Volume 176 — California Reports

<p>Landlord and Tenant—Lease op Oil Lands—Provision in Lease by Joint Lessors por Forfeiture—Notice to Terminate Tenancy must be Concurred in by All Lessors.—Where in a lease it is provided that failure on the part of the lessees to perform any of the conditions embodied therein for a period of thirty days shall render the lease null and void if the lessors shall elect, a forfeiture of the leasehold interest for breach of conditions can be declared only by the joint or concurrent action of all the lessors.</p> <p>Id.—Construction op Lease.—The provision for forfeiture in such a lease is not a right “reserved,” but a right “created,” by the instrument “in favor of several persons” within the meaning of section 1431 of the Civil Code.</p> <p>Id.—Strict Construction.—Such a condition is also within the provision of section 1442 of the Civil Code that “a condition involving a forfeiture must be strictly interpreted against the party for whose benefit it is created.”</p> <p>Id.—Judgment Quieting Title in Such a Case in Favor op Two op Three Joint Lessors Erroneous.—Where under a lease by three joint lessors, providing for forfeiture for breach of conditions for ‘ thirty days after notification by the lessors, two of the lessors owning an undivided three-fourths interest gave notice and thereafter brought action and recovered judgment against the lessee quieting their title to their undivided three-fourths interest and adjudging the defendant to be still the owner of an undivided one-fourth interest subject to the lease as tenant in common with the plaintiffs, it' was held that there was no foundation for the action or the judg- . ment, and the judgment was reversed.</p> <p>Contracts — Construction or Contracts — Conduct or Parties.— Where the terms of a contract are clear and explicit, the meaning is not doubtful, and there is no latent ambiguity, it cannot' be varied by subsequent conduct of the parties showing their understanding that a right under it was several and not joint, or by surrounding circumstances. The parties must be deemed boimd by the contract, regardless of the results produced.</p>

APPEALS’ from orders of the Superior Court of the City and County of San Francisco denying partial distribution. J. Y. Coffey, Judge. The facts are stated in the opinion of the court.

<p>Workmen's Compensation Policy—Accidents op Employees op Mining Company—Superintendent not Included.—A workmen’s compensation policy covering miners, hoistmen, surface trammen, timekeeper and roustabout, millmen, blacksmith and helper, and cook and waiter, does not cover the occupation of mine superintendent.</p> <p>Id.—Erasures in Policy—Acceptance Without Indorsement op Insurer—Validity op Policy.—An employer under an accident indemnity policy providing that no erasure or change appearing on the policy as originally printed, and no change or waiver of any of its terms, shall be valid unless set forth in an indorsement signed by certain designated officers of the company, cannot question the binding force of the policy accepted with a certain statement stricken out and not bearing such an indorsement where the company stands on the policy as issued.</p>

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

<p>Estates of Deceased Persons—Construction of Wills—Intention of Testator.—A will is to be construed according to the intention of the testator, which is to be ascertained from the" words of the will.</p> <p>Id.—Ordinary Sense of Words Controls.—In the absence of a clear intention to use them otherwise, the words of a will are to be taken in their ordinary and grammatical sense.</p> <p>ID.—Will to be Construed as Whole.—Unless irreconcilable, all parts of a will are to be construed in relation to each other and so as to form one consistent whole.</p> <p>Id.—Words Importing Absolute Disposal Construed as Giving Life Estate Only With Power to Expend During Life.—Where a testatrix gave to her husband by the words of her will “all property of which I die possessed,” and appointed him executor without bonds, and gave him power to sell without any order of court, but' directed that upon her husband’s death the "unexpended portion” of the estate bequeathed should “be given” to certain of her nieces, the estate given to the husband was limited to such part of the property as he might in his lifetime expend, consume, or make use of, and such part of the property as might remain unexpended at his death was to be given to the nieces.</p> <p>Id.—Gifts for Life With Remainder Over as to Unexpended Por- ■ tion—Limitation on Life Tenant’s Power of Disposition.—Under a will which was construed as giving a life estate only to a husband with unrestricted power in his lifetime to use, consume, and expend all or any part of the property, but giving to certain nieces an estate in remainder in the unexpended portion, the husband could not, as of right, give the property away in his lifetime, nor make it the subject of testamentary disposition at his death.</p> <p>Id.—Gift of Life Estate—Rights of Purchasers from Life Tenant. Under a will appointing the husband of the testatrix executor with absolute power of.sale of all her property,,with the right to use, consume, and expend it during his life, but with remainder over in the unexpended portion, at his death, to others, persons dealing in good faith with the husband, as to the property, would be entitled to protection as fully and to like extent as though he were absolute owner in fee.</p> <p>Fraudulent Conveyances and Transfers — Gift During Last Illness—Executor’s Suit to Set Aside for Benefit of Creditors.— A gift made during a decedent’s last illness is, as to the creditors of the deceased, to be treated as a legacy, and when there is a deficiency of asset's to meet the demands of creditors, the property which is the subject of the gift is liable for the debts and obligations of the decedent.</p> <p>Id. — Facts Warranting Suit by Executor to Set Aside Fraudulent Transfer.—The existence of debts and a deficiency of assets with which to pay them are facts sufficient t'o warrant an action by an executor to set aside a transfer of property made by a testator in fraud of his creditors.</p> <p>Id.—Action not Brematurb.—An order of court for sale - of property is not necessary before action by executor to set aside a transfer made by a testator in fraud of his creditors.</p> <p>Id.—Judgment in Executor’s Suit -Setting Aside Fraudulent Transfer—Effect of Such Judgment.—After a judgment in a suit by an executor for the benefit of creditors, setting aside a transfer of property made by t'he testator in his lifetime as fraudulent as against creditors, the executor can sell only such part of the property recovered as may be necessary to pay the debts, upon obtaining an order so to do from the probate court, and the surplus of any funds derived from such sale must be returned to the defendant.</p> <p>Words and Phrases—Fraudulent Transfers and Conveyances—/‘Insolvency” Defined.—A man controlling property out of which he may voluntarily pay his debts, but which for- any reason cannot be reached by process of law and thus be subjected to such payment, is nevertheless insolvent.</p> <p>Id.—Construction of Will—“Unexpended” Defined.—The word “unexpended” in a gift by will of the “unexpended” portion of the estate remaining after the death of the first taker means the portion not' paid, laid out, spent, disbursed, or consumed, and which remains unappropriated in the first taker’s possession and control.</p> <p>Courts—Jurisdiction to Construe Will—Incidental Jurisdiction of Court of Equity.—Conceding that a court of equity will not entertain a suit the sole object of which is to obtain the construction of a will, jurisdiction so to do being vested in the probate court, a court of equity is nevertheless, when necessary to the determination of a question properly before .it, vested with jurisdiction to construe a will as incidental to the equitable relief sought.</p>

<p>APPEAL from a judgment of the Superior Court of the City and County of San Francisco. Geo. 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 Los Angeles County, and from an order denying a motion for a new trial. Curtis D. Wilbur, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Criminal Law — Dangerous or Deadly Weapons—Constitutional Law—First Sentence or Section 5 op Act op 1917 Valid.—The first sentence of section 5 of the act of May 4, 1917 (Stats. 1917, p. 221), making it a felony to attempt to use unlawfully against another, or carry with intent so to use, any dangerous or deadly weapon, is a valid exercise of legislative power.</p> <p>Id.—Possession op Weapon as Presumptive Evidence op Intent to Use—Question not Passed on—Separable Portions op Section. The question of the validity of the second sentence of section 5 of the same act, as to the effect of certain facts as presumptive evidence, not considered, hut even if invalid, its invalidity would not render the first provision void.</p>

<p>Initiative and Referendum—Constitutional Law—Applicability of Referendum Provisions to County Legislation—Mandamus.— A resolution of a county board- of supervisors declaring the necessity for and authorizing the construction of a hall of records, and accepting plans and specifications for the erection of the same, is legislative in character, and where, after the passage of such a resolution, a -proper petition is presented to the board requesting it -to submit the resolution to a vote of the electors, under section 1 of article IV of the Constitution, the board may be compelled by mandamus to submit the question.</p> <p>Id.—Direct Legislation by Counties—Constitutionality of Act of 1911 Enacting Sections 4058 and 4021a of the Political Code.— The act of the legislature of 1911 (St'ats. 1911, p. 577), entitled, “An act to provide for direct legislation including the initiative, referendum and recall by electors in counties by adding two- new sections to the Political Code, to be numbered section 4058 and section 4021a respectively,” does not violate section 24 of article IV of the Constitution, which prescribes that every act shall embrace „ but' one subject, which shall be expressed in its title.</p>

<p>APPEAL from a judgment of the Superior Court of Butte County. H. D. Gregory, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

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

Motion in Supreme Court to reverse judgment of death in a criminal case on consent of the Attorney-General. The facts are stated in the opinion of the court.

<p>APPEAL from the Superior Court of Glenn County. Wm. M. Finch, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

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

<p>Trial—Refusal of Continuance—Surprise and Mistake.—Where in an action to quiet title to certain mining claims the plaintiff introduced in evidence a deed of grant executed by defendant conveying the lands in question to the plaintiff by metes and bounds and thereupon the defendant, claiming that the deed was made by mistake and was intended to convey only placer mining rights and not to include quartz mining claim rights in the property, moved for a continuance of the trial on the ground of surprise and mistake, but it appeared from evidence that the defendant knew of the deed and its contents and had sought to rescind it because his wife, who was his codefendant, objected to it, and, although the continuance was sought for the purpose of securing the attendance of the wife, it was not made to appear that her evidence would have any material bearing on the controversy nor what the nature of her evidence would be, the motion for a continuance was properly denied.</p>

<p>Breach of Promise—Married Man.—A promise of a man who is then married to marry contingent upon his obtaining a divorce is void, and an action for breach of the promise will not lie.</p> <p>In.—Renewal After Divorce—Actionable.—Although a promise to marry contingent upon the promisor obtaining a divorce from one to whom he is already married is void and no action for breach of such promise may be maintained, yet if the promise be renewed after divorce, an action for its breach will lie.</p> <p>D>.—Evidence—Illicit Relations.—In an action for breach of promise of marriage, where seduction is not alleged to enhance damages, evidence of illicit intercourse is not admissible; but where a man has held out the plaintiff to the world as his wife, evidence of their relations is admissible as a fact from which a reasonable inference may be drawn of a promise to marry.</p> <p>Id.—Statute of Limitations—Oral Promises to Mabry.—Section 360 of the Code of Civil Procedure, requiring 'an acknowledgment or new or continuing contract to be in writing to take a case out of the operation of the statute of limitations, has no application to a promise of marriage, in view of subdivision 3 of section 1624 of the Civil Code, which provides that mutual promises to marry may be oral.</p>

<p>APPEAL from a judgment of the Superior Court of San Bernardino County, and from an order denying a new trial. Benjamin F. Bledsoe, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Foreclosure of Mortgage—Appeal—Void Deficiency Judgment.— Although a judgment of deficiency docketed by the clerk in a foreclosure suit may be void because there was no adjudication of a personal liability against the defendant, which would authorize the clerk to docket such judgment, it is nevertheless appealable, because' a void judgment may be appealed from.</p>

<p>HABEAS CORPUS to determine right to Custody of Minor.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Vendor’s Lien—Nonwaiver by Action and Judgment on Purchase-money Note.—Suit by a vendor and the recovery of judgment therein on a promissory note given by a vendee in part payment of the purchase price of real estate does not waive a vendor’s lien unless he has exhausted his remedy by execution.</p> <p>Id.—Issuance and Levy of Execution not a Waiver.—The issuance and levy of an execution on the land subject to a vendor’s lien is not a waiver of the lien, especially when the land has been protected by homestead declaration from ordinary executions.</p> <p>Id.—Lien, How Waived.—To constitute a waiver of a vendor’s lien, there must be some act or omission on the part of the vendor inconsistent with his assertion of the lien and evincing his intention to waive it, and it must be such an act or omission as would render it inequitable to attempt thereafter to assert it.</p> <p>Id.—Form of Judgment of Foreclosure—Redemption.—The code provides the procedure for foreclosure of a lien, and its sections providing for the form of the judgment and for redemption of the property upon foreclosure are to be read into the judgment.</p>

<p>Appeal—Order Staying Execution—When Abstract Question.— An order having been made by the superior court staying an execution, and an appeal having -been taken from such order upon the grqund that the form of the order was insufficient under section 945 of the -Code of Civil Procedure, such appeal presents merely an abstract question after the judgment on which execution was stayed has been affirmed.</p>

<p>APPEAL from an order of the Superior Court of Los Angeles County denying application for appointment of administrator. James C. Rives, 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. W. M. Conley, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

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

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

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

<p>APPEAL from a judgment of the Superior Court of Glenn County. Wm. M. Pinch, 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 Clara County, and from an order denying a new trial. W. A. Beasly, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Executors and Administrators—Bight op Public Administrator to Letters—Assignee op Nonresidents Nominated by Will Without Bight.—Where a testator left Ms estate to a brother and sister, both nonresidents, and appointed them executors, and they failed to apply for letters testamentary, the public administrator’s right to letters of administration with the will annexed was prior to that of a stranger to whom the legatees assigned their interest in the estate, and who thereupon filed the will for probate and applied for letters with the will annexed.</p>

<p>Elections — Contest — Recounting 'Ballots—Presumption.—Where ballots- from a precinct have been counted before the court in an election contest, they become a .part of the record of the contest, and, in view of the presumption that official duty has been regularly performed, raised by Code of Civil Procedure, section 1963, subdivision 15, they are presumed to have been -properly safeguarded by the clerk of the court and preserved intact and in the same condition in which they were found by the court when first taken out of the sealed package and counted, and in the absence of anything in the record to dispel this .presumption, the trial court does not commit error -by overruling objections to the recounting of the ballots.</p> <p>Id.—Recounting of Ballots not Prohibited—Powers of Court.—If the trial court by which an election contest is heard is not satisfied with a count of the ballots before it, there is no reason, legislative or judicial, why it may not cause such ballots to be counted again so as to satisfy itself that no mistake has been made before it in the counting.</p> <p>Id.—Ballots—Marks not Identifying.—Where some of the ballots are marked in the voting spaces with crosses larger than those ordinarily used at elections and appearing as though they might have been made with the blunt end of some article like a pen or pencil-holder, but there is no evidence disclosing the size or character of the stamp supplied by the election officers, and no evidence extrinsic to the ballots themselves showing or tending to show that the manner of marking the ballots was intended -by the voters as a means of facilitating an identification of the ballots, it cannot be said that the rulings of the trial court allowing them to be counted were erroneous.</p> <p>Id.—Marks Caused by “Offset" in Folding.—A mark in the form of the upper half of a cross made apparently by an offset from . folding the ballot when the stamping ink was not dry does not require the rejection of a ballot.</p> <p>Id.—Crosses Opposite Names of Two Opposing Candidates.—A ballot showing crosses opposite the names of two opposing candidates is properly not counted for either.</p> <p>Id.—Impression Caused Probably by Offset.—Where a ballot was distinctly marked with a cross opposite the name of one candidate but there was a slight impression opposite the name of the other candidate, which might have been due to an offset in folding, it was not error to count the ballot in accordance with- the distinct impression.</p> <p>lb.—Marks not Intended for Identification.—Where a ballot was marked with a cross in the printed space for the name of a candidate and also in the voting space opposite the same candidate’s name, but there was nothing to indicate that the former mark was intended as an identification mark, the ballot was properly counted.</p> <p>Id.—Possible Errors Offsetting Each Other.—Where the rejection by the court of a ballot for the successful candidate was equalized by the rejection of a ballet for the contestant similarly marked, the possible errors offsetting'each other are unnecessary to be considered.</p>

<p>APPEAL from an order of the Superior Court of the City and County of San Francisco allowing attorney fees for services in probate proceeding. Thomas F. Graham, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>MOTION to dismiss an appeal.</p> <p>The facts are stated in the opinion of the court</p>

<p>APPEAL from au order of distribution of the Superior Court.of Alameda County. "Wm. S. Wells, 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.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Estates op Deceased Persons—Will—Disinherison op Illegitimate Children.—Where a will, after giving all the testator’s property to his wife, recites that the disposition was purposely made because he knew that she would provide for their son, and then provides that should any other person or persons present themselves and claim to be “heirs,” he gave to them the sum of five dollars, the illegitimate children of the testator, acknowledged in writing to be such, are not entitled to the right to inherit as omitted children under section 1307 of the Civil Code, since the testator being presumed to know the law, when speaking of persons claiming to be “heirs” must have had' in- mind only persons claiming to be children or their issue.</p> <p>Id,—Omitted Child—Eight op Succession—Conditions.—Under section 1307 of the Civil Code, two conditions must concur to entitle a child to succeed as in ease of intestacy. There must be an omission to provide for the child in the will, and the will must fail to show that the omission was intentional.</p>

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

<p>APPEAL from a decree of distribution of the Superior Court of the City and County of San Francisco. Thomas F. Graham, Judge.</p> <p>The facts are stated in .the opinion of the court</p>

<p>Street Improvement Law—Foreclosure of Assessment Lien—Bail-road Property—Use for Public Purposes—Insufficiency of Evidence.—In this action to foreclose a lien for street improvements assessed against railroad property, the evidence is examined and held insufficient to sustain a finding that certain land included in the assessment district was not used for public purposes.</p> <p>Id.—Invalid Sale of Bailroad Bight of Way.—Prior to amendment of the general street law by Statutes of 1911, p. 742, section 20, subdivision 11, -while land of a railroad company might be assessed to pay for work upon an abutting street, there was no authority to sell, in foreclosure of the lien, both the fee and the right to operate the railroad.</p> <p>Railroads — Right of Wat of Railroad Defined. — The right of way of a railroad company is not the mere right to operate trains over lands, and cannot arbitrarily be confined to an easement on just enough lands for running trains.</p> <p>Id.—Basement—Merger of Right of Wat in Pee.—Where the fee of land' rests in a railroad company, a “right of way,” in its technical sense, over the land is merged in the fee, as no person may have an easement in land owned by himself.</p>

<p>Husband and Wipe—Proceeds op Sale op Crop—Separate and Community Property Mingled.—Where a prune orchard, which was the separate property of a wife, adjoined a larger one which was community property of her husband, who managed the entire property and sold the prunes and took the proceeds, consisting of cash to the amount of a little less than one-half the purchase price, and a promissory note for the remainder, which note was taken up the next day by the maker and a new note in exchange therefor issued to the wife, the trustee in bankruptcy of the husband, having thereafter brought suit to recover the proceeds of the note, from one to whom she had indorsed it for collection, she was entitled to intervene and resort to the fund reeeivechby her husband for the entire crop and to have a trust therein enforced in her favor to the extent of her share in the crop at the price paid by the purchaser.</p> <p>Ib.—Mingling op Separate and Community Property — Absence op Fraud on Creditors.—In the absence of fraud on the creditors, the separate property was not so mingled with the community property in such a case as to become subject to the husband’s debts and pass to the trustee in bankruptcy.</p> <p>Id.—Jurisdiction op State Court.—A trustee in bankruptcy having sued in a state court to recover a fund as property of the bank, rupt, and the bankrupt’s wife having intervened, alleging ownership of a part of the same fund, the state court was as competent to determine the question of title as the United States district court, and its jurisdiction to do so was at least equal to and concurrent with that of the latter court.</p>

<p>Lease—Deposit of Money as Security — Liquidated Damages—Void Provision fob Forfeiture of Deposit on Default.—Where a lessee deposited three thousand dollars with the lessor as security for performance of the lease, a provision that the deposit should be forfeited on default of the lessor in payment of rent or performance of any of the covenants was void under Civil Code, sections 1670 and 1671, as an attempt to determine in advance the amount of damage to be paid for the breach of an obligation, where it would be neither impracticable nor difficult to fix the actual damage.</p> <p>Id.—Agreement for Deposit of Money as Security Valid.—The agreement for the deposit of the money as a guarantee for the payment of rent and performance of covenants was for a legal purpose, and valid and enforceable.</p> <p>Id.—Right of Lessor on Default of Lessee. — In such a ease the lessor on default in payment of rent had the right to retain the money deposited and apply it on the rent until exhausted.</p> <p>Id.—Lessee’s Right to Security Terminated—Waiver by 'Conduct.— Where the lessee in such a case failed to pay rent and the lessor obtained a judgment for rent due and also for restitution of the premises and cancellation of the lease, and afterward defended a suit for the recovery of the deposit on the ground' that the whole sum had become forfeited and was his own property, and did not ask -that he be allowed to retain the amount which would have satisfied his judgment for rent (five hundred dollars), he was bound by bis own judgment terminating the lease, and his conduct in the defense of the action for the deposit was a repudiation of the security and a waiver of his right to retain the deposit as security for rent subsequently accruing, and he therefore held the fund as bailee for the lessee, whose assignee was entitled to recover it.</p> <p>Id.—Contracts—Illegality.-—Where one of the defenses to an action by the assignee of the lessee to recover such a deposit was that although the lease provided that the building was to be used as a lodging-house, it was in reality intended by the lessee, with the knowledge and consent of the lessor, to use it as a house of prostitution, but the court found that although this was the original intent, the premises never were so used and the intention was abandoned by the lessee and never consummated, the asserted illegality was in the lease and not in the right growing out of its premature termination by the judgment (for cancellation and restitution), and the doetrine that one cannot recover upon a contract against public .policy does not apply.</p> <p>Id.—Illegality of Contract — When not a Bar. to a Recovery.— Where an illegal purpose of a contract has never been accomplished but has been abandoned; the illegal contract has never been executed, and there may be a recovery, provided such recovery does not of itself accomplish the illegal purpose, or require a resort to the illegal part of the contract for its support.</p>

<p>Landlord and Tenant—Action for Rent—Pleading—Sufficiency of Complaint.—In an action to recover rents due upon a lease, which, contained' no conditions precedent to be performed by the lessors in order to impose upon the lessee the obligation to pay the rent, except the delivery of possession of the property and the enjoyment thereof by the lessee during the time for which the rent sued for accrued, the complaint sufficiently alleges performance of such conditions by alleging the execution of the lease, that defendant took possession, had remained in possession, had failed to pay the rents due, and that the same remained' unpaid.</p> <p>Appeal—Purposes of Delay—Damages.—Where there is no merit in an appeal and it has no object other than vexation and delay, it is proper to exercise the power given by section 957 of the Code of Civil Procedure to add to the costs such damages as may be just.</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>Workmen's Compensation Act—Death of Laborer upon Building— Fall from Scaffold—EIpileptio Fit—Injury not Arising Out of Employment.—Under section 12 of the Workmen’s Compensation Act, allowing compensation to the dependents of an employee only where the proximate cause of death is a personal injury sustained by him by accident arising out of, and in the course of, his employment, an injury resulting in the death of a laborer employed in the erection of a building while at work upon a scaffold thirty-nine feet above the ground and properly guarded by a rope along its outer edge, as the result of an epileptic fit, in which he fell to the surface of the scaffold, rolled ofE the edge, and thence to the ground, is not an injury arising out of his employment, since the proximate cause of the fall was the epileptic fit, with which his employment had no causal connection.</p>

<p>APPEAL from an order of the Superior Court of Fresno County. Geo. E. Church, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Guardian and Ward—Eight or Nomination or Minor Over Sixteen Years.—A minor over the age of sixteen, years has the right to nominate her guardian, and such nominee, if approved by the court, must be appointed.</p> <p>Id.—Appeal erom Order Appointing Guardian — Moot Question.— Where after the taking of an appeal from an order appointing a guardian and before its submission the minor becomes of age, the question whether the order was properly made becomes a moot question.</p>

<p>Common Law as Bulb or Decision—Construction or Political Code, Section 4468.—Section 4468 of the Political Code, making the common law of Eingland the rule of decision in all courts of the state so far as not repugnant to or inconsistent with the constitution of the United States or the constitution or laws of this state, had in contemplation the whole body of common-law jurisprudence as it stood, influenced by statute at the time when the code section was adopted, and embraced equity also in its contemplation.</p> <p>Id.—Suing in Forma Pauperis—Powers or English Court.—The power to remit fees was one of the inherent powers of the English courts quite independently of statute.</p> <p>Suing in Forma Pauperis—Powers or Superior Court.—The power in this state to admit suitors m forma pauperis exists in our courts of general jurisdiction without statute.</p> <p>Id.—Justices’ Courts—Construction or Section 91, Code or Civil Procedure.—It is quite plain that the legislature by this section, recognizing the power of court's of record to admit suitors in forma pauperis expressly conferred the power upon inferior courts of limited jurisdiction with the design to save all question.</p> <p>Id.—Powers or Court not Curtailed by Statute.—Statutes, such as section 4295 of the Political Code, and other general statutes dealing with the collection and disposition of fees, have reference only to cases where the court has not remitted- the fees and are neither individually nor collectively susceptible of the construction that they were designed- to deny to the courts the exercise of their inherent power to remit fees.</p> <p>Id.—SurnciENOY or Facts—Attorney’s Contingent Interest.—Information and belief of the judge that an attorney has a contingent interest or fee dependent on the outcome of the litigation does not justify refusal of permission to sue in forma pauperis in a proper case. •</p> <p>Id.—Bight to Jury Trial.—One who is permitted to sue without payment of court fees is not by their remission deprived of his right to a trial by jury.</p> <p>Id.—Entitling Motion Papers.—-A notice of motion for leave to further prosecute in forma pauperis is not misleading - because entitled as a notice of motion “for leave to sue.”</p> <p>Id.—Use in Petition or Term “Forma Pauperis.”—The use in the moving papers of the term forma pauperis sufficiently identifies toe motion to be made, although' those words are not found in any statute.</p> <p>Id.—Eight to Prosecute Action.—One who has paid the original filing fees on commencing an action is not thereby debarred from the right to apply for a remission of subsequent fees.</p> <p>Id.—Affidavit of Merits.—An affidavit of merits is not a prerequisite to a motion for leave to prosecute an action in forma pauperis.</p>

<p>Husband and Wipe—Deed—Consideration—Sufficiency op Evidence. In this action brought under the McEnerney Act to declare and establish plaintiff’s title to a parcel of land, wherein certain persons claiming to be the devisees of the deceased wife of the plaintiff appeared and opposed the plaintiff’s claim, it is held the evidence is sufficient to support the finding that the real consideration for the deed from the husband1 to the wife under which the defendants claimed ownership was love and affection only is supported by the evidence.</p> <p>Appeal—Upholding of Findings—Grounds.—Where the memorandum filed in the court below as to its views concerning the insufficiency of the evidence to support the findings does not purport to state all the reasons therefor, on appeal the findings will be upheld if there is any reasonable ground upon which they can be supported.</p>

<p>Workmen’s 'Compensation Act—Injury to Railroad Employee—Industrial Accident Commission—Jurisdiction—Interstate Commerce — Carrier op United States Mail — Federal Employers’ Liability Act.—A railroad company transporting United States mails between different states is engaged in interstate commerce, and where an employee of such a railroad company is injured while delivering mail pouches, the act of Congress known as the Federal Employers’ Liability Act is applicable, and the Industrial Accident Commission of the state is without jurisdiction to make an award against the railway company.</p>

<p>APPEAL from a judgment of the Superior Court of Marin County, and from an order denying a new trial. Edgar T." Zook, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>APPEAL from a judgment of the Superior Court of Napa County. Henry C.' Gesford, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Negligence — Railroad — Action for Death — Accident at Street Grossing—Contributory Negligence.—Where a train running in a city at a speed that amounted to negligence, struck and caused the death of one who was driving over a street crossing, the deceased who went on the track without stopping to look and listen, and who did not hear or disregarded sharp blasts of the engine whistle which were given to indicate danger, was chargea-ble with contributory negligence precluding recovery unless there was also' evidence that the fireman of the engine who had discovered the approach of the deceased and realized' that the latter did not intend to stop or was unaware of his danger neglected to signal the engineer to apply the emergency brake, and that by reason of this neglect the accident happened.</p> <p>Id.—Insufficient Evidence—The evidence in the case is examined and found insufficient to prove negligence.</p> <p>Id.—Railroad—Place of Danger—Duty Toward Persons Approaching.—When a person is approaching danger from a moving train and reasonable warning of the danger has been given from the train, those in charge of the engine do not act unreasonably in not presuming that he will continue his approach, when it is obvious that' he could at any time, with the least care, stop and avoid danger.</p> <p>Id.—Railroad—Bast Clear Chance—Negligence of Both Parties.— The doctrine of “last clear chance” cannot govern where both parties ate contemporaneously and actively in fault, and by their mutual carelessness an injury ensues to one or both.</p> <p>Id.—Evidence—Burden of Proof.—The burden is on the plaintiff to prove that the defendant after seeing the injured person in a position of danger failed to take proper care to avoid injuring him.</p> <p>Id.—Railroad — Contributory Negligence as a Bar to Recovery.— Where the negligently fast speed of a train and the negligent im attention of the injured person each contributed to and caused the injury, and such negligence of both continued and contributed actively to the result up to the very moment of the collision, the plaintiff cannot recover for the injury caused. '</p>

<p>Pleading—Counterclaim not Cross-complaint.—A pleading by defendant setting up a cause of action arising out of the transaction set forth in the complaint as the foundation of the plaintiff's claim is more accurately termed a counterclaim than a cross-complaint.</p> <p>Sales—Personal Property—Destruction Before Full Payment of Purchase Price—Liability as Between Seller and Purchaser. Where, under an agreement to sell personal property, possession is delivered to the purchaser but title retained in the seller until payment of the purchase price, the loss in case of destruction of the property without fault of either party falls on the seller.</p> <p>Id.—Bight to Purchase Price of Property Destroyed.—Upon an executory agreement of sale where title is retained in the vendor although possession is given to the buyer, the vendor, in ease of the destruction or extinction of the subject matter without fault of either, cannot recover any balance óf the purchase price remaining unpaid, and is liable to the buyer for the repayment of the portions of the price previously paid.</p> <p>Id.—Liability of Purchaser for Profits.—Although the purchaser is not liable to the vendor for the purchase price of property accidentally destroyed while title remains in the seller, he must account for profits made by him from the use of the property while in his possession under agreement for sale.</p> <p>Id.—Sale of Newspaper Boute — Suspension of Newspaper.—The foregoing rules applied in case of an executory agreement for the sale of a newspaper route, consisting of the right to sell and deliver a daily newspaper on certain streets, in a ease where the newspaper discontinued publication before the arrival of the time for full payment of the purchase price.</p> <p>Appeal—-.Harmless Error.—A technical but unprejudicial variance is not cause for a reversal of a judgment.</p>

<p>APPEAL from the Superior Court of Stanislaus County. W. H. Langdon, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Employer and Employee — Negligence of Foreman — Action for Death of Employee—Evidence Sufficient.—In an action for the death of a workman who was killed by the explosion of dynamite left over from an unexploded blast in a hole which he was ordered by the foreman to clean out preparatory to a new blast, where it was shown that the foreman, without the knowledge of the deceased, had set off a blast in the hole the night before which had not fully exploded, and that in setting the deceased to work he not only gave him no warning of danger of an explosion but expressly assured him there was no such danger, there was sufficient evidence to go to the jury on the question of negligence.</p> <p>Id.—Fellow-servant — Foreman — Liability of Employer.—A foreman who was employed to superintend the work and give orders to the deceased, who was subject to his orders, was the representative of the employer and not a mere fellow-servant of the deceased, and his negligence was the negligence of the employer.</p> <p>Id.—Death Caused by Negligence—Statutory Bight of Action — Dependency not Essential.—The right of action given by section 377 of the Code of Civil - Procedure for the benefit of heirs exists regardless of their condition as to dependency, and is not a cause of action created by section 1979 of the Civil Code.</p> <p>Id.—Alien Nonresident as Plaintiff.—That the plaintiff is a nonresident alien is immaterial in an action under section 377 of the Code of Civil Procedure, and the court is not to be understood as intimating that section 1979 of the Civil Code excludes such an alien.</p> <p>War—Alien Enemy—Question First Suggested on Appeal.—In an action by an administrator on behalf of the mother as heir of a decedent to recover damages for the latter’s death, where the administrator appealed from an erroneous judgment of dismissal, and it was suggested that the appeal must be dismissed because it was claimed that the mother was a nonresident alien enemy, the court refused to dismiss the appeal, because, even conceding the existence of a state of war with Austria-Hungary and the fact of the mother’s status as an alien enemy, the rights of a nonresident alien enemy are simply suspended until the cessation of hostilities, and a dismissal of the appeal would be, in effect, an affirmance of the erroneous judgment perpetually barring the mother from pursuing her claim, while a reversal and remand to the lower court will leave the defendant at liberty to urge his objections there by plea or otherwise.</p>

<p>Negligence — Action fob Death of Child — Automobile Accident— Evidence Sustaining Verdict.—In an action for the death of a child through being struck by an automobile, on a city street, where there was evidence that the defendant and another driver were racing at a rate of speed dangerous and exceeding that permitted by the city ordinance, although the testimony regarding the accident contained many contradictions, it was sufficient to support a verdict for the plaintiff.</p> <p>Id.—Contributory Negligence—Instructions—Issue Introduced by Dependant on the Trial.—Although the defendant’s answer specifically denied negligence on his part and pleaded as an affirmative defense that the accident on which an action for the death of the plaintiff’s child was founded was caused exclusively by the negligence of the child, the defendant, who, on the trial, introduced evidence to show negligence on the part of the deceased boy and also asked for a number of instructions, which were given, on the law of contributory negligence, tried1 the case thereby upon the theory that contributory negligence was in issue and therefore he could not afterward complain on appeal that the pleadings raised no issue of contributory negligence and that, therefore, the court erred in instructing the. jury that “the defendant’s claim of contributory negligence on the part of the deceased child presupposes the existence of negligence on the part of defendant.”</p> <p>Id.—Crossing Streets—Duty op Pedestrians and Drivers op Automobiles.—Pedestrians crossing a street have a right to assume that drivers of automobiles will keep a, reasonable lookout and exercise ordinary care to avoid accidents, and pedestrians are also bound generally to look after their own safety and use due care when crossing a highway where vehicles are to be looked for.</p> <p>Id.—Damages Excessive.—A verdict of ten thousand dollars for the death of a child is excessive, and the judgment should be reversed where the evidence at the most shows that the deceased was a healthy child, six and a half years of age, loving and dutiful toward his parents, and there was no averment or proof of special damage nor anything to show that the pecuniary value of the child to his parents would have been any greater than that of the ordinary boy of his age; and even conceding that the child would have been of help to his parents after minority, which is only conjectural, the verdict is still excessive.</p>

<p>APPEAL from a judgment of the Superior Court of Santa Barbara County, and from an order denying a motion for a new trial. Curtis D. Wilbur, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>APPLICATION for Writ of Mandate against J. H. Zemansky, Registrar of Voters of San Francisco.</p> <p>The facts are stated in the opinion of the court.</p>

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

<p>Negligence—Personal Injuries—Action for Damages—Evidence— Poverty of Plaintiff—■ Mental Suffering.—Evidence of plaintiff’s poverty in an action for damages for personal injuries is inadmissible, and may not even be considered as a part of mental suffering for -which damages may be awarded.</p> <p>Id.—Instructions—Automobiles—One Machine Towing Another— Due Care.—One has a right to tow an automobile on a city street by means of another machine, provided he exercises due care for the safety of others; and in an action for damages for injuries sustained by a pedestrian by tripping over the tow rope, what is due care by the person in charge of the machine is a question for the jury based on the facts and circumstances of the particular case.</p> <p>Id.—Instructions—Automobile—Use op Tow Eope—Duty to Warn ' Others op Obstruction.—In an action to recover damages for personal injuries sustained by a pedestrian through tripping over a rope used in towing one automobile by another, an instruction to the effect that the use of the rope placed a burden on the .defendant to warn others of the obstruction was error, as the question ■whether or not such warning was necessary depended upon surrounding conditions, the presence or absence of sufficient light at the street crossing where the accident occurred, the gize and color of the rope, and other pertinent facts in the possession of the jury.</p> <p>Id.—Negligence op Plaintiff in Issue.—In such an action the negligence of the plaintiff being in issue, it was error to instruct the jury that, in the exercise of due care in crossing between the two vehicles, she was not bound by the presence of the rope, unless she observed it, or it was called to her attention, was error, as whether or not she was negligent in not seeing the rope was a matter to be decided by the jury.</p> <p>Id.—When Error not Cured.—An instruction in such case that the towing of an automobile by a rope is in itself lawful if- due care , is exercised does not cure the error in the charge that due care required a warning to be given regardless of the contingency that the jury might find a warning unnecessary in this particular case.</p> <p>Id.—Evidence — Impeachment of Witness — Testimony as to Col lateral Pact.—-In such an action, where the driver of the rear car had on cross-examination denied that, while he was taking the injured plaintiff home, he had stated that four other persons had tried to cross between the two machines before they reached the-corner where the accident occurred, it was error to permit the plaintiff to be recalled and testify over objection to the contrary, as the latter testimony was as to a collateral fact which could not be used to impeach the driver.</p> <p>Id.-—Similar Instances op Negligence.—Negligence or the absence of it cannot be proved by similar instances.</p> <p>Id.-—Instructions—• Measure op Damages — Mental Suffering — ' Prospective Future Suffering.—In view of a correct instruction given as to the right of the jury to award damages for pain and physical and mental suffering which they might find the plaintiff was “certain to suffer in the future,” a further instruction as a continuation of the same instruction, that the mental worry and distress, if any, which one suffers “or may suffer by reason of his physical injuries are, in contemplation of law, component parts of his mental sufferings for which damages may be awarded,” does not violate the rule that it is not permissible to allow a recovery for “future suffering” which is not certain to occur; as the additional matter merely explains to the jury what mental suffering comprehends and that it is one of the elements to he considered.</p> <p>Id.—Degree oe Negligence.—The law does not recognize degrees of negligence in actions for personal injuries, and an instruction that conveys the idea that although the plaintiff was guilty of contributory negligence she is not barred from recovery if her negligence was slight is erroneous.</p> <p>Id.—Contributory Negligence.—Negligence is the failure to exercise ordinary care, and any want on the part of the plaintiff of the care which is appropriate to the circumstances is negligence, and if it be one of the proximate causes of the injury, will prevent a recovery.</p>

<p>APPEAL from an order of the Superior Court of San Bernardino County dismissing an action and from the judgment entered thereon. Frank F. Oster, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Estates op Deceased Persons—Will—Eight op Widow.—Where a testator declared in his will that all his estate was community property and that he realized that his wife was entitled to a full one-half of all his estate as her lawful share of the community property, and that he intentionally made no other or further provision for her, and then devised and1 bequeathed his one'-half thereof to others, she is entitled to have distributed to her a full one-half of all the property belonging to his estate, regardless of whether it was his separate or community property.</p> <p>Id.- ^Community and Separate Property—Laws op Other States— Presumption in Absence op Proof.-—In the absence of evidence concerning the laws of other states respecting community and separate property of married persons, it will be assumed that the laws are the same as those of this state.</p>

<p>Estates or Deceased Persons — Executors and Administrators — Distribution or Estate — Contest — Parties.—An administrator of an estate, as such, has no interest in a controversy to determine rights of inheritance.</p> <p>Id.—Distribution -—Parties .to Contest — Administrator as Pabtt in Individual Capaoitv.—"Where, however, an administratrix filed a petition for distribution to herself in her individual capacity, alleging that she is the sole heir, and her heirship (though not sole heirship) is admitted by a counter-petition, filed by a guardian for minors, who claim to be children and heirs of the deceased, and the ease was tried upon the theory that the administratrix had appeared- in her individual capacity, contesting the right of the minors to inherit, she was ,deemed to have waived the objection that she was not a party interested.</p> <p>Id.—Appeal—Unprejudicial Error.—In such case the minors, who claimed the right to inherit, could not be prejudiced, by the irregularity, which, in case of a new trial, could be corrected.</p> <p>Id.—Husband and Wife—Dissolution of Marriage—Interlocutory Decree—Death Before Time for Final Decree.—Where, in an action for divorce, an interlocutory decree was rendered in favor of the husband, and the latter died before the time for final decree, the marriage relation existing between them was not dissolved by-the interlocutory decree, but by the death of the husband.</p> <p>Id.-—Parent and Child—Legitimacy of Children.—Under section 194 of the Civil Code, providing that all children of a woman who has been married, born within ten months after the dissolution of the marriage, are presumed to be legitimate children of that marriage, where an interlocutory decree of divorce had been entered in favor of a husband, who died thereafter and before the time for final decree, twin children of the surviving wife born within ten months after the death of the husband, are presumed to be the children of the deceased husband.</p> <p>Id.—Presumption of Legitimacy of Children — Rebuttal of That Presumption.—The presumption that when a woman has been married her children born within ten months after dissolution of marriage are children of that marriage may be rebutted by evidence showing that the husband was incompetent, or entirely absent, so as to have no intercourse or communication of any kind with the mother, or absent at the period during which the child or children must in the course of nature have been begotten, or only-present under such circumstances as afford clear proof that there was no sexual intercourse.</p> <p>Id.—Legitimacy of Children — Evidence — Appeal — Objections to Evidence Rendered Immaterial by Instructions .^-Where the jury, in a contest of the heirship of children, was instructed that the evidence was insufficient, to justify a finding that the husband of the mother was impotent or that he was entirely absent, so as to preclude intercourse or communication with the mother, or that he was absent at the period during which the children must have been begotten, and that the sole question for the jury to pass upon was whether his presence and meetings with his wife on the occasion of conceded visits were under circumstances which clearly established that no sexual intercourse was had between them, an appellate court, in reviewing alleged errors, is not concerned with evidence, even though incompetent, which tended to prove the impoteney of the husband, or his absence to an extent that precluded intercourse or communication, or that he was absent at the period during which the child must have been conceived, unless it also bears upon the question submitted to the jury that he was present only under circumstances that afforded proof that there was no sexual intercourse.</p> <p>Id.—Evidence—Burden op Proop op Nonaccess op the Husband.—■ One who insists on the illegitimacy of a child born in wedlock must prove nonaccess of the husband by evidence other than the fact that he and his wife did not live together, or even that she was living with another. Where the communication between husband and wife was such as to have afforded opportunity for sexual intercourse, whatever probabilities exist, no evidence can be admitted to show • that any other than the husband was the father or probably the father of the wife’s child.</p> <p>Id.—Evidence—Inadmissibility op Proop op Birth of Prior Illegitimate Child.—The admission of evidence that about five months before the date of an interlocutory decree of divorce, the wife gave birth to an illegitimate child, and that the husband knew that fact, was erroneous, even though offered only as a circumstance tending to show the destruction of the love and affection of the husband for the wife and, as a consequence, the absence of sexual intercourse between them on the occasion of subsequent conceded meetings. All evidence with reference to the paternity of a prior illegitimate child and that another than the husband was its father was inadmissible and its admission prejudicial.</p> <p>Id.—Evidence — Interlocutory Decree op Divorce Admissible.—In a contest of the heirship of children, an interlocutory decree of divorce between the mother of the children and her deceased husband was admissible for the purpose of negativing the presumption under subdivision 5 of section 1962 of the Code of Civil Procedure, that the issue of a wife cohabiting with her husband, who is not impotent, is legitimate, the decree being a judicial determination that at the time the children were begotten the wife was not cohabiting with the husband, that is, dwelling with him as his wife; and also, for the purpose of tending to show the improbability of their indulging in an act which, in the absence of a reconciliation, must be deemed essentially immoral.</p> <p>Id.—Instructions — Interlocutory Decree op Divorce — Presumption op Legitimacy.—An instruction that the presumption of intercourse between husband and wife after an interlocutory decree of divorce is not nearly so strong as before the entry of such decree, and that where an interlocutory decree' is obtained on the ground of desertion, that fact decreases somewhat the presumption of legitimacy declared by sections 193 and 194 of the Civil Code, was erroneous, it being the province of the jury alone to determine, under all the circumstances, what weight should be accorded to the fact that at the time the children were begotten an interlocutory decree of divorce had been granted.</p> <p>Id.—Evidence—Declarations and Mutual Conduct of Husband and Wipe.—It was not error to admit evidence of the conduct of the husband and wife toward each other and of their declarations connected with such conduct, objections going more to the weight than to the competency of the testimony.</p>

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

<p>Pleading—Lease—Breach of Covenant—General Demurrer—Nonperformance by Plaintiff — Prevention of Performance Inferred.—In an action to recover moneys paid for the execution of a lease of certain oil lands, upon the ground, alleged in the complaint, that the defendant was neither the owner nor entitled to possession of the leased premises and had not delivered possession, the objection that the complaint failed to allege performance of conditions of the lease on the part of plaintiff could not be urged by general demurrer, as the ultimate fact of prevention by the defendant of performance can be inferred from the allegation of his failure to deliver possession.</p> <p>Id.—Quiet Enjoyment—Breach of Covenant by Lessor—Failure to Demand Possession.—Conceding that such an 'action was in its nature an action for breach of an implied covenant for quiet enjoyment, an allegation of demand for possession was unnecessary, since, if the defendant was neither the owner nor entitled to posses- ' sion, such demand would have been futile.</p> <p>Id.—Breach of Covenant—Notice to Lessor—Eviction by Paramount Title.—Suit to quiet title against the lessee by the true owner is the equivalent of an eviction; and in such ease uotiee by the lessee to the lessor is unnecessary, and it is immaterial that the paramount title has not been established by judgment.</p> <p>Lease—Quiet Enjoyment—Breach of Covenant—Eviction by Paramount Title—Burden of Proof.—In an action by lessee against lessor for breach of covenant for quiet enjoyment, where plaintiff relies on a suit to quiet title by the alleged true owner as the equivalent of eviction by paramount title, but fails to allege either notice by the lessee to the lessor or that the paramount title was established by judgment, the burden of proof is on the lessee to prove that the paramount title is in the one who brought the suit to quiet title and not in the lessor.</p> <p>Id.—Lease of Oil Lands—Quiet Enjoyment—Covenant, What Constitutes.—No particular words need be used in a lease to constitute a covenant for quiet enjoyment; an express agreement in a lease of oil lands that the lessor will protect the lessee against any party or parties on any contest ever arising as to the ownership of the land, coupled with an agreement to place the land “at the disposal” of the lessee, clearly intended that the lessee should not be disturbed in his possession and use of the land.</p> <p>Id.—Pleading—Quiet Enjoyment—Covenant—Setting Out Lease in Full—Demurrer.—A complaint which incorporates the whole lease, setting out particular covenants which in themselves are suffi- • cient to constitute a covenant for quiet enjoyment, alleges the existence of such a covenant with sufficient clearness, as against a general demurrer, though it might have been subject to special demurrer for uncertainty.</p> <p>Id.—Sufficiency of Complaint.—A complaint by a lessee which alleges that the title and right to possession were not in the lessor, but in a third party, who brought suit against the lessor and the lessee to quiet title, sufficiently alleges a breach of a covenant for quiet possession contained in the lease.</p> <p>Id.—Lease of Oil Lands—Breach of Covenant—Action by Lessee— Amended Complaint—Performance by Lessee.—Where a lease of oil land requiring the lessee, as one of its provisions, to begin immediately the erection of a derrick upon the premises, was consolidated with another lease executed a few days later, giving the lessee three months within which to begin the first derrick, and three days later suit was commenced by the lessee against the lessor for breach of a covenant for quiet enjoyment and more than two years after the commencement of the action, the lessee, by amended complaint, set up a cause of action based on the covenant for quiet enjoyment in the second lease, under which the lessee had three months within which to commence work, and the breach alleged consisted of a constructive eviction by the bringing of a suit by the owner of paramount title against both the lessor and lessee, which suit was commenced within seven days after the execution of the consolidated lease, the plaintiff was able to state a cause of action without averring performance on his part.</p> <p>jld.—Statute of Limitations.—In such a case the statute of limitations did not run until four years after the execution of the consolidated lease.</p>

<p>Costs—Security by Nonresident—Exception to Sureties.—Seetion 1036 of the Code of Civil Procedure does not authorize the service of exception to the sureties in an undertaking for security for costs given by a nonresident plaintiff, the only remedy, if the security given is insufficient, being that the court may order a new or additional undertaking.</p> <p>Id.—Insufficiency of Security—Order for Additional Undertaking —Failure to Give.—When an order for additional security by a nonresident is made, and none is given, the authority of the court under Code of Civil Procedure, seetion 1037, to dismiss the action is permissive and discretionary, and not mandatory.</p> <p>Wills—Contest After Probate—Noncontesting Clause in Will.— A clause in a will declaring that any legatee or devisee contesting the will shall receive no part of the estate does not prevent any person interested from maintaining a contest, and the entry by the clerk of the default of a contestant for failure to answer the cross-complaint of an executor, which attempts to set up such a clause as a bar to a proceeding to revoke the probate of the will, does not estop the contestant from proceeding with the cause, it being immaterial whether such a cross-complaint be answered or not.</p> <p>To.—Noncontesting Clause—Insanity or Undue Influence.—If a will is invalid at the time of its execution, by reason of insanity or undue influence, the invalidity is as effective upon a clause declaring that any person seeking to set it aside shall receive no part of the estate as it is upon any other part of the will.</p> <p>Id.—Contest of Will—Mental Incapacity—Evidence—Successive Foreign Adjudications of Insanity and Restoration—Presumptions.—Where in a will contest it appeared that the testator had been adjudged insane by a competent court in New York and that some years afterward in a proceeding in the same court for the purpose, it had been adjudged that he had become competent, and a guardian of his estate previously appointed had been discharged, the latter judgment was not conclusive that he was then sane. Prior to that the legal presumption was that the insanity previously adjudicated would continue; thereafter the legal presumption would be that he was sane; but both presumptions were disputable and subject to contradiction by competent evidence.</p> <p>Id.—Evidence of Insanity Sustaining Judgment.—Where the testator who died at the age of eighty-seven had been adjudged insane in California in 1858, and confined in an asylum for a year, had been adjudged insane in Massachusetts in 1876 and confined for thirteen years in an asylum, from which he escaped, had been adjudged insane in New York but later adjudged restored to competency, when a guardian of his estate previously appointed had been discharged, his own deposition in the New York proceeding in which he was adjudged restored to competency, and other circumstances in evidence tending tq show that his mental incapacity continued at intervals, and that he retained certain insane delusions until his death, was sufficient to support a verdict of insanity found by the jury.</p> <p>Id.—Findings—Insanity or Undue Influence.—When a will is contested on the dual grounds of insanity and undue influence, a finding that the testator was insane renders any finding on the question of undue influence unnecessary.</p> <p>Id.—Insanity—Evidence—Certified Copy of Commitment.—-Under section 1918 of the Code of Civil Procedure, a copy of a commitment to an insane asylum certified by the superintendent is properly received in evidence.</p> <p>Id.—Foreign Adjudication.—Under section 1905 of the Code of Civil Procedure, a copy of the record of proceedings in Massachusetts of an adjudication of insanity and appointment of a guardian, certified by the clerk of the court having the legal custody thereof, under the seal of the court, and accompanied by a certificate of the presiding magistrate that the attestation was by the proper officer, and in due form, was properly received in evidence.</p> <p>B>.—Insanity—Evidence—Remoteness of Time.—In such case it was not error to admit evidence tending to show insanity beginning more than fifty years before the testator’s death and continuing until -the year 1901. Whether evidence of this character is too remote from the execution of the will rests very largely in the discretion of the trial court.</p> <p>Id.—Remoteness of Time—Ho General Rule.—Ho general rule can be given as to when evidence of insanity is too remote from the time of the execution of a will to be admissible; where the- insanity developed early in life and was fixed and permanent, its persistent character can best be shown by proof of its existence during a long period of time, and evidence thereof is properly admissible in such cases,</p> <p>Id. — Declarations in Writings by Testator — Documents Out of Jurisdiction—Oral Proof.—Papers signed by the testator, which tend to show his insanity, which are on file in a .foreign court, are on the same footing as lost documents, and under section 1855 of the Code of Civil Procedure, may be proved by oral evidence, or by copies produced by a witness, who swears that he examined the papers on file in the foreign court, that they are in the testator’s handwriting, and that the copies produced are correct copies.</p> <p>Id.—Opinion Evidence.—It is well settled that a witness who describes the conduct of another whose sanity is in question may testify as to whether or not the appearance and manner of the person, at the time, was rational or irrational, not only with respect to his actions, but also with respect to Ms sayings.</p>

<p>APPLICATION for Writ of Prohibition against the Superior Court of Kern County. Howard A. Peairs, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>. APPLICATION for a Writ of Review to be directed against J. H. Zemansky, Registrar of Voters of the City and County of San Francisco.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Workmen's Compensation Act—-Master and Servant—Independent Contractor not an Employee.—One who made an agreement with the superintendent of a corporation to cut cord wood and posts at a fixed rate for cord wood and a fixed rate for each post, with an understanding that he was to keep at work until told by the superintendent that a sufficient quantity had been produced for -the eom- . pauy’s use for the coming year, there being no agreement as to the hours of work or the methods to be pursued, was an independent contractor and not an employee.</p> <p>Id.—Partner or Employee op Independent Contractor.—The son of an independent contractor who entered into an arrangement with him that they should work together and divide equally the amount to be received for the work was an independent contractor and not an employee, whether he was a partner or an employee of his parent, although the representative of the company for whom the work was being done knew that the son was so employed by the parent and approved the employment.</p>

<p>Appeal—New Trial.—It is not within the province of the supreme court on appeal from an order granting a new trial to say which of two opposing inferences, both within the bounds of reason, should have been drawn by the trial court.</p> <p>Id.—Discretion of Trial Court.—In deciding a motion for a new trial, the trial court has large discretionary power, and its order denying or granting such motion will not be reversed on appeal, unless an abuse of discretion appears.</p> <p>Id.—Power of Trial Court—Drawing Inferences.—In considering the evidence upon a motion for new trial, the trial court has power to draw inferences opposed to those which were drawn by it on the trial, provided they are not unreasonable.</p> <p>Id.—Order Granting New Trial—Reasons of Trial Court not Given. When a new trial is granted by the trial court, and no reasons are specified, the supreme court on appeal must uphold the order if any ground upon which it might have been granted is supported by the record.</p> <p>Mortgage—Corporation Bonds—Foreclosure—Priority of Liens on Proceeds of Sale—Estoppel by Representations.—One who induces a bank to surrender a first lien on property, by promises and representations that a corporation controlled by him, which had taken over or was about to take over the same property, will issue to the bank bonds secured by trust deed on the property, and that these bonds shall be a first lien for the bank’s security, but who, after the bank has surrendered its original lien and accepted the corporation bonds in exchange, causes the issije to himself of additional bonds secured by the same trust deed, in apparent parity with those held by the bank, is estopped from participating in the proceeds of the security upon a foreclosure until the bonds of the bank are satisfied, although the holder of the additional bonds may have caused them to be issued with mo bad intent and in the belief that the property hypothecated was of sufficient value to satisfy all the bonds.</p> <p>Id.—Estoppel—Statute or Limitations.—Such an estoppel in favor of the bank is in the nature of a defense to the claim of the holder of the additional bonds to enforce his right to an equal lien on the property, which defense is not lost by lapse of time, and the statute of limitations has no application thereto.</p>

<p>Mortgagee-Foreclosure and Sale—Appeal—New Trial—Failure to Limit to Particular Issues — Harmless Error.—Where, after judgment of foreclosure and sale of property under a trust deed securing a bond issue, a new trial is granted by the trial court on motion of a cross-complainant, who claimed priority of right to participate in the proceeds as between such cross-complainant and other defendants who held some of the bonds, which was the sole question raised by the cross-complaint, and there was no dispute at the trial concerning the validity of the trust deed, or the fight of the plaintiff to a foreclosure, the order should properly have limited the new trial to the issues arising upon the cross-complaint, but in view of the circumstances of the case at bar, the failure to so limit the issues was unimportant, and rendered unnecessary a modification of the order.</p> <p>Ib.—Vacating Judgment—Bights of Bondholders as Purchasers.— Where a mortgage' securing a bond issue provided that, in ease of a foreclosure, any holder of bonds who became the purchaser might use his bonds toward payment of his bid, each holder of bonds had a direct interest in the validity of all other bonds, and a controversy as to the priority of heirs of various bondholders, which is litigated in an action for foreclosure, while it would not prevent a foreclosure, would make it necessary to postpone the sale until the matter could be determined, and therefore a trial court, .which grants a new trial after judgment, on the motion of a cross-complainant, who has, by his cross-complaint, raised such issues as to the priority of his bonds over those held by other defendants, does not err in vacating the judgment of foreclosure, and not permitting it to stand in order that the sale take place without delay.</p>

<p>Appeal—New Trial—Grounds.-—-An order granting a new trial in general terms must be sustained on appeal therefrom if there be any-ground upon which it might properly have been made.</p> <p>Id.—Evidence Sufficient — Incompetent Evidence Received Without Objection.—Uncontradieted testimony, although incompetent, as hearsay, if admitted without objection, is sufficient to establish a fact.</p> <p>Mortgage—Corporation Bonds—Foreclosure—Nonpayment of Interest—Accelerating Maturity of Principal—Presentment of Coupons — Hearsay Evidence —r New Trial.—Where a complaint for the foreclosure of a trust deed by way of mortgage securing bonds of a corporation alleged, in substance, that, under the provisions of the trust deed, the trustee had declared the principal of the bonds immediately payable for a default in payment of interest continuing for the .period prescribed in the mortgage after demand of payment, and the evidence tending to show presentation of the interest coupons for payment, if objected to, might have been excluded as hearsay, but no. objection to that evidence was made or suggested at the trial except by a motion for nonsuit, which was made upon grounds not sufficiently specific to direct the attention of court or counsel to the precise point, an objection, raised in the supreme court on appeal, based on the failure to produce the best kind of evidence will not justify the granting of a new trial.</p> <p>R>.—Default Clause Construed—Foreclosure by Suit.—Provisions in a trust deed, securing the bonds of a corporation, providing in substance that if default in payment of principal or interest should continue six months after presentment for payment, the trustee might take possession and declare all sums secured immediately payable, and further, that if the principal should become due or should have been declared due, and such default should have continued for six months, the trustee might take possession and sell and foreclose, and a further declaration that the “foregoing provisions” for foreclosure and sale “shall be in addition to the ordinary right of foreclosure by entry, by suit, or by action,” do not mean that, after the option to declare the principal due for a six months’ default in payment of interest has been exercised, a further period of six months must elapse before a right of foreclosure arises, it being plain that there was no intention to limit the ordinary right of the mortgagee to resort to the courts for relief, whenever the principal sum was overdue and unpaid.</p> <p>Id.—Lease Subsequent to Mortgage—Effect of Foreclosure.—A lease of mortgaged property, executed subsequently to a mortgage or trust deed, will be cut off by a foreclosure sale under the mortgage, in the absence of equitable grounds sufficient to overcome the legal status given to the mortgage by its priority.</p> <p>Id.—Contracts—Execution-—Agreement Intended to be Reduced to Writing—Failure to Execute.—Where it is a part of the understanding between parties that the terms of a proposed compact are to be reduced to writing, assent to its terms must be evidenced in the manner agreed on, or it does not become a binding or completed contract.</p> <p>.Id.—Estoppel—Subordinating Lien of Mortgage to Lease.—A proposed lessee, learning that there was an outstanding bond issue, refused to take the lease unless the bondholders would subordinate their bonds and mortgage to the lease, and, in order to comply with this condition, drafts of papers were prepared and submitted, which clearly contemplated that any arrangement finally made was to be evidenced in writing to be executed by the trustee under the mortgage, who also insisted, as a condition, that the assent in writing of all the bondholders should be obtained, but the lessee, having gone into possession, before all the bondholders had agreed in writing to this arrangement, there was no valid lease, and the trustee and bondholders were not estopped from asserting the priority of the bonds and the mortgage.</p> <p>Id.—Estoppel in Pais—Reliance on Representations.—It is of the essence of an estoppel in pais that the party asserting such estoppel should not only have been ignorant of the true state of facts, but that he should have relied upon the representation or admission of the adverse party.</p> <p>Id.—Pleadings and Evidence.—Record examined and found without foundation for the claim of an estoppel, based upon the execution of a lease, and the taking of possession thereunder, and the expenditure of large sums of money, upon the faith and belief, induced by the acts and representations of the bondholders and the trustee that the right of foreclosure would not be exercised to the detriment of the leasehold interest.</p> <p>Amendment op Pleadings — Power op Court on Motion por New Trial.—A court does not exhaust its power to grant leave to file an amended answer and cross-complaint by denying the application at the trial; it may, on motion for new trial, reconsider its ruling and consider that a contrary ruling would be proper.</p> <p>Appeal—New Trial—Error in Refusing Leave to Amend- Pleadings.—Where a court on the trial of an action refused leave, which it might properly have granted to a defendant, to file an amended answer and cross-complaint, and its refusal could have been in any</p> <p>0 way prejudicial to the defendant, and the same court subsequently grants a new trial, the supreme court must assume on appeal that the new trial was granted for that reason, and affirm the order.</p> <p>Mortgage—Foreclosure—Pleadings—Cross-complaint—-Claim op Adverse Title.—In a suit" to foreclose a mortgage, a lessee of the mortgaged property cannot by cross-complaint set up a claim of adverse title.</p> <p>Id.—Corporation Bonds—Equality of Liens op Bondholders as Between Themselves.—Where some of the holders of bonds, secured by a trust mortgage, had assented to an agreement subordinating their lien to a subsequently executed lease, and some had not so assented, the court, in a foreclosure suit, could not order the property sold in parcels until sufficient proceeds were realized to \ pay the nonassenting bondholders, and then allow the rest to be sold subject to the lease, such a sale being in violation of the right of all bonds to share equally in the security, and giving a part of them a prior lien on at least some of the property.</p> <p>New Trial—Limitation- on Discretion of Trial Court.—The wide discretion allowed to the superior court on motions for new trial will not justify the granting of such a motion where, in the findings and judgment, the court reached the only conclusion which it could properly have reached on the record.</p>

<p>CROSS-APPEALS by plaintiff and defendant from a judgment of the Superior Court of Los Angeles County, and' appeal by plaintiff from an order denying a new trial. Curtis D. Wilbur, Judge.</p>

<p>- APPLICATION for Writ of Review against the Industrial Accident Commission and others to annul an award.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Appeal — Pleading — Answer — Sufficiency of Denial — Waiver of Defect—Erroneous Instructions to Jury.—Where an allegation of the complaint is inartifleially denied, but the plaintiff, by introducing proof of the allegation, treated the answer as sufficient, he must be deemed to have waived all objections to the sufficiency of the denial, and an instruction to the jury that the fact is admitted by the pleadings is, therefore, reversible error.</p> <p>Negligence-Automobile Accident—Cause of Injury—Failure to Perform Statutory Duty of Stopping and Giving Name—Instructions to Jury.—While failure to perform a statutory duty is evidence of negligence, the act or omission, in order to warrant its consideration by a jury in an action for damages for an injury caused by negligence, must contribute directly to the injury, and, therefore, in an action for damages for personal injuries alleged to have been caused through the negligent operation of an automobile, an instruction that the neglect and failure of the operators of the ear to stop and give their names and the name of the owner of the ear and their addresses, was a fact to be considered by the jury, was prejudicial error, since the omission of the parties to stop, after the accident occurred, in no way contributed to the injury.</p> <p>Id.—Evidence—Admissions—Acquiescence in Statements by Others —Silence as Evidence of Assent.—Statements made by another in presence of a party are not receivable in evidence against him, unless it clearly appears that he heard and understood them, that he did not contradict them, and that the circumstances were such that his acquiescence may be fairly inferred from his silence, or that the statements were followed by some conduct on the part of the one sought to he bound from which assent may be implied.</p> <p>Id.—Evidence — Statements of Third Party Inadmissible.—In an action for damages caused by the operation of an automobile, the question of defendant’s ownership of the car being in issue, evidence that at a race meeting several days before it was announced by megaphone in front of the grandstand that the defendant would run such a car the 'following day, was not admissible, although there was evidence that the defendant was seen in an automobile at one end of the grandstand fifteen minutes before tbe announcement and was seen driving away fifteen minutes after the accident, there being no other proof that defendant heard the announcement.</p> <p>Id.—Damages—Evidence—Plaintiff’s Opinion—Prejudicial Error.— In an action for damages for personal injuries, it was prejudicial 1 error to permit the plaintiff, over objection, to answer the question what he considered the damages he had suffered by reason of the injury to his person.</p> <p>Id.—Instructions—Defining Negligence—Specific Pacts—Question for Jury—Prejudicial Error.—Negligence is a question for the jury even where there is no conflict in the evidence, if different conclusions can he rationally drawn from the evidence, and therefore it was prejudicial error to instruct the jury that the driving of the car in a manner which made a loud noise, created dust and smoke, and traveling at a high rate of speed, which frightened plaintiff’s horse, constituted negligence.</p>

<p>Public Utility—Oil Pipe-line—Eminent Domain—Taking Private Property for Public Use.—Neither by the provisions of chapter 327 of the Statutes of 1913, page 657, nor by the like provision in section 23, article XII, of the state constitution, to the effect that every prix-ate corporation operating any pipe-line within the state for the transportation of crude oil, either directly or indirectly, to or for the public, is a public utility, subject to such control and regulation by the Railroad Commission as may be provided by the legislature, may private property be taken for public use without compensation.</p> <p>Id.—Property Devoted by Owner to Public Use—Right of Public to Control.—Where, however, the owner voluntarily devotes property to a public use, the public may insist on the right to a voice in its regulation and control.</p> <p>Id.—Oil Pipe-line—Dedication to Public Use—Evidence—Exercising Right of Eminent Domain — Estoppel.—Where a corporation, which was incorporated for the purpose, among others, of conducting and operating an oil pipe-line, availed itself of the right of eminent domain in condemning property over which it constructed its pipe-line, that fact must be deemed conclusive evidence of a dedication of the property to public use, and it is estopped from afterward disclaiming the use, upon the faith of which judgment was rendered condemning the property.</p> <p>Id.—Railroad Commission—Jurisdiction—Right to Determine Facts on Which Jurisdiction Depends.—As the jurisdiction of the commission to regulate the rates of a corporation operating an oil pipeline depended upon whether such corporation was engaged in the business of a common carrier in the transportation of oil, it was vested with power to determine facts upon the existence of which it was authorized to exercise jurisdiction.</p>

<p>Waters and Water Bights—Municipal Water Districts—Constitutional Law.—Section 19 of article XI of the constitution contains no constitutional inhibition against the legislation authorizing the formation of municipal water districts, found in Statutes of 1911, page 1290, and in the amended act, Statutes of 1911 (Extra Session), page 92.</p> <p>Id.—Constitutional Law — Inclusion or Municipal Corporations Within Water Districts.—By Statutes of 1911, page 1290, and the amended act, Statutes of 1911 (Extra Session), page 92, authorizing the formation of municipal water districts, power to acquire and sell water is given to municipalities, larger in territory, and including within themselves pities and towns or similar corporations, but this is done, not in opposition to section 12 of article XI of the constitution, hut by general provisions, which vest in' the corporate authorities of the district the power to assess and collect special taxes for the purposes contemplated.</p> <p>Id.—'Constitutional Law — Delegation op Taxing Power.—The act , authorizing the formation of municipal water districts is not uneon stitutional, as delegating to someone other than the corporate authorities the power to assess and collect taxes for city and municipal purposes, since the legislature does not delegate to the directors control or supervision of any of the purely local affairs of the cities, but by general law enables the inhabitants of a district including cities to elect their own taxing board to raise the necessary funds for district purposes.</p>

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

APPLICATIONS for Writs of Review to review and annul orders of the State Railroad Commission and its members. The facts are stated in the opinion of the court.

<p>Workmen’s Compensation Act — Master and Servant — Employer’s Liability.—Under the Workmen’s Compensation Act of this state an employer cannot be held liable for accidental injuries unless the accident arises out of and in the course, of the employment.</p> <p>Id.—Employer’s Liability—Evidence—Burden of Proof.—It devolves upon the claimant who. seeks compensation under the Workmen’s Compensation Act for accidental injuries to establish the fact that such injuries arose out of and in the course of the injured person’s employment, by evidence from which such a conclusion is fairly inferable.</p> <p>Id.—Master and Servant—Employer’s Liability—Place Where Injury Occurred—Fall Through Elevator Shaft on Floor Where Injured Person not Employed.—Where an employee was killed by falling through an elevator shaft on a floor of the employer’s premises where he was not employed nor called by any duty of his em-ployment, an award of the Industrial Accident Commission of compensation was not justified.</p>

<p>APPLICATION for Writ of Review to review and annul an award of the Industrial Accident Commission.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Practice — Mistake, Inadvertence, or Surprise — Belief from Judgment or Order — Newly Discovered Evidence—Discretion of Trial Court.—Assuming, without deciding, that a party to a proceeding, who was represented at the trial, and who seeks relief from an order or judgment taken against him, upon the ground of mistake, inadvertence, surprise, or excusable neglect, in failing to present certain evidence, is not restricted to a motion for new trial, but may properly proceed by motion for relief and to vacate the order or judgment under Code of Civil Procedure, section 473, still the showing to be made on the motion and the discretion of the trial court in passing on it must be the same as on a motion for new trial on the ground of newly discovered evidence.</p> <p>New Trial—Newly Discovered Evidence—Probability of Change of Besult.—To warrant the granting of a new trial on the ground of newly discovered evidence, there must be a reasonable probability that upon a new trial the newly discovered evidence will change the result.</p> <p>Id.—Appeal — Order Denying New Trial — Newly Discovered Evidence—Abuse of Discretion.—On appeal from an order denying a new trial, sought on the ground of newly discovered evidence, unless the áppelKte court can see clearly that the discretion of the trial court has been abused, and that the showing made was of such a character as to make it manifest that the ease would or should result differently on a new trial, in view of the newly discovered evidence, the order refusing a new trial will not be disturbed.</p> <p>Estates of Deceased Persons—Taxation-—Inheritance Tax—Besidence of Deceased—Finding of Trial Court—Denying Motion to Vacate Order-—Discretion.—Where an order fixing an inheritance tax was based on a finding that the deceased at the time of his death was a resident of Kentucky, and thereafter the controller, on behalf of the state, moved to vacate the order on the ground of mistake, inadvertence, surprise, and excusable neglect, in failing to discover and present evidence of certain declarations, made by the deceased, to the effect that he was a resident of California, such declarations, comprising, among other things, the filing of an income tax return in San Francisco, where, while visiting, he was detained by illness, so that there was no time to file it elsewhere, and statements, in declaring his baggage for tariff purposes, on returning from trips’ to Europe in two successive years, that he was temporarily sojourning in Kentucky but was a resident of Los Angeles, California, the trial court did not abuse its discretion in holding that the newly discovered evidence, taken in connection with the fact that the deceased had for twenty years maintained a home in Kentucky, with servants, horses, stables, automobiles, etc., which home was never closed, that his declarations of residence in Los Angeles were made years after he had closed a house which he had owned there, and that he had for years never spent a day in Los Angeles County, would not on a retrial change the result reached on the original trial that the decedent died a resident of Kentucky.</p> <p>Id.—Domicile — Residence — Evidence — Declarations Inconsistent With Conduct.—Declarations of a person, whose residence or domicile is in issue, must give way if inconsistent with actual conduct.</p>

<p>Estates of Deceased Persons—Executors and Administrators—Suit by Executor — Findings in Favor of Defendant Sustained by Evidence.—In an action by an executor against the testator’s widow to recover dividends on certain corporate stock, evidence held sufficient to support the finding of the trial court that the stock in question had be'en pledged by the testator to his wife to secure the payment of his promissory notes to her and that the notes were unpaid.</p> <p>Appeal—Promissory Note—Presumption of Payment from Lapse of Time.—The presumption of payment of a promissory note arising from lapse, of time is of no avail against a finding by the court of nonpayment, based on sufficient evidence.</p> <p>Pledge—Corporation Stock—Pledgee’s Bight to Dividends.—A pledge of stock carries with it the right to dividends.</p> <p>Estates of Deceased Persons—Executors and Administrators—Corporation Stock — Action by Executor to Becover Dividends— Pledgee Substituted as Defendant—Testator’s Wife as Pledgee —Nature of Action.—In an action commenced by an executor against a corporation to recover dividends which the corporation had declared on its capital stock, where the amount of the dividends had been brought into court under a stipulation, and the testator’s widow, who claimed that the stock had been pledged to her by her husband in his lifetime as security for certain promissory notes made by him to her, was substituted as defendant, the answer of the widow, as substituted defendant, setting up her claim as pledgee did not make the action one by her on the notes; but it was a suit by the executor to recover the pledged dividends without paying the debts secured thereby.</p> <p>Id.—Pledgee’s Bights.—In such a case the pledgee’s rights are the same as if she were suing the corporation, and the executor, in order to recover, must show that the pledgee has no right to collect the dividends from the corporation.</p> <p>Id.—'Statute of Limitations.—In such case the pledgee having lawfully acquired possession of the stock certificates during the existence of the obligation, and being in possession when the action' was begun by the executor, her lien remained in full force, and she could not be divested of it without- prior satisfaction of the debt, although the statute of limitations had run against the notes.</p> <p>Id.—Claim Against Estate—Presentation Unnecessary.—In such a case, presentation of a claim against the estate was unnecessary.</p> <p>Id.—Evidence—Competence of Pledgee to Testify.—In such a ease, the right of the pledgee to testify as to a matter occurring before the death of the testator was not barred by section 1880 of the Code of Civil Procedure.</p> <p>Id.—Husband and Wife—■ Evidence-—-Competence of Widow as Pledgee to Testify.—The provision of Code of Civil Procedure, section 1881, subdivision 1, excluding testimony by one spouse of declarations by the other made during marriage has no application to such a case.</p>

<p>Negligence — Personal Injuries — Trespasser or Mere Licensee— Duty op Owner op Property.—As against a mere trespasser or licensee, the owner of property owes no duty to keep the premises in safe condition.</p> <p>Id.—Duty op Owner as to One Invited.—To one expressly or impliedly invited upon premises, the owner owes the duty to exercise due care not to injure him, or permit the premises to be in such condition that injury results.</p> <p>Id.—Unauthorized Invitation on Premises.—A stableman performing only menial duties had no implied authority to delegate his work or engage another to assist him, and his request to a boy fourteen years old to clean the stable could not impose any additional duty on the owner.</p> <p>Id.—Promise op Employee to Pay Another por Services.—A stableman’s promise to pay a boy fourteen years old for cleaning a stable could not make such boy an invitee of the owner of the premises, nor could prior services of the boy raise such a relation, ¿specially where the prior services were not brought home in any way to the owner.</p> <p>Id.—Attractive Nuisance—Stable.—A stable is not an attractive nuisance within the doctrine of the “turntable cases,” merely because hoys like to congregate in and around it.</p>

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

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

<p>APPEAL from decrees of partial distribution of the Superior Court of the City and County of San Francisco. Jas. M. Troutt, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Attachment — Affidavit to Obtain—Statement of Amount of Indebtedness.—An affidavit to obtain an attachment stating that defendant is indebted to plaintiff in an amount certain upon an implied contract for the direct payment of money is not vitiated by the inclusion of the words “in addition to certain claims for damages for breach of contract hereinafter referred to,” the words quoted being mere surplusage throwing no doubt upon the amount for which attachment is requested.</p> <p>Id.—Motion to Dissolve.—On a motion to dissolve an attachment, an alleged ground that the affidavit sets up an indebtedness on an implied contract, while the complaint is based on an express contract and asks for a reformation and damages for a breach, will not be considered; a motion to dissolve an attachment cannot be turned into a demurrer to the complaint.</p> <p>Id.—Motion to Dissolve—Question to be Considered.—On motion to dissolve an attachment for insufficiency of the affidavit, the only question is whether the cause of action attempted to be stated is one upon which an attachment may issue.</p> <p>Id.-—Motion to Dissolve.—It is immaterial that plaintiff has also demanded in the complaint other sums which are not liquidated.</p>

<p>APPEAL from a judgment of the Superior Court of the City and County of San Francisco. John J. Yan Nostrand, Judge.</p>

<p>Estates of Deceased Persons—Will—Legacy—Death of Legatee— Civil Code, Section 1310, Construed.—Section 1310 of the Civil Code, providing that the lineal descendants of a devisee or legatee, who dies before the testator, take the estate given by the will, in the same manner as the devisee or legatee would have done had he survived the testator, is a statute of distribution, and has reference to the conditions existing at the time of the making of the will, if its provisions had remained unchanged.</p> <p>Id.—Republication by Codicil—Deceased Daughter as Legatee— Legacy Void—Where a testatrix made a bequest to a daughter, and after the death of the daughter republished the will by a codicil ratifying the original will in every respect, save so far as any part was inconsistent with the codicil, such republication rendered the legacy void as a legacy to a person then dead.</p> <p>Id.—Codicil—Pretermitted Heir—Descendant of Dead Legatee.— Where a testatrix made a bequest to her daughter, and, after the death of the latter, leaving a son, republished and ratified the will by codicil, without mentioning the son of the deceased daughter, such son did not take the legacy originally intended for his mother, but became a pretermitted heir.</p>

<p>APPLICATION for a Writ of Error from the United States Supreme Court to the Supreme Court of the State of California.</p> <p>The facts are stated in the opinion of the Chief Justice.</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>Lease—Covenant not to Permit Competitive Business — Breach— Injunction—Evidence.—In an action by lessees engaged in the business of “general eonfectionists,” and serving light luncheons as a part of that business, against their lessor to enjoin the breach of a covenant not to permit, under any other lease or letting of any other part of the same building, the carrying on of any business involving the sale or handling of any merchandise of the same character as that sold or handled by the lessees, evidence found insufficient to establish the proposition that, by the general usage of the trade, the term “general confeetionist,” as used in the covenant, had acquired a meaning broad enough to warrant an injunction against carrying on a restaurant and cafeteria in the building.</p> <p>Id.—Contract—Construction—Meaning of Words—General Usage. In construing contracts, the ordinary meaning of words cannot be changed, except by proof of general usage by those engaged in the particular trade, or by proof that the parties to the contract used them in the special sense contended for.</p>

<p>Taxation—Money on Deposit With County Treasurer—Award in Condemnation Proceedings—Solvent Credit.—When, in an action by a city to take lands from a private owner for public uses, the amount of the award has been paid by the city to the county treasurer, such money is riot a solvent credit of the owner of the land, within the meaning of the laws relating to the assessment and taxation of personal property, and subject to the deduction of debts owed by the individual whose property was condemned, but is covered by the terms of section 3647 of the Political Code, providing that “money and1 property in litigation in possession of a county treasurer . . . must be assessed to such treasurer . . . and the taxes be paid thereon under the direction of the court.”</p> <p>Id.—Taxes Paid on Moneys in Litigation on Deposit With County Treasurer—Action to Recover.—An action will not lie against a city to recover the amount of a city tax, paid by the county treasurer out of the amount of an award in condemnation proceedings, paid by the city to the county treasurer for the benefit of the owner of the property condemned, pending the litigation.</p> <p>Id.—Deduction op Debts prom Solvent Credits.—The provisions of sections 3628, 3629, subdivision 6, and 3650, subdivision 15, of the Political Code, for the deduction of debts from solvent credits, contemplate the deduction of such debts only as are owed by the person to whom the solvent credits are assessed.</p> <p>Id.—Pleading—Complaint—Demurrer.—Even conceding that money deposited with a county treasurer as the amount of an award to the owner of property, taken by a city in condemnation proceedings, constitutes a “solvent credit” of such property owner, from which debts owed by him might be deducted, nevertheless where, in an action by such property owner against the city, to recover the amount of a city tax, paid by the county treasurer to the city, out of the moneys so deposited, which had been assessed to the county treasurer, and from which no deduction had been made, the complaint did not allege that the amount of such debts was shown by the sworn statement, which the taxpayer was required to make under subdivision 6 of section 3629 of the Political Code, such a complaint did not exhibit the facts necessary to support the plaintiff’s claim of a right to have the deduction made.</p>

<p>Appeal—Alternative Method—Record—Authentication.—On appeal from a judgment, where the record is prepared and certified by the clerk under the alternative method provided by sections 953a, 953b, and 953e of the Code of Civil Procedure, all that may be certified by the elerkl is the judgment-roll with the notice of appeal.</p> <p>Id.—Nondismissal of Action for Want of Prosecution—Papers not Part of Record.—Although the transcript made up by the clerk on an appeal under the alternative method contains copies of papers used on a motion to dismiss an action for want of prosecution, such papers, in the absence of certification by the trial judge, are not a part of the record on appeal, and the contention of the appellant, based on such papers, that the action should have been dismissed by the trial court, on its own motion, cannot be considered.</p> <p>Id.—Want of Prosecution of Action in Lower Court—Extension by Stipulation — Presumption.—Where the trial of an action took place more than five years after the filing of the answer, and there is nothing in the record to indicate that a stipulation extending time was or was not made, it must be assumed by the supreme court on appeal, in support of the judgment, that the lower court had before it such a stipulation as would justify it in proceeding, since section 583 of the Code of Civil Procedure, while requiring a dismissal for such lack of diligence, expressly excepts cases “where the parties have stipulated in writing that the time may be extended.”</p>

<p>APPEAL from a judgment of the Superior Court of Humboldt County, and from an order denying a new trial. George D. Murray, 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. B. V. Sargent, 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. Thomas F. Graham, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Corporations—Agency—Agent for Corporation—Proof of Authority —Circumstantial Evidence.—The authority of a corporate agent need not be shown by Tesolution or express declaration of the directors, but may be proved by circumstantial evidence.</p> <p>Id.—Evidence of Agent’s Authority — Charge and Management— Knowledge of Directors or Members.—Where one has the actual charge and management' of the general business of a corporation with the knowledge of the members or directors, this is sufficient evidence of authority, and the company will he hound by his contracts on their behalf within the apparent scope of the business intrusted to him.</p> <p>Id.—Employment by Corporate Agent—Liability op Corporation.— A corporation which ^suffers appearances to exist, and its officers and agents to act, so as to give one employed by them reason to believe that he is employed by the company, becomes liable as employer to such person to pay for services rendered.</p> <p>Id.—Contract—¡Ratification by Accepting Benepits.—A corporation, knowingly accepting the benefit of a contract made in its behalf, in effect ratifies it, and cannot refuse to be bound by its terms and conditions.</p> <p>Id.—Mechanic’s Lien — Subcontract — Materialman — Release op Owner and Original Contractor—Estoppel.—Evidence examined and found sufficient to sustain a finding that one who had furnished materials to a subcontractor was estopped from asserting a lien therefor.</p>

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

<p>Estates of Deceased Persons—Contest of Will—Conclusiveness of Judgment.—A person interested in the estate of a deceased person, who has legal notice of the contest of a will, becomes, in point of law, an actor in the contest and is bound by the result.</p> <p>Id.—Successive Contests by Different Heirs—Dismissal.—Where one of the daughters of a testatrix contests her will on the ground of unsoundness of mind, and the verdict of the jury on the hearing of the contest is in favor of the will and against the asserted ground of unsoundness of mind, a contest filed by another daughter on the same ground is properly dismissed.</p> <p>Id.—Proceeding in Bem—Binding Effect of Probate.—The probate of a- will is a proceeding in. rem, binding on all persons interested in the will, who, being constructively notified to appear at the probate, might have come in, and who, had they come in, would have been heard for or against the will.</p>

<p>Judgment—Mistake or Inadvertence—Vacating on Motion—Time ' for Making Motion1?—Under section 473 of the Code of Civil Procedure it is not sufficient that notice is given within six months after the date of a judgment, order, or proceeding that a motion will be made for relief from such judgment, order, or proceeding, on the ground of mistake, inadvertence, or neglect, but the motion itself must be made and action of the court requested within the six months.</p> <p>Guardian and Ward—Guardian of Minors—Order Appointing—Notice of Application.—Where the father of minor children, whose mother had removed them from the family home to another county, retook them and brought them back to the family home in the county of his residence, notice of an application by the father to all the relatives of the children living in the latter county was sufficient to support.an order of the superior court appointing him their guardian.</p> <p>Id.—Appointment of' Guardian of Minors—Jurisdiction—Notice.— The only jurisdictional notice required of an application for the appointment of a guardian for a minor is one to be given to the person having the custody of the minor.</p>

<p>Ejectment—Pleading—Complaint — Homestead Entry—Possession. A complaint in ejectment which alleges that plaintiff was lawfully in possession as a homestead entryman under the laws of the United States and had title as such homestead entryman and was ousted by the defendant is sufficient.</p> <p>Id.—Pleading — Complaint — Possession by Plaintiff.—In an action of ejectment it is sufficient to allege that plaintiff was in possession when he was ousted by the defendant.</p> <p>Id.—Public Lands — Homestead Entry—Courts — Jurisdiction of State Courts.—The state courts have jurisdiction to determine conflicting claims to the possession of public land after a homestead entry has been made.</p>

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

<p>APPEALS from orders 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>APPEAL from an order of the Superior Court of the City and County of San Francisco. E'. P. Shortall, 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. Marcel E. Cerf and E. P. Shortall, Judges.</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. Bernard J. Flood, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Appeal — Record on Appeal — Findings — Opinion of Trial Judge.— Opinions of trial judges are welcomed by the supreme court as aids to the justices in discovering the processes by which the judgment has been reached, but such opinions are not part of the findings, and cannot be considered on appeal in determining whether the findings have legal support in the evidence.</p> <p>Taxation—Inheritance Tax—Gift to Take Effect After Donor’s Death—Corporation Stock—Appraisement tor Purpose of Taxation.-—Where a gift is made of stock in a corporation to take effect in possession after the death of the donor, an appraisal of the market value of the stoek at the date of the donor’s death is the proper basis for the fixing of the tax.</p> <p>Id.—Corporation Stock-Market Value, how Appraised.—The proper way to establish the market value, for the purpose of inheritance taxation, of shares of stock in a close family corporation, which have never been on the market and have never been sold privately, is to ascertain the value of the property represented, by the corporation stock, and assign to each share its proportionate worth.</p> <p>Id.—Transfer in Contemplation of Death—“Valuable Consideration”—Inadequate Consideration.—Where a son was equitably entitled to certain shares of the stock of a family corporation, forming part of a larger number which originally stood in the name of his father and were transferred by the father to the son, the allowance, on the part of the son, to his father of the dividends on the shares which were equitably the son’s even though a “valuable” consideration, was not an “adequate” consideration for the transfer within the meaning of the Inheritance Tax Act of 1905.</p> <p>Id.—Findings by Inheritance Tax Appraiser—Failure to Find Cured by Finding of Court.—Conceding that the inheritance tax appraiser, who made a report and declared the amount of inheritance tax due on certain corporation stock, because of its transfer during the life of a decedent, as a gift intended to take eSeet in possession and enjoyment after the donor’s death, erred in failing to make a finding that there was an absence of valuable and adequate consideration, the error, if any, was cured when the superior court, trying the matter de novo, made a formal finding “that said transfer was made without valuable or adequate consideration.”</p> <p>Id.—Transfer in Contemplation of Death—Amended Statute—Bate of Tax—Date of Transfer.—-Where, subsequent to the date of a gift in contemplation of death, and before the death of the donor, a statute imposing an inheritance tax is amended so as to increase the rate of taxes payable, the amount of the tax must he assessed according to the statute in force at the time the stock was transferred, and not according to the rate fixed by the later statute.</p> <p>Ib.—Property Inherited and Property Deceived by Gift—Tax, how Computed.—Where the inheritance tax on money received by a son by inheritance from his father had been computed by inheritance tax appraisers at the rate fixed by a statute of 1913, in force at the time of the death of the father, and no appeal had been taken from that part of a judgment of the superior court, -which confirmed’ and approved said tax, and the tax had been paid, but the supreme court, on appeal from a part of -the same judgment, which approved an inheritance tax on certain stoek transferred to the son by the decedent as a gift in his lifetime, decided that the latter tax should be computed at a lower rate fixed by a statute of 1905, which was in force at the time of the gift, the tax is not to be computed upon tbe amount of the stoek plus the amount received by way of inheritance, but the gift must he treated as a separate entity.</p>

<p>Corporations—Receiver—Dissensions Among Directors—Jurisdiction—Equity.—Under subdivision 6 of section 564 of the Code of Civil Procedure, declaring that a receiver may be appointed “in all other eases where receivers have heretofore been appointed by the usages of courts of equity,” the superior court has power to appoint a receiver of a corporation, either because it has no properly constituted governing body, or because there are such dissensions in its governing body as to make it impossible for the corporation to carry on its business with advantage to its stockholders.</p> <p>Id.—Receiver—Fraud not Necessary.—Fraud is not a necessary basis .for the procurement of an appointment of a receiver for a corporation. Dissensions or honest differences of opinion among the directors, making it impossible to carry on the corporation’s business to advantage, or to carry it on at all, are sufficient to invoke the action of a court of equity.</p> <p>Id.—Nature of Proceeding—Not to Dissolve the Corporation.—In such a ease the proceeding is not directed toward the closing of the affairs of the corporation or toward an attempt to dissolve it, but merely to place the assets of the corporation in safe hands.,</p>

<p>APPLICATION for leave to prove a bill of exceptions and order to show cause directed to W. M. Conley, Judge of the Superior Court of Madera County.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Broker—Promissory Note—Commission—Fraud as Defense—Parol Evidence.—Where the defense to an action on a promissory note for two thousand five hundred dollars was that it was given to the plaintiffs, who, as real estate brokers, had negotiated an exchange of property of the defendants for property of equal value, with the agreement that each party should pay the plaintiffs an equal amount or share of commission, and that the defendants in giving the note relied upon the false and fraudulent representation of the plaintiffs that the other party to the transaction had been required to pay a like amount, whereas in fact he was required to pay only one thousand dollars, it was error to refuse to admit in evidence an agreement with the other party, which required Mm to pay oMy one thousand dollars, or to refuse to allow such party, as a witness, to state the amount of the commission exacted of Mm, the purpose of the excluded testimony being to establish that the written instrument (the promissory note sued on) was procured by fraud as alleged in the answer, and not to vary the terms of a written instrument.</p>

<p>APPEAL from a judgment of the Superior Court of Los Angeles County. Fred H. Taft, 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, and from an order denying a new trial. Eugene P. McDaniel, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Lease—Refusal of Possession by Landlord—Judgment in Former , Action — Res Judicata;—In an action by lessee against lessor 1 for damages for refusal to give possession of premises under a five-year lease from September 1, 1912, a judgment in a previous action between the same parties, in which the plaintiff had claimed that he had been ousted in October, 1912, but it was adjudged that he was not entitled to possession, was properly received in evidence, and such former judgment not having been set aside and no appeal therefrom having been taken, it was a final determination of plaintiff’s rights under the lease.</p>

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

<p>APPEAL from a judgment of nonsuit of the Superior Court of Shasta County. James G. Estep, 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. K. S. Mahon, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Criminal Law — Murder — Evidence — Sufficiency of Evidence.—In this prosecution for murder, the evidence is held sufficient to justify a verdict of murder in the first degree.</p> <p>Id.—Murder—Trial—Conduct of District Attorney TJnprejudicial— Opening Statement.—In the prosecution of a Chinese for murder of a fellow-countryman, where the district attorney, in his opening statement, informed the jury that he expected to show that on the afternoon of the murder, and a few minutes before it occurred, a so-called highbinders’ or Chinese tong war was begun, it cannot be said that the district attorney was guilty of misconduct because he failed to produce such evidence, there being nothing in the record tending to show that the statement was made in bad faith or without intention of trying to support it by evidence.</p> <p>Id.—Murder — Appeal — Harmless Error on Cross-examination.— Where, in a prosecution for murder, the defendant, who had testified that he was a member of the “Bing Kong Tong,” was asked on cross-examination: “How long have you belonged to this Bing Kong Tong, or society of highbinders, as it is commonly known?” but the district attorney, on objection being made, recast the question, without waiting for a ruling by the court, and asked, “How long have you belonged to that Tong?” although the original question was highly improper, the defendant was not prejudiced, especially in view of the fact that no request was made by the defendant’s counsel that the trial court admonish the jury to disregard the question.</p> <p>Id.—Murder—Evidence—Admissibility.—It was not prejudicial error on the trial of a Chinese for murder to admit evidence as to the meaning of Chinese characters found on a badge found in defendant’s possession when arrested, which when translated and read together with certain English words on the same badge indicated that, as a delegate from the San Francisco Bing Kong Tong, the defendant had recently attended a meeting of a Seattle branch of the same society at the dedication of a new building.</p> <p>Id.—Murder—Viewing Premises—Discretion of Court.—Under section 1119 of the Penal Code, an order of the court allowing the jury to view the place in which the offense is charged to have been committed or in which any other material fact occurred is a matter committed solely to the discretion of the court, and where a plat, correctly describing the premises and objects surrounding the scene, was used by the witnesses in testifying, there was no abuse of discretion in refusing to make an order permitting the jury to view the scene, and it is- difficult to conceive of a case where the facts would justify a reversal for an abuse of such discretion.</p> <p>Id.—Murder—Instructions—Accessories.—Where in a prosecution for murder by shooting, the character of the evidence and reasonable inferences to be drawn therefrom were such that the jury might have adopted either the theory that the defendant fired the fatal shots, or the theory that, while not guilty of so doing, he was present, aiding and abetting the acts which deprived the deceased of life, it was proper "to instruct the jury as to both theories.</p> <p>Id.—Murder — Instructions — Aiding and Abetting — Commonplace Words—No Necessity for Definition.—In instructing a jury as to accessories, it was not error to fail to define the term “aiding and abetting,” which are commonplace words deemed to be understood by jurors.</p>

<p>Workmen’s Compensation Act — Dependency — Wipe Living Apart prom Husband—Evidence.—Where in a workmen’s compensation proceeding under the Workmen’s Compensation Act it was shown that the deceased person had separated from Ms wife several years before his death, that she had received nothing from him in years, had not sought and was not relying upon receiving anything from him, and was pressing a elaim for divorce without any provision for support, the evidence was sufficient to sustain a finding of t'he commission against the claim of the wife that she was “wholly dependent in fact” upon the deceased.</p> <p>Id.—Dependency—Apportionment of Death Benefits—Award to Dependent Children to the Exclusion of Wife.—Under section 19 (d) (2) of the Workmen’s Compensation Act, (Stats. 1915, p. 1088), providing that where there is more than one person wholly dependent for support upon a deceased employee, death benefits shall be divided equally among them unless otherwise ordered by the commission, and section 19 (e) of t'he same act, authorizing the Industrial Accident Commission to apportion death benefits among dependents “in proportion to their respective needs, and as may be just and equitable,” and to “order payment to a dependent subsequent in right, or not otherwise entitled, upon good cause being shown therefor,” the commission had power to award the total amount of the death benefits to dependent children of the deceased by a woman with whom he was living at the time of his death, and who was not his wife, to the exclusion of his surviving wife, assuming even that under the law the latter must be presumed to have been wholly dependent on him for her support.</p> <p>Ib.—Apportionment of Death Benefits—Discretion of Commission. The question of what disposition of death benefits in any particular case is in proportion to the respective needs of the dependents, and just and equitable, is one of fact, in the determination of which the commission is invested with a large discretion, with which no court should interfere unless it is made clearly to appear that the conclusion is without substantial support in the record.</p>

<p>Workmen’s Compensation. Act—Injury in Irregular and Nonpermanent Employment — Average Annual Earnings.—Subdivisions 1 and 2 of section 17 of the Workmen’s Compensation Act (Stats. 1915, p. 1087), which base the compensation to be awarded an injured employee on “average annual earnings” of the immediately preceding year, have no application to the case of an injured employee who took “occasional jobs” from the contractor in whose employment he was injured, and was sometimes employed casually by others in different kinds of work, but such ease falls within subdivision 3, under which the annual earnings are to be taken as the sum which will "reasonably represent' the average annual earning capacity” of the employee “in the kind of employment in which he was then working, or in any employment comparable therewith but not of a higher class.”</p>

<p>Husband and Wipe — Community Property — Gift or Conveyance Without Consideration by Husband — Civil Code, Section 172, Construed—Right of Revocation.—Under the amendment of 1891 to section 172 of the Civil Code ('Stats. 1891, p. 425), denying to a husband power to make a gift of community property or to convey the same without a valuable consideration, without the wife’s written consent, a gift of community property by the husband, or his conveyance of it without consideration, and without consent of the wife, is not void as to himself, and does not confer upon him in his lifetime or upon his representatives after his death any right or power of revocation or of recovery of the property.</p> <p>Id.—Community Property—Conveyance by Husband Without Consideration—Estates of Deceased Persons—Executors and Administrators—Right of Action.—Executors of a husband’s will have no standing to join in an attack, madé by a widow, by action to recover her interest in community property, conveyed by the hus- ■ band during his lifetime without consideration and without her written consent.</p> <p>Id.—Community Property—Gift by Husband Without Wife’s Consent—Voidable, not Void—Wife’s Option.-—Under the amendment of 1891 to section 172 of the Civil Code, a gift or conveyance without consideration, by a husband, of community property, without the written consent of the wife is not void, but voidable only at the option of the wife.</p> <p>Id.—Community Property-—Gift by Husband—Avoidance by Wife— Limitation of Extent Wife’s Bight.—A wife’s right to avoid her husband’s gift or conveyance without consideration of community property is limited to the undivided one-half which, Upon his death, would pass to her as survivor of the community.</p> <p>Id.—Community Property—Gift by Husband—Wife’s Bight to Attack During Existence of Marriage.—Whether or not a wife has the right to attack, by action before the dissolution of the marriage, a gift of community property, made by the husband without her consent, is a question suggested in this ease, but held not necessary to decide.</p> <p>Id.—Community Property—Gift by Husband—Wife’s Bight in Specific Property Transferred.-—The nonconsenting wife’s right to avoid a gift or conveyance, without consideration by her husband, of community property is the right to recover the undivided one-half of the specific property, without regard to the amount or condition of the estate remaining in his hands at the time of his death.</p>

• APPEAL from a judgment of the Superior Court of San Francisco, and from an order denying a new trial. Jas. M. Troutt, Judge. The facts are stated in the opinion of the court.

<p>APPEAL from an order of the Superior Court of Kern County. Howard A. Peairs, 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, and from an order denying a new trial. W. M. Conley, 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. W. M. Conley, 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. A. J. Buckles, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>APPEAL from a judgment of the Superior Court of Sacramento County. Charles 0. Busick, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>APPEAL from a judgment of the Superior Court of Mono County. William S. Wells, 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 Francisco. Geo. A. Sturtevant, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Costs—Nonresident Plaintiff—Security for Costs—Undertaking5 by Qualified Corporation.—Under section 1036 of the Code of Civil Procedure, providing for security for costs by a nonresident plaintiff, on demand therefor, and a stay of proceedings for failure to give such security, an undertaking by a qualified surety corporation is sufficient.</p> <p>Id.—Security for Costs — Undertaking by Surety Corporation— Qualification of Corporation not Shown.—-Where security for costs is given by the undertaking of a surety corporation, the qualification of such corporation need not appear on the face of the undertaking, but it is sufficient if the corporation be in fact qualified as required by law.</p> <p>'Id.—Security for Costs — Form of Undertaking — Insufficiency.— Where security for costs is required on behalf of a nonresident plaintiff, an undertaking that “plaintiff will pay all costs and charges,” etc., is insufficient; the sureties must, themselves, expressly promise to pay such costs and charges, etc.</p> <p>Id.—Security fob Costs—Defective Undertaking — Jurisdiction— Dismissal Discretionary.—Where a nonresident plaintiff, of whom security for costs is required, attempts in good faith to comply with the requirements of the statute but files an undertaking defective in form, the court does not lose jurisdiction of the action after the expiration of thirty days, and is not bound to dismiss the action, but may in its discretion give leave to file a proper undertaking.</p> <p>Id.—Security for Costs—Failure to File When Properly Bequired —Prohibition.—Where a court refuses to dismiss an action for failure of the plaintiff to give security for costs when properly required and is proceeding to try the cause without any undertaking being filed, the defendant has no plain, speedy, and adequate remedy in the ordinary course of law, and prohibition will lie.</p> <p>Id.—Courts — Prohibition — Exceeding Jurisdiction.—A court that proceeds in the trial of a cause against an express prohibition of a statute is exceeding its jurisdiction, and may be prevented by prohibition from the supreme court.</p>

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

<p>APPLICATION for Writ of Mandate to the Superior Court of San Francisco. Geo. A. Sturtevant, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>APPEAL from a judgment of the Superior Court of San Francisco. J. V. Coffey, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>APPLICATION for Writ of Certiorari against the Industrial Accident Commission of the State of California.</p>

<p>APPEAL from a* judgment of the Superior Court of San Francisco. Thos. F. Graham, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Quieting Title—Action to Quiet Title—Pleading—Affirmative Defense—Deed to Defendants’ from Ancestor Under Whom Plaintiffs Claim as Heirs—Issues.—Where, in an action to quiet title by plaintiffs, claiming as heirs of a former owner, defendants set up by answer the affirmative defense of a deed to themselves from the same former owner and sought a decree establishing their own title and enjoining the plaintiffs from asserting title, the law gave the plaintiffs a replication without pleading to defendants’ asserted title, so that under the issues framed, plaintiffs had the right to overcome the effect of the deed and destroy its validity upon either equitable or legal ground, and where the defendants prevailed in such action the judgment properly enjoined the plaintiffs from further litigation to set aside the same deed.</p> <p>Id.—Prescriptive as Well as Record Title Alleged in Defendants— Findings—Failure to Find on Prescriptive Title—Failure Immaterial.—Where, in an action to quiet title, the defendants tender issues setting up title in themselves, both by deed and by prescription, the failure of the court to find on the issue of prescriptive title could not injure the plaintiffs if the court found the record title in the defendants, and the decree establishing the same was good.</p> <p>Appeal—Conflict of Evidence'—Findings Conclusive.—Where there is clear and substantial evidence to support a finding of a trial judge, the supreme court’s province as a court of review ends.</p> <p>Evidence—Expert Testimony—Genuineness of Signature by “Mark.” Expert testimony is not admissible to show that a signature, purporting to be made by “mark,” was made by someone else or that some other person directed the pen.</p> <p>Id.—Typewriting as “Handwriting”—Opinion of Witness Inad. missible.—Typewriting is not. “handwriting,” concerning which the opinion of a witness is admissible under subdivision 9 of section 1870 of the Code of Civil Procedure.</p>

<p>APPEAL from a judgment of the Superior Court of Humboldt County. Geo. D. Murray, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

APPEALS from judgments of the Superior Court of San Francisco, and also from orders granting new trials. Charles Monroe, Judge. The facts are stated in the opinion of the court.