Volume 174 — California Reports

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

<p>Railroad — Interstate Commerce — Track Used for Interstate and Intrastate Commerce—Repair of Track.—A railroad track used indiscriminately by a carrier in both its interstate and intrastate commerce is an instrumentality of interstate commerce, and notwithstanding its double use, those engaged in its repair or in keeping it in suitable condition for use are, while so engaged, employed in interstate commerce.</p> <p>Id.—Keeping Track in -Condition for Use.—Any work having for its immediate object, in whole or in part, the keeping of the track in condition for use according to schedule for interstate traffic has such a close and direct relation to interstate transportation as to be practically a part of it.</p> <p>Id.—-Watchman at Railroad Crossing—Duty to Keep Track Unobstructed—Injury from Intrastate Train—Liability of Railroad Measured by Act of Congress.—A watchman employed by a railroad at a point where its main line track, used indiscriminately for both interstate and intrastate commerce, was crossed by a public street, whose duties in part required him to keep the track free of such obstructions to the interrupted passage of all trains according to schedule as might be caused by passing vehicles, is engaged in interstate commerce, and the state Industrial Accident Commission has no jurisdiction to award compensation for personal injuries to him occasioned while he was endeavoring to prevent a collision between an intrastate train and a vehicle on the track. The liability of the railroad in such case is measured entirely by the act of Congress of April 22, 1908, relative to the liability of common carriers by railroad to their employees in certain eases.</p> <p>Id.—Avoidance of Injury to Public.—The fact that the avoidance of injury to the public in the matter of crossing the track was also one of the objects of the watchman’s employment is immaterial.</p>

<p>Bailroad—Interstate Commerce—Local Track Used for Interstate and Intrastate Commerce—Injury to Watchman from Intrastate Train.—A watchman employed by a railroad at a point where a local line track, used indiscriminately for both interstate and intrastate commerce, was crossed by a public street, whose duties in part required him to keep the track free of such obstructions to the uninterrupted passage of all trains according to schedule as might be caused by passing vehicles, is engaged in interstate commerce, and the state Industrial Accident Commission has no jurisdiction to award compensation for personal injuries to him occasioned by a collision with an intrastate train which he was engaged in flagging. (Southern Pacific Company v. Industrial Accident Commission, ante, p. 8, followed and approved.)</p>

<p>Railroad—Electric Lineman—Removal of Telephone Wire from Trolley Wire—Electric Railway Constituting Bart of Interstate and Intrastate System.—An electric lineman, employed by a railroad, who received personal injuries while engaged in the removal of an overhead telephone wire which had fallen on to the trolley wire used by the railroad for the furnishing of electric power for the operation of its cars on a line of electric railway constituting a part of the railroad’s passenger system, both interstate and intrastate, and in constant use as such, was engaged in interstate commerce at the time of the accident, as he was then engaged directly in removing an obstruction to the use of an instrumentality in actual use for purposes of such commerce. The state Industrial Accident Commission has no jurisdiction to make an award for such injury.</p>

<p>New Trial — Notice op Intention — Service on Adverse Party — Jurisdiction.—A proceeding for new trial is initiated under our statute by filing and serving upon the adverse party, within a given time, a notice of intention to move for such new trial. The “adverse party” upon whom the notice is to be served is “every party whose interest in the subject matter of the motion is adverse to or will be affected by the granting of the motion or changing the former decision of the court.” The failure to serve the notice upon all adverse parties deprives the superior court of jurisdiction to grant the motion, but the failure to serve a given party will not deprive the court of jurisdiction to grant the motion in so far as it can be granted without affecting the rights of the parties not served.</p> <p>Id.—Action to Establish Deed as Mortgage—Motion for New Trial —Adverse Parties.—In an action by the original grantor of real property against the grantee and the beneficiary and trustee under a deed of trust executed by the grantee, to have the deed of conveyance, which was absolute in form, declared to be a mortgage, in which action the court found in favor of this contention, ordered repayment of the loan secured by the deed of trust, and thereupon a reconveyance to be made by the trustee to the plaintiff, the beneficiary under the deed of trust was an adverse party whose interest was affected by the granting of a motion for a new trial in the action, and a failure to serve such party with the notice of intention deprived the court of jurisdiction to grant the motion.</p> <p>Id. — Purchase of Property Pending Action — Superior Bights of Purchaser.—Where, after rendition of judgment in favor of the original grantor, the land was conveyed to a corporation which executed a deed of trust on the property to secure payment of a certain amount of money borrowed, and upon default in payment the property was sold under the deed of trust, and a deed executed to the purchaser after the judgment had become final in the action, the rights of the purchaser in the land are superior to those of a purchaser from the original grantee in whose favor a ■motion for a new trial was granted in the action and judgment rendered declaring him to be the owner of the property, the proceedings for a new trial being nugatory for failure to serve the beneficiary under the deed of trust.</p> <p>Id.—Beal Party in Interest—Subsequent Purchaser—Bight to Question Proceedings.—Although the purchaser under the deed of trust was not a party to the original action, the title of the original party having vested in him before the motion for a new trial was presented and he being the real party affected by the proceedings, it was open to him to object to any step taken in the case affecting his claim of title.</p> <p>Id.—Claim of Fraud and Lack of Consideration—Lack of Notice to Purchaser.—In the absence of notice to the purchaser under the deed of trust, the fact that the deed from the original owner to the grantor of the maker of the deed of trust' was without consideration and was procured by false representations would not justify a judgment against him.</p>

<p>APPEAL from a judgment of the Superior Court of Alameda County; W. S. Wells, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Workmen’s Compensation Act — Waiver of Delay in Instituting Proceeding for Compensation.—An objection that a proceeding to recover compensation under the Workmen’s Compensation, Insurance and Safety Act was not instituted until after the period limited by clause (b) of section 16 of the act, is waived by the failure of the defendant to file an answer as required by section 23 of the act, bringing that fact to the attention of the Industrial Accident Commission.</p> <p>Id.—Construction of Act—Proceeding “Wholly Barbed.”—Clause (a) of section 16 of the act, providing that the right to institute the proceeding is “wholly barred” by the lapse of the time limited, does not mean that the provision relates back and avoids the claim from the beginning, or forfeits the right. The use of the word “barred” in itself implies that the lapse of time constituting the bar must be raised in some manner as a defense. If the bar is not raised, it will be of no avail</p>

<p>Fraudulent Conveyance—Appeal by Plaintiff—Immaterial Error in Excluding Impeaching Testimony.—On an appeal by the plaintiff from an adverse judgment in an action to avoid a deed on the ground that it was executed without consideration and with intent to defraud the creditors of the grantor, error, if any, in excluding testimony offered to impeach the evidence of the grantor that at t'he time of the transfer he had other property sufficient to satisfy the plaintiff’s debt is rendered immaterial, where the court found in favor of the plaintiff that the grantor did not have sufficient property at that time.</p> <p>Id.—Payment of Adequate Price by Grantee—Absence of Fraudulent Intent of Grantee—Striking out Evidence of Grantor’s Fraudulent Intent.—If the grantee paid an adequate price for the property, the plaintiff in such action was required to show an intent to defraud creditors on the part of both the grantor and the grantee. The declarations of the grantor, made while he held the title and tending to show his fraudulent intent, although admissible as against him, would not be evidence of the intent of the grantee, unless the latter had notice thereof before purchasing the property. Where no such notice was brought home to the grantee, and the court found, upon sufficient evidence, that she did not have such fraudulent intent and paid an adequate price, error in entirely striking out the evidence of the grantor’s declarations became immaterial.</p>

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

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

<p>New Trial—Notice op Intention—Service and Filing.—A notice of intention to move for a new trial must not only be served but filed within the time prescribed by the code, and although it is served within the time but not filed, the court is without jurisdiction to entertain the motion, and has no power even under section 473 of the Code of Civil Procedure to relieve the party of his failure to file the notice in time, upon an affidavit' explaining such failure.</p> <p>Id.—Statement on Motion por New Trial—Use on Appeal prom Judgment — Valid 'Proceeding for New Trial Essential.— A statement settled in connection with a motion for a new trial may be used on an appeal from a judgment, and the right to so use it does not depend upon the fact that it was actually used on a motion for a new trial, or that an appeal was taken from the order denying the motion for a new trial; but there must be a valid proceeding on a motion for a new trial and the statement must be properly prepared in connection with such proceeding.</p> <p>Id.—Invalid Proceeding por New Trial — Appeal prom Judgment — Failure to Prepare Statement in Time—Belief.—Notwithstanding the failure to properly initiate a proceeding for a new trial, the moving party may be relieved by the trial court under section 473 of the Code of Civil Procedure from his failure to present his statement or bill of exceptions in time, in order that it may be used on an appeal from the judgment, as the proposed statement may be regarded as having a double aspect—as designed to be used both on a motion for a new trial and on an appeal from the judgment, and although failing in the first aspect, it may be used in the other; but where no application for relief under section 473 is made, and the court does not undertake to grant such relief but merely settles the bill over the protest of the other party, the statement is wholly void for either use on an appeal from the order denying a new trial or on an appeal from the judgment.</p> <p>Id.—Appeal upon Judgment-roll—Errors Considered.—Where an appeal stands upon the judgment-roll alone, only errors appearing therein can be considered, and the court cannot consider alleged error in excluding certain evidence offered for the purpose of proving the testimony of material witnesses who had testified at the former trial, but who bad since died.</p> <p>Id.—Action on Promissory Note—Proper Nonsuit.—In an action on a promissory note, the contention that a nonsuit cannot be upheld for the reason that the complaint alleged the making of the promissory note, which is set up verbatim in the complaint, and the answer admitted the delivery of said note and nonpayment, cannot be maintained, where the answer sets up by way of defense matters considered and approved in a previous decision of the supreme court in the ease and denies various material allegations of the complaint. Id.—Reversal of Judgment—Findings Nullified — Pleading on Information and Belief.—Findings are nullified by a reversal of a judgment on appeal, and it is not only necessary for the plaintiff to plead and prove over again the facts material to Ms cause of action, . but proper for the defendant to deny them; and the contention that inasmuch as many of the allegations of the complaint were based upon the findings of the court at the former trial, the facts covered therein had been proven and were known to defendant, and could not be denied upon information and belief, cannot be sustained.</p> <p>Id.—Law of the Case.—The former decision of the supreme court in the ease is conclusive in regard to all questions decided therein.</p> <p>Id.—Pleading—Denial of Material Allegation of Complaint—Motion for Judgment on Pleadings.—Where the answer set's up a good defense, and denies material allegations of the complaint, it is sufficient as against a general demurrer, and the plaintiff is not entitled to judgment on the pleadings.</p>

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

<p>Pleading—Deformation of Contracts—Necessary Allegations of Complaint.—A complaint for the reformation of a contract should allege what the real agreement was, what the agreement as reduced to writing was, and where the writing fails to embody the real agreement. If the complaint seeks the correction of a description of land, it must describe the premises so as to render certain the' location and the boundaries. It is necessary to aver facts showing how the mistake was made, whose mistake it was, and what brought it about, so that the mutuality may appear; but in this state mutuality is not always necessary, it being sufficient if there was a mistake of one party which the other at the time knew or suspected, although the facts showing a mistake of that character, in such a case, must likewise be alleged.</p> <p>Id.—Fatally Defective Complaint.—The complaint is lacking in substance as well as in form where, although it might be inferred from the whole record that one of the plaintiffs sold and agreed to convey to one of the defendants the tract of land in question, it does not allege this fact, it alleging merely that on a certain day said plaintiff executed to said defendant the grant deed copied in the complaint, it not appearing whether in pursuance of a sale or other agreement or not.</p> <p>Id.—Dight to Maintain Suit—Interest in Property — Insufficient Complaint.—No one can maintain an action to reform a deed or other contract unless he has some title or interest to be subserved or protected by such reformation, and the complaint in such an action is defective where it does not allege that t'he plaintiffs, or either of them, have or claim any right, title, or interest, legal or equitable, in the property.</p> <p>Id.—Materiality of Mistake — Insufficient Allegation — Description.—Where it is claimed, although not alleged in the complaint, that the true description of the lot in question is “Lot numbered thirteen in block numbered seven, of Belle-Vernon Acres,” and that the words “in block seven” were omitted from the description, but nothing is alleged to show that the lot is not accurately described without these words, there being no averment that there is more than one block in Belle-Vernon Acres, or that there is more than one lot numbered 13 in the entire tract, the allegation is insufficient.</p> <p>Id.— Allegation of Opinion.— The statement that the description “should have contained the words ‘block seven’ after the word ‘of’ and before the words ‘Belle-Vernon Acres/ ” is a mere opinion, where the complaint nowhere alleges the fact that the words “block seven” are a part of the true description.</p> <p>Id.— Insufficient Allegation of Mistake.— The mistake in such a case is not properly alleged where it is merely declared “that the draftsman omitted to insert in said description the block in which said lot of land was located,” as both parties may have fully understood it and may have intended it that way.</p> <p>Id.—Insufficient Allegation of Intention.—The statement, “that in order to make said deed properly pass the title to said premises and properly describe the same and to make it conform to the actual intention of the parties, it is necessary that the description should be amended so as to read as follows: Lot thirteen, block seven, ‘Belle-Vernon Acres’ as per map, recorded in book 9, page 196, of maps in the office of the county recorder of Los Angeles County, state of California,” is not an allegation stating what the intention of the parties was, but is a mere conclusion as to the effect of the deed.</p> <p>Id.—Denial of Execution of Deed—Lack of Material Finding.— An answer denying the execution of the deed sought to be reformed raised a material issue and a finding upon that issue should have been made.</p> <p>Id.—Insufficient Finding.—A finding that all the allegations of the answer are not true is not a finding that all of them are untrue or that any particular one of them is untrue, and does not negative the fact that some of them may have been true.</p>

<p>Building Contract—Covenant to Build in Workmanlike Manner— Waiver op Breach—Occupation and Payment op Price.—Where a contract is made with the owner of land to erect a building thereon, and there is a breach, by the contractor, of his covenant to build it in a good and workmanlike manner, neither the occupation of the house by the owner, after its supposed completion, nor the payment of the price, though accompanied by knowledge by the owner of the defective construction, is sufficient, taken alone, to operate as a waiver of the breach of the covenant.</p> <p>Id.—Agreement by Vendor to Build House por Vendee.—This rule is applicable to the case of an agreement by the owner of land to erect for his vendee, in a good and workmanlike manner, a dwelling-house thereon, and thereafter to convey the house and lot to him upon payment of the purchase price.</p> <p>Id.—Sale With Covenant op Quality — Acceptance op Defective Property—Action por Breach op Covenants—The rule that one who trays property upon a warranty or covenant as to its quality need not rescind or reject the property when offered in a defective condition, but may stand upon the contract, rely on the covenant, accept the defective property, sue upon the covenant, and recover damages caused by its breach, is applicable with respect to the purchase of real property with a contract by the seller to build a house thereon.</p> <p>Id.—Waiver 'of Breach—Estoppel.—The buyer may sue on the covenant at once, whether the installments of the price are due or not due. The payments on the price, whether in part or in full, voluntary or involuntary, will not operate as a waiver of his demand for damages, unless the circumstances show an intent to waive the same, or create an estoppel against the subsequent assertion thereof. In this case the facts show neither a waiver nor an estoppel.</p>

<p>APPEAL from a judgment of the Superior Court of Orange County. Prank R. Willis, Judge presiding.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Corporation—Failure to Pay License Tax—Forfeiture op Charter —Action by Stockholder—Orders for Sale of and Distribution of Assets—Final Judgment—Appeal.—In an action by a stockholder of a corporation which had forfeited its charter for failure to pay the license tax due under the act of March 20, 1905, to enjoin the defendants, the former directors, fro-m carrying on the business of the corporation, and to compel them, as trustees thereof, to wind up it's affairs, pay its debts, and distribute its assets to the stockholders, orders directing the trustees to distribute moneys in their hands, derived from the property of the corporation, proportionately to the stockholders, and to sell the remaining real and personal property of the company at public auction for cash, after giving a prescribed notice, are final judgments so far as the property to be disposed of under them is concerned and appealable as such.</p> <p>Id.—Review on Appeal—Findings—Support of Interlocutory Judgment.—On such an appeal there may be a review of the previous proceedings including the sufficiency of the findings to support an interlocutory judgment which declared the status of the plaintiff as a stockholder, the number of his shares, his right to distribution, and directed the trustees to give notice to creditors and file an ■inventory of the assets of the corporation.</p> <p>Id.—Nature of Action—Determination of Interest in Real Estate. Such action is in equity to compel the trustees to perform duties imposed upon them by the law, It i§ not one for the determination of an interest in real property formerly belonging to the corporation, within the meaning of section 5 of article VI of the constitution, requiring that such actions be commenced in the superior court of the county in which the real property is situated.</p> <p>Id.—Effect of Forfeiture on Title of Corporate Property—Eight of Possession of Trustees.—Under the amendment of 19Ó7 to the act of March 20, 1905 (Stats. 1907, p. 746, see. 10a), the trustees of a corporation that had forfeited its charter for nonpayment of the license tax do not become invested with any title to the property formerly belonging to the corporation. They get by the forfeiture nothing more than the statute gives them, merely a power over the property, not the title. The corporation having ceased to exist, it is no longer capable of holding the title or the possession, the property belongs to the persons who were its stockholders at the time it ceased to be a corporation, and the right of possession passes to the directors by force of the statute making them trustees to settle the corporate affairs, since such right must be necessary for that purpose.</p> <p>Id.—Judicial Control of Action of Trustees.—A court of equity will not intervene to supervise or direct the proceedings of the trustees in settling the affairs of a corporation that has forfeited its charter for nonpayment of the license tax required by the act of 1905, unless they are guilty of neglect of duty or abuse of power.</p> <p>Id.—Duty of Trustees — Sale of Corporate Assets — Looking for Buyer.—It was not a necessary part of the statutory duties of such trustees to find a buyer for the former corporate assets, or to sell the same, otherwise than in order to settle the corporate affairs. The fact that they did not look for a buyer is not, of itself, a breach of duty. It must also appear, in order to justify judicial interference to order a sale, that the interests of the parties and the settlement of the corporate affairs required a sale.</p> <p>Id.—Failure to Distribute Moneys on Hand.—The failure of the trustees to distribute to the stockholders the excess of moneys in their hands, over the corporate debts, even if a dereliction of duty, would not authorize orders for the sale of the other corporate assets, but only an order directing the distribution of the surplus.</p>

APPEALS from certain orders of the Superior Court of Contra Costa County. A. J. Buckles, Judge presiding. The facts are stated in the opinion of the court.

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

<p>Contract—Agreement to Devise Property—Specific Performance.— A man may make a valid contract binding himself to dispose of his property in a particular way by last will and testament, and a court of equity will enforce such an agreement specifically by treating the heirs as trustees and compelling them to convey the property in accordance with the terms of the contract.</p> <p>Id.—Statute of Frauds—Oral Contract Made Prior to Code Amendments—Validity not Affected by.—The amendments to section 1624 of the Civil Code and section 1973 of the Code of Civil Procedure, bringing agreements to make provisions for persons by wills within the scope of the statute of frauds, have no application to an agreement made prior to such amendments.</p> <p>Id.—Certainty of Terms of Contract—Essential Condition.—The requirement of section 3390 of the Civil Code, that an agreement cannot he specifically enforced unless the terms thereof are sufficiently certain to make the precise act which is to be done clearly ascertainable, is applicable to contracts to dispose of property by will.</p> <p>Id.—Evidence—Insufficient Proof of Contract.—In an action for the specific performance of an alleged oral contract to leave to plaintiff a child’s share of an estate, evidence that the deceased and his wife agreed to take the plaintiff and treat him as their child, and that they indicated that he should succeed to their property, and at one time made a will, making him the sole beneficiary, which they showed to him, is insufficient to support the precise contract alleged and found.</p> <p>Id.—Appeal—Findings on Conflicting Evidence—Scope of Rule.— The rule that the findings of a trial court upon conflicting evidence are conclusive on the appellate courts, and that all reasonable inferences are to be indulged to support the findings, does not justify the sustaining of a finding when it has not the support of substantial evidence.</p>

<p>Estate op Deceased Person—Antenuptial Agreement—Waiver by Widow of Eight to Family Allowance.—An antenuptial agreement, whereby the husband agreed to give his wife proper support during their married life and, in the event of his prior death, to cause to be paid her a specified sum per month during her life, and she agreed that the same should be “in lieu of any and all claims against his property or estate whether community or any other property or interest of his,” precludes her from demanding a family allowance from Ms estate.</p> <p>Id.—Meaning op Word “Claims.”—The word “claims,” as used in such agreement, is not to be construed as meaning only those demands which might have been enforced against the deceased husband in Ms lifetime, and which must be presented in due form of law to' the executor or administrator of his estate.</p> <p>Id.—Unrecorded Marriage Settlement.—Such agreement, considered as a marriage settlement, lost nothing of its binding force, as between the parties thereto, because it was unrecorded.</p>

<p>Way of Necessity—When Arises Over Land of Grantor.—When a grantor conveys land shut off from access to a road by the grantor’s remaining land, or partly by his land and partly by that of a stranger, a way of necessity arises over the adjoining land of the grantor.</p> <p>Id.—Lands Partitioned in Severalty — Parcel Inclosed by Other Allotments.—A way of necessity follows in like manner from a decree of partition, under which one of the parcels set off in severalty is entirely inclosed by others. The effect of such partition is to convey the interest of the various cotenants in the particular parcels to the allottees of those parcels. Each is, therefore, a grantor and a grantee, and the one to whom an inclosed piece is set off has the same rights against the others that he would have if they had joined in a voluntary conveyance to him.</p> <p>Id.—Equal Right of Access Over Lands of Different Allottees.-— Upon such partition the holder of the inclosed parcel has an equal and like right against each former cotenant whose land prevents his access to a highway.</p> <p>Id.—Arbitrary Selection of Way Over Particular Parcel.—Where the owner of the inclosed parcel has for many years indifferently used the adjoining lands of the other allottees for the purpose of reaching his land, neither he nor the court has the right to arbitrarily select the land of a particular adjoining owner and make it alone hear the burden of the right of way.</p> <p>Id.—Expense or Difficulty of Access by Different Route.—In this case the findings fail to show the right to a way of necessity over the lands of the defendants, due to the expense or difficulty in reaching a public road by another and shorter route over the lands of other adjoining owners.</p> <p>Ib.—Bona Fide Purchaser — Notice — Easements.—A purchaser of land for value takes subject only to interests in the land of which he has actual notice or which appear of record. This rule applies as well to easements as to claims of a greater interest.</p> <p>Id.—Subsequent Purchaser of Partitioned Land — Constructive Notice Furnished by Partition Decree.—A purchaser for value of a parcel of land that had been partitioned twenty years previously is not charged with constructive notice of a way by necessity across such land in favor of an adjoining tract, merely because both tracts were included in the partition action, and had been partitioned by a decree which left the latter tract without access to a public road and entirely surrounded by other parcels that were allotted to various cotenants.</p>

<p>Receiver — Harvesting Growing 'Crop Taken Under Attachment-Stipulation Authorizing Receiver to Act — Prohibition — Moot Question.—Where a receiver had been appointed, at the instance of the plaintiff in an attachment suit, to harvest, sell, and account for a growing crop that had been seized under the attachment, and thereafter all the parties interested in the property, including third-party claimants, entered into a stipulation authorizing the receiver tc harvest the crops and dispose of the proceeds in the manner provided therein, and the receiver acted accordingly and was discharged, the question of the legality of the original appointment of the receiver becomes a moot one, and will not be determined in a proceeding for prohibition instituted by the third-party claimants prior to the stipulation, notwithstanding that document reserved the right to question the appointment.</p>

<p>REHEARING- of an application to the Supreme Court for a Writ of Review.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Holographic Will—Insufficient Date.—A document undated, except in the manner contained in the recital, “I have subscribed my name and affixed my seal this 22nd day of March, in the year of our Lord one thousand,” does not comply with the requirement of section 1277 oi the Civil Code that a holographic will must be dated by the hand of the testator.</p> <p>Id.—Date must State Day, Month, and Year.—A date which is incomplete, because lacking a statement of either the day, the month, or the year of execution, does not satisfy the statutory definition of a holographic will. But the instrument, if it bears a statement of the day, the month, and the year, is not invalidated because one or more of these elements may be incorrectly given.</p>

<p>Judgment — Vacation of Interlocutory Decree — Judicial Error— Manner of Correction.—An assumed judicial error in setting asida the interlocutory decree in an action for an accounting, based upon the court’s own concept that the defendants were entitled, as of strict legal right, to answer the amended complaint filed therein at the close of the trial, is not eorreetible under section 4731 of the Code of Civil Procedure, but is to be remedied by motion for new trial or by appeal from the judgment, and as to a certain limited kind of error by motion under section 663 of the Code of Civil Procedure.</p> <p>Id.—Motion to Set Aside Interlocutory Decree—Laches.—In an ac tion for an accounting and to establish that the defendants held the property and business of plaintiff in trust for him, where the defendants, after the entry of the interlocutory decree in favor of the plaintiff, participated in the sessions of the commissioner who took the accounting, and sought a determination therein favorable to themselves, and made no attempt to set aside the interlocutory decree under section 473 of the Code of Civil Procedure until nine months after its entry, they were guilty of such laches as to prevent the granting of relief, as under such section application for relief must be made in all cases within six months, and in every case within a reasonable time.</p> <p>Id.—Amendment of Complaint—Conformity to Proof—Cause of Action not Changed.-—Where at the close of the trial of such an action the court concluded that the evidence established that the defendants had taken over the business and property of the plaintiff in trust, but not, as averred in the complaint, under an alleged oral agreement to buy the property and business after they had taken it over, but under a trust rather in the nature of security for advancements of sums of money made to the plaintiff to help him out of financial troubles, there was no error in permitting the plaintiff to file an amended complaint to conform to the proofs, as the cause of action was not thereby changed; the fundamental equitable consideration being whether there was a breach of trust by virtue of which defendants were inequitably retaining possession of property rightfully belonging to plaintiff.</p> <p>Id.—Pleading—Amendments to Complaint—Answer not Required.— Where an amended complaint or amendments to a complaint are filed to conform to the proofs, no answer thereto is necessary, as the issues tendered by the complaint are taken as denied without pleading, having been already tried by the court.</p>

<p>Criminal Law—Construction of Local Option Law—Sale of Liquor in No-license Territory.—Three acts are declared unlawful by section 15 of the local option law (Stats. 1911, p. 599), i. e„ soliciting orders, taking orders, or making agreements “for the sale or delivery of alcoholic liquors.” The words “for the sale or delivery,” etc., qualify all three of the acts.</p> <p>Id.—Sufficiency of Indictment.—An indictment for a violation of the local option law which charges that defendant on or about a certain day in a certain county did “take an order from, sell, and deliver to one M. Hamilton, alcoholic liquor,” within a supervisorial district which was no-license territory, is not demurrable on the ground that it charges more than one offense and that the several offenses are not stated in separate counts, as the pleading charges nothing more than a sale under section 13 of the act, and does not attempt to allege that defendant took an order “for the sale or delivery of liquor.”</p> <p>Id.—Purchase of Liquor not Prohibited—Purchase Outside of and Bringing into No-license Territory—Acting Through Agent.— The local option law prohibits the sale of alcoholic liquors but not their purchase; it does not prohibit one from purchasing such liquors outside of no-lieense territory and bringing them within such territory for his own consumption, and if one may do this personally, he may do it through an agent.</p> <p>Id.—Instructions—Defendant Acting as Agent for Another.—In such a case the defendant is entitled to have the jury charged that if he, in purchasing the liquor outside of the no-lieense territory described in the indictment, acted on behalf of and as the agent of the prosecuting witness, having no interest in the liquor, and deriving no profit from the transaction, he was not guilty of “selling” such liquor to the prosecuting witness.</p>

<p>Contract — Failure of Performance — Trial of Issue — Appeal—Insufficiency of Answer—Objection not Beviewable.—In an action to recover damages for an alleged breach of contract, where the plaintiff tried the case on the theory that defendant’s alleged failure to perform was in issue, he cannot for the first time on appeal object that the denial in the answer was insufficient for any purpose.</p> <p>Id.—Legal Services—Enforcement of Bights Under Contract—Alleged Breach—Proper Nonsuit.—In an action to recover damages for an alleged breach of contract whereby the plaintiff employed and retained the defendant, as an attorney at law, to enforce plaintiff’s rights under a contract made between plaintiff and a third party, by the terms of which the latter agreed to sell and deliver to plaintiff certain shares of corporate stock upon the terms and conditions stated, a nonsuit is properly granted, where it is shown that the plaintiff failed to pay or to make a tender of payment of the balance of the purchase price as provided in the contract, which payment was made a condition to the transfer of the stock.</p>

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

<p>APPEAL from a judgment of the Superior Court of Stanislaus County, and from an order denying a new trial. L. M. Fulkerth, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Arbitration and Award—Judgment—Appeal.—In arbitration proceedings, the code does not permit a separate appeal from the judgment entered on the award, even though the entry occurs after a decision on a motion to vacate made under sections 1287 and 1288 of the Code of Civil Procedure, as the only appeal allowable is from the decision on the motion.</p> <p>Id.—Unqualified Submission op Controversy—Setting Aside op Award.—An award made upon an unqualified submission will not be set aside on the ground that it is contrary to law, unless error appears on the face of the award and causes substantial injustice.</p> <p>Id.—Submission on Terms—Bule.—A different rule obtains where the arbitrators are required by the terms of the submission to determine the rights of the parties according to law, as in such a case a failure to so determine is sufficient ground to avoid the award.</p> <p>Id.—Entry op Submission Agreement as Court Order—Arbitrator not Judge Pro Tempore.—An agreement that a submission to arbitration shall be entered as an order of court under section 1283 of the Code of Civil Procedure does not make the arbitrator a judge pro tempore of the superior court under section 8, article VI, of the constitution, as amended.</p> <p>Id.—Beview op Award—Appeal—Sufficiency op Evidence.—Upon an appeal taken in an arbitration proceeding, the sufficiency of the evidence to sustain the award will not be reviewed, unless otherwise provided by the terms of the submission agreement, as the provisions of section 1287 of the Code of Civil Procedure do not authorize the appellate court to consider the weight of the evidence or to overrule the arbitrator where he has drawn reasonable inferences from the facts proven.</p> <p>Id.—Payment of Indebtedness by Checks—Deposit With Payee by Collecting Bank—Giving of Credit—Discharge of Drawer.— Where a railroad corporation in good faith draws checks upon a bank in which it has money on deposit and delivers them to a construction company in payment of an indebtedness, and the latter company indorses the cheeks to another bank for collection, but the latter bank, instead of cashing them, deposits the checks in the bank upon which they were drawn and in which the bank kept a deposit account, and takes credit for the amount thereof for its own purposes, the railroad company is exonerated, even though the drawee is insolvent.</p> <p>Id.—Credit for Check—Payment.—A credit given for the amount of a check by the bank upon which it is drawn is equivalent to and will be treated as payment thereof.</p> <p>Id.—Knowledge of Insolvency of Drawee—Officer of Bank—■ Notice not Imputable to Drawer.—Knowledge of the insolvency of the drawee cannot be imputed to the drawer by reason of the fact that the president of the drawee was also treasurer of the drawer, where such officer had no control of the money of the drawer, and the duties as treasurer gave him no knowledge of such insolvency.</p> <p>Id.—Deposit of Check With Drawee—Credit of Depositor—Lack of Novation Between Drawer and Drawee.—The delivery of a check to a payee, who indorses it to his bank for collection, and which the bank in turn deposits to its credit with the drawee, is not a novation, as to drawer and drawee.</p> <p>Id.—Delay in Presentment of Check—Exoneration of Drawer— Bule When Inapplicable.—The provision of section 3255 of the Civil Code exonerating drawers of checks from liability applies only where there has been delay in presentment, and not to cases in which a cheek has been presented to the drawee and its credit accepted in lieu of cash.</p>

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

<p>Criminal Law—Arson in First Degree—Presence op Third Persons Essential.—To constitute arson of the first degree, as define® by section 454 of the Penal Code, the presence in the building at the time of its burning of some human being other than the perpetrators of the forbidden act is essential.</p> <p>Id.—Joint Participants in Burning—Separate Trial op One Dependant.—A defendant jointly charged with another with the' crime of arson, but separately tried, cannot be convicted of arson in the first degree, if the evidence shows that they were both participants in the burning and fails t'o show the presence of any other person in the building.</p> <p>Id.—Tenant op Building Owned by Another.—The tenant of a building owned by another and occupied solely by himself may be guilty of arson in burning the building.</p>

<p>Judge Pro Tempore—Constitutional Provision Authorizing is Self-executing.—Section 8 of article VI of the constitution, authorizing a cause in- the superior court to be tried by a judge pro tempore agreed upon by the parties, both before and after its -amendment in 1910, was self-executing and required no act of the legislature to make it effective.</p> <p>Id.—Power of Pro Tempore Judge not Exclusive—Jurisdiction of Regular Judge — Vacation of Judgment.—That constitutional provision, as amended in 1910, authorizing the pro tempore judge to act in “such capacity in all further proceedings” in the cause tried ■before him until the final determination thereof, does not confer an exclusive -power on- him, or oust' a -duly elected and qualified judge of the superior court of the county of jurisdiction to hear and determine a motion to vacate the judgment rendered by the pro tempore judge.</p>

<p>Counties—Maximum Penalty fob Violation of Ordinance—Conflict With General Laws — Misdemeanor.— Selling Intoxicating Liquors.—A county, in the exercise of the power granted' it by section 11 of article XI of the constitution of making and enforcing within its limits all such local, police, sanitary, and other regulations “as are not in conflict with general laws,” may impose, for the violation of an ordinance making it a misdemeanor to sell intoxicating liquors, a penalty exceeding five hundred dollars as to fine and six months as to imprisonment.</p> <p>Id.—Limited Operation of Section 19 of Penal Code.—Section 19 of the Penal Code, providing that, “except in cases where a different punishment is prescribed by this code,” every offense declared to be a misdemeanor is punishable by imprisonment not to exceed six months, or by a fine not exceeding five hundred dollars, is limited in its operation to the misdemeanor offenses declared by that code.</p> <p>Id.—Limitation on Power of Local Legislative Bodies.—Even if section 19 of the Penal Code could be held applicable to local ordinances, it could not reasonably be construed as a limitation on the power of local legislative bodies in the matter of prescribing penalties, but simply as a law prescribing the penalty where a different punishment is not prescribed by the local body.</p> <p>Id.—Ordinance Prohibiting Sale of Liquor—Harmony With General Law.—A county ordinance prescribing a maximum penalty of six hundred dollars, or imprisonment for seven months, or both, for selling intoxicating liquors within certain prohibited limits of the county, is in harmony with the general law of the state known as the local option law (Stats. 1911, p. 599), which prescribes the same maximum penalty, and is not void for unreasonableness.</p>

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

<p>Workmen’s Compensation Act—Statute of Limitations—Waiver of Defense.—An objection that a proceeding to recover compensation under the Workmen’s Compensation Act was not instituted until after the period limited by section 16 thereof is waived by the failure of the defendant to set up such statute of limitations in his answer as a defense to the proceeding.</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>

This was an application, originally made in the District Court of Appeal for the Third Appellate District, for a Writ of Certiorari to review an order of the Superior Court of San Joaquin County vacating a judgment that had been entered in the case of Snyder v. Miller et al., and recalling an execution that had issued thereon.

<p>This was an application, originally made in the District Court of Appeal for the Third Appellate District, for a Writ of Certiorari to review an order of the Superior Court of San Joaquin County vacating a judgment that had been entered in the case of Snyder v. Miller et al., and recalling an execution that had issued thereon. The basis for the application for the writ was that the motion to vacate the judgment was made by the judgment debtor more than thirty months after the judgment had been made and entered. The District Court of Appeal denied the writ, and the petitioner then applied to the Supreme Court for a hearing of the application by that court. In denying the hearing the Supreme Court rendered the following opinion.</p>

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

<p>APPEAL from an order of the Superior Court of Los Angeles County distributing the estate of a deceased person. James C. Rives, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Will—Devise op Life Estate—Beservation op Leasehold Interests —Deed op Eee to Devisee.—Where a husband by his will devised a life estate to his wife in certain community property, “subject to the leases that may be in effect,” and afterward conveyed the fee of the property to her, retaining certain leasehold interests therein which likewise were community property, the language of the devise should be construed as a reservation, and as a withholding from the life estate devised of such leasehold interests as the testator himself had in the property, and such leasehold interests passed under a provision of the will making disposition of the community property.</p>

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

<p>Workmen’s Compensation Act—Injury Received Outside or State. The Workmen’s 'Compensation Act does not authorize the making of an award hy the Industrial Accident Commission for injuries to an employee received outside of the state.</p> <p>Id.—Employee on Merchant Vessel—Injury in Port oe Another State.—An employee killed in performing service growing out of, incidental to, and in the course of his employment, upon a merchant vessel owned in California while it was within a port of another state, was not constructively within the territorial limts of the state of California at the time of Ms death, and liability therefor is determined by the law of the state in which the death occurred. The dependent wife of such person may not have an award of compensation therefor under the Workmen’s Compensation Act of California.</p> <p>Id.—Vessel in P'ort Governed by Lex Loci.—When a merchant vessel of one country enters the port of another for the purpose of commerce it subjects itself to the laws of the sovereignty governing such port, unless some different rule has been established by treaty or otherwise.</p>

<p>Public Utility—Mutual Water Company Obtaining Supply from Public Utility.—A mutual water company, receiving water from a public utility under a contract for a term of years at a fixed, discriminatory rate, which it supplies to its stockholders to be used on their lands, is a customer of the utility with the rights and subject to the obligations of its other customers. Tt occupies the same position precisely as. does a single individual taking water from the utility for the irrigation of bis lands, and the fact that it represents a combination of several persons is immaterial in rate fixing proceedings.</p> <p>Id.—Contract to Purnish Water by Public Utility—Regulation of Rates by Railroad Commission.—A contract, made subsequent to the adoption of the constitution of 1879, whereby a public utility undertook to furnish water for a certain period to a mutual water company, is subject to the power of the state, vested in the railroad commission, to modify and practically to annul it in so far as the prescribed rate is concerned in the regulation of the public use.</p> <p>Id.—Obligation of Contract not Impaired.—The exercise by the state of the power to thus affect such an existing contract does not impair the obligation of a contract within the meaning of the federal constitution, if the state has not surrendered to the public utility involved, by something tantamount to a contract between it and the public utility, any portion of its regulatory power.</p> <p>Id.—Sale of Property of Public Utility—Reservation of Private Right.—Upon the sale of the water system of a public utility which was devoted wholly to public use, the grantor cannot, under the guise of a reservation, create a private right of ownership as to a part of the property devoted to public use, for its benefit or that of its sole stockholder.</p> <p>[d.—Jurisdiction of Railroad Commission—Determination of Pacts. The railroad commission has the power to determine for the purpose of the exercise of its jurisdiction to regulate a public utility by the fixing of rates, subject to such power of review as is possessed by the supreme court, all questions of fact essential to the proper exercise of that jurisdiction. Its jurisdiction cannot be affected by the circumstance that these facts are denied.</p>

<p>APPLICATION for a Writ of Certiorari to review an</p> <p>order of the Superior Court of the City and County of San</p> <p>Francisco. John J. Van Nostrand, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Evidence—Carbon Copy op Letter Forming Part op Correspondence. Where a party introduces in evidence a letter from his adversary, which was apparently in answer to one from himself, it is proper to admit without previous notice and demand for a production of the original, a carbon copy of the letter so answered, upon proof of its being a correct copy.</p> <p>Agency—Ratification op Agent’s Oppressive Acts—Punitive Damages.—While a principal may ratify and approve the oppressive acts of his agent, and the failure to discharge such agent may he evidence tending to show ratification, still the mere omission to dispense with the services of the offender, standing by itself and unsupported by any other circumstances indicating the employer’s approval of his course', is never sufficient to establish ratification. But by continuing the wrongdoer in his service after knowledge or opportunity to learn of the misconduct, and by other acts, the principal may become an abettor of the oppression and may make himself liable in punitive damages.</p> <p>Id.—Assault by Agent—Opportunity op Redressing Wrong as Condition to Punitive Damages.—In an action against a principal to recover damages for an assault by his agent, if the plaintiff wishes to charge the principal with vindictive damages, he should inform him of the facts before commencing the action, and should give him an opportunity of redressing the wrong. The mere notification of the principal of the claim of the injured person is not enough. There should he, in addition to - this, time and opportunity for investigation.</p> <p>Id.—Evidence—Opinion as to Extent op Force Used.—In an action against a railroad company to recover for an alleged assault by its employee in forcibly ejecting the plaintiff from its right of way, a witness may not testify that in his opinion .the employee used more force than was necessary.</p>

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

<p>Appeal—Order Denying New Trial.—Since the amendment of 1915 to section 963 of the Code of Civil Procedure, no appeal lies from' an order denying a motion for new trial.</p> <p>Id.—Judgment Against Surety on Stay Bond—Motion for Judgment —Only Question of Law Involved.—A judgment against a surety on an undertaking given in pursuance of section 942 of the Code of Civil Procedure for the stay of execution upon an appeal from a money judgment, entered on motion of the respondent after the affirmance of the judgment appealed from, only involves the decision of the question of law, whether or not, upon the records and files in the ease, the respondent is entitled to the judgment against the surety.</p> <p>Id.—New Trial of Proceeding Against Surety not Allowed.—The surety is not entitled to a new trial of the proceeding by which the judgment against him was given, and the pendency of his attempted motion ‘therefor did not extend the time for taking an appeal from the judgment against him beyond the sixty days allowed by section 939 of the Code of Civil Procedure.</p> <p>Id.—New Trials not Applicable to Motions.—The provisions of the Code of Civil Procedure authorizing new trials, refers to the trials and decisions of the issues of fact in civil actions and proceedings, raised by ordinary pleadings, afid has no reference to decisions of questions of fact on motions. A new trial does not lie to secure the re-examination of the decision of a motion.</p>

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

<p>APPEAL from a judgment of the Superior Court of San Diego County. W. A. Sloane, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Appeal from Judgment — Alternative Method — Absence of Notice of Entry—Time of Appeal—Extent of Review.—Under the alternative method of appeal provided by section 941b of the Code of 'Civil Procedure, as enacted in 1907, where no notice of the entry of judgment had been served on the appellant,, an appeal from the judgment taken within six months after its entry is in time, and any question, including that of the sufficiency of evidence to support the findings, may be reviewed. The fact that the appellant may have had knowledge of the entry of the judgment does not limit his time for appeal under such method to sixty days from the date upon which such knowledge' was brought home to him.</p> <p>Vendor and Vendee—Contract Between Brothers—Providing Home for Parents—Specific Performance—Certainty of Contract — An agreement by the owner of a lot of land to convey it to his. brother, in consideration of the latter’s erecting on the land and</p> <p>furnishing a home for the use of their parents, during their lives, is sufficiently certain and definite to admit of its specific enforcement. Id.—Statute op Frauds—Part Performance of Oral Agreement— Making of Improvements.—The fact that such agreement was not in writing is no objection to its specific enforcement, if the vendee made the valuable improvements on the property on the faith of the agreement, and those claiming under him had gone into possession. ■Such acts take the case out of the statute of frauds.</p> <p>Id.—Want of Mutuality—Decree Providing for Life Estate.—There is no want of mutuality in the agreement, preventing its specific performance after the death of the vendee during the lifetime of the surviving parent, as such parent's right of possession and enjoyment during his life can be fully protected by a decree vesting a life estate in him.</p> <p>Id.—Pleading—Adequacy of Consideration—Justness op Contract. A complaint for the specific performance of a contract to convey land need not allege', in the exact words of the code, that there was “an adequate consideration for the contract,’' and that it was “just and reasonable.” The proper mode of pleading is to set forth the-facts from which the court may conclude that the contract is supported by an adequate consideration, and is, as to the defendant, fair and just. In the present case, considering the relations of the parties, and the purpose of the contract to provide a home for their parents, there was no abuse' of discretion in determining that the contract was just and the consideration adequate.</p>

<p>APPEAL from a decree of the Superior Court of Sonoma County for the partial distribution of the estate of a deceased person. Thomas C. Denny, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Municipal Corporations—¡Restricting Solicitation of Business in Public Places.—A municipal corporation, in the exercise of the police power conferred by section 11 of article XI of the constitution, may by ordinance make it unlawful for any person to solicit custom or patronage upon any boat or in any depot, for any hotel, or for the transportation of persons or baggage, goods, wares, or merchandise, for hire. Such an ordinance is not void for unreasonableness.</p> <p>Id.—Right to Restrict cannot be Limited by Private Contract.— The right of the municipality to so legislate cannot be limited by any contract made between private parties.</p> <p>Id.—Reasonableness of Limitation upon Conduct of Business.—The question whether a limitation upon the conduct of a business has a reasonable relation to the accomplishment of a legitimate public purpose is one that must be decided upon a view of the particular legislation and the circumstances to which it is applied. The question is largely one of fact.</p>

<p>APPEAL from a judgment of the Superior Court of San Diego County disbarring an attorney at law. J. P. Wood, Judge presiding.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Workmen’s Compensation Act — Railroad Accident—Employee Alighting from Train—Service not in Course of Employment. A clerk in the freight auditing department of a railroad company, who, while traveling in the performance of his duties on a train of the company, voluntarily and without orders from the conductor or train crew, alighted therefrom on an occasion when the train had run over and injured a third person, and was himself killed in attempting to reboard the train, was not performing a service growing out of, incidental to, or in the course of his employment, where no rule or custom of the company required him to render assistance on such an occasion, but, on the contrary, the rules of the company confined the. performance of the duties resulting from such an accident to the conductor and train crew.</p>

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

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

<p>Contract—Action for Breach—Affirmative Defense—Excuse for Nonperformance —■ Pleading.—In an action for the breach of a contract, matters which fall within the category of excuses for nonperformance and which are not apparent on the face of the contract, nor embraced within the facts alleged in the complaint, are matters of defense, and, to be available to the defendants, must be set up in the answer, and where they are not, they cannot be advanced in support of an appeal, or as a reason why a new trial should not have been granted. ■</p> <p>Id.—Contract to Plant Eucalyptus Trees—Misrepresentation not Inducing Execution of Contract — Proper Granting of New Trial.—In an action for the breach of a contract to plant, irrigate, cultivate, and care for eucalyptus trees, and guaranteeing that at the end of a certain period there should be a certain number of trees standing in good condition on the land, it is proper to grant a new trial upon the ground that the evidence did not show that certain misrepresentations concerning absence of alkali from the land, alleged to have been made by plaintiff, were made to induce the execution of the contract.</p>

<p>Parent and Child—Divorce—Modification of Decree to Provide for Support of Child.—Under the express provisions of section 138 of the ‘Civil Code, the court which has granted a divorce has power to modify its judgment at any time during the minority of children of the marriage, by providing for the custody, education, and support of such children, even though the judgment may have contained no provision on the subject. No reservation in the decree itself is necessary to the exercise of this power.</p> <p>Id.—Custody of Child Awarded to Mother—Liability of Father for Support—Decree must Provide for.—Under the provisions of the Civil Code, when there has been a decree of divorce, and such decree vests the custody of the minor children in the mother, the father is under no obligation to provide for such children any support or education beyond that which may be directed by the court which has granted the divorce, either in its decree or by subsequent modification.</p> <p>Id.—Modification of Decree During Minority of Children.—The rule that no liability to support a child attaches to a parent who has been deprived of its custody and charge does not mean that the natural duty of a father to provide for Ms minor child is finally and absolutely terminated by an award of the custody of the child to the mother. Where such an award is made by a decree of divorce, or in an action for custody of children without divorce, the court may provide, at any time during the minority of the children, for their support and education by the father, who is deprived of their custody.</p> <p>Id.—Obligation of Father must be Enforced in Divorce Action.— The obligation of the father so deprived of the custody of the child, under a divorce decree which made no provision for its support, is one to be enforced by the court which granted the divorce, and in the divorce action itself. A separate action by the child against the father to compel him to furnish support and education will not lie.</p> <p>Id.—Agreement of Mother cannot Limit Obligation of Father.—A contract entered into by the parents of the child, pending the action for divorce, whereby the mother undertook to limit the obligation of the father with respect to the support of the child, does not bar the right of the child to have an order for proper support.</p>

<p>Corporations—Railroad Doing Intrastate Business—License Tax— G-eneral Corporate Affairs Transacted in California.—A railroad corporation, organized and existing under the laws of another state, which owns and operates a railroad situated solely within the limits of that state', but which maintains its general offices in the state of California, at which all of its corporate business is transacted except the mere physical operation of the road itself, is “doing an intrastate business” in the state of California, within the meaning of the act of 1915 (Stats. 1915, c. 190), imposing an annual license tax upon corporations doing such business.</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—Jurisdiction op Industrial Accident Commission—Stevedore—Accident in State P'ort.—The occupation of a stevedore is in its essence maritime, and the Industrial Accident Commission of this state has jurisdiction to make an award of compensation for an accidental injury to him suffered while he was engaged in discharging cargo from a vessel at a port in this state.</p>

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

<p>Taxation—Sale by State of Land Acquired for Delinquent Taxes—1 Mailing Notice of Sale.—Under section 3897 of the Political Code, upon a sale by the state of real property sold to it for delinquent taxes, the mailing of a copy of the notice of sale to the party to whom the land was last assessed, where the postoffice address of such party is known, is a prerequisite .to the authority of the tax collector to make the1 sale.</p> <p>Id.—Time of Mailing Notice of Sale.—Prior to the amendment of such section in 1913 (Stats. 1913, p. 559), such mailing was required to be made at least three weeks before the sale—that is, at or before the commencement of the period during which notice must be published or posted. A mailing, if any was required, only ten days before the sale was insufficient.</p> <p>Id.—Recitals in Deed—Void Deed.—Under section 3898 of the Political Code, as it existed prior to the amendment of 1913, the deed from the state was required to recite either a mailing in compliance with the statute, or the existence of the fact which made such mailing unnecessary,—that is, that the address was not known to the tax collector. A deed failing to contain such a recital was void.</p> <p>Id.—PltooF of Tax Sale in Absence of Deed.—In the absence of a deed from the tax collector, which the statute makes prima faoie evidence that the preliminary steps recited in the deed had been taken, the sale by the tax collector cannot be established without proving the various conditions precedent to a sale.</p>

<p>Trust to Convey Land After Death of Life Beneficiary—Void Provision.—Prior to the amendment of August 10, 1913 (Stats. 1913, p. 438), to section 857 of the Civil Code, a trust to receive the rents of real estate and apply them to the use of a person during Ms life, and after the death of the life beneficiary to convey the property to the survivors of the individuals named as trustees, with power given to the trustees "to sell the property prior to the death of the life beneficiary, if the trustees deem it advisable, or if it becomes necessary, was void as to that portion directing a conveyance after the death of the life beneficiary.</p> <p>Id.—Estate of Trustee During Life of Beneficiary.—Until the death of the life beneficiary, the estate wMeh the trustees held was one merely adequate for the purpose of executing the trust. At no instant of time did the trustees possess the equitable estate in remainder, and at no instant of time was it possible for a merger to take place.</p> <p>Id.—Construction of Deed—Words of Absolute Conveyance Restricted by Trust Provisions—Termination of Trust—Reversion to Heirs of Trustor.—A deed which, after employing words of absolute conveyance to the grantees, “or the survivors of them, their heirs and assigns forever/’ clearly restricts the fee conveyed to the grantees to and for the purposes of such trusts, cannot be construed as a direct grant to the grantees, or the survivors of them. Upon the death of the life beneficiary the -trusts created by the deeds terminated, and the property descended in fee to the heirs of the trustor.</p> <p>Id.—Sale by Trustees and Beneficiary During Life of Trust.— Under the power of sale conferred on the trustees, they were authorized, prior to the death of the life beneficiary, to sell the trust property, and their conveyance thereof in fee, joined in by such beneficiary, passed his equitable life estate and his reversionary interest therein.</p> <p>Id.—Use of Proceeds of Sale and Interest Thereon by Trustees.— A provision of such trust, authorizing the trustees to use the “rents, issues and profits” of the land in the performance of their duties, empowers them to utilize in lieu thereof the interest on the consideration received from the sale of the premises, but does not give them the right to use any part of the principal for the' purposes of the trusts.</p> <p>Id.—Estate of Deceased Person—Accounting by Representative of Deceased Administrator.—Under section 1639- of the Code of Civil Procedure, upon the death of the administratrix of the estate of a deceased person, her accounts as such administratrix may be presented and filed by her personal representative.</p> <p>Id.—Allowance of Claims — Delay in Presentation — Appeal.—The allowance by the court of claims against the estate of a deceased person will not be disturbed on appeal on the ground that they were not presented during the time allowed by law, in the absence of evidence affirmatively showing that fact.</p> <p>Id.—Barred Claims cannot be Allowed.—Claims against an estate of a deceased person, which are barred at the time of their presentation, cannot be allowed by the court.</p> <p>Id.—Funeral Expenses—Monument for Grave—Joint Use.—It is no objection -to a charge for a monument for a decedent that it was also intended to serve as a monument for the grave of his father.</p> <p>Id.—Fees of Attorney for Administrator.—The attorney for an administrator, who did not fully administer upon the property of the estate, is not entitled to full commissions, and his fees should he based upon the amount of the estate when, the account is finally settled.</p>

In an action to quiet title to land pending in the Superior Court of Alameda County, in which the petitioner was the plaintiff and one Irving E. Smith was the defendant, a judgment was duly rendered in favor of the petitioner and against said defendant, under which the defendant was dispossessed and the possession delivered to the petitioner.

<p>Contempt—Taking Possession of Land by Party Legally Dispossessed—Alias- Writ of Possession—Appeal.—The amendment of 1907 to section 1210 of the Code of Civil Procedure does not give a right of appeal from an order adjudging guilty of contempt a party who. had retaken possession of real property from which he had been dispossessed under a judgment and process against him, and directing an alias writ to issue to restore the possession to the party entitled under the judgment.</p> <p>Id.—Stay of Execution Pending Appeal.—A provision in such order for a stay of execution in the event an appeal were taken from the portion thereof directing an alias writ of possession to issue will be annulled on certiorari.</p>

<p>APPEAL from a judgment of the Superior Court of Shasta County, and from an order refusing a new trial. W. D. Tillotson, Judge.</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>Marriage—Annulment—Consent Induced by Threats—Evidence.— A marriage will not be annulled at the instance of the wife on the ground that her consent thereto was obtained through menace, upon evidence merely that threats to prefer a criminal charge against her were made at the time. It was necessary to further show that such threats were the inducing cause of her consent, and, if they were, that her free exercise of will was thereby overcome to such an extent as to render her consent apparent rather than real.</p> <p>Id.—Want of Cohabitation—Immaterial Omission to Find.—In an action for such annulment, where judgment is rendered for the defendant upon the plaintiff’s failure to establish that her consent was voidable because of the means by which it had been obtained, the omission of the court to find on the averment that the parties had not cohabited as husband and wife since the marriage is immaterial.</p> <p>Id.—Refusal of Permission to Argue Case.—In such a ease, where the court permitted plaintiff’s counsel to present the authorities on which he relied, the refusal to permit him to argue the matter was not an abuse of discretion, nor a miscarriage of justice within the meaning of section 4% of article VI of the constitution.</p>

<p>Workmen’s Compensation Act—Country Club—Caddy Employed on Golf Links — Liability op Club as Employer.—A country club which owns and maintains a golf links for its members, and supplies caddies for their use, while playing the game, whose employment and discharge during all of the time when they are not actually in the service of a member remain wholly under its control, occupies the status of an employer to such caddies, and is liable under the Workmen’s Compensation Act for an accidental injury to a caddy while in the service of a member, notwithstanding the member pays the caddy for his service and directs his activities while actually caddying.</p> <p>Id.—Employment Limited to Certain Days.—The fact that the injured caddy reported for duty and was employed only on specified days does not affect his status as an employee.</p> <p>Ib.—Injury to Minor — Basis op Compensation — Future Earning Capacity.—In awarding compensation to such caddy, who was a minor, the Industrial Accident Commission was authorized, under section 17 of the Workmen’s Compensation Act, to take into consideration the increased wage which he might be fairly expected to earn.</p>

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

<p>Appeal — Typewritten Transcript — Failure of Briefs to Embody Parts of Record—Affirmance of Judgment.—On an appeal from the judgment, where the transcript of the record is presented in typewriting as provided by sections 953a et seq. of the Code of Givil Procedure, the failure of the appellant to print in his briefs on appeal such portions of the record as he desires to call to the attention of the court, justifies an affirmance of the judgment without further consideration.</p> <p>Id.—Frivolous Appeal—Damages.—In this action to cancel a deed, in which the findings and judgment were in favor of the defendants, the plaintiff’s appeal is held to be without merit, and the case one for the imposition of damages for taking a frivolous appeal.</p>

<p>APPEAL from an order of the Superior Court of San Joaquin County appointing a receiver pendente Ute. Frank H. Smith, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Appeal from Order Refusing Injunction Pendente Lite—Restraining Order Pending Appeal.—On an appeal from an order refusing an injunction pendente lite and dissolving a temporary restraining order, the appellate court has no power to make an order granting the restraining relief prayed for pending the determination of the appeal.</p>

<p>Mortgage—Assumption op Payment by Grantee op Mortgagor.— The promise by the grantee of a mortgagor personally to be answerable for the payment of the mortgage may appear and bind such grantee because of a clause in the deed or by a separate written instrument, which need not be executed with the formalities necessary to a deed, and which, if preceding the execution of the deed, is not so merged in the deed that the omission of the assumption clause from the latter instrument will release the grantee from his prior covenant.</p> <p>Id.—Payment by Purchaser—Assignment op Mortgage.—If the purchaser of mortgaged premises has assumed payment of the mortgage indebtedness, or has otherwise made himself liable for it, the payment of the debt will extinguish the mortgage, and he cannot take an assignment of it to himself; and a subsequent assignee from him, after maturity, of the indebtedness takes subject to all existing defenses.</p> <p>Id.—Performance—Extinction op Obligation.—The full performance of an obligation by anyone for the principal with his assent, if accepted by the creditor, extinguishes the obligation.</p>

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

<p>Olographic Will—Sufficiency of Signing by Testator—Absence of Subscription.—A document testamentary in character and entirely in the handwriting of the writer, although not subscribed at the end thereof, is sufficiently signed to constitute its due execution as an olographic will, where in its exordium it declared, “This is the last will and testament of Elizabeth E. McMahon,” the name of the writer, and concluded as follows: “I do hereby publish and declare •the foregoing entirely written, dated and signed by my own hand, to be my last will and testament, this second day of January, 1912.”</p>

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

<p>Water Eight—Riparian Owner — Prescriptive Right to Divert Water.—In this action by a riparian proprietor to enjoin the defendants from diverting the natural water of a stream so as to prevent it from flowing to the plaintiffs’ land, the evidence is held to show that the defendants, by continuous adverse diversion and use, by themselves and their predecessors in interest, had acquired prescriptive rights to divert the water.</p> <p>Id.—Diversion Adverse to Lower Riparian Owner—Nature op Prescriptive Right.—The open, notorious, and continuous taking of a large quantity of the natural waters of a stream by an upper diverter, under a claim of right so to do and with the knowledge of lower riparian proprietors, is an invasion of the rights of such proprietors, whether they used the water, or any part thereof, on their lands or not, and regardless of the fact that the water remaining in the stream may have been sufficient for their needs and uses. Such a taking is adverse to the rights of the lower- riparian proprietors to the full flow of the stream by their lands, and a continuance thereof for five years establishes a perfect right to continue the diversion of the quantify so taken. The prescriptive right so acquired is thereafter held by a perfect title in fee, good against all lower riparian proprietors, and passes by a conveyance thereof.</p> <p>Id.—Diversion op More Water Than Authorized by Prescriptive Right—-Loss by Leaks in Flumes.—The prescriptive right so acquired to divert a specified quantity of the water of the stream is not affected by the fact that the owner thereof, subsequent to the accrual of the right, by perfecting its dams and repairing its canals, was enabled to and did divert a larger quantity of the water; and the fact that a small part of the water taken- into the canals at the dam has always escaped from the canals through leaks in the flumes and thus been returned to the stream does not deprive the diverter of the right to the quantity actually kept out of the stream.</p> <p>Id.—Statute op Limitations—Pleading Prescriptive Right—Findings.—In an action by a riparian owner to establish his riparian rights, an answer by the defendant that the action is barred by the statute of limitations, by reference to the appropriate section ' of the Code of Civil Procedure, is a sufficient pleading of the prescriptive right to the quantity of water claimed by the defendant, and justifies the taking of evidence and the making of findings with respect to such prescriptive right.</p> <p>Id.—Judgment upon Establishing Prescriptive Eight.—The proper form of a judgment in such a case would be to declare the right of the respective defendants to make the diversions of water from the stream to the quantity as to which the prescriptive right was found to be established, and to permit them to continue the diversion of such quantity, but to enjoin them from making any greater diversion of the water by "means of improved dams or canals or otherwise. A judgment which, in effect, merely allows the respective defendants to continue their respective diversions so long as the quantity flowing by the plaintiffs’ land was not reduced thereby below specified amounts is erroneous.</p> <p>Id.—Evidence—Quantity of Water 'Covered by Prescriptive Eight.— The evidence in this case is held to be sufficiently definite and certain to support findings as to the quantity of water covered by the prescriptive rights of the respective defendants at their several dams.</p> <p>Id.—Extent of Prescriptive Eight to Water.—The right of one claiming a prescriptive title to water to be diverted from a stream is not measured by the quantity that passes by his dam and reaches a riparian proprietor below, but by the quantity which he takes from the stream and uses.</p> <p>Id.—Injunction—Protection of Prescriptive Eight Against Wrongful Diversion.—A person who has acquired a prescriptive right to divert a certain quantity of the natural waters of a stream may maintain an action to restrain any wrongful diversion above that would diminish the stream at his place of diversion, so that it would not afford him his usual quantity.</p>

<p>Water Rights-—Riparian Proprietor—Appropriation for Use on Non-riparian Land—Injunction.—A riparian proprietor is entitled, as against a mere appropriator for use on nonriparian lands, to the natural and usual flow of all the waters in the stream, except as such right has been limited or divested by agreement, or by prescription, and may restrain the appropriator's taking, without showing damage, upon the theory that the taking is an interference with his freehold, which he is entitled to restrain unless it ripen into a prescriptive right.</p> <p>Id.—Injunction Pendente Lite—Review on Appeal—Discretion.— On an appeal from an order granting an injunction pendente lite, restraining the appropriation of the waters of a natural stream by the defendant for use on nonriparian land, it is only necessary that the court, to sustain the order, should find in -the evidence sufficient basis to support the discretion which the trial court exercised.</p> <p>Id.—Merits not Determined on Application for Preliminary Injunction.—The granting or denial of a preliminary injunction does not amount to an adjudication of the ultimate rights in controversy. It merely determines that the court, balancing the respective equities of the parties, concludes that, pending a trial on the merits, the defendant should or that he should not be restrained from exercising the rights claimed by him. If it is reasonable to assume from the record on appeal that the trial court made its order upon this basis, the appellate court cannot say that it abused its discretion.</p> <p>Id.—Abuse of Discretion not Shown.—In this action by a plaintiff: claiming title to the waters of a natural stream both by prescription and as a riparian owner, to restrain the defendants from appropriating sueh waters in excess of a specified amount for use on nonriparian land, it is held that the granting of an injunction pendente lite was not an abuse of discretion.</p> <p>Id.—Appropriated Water When Eeduced to Possession.—Conceding that the right of an appropriator to have water flow from a river into a ditch, and the water flowing therein, is real property, sueh water is not reduced to possession until actually taken into the ditch by the appropriator.</p> <p>Id.—Discretion oe Trial Court in Granting Preliminary Injunction. The matter of granting a preliminary injunction is addressed to the sound discretion of the court, which is to be exercised according to the circumstances of the particular case; and its action will not be disturbed on appeal unless it shall clearly appear that there was an abuse of its discretion.</p>

<p>Negligence—Master and Servant—'Sake Place to Work.—The duty of an employer to furnish his employee with a reasonably safe place to work is limited to the ¡premises where the employee is required to be, for the purposes of his employment.</p> <p>ID.—Starting of Machinery—Employee Working in Wrong Place.— If an employee, while working in a place where he was not required to be, was injured by the starting of the machinery, such starting would not constitute negligence in the absence of proof that the employer knew or had reason to know that he was in a position of danger.</p> <p>Id.—Preparation of Place and Appliances by Employee.—The rule requiring the master to provide a safe place for the servant does not apply when the place at which the work is to be done, or the appliances for doing the same, are to be prepared by the servant himself.</p> <p>Id,—Employee in Lumber-mill—Negligence not Established.—In this action to recover for the death of an employee in a lumber-mill, occasioned by his body being drawn against and crushed by a rapidly revolving shaft, the evidence is held insufficient to establish negligence on the part of the employer either in failing to furnish a safe place in which to work, or in starting the machinery after the employee had begun to work thereon.</p> <p>Id.—Bes Ipsa Loquitur—Doctrine Inapplicable.—Where there was no evidence that the machinery was started after the employee had begun to work thereon, and the undisputed testimony showed that it had not been started 'at all, and therefore could not have been started negligently, the doctrine of res ipsa loquitur is inapplicable. Evidence—Impeaching Testimony—Inconsistent Statements.—When a witness is impeached by proof of prior inconsistent statements, •the effect is merely to discredit him as a witness. The former statements made by him are incompetent for any other purpose, and do not constitute evidence of the truth of the facts so stated by him.</p>

<p>Workmen’s Compensation Act—Employee to Sell Beal Estate on Commission.—A .person who for upward of two years had been employed to sell real estate on commission, subject to the approval of his principal, under a contract obligating him to pay his own expenses, but requiring him to devote his entire time to the work, and who, in the performance of his work, was subject to the general control of his principal as to his movements and methods of salesmanship, is an employee within the meaning of the Workmen’s Compensation Act.</p>

<p>Sale—Property Exempt prom Execution—Want op Delivery or Change in Possession.—Under the proviso contained in section 3440 of the Civil Code, a sale of personal property exempt from execution, although not accompanied by an immediate delivery to the vendee, or followed by an actual and continued change of possession, is valid as against creditors of the vendor.</p> <p>Id.—Assertion op Claim op Exemption.—The exemption of property from execution, under section 690 of the Code of Civil Procedure, is not therein declared to be conditional upon the assertion of a claim of exemption by the debtor. Its status as exempt property comes from its character and use, and not' from any claim for exemption.-</p> <p>Id.—Execution Sale op Exempt Property'—Conversion by Sheripp— Claim op Exemption by Vendee op Debtor.—Where property exempt' from execution was sold after the enactment of the proviso to section 3440 of the Civil Code, without an immediate delivery to the vendee or change in the possession, and was subsequently seized and sold on execution at the instance of a creditor of the vendor, the vendee, in order t'o hold the sheriff liable for its conversion, was not required to make a specific claim upon the sheriff that the property was exempt from execution against the vendor.</p> <p>Id.—Sale op Property in Charge op Keeper—Immediate Delivery not Necessary.—When there is an execution levy upon property and it is in charge of a keeper, a sale made by the debtor during the possession of the keeper is not a sale “made by a person having at the time the possession or control of the property,” within the meaning of section 3440 of the Civil Code, and is valid without’ immediate delivery.</p>

APPLICATION to set aside and vacate an order of the District Court of Appeal of the Third Appellate District admitting a person to practice law in the courts of this state. The facts are stated in the opinion of the court.

<p>Municipal Corporations—Maintenance op Auditorium—Proprietary ■Capacity—Liability por Negligence.—A municipal corporation acts in its private and proprietary, as distinguished from it's governmental, capacity, in constructing and maintaining an auditorium in pursuance of the permissive authorization given "by the act of 1903 (Stats. 1903, p. 412), and is liable to one lawfully on such premises for personal injuries resulting from its negligence in maintaining the structure, notwithstanding it derived no pecuniary benefit from the use being made of the building at the time of the injury.</p> <p>Id.—Absence op Pecuniary Gain prom: Use op Building—Governmental Function.—The fact that the municipality reaps no direct pecuniary return from the use of the building for a particular purpose, does not make it's act in so using it the performance of a governmental function.</p> <p>Id.—Building Erected on Tide-land.—It is immaterial to the liability of the city that the building was constructed in part upon tide-lands belonging to the state, and that its construction and maintenance of the building under such circumstances was ultra vvres.</p>

MOTION to dismiss an appeal from an order of the Superior Court of the City and County of San Francisco, admitting a will to prohate. J. Y. Coffey, Judge. The facts are stated in the opinion of the court.

<p>"Workmen’s Compensation Act—Constitutionality—Death Benefits—Injuries to Mariners on Navigable Waters.—The general scheme of the Workmen’s Compensation Act is constitutional, the provisions allowing awards for death benefits are valid, and the act authorizes awards for injuries received by mariners on navigable waters.</p> <p>Id.—Findings of Industrial Accident Commission—Willful Misconduct—Total Absence of Evidence—Review by Supreme Court.—The finding of the Industrial Accident Commission that the injury to an employee was not the result of his own willful misconduct is subject to review in the supreme court if totally unsupported by the evidence. The commission is, however, the body charged with the determination of issues of fact, and its findings of fact are not reviewable where they find support under any rational view of the evidence.</p> <p>Id.—Meaning of “Willful Misconduct”—Negligence.—The phrase “willful misconduct,” as used in the section of the Workmen’s Compensation Act exempting an employer from liability where the injury was caused by the willful misconduct of the injured employee, means something more than negligence, more, even, than gross negligence.</p> <p>Id.—Stranding of Steamer—Disobeyance of Captain’s Order to Take to Boats.—Under the facts in this case, it cannot be held, as matter of law, that the second officer of a steamer which was about to strike upon the rocks, who had taken his place in one of the small boats, in pursuance of the captain’s order so to do, was guilty of willful misconduct in leaving the boat and returning to the steamer.</p> <p>Id.—Lien for Attorney’s Fee—Payment Directly to Attorney.—The commission, to render effective the lien of the attorney’s fee for legal services pertaining to a claim for compensation, as authorized "by section 29(b) of the Workmen’s Compensation Act, may order the amount allowed as a fee to he paid by the employer directly to the attorney of the applicant.</p>

<p>Deed of Trust—Securing Bond Issue—Limitations on Liability of Trustee—Defects in Title of Mortgagor—Misrepresentations by Mortgagor—-Certificate of Trustee.—A trustee under the ordinary form of trust deed securing a bond issue, which provided that it “should not be liable or accountable for the acts, defaults, or neglect of any agent to be appointed in good faith for any of the purposes expressed in the mortgage,” and that “no other liability or responsibility shall under any circumstance be borne by or attach to it than for the exercise of reasonable diligence only in the performance of the trust when action on its part for that purpose shall become necessary, and that it shall not be required to take any affirmative action on behalf of the holders of said bonds unless indemnified, nor be compelled to pay any taxes which may be assessed or imposed upon” the mortgaged property, unless furnished with the money to make the payment, and that “no liability or accountability shall attach to it” for failure to foreclose the mortgage, is not liable for losses resulting to the bondholders from misrepresentations made by the mortgagor in the deed of trust respecting the ownership of the mortgaged property, or from defect's in the title thereto discovered after the issuance of the bonds, merely because it attached its certificate to each of the bonds guaranteeing that the attached bond was one of a particular series issued by the mortgagor and described in the mortgage therein referred to, and that the bond and the coupons attached thereto were genuine.</p> <p>Id.—Liability of Trustee—Errors of Judgment.—Ordinarily trustees are bound to a fair exercise of their judgments and t'o the unselfish exercise of good faith. Very supine negligence or willful default will render them liable, but not mere errors of judgment.</p> <p>Id.—Obligations of Trustee of Express Trust.—The trustee of an express trust derives his power from the instrument creating the trust, and the same document furnishes the measure of his obligations.</p> <p>Id.—Trustee not an Insurer of Title—Investigation of Title— Curing Defects.—Under such deed of trust the trustee was under no extraordinary duty, and was not an insurer of the title of the mortgagor to the mortgaged property, nor was it bound to know the law of the country where such property was situated, or to investigate the title in the light of such law, or cure subsequently discovered defects therein.</p> <p>ID,—Effect of Trustee’s Certificate.—The certificate of the trustee merely guaranteed the bonds and coupons as the issue of the corporation purporting to issue them; it did not operate as a guaranty of the legal sufficiency of the security.</p>

<p>Default Judgment—False Return of Personal Service—Setting Aside Judgment on Motion.—Although it appears from the record of a judgment entered upon a default that service was made upon a defendant, and, hence, a judgment against him is valid upon its face, such a judgment may be set aside on motion either under section 473 of the Code of Civil Procedure on any of the grounds therein specified, or independent of that section, where the motion is made upon the ground that its entry was based solely on a false return of personal service upon the defendant.</p> <p>Id.-—Motion to Set Aside must be Made in Reasonable Time.—In order to invoke the power of the court to set a judgment aside on the ground that it was entered against a party defendant without service of process on him at all, the motion must be made within a reasonable time, or the right to make it is lost, and the party is remitted to an action in equity to have the judgment declared void.</p> <p>Id.—Reasonableness op Time Determined by Period Fixed by Section 473, Code op Civil Procedure—Equitable Relief.—In determining whether a motion to set aside such a judgment is presented within a reasonable time, the period fixed in section 473 of the Code of Civil Procedure within which motions under it may be made is the standard or criterion of reasonableness. A motion made more than a year after the entry of judgment is too late, and beyond the power of the court to grant. Under such circumstances, the defendant must seek whatever relief he is entitled to through an' independent action in equity to set aside the judgment for want of jurisdiction in the court to pronounce it.</p>

<p>Default Judgment—False Beturn of Personal Service—Time for Making Motion to Set Aside Judgment.—A motion to set aside a default judgment not void upon its face, on the ground that it was based on a false showing of personal service of process, must be made within a reasonable time after its rendition. What is a reasonable time within which to make such a motion is t'he same time that is allowed for motions which are permitted under section 473 of the Code of Civil Procedure. A motion made within six months after the entry of the judgment is in time.</p> <p>[D.—Judgment Should be Annulled Without Imposition of Terms. Such a motion is not made under section 473 of the Code of Civil Procedure, and if made in time, and the defendant’s showing of nonserviee of process on him is sufficient, he has an absolute right to have the judgment annulled without' the imposition of any terms or conditions whatever.</p>

<p>Trust—Obligation of Trustees to Account—Failure to Keep Accounts.—Trustees are under an obligation to render to their beneficiaries a full account of all their dealings with the trust fund, and where there has been a negligent failure to keep true accounts, or a refusal to account, all presumptions will be against the trustee upon a settlement.</p> <p>Id.—Proof of Accuracy of Accounts.—In an action by a beneficiary against the trustee for an accounting, it is incumbent upon the trustee to prove the accuracy of his account, and the burden of proof is not upon the beneficiary to point out the particulars in which the account is erroneous, or to go forward and establish affirmatively the impropriety of assailed charges and credits.</p> <p>Id.—Collection of Notes and Rentals by Trustees.—It is the duty of the trustees to collect promissory notes forming part of the trust estate, and they are liable for the amount of the notes with interest, unless they make it appear that the failure to collect the notes was not due to their fault. The same liability attaches to the failure of the trustees to collect rentals accruing from the trust property.</p> <p>Id.—Use of Trust Property to Secure Personal Advances.—Trustees cannot use the trust property to secure repayment of advances made by them personally, as by so doing they assume a position antagonistic to that of their beneficiaries, and any advantage or profit received by them through the transaction is deemed in law to belong to the beneficiaries.</p> <p>Id.—Advances to Beneficiaries—Bank Tags—Insufficient Vouchers. Charges in the trustee’s account for various sums of money claimed to have been advanced to the beneficiary through a bank are not sustained by evidence merely of memorandum checks or tags found among the papers of the bank, not signed by the beneficiary. Such tags do not constitute vouchers showing payment to the beneficiary.</p> <p>Id.—Interest on Money Unnecessarily Borrowed.—Trustees are not justified in borrowing more money than they need and charging the trust with interest on the sums so borrowed. Where they have idle money on hand, it is their duty to so apply it as to stop unnecessary interest charges.</p> <p>Id. — Stating Accounts — Disallowance of Unproved Items.—In stating their accounts, it is the duty of the trustees to support every item thereof, and wherever they fail to support the correctness of a charge or a credit by satisfactory evidence, the item must be disallowed.</p> <p>Id.—Good Faith of Trustees—Failure to Keep Accounts.—The good faith of the trustees cannot save them from the consequences of their failure or neglect to perform their duty of keeping full and accurate accounts of their transactions, and whatever doubts arise from such failure or their inability to establish the items of their accounts must be resolved against them.</p>

<p>Taxation—Proof of Title Under Tax Deed—Deeds to and from State must be Introduced.—A defendant in an action to qniet title, claiming title under a tax deed, in order t'o establish that he had acquired the title of the delinquent taxpayer to the land, must introduce in evidence a deed to the state vesting in it the title of the delinquent taxpayer, as well as a deed from the state to the purchaser.</p> <p>Id.—Waiver of Proof of Deed to State—Stipulation as to Plain- ■ tiff’s Title.—The introduction of such a deed to the state is not waived by reason of a stipulation entered into by the parties at the trial, to the effect that the “plaintiff is the owner of the property . . . unless the title to said property has become vested in said defendant by virtue of the tax deed to be introduced in evidence by him.”</p> <p>Id.—Proof of Deed to State—Recitals in Assessment-roll of Sale to State.—The execution of such a deed to the state is not proven by recitals contained in the delinquent assessment-roll and in the state controller’s authorization for a sale, to the effect that the property had been sold to the state on a specified date.</p> <p>Id.—Quieting Title—Purchase Price Paid to State—Subsequent Taxes—Repayment as Condition of Equitable Relief.—The owner of the land is entitled to a decree quieting his title against such claimant under the deed from the state, without paying the amount paid by him as the purchase price of the property to the state and other amounts subsequently paid as taxes on it, where the evidence fails to show that the state ever had any lien against or title to the property, or that the defendant ever acquired any.</p>

<p>APPLICATION for a Writ of Mandate directed to the County Clerk of Lake County.</p> <p>The facts are stated in the opinion of the court.</p>

the Superior Court of the City and County of San Francisco fixing an inheritance tax. J. Y. Coffey, Judge. The facts are stated in the opinion of the court.

<p>Municipal Corporations—City op Alameda—Restriction on Sale op Intoxicating Liquors—Social Clubhouse.—The provision of the charter of the city of Alameda rendering it unlawful for any person, firm, or corporation to establish, open, keep, maintain, or carry on any saloon, bar, store, dramshop, tippling place, stand or any place where spirituous, malt or fermented liquors or wines or any admixture thereof, are sold or given away, or to sell or barter or give away within the limits of the city any such liquors, without having permission pursuant to an ordinance of the council or people, and empowering the council to impose license taxes for the selling and giving away of such liquors, is designed merely to limit and restrict the business of selling such liquors, and does not apply t'o a fraternal organization which maintains a clubhouse and buffet where liquors are dispersed, not as a business or for profit, but as an incidental accommodation to its members desiring such refreshment.</p>

<p>Corporation — Illegal Contract for Division of Capital Stock Amongst Stockholders.—An agreement between the stockholders of an insolvent corporation and one of it's creditors, by which all the assets of the corporation, except certain promissory notes, were taken over by the creditor in satisfaction of his indebtedness, and such notes were transferred t'o a trustee for collection, and the proceeds when collected were to be distributed amongst the stockholders, is valid to the extent that it provided for the collection of the notes by the trustee, but illegal and void in so far as it attempted to provide for a division of the proceeds amongst the stockholders.</p> <p>Id.—Neither Directors nor Stockholders can Authorize Such Contract.—Such a method of distributing a portion of the capital stock of a corporation is illegal and void and not permitted, whether attempted by the directors, the stockholders, or both.</p> <p>Id.—Contract Partly Lawful and Partly Unlawful.—Where a contract has several distinct objects, of which one at least is lawful, and one at least is unlawful, the contract is void as to the latter and valid as to the rest.</p> <p>Id.—Estoppel—Assent of Stockholder.—The maker of one of such notes, who was also a' stockholder, is not estopped by giving his assent to the illegal contract from urging its invalidity in a suit' on the note.</p>

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

W. M. Conley, Trial Judge, and George A. Sturtevant, Judge denying motion for new trial. The facts are stated in the opinion of the court.

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

<p>Deed Absolute upon Its Face—Evidence to. Establish a Mortgage. The evidence must be clear and convincing to establish that a deed absolute upon its face is a mortgage. In this case the evidence is held not of such character.</p>

<p>Municipal Corporations—Street Improvement Act—Tunnel Under Public Street—Local Assessment District.—A municipality has no authority, under the Street Improvement Act of March 18, 1885, commonly known as the Vrooman Act, and the amendments thereto, to construct a tunnel under a public street solely for purposes of public travel, or t'o assess the cost of such improvement upon a local district. The tunnels authorized by that act are those intended for drainage or sewer purposes.</p> <p>Id.—Tunnel not Part op Street.—A tunnel constructed under a public street, having no intermediate connection between its terminal portals with the surface above and not following the lines of the street throughout its entire length, is not a part' of the street itself within the purview of the Vrooman Act.</p> <p>Id.—City op Los Angeles—Initial Construction op Tunnel—Assessment on Local District not Authorized by Charter.—The city of Los Angeles has no power, under section 2 of its charter, as amended in 1911 (Stat's. 1911, p. 2059), to levy an assessment upon a local district in order to raise the money necessary for the initial establishment of a tunnel intended for purposes of public travel, as distinguished from the repair or improvement of an existing subterranean avenue.</p> <p>Id.—Bonds Issued por Tunnel Assessment—Not Validated by Bond Act.—The city being without power to levy such an assessment upon the property of a local district, bonds issued therefor are not validated by the validating clause of the Bond Act.</p>

<p>Quieting Title—Possession op Plaintiff not Necessary—Pleading. An action to quiet title to land under section 738 of the Code of Civil Procedure may be brought by one out of possession, and the complaint need not allege that the plaintiff was in possession of the property.</p> <p>Id.—Invalidity op Instrument Asserted to be a Cloud Against Plaintiff’s Title.—In such action the complaint' need not specifically allege anything concerning the invalidity or recite any facts showing the invalidity of the instrument asserted to be a cloud against the title of the plaintiff.</p>

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

<p>Partition—Agreement for—Partitioners not Arbitrators—Agency. In the absence of any prior controversy, an agreement between tenants in common for the partition and allotment in severalty of the common property, to be made by three disinterested parties, the determination of the majority of whom was to be binding on the cotenants, is not an agreement for arbitration. The partitioners do not act in the capacity of arbitrators, but merely as agents for the cotenants.</p> <p>Id.—Arbitration Dependent on Prior Controversy.—An arbitration, strictly speaking, has to do with the settlement of existing controversies between the parties. If there is no question in dispute there is no question for an arbitration.</p> <p>Id.—Statutory Arbitration—Filing Award—Absence or Hearing.— The proceeding to partition cannot be supported as a statutory-arbitration, where the award was not filed with the clerk, nor any hearing held for the purpose of adducing" evidence.</p> <p>Id.—Swearing or Partitioners.—The nature of the partition agreement is not affected by the incident that the persons chosen to make the partition were sworn in accordance with the provisions of section 1285 of the Code of Civil Procedure.</p> <p>Id.—Equalization or Allotments by Award or Owelty.—In making the partition, where the common property was not susceptible to an equality of division in kind, the partitioners could equalize their allotments by awarding one of the cotenants an owelty.</p> <p>Id.—Division or Stock in- Irrigating Company. — In partitioning shares of stock in an irrigating company, that had little or no value to persons who did not own land beneath the ditch of the company, it was just and reasonable to divide the shares in proportion to the number of acres lying below the ditch and irrigable therefrom, any inequality of value arising from such a division being compensated for by an owelty.</p> <p>Id.—Award or Easement for Way.—In making the partition of a large tract of agricultural land, the partitioners had implied authority to award one of the cotenants a perpetual right of way over the lands allotted to the other, such easement being merely the right to use an existing road which was necessary to furnish proper facilities for access to the land to which it was appurtenant, and a reasonable means of making possible a fair and equitable partition of the property.</p> <p>Id.—Hearing Before Partitioners not Essential.—Under the partition agreement in question, a hearing before the partitioners for the purpose of taking testimony and determining such questions as the parties might choose to raise, was not contemplated and was not essential to the validity of the partition.</p> <p>Id.—Expert Advice Given Partitioners.—It was proper for the partitioners, if the nature of the ease required it, to obtain from disinterested persons of acknowledged skill such information and advice in reference to technical questions relative to land values and conditions submitted to them, as might be necessary to enable them to come t'o a correct conclusion, provided the partition was the result of their own judgment after obtaining such information.</p> <p>Id.—Entertainment Given Partitioners by Cotenant.—The mere fact that the partitioners were guests of one of the tenants in common while th.ey were on the property making their investigations, and discussed with her the matter of the proposed partitionment prior to the time that the award was made, is insufficient to avoid the award at" the instance of the other cotenant, where they each testified, and the court found, that neither of them was in any manner influenced in making the award by any entertainment so provided or courtesy so shown them.</p> <p>Id.—Specific Performance of Award—Fairness and Justness of Award.—In this action to specifically enforce the award, the evidence is held sufficient to support the conclusion of the trial court that the award as to the defendant was fair, just, and equitable.</p> <p>Id.—Mistakes of Partitioners in Drawing Conclusions from Facts. Under the provisions of the partition agreement, and in the absence of a showing that the partition was unfairly made, or that the partitioners were guilty of fraud, the award cannot be inquired into for alleged mistakes of the partitioners in drawing conclusions from the facts before them.</p>

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

<p>Evidence—Expert—Error in Rejection of Evidence Cured by Subsequent Testimony.—Where an expert witness was prevented from answering a pertinent question, but was subsequently permitted to testify freely on the subject, the initial ruling of the court is without prejudice to the party calling the witness.</p>

<p>APPLICATIONS for Writs of Certiorari to review awards of the Industrial Accident Commission of the State of California.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Reclamation District—Act Creating Public Statute—Execution op —Injunction to Prevent.—The act creating Reclamation District No. 1500 is a public statute, and the construction of levees provided for by it is the execution of this statute; and injunction will not lie, at the instance of property owners within the district, to prevent the construction of levees called for by the act, or the destruction of others already constructed, on the ground that the work is a private nuisance by reason of the resultant backing up of the water over part of plaintiffs’ lands and an unlawful exercise of the right of eminent domain, damaging their property without compensation first paid therefor.</p> <p>Id.—Contr'ol op Navigable Waters—Power op Government.—The right of control of navigable waters by the government embraces within it not alone the power to destroy the navigability of certain waters for the benefit of others, but extends, in the ease of streams, ■to the power, to regulate and control the navigable or non-navigable tributaries, to the erection of structures along or across the stream, to deepening or changing the channel, to diverting or arresting tributaries; in short, to do anything subserving the great purpose; and, in general, when an act is done, if it does not embrace the actual taking of property, but results merely in some injurious effect upon the property, the property owner must, for the sake of the general welfare, yield uncompensated obedience.</p> <p>Id.—Source op Power.-—The general power of the government over the control of navigable waters, so far as the national government is concerned, is found in the constitutional grant to the United States of the right to regulate commerce with foreign nations and among the states, and the state’s power in this regard is limited only by the supervisory control which the paramount authority may exercise over it. This power over navigable waters and over navigation is essentially an attribute of sovereignty, and some of its forms find expression in the exercise of the police power.</p> <p>Id.—Execution op Police Power.—Owing to the inseparable connection between navigation and flood control, and owing to the further fact that the state is interested in flood control, not alone as affecting navigation, but as affecting its general welfare and benefit in the reclamation of vast domains of land, the exercise of the police power under these circumstances presents a twofold aspect; first, the exercise of that power by the United States for the purposes of navigation alone; second, the exercise of that power by the state for the purpose of reclamation as well as navigation. In both aspects it is beyond question that the acts and conduct of the two governments are referable to the police power.</p> <p>Id.—Drainage and Reclamation op Lands—Police Power.—The drainage and reclamation of lands, apart from any question of navigability, is a legitimate exercise of the police power of the state.</p> <p>Id.—Damage in Execution op Police Power Incompensable.—The state of California is not liable in damages in exercising police power in the control of a non-navigable water drain, or watercourse of the Sacramento River, when in so regulating this flow it causes the water to back against lands which otherwise would not have been affected thereby, with the result that those lands are temporarily flooded in whole or in part.</p> <p>Id.—Legitimate Exercise op Police Power—Eminent Domain— Damages.—Where the police power is legitimately exercised, uncompensated submission is exacted of the property owner if his property be either damaged, taken, or destroyed; but in the exercise of the power of eminent domain compensated obedience for the taking or damaging of his property is the owner’s constitutional right.</p> <p>Id.—Construction of Constitution—Damage to Property.—While it is unquestionably true that the addition of the word “damaged” to our constitutional law governing the exercise of the right of eminent domain gives in many instances a right to compensation which did not formerly exist, it did not, touching the exercise of the police power, give a right of action for damages which theretofore were damnum absque injuria.</p> <p>Id. — Applicability of Doctrine of Damnum Absque Injuria —■ Temporary Damage by Flood Waters.—-The doctrine of damnum absque injuria is applicable to the prospective temporary consequential damage which it may be found -will be inflicted upon owners of lands by the future raising of a flood plane, which floods</p> <p>' are of temporary duration and character, and which raising the land owners may protect themselves against, and which floods, in the progress of the work of a reclamation district in constructing levees, will be taken care of so that future injury will be avoided, all this under the state’s plan of vast magnitude and importance to abate, on the behalf of the whole state, as well as for the benefit of private land owners, including the owners complaining, flood conditions, which, if unchecked, would inevitably lead to the destruction of the navigability of the river in question and to the greater impairment and damage of all the adjacent land.</p> <p>Id.—Watercourse—Sutter Basin.—Whether or not a watercourse exists has to be determined as a matter of law from the evidence in the case; and under all the accepted definitions of a watercourse, Sutter Basin is not one, but a catchment area, principally for the reception of the flood waters of the Sacramento River.</p> <p>Id.—Reports of California Debris Commission—Judicial Notice.— The reports of the California Debris Commission and of state engineers have been adopted by state statutes, of which courts take judicial notice; and the history of the state, its topographical and general conditions, including notorious facts concerning its rivers, are all matters of judicial cognizance.</p> <p>Id.— Surface Waters — Definition of.— Surface waters are those waters from rainfall, melting snows, and springs which seeping or percolating, or vagrantly wandering over the surface of the earth, finally, in obedience to natural law, gather into well-defined channels, where their character as surface waters at once ceases and the waters themselves take on the new character of the body of a defined stream.</p> <p>Id.—Right to Levee Against Flood Waters—Provision for Surface Waters.—A reclamation district’s right to protect a levee against flood waters cannot be questioned; nor is this right impaired by the fact that these surface waters, as they usually do, form some part of the whole volume of water; and a land owner has performed his full duty in such circumstances if he makes adequate provision for the escape of the surface waters alone.</p> <p>Id.—Interference With Natural Drainage—Civil-law Bule.—Notwithstanding the fact that the common-law rules are made the rules of decision in this state, where applicable, the civil-law rule forbidding a lower owner from interfering with the natural drainage of surface waters on to his land from the proprietor whose lands are higher was adopted; but the rule is one that the court has the power to abrogate by adoption of the common-law rule if in its judgment this were the wiser policy to pursue, for, although a rule of property, such a rule is not a vested right in property which may not be taken away without compensation.</p>

<p>APPEAL from an order of the Superior Court of Los Angeles County setting aside a judgment. Paul J. McCormick, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Guardian of Incompetent Person—Stranger in Blood "mat be Preferred—Discretion.—Under section 1763 et seq. of the Code of Civil Procedure, the court has discretionary power, in appointing a guardian of the estate of an incompetent woman, to appoint a nonrelative of the incompetent who was familiar with her business affairs, rather than a cousin who was the nominee of all her relatives.</p> <p>Id. — Evidence — Letter of Former Guardian Requesting Appointment of Successor—Immaterial Error.-—On the hearing for the appointment of such guardian, it is harmless error to admit in evidence a writing made by the deceased husband of the incompetent, at a time when he was her guardian, in which he requested the court, upon his death, to appoint such nonrelative as the guardian, where previous oral testimony as to the husband’s preference had been given without objection.</p>

<p>Will—Executor may Appeal prom Order Revoking Probate.—Where a will has been admitted to probate and the executor is duly appointed and has taken up the administration of the estate, he represents all of the beneficiaries of the will. It then becomes his duty to protect their interests, and as such executor he has the right to Oppose a contest of the will until the final decision thereof; consequently, he may maintain an appeal from an adverse judgment in the lower court.</p> <p>Id.—Executor may Appeal prom Order Refusing Probate.—A person named in a will as executor thereof, who petitions for its probate, is a “party aggrieved” by a decision refusing to admit the will to probate, and may appeal therefrom as provided in section 938 of the Code of Civil Procedure.</p> <p>Id. — Insanity — Insufficient Evidence. — Extreme stinginess, repulsive or filthy personal habits, ill temper, jealousy, a dictatorial and disagreeable disposition, and a propensity to drive hard bargains do not constitute insanity or unsoundness of mind. They have no greater effect than to accentuate the inference of unsoundness founded on other circumstances.</p> <p>Id.—Manifestations of Senile Deterioration.—Attacks of aphasia and physical disabilities showing a considerable degree of senile deterioration, do not of themselves establish the insanity that is essential to render a person incapable of making contracts or a will.</p> <p>Id.—Nature of Insanity Necessary to Avoid Will.—The insanity which will avoid a will must be either insanity of such broad charaoter as to establish mental incompeteney generally, or some specific and narrower form, under which the testator is the victim of some hallucination or delusion. In the latter case the will must have been produced in whole or in part by the delusion or hallucination.</p> <p>Id.—Opinions op Experts as to Insanity—Weight oe Evidence.—The testimony of expert witnesses as to insanity, based on hypothetical questions skillfully framed to call for an answer favorable to the party in whose behalf it is asked,.is evidence the weakest and most unsatisfactory.</p> <p>Id.—Opinions Insueeicientiy Supported by Facts.—When the opinions as to unsoundness of mind, including those of the intimate acquaintances, are based on facts which show neither morbid delusion nor total mental incapacity, which prove nothing more than personal peculiarities and habits, accompanied by physical weakness, occasional lapses or failure of memory, and defective nervous and muscular co-ordination, and it clearly appears that none of these frailties was present at the time of the execution of the will or affected its provisions in any way, the evidence is wholly insufficient to establish the fact.</p>

<p>Landlord and Tenant—Improvements by Lessee—Safe Deposit Vault—Construction op Lease.—A massive safe deposit vault, covering a floor space of twenty by thirty feet, with walls eight feet high, made of solid brick two feet thick set in cement and mortar and having a steel beam roof, sheathed inside and out .with steel sheeting screwed in place, and having a steel door and vestibule, which was erected by a lessee at a cost of three thousand dollars on the floor of the basement of a portion of a building leased for banking purposes, is an “alteration, addition, and improvement” to the premises leased, within the meaning of a clause of the lease providing that all such alterations, additions, or improvements made by the lessee should be the property of the lessor and should remain upon and be surrendered with the premises.</p> <p>Id.—Trade Fixtures.—It is immaterial to the right of the lessor to the vault, under such provision of the lease, that it was simply a trade fixture and its removal could be effected without injury to the premises.</p>

<p>APPEAL from an order of the Superior Court of Alameda County appointing a guardian of a minor child. William S. Wells, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

MOTION to dismiss appeals from orders of the Superior Court of Los Angeles County setting aside a homestead and dismissing a contest to the application to set aside such homestead. James C. Rives, Judge. The facts are stated in the opinion of the court.

<p>APPLICATION for a Writ of Habeas Corpus directed to the sheriff of Sonoma County.</p> <p>The facts are stated in the opinion of the court.</p>

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

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

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

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

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

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

<p>Negligence—Driver of Automobile-^-Injury to Passenger—Erroneous Instruction.—In an action for personal injuries caused by one of the defendant’s electric cars colliding with an automobile in which plaintiff was riding and which was driven by his twenty-nine year old son, it was error to instruct the jury, as a matter of law, that the negligence of the driver of the automobile, if any, was imputable t'o the plaintiff, where there was evidence that the plaintiff had no control or direction mechanically in the driving or management of the machine at the time of the accident, but the same was under the full control and direction of the son, who was an experienced driver of automobiles, notwithstanding the existence of the relationship between the parties and the fact that both were employed by or interested in the same corporation.</p> <p>Id.—Imputable Negligence—Bulb.—In order that the negligence of one person may be properly imputed to another, they must stand in such relation of privity that the maxim qui facit per alium facit per se directly applies, since no other rule is consistent with section 1714 of the Civil Code, wherein it is declared that every one is responsible for an injury occasioned to another by his want of ordinary care, except so far as the latter has, willfully or by want of ordinary care, brought the injury upon himself.</p>

<p>Public Highway—Abatement of Nuisances—Existence of Highway — Findings — Insufficiency of Evidence.—In this action brought to abate alleged nuisances maintained by defendants upon and across a public highway, it is held that the findings decreeing the existence of such a highway cannot be sustained under the evidence.</p> <p>Id.—Strip of Ocean Beach—User According to Custom of Country —Lack of Dedication.—Dedication of a strip of ocean beach as</p> <p>a public highway, which from the nature of the country is of slight use and of less value, is not to be inferred from the act' of the owner in allowing settlers in the vicinity to travel over the strip according to a custom of the country.</p>

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

<p>Will—Revocation op Prior Will by Later—Disposition op Entire Estate.—A later will containing no express revocation of former wills, but which, in fact, disposes of the entire estate, leaving nothing upon which the former will could operate, is, in effect, a revocation thereof.</p> <p>Id.—Inconsistency op Later Will With Prior.—The prior will can be deemed to have been revoked only by reason of the fact that the subsequent will is wholly inconsistent therewith, and would be a revocation if it were effectual to the disposition of the entire estate.</p> <p>Id.—Invalidity op Dispositions op Later Will—Prior Will not Completely Revoked.—Where a portion of the dispositions made by a later will containing no express revocation clause is invalid, and by reason of that invalidity the entire estate is not disposed of, it is, to the extent of the undisposed of estate, not inconsistent with a prior will, and does not completely revoke it.</p> <p>Id.—Probate of Earlier Will After Probate of Later—Proper Practice.—After a will has been probated and another paper of an earlier date is found which constitutes a part of the last will of the decedent together with that already probated, it is not necessary to revoke the former order of probate. The proper practice is to admit the earlier, but later found, will to probate, as constituting, so far as may be, a part of the decedent’s last will. Proceedings already taken would remain effective so far as rights may have vested under them.</p>

Francisco, and from an order refusing a new trial. James M. Troutt, Judge. The facts are stated in the opinion of the court. .

<p>APPEAL from an order of the Superior Court of Los Angeles County rejecting a claim against the estate of a deceased person. James C. Rives, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Will—Contest of Probate—Undue Influence Sole Ground of Contest—Appeal—Due Execution of Will.-—On an appeal from an order admitting a will to probate, after a contest on the sole ground that it was the product of undue influence, the proceedings in probate touching the due execution of the will have no place in the • record, and the order will not be reversed for the failure of the record to establish its due execution.</p> <p>Id.—Order Admitting Will to Probate—Signing by Other Than Trial Judge.—Such order is not shown to be either erroneous or ■ irregular by the mere fact that it was signed by a judge other than the one who presided at the trial of the contest.</p> <p>Id.—Abandonment of Ground of Contest—Submission to Jury— Evidence.—Where the unsoundness of mind of the testator, as a ground of contest, was expressly abandoned by t'he contestant on the trial, it was not error for the court to refuse to submit such question to the jury, or to exclude evidence on the subject.</p> <p>Id.—Directing Verdict for Proponent on Second Trial.—On a second trial of a contest to the probate of a will, based on the ground of undue influence, it was proper for the court to direct' a verdict for the proponent if the evidence adduced for the contestant was not more favorable for him than the evidence offered at the previous trial, which the appellate court had held insufficient to establish undue influence.</p>

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

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

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

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

<p>APPEAL from a judgment of the Superior Court of Sutter County. Emmet Seawell, Judge presiding.</p> <p>The facts are similar to those stated in the opinion in Gray v. Reclamation District, ante, p. 622.</p>