute is ; not rendered unconstitutional by reason of the fact that under it the employer may be required to make payments to alien and nonresident dependents.</p> <p>Jd.—Death of Night Watchman—Employment by Different Employers.—A finding of the commission that the person for whose death compensation was awarded was an employee of the corporation against whom the award was made, is supported by evidence that such person was engaged as a night watchman by such corporation at a monthly compensation for his services, notwithstanding he was also independently employed by other corporations to perform similar services for them, under separate contract's "under which he received a monthly compensation from each of them.</p> <p>Id.—Independent Employers not a “Voluntary Association.”— The various corporations so separately employing such watchman did not constitute a “voluntary association,” within the meaning of section 13 of the Workmen’s Compensation Act including such an association within the definition of an employer.</p> <p>Id.—Accident—Willful Shooting by Third Person.—The killing of an employee may be “accidental,” within the meaning of the Workmen’s Compensation Act, notwithstanding it resulted from the willful act of a third person in shooting him.</p> <p>Id.—Basis of Compensation—Death of Employee Having Several Employers—Earnings in Entire Employment.-—Where an employee employed in a given capacity by different employers, to each of whom he renders service for a portion of his time, is killed while in the service of one of them, an award of compensation is properly made against the latter, and is properly based upon the aggregate amount which the employee was in t'he habit of earning in his entire employment, rather than upon the amount which he had been receiving from the employer against whom the award is made.</p>

<p>Trust in Land Arising by Operation of Law—Community Property Conveyed to Third Person by Direction of Husband.—Land acquired with community funds which is by direction of the husband conveyed by an ordinary grant, bargain, and sale deed absolute in form to a third person, upon the parol understanding and agreement between the grantee and the husband that the grantee would assume and pay certain debts of the husband, including a debt" due the grantee, would sell the property to pay such debts, and divide the surplus between the husband and his wife, is held by the grantee upon a trust arising by operation of law and not" by way of mortgage.</p> <p>Id.—Subsequent Homestead Declared by Wife on Trust Property. From the time of such conveyance no interest whatsoever in the land remained in either the husband or wife, their only right being one in the possible surplus that might remain after the sale of the land and the payment of creditors, and the subsequent attempted selection by the wife of the premises as a homestead could not create any such interest, nor could it avail against the prior deed.</p>

<p>The facts are stated in the opinion of the court.</p> <p>F. B. Johnston, H. L. Johnston, and L. B. Johnston, for Appellant.</p>

MOTION to dismiss an appeal from an order of the Superior Court of Los Angeles County denying a new trial. Paul J. McCormick, Judge. In this action the defendant served and filed notice of intention to move for a new trial on December 3, 1914, and on January 19, 1916, such motion was denied. From the order of denial this appeal was attempted to be taken on January 26, 1916.

<p>New Trial—Order Denying—Bight of Appeal Abolished—Proceeding Initiated Prior to Taking Effect of Amendment.—The amendment of 1915 of the Code of Civil Procedure abolishing the right of appeal from an order denying a new trial, is applicable in every case where such order was made subsequent to the date óf the taking effect of the amendment, regardless of whether the proceeding for a new trial was initiated prior to or subsequent to such date.</p>

<p>Estate op Deceased Person—Accounting op Administrator—Cross-examination to Show Ownership op Property—Contest op Account.—On proceedings for the settlement of the account' of an administrator, who during the lifetime of the deceased had been his confidential agent and legal adviser, the contestant should be allowed a wide latitude in the cross-examination of the administrator for the purpose of showing that certain moneys and properties asserted by the administrator to be his own in fact belonged to t'he estate. In this ease, the undue curtailment of the cross-examination was error.</p> <p>Id.—Claim op Ownership by Administrator.—The answer of the administrator, when a witness, that the property in controversy was his, did not foreclose further inquiry as to its ownership.</p>

<p>Tide-land—Lease of Land Within Two Miles of City—State may Make.—Notwithstanding the restriction of section 3 of article XV of the constitution that “all tide-lands within two miles of any incorporated city or town in this state, and fronting on the waters of any harbor, estuary, bay, or inlet, used for the purposes of navigation, shall he withheld from grant or sale to private persons, partnerships, or corporations,” the state, through its legislative authority, may lease the tide and submerged lands within such two-mile limit, with proper restrictions of time and proper regard to public and g-uosi-publie use, so that private enterprise and capital may build up the commerce of the seaport cities of the state.</p> <p>Id.—San Pedro Bay—Lease of Reclaimed Tide-land—Littoral Owner may be Deprived of Access to Navigable Water.—The littoral owner of property fronting on the waters of the bay of San Pedro cannot' complain of being deprived of access from his land to the navigable waters of the hay as the result' of a valid lease made by the state of reclaimed land lying between the shore and the established harbor front.</p> <p>Id.—Control by State in Aid of Navigation and Fishery.—The littoral rights of such owner cannot impinge upon the control by the state of tide-lands for the purposes of navigation and fishery, or affect the public easement for these purposes.</p> <p>Id.—Lease of Tide-lands by City of San Pedro—Act of Legislature Confirmed.—The lease of certain of its tide-lands, made by the city of San Pedro on February 14, 1906, was confirmed and validated by the act of March 23, 1907, and the subsequent lease of July 23, 1907, was a mere correction of the previous lease, and was entirely within the rights which were secured by the lessee under the terms of the previous lease.</p> <p>Id.—Railroad’s Connection With Navigable Water—State may Permit.—The state has power to permit a railroad company to build and operate a railroad over tide and submerged lands to a connection with deep-water navigation. Such a disposition of public land held in trust for purposes of navigation and commerce is in furtherance of the trust and not in violation of it.</p> <p>Id.—Use by Railroad of Reclaimed Land—Owner of Upland Cannot Question.—An owner’s interest in the upland- gives him no right to attack the use made by a railroad company of such reclaimed tide-land, whether the use is under lawful authority from the state, or merely by its sufferance.</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>APPLICATION for a Writ of Mandate directed to the County Clerk of Alameda County.</p> <p>The facts are stated in the opinion of the court.</p> <p>H. H. McPike, Clinton G. Dodge, and McPike & Murray, for Petitioner.</p>

<p>Municipal Water Districts—Election of Officers—Plurality Vote —■Constitutional Law.—Section 13 of article XX of the constitution, providing for an election by a plurality vote, only applies to st'ate elections, elections in cities, counties, and cities and counties, and in such other political subdivisions of the state now or hereafter created which exercise governmental functions. It does not apply to municipal water districts.</p>

On February 24, 1915, one Oscar Shield, an employee of the petitioner, was injured in the course of his employment, and the petitioner, on the twenty-seventh day of February, and on the second day of March, 1915, paid him compensation.

The facts are stated in the opinion of the court. William P. Hubbard, for Appellants Charles 0. Butler et al. Knight & Heggerty, and William M. Madden, for Appellant Bose Croghan Johnson. Harry F. Sullivan, and Sullivan & Sullivan and Theo. J. Boche, for Bespondents.

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

<p>Will—Letter to Brother of Writer—Want of Testamentary Intent.—A letter, forming one of a series of about thirty written from time to time to the brother of the writer, informing him of the purchase of certain properties, requesting his assistance in-financing the purchase and closing with the expressions “of course these both propertys goes to you and Charley if I should pass in before yous do only I wish Mary would be taken care of in case anything should happen Joe her soné I know fany would drop marys help she would have t'o shift for her self, regards to all (signed) Ed.,” will not he deemed testamentary in character, where the surrounding circumstances show that the writer understood the nature and requirements of a will.</p>

<p>Estate of Deceased Person—Sale of Eeal Property—Value of Property—Discretion.—The question whether or not real property belonging to the estate of a decedent' is sold for a price disproportionate to its value is one which is always within the sound discretion of the court. It must consider all the facts of the case, including the value and condition of the estate, the necessity for funds, the state of the market, and all other matters bearing on the question. In the present case the court did not abuse its discretion in confirming the sale.</p>

<p>APPEAL from an order of the Superior Court of Ventura County denying a petition for appointment as administrator de bonis non of the estate of a deceased person. Paul J. Me.Cormick, Judge presiding.</p> <p>The facts are stated in the opinion of the court.</p>

<p>The facts are stated in the opinion of the court.</p> <p>William M. Hiatt, Edmund H. Hinshaw, and Howard R. Hinshaw, for Appellants.</p>

<p>Husband and Wipe—Deed to Wipe—Presumption op Separate Property—Community Property.—Under section 164 of the Civil Code, as that section has read since the year 1897, a deed to a married woman raises the presumption that the title to the property conveyed vested in her as her separate property. This presumption is not conclusive, and may be overcome by evidence showing that the property, although conveyed to the wife, was in fact community property.</p> <p>Id.—Presumption is Evidence—Weight and Sufficiency op Evidence. Such presumption, although disputable, is itself evidence, and it is for the trial court to say whether the evidence offered to overcome it has sufficient' weight to effect that purpose. In the present case, the conclusion of the trial court that the property in question was the separate property of the wife is held sustained by the evidence.</p> <p>Id.—Application op Separate Property por Family Expenses.— There is no presumption that the wife applied her separate property, rather than that of the community, in paying the living expenses of the family.</p> <p>Id.—Action to Charge Land as Community Property—Evidence op Wipe as to Intent.—In an action by a husband to charge as community property land which had been deeded to his wife and subsequently conveyed by her, the refusal of the court to allow the wife to testify that she and her husband did not intend that various parcels of land held in her name during the marriage should be heir separate property, is without prejudice, where her testimony showed that she claimed to have taken title as the agent and business manager of her husband.</p> <p>Ib.—Impeachment op Wipe—Declarations in Will.—In such action, declarations in a will made by the wife tending to show that she regarded the property in question as her separate property, are admissible on her cross-examination to impeach her testimony to the contrary.</p> <p>Id.—Evidence as to Conversation—Entire Conversation may be Given.-—Where the wife, as a witness for the plaintiff, had been asked to testify to all the conversations she had with the defendant, the defendant, in response, was authorized to give his version of these conversations and to state all of them regarding the same subject matter.</p>

<p>Insurance—Cancellation oe Policy—Betukn oe Unearned Premium.—Under a provision in a fire insurance policy, reading, “This policy shall be canceled at any time at the request of the insured; or by the company by giving five days’ notice of such cancellation. If this policy shall be canceled as hereinbefore provided, the premium having been actually paid, the unearned portion shall be returned on surrender of this policy or last renewal, this company retaining the customary short rate; except that when this policy is canceled by this company by giving notice it shall retain only the pro rata premium,” the return of the unearned portion of the premium paid is not a condition precedent to a cancellation of the policy by the insurer.</p>

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

<p>Banks — Liquidation of Insolvent Bank —Fund Obtained from Stockholders—Assets of Bank—Taxation.—Where the superintendent of banks, in the liquidation of the affairs of an insolvent bank, converts its entire assets into money, and, in addition, collects a sum from the stockholders on account of their constitutional liability to creditors, and from the aggregate fund pays to creditors an amount in excess of that realized from the bank’s assets, the balance of the fund must, for the purposes of taxation, be deemed t'o be left over from the contributions of the stockholders.</p> <p>Id. — Fund Obtained from Stockholders not Taxable as Bank’s Assets.—The funds so obtained from stockholders by the superintendent of banks constituted no part of the bank’s assets, and are not to be counted in ascertaining the value of the shares of the bank; and the state board of equalization had no authority, under subdivision (c) of section 14 of article XIII of the constitution, and section 4 of the act of April 1, 1911 (Stats. 1911, p. 531), to assess the balance in the hands of the superintendent for purposes of taxation.</p>

<p>APPEALS from a judgment of the Superior Court of Sacramento County, and from an order dissolving a temporary injunction. C. N. Post, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

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

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

<p>Workmen’s Compensation Act—Employer Insured Against Liability at Time op Injury—Revocation op Carrier’s Right to Do Business in State.—Under, section 34 of the Workmen’s Compensation Act, an employer who, at the time of an injury to his employee, is insured against liability for compensation with an insurance company then authorized to transact such business in this state, and who serves on the person claiming compensation and on the insurance carrier, and files with the Industrial Accident Commission, the notices required by that section, is relieved from liability for compensation, notwithstanding the fact that at the time of service of the notice on the insurance carrier its right to do such business in the state had been revoked.</p> <p>. Id.—Service op Notice on Insurance Carrier.—The fact that the insurance carrier, subsequent to the suffering of the injury, is deprived of it's right to further transact such insurance business in the state cannot deprive the employer of the right to make any service of notice upon it that is essential to full compliance with the terms of the section.</p>

<p>New Trial—Limitation on Power or Court to Determine—Amendment or 1915.—The amendment of 1915 to section 660 of the Code of Civil Procedure, limiting the power of the trial court to pass on a motion for new trial to three months after the verdict or service on the moving party of notice of the decision, and providing that if the motion is not determined within said three months, the effect shall be a denial of the motion without further order of the court, is a valid exercise of legislative power.</p> <p>Id.—Amendment Does not Operate Retroactively.—The amendment, notwithstanding it contains no saving clause, should not be construed as being applicable to proceedings on motion for new trial pending at the time it became operative.</p>

<p>Vendor and Vendee—Assumption by Vendee of Vendor’s Indebtedness—Application of Proceeds of Insurance—Bes Adjudicata. In this action by a vendor to recover a balance alleged to be due on the purchase price of land, the decision in the case of Kaufman v. All Persons, 16 Cal. App. 388, a prior action by the vendee to quiet her title to the land under the so-called MeBnerney Act, is res adjudicata to the effect that by the contract of sale the vendee, as part of the purchase price, assumed and agreed to pay all existing indebtedness of the vendor secured by a deed of trust of the land, and that upon the destruction by fire of improvements on the land during the life of the contract of sale, money received as the proceeds of the insurance thereof was properly applied to the extinguishment of the vendor’s indebtedness that had been assumed by the vendee.</p> <p>Ed.—Application op Doctrine op Res Adjudicata.-—It is immaterial to the application of the doctrine of res adjudicata that the relief sought in the former ease was in some measure different from that demanded in the latter. If the former litigation was substantially the same cause of action, the judgment therein is a bar to a recovery in a subsequent action.</p> <p>Ed.—Voluntary Payment by Vendor—Statute op Limitations.— Where such vendor voluntarily paid the balance of the indebtedness which had been assumed by the vendee as part of the purchase price, the statute of limitations commenced to run against his right to recover the same of the vendee from the date of the payment.</p>

<p>Appeal — Orders on Motions for New Trial — Amendment of 1915 Abolishing Bight of Appeal.—By the amendments of August 8, 1915, to sections 956 and 963 of the Gode of Civil Procedure, the previously existing right of appeal from an order determining a motion for a new trial is abolished, except in the single ease of an order granting a new trial in an action tried by a jury, where such trial by jury is a matter of right, and on an appeal from a judgment the appellate court is also empowered to review any order made on motion for a new trial.</p> <p>Id.—Becord on Appeal Under Section 953a, Code of Civil Procedure —Notice to Clerk.—The only object of the amendment of August 8, 1915, to section 953a of that code, providing that in cases where proceedings on motion for new trial were pending, the notice t'o the clerk for the preparation of a record for use on appeal from the judgment might be filed “within ten days after notice of decision denying said motion, or of other termination thereof” is to enable a party to include in his transcript prepared under that section for use on such appeal the matters material to a review of the action of the court on his motion for a new trial. The provision should be liberally construed for the purpose of enabling such a review to be had where the proceeding on motion for a new trial was pending at the date the change in the law took effect.</p> <p>Id.—Appeal from Judgment — Loss of Right to Record Prior to Amendment.—Such amendment was not intended t'o give a party, who had appealed from a judgment prior to the change in the law and whose right to such a record had absolutely expired prior to such date, a right to' a new record for the purpose of reviewing matters in no way germane to the question of the correctness of the disposition by the trial court of the motion for new trial, and material only to questions involved in the appeal from the judgment as the law stood before the change of August 8, 1915.</p> <p>Id.—Changes in Law Affecting Time for Commencement of Proceedings.—A change in the law extending the time in which a proceeding may be commenced will not be considered as operating to create a new right as to one where the time under the old law had already expired, that is, at' least, unless the intent to accomplish this is very clearly manifested.</p> <p>Id.—Alternative Method of Preparing Record—Time Limitations must be Observed.—The proceeding for a record under section 953a is an independent proceeding, an alternative method of preparing a record, in lieu of a bill of exceptions, to which a party may resort at his option. But it is essential that' the party should inaugurate such proceedings within the time designated by law. The change of August 8, 1915, was not intended to give t'o a party whose right had expired prior thereto a new right to inaugurate such a proceeding.</p> <p>Id.—New Trial—Proceedings Commenced Prior to Amendment— Notice of Intention—Manner of Making Motion.—The changes in the law requiring motions for new trial to be made only on affidavits in certain eases and on the minutes of the court in other cases do not affect proceedings for a new trial pending at the time of the changes. Such proceedings must be determined on the record specified in the notice of intention, provided such specified record was authorized by the law as it stood at the time of the filing of the notice of intention.</p> <p>Id.—Motion to be Made on Affidavits and Bill of Exceptions—Minutes of Court cannot be Considered—Reporter’s Transcript Immaterial.—Where a notice of intention to move for a new trial, filed prior to the changes of August 8, 1915, stated that the motion would be made on affidavits and a bill of exceptions, the moving party is confined thereto, and the motion cannot be made or determined on the minutes of the court. The reporter’s transcript of the proceedings at the trial could play no part either in the determination of the motion in the court below or on review of that determination by an appellate court.</p> <p>Id.—Delay in Settlement of Bill—Dismissal of Motion—Absence of Record.—Where such motion for new trial was dismissed for neglect and delay in prosecuting the settlement of the bill of exceptions, no affidavits having been filed, and the moving party having been refused relief from his default, there is no record upon which the motion for a new trial could be determined on its merits. Id.—Mandamus to Compel Judge to Certify Transcript op Proceedings at Trial.—The appellant, having lost his right to a record under section 953a on appeal from the judgment, cannot' by mandamus compel the trial judge to certify to a transcript of the proceedings at the trial for use on such appeal in lieu of the bill of exceptions which he attempted t'o obtain and which he lost by reason of his default.</p>

<p>Public Utility—Telephone Line from Public Resort—Use by Public. A telephone line which extends from two public resorts to a connecting main line, and which is owned and used by the proprietors of the resorts for their own accommodation and is open to the use of all persons sojourning at such resorts upon payment of a toll, is a public utility, within the meaning of article XII, section 23, of the constitution.</p> <p>Id.—Voluntary Connection With Another Line—Disconnection or Lines—Railroad Commission—Continuation or Service.—Where the owners of such telephone line voluntarily permitted a connection to be made therewith by a line leading from another public resort, the use of which was also open to the public sojourning there, and subsequently disconnected the lines, the railroad commission, under section 40 of the Public Utilities Act, had authority to order a reconnection to be made and to require a continuation of the service.</p>

<p>In Bank.—May 20, 1916.]</p> <p>APPEALS from judgments of the Superior Court of Kern County. J. W. Mahon, Judge in Case No. 4201, and Milton T. Farmer, Judge in Case No. 4225.</p> <p>The facts are stated in the opinion of the court.</p>

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

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

APPEALS from orders of the Superior Court of Fresno County refusing a new trial. S. E. Crow, Judge presiding. The facts are stated in the opinion of the court. Gavin McNab, Everts & Ewing, E. P. Henshall, and Luther P. Elkins, for Appellant. N. C. Coldwell, F. H. Short, F. E. Cook, W. S. Goodfellow, and Goodfellow, Bells, Moore & Orrick, for Eespondents.

<p>New Trial—Failure to Initiate Proceeding in Time—Court cannot Give Belief—Delay in Serving Bill of Exceptions.—The trial court is without authority t'o grant relief from the consequences of a failure to initiate a proceeding for a new trial within the time limited by statute, but it may relieve from the delay in serving a bill of exceptions.</p> <p>Id.—Ground for Believing from Default—Entry by Attorney of Wrong Date in Journal.—The inadvertent entry of a wrong date in the book or journal in which an attorney keeps a record of the proceedings to be taken by him may furnish sufficient ground for relief from a resulting default under the remedial provisions of section 473 of the Code of Civil Procedure.</p> <p>Id.—Loss of Right to Move fob New Trial—Excusable Mistake— Delay in Preparing Bill of Exceptions on Appeal from Judgment.—Where a defendant against whom judgment had been rendered intended to appeal therefrom, as well' as from any order which might be made denying a new trial, and to present both appeals on a record containing the proceedings at the trial embodied in a bill of exceptions prepared for use on the motion for new trial, but lost his right to move for a new trial with the attendant right to prepare a bill of exceptions for use thereon by his failure to serve his notice of intention in time, his excusable mistake in that connection may be sufficient, under section 473 of the Code of Civil Procedure, to relieve him from the consequences of his delay in preparing a bill of exceptions to be used on appeal from the judgment.</p> <p>Negligence—Sufficiency of Evidence.—In an action against an electric power company to recover for personal injuries suffered by an employee while working on one of the company’s poles, the evidence is held sufficient to justify the jury’s findings that the defendant had been guilty of negligence, that the plaintiff had not been guilty of contributory negligence, and that the injuries were not embraced within the risks assumed by him as a part of his employment.</p> <p>Id.—Release of Liability—False Representations That Release was Mere Matter of Form.—A release of liability for such injuries, executed by the employee while in full possession of his faculties and with full knowledge of its contents, and the consideration for which he accepted and retained, cannot be avoided by him on account of false representations of an agent of the company who secured the release, to the effect that it was a mere matter of form and must be signed in order to keep him on the pay-roll of the company.</p> <p>Id.—Fraud—Misrepresentations of Law.—Such representations did not constitute fraud in the legal sense. They were not statements of fact, but at most misrepresentations of law. Such misrepresentations, at least where there is no relation of trust or confidence between the parties, do not amount to fraud, and will not furnish a ground for the rescission of a contract.</p> <p>L>.—Mistake of Law.—The belief of the employee that the release was not binding, or, in other words, that it did not mean what it said, is not sufficient to establish a mistake of law that would avoid it.</p>

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

<p>Workmen’s Compensation Act—Different Injuries Resulting from Same Accident—Hearing and Award Based on One Injury— Jurisdiction of Commission to Make Award for Other Injury— Statute of Limitations.—Where two distinct injuries were suffered by an employee from the same accident, and in his application for compensation and on the hearing thereof before the Industrial Accident Commission one of such injuries was not mentioned or investigated, and the award was based solely on the disability resulting from the other, the commission is without jurisdiction, after the expiration of the six months’ period of limitation prescribed by section 16 of the Workmen’s Compensation Act, to make a further award based upon the disability resulting from the' injury that was not originally considered.</p> <p>Id,.—Application to Commission for Compensation—Periods of Limitation—Payment of Disability Indemnity.—Section 16 of the Workmen’s Compensation Act establishes the general limitation of six months from the time of the accident as the period within which anyone seeking indemnity for injuries arising from an accident must present his claims to t'he Industrial Accident Commission, while subsection (e) thereof extends the period of limitation, in cases where there has been payment of disability indemnity, or agreement therefor, to six months from t'he date of the agreement or last payment of such indemnity. That subsection does not have the effect to open the statute of limitations and to extend it beyond the period of six months for the purpose of enabling a claimant to present an entirely new ease based upon the alleged results of an injury which had never before been called to the attention of the commission.</p> <p>Id.—Prompt Investigation Regarding Injuries.—One of the purposes of the time limit imposed by the various subdivisions of section 16 is to cause a prompt inquiry regarding the injuries in all their details by the commission.</p> <p>Id. — Continuing Jurisdiction of Commission Over Orders — Second Award for Different Injury a New Judgment.—Section 25 (d) of that act, giving t'o the commission continuing jurisdiction over its orders, decisions, and awards, and permitting," after notice and hearing, any order, decision, or award to be rescinded, altered, or amended, does not authorize the commission to render a second award based upon proof of the injury that was not investigated nor mentioned at the first hearing. Such award is an entirely new judgment, and not a rescission, alteration, or amendment of the first.</p>

<p>The facts are stated in the opinion of the court.</p> <p>Fennel Cherrington, Wilfred M. Peek, and A. S. Halsted, for Appellant.</p> <p>Stephen G. Long, and George L. Hoodenpyl, for Respondents.</p>

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

APPEALS from orders of the Superior Court of Solano County granting a new trial, and from orders refusing to dismiss motions for new trial. Henry C. Gesford, and ft. H. Latimer, Judges presiding. The facts are stated in the opinion of the court. Guy C. Earl, Anderson & Anderson, and W. H. Spaulding, for Appellants.

<p>Negligence—Personal Injuries—Damages—Pleading—Sufficiency of Complaint.—In an action for damages alleged to have resulted to plaintiff from the negligence of the defendant, where the complaint sets out the fact that plaintiff received a compound fracture of the bones of the leg, and alleges the suffering and pain caused thereby, and prays for judgment in the sum of ten thousand dollars, othe contention that there is no issue tendered in the pleadings of any sum of money in excess of the amount specially pleaded by the plaintiff as his actual expenses and loss of wages cannot be sustained, as the statement of the claim for damages in the prayer is sufficient.</p> <p>Id.—Divers Items of Damage—Prayer for Total Amount.—In an action for damages the fact that several of the items entering into the damage are formally alleged in the complaint does not preclude the plaintiff from praying for judgment' for the total damages suffered, of which such items are a part; and an objection to the complaint on such ground would in any event be waived by failure to take advantage of it by demurrer.</p> <p>Id.—Master and Servant-—Section 2009, Civil Code—Eight of Control by Master—Compensation op Servant.—Under section 2009 of the Civil Code, a servant is one who is employed to render personal service t'o his employer, otherwise than in the pursuit of an independent calling, and who in such service remains entirély under the control and direction of the latter, who is called his master; and where the latter has the right of control, it is not necessary that he actually exercise such control; nor is it material to such relationship that the servant does not receive pecuniary compensation.</p> <p>Id.—Master and Servant—When Relationship Shown.—Where it is shown that on a certain date, each having hay to be baled, plaintiff and defendant agreed that plaintiff would assist defendant in baling defendant’s hay on a certain farm, with a hay-press supplied by defendant, and in return for such services the defendant would assist plaintiff, and use said hay-press to bale hay for plaintiff on a near-by farm, and it further appeared that the parties were cousins, an implication arises from the facts that plaintiff was subject to the control and direction of defendant in the prosecution of the work of baling hay with the hay-press supplied by the defendant, while the plaintiff’s services were rendered at the request of the defendant and for his benefit, and this is sufficient to establish the defendant’s liability under section 1969 of the Civil Code to indemnify the plaintiff, in so far as the relationship of master and servant is concerned, for injuries received by plaintiff during the course of the work.</p> <p>[d.—Pleading—Proximate Cause op Injury.—In an action for damages alleged to have been caused by defendant’s negligence, in replacing, without plaintiff’s knowledge, an oak double-tree with a piece of pine wood, to which a team driven by plaintiff was attached to operate a hay-press, which piece of pine wood, it is alleged, while the team was pulling and the sweep was in a condition of “great strain,” broke and released the sweep, which rebounded and sprang back with great force and struck plaintiff, fracturing his right leg in three places, and causing the injuries complained of, the contention that there is no allegation of negligence in the complaint that directly and proximately resulted in the injury to plaintiff cannot be maintained, the complaint sufficiently alleging in sequence a series of facts and circumstances establishing the causation between the negligent act of the defendant in attaching the piece of pine wood in the place of the oak double-tree and the injury to plaintiff.</p> <p>Id.—Inference of Negligence.—In such a case, where the complaint alleges the facts relating to the substitution of the pine wood for the oak double-tree as a part of the machinery of the press, these facts, under the circumstances alleged, justify the inference of negligence.</p> <p>Id.—Duty to Furnish Safe Appliances.—It is the duty of the master to provide reasonably safe appliances for the prosecution of the work the servant is performing, and an omission in that regard constitutes negligence.</p>

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

<p>Workmen’s Compensation Act—Injury Resulting from Playful Act of Coemiployee.—Personal injuries to an employee in a toy establishment, occasioned by the playful act of a coemployee, seventeen years of age and of at least normal capacity and intelligence, in pointing a “trick” camera at him and causing a spring to be ejected therefrom, which inflicted the injury, is not an accident suffered in the course of the injured employee’s employment.</p>

<p>The facts are stated in the opinion of the court.</p> <p>J. W. McKinley, Frank Karr, W. R. Millar, and E'. J. Foulds, for Appellants.</p> <p>U. S. Webb, Attorney-General, A. L. Stephens, City Attorney of Los Angeles, A. P. Fleming, L. R. Hewitt, and Anderson & Anderson, for Respondent.</p>

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

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

<p>The facts are stated in the opinion of the court.</p> <p>Ostrander, Tuttle & Ostrander, J. W. Dorsey, and J. J. Griffin, for Appellants.</p>

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

<p>Municipal Water District—Auditor a Ministerial Officer—Countersigning Bonds—Mandamus.—The auditor of a municipal water district is a purely ministerial officer, and it is his duty to comply with a requirement of the board of directors of the district that its ■ bonds should be countersigned by him. The performance of such duty will be enforced by mandamus without' inquiry into any question touching the validity of the bonds.</p>

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

<p>Contract—Rescission—Inexcusable Delay.—In an action to rescind a contract for the purchase of certain washing-machines and to compel a reconveyance of certain equities in real property given in part consideration for the contract, upon the ground of alleged fraud practiced upon the plaintiffs, where it appears from the pleadings and the evidence that there was an inexcusable delay of twelve months after the discovery of the alleged fraud before attempt was made to rescind, the delay is fatal to plaintiffs’ case, in the absence of pleading or proof that the delay was caused by undue influence exercised by defendants over plaintiffs, and that there was no relation of confidence between the parties.</p> <p>Id.—Discovery of Fraud—Rescission—Prompt Action Required.— The failure of plaintiff to act promptly upon discovery of fraud is fatal to an action to enforce rescission.</p> <p>Id.—Demand for Rescission—Restoration of Worthless Property Unnecessary.—While it is true that where a rescission in pais, under section 1691 of the Civil Code, is relied on, the party rescinding need not show that he has restored that which is worthless, yet he must always show that he has complied with the requirement t'o rescind promptly, and this implies some notice to the other party of such determination to extinguish the contract.</p> <p>Id.—Discovery of Fraud—Execution of New Agreement—Waiver.— Where parties, after becoming aware of frauds which have been perpetrated upon them in the execution of a contract, suggest, if they do not demand, a rescission, which is met by refusal, and thereafter they enter into a new and modified agreement covering the subject matter of the first contract, the new agreement thus entered into, with knowledge of the impositions practiced, constitutes a waiver of the fraud.</p>

<p>APPEAL from an order of the Superior Court of Kern County denying a motion to tax costs and to strike from the cost bill certain items for keeper’s fees. J. W. Mahon, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Sale of Eggs Imported from Foreign Countries—Constitutional Law—Police Power—Unreasonable Restrictions.—The act of June 4, 1915 (Stats. 1915, p. 1163), regulating the sale of eggs shipped or imported int'o the state of California from any place outside of the United States, by requiring the seller to mark on the end of each egg the word “Imported” and to display in his place of business a conspicuous sign reading, “Imported Eggs Sold Here,” and the importer to immediately make a report t'o the state board of health of the number of eggs received, the date when received, and the place where they were produced, is not a valid exercise of the police power, and is unconstitutional on account of the unreasonableness of its restrictions.</p>

<p>Workmen’s Compensation Act—Casual Employment Outside op Employer’s Occupation—Machinist Employed by Farmer to Repair Tractor.—A machinist employed by the day by a farmer to repair a traction engine used on his farm in connection with his farming operations, and whose term of employment was for the period reasonably necessary for the repair of that particular machine, is an employee whose employment is both casual and outside of the usual course of his employer’s occupation, within the meaning of section 14 of the Workmen’s Compensation Act, and for an injury suffered by him in doing such work he is not entitled to the indemnity therein provided.</p>

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

<p>Estate of Deceased Person—Decree of Distribution—Muniment of Title—Inconsistency With Will.—A decree distributing the estate of a testator is the conclusive muniment of the distributee’s title and controls any language of the will inconsistent therewith.</p> <p>Id.—Specific Devise to Sole Heir at Daw for Dife—Distribution in Fee Simple—Condition ¡Restraining Alienation.—Where a will specifically devises certain land to the testator’s wife, she being his sole heir at law, for her life with remainder to her children, if she has any, and contains a direction that she shall have no power or right to sell it, and no further disposition is made of the property, a decree distributing the specific property to her “as her sole property and estate,” subject only to the condition restraining alienation, and further distributing the remainder of the estate to her absolutely, vests an absolute fee-simple estate in the land specifically devised, free from any condition restraining alienation.</p> <p>Id.—¡Remainder Cut Off by Decree Distributing Fee Simple.—Such decree cuts off the right of any children to the remainder in the land specifically devised, after the death of the wife, and is, in effect, an adjudication that there were no children and no possibility of any.</p>

<p>APPLICATION originally made to the Supreme Court for a Writ of Habeas Corpus directed against the City Marshal of the City of Covina.</p> <p>The facts are stated in the opinion of the court.</p>

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

<p>Workmen’s -Compensation Act—Employee of Lumber Company— Accidental Injury While Loading Lumber—Wrench of Back.— An employee of a lumber company, who while loading lumber in it's yard, and during the act of pulling a piece of timber from a pile, either slipped or in some manner wrenched his back and fell down, is injured “by accident,” arising out of and in the course of the employment, within t'he meaning of section 12 of the Workmen’s Compensation, Insurance and Safety Act, as it read before its amendment in 1915.</p> <p>Id.—Finding of Commission—Conflict of Evidence—Conclusiveness. The finding of the Industrial Accident Commission, based upon conflicting testimony that the claimant’s condition of continuing disability was the result of the accidental injury, may not be disturbed by the supreme court on proceedings to review the award, to-—Indefiniteness of Award—Failure to State Period of Disability Payments.—An award for temporary disability is not objectionable because it fails in terms to limit' the time of payment to two hundred and forty weeks. The statute itself makes that limitation, and the award cannot be effective beyond that period.</p> <p>Id.—Form of Award—Optional Bight Given Insurance Carrier.— An award of compensation, which is otherwise in ■ due form and complete in itself, is not invalidated by the fact that it includes an optional right to the insurance carrier, which, if accepted by it, would compel it to pay for surgical services rendered later than the ninety-day period following the accident.</p>

<p>Workmen’s Compensation Act—Miner—Besting While Going to Working Place—Willful Misconduct.—The act of a miner, while going from one working place in the mine to another, in temporarily stopping to rest in the shade of an ore-bin in order to recuperate from the intense heat, that place being commonly frequented by the men for this purpose, is not “willful misconduct” within the meaning of the Workmen’s Compensation Act, barring a right of indemnification for personal injuries sustained by him resulting from the collapse of the ore-bin.</p>

<p>The facts are stated in the opinion of the court.</p> <p>Charles S. Wheeler, John F. Bowie, Cushing & Cushing, and Nathan M. Moran, for Appellants.</p>

<p>Pleading—Amended Complaint—Omission of Names of Certain Plaintiffs—Discontinuance of Action—Costs of Defendant— Entry of Judgment.—The filing of an amended complaint, omitting the names of certain of the original plaintiffs, worked a discontinuance of the action so far as the omitted plaintiffs were concerned, equivalent to a voluntary dismissal, and entitled the defendants to a judgment that they take nothing and for costs against them. The fact that such judgment was not immediately entered, but awaited the final determination of the case and was. included in the judgment against the other plaintiffs, does not render it erroneous.</p>

<p>Appeal—Order Denting New Trlal^-Inferences from Admitted^ Probative Facts—Lack of Jurisdiction of Appellate Court.— The appellate court is without power, upon an appeal from an order denying a new trial, where all the evidence is brought up on the appeal, to draw its own inferences from the admitted probative facts, as to do so would be the making of findings of fact, which is a matter within the peculiar and exclusive province of the trial court or jury.</p> <p>Id.—Damages for Fraud—Evidence—Drawing of Inference from Proved Facts—Duty of Court.—In ah action for damages for fraud, if there be two inferences equally reasonable and equally susceptible of being drawn from the proved facts, the one favoring fair dealing and the other favoring corrupt practice, it is the express duty of the court or jury to draw the inference favorable to fair dealing.</p> <p>Id.—Failure to Find Fraud—Inference of Trial Court—Appeal.— Where in an action for damages for fraud the trial court has refused to infer from the admitted probative facts that fraud has been committed, its action in so finding is not open to question on appeal.</p> <p>Id.—Evidence—Proof of Fraud—When Insufficient.—Fraud must always be proved, though not necessarily by direct evidence, but when the plaintiff’s case goes no further than to establish a state of facts from which the inference of fraud may or may not be reasonably drawn, he has failed to establish his charge by a preponderance of the evidence, and it becomes the duty of the court or jury to find in favor of innocence and uprightness.</p> <p>Id.—Corporation Law—Purchase of Stock from Other Stockholders—Bight of Directors and Officers.—Directors and officers of a corporation have the right to purchase the shares of stock of other stockholders, where the transaction is free from fraud; and they are not bound to acquaint a stockholder willing to sell his stock with facts which would enhance the price of the stock, as they are only trustees for the stockholders as to the management of the corporation and not in their private dealings.</p> <p>Id.,—Sale of Corporate Stock—Purchase by Officers and Directors—Lack of Confidential Belationship—Good Faith—Sufficiency of Findings.—In this action brought by a stockholder of an oil company for damages for fraud in being induced by the alleged misrepresentations and concealments of the defendants, who were directors and stockholders of the company, to sell his stock to them for less than its alleged value, it is held that no relationship of trust or confidence existed between- the parties which imposed upon the defendants the duty t'o disclose to the plaintiff the full and complete nature of the transactions involved, and that the finding that defendants acted with unimpeachable good faith is fully sustained by the evidence, and is conclusive upon appeal.</p>

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

<p>Medical Practice Act.—Judgment' and order affirmed on the authority of People v. Jordan, ante, p. 391.</p>

<p>APPLICATION for a Writ of Mandate directed to the Superior Court of the City and County of San Francisco and to George E. Crothers, one of the Judges thereof.</p> <p>The facts are similar to those stated in the opinion of thé court in United Railroads of San Francisco v. Superior Court, ante, p. 80.</p>

<p>APPEAL from a judgment of the Superior Court of San Diego County, and from an order refusing a new trial. T. L. Lewis, Judge.</p> <p>The facts are similar to those stated in the opinion in People v. Jordan, ante, p. 391.</p>

<p>APPEAL from a judgment of the Superior Court of San Diego County, and from an order refusing a new trial. T. L. Lewis, Judge.</p> <p>The facts are similar to those stated in the opinion in People v. Jordan, ante, p. 391.</p>

<p>'Medical Practice Act.—Judgment and order affirmed on the authority of People v. Jordan, ante, p. 391.</p>

APPEALS from judgments of the Superior Court of the City and County of San Francisco. J. M. Seawell, Judge. The facts are similar to those stated in the opinion in Spreckels v. Spreckels, ante, p. 775.