Volume 177 — California Reports

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

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

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

<p>The facts are stated in the opinion of the court.</p> <p>Williams, Goudge & Chandler, and Goudge, Robinson & Hughes, for Appellants.</p>

<p>The facts are stated in the opinion of the court.</p> <p>Morton, Hollzer & Morton, Joe Crider, Jr., W. O. Morton, Harry A. Hollzer, and Chas. E. Barrett, for Appellant.</p>

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

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

<p>APPLICATION for Writ of Review against the Industrial Accident Commission.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Attorney at Law—Action for Professional Services—Sufficiency of Evidence.—In an action by an attorney against a husband and wife to recover for professional services, rendered in procuring a judgment restoring to capacity the husband, who had been adjudicated incompetent, where the appellants did not challenge the amount of the verdict but insisted that the evidence failed to show employment of the plaintiff by them, the evidence is examined and found sufficient to support the verdict for the plaintiff.</p> <p>Id.—Evidence—Declarations in Presence of' a Party.—In order that one may be affected by conversations held or declarations made in Ms presence, they must be held or made in such manner as requires him to deny, or, by his silence, to admit them.</p> <p>Id.—Evidence—Declaration by Party as a Witness—Admissibility. Where, in an action by an attorney at law to recover for his professional services under an alleged contract of employment in proceedings to secure the defendant’s restoration to capacity, which contract was denied, the defendant offered in evidence a transcript of the proceedings on the trial of the application for restoration, which showed that the defendant, as a witness on that trial, while he was being cross-examined, in an obvious attempt by the cross-examiner to show that Ms memory was so weak that he was unable to recognize Ms own counsel, had testified in the presence of the plaintiff that Mr. T., his senior counsel in the matter then on trial, was the only lawyer who had been employed by him, the court properly refused to admit the transcript, the matter then at bar not involving the status of the plaintiff in the instant action, and not calling for a denial on Ms part.</p> <p>Id.—Instructions — Authority of Attorney — Ratification of Unauthorized Act—Acceptance of Services.—In such case the court properly instructed the jury to the effect that if, assuming an authority as agent for the defendant, which, in fact, he did not have, Mr. T. (the defendant’s senicw counsel in the restoration proceedings) employed the plaintiff, and the defendants accepted and retained the benefit of the plaintiff’s professional services, the jury should find in favor of the plaintiff on the principle of ratification.</p> <p>Id.—Attorney and Client—Attorney as Witness—Privileged Communication—Authority to Make Contract.—The rule as to privileged communications does not exclude evidence as to the instructions or authority given by the client to his attorney to be acted upon by the latter, and an attorney, authorized by Ms client to engage the services of another attorney, is, therefore, not debarred from testifying to declarations made by Ms client concerning such employment.</p>

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

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

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

<p>Life Insurance—Action on Policy—Fraud as a Defense—Concealment by Insured—Evidence—New Trial.—In an action on a life insurance policy, evidence examined and found to warrant the defendant’s contention on an appeal from a judgment and order denying a new trial, that the insured intentionally concealed from the examining physician of the defendant insurance company, at the . time he applied for the policy, the fact that about two years before he had consulted a physician, who had diagnosed certain ailments of which he complained as a form of heart disease called myocarditis, of which he died, and three or four months before his application had consulted another physician, a kinsman, in relation to the v same ailment.</p> <p>Id.—Fraudulent Concealment — Instructed Verdict for Defendant Should have been Directed.—Where in an action against a life insurance company on a life insurance policy uneontradicted evidence shows that the insured consciously and intentionally withheld from the examining physician of the company at the time of his application information which would probably have prevented the issuance of the policy, the jury should have been instructed to find for the defendant.</p>

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

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

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

PROCEEDING for the disbarment of an attorney at law, transferred to the Supreme Court after hearing and determination by the District Court of Appeal of the Second Appellate District. The facts are stated in the opinion of the court. John S. Partridge, C. V. Anderson, C. L. Claflin, George E. Whitaker, F. E. Borton, and C. E. Arnold, a Committee for the Kern County Bar Association, for Petitioner.

<p>Lien—Repair or Improvement op Personal Property—Priority op Lien Over Chattel Mortgage.—Under sections 3051 and 3052 of the CSvil Code, the possessory lien of the improver or repairer of personal property is superior to the pre-existing lien of a chattel mortgage.</p>

<p>Office and Officer—Salaries and Compensation—Sheriffs—Care of Female Prisoners in County Jails—Unauthorized Payment by County—Action to Recover.—Under section 4290 of the Political Code, declaring that the salaries provided in the title in which that section is found shall be in full compensation for all services of every kind rendered by the officers named in that title (which includes sheriffs), their deputies and assistants, and further providing that all deputies employed shall be paid by their principals out of their salaries, a woman designated by the sheriff of a county to have the immediate care of female prisoners in a county jail, under the provisions of section 1616 of the Penal Code, as enacted in 1911, is an assistant of the sheriff performing a part of the duties imposed by law upon Mm, and, whether “appointed” or “designated,” she has no valid claim against the county for services rendered by her.</p> <p>Id.—Care of Female Prisoners—Action by County to Recover Compensation Paid Without Authority.—Money paid by a county to a woman designated by the sheriff of a county to have the immediate care of female prisoners in a county jail, under the provisions of section 1616 of the Penal Code, before the amendment of that section by Statutes of 1917, page 240, was without authority of law, and recoverable by action under section 4005b of the Political Code.</p> <p>Id.—Approval of Claim by Sheriff—Sheriff and Surety not Liable. Although the sheriff approved and requested the allowance of such claim, by the board of supervisors, the money which was paid without authority of law was not paid to him, and neither the sheriff nor his surety was liable in an action brought to recover the amount' under section 4005b of the Political Code.</p>

<p>Flood Control—Los Angeles County Flood Control Act—Constitutional Law—Due Process op Law.—The legislature, in enacting the Los Angeles County Flood Control Act, having fixed boundaries of the district for the purpose of assessing upon the lands within the district the cost of the improvement, is presumed to have made proper inquiry, and the constitutional guaranty of "due process of law” does not require that the land owners be accorded a hearing on the question of the inclusion of their lands.</p> <p>Id.—Ad Valorem Assessments.—In such case the legislature in prescribing the mode of distributing the burden by assessing the lands in proportion to their value, without any judicial inquiry into or determination of the extent of the benefits, satisfies all constitutional requirements.</p> <p>Id.—PPelio Purpose op Work—Determination op Legislature Conclusive.—The passage of the act by the legislature imports a finding that the proposed work will answer a public purpose.</p> <p>Id.—Local Improvements—Constitutionality op Enactment—Presumptions.—In inquiring whether an act' of the legislature creating a local improvement act transcends legislative power, courts must view the act in the light of every presumption and intendment favorable to its constitutionality, and consider only such facts as appear on the face of the enactment with such others as are matters of judicial cognizance.</p> <p>Id.—Purposes of Act.—The purposes of the act are broader than, the mere protection of lands from direct invasion by flood waters.</p> <p>Id.—Indirect Benefits—Justification for Assessments.—Accidental or indirect benefits are sufficient to justify the imposition of a part of the burden of an improvement.</p> <p>Id.—Boundaries of District—Determination of.—The limits of a .district specially benefited by a proposed improvement may coincide with those of an existing political division, and the fact that the boundaries of a flood control district coincide with those of a county does not justify the conclusion that the legislature fixed the boundaries upon an arbitrary and accidental basis and not upon a consideration of the benefits to be derived from the work.</p> <p>Id.—Omitting Work Within a Municipality—Validity of Such Provision.—A provision in a local improvement act which authorizes the board having control of the improvement to omit the doing of work within a municipality, included in the boundaries of the district which withholds its approval, does not invalidate the act.</p> <p>Id.—Assessment of Cost—Effect of Designating Assessment as a Tax.—The Los Angeles County Flood Control Act is not invalidated by the fact that the word “tax” is used throughout the act to designate the means by which funds are to be raised to pay for the work, since it is apparent that the word “tax” is used to designate a special assessment.</p> <p>Id.—Exemption of Lands from Assessment.—In the absence of constitutional legislation, the legislature has power to exempt' property from taxation, including special assessments as well as general taxes.</p> <p>Id__Defective Organization of District —• Legislative Ratification.—All defects, if any, in the organization of the Los Angeles County Flood Control District, and in the proceedings up to- and including the issuance of bonds, were cured by the ratifying and confirmatory act of May 15, 1917 (Stats. 1917, p. 239).</p> <p>Id.—Election—Issuance of Bonds.—Since an election is not required by any constitutional provision, and is not made jurisdictional by the terms of the Flood Control Act, the legislature might have provided for the issuance of bonds without giving any voice to the people of the district.</p>

<p>Mutual Benefit Association—Bevocation of Charter of Subordinate Lodge—Forfeiture of Lodge Property.—A provision of the constitution and laws of a fraternal order declaring that the supreme dictator may suspend or revoke the charter of any subordinate lodge "when in his opinion the conditions of any subordinate lodge warrant it,” coupled with a by-law providing that any subordinate lodge, having been “found guilty” of violating any provision of the constitution, laws, and regulations, shall be suspended or have its charter revoked, as may be determined by the supreme lodge or the supreme council, according to the laws of the order, and that, upon such suspension or revocation, the lodge property and paraphernalia shall be forfeited to the supreme lodge, clearly implies that there shall be a notice and hearing of charges preferred, and the action of the supreme dictator revoking the charter of a subordinate lodge, having been taken without notice of any charges on which he proposed to act, and without any charges or hearing, or opportunity to be heard, although such action was confirmed by the supreme forum on appeal, was ineffectual for the accomplishment of such revocation, and no forfeiture of the property of the lodge could be declared as the result of such illegal act.</p> <p>to.—Constitutional Law—Due Process of Law.—The claim that the subordinate lodge and its members by accepting the charter assented to a contract whereby they agreed that, upon a revocation of the charter, the lodge property was ipso facto transferred to the supreme lodge, is contrary to the provision of the constitution of the United States that no one shall be deprived of property without due process of law.</p> <p>Id.—Illegal Revocation of Charter—Status of Lodge Members.-— Where upon an illegal attempted revocation by the supreme lodge of the charter of a subordinate lodge a majority of the members renounced their allegiance to the supreme lodge, they were not seceders, but remained a duly created, organized, and existing lodge.</p> <p>Id.—Formation of Hew Lodge.—Where, upon the unlawful revocation of the charter of a subordinate lodge, a majority of the members renounced their allegiance to the supreme lodge, the minority members, who, adhering to the supreme lodge, organized a new lodge to which the supreme lodge issued a charter, had no right to the property acquired by the original lodge for lodge purposes.</p> <p>Claim and Delivery—Judgment for Defendant—-Excessive Damages —Modification of Judgment on Appeal.—Where, in an action for the recovery of personal property by proceedings by “claim and delivery,” the property having been taken by the plaintiff, the defendant, by answer, claims the return of the property with damages for its taking and detention, and recovers judgment, a finding in its favor for damages in excess of the amount claimed in the answer is erroneous, and, on appeal, the judgment must be modified in that respect.</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>Divorce — Judgment—■ Effect of Judgment on Previous Order for Temporary Alimony.—A judgment determining the rights, under the pleadings, of parties to an action for divorce, terminates the life of an order for temporary alimony.</p> <p>Id.—Alimony Pendente Lite—Effect of Vacating of Judgment and Entry of New Judgment—Motion for Execution.—Where, in an action by a wife for divorce, the court made an order for alimony pendente lite, and on trial of the cause gave judgment against her on the merits, and provided, as a part of the judgment, that the alimony be discontinued, and this judgment was afterward vacated on motion on the findings under section 663 of the Code of Civil Procedure, and a different judgment entered on the same findings, omitting all reference to alimony, and still later a motion for new trial was granted, by which this second judgment was set aside, and, later, on the new trial, judgment (the third in the action) was given against the plaintiff, a motion by the plaintiff for the issuance of an execution for the collection of alimony, claimed as having accrued under the original order for alimony pendente lite between the date of the first judgment and the third judgment, was properly denied, the vacation of the first judgment which expressly discontinued alimony and the entry of the second judgment on the same findings, silent as to alimony, not constituting an implied revivor of the alimony order.</p> <p>Id.—Termination of Alimony Pendente Lite—Judgment on Merits. An order for payment of alimony “while this action is pending” does not continue in force after a judgment on the merits, which is silent on the subject, until the action is finally determined by a final decision on appeal or the expiration of the time therefor.</p> <p>Id.—Borm of Judgment—Duty of Clerk.—The order discontinuing the alimony made when announcing the decision should have been entered at once in the minutes as an order, and should not have been made a part of the judgment subsequently entered denying the divorce.</p>

<p>The facts are stated in the opinion of the court.</p> <p>Walter J. Horgan, Sam B. Dannis, and Conner, Heath & Maxwell, for Appellants.</p>

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

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

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

<p>Negligence—Injury to Passenger op Street Railway—Negligent Starting op Oar—Immaterial Variance.—In an action for damages for personal injuries sustained by a passenger on a street-car, where the complaint alleged that she was thrown from the car by the negligent starting thereof while she was on the steps in the act of alighting, but the proof and findings were that after the ear had stopped it was negligently started, before she had time to reach t'he steps, hut the movement was so gradual and the street so dark, that believing the ear to be at rest she attempted to leave the car, and was thrown to the pavement, there was no such variance as could have misled the defendant to its prejudice or as would justify a reversal of a judgment for the plaintiff.</p> <p>Id.—Finding op Negligence Sustained—Duty to Passenger.—It being the duty of á conductor to take reasonable care to see whether any passenger was preparing to alight before starting- a car, a finding, in such action, that the conductor did not look toward the rear of the car before giving the signal to start and that he would have seen the plaintiff moving toward the exit if he had looked, justifies the conclusion of the court that the starting of the car was an act of negligence.</p> <p>Id.—Lack op Contributory Negligence — Attempting to Alight prom iStreet-car.—While it is ordinarily negligence per se to attempt to alight from, a moving car, yet where the plaintiff was advanced irf years, her hearing not of the best, her sight slightly impaired, and the movement of the ear so gradual that she did not know it was in motion, the question whether she had been guilty of negligence in attempting to alight was one of fact for the trial court, and the finding in her favor could not be held to be without support.</p>

<p>APPLICATION for Review against the-Industrial Accident Commission.</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>Assignment—Action on Assigned Claim—Evidence—Affidavit Incompetent.—In an action by one claiming as assignee of moneys due from two vendees of a house upon their contract to pay a certain purchase price, where on a trial by the court a written assignment had been produced, which on its face purported to be an assignment of a claim against only one of the defendants, the court erred in permitting the subsequent introduction in evidence of an affidavit averring that certain witnesses (including the assignor of the claim) could prove that the assignment, by mistake and inadvertence, though referring only to a claim against one defendant, was intended to pass and assign the claim against both defendants, such affidavit being incompetent.</p> <p>Id.—Affidavit Inadmissible as Proof of Original Contract.—Such affidavit was also incompetent if offered as proof of the alleged original contract.</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>Robert A. Waring, Inheritance Tax Attorney, and J. Paul Miller, Assistant Inheritance Tax Attorney, for Appellant State Controller.</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 to vacate the judgment and enter judgment for the appellant. Frederick W. Houser, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Estates of Deceased Persons—Appeal—Appeal from Order Admitting Will to Probate — Time for Taking — Motion for New Trial Pending.—Under section 939 of the Code of Civil Procedure, allowing an appeal from a judgment or appealable order of the superior court to be taken within sixty days from the entry of the judgment or order, but declaring that if proceedings for a new trial are pending, the time for appeal shall not expire until thirty days after entry in the trial court of the order determining such motion for new trial, or other termination in the trial court of the proceedings upon such motion, the filing of a “notice of intention” to move for a new trial, within the legal time therefor, starts a “proceeding on motion for a new trial,” which remains “pending” until disposed of hy the court or hy operation of law, and therefore, where an order admitting a will to probate was entered on November 7, 1916, and a notice of intention to move for a new trial was filed on November 20, 1916, that proceeding remained pending until February 10, 1917, when it was denied hy operation of law and an appeal from the order admitting the will to probate which was taken on March 8, 1917, was in time, although no further steps had been taken on the proceeding for a new trial for three months after the service of the “notice of intention.”</p> <p>Id.—Motion for New Trial — Exceptions — Time for Preparing Bill.—In such case appellant’s proposed bill of exceptions served March 1st was in time where the court, on February 20th, made an order extending the time therefor to that date.</p> <p>Id.—Will—Noncontest Clause—Effect of Offering Later Will for Probate.—It being the duty of the custodian of a will, under section 1298 of the Code of Civil Procedure, to deliver the same to the superior court or to the executor, within thirty days after receiving information of the maker’s death, and it being the right of an executor, devisee, or legatee, under sections 1299 and 1301 to petition for probate of the same, a provision in a will prescribing forfeitures of the estate devised or bequeathed to any devisee or legatee, if such devisee or legatee should contest a will, is not violated hy the mere proposing for probate of a later and inconsistent will, by one who is named as executor or devisee or legatee under such later will.</p> <p>Id.—Dismissal of Petition for Probate—When Contestant not Prejudiced.—One who contests the validity of one of several wills offered for probate, and who is present and does not except to an order of the court dismissing such petition on the proponent’s own motion, is not prejudiced by such dismissal.</p> <p>Id.—Noncontest Clause—Time for Determining Effect.—The question whether a legatee or devisee has forfeited his right under a will by violation of a “noncontest” clause arises on distribution, and cannot be determined on an appeal from an order admitting the will to probate.</p>

<p>The facts are stated in the opinion of the court.</p> <p>Frank Lamberson, James M. Burke, and P. D. Nowell, for Appellant.</p>

<p>Negligence — Employer and Employee — Action for Damages for Personal Injuries—Contributory Negligence—Erroneous Instruction.—In an action by a laborer against a railway company for damages for personal injuries sustained by being thrown from a car on which he was working, as the result of the collision of a train of freight-ears, where the court instructed the jury that it was not contributory negligence on the part of the plaintiff to move from the part of the ear on which he was working at the time of the impending collision to the end of the car in an effort to save his lunch or other property which he had left there, and that if in doing so the impact caused him to fall out of the ear and he was thereby injured, the jury should find for the plaintiff, such instruction was erroneous and injurious to the defendant.</p> <p>Id—Contributory Negligence—Question of Pact.—The question of contributory negligence is one of fact for the jury to solve under proper instructions, save in those cases in which, judged in the light of common knowledge and experience, there is a standard of prudence, to which all persons similarly situated must' conform.</p>

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

<p>Vendor and Vendee—Option Contract—Action by Vendee on Option —Evidence Sustaining Finding of Insufficiency of Tender.— In an action by a vendee against a vendor on a contract giving the vendee an option to purchase certain land, evidence examined and found sufficient to sustain findings that no tender was made.</p> <p>Id.—Tender—Insufficiency of Amount—Waiver of Objection.— In an action by vendee against vendor on an option contract, while a failure of the vendor to object to the amount of a tender was a waiver of the objection that it was less than the amount required under the option, the court in considering the sufficiency of the tender was- justified in considering that fatot.</p>

APPEALS from orders of the Superior Court of Tolo County. W. A. Anderson, Judge. The facts are stated in the opinion of the court. C. P. McLaughlin, C. E. McLaughlin, and Arthur C. Huston, for Appellant.

<p>Promissory Note — Fraud in Inception—Purchaser Before Maturity—Directed Verdict for Plaintiff.—In an action by the assignee of a promissory note against the makers who admitted the execution of the note, but set up the defense of fraud by the payees in procuring its execution and delivery, where the plaintiff showed by uncontradicted evidence that the note had been transferred to its assignor before maturity, in the regular course of business, and for a valuable consideration paid therefor, and the defendant offered proof to sustain the infirmities attending the execution and delivery of the note, but offered no evidence to show or tending to show notice to the plaintiff’s assignor before the purchase of any equities in favor of the maker of the note, or that the note was taken by plaintiff’s assignor under circumstances which would give rise to the presumption that he knew or should have known the facts impeaching its validity, the trial court committed no error in directing a verdict for plaintiff.</p> <p>Id.—Fraud in Inception of Note—Burden of Proof.—Where in an action on a promissory note fraud in the inception of the note is shown, the burden of''proof is on the indorsee to show that he is an innocent holder, which he may do by showing that he purchased the note before maturity, or from an innocent holder in the usual course of business, and thereafter, unless the evidence shows that the note was taken by the plaintiff under circumstances creating the presumption that he knew the facts impeaching its validity, the burden is east upon the defendant to show that the plaintiff took the instrument with notice of the defendant’s equities.</p> <p>Id.—Appeal — Evidence Warranting Directed Verdict—Immateriality of Other Alleged Errors.—Where in an action on a promissory note, defended by the makers on the ground of fraud in the of the the uncontradieted evidence warrants the trial court in directing a verdict for the plaintiff, errors which the trial court may or may not have made in the .admission or rejection of evidence touching the infirmities of the original transaction, are removed from consideration on appeal.</p>

<p>APPEAL from a judgment of the Superior Court of Los Angeles County. Charles Wellborn, Judge.</p> <p>The facts are stated in the opinion of the court.</p> <p>J. E. Hannon, for Appellant.</p> <p>M. J. McGarry, for Respondents.</p>

<p>Appeal—Failure to Find on Issue—E'krob not Shown by Record.— On an appeal on the judgment-roll alone, the record not showing that evidence was offered in support of an affirmative defense set up in the answer, failure to find on such issue cannot be held ground for reversing a judgment which is supported by the findings.</p> <p>Mining Claim—Action to Quiet Title—Findings not Inconsistent. On appeal from a judgment declaring plaintiff to be the owner of an interest in a mining claim, a finding that the plaintiff had agreed to transfer his interest to one of the defendants for a certain sum which had not been paid or tendered, was in no way inconsistent with the findings and judgment in favor of the plaintiff.</p>

<p>Estates of Deceased Persons—Will—Contest After Probate—Mental Incompetency—Nonsuit.—Where on a contest of a will on the asserted ground of mental ineompetemcy of the testator, the court, on the evidence, would have been bound to set aside a verdict in favor of the contestants, it was warranted in granting a nonsuit.</p> <p>Id.—Nonsuit Sustained.—In a proceeding to set aside a will after probate on the ground of mental ineompeteney, evidence examined and found so inadequate to show testamentary incapacity as to warrant a nonsuit.</p>

<p>Negligence—■ Employer and Employee -—Action by Employee fob Personal Injuries — Pall of Shakes — Hoisting by Defective Rope Sling—Evidence.-—In an action by an employee for damages for injuries sustained by the falling upon him of shakes ■which were being hoisted by a rope sling from a wharf and loaded on flat-cars, evidence found sufficient to warrant the jury in finding that the sling was not in fact strong enough for the purpose for which it was used.</p> <p>Id.—Conflicting Testimony—Question for Jury.—Evidence of defendant’s witnesses to contrary import could only raise a conflict to be resolved by the jury.</p> <p>Id.—-Use of Ship’s Slings in Connection With Those Owned by Defendants.—The use by the defendant, for its own convenience, of slings belonging to the ship from which the shakes were being loaded, interchangeably with the defendant’s own slings, left it open to the jury to find that the -obligation of due care required the defendant to make some inspection of the ropes furnished by the vessel before employing them in its work.</p> <p>Id.—Trial—Rebuttal Evidence—Discretion of Trial Court.—Where in an action for injuries caused by a fall of shakes, due to the breaking of a rope with which they were being hoisted, the plaintiff’s case in chief tended to show that the load weighed one thousand five hundred pounds, and the defendant then introduced evidence indicating that the rope in question would carry considerably greater weight, the trial court did not abuse its discretion in allowing the defendant, in rebuttal, to show that the load, at the time of' the break weighed over four thousand pounds, it being ordinarily within the discretion of a trial court to allow, in rebuttal, testimony which should have been offered as part of a ease in chief.</p> <p>Id.—Instructions—Invading Province of Jury—Use of Term “Said Negligent Acts.”—In instructing the jury in a case founded on allegations of defendant’s negligence, and supported by evidence of acts claimed by plaintiff to have been negligent on the part of the defendant, the court did not invade the province of the jury by referring to the acts in question as “said negligent acts,” when it was apparent, and must have been understood by the jury, that the court was merely referring to a previous description of acts alleged by the plaintiff to have been negligent, and did not assume that the acts were, in fact, negligent.</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>Farnsworth & McClure, and Power & McFadzean, for Appellant.</p>

<p>Specific Performance—Evidence—Uncertainty in Terms of Contract.—When all the evidence tending to establish a contract leaves the terms thereof in doubt, it cannot be specifically enforced.</p> <p>Id.—Appeal — Evidence Justifying Reversal of Decree.—Where, on appeal from a judgment decreeing a specific performance, after giving full credit and weight to all evidence tending affirmatively to establish the agreement, and disregarding all conflicting evidence, it appears that the terms of the agreement are not clearly ascertainable, the judgment may be reversed.</p> <p>Id.—Evidence Sufficient.—In an action for specific performance of an agreement by defendant to execute to plaintiff a lease for life of a house and lot, in consideration of a conveyance by the defendant of an adjoining lot, evidence found sufficient to sustain the findings for the plaintiff.</p> <p>Id.—Findings—Conflict of Evidence.—In such ease where there was a conflict of evidence in relation to a claim by the defendant that her son was, as part of the agreement, to occupy a room in the house, a finding and judgment of the court against that claim could not be disturbed.</p> <p>Id.—Finding Outside Issues.—In such case where there was no issue in the pleadings on the subject of taxes and insurance, a judgment providing that, in addition to a lease for life without payment of rent, the plaintiff was not required to pay any taxes or insurance, was erroneous in that respect, and the judgment should therefore be modified by striking out that portion thereof.</p>

<p>The facts are stated in the opinion of the court.</p> <p>Daley & Byrne, and Fred A. Wilson, for Appellant.</p>

<p>APPLICATION for Writs of Review against Industrial Accident Commission.</p> <p>The facts are stated in the opinion of the court.</p> <p>George H. Moore, and Redman & Alexander, for Petitioners.</p> <p>Christopher M. Bradley, and Daniel W. Burbank, for Respondents.</p>

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

<p>Estates or Deceased Persons—Appeal—Revocation op Probate op Will—Order Dismissing Proceeding—Appealability.—An order dismissing a proceeding for the revocation of the probate of a will is in effect one refusing to revoke the probate of a will, and is therefore appealable under the amendment of 1961" to section 963 of the Code of Civil Procedure. '</p> <p>Id.—Appeal — Order Dismissing Proceeding to Revoke Probate— Record—Judgment-roll.—Where no bill of exceptions or reporter’s transcript is included in the record on appeal from an order refusing to revoke probate of a will, the appeal must be considered on the papers which, in such proceeding, correspond to a judgment-roll, including, at least, the petition or contest, answer, and the judgment or order.</p> <p>Id.—Intendments Favoring Judgment.—On appeal on the judgment-roll alone, from an order dismissing a proceeding to revoke the probate of a will, all intendments are in favor of the judgment assailed, and where the order finds that no citation had been issued to all the legatees and devisees named in the will, and specifies the administrator and one of the legatees as persons to whom “particularly” no citation had been issued, and the administrator and the legatee thus named, had by their voluntary appearance, obviated the necessity for a citation, the appellate court will assume that the will, which was not a part of the record on appeal, may have given devises and bequests to various other persons to whom no citation was issued, thus warranting a dismissal of the contest under section 1328 of the Code of Civil Procedure.</p>

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

<p>APPLICATION for Writ of Prohibition directed to the Superior Court of Imperial County. Franklin J. Cole, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Municipal Corporations — Taxation — San Francisco—Taxes Paid Under Protest — Action to Recover — Pleading — Demurrer — Presentation and Approval op Demand.—The provisions of the charter of the city and county of San Francisco requiring before payment of demands against the city and county, presentation and approval thereof by certain officers, have no application to claims for the repayment or recovery of taxes paid under protest on the ground that the levy thereof was illegal and void and, therefore, a demurrer to the complaint in an action for the recovery of taxes paid under protest, which was sustained upon the ground of the failure to allege prior presentation and approval of the claim, was improperly sustained.</p> <p>Id.—Action to Recover Taxes Paid Under Protest—Applicability op Political Code, Section 3819.—Section 3819 of the Political Code providing a scheme for the recovery by suit of taxes illegally levied, when paid under protest, is applicable to the city and county of San Francisco, and a demurrer to a complaint in an action for the recovery of such taxes, upon the ground that the payment was voluntary because the charter does not provide for the payment of taxes under protest, is improperly sustained.</p>

<p>Taxation — Inheritance Taxes — Transfer in Contemplation of Death—Purpose of Statute.—-The provision of the inheritance tax law regarding transfers made in contemplation of the death of the grantor, or to take effect in possession after such death (Stats. 1905, 341), was not intended to prohibit ordinary transfers by gift or otherwise, if not made in contemplation of death, nor postponed in possession or enjoyment until after the death of the donor or grantor; its main purpose was to prevent the evasion of taxation by means of transfers made in bad faith for that purpose.</p> <p>Id.—Conveyance in Consideration of Support of Grantor—Withholding from Becord.—Property transferred by deed of conveyance passing present title and possession and enjoyment, where no intent to evade the tax appears, is not taxable, although such deed is not' recorded until the grantor’s death.</p> <p>Id.—Intent of Written Transfer—Parol Evidence.—In determining whether property transferred is subject to inheritance taxation parol evidence of the real agreement intended by a written instrument is permitted.</p> <p>Id.—Intent of Transfer to Postpone Possession.—It is only where the intent exists that the grantor shall have the possession and enjoyment of the property during his life, that property transferred is subject to taxation at the death of the grantor.</p> <p>Id.—Burden of Proof.—To subject transferred property to an inheritance tax the intent to postpone the possession and enjoyment of the property until after the death of the donor or grantor must be proved affirmatively, either by the instrument of transfer or by some other agreement, oral or written, express or implied, but such intent may be shown by circumstances from which such intent may be reasonably inferred.</p> <p>Id.—Transferrer Remaining in Possession.—The mere fact that the transferrer remains in possession, and enjoyment by sufferance does not of necessity establish an intent or agreement to postpone possession and enjoyment by the grantee till the death of the grantor, where there are circumstances justifying a reasonable inference that there was no such intent.</p> <p>Id.-—Delivery of Deed—Unconditional Delivery to Third Person— Passing of Title.—A deed delivered unconditionally to a third person with intent that it shall operate as a present transfer of title to the grantee passes the title as of the date of the delivery of the deed to such third person, although the deed is not actually delivered to the grantee until after the grantor’s death.</p> <p>Id.—Transferred Property—Finding Against Intent to Evade Tax Sustained by Evidence.—In an action to recover inheritance taxes on property transferred by a decedent, evidence examined and found sufficient to sustain a finding by the court that there was no intent to evade the inheritance tax law, or to postpone the passing of title and absolute control of the property to the grantee.</p> <p>Id.—Joint Bank Account—Evidence.—Evidence in relation to a joint bank account established by an aunt with her niece, in which were deposited moneys of the aunt as well as property of the niece examined, and such evidence found not to establish the fact that any of the funds contributed to- the joint account by the aunt remained undisposed of by her in her lifetime for her own use.</p> <p>Id.—Appeal—Findings—Failure to Find on Issue in Absence of Evidence.—A failure to find on an issue upon which there is no evidence is not assignable 'as prejudicial error.</p>

ORIGINAL proceedings by a corporation and stockholders for a Writ of Mandate. The facts are stated in the opinion of the court. George J. Denis, Oliver O. Clark, and Claud B. Andrews, for Petitioners.

<p>Estates of Deceased Persons — Will —■ Construction.—Where the will of decedent who left a widow and one child directed, in substance, that his estate should not be distributed until the death of two named brothers who were his partners in business, that upon the death of those two brothers, his wife, if living, should have' the use of one-half of the property, and his child or children the remainder of the income, that, on the death of the wife, all the property should go to the child or children, but not to vest in them until the death of the testator’s two brothers and his wife, and if the wife and all children should die before the death of the two brothers all the property should go to the two named brothers for their lives, and upon their death to vest in the testator’s other brothers and a sister, but no provision was made for the event of the child being dead and the widow surviving when the time for distribution arrived, and the child in fact died while a minor before the death of the two named brothers, leaving her mother, the widow, surviving, the testator’s other brothers and sister had no interest in the property, since under the terms of the will the death of both the wife and child before the death of the two named brothers was a condition precedent to the disposition to the other brothers and sister.</p> <p>Id.—Partial Intestacy.—Where a testator’s only child died before the mother, and the mother thereafter survived the testator’s two named brothers, who were given a life estate with remainder over to other brothers and a sister, but only on the condition precedent of the mother and all children dying before the two named brothers, with no disposition over in case of the death of the child and the two brothers leaving the mother surviving, a partial intestacy resulted and the title went to the mother, one-half by inheritance from the deceased husband, and the remaining one-half as heir of the daughter.</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>Everts & Ewing, Carl E. Lindsay, and M. G. Gallaher, for Appellant.</p>

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

APPEALS from an order of the Superior Court of Orange County admitting a will to probate, and from an order of the same court denying a petition for letters of administration. Z. B. West, Judge. The facts are stated in the opinion of the court.

<p>Workmen’s Compensation Act—Work Within Scope op Employment —Sufficiency of Evidence.—Although the duty of a workman, for whose death an award was made by the Industrial Accident Commission, was to take rock from a bin and place it in the furnace of a mill where he was employed, and it was not his usual or habitual duty to unload rock from adjacent ears into the bin, or to procure rock except from the bin, yet where there was evidence that, for several weeks before the accident in which he met Ms death, whenever there was not sufficient suitable rock in the bin, and there was good rock in the cars ready for unloading into the bin, it was his custom, and the custom of others working with Mm, to take rock from the cars to be placed in the furnace, and that this custom was known to and permitted by the foreman in charge of the work, and that while the deceased was getting rock in this manner he was killed by a runaway car colliding with the car from wMeh he was getting rock, such evidence was sufficient to sustain an award based on a finding by the commission that the injury occurred while the deceased was “performing service growing out of and incidental” to Ms employment.</p> <p>Id.—Review of Award by Supreme Court.—The supreme court in reviewing awards of the Industrial Accident Commission is not acting as a court of appeal and has no power to weigh the effect of positive evidence, but must assume that the commission believed all the evidence which tends to sustain the award.</p> <p>Id.—Review of Award—Inconsistent Findings.—If there are findings which sustain the award the fact that there are others inconsistent therewith, which if taken alone might serve to annul it, will .not be available for that purpose.</p> <p>Id.—Findings, How Far Reviewable/—The findings of the commission are not subject to review, except in so far as they may have been made without any evidence whatever in support thereof, the review being based on the theory that the commission has no jurisdiction to make a finding, where there is no evidence to support it.</p>

<p>The facts are stated in the opinion of the court.</p> <p>Edward C. Harrison, Harding & Monroe, and Grant & Zimdars, for Appellants.</p>

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

<p>Criminal Law — Sunday Closing Ordinance — Municipal Corporations—Constitutional Law.—A municipal ordinance making it a misdemeanor to keep open on any Sunday any store, workshop, bank, place of business, dance hall, pool or billiard hall, skating rink, theater, or place of public amusement, but excepting from the operation of the ordinance bona fide hotels, boarding-houses, lodging-houses, restaurants, bakeries, livery-stables, drug-stores, confectionery stores, ice-cream parlors, garages, transfer, railroad, telephone, telegraph, and express offices, dried or green fruit packinghouses, newspaper and periodical agencies, and also providing that in cases where an excepted business is carried on in the same room with one coming under the operation of the ordinance, the excepted business shall be kept separate and apart by a permanent partition or screen not less than seven feet in height, is a legitimate exercise of police power, and does not violate any provision of the United States or state constitution.</p> <p>Id.—Police Begulation—Effect on Private Property.—A legitimate exercise of the police power in other respects cannot be condemned as invalid on the ground that it is an unlawful or unauthorized invasion of the right of property, or upon the ground that it is a taking of property without due process of law, or that it deprives persons of the equal protection of the laws contrary to the fourteenth amendment of the constitution of the United States.</p> <p>Id.—Municipal Ordinance—Motive for Enactment.—An ordinance cannot be declared invalid because of the bad motives of the legislative body which enacted it, nor can the motives for the enactment be inquired into in a proceeding by habeas corpus.</p> <p>Id.—Sustaining Ordinances.—The supreme court must hold such an ordinance lawful if it can be done’ on any rational theory.</p> <p>Id.—Sunday Closing Ordinance — Purpose of Ordinance.—Where the title of a Sunday closing ordinance declared that its purpose was to provide a day of rest one day in the week for persons pursuing certain occupations, and the securing of a day of rest for persons so engaged may have been one of its objects, and that object would have been within the police power delegated by the state to the legislative body of the municipality, the ordinance must be upheld as an exercise of the police power, unless it is unreasonable in operation, or constitutes special legislation forbidden by section 21 of article I of the constitution.</p> <p>Id.—Constitutional Law—Discriminatory and Class Legislation. Such an ordinance is not discriminatory or class legislation within the principles of constitutional law applying to the subject.</p> <p>Id.—Reasonable Regulation.—The provision of the ordinance which requires one carrying on a prohibited business and a permitted business in the same room to keep the permitted business inclosed by a permanent partition is not an unreasonable regulation, it being practically impossible otherwise for the authorities to detect or prevent clandestine sales in violation of the law, except by keeping an officer in the place on Sunday.</p>

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

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

<p>The facts are stated in the opinion of the court.</p> <p>Henry B. Lister, for Appellant.</p>

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

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

<p>The facts are stated in the opinion of the court.</p> <p>Clinton G. Dodge, and Fitzgerald, Abbott & Beardsley, for Appellant.</p>

<p>Kecjording—Contract to Furnish Water for Irrigation—Failure to Acknowledge—Constructive Notice.—An unacknowledged agreement by a water company to furnish water for irrigation, does not, although copied in a book of the county records, impart constructive notice to another corporation which subsequently purchases the water system.</p> <p>Water and Water Bights—Vendor and Vendee—Basement op Purchaser op Land.—One who purchases land from a corporation engaged in the sale or rental of water as a public service, which contracts with the purchaser to supply water for irrigation has an easement consisting of the right to the flow and use of the water on his land.</p> <p>Id.—Purchase op Water System—Notice of Existing Easements— Evidence.—Where, in an action by the owner of land against a water corporation for damages, for refusal and failure to furnish water for irrigation in accordance with a contract made by the defendant’s predecessor on a sale of the land in question, it appeared that the defendant corporation purchased the water system from another corporation engaged in the sale of and rental of water as a public service and that at the time of the purchase the water system was connected by pipes and lateral ditches with plaintiff’s lands, the trial court was warranted in drawing the inference that the physical conditions were such as to indicate to anyone inspecting the system, that water had been and could be furnished therefrom to plaintiff’s land.</p> <p>Id.—Notice of Contract That Might be Learned from Inquiry.—In such case the purchasing corporation was charged with notice of a contract, the existence and terms of which might have been disclosed by inquiry.</p> <p>Id.—Water Contract-an Interest in Beal Property.—A contract by a water company to furnish water for irrigation of lands at" an agreed price is a contract to sell a right or interest in real property.</p> <p>Id.—Purchaser of Water System Bound by Existing Contracts.— One purchasing a water system with notice, actual or constructive, of a land owner’s interest under such a contract takes subject to the contract.</p> <p>Id.—Contract Indefinite as to Quantity of Water.—Where such a contract to furnish water for irrigation on lands mentions no, specific quantity, the amount to be supplied is the amount reasonably necessary for irrigating the lands.</p> <p>Id.—Action for Damages for Befusing to Supply—Demand and Tender—Failure to Demand Specific Quantity.—Where in an action against a water company for damages for refusal to supply water for irrigation, in accordance with a contract by the company’s predecessor, it appeared that after the defendant came into possession of the system it undertook to establish a new system of rates, and plainly and unequivocally declared that it would not furnish water except upon payment of the new rates, the defendant was not excused from the obligation to furnish water because plaintiff had not made a demand for a specific amount, and had not tendered payment in advance at the contract rate.</p> <p>Id.—Tender op Payment in Advance Unnecessary.—Where in such case the contract provided that payment should be made “monthly on demand,” payment or offer of payment by the. plaintiff of the contract rate in advance was not required.</p> <p>Id.—Damages por Failure to Supply—Duty op Plaintipp to Minimize Amount.—In such an action the plaintiff is not entitled to recover as damages the loss sustained through the diminished value of his crops, and the destruction or decay of his trees and vines through lack of the water contracted for, since by paying the excessive price demanded, without conceding its correctness, he could have saved his trees, vines, and crops and reduced his damage to a comparatively trifling sum.</p>

<p>Waters and Water Eights—Judgment Defining Eights—Appeal— Appellant not Aggrieved.—The plaintiff in an action to establish rights to the use of the waters of certain springs, who obtains a judgment declaring his right in a certain proportion of the waters, being all that he claimed to be entitled to, is not aggrieved by an addition to the judgment decreeing that the “defendant may take and use upon his own land any waters from said springs in excess of the amount” awarded by the judgment to the appellant, and he therefore cannot prosecute an appeal from the latter portion of the judgment.</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>Chickering & Gregory, George H. Whipple, and Evan Williams, for Appellant.</p>

<p>APPLICATION for Writ of Review directed to the Industrial Accident Commission.</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>O'Neill & O'Neill, and Sullivan & Sullivan and Theo. J. Roche, for Appellants.</p>

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

<p>Attorneys—Action for Services—Evidence—Complaint in Action by Third Persons Charging Client With Fraud—Admissibility to Show Nature of1 Services.—In an action by an attorney for services, a complaint in an action against the client by third parties charging him with fraud was clearly admissible for the one purpose of showing the nature of services performed in negotiating and finally securing a dismissal of that suit, and, therefore, its reception in evidence was not error, although the supreme court may suspect that the jury was improperly influenced thereby, and it would have been more just to have excluded it.</p> <p>Id.—Evidence—Letters in Reply to Others Already in Evidence— Exclusion not Prejudicial.—Although letters of third parties to defendant in reply to other letters by defendant to the same parties, already offered by plaintiff and received in evidence, may be technically admissible under the rule that when one part of a writing is given in evidence by one party, the whole on the same subject may be inquired into by the other, and that when a detached writing is given in evidence any other writing necessary to make it understood may also be given in evidence, a court should be reluctant to admit evidence which in itself is incompetent because of a more or less remote or inferential connection with evidence that' is properly admitted. The purpose of a trial is to do justice between the parties, and even though such letters by reason of some slender thread of connection are technically admissible under the rule mentioned, it is not prejudicial error to exclude them unless their rejection results in a substantial miscarriage of justice.</p> <p>Id.—Evidence of Employment—Rejection of Instructions Given by Defendant to an Agent.-—Where in an action by an attorney for services the plaintiff based his claim on a direct employment by the defendant, and not upon employment by an agent of the defendant, the rejection of evidence offered by the defendant of his instructions to such agent with reference to the scope of his employment, not communicated to the plaintiff, is not' prejudicial error unless its rejection results in a miscarriage of justice.</p> <p>Id.—Refusal of Order to Produce Books.—It is not error to refuse an order for the production of the books of a party to an action, where the action has been pending more than a year and the demand for production is made after the action has been on trial sixteen days and where the books are in New York.</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>Waters and Water Eights—Action to Establish Eights or Successor in Interest Under Decree—Enlargement not Authorized.— Where a decree upward of thirty-eight years old established the right of the plaintiff against the defendant, a water corporation, to take through a one-half inch pipe, water from the defendant’s pipes and aqueducts, but limited its use to certain lands to which the water was made appurtenant, and to certain purposes to which the water might be applied, a judgment in an action by the successor of the plaintiff in the old decree against the successor of the defendant in such decree, to declare and establish the right of the plaintiff in the instant action, as such successor, which judgment gives the plaintiff the right to take from the waters of the defendant corporation, all the water that may flow through a pipe of the same size as permitted by t'he old decree, without limitation or restriction as to the lands on which, or the purposes for which, it is to be used, and without regard to the fact that by reason of the defendant having largely developed and increased its water supply and pressure, and decreased the friction, by enlarging it's pipes, the plaintiff’s one-half inch pipe will give it a much larger quantity of water than contemplated by the old decree, is erroneous, and must necessarily be reversed, without the necessity for deciding many other questions raised, since the judgment in t'he instant action is obviously an enlargement of the plaintiff’s water right under the old decree.</p> <p>Id.—Limitation on Private Eight as Against Eight of Public Service.—Where in such case the defendant is a corporation supplying water as a public service to the inhabitants of a city, the private right of the plaintiff must be to the quantity of water which has been actually taken and applied to a beneficial use on the land to which such private right was appurtenant.</p> <p>Id.—Effect of Judgment—Judgment Though Erroneous Binding on Parties.—A judgment though erroneous in law is binding on the parties and their successors so that the defendant in the old decree in such case, although such defendant' is performing a public service, is barred from claiming that the right confirmed to the plaintiff, in such old decree, is violative of the law against creating preferential rights in water appropriated to public use.</p> <p>Id.—Prescriptive Eight—Not Maintainable Against Public Use.— v So far as any enlarged right may be claimed under such a decree, arising by prescription or implied grant, no such right can be thus created against waters appropriated or acquired by the defendant for public use.</p>

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

<p>Estates of Deceased Persons—Personal Property of Decedent— Transfer Procured by Fraud—Action by Heir—Demurrer.—A demurrer, for want of capacity in the plaintiff to sue, and also for failure to state a cause of action, is properly sustained to a complaint in an action by an heir to set aside a transfer of personal property alleged to have been procured from a decedent in her lifetime by fraud or undue influence, where- no special circumstances are shown to take the case out' of the general rule that an heir cannot maintain an action for the recovery of or affecting the personal estate of his decedent.</p> <p>Id.—Setting Aside Transfer of Property by Decedent—Bight of Heir to Sue.—No grounds can be specified which would warrant a suit by an heir in such case since, each case must be governed by the circumstances thereof.</p> <p>Id.—Property Obtained from Decedent by Fraud—Bight of Action in Administrator.—An action to recover personal property obtained from a decedent by fraud can be maintained only by the qualified personal representative of the deceased.</p>

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

<p>Hospitals—Negligence op Surgeon—Demurrer—Statute op Limitations.—Where the complaint in an action for damages against a hospital corporation alleges a contract between the plaintiff and the hospital, by which the latter agreed to furnish the plaintiff medical and surgical treatment when rendered necessary by accidental injury or disease, and that the plaintiff, having suffered a fracture of the leg, was negligently and unskillfully treated by a surgeon employed by the defendant, and by reason thereof became permanently lame, the gravamen of the action is an injury caused by the negligent act of another, and not the breach by the hospital of the contract alleged in the complaint, and a demurrer to the complaint on the ground that the cause of action is barred by subdivision 3 of section 340 of the Oode of Civil Procedure is properly sustained, where the action was not brought within one year after the negligent act.</p>

<p>Contract—Construction of—Nonassumption of Corporate Liability. A written agreement between a corporation and a committee of - subordinates to t'he capital stock of a corporation proposed to be organized, for the sale of property and the business of the former to the latter, construed, and held that same did not import any assumption by the new company of liability on account of a particular indebtedness of the old company.</p>

<p>Public Lands—Sale op State Lands—Constitutional Law—Lands Uncovered by Recession op Lakes—Statutes—Restrictions on Authority to Sell.—Under section 3 of article XVII of the state constitution and also under the act of March 24, 1893, providing for the sale of land uncovered by the recession of inland lakes (Stats. 1893, p. 341), which follows that constitutional provision, the surveyor-general is given authority to sell land suitable for cultivation in tracts not exceeding 320 acres to one person, to actual settlers thereon and not otherwise.</p> <p>Id.—Surveyor-general’s Authority—State Bound by His Determination op Facts.—The duty of ascertaining the character of land before mating a sale under such statute, and, if it is suitable for cultivation, to make sales only to persons and in the quantities authorized by the statute, rests upon the surveyor-general, who as the agent of" the state, has authority to determine the fact, and in the absence of fraud or mistake which would authorize relief by a court in equity, the state is bound by his decision.</p> <p>Id.—Cause of Action to Set Aside Patent for Want of Power— Demurrer.—Where in an action by the state to set aside a patent, one of the counts in the complaint alleged that at' the time of the application for the patent, the land described consisted of 507.45 acres, that the applicant knew that the land was suitable for cultivation, and that after receiving a patent for the land she conveyed it without any valuable consideration to the defendant, a corporation, but without any allegation of mistake on the part of the surveyor-general, and based solely on the theory that no power exists in any stat'e officer to grant land suitable for cultivation to one not an actual settler, or in excess of the prescribed area of 320 acres, such count in the complaint does not state facts sufficient to constitute a cause of action.</p> <p>Id.—Cause of Action to Set Aside Patent for Fraud—Complaint Good as Against Demurrer.—Where in such action a second count in t'he complaint alleges as additional facts that the applicant’s affidavit on her application to purchase states that she desired to purchase the land for her own use and benefit and that she had made no contract to sell the same to any person, although in truth and in fact she had made the application at the instance and for the use of a syndicate of several persons organized for the purpose of acquiring the lands from the state without any settlement thereon, and that these persons, with full knowledge of all the facts, assisted her in procuring the certificate of purchase and in making the conveyance to the defendant, such count is good as a cause of action to set aside the patent on the ground of fraud and a demurrer to such count is improperly sustained.</p> <p>Id.—Statute of Limitations—Action bt State to Set Aside Patent for Fraud.—An action by the state to cancel a patent on t'he ground of fraud in its procurement, and to have the state declared the owner of the land described in the patent, although seeking relief on the ground of fraud, is nevertheless an action for the recovery of real property and is not barred by the period of three years fixed by section 338 of the Code of Civil Procedure, but by the period of ten years fixed by section 315.</p>

<p>The facts are stated in the opinion of the court.</p> <p>Metson, Drew & Mackenzie, and E. H. Ryan, for Appellants.</p> <p>Walter H. Linforth, and Charles F. Hanlon, for Respondents.</p>

<p>David L. Levy, Walter Shelton, and Campbell, Weaver, Shelton & Levy, for Appellants.</p>

<p>Assignment of Cause of Action—Acknowledgment as Prima Facie Proof.—The certificate of a notary to the acknowledgment, by the assignor, of a written assignment of a cause of action is, under section 1948 of the Code of Civil Procedure, prima facie proof of the execution of such assignment, and where, on the trial of an action, the execution of an alleged assignment of the cause of action was in issue, an assignment duly acknowledged and attested before a notary was introduced in evidence, and no evidence was introduced to controvert this prima facie proof, the trial court erred in finding that the due execution and delivery of the assignment of the cause of action had not been proven.</p> <p>New Trial—Newly Discovered Evidence—Conflicting Sworn Statements of Defendant—Erroneous Denial of Motion.—Where an important issue in an action was whether one L. was the agent of the defendant with authority to engage the services of the plaintiff’s assignor, and to use the machines, materials, and supplies of the plaintiff’s assignor, for the furnishing of which the action was brought, and where, after the trial court had found in the defendant’s favor on that issue, basing its findings on the positive testimony of the defendant that L. was not his agent and had no such authority, the plaintiff, upon a motion for a new trial, on the ground of newly discovered evidence, produced the defendant’s verified complaint in an action commenced by the defendant subsequently to his having so testified, in which complaint he explicitly averred that L. was Ms duly authorized agent at ail times and in relation to all matters wherein the services of the plaintiff’s assignor had been enlisted, the trial court erred in refusing a new trial, since the defendant had either testified falsely as a witness in the instant case or as a complainant in the subsequent one.</p>

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

<p>Appeal—Defect in Pleading—Objection not Available to Sustain Judgment.—Where, after a demurrer to a complaint which ought to have been sustained has been overruled, the defendant having answered, a trial on the merits results in a judgment in his favor, which appears by the record to be in no way based on, or due to any defect in the complaint, the defendant', on an appeal by the plaintiff from the judgment, will not be heard to urge the defect in the complaint as a ground for affirming the judgment, unless the appellaté court can see that t'he defect in the pleading is one that cannot be obviated by amendment.</p> <p>Street Improvement—Foreclosure of Assessment Lien—Pleading— Sufficiency of Complaint.—As against the objection that a complaint in an action to foreclose the lien of an assessment for a street improvement does not state facts sufficient to constitute a cause of action, by reason of the showing therein that the resolution of intention was fatally defective in its description of the location of the proposed work, the complaint was sufficient when it could not be determined from the face of the description that it was either void or uncertain.</p> <p>Id.—Bond of Contractor—Surety not of Class Designated by City Charter—Defense not Available.—After the successful bidder has entered into the contract, and the work contracted to be done has been fully done in accordance with the contract, to the satisfaction of the proper officers and accepted, the fact that the surety on the various bonds given by the bidder when tendering the bid, and by the contractor on entering into his contract, one for the benefit of persons furnishing labor and materials, and the other for faithful performance of the contract, was not of the class designated by the city charter, is not available as a defense in an action to foreclose the lien of the assessment.</p> <p>Municipal Corporations—San Jose Charter—Street Law—Vrooman Act.-—In view of the express provision of the freeholders’ charter of the city of San Jose adopted in 1897 (Stats. 1897, p. 592), adopting and making part of itself, where not inconsistent with its express provisions, the general street law commonly known as the Vrooman Act (Stats. 1885, p. 147), the charter provisions in relation to street improvements prevail over those of the Vrooman Act whenever a conflict exists.</p> <p>Id.—San Jose Street Improvements—Foreclosure of Assessment Lien—Affidavit of Noncollusion by Bidder—Affidavit .of Contractor Negativing Private Agreement.—Provisions of the charter of San Jose relating to street improvements require every bid for street work to be accompanied by an affidavit to the effect that it is not sham and also require the contractor before the making of any assessment to file another affidavit negativing any private agreement to accept a less price than the contract price or to make any rebate or deduction from the contract, and a complaint in an action to foreclose the lien of a street assessment under that charter which fails to show the filing of such affidavits does not state facts sufficient to constitute a cause of action.</p> <p>Id.—-General Law Adopted as Part of City Charter—Subsequent Repeal of Section of General Law.—The charter of the city of San Jose, having adopted the general street law of 1885 (the Vrooman Act), “as since amended and as hereafter shall be amended,” and the legislature having in 1911 (Stats. 1911, p. 626), repealed section 20 of the Vrooman Act which provided substantially that after acceptance by a city council, by ordinance, of any street or portion of a street as fully constructed, such street' or portion of a street should thereafter be kept in repair by the city, that repeal by the legislature had the effect of rendering effective an ordinance of the city previously adopted accepting a street pursuant to- the repealed section, and the ordinance, therefore, constituted no defense to an action on an assessment for subsequent improvement work on such street.</p>

<p>Costs—What Statute Applicable to Costs on Appeal.—The right to recover costs exists solely by virtue of statute. The general rule is that their recovery is governed by the statute in force at the time the right' to have them taxed accrued. As to costs on appeal, this time is the time of the rendition of judgment on appeal.</p> <p>Id.—Feinting Briefs.—Section 1027 of the Code of Civil Procedure, as amended in 1913, allowing as part of the costs on appeal the cost of printing briefs on appeal, is applicable in the case of an appeal decided after the amendment, notwithstanding that at the time the briefs were printed' and filed the amendment had not been made and there was no law authorizing the recovery of any part of the expense thereof as costs.</p> <p>Id.—Cost of Record on Appeal—Use of Party’s Own Transcript Obtained During Trial.—As to cost of record on appeal, section 1027 of the Code of Civil Procedure, confines the recovery to “amounts actually paid out ... in connection with said appeal and the preparation of the record for the appeal.” This does not include any part of the cost of obtaining a daily transcript of the testimony during the progress of the trial, although the party, by arrangement with the reporter, may use his transcript so obtained in making up the record on appeal.</p>

<p>Street Improvement — San Jose Charter — Prohibition Against Private Agreement—Application op.—A provision in the charter of San Jose requiring the contractor for street work, before any assessment can be made, to file an affidavit to the effect that he has not entered into any private agreement with any person liable to be assessed, to accept less than the price named in the contract', nor to make any rebate or reduction, has no reference to a private contract between a contractor and property owners for the doing of street work directly for them, but has reference only to a private agreement with relation to some contemplated street improvement by the city under the street law.</p>

<p>The facts are stated in the opinion of the court.</p> <p>Garret W. McEnerney, Percy E. Towne, and Wm. W. Cook, for Appellant.</p>

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

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

<p>Estates op Deceased Persons—Will—Judgment Admitting to Probate—Collateral Attack—Conclusiveness op Adjudication.—A judgment admitting a will to probate which has become final, is conclusive against collateral attack made by a motion to strike the will from the records of the probate court, made upon the ground alleged that the purported will is not a will at all and disposes of no property.</p>

<p>The facts are stated in the opinion of the court.</p> <p>Osgood Putnam, Wm. C. Crittenden, and Chas. C. Boynton, for Appellant.</p>

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

<p>The facts are stated in the opinion of the court.</p> <p>Gavin MeNab, A. H. Jarman, and Nat Schmulowitz, for Appellant.</p> <p>Andros & Hengstler, and Golden W. Bell, for Respondents.</p>

<p>APPLICATION for Writ of Review after an award of the Industrial Accident Commission.</p> <p>The facts are stated in the opinion of the court.</p> <p>Jennings & Horton, and R. P. Jennings, for Petitioners.</p> <p>Christopher M. Bradley, and Frank P. Doherty, for Respondents.</p>

PROCEEDING in Certiorari to review a judgment of the Industrial Accident Commission. The facts are stated in the opinion of the court. Edwin H. Williams, and George J. Hatfield, for Petitioner. Christopher M. Bradley, and Redman & Alexander, for Respondents.

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

<p>MOTION to dismiss an 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>Waters and Water Bights—“Foreign” Waters—Bights of Biparian Owners.—Those who augment water of a stream by the addition of water brought from sources outside the watershed may at their pleasure discontinue such increment and leave without remedy riparian owners below, who cannot by adverse possession or user obtain any easement or right against those who thus add to the corpus of the stream.</p> <p>Id.—Bight of Lower Against Upper Biparian Owners.—Where, in an action by lower riparian owners against upper riparian owners to restrain a diversion of waters, it appeared that for upward of half a century the waters of the stream, the rights to which were in question, had been augmented by foreign waters made up of sewage from a city and water discharged from mines, mills, and other sources, all without the watershed of the stream, and that these were the waters which the plaintiff sought to enjoin the defendant's from taking, the defendants had the right to invoke the rule that the plaintiffs must rely upon t'he strength of their own title and not upon the weakness of that of their adversaries.</p> <p>Id.—Bight to Abandoned Waters.-—Since the surplus or foreign waters, in such case, would not, in the course of nature, reach the land of the riparian owner below, that owner may not complain of being deprived thereof by the producers of the excess or by t'heir assignees, or by a stranger to their title who appropriated it.</p> <p>Id.—Bight to Use Foreign Waters Outside Watershed.—In such case those who first secured the abandoned foreign waters may not be deprived of the use of it, even outside of the stream, by one claiming as a lower riparian proprietor on the stream.</p> <p>Id.—Judgment—Certainty,—Where in such a case the court found that the foreign water in the stream is never less than five hundred inches nor more than one thousand four hundred inches, and that the natural flow is always at least 1,191 inches, a judgment adjudging the defendants to he entitled t'o all the foreign water not exceeding one thousand four hundred inches and enjoining them from taking more than that quantity is not open to attack as being uncertain.</p> <p>Id.—Judgment—Evidence not in Record—Findings Justified by Evidence.—Under the rule favoring the sustaining rather than the reversal of judgments, it will be assumed that evidence not set forth in the record justifies the findings, and that a judgment is in accordance with fairness and equity.</p> <p>Id.—Jurisdiction of Subject of Action—County Where Action Commenced.—Where the plaintiff sought to quiet its title to the natural flow of water of a river at the plaintiff’s lands in Tuba County, the mere fact that' a tributary creek had a separate name and extended through another county did not make it less a part of the river, and the trial court properly found that the plaintiff’s right sought to be quieted was a part and parcel of the plaintiff’s Tuba County lands, so that the superior court' of Tuba County had juris- ' diction of the action under section 5 of article VI of the constitution.</p>

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

<p>Minor—Mortgage and Deed of Trust of Void—Disaffirmance and Restoration Unnecessary.—A mortgage or a deed of trust executed by a minor under eighteen years of age is absolutely void, and no legal duty of disaffirmance or of restoration of the consideration received devolves upon the minor as a condition of disaffirmance.</p> <p>Id.—Ratification Under Age Ineffectual.—An instrument executed by a minor before attaining the age of eighteen purporting to confirm and ratify a previous deed of trust executed by her is ineffectual for the purpose of validating the original deed.</p> <p>Id.—Findings—Rule of Construction.—Findings should be construed most strongly in support of the judgment.</p> <p>Id.—Finding Construed as Conclusion of Law.—A finding that, by reason of certain probative facts previously found, the plaintiff “is and ought to be estopped and prevented from asserting or proving, and ought not to be and will not be permitted to prove that she was on the fourteenth day of January, 1914, or at any time after the thirty-first day of January, 1913, or that she is, or at the commencement of the action was, under the age of eighteen years,” is not one of fact, but a conclusion of law from the facts found.</p> <p>Id.—Ultimate Fact Found from Probative Facts.—An ultimate fact, drawn as a conclusion from probative facts previously found, cannot Stand if the specific fact's upon which it is based do not support it.</p> <p>Id.—Estoppel.—To establish an estoppel, in such a case, there must be some act of the minor performed, after reaching an age where she has capacity to act, equivalent to the execution of a new contract, or operating as an estoppel.</p>

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

<p>Fraud on Creditors—Transfer of Property—Construction of Section 3442, Civil Code.—Section 3442 of the 'Civil Code, providing that a transfer of property without valuable consideration by a party while insolvent, or in contemplation of insolvency, shall be fraudulent and void as to existing creditors, has no application to a case where the party was not an existing creditor at the time of the transfer and there is no allegation that at that time the debtor was either insolvent or in contemplation of insolvency.</p> <p>Id.—Action to Subject Bealty to Claim—Pleading—Insolvency.— In an action to subject certain real property t'o the claim of a creditor of one who is alleged to have transferred it to a corporation for the purpose of defrauding his creditors, an allegation in the complaint that the debtor “is insolvent” relates to the time of the beginning of the action, and where the record shows that the action was begun at least six years after the transfer was made, the allegation was insufficient to show that' the debtor was insolvent or in contemplation of insolvency at the time of the transfer.</p> <p>Id.—Alleged Trust—Insufficiency of Complaint.—In such an action, where the complaint alleged in effect that' on a certain date a certain person was the owner of the property in question and that it was agreed between him and others that a corporation should be organized for the purpose of saving said property from his creditors, that he should remain in possession thereof and use the property as his own, and that the title should be transferred to the corporation without consideration, which things it was alleged were carried out in pursuance of the agreement, and that hut for said “resulting trust in his favor, and said ownership of said property, the grantor is wholly insolvent,” and it was further alleged that plaintiff recovered a judgment against the grantor upon a demand for money advanced after the conveyance to the corporation, which judgment is wholly unpaid, execution thereon having been returned unsatisfied, such complaint does not allege fact's showing any trust in the property in favor of the debtor or his creditors.</p> <p>Trusts in Bealty—Section 847, Civil 'Code.—By section 847 of the Civil Code it is declared that trusts in real property are those only which are specified in title IV of part II of division second of the Civil Code.</p> <p>Id. — Consideration for Transfer — Section 853, Civil Code.—The trust provided for by section 853 of the Civil Code arises only where there is a consideration paid; and an allegation that there was no consideration for a transfer alleged to have been made to defraud creditors takes the case out of the provisions of that' section.</p> <p>Id.—Conveyance Without Consideration.—A conveyance without consideration creates no trust in favor of the grantor.</p> <p>Id.—Involuntary Trust.—An involuntary trust arises- when one wrongfully detains a thing from the owner, or gains a thing by fraud, accident, mistake, or undue influence, the violation of a trust, or other wrongful act.</p>

<p>Will—Contest of Will—Mental Capacity—Burden of Proof.—On the contest of a will on the ground of insane delusions amounting to unsoundness of mind, the burden is on the contestant to prove the existence of the alleged delusions.</p> <p>Id.—Insane Delusions—Burden of Proof, How Sustained.—To prove the existence of insane delusions on the contest of a will, the contestant must not only show that the delusions had no foundation in fact, but also that there was no evidence, however slight or inconclusive, of any fact upon which the belief could be founded.</p> <p>Id.—Mental Alienation — Perverse Opinions and Unreasonable Prejudices.—In questions of testamentary capacity, courts should be careful not to confound perverse opinions and unreasonable ’ prejudices with mental alienation.</p> <p>Id.—Insane Delusions of Testator Respecting His Children— Questions to be Considered by Jury.—Where, on the contest of a will, it was claimed by the contestant that the testator had entertained insane delusions respecting his daughters (the contestant and her sister), their moral character, and their conduct toward him as well as the extent of the provision he had already made for them by gifts of money and property, and their financial circumstances, it was proper for the jury to consider the testator’s nature and temperament, his advanced age, the circumstances under which statements attributed to him were made, and the general conduct of his daughters toward him.</p> <p>Id.—Evidence.-—Where the belief entertained by the testator, in such case, that his daughters had large sums of money loaned out and in bank was the chief delusion alleged to have contributed to the making of the will, evidence which tended to establish such fact was competent to show that such belief was not a delusion, but founded in truth, and also as tending to show that the testator had in fact, as declared by him, made ample provision for his daughters.</p> <p>Id.—Opinion Evidence—Evidence as to Testator’s Appearance—. Objection to Form of -Question—Unprejudicial Error.—Where, on a witness for contestant being asked what, if anything, tie had observed in the testator’s appearance, conversation, or any other thing pertaining to him, before making of the will, which would cause or induce him to believe that the testator was not entirely rational, the court sustained an objection to the form of the question, saying that if the witness was called as an intimate acquaintance for the purpose of testifying as to the testator’s sanity, he must first state whether he believed the testator to have been of unsound mind, as provided in subdivision 10 of section 1870 of the Code of Civil Procedure, which provides that upon a trial, evidence may be given of “the opinion of an intimate acquaintance respecting the mental sanity of a person, the reason for the opinion being given,” and counsel for contestant, refusing to comply with the court’s suggestion, restated the question in substantially the same form, and a like objection was sustained, it was the duty of counsel to reframe the question in compliance with the suggestion of the court, or to have clearly indicated to the court that the evidence sought was as to acts and conduct, and to establish the existence of insane delusions, and not having done so, he was in no position to complain.</p> <p>Id.—Declarations of Testator’s Intentions in Conformity With Will.—Evidence for the proponent of the testator’s declarations prior to the making of the will that he intended to leave his property to beneficiaries named therein was properly admissible.</p> <p>Id.—Evidence of Testator’s Opposition to a Daughter’s Marriage.—■ Evidence for the proponent of the will in such ease that the testator was opposed to the marriage of one of his daughters, a sister of the contestant, was properly admitted although the marriage occurred after the making of the will, the testator having left his property to nephews instead of to his daughters, who were his next of kin.</p> <p>Id.—Cross-examination—Impeaching Witness by Proof of Inconsistent Statements.—Where, in such case, the contestant had testified that her father had been insane since 1897, and her sister had testified that he was always insane, the trial court properly admitted, on cross-examination, as impeaching testimony, a verified answer of the contestant in a suit brought by the father against the daughters to set aside a conveyance made to them by him in which answer the contestant alleged that in 1909, at the time of the execution of the deed, her father was mentally sound, and a verified answer by the sister in the same suit adopting the former answer “as fully as if she had originally joined therein.”</p> <p>Id.—Evidence—Testamentary Capacity—Testator’s Acts and Conduct.-—In a will contest involving testamentary capacity of the testator, both parties are properly permitted great latitude as to the conduct, acts, and declarations of the testator, both before and after executing the will.</p> <p>Id.—Presumption as to Instructions.—While such evidence is important only as it bears upon the condition of testator’s mind at the very time of the execution of the will, it must be assumed that the jury was properly instructed as to the application of the facts proved, where the contrary is not shown.</p> <p>Id.—Rebuttal Evidence—Exclusion not Erroneous.—Where some of the proponent’s witnesses, in testifying to the testator’s sanity, referred to certain specific acts on his part, subsequent to the making of the will, in connection with a building erected by him on a lot owned by him in San Francisco, on which he executed a mortgage for part of the money used in the construction, it was not error to exclude testimony offered as rebuttal, by which the contestant sought to show by the architect who drew up the plans the extent to which the testator looked after the construction, since the evidence was not in rebuttal of any facts testified to by the proponent’s witnesses.</p> <p>Id.—Will as Result of Delusion—Burden of Proof.—To set aside a will on the ground of insane delusions on the part of a testator, the contestant must establish three things; namely, the existence of the beliefs, the fact that there was no evidence, however slight or inconclusive, which could have produced the beliefs, and that the will made was the result thereof.</p>

<p>Criminal Law—Murder—Evidence Sufficient.—Evidence examined and found sufficient to support a verdict of guilty of murder in the first degree.</p> <p>Id.—-Qualification of Juror—Belief in Innocence of Defendant.—■ Absolute belief of defendant’s innocence is not an essential qualification of a juror, and it is not error to disallow a challenge based on the fact that the juror, on examination as to his qualifications to serve, could not say that he then had no doubt of the defendant’s innocence.</p> <p>. Id.—Evidence—Contradictory Answers—Decision of Trial Court Conclusive.—Where the answers of a juror to questions of counsel on examination as to his qualifications are contradictory, the trial court must decide which of the answers most truly show the juror’s mind, and its decision is binding on t'he appellate court.</p> <p>Id.—Diagram for Illustration—Admissibility.—It was not error to admit in evidence, for the purpose of illustration only, a diagram shown, to be accurate in all respects.</p> <p>Id.—Personal Observation not a Conclusion of a Witness.—In a prosecution for murder, the statement of a witness that on hearing shots he looked out of a window and “thought1 he saw somebody lying on the sidewalk” was not a conclusion, but simply the result of personal observation of the witness, and refusal of the court to strike out that portion of an answer of the witness was not error, the objection to such testimony going not to its legality but purely to its weight, which is a question for the jury.</p> <p>Ib.—Facts Tacitly Admitted by Silence.—Evidence that when the defendant was arrested and a pistol taken from him, officers, in his presence and hearing, “broke” it and smelled it and said it had been recently fired, and that the defendant remained silent, was properly admitted, as tending to show a tacit admission of the truth of the statement, the weight of which was a question of fact for the jury.</p> <p>Ed.—Confessions—Voluntary Statements—Admissibility of.—Voluntary statements of the accused denying the accusation and containing no acknowledgment of guilt', hut stating facts which, with others, may tend to establish guilt, are not confessions, and are admissible without the preliminary proof required as to confessions.</p> <p>Id.—Appeal — Facts Admitted by Stipulation — Invited Error.— In view of the circumstances, prejudicial error cannot be predicated on the admission by stipulation of evidence that one accused of murder was under a sentence of deportation as an undesirable alien.</p> <p>Id.—Conduct op Trial—Presumption Against Error.—The fact that it was disclosed on the trial that the defendant was a member of the I. W. W., cannot' be assumed by the appellate court to have influenced the jury in arriving at a verdict, an examination of the record disclosing no ruling of the trial court in regard to the matter that can be held erroneous.</p>

<p>Workmen’s Compensation Act—Mining Partnership — Injury to One Partner—Partner not an Employee.—Where a mining partnership sent one of its members to examine a mine owned by the partnership, agreeing .to pay Ms expenses and five dollars a day for Ms time, and he was killed at the mine by machinery owned and operated by the partnership, the Industrial Accident Commission properly held, on an application by his widow for relief against the partnership and its insurer, that the deceased was not an employee within the meaning of the Workmen’s Compensation Act (Stats. 1913, p. 284, see. 14).</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>Building and Loan Associations—Appointment op Custodian by Commissioner —■ Compensation op Custodian — Premature Action-Pendency op Appeal.—Under section 9 of the “Building and Loan Commission Act” '(Stats. 1911, p. 607; amended Ex. Sess. 1911, p. 6), when the commissioner determines that a building and loan association is conducting its affairs in an unsafe manner and appoints a custodian of its property and assets, and on a proceeding by the attorney-general for the approval and confirmation of the act of the commissioner, judgment is rendered disapproving his action in taking possession of the business and affairs of the association, and an appeal is taken from that judgment of disapproval, the custodian has no right of action to recover his compensation fixed by the commissioner, while that appeal is pending.</p>

<p>Inheritance Tax—Proceeding to Recover from Executor.—In a proceeding by the district attorney against an executor to recover taxes, under the inheritance tax law, as it' existed in 1902, such executor may demur to the application in the same manner and for the same causes as in ordinary civil actions.</p> <p>Id.—Statute of Limitations.—The statute of limitations was applicable to the liability of t'he executor for inheritance taxes, under the inheritance tax law as it existed in 1902.</p> <p>Id.—When Statute Began to Run.—The statute of limitations began to run in favor of the executor, upon Ms liability for such taxes, upon the expiration of tMrty days from the final settlement of the estate, at the very latest.</p> <p>Id.—Statute of Limitations—Act of 1913 Does not Revive Causes of Action Previously Barred.—Section 4 of the Inheritance Tax Act of 1913, in so far as it attempts to remove the bar of the statute of limitations from causes of action which were barred at the time of its enactment, is inoperative, it being an attempt to divest rights already vested.</p>

<p>Taxation—Interest in Land—Not Limited to Title in Fee.—The property in land which is taxable is not limited to the title in fee, but may include any usufructuary interest, or even a mere right of possession.</p> <p>Id.—Action to Becover Taxes—Interest in United States Lands— Illegality op Assessment—Pleading.—In an action to recover taxes paid on lands of the United States selected under the act of ■Congress of June 4, 1897, on the ground that the same were illegally assessed, the complaint is fatally defective in that it fails to show that plaintiff is without an assessable interest, where it alleges that proper certificates for the selected lands have been issued by the United States, but that plaintiff has never been in the actual or constructive possession thereof, that the lands have been in litigation ever since the issuance of the certificates, and that, therefore, the proper authorities refuse to approve the selections or to issue patents.</p>

<p>APPLICATION for 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>APPLICATION for Writ of Mandate to be directed to the Superior Court of the City and County of San Francisco and: to James M. Troutt and John T. Nourge, Judgeg.</p> <p>The facts are stated in the opinion of the court.</p>

The ordinance referred to in the opinion (No. 833) provides that whenever the free passage of any street or sidewalk shall be obstructed by a crowd, except on occasion of public meeting, the persons composing such crowd shall disperse by moving on when directed so to do by any police officer, and makes violation thereof a misdemeanor.

<p>APPLICATION for a Writ of Habeas Corpus and a Writ of Certiorari.</p> <p>The ordinance referred to in the opinion (No. 833) provides that whenever the free passage of any street or sidewalk shall be obstructed by a crowd, except on occasion of public meeting, the persons composing such crowd shall disperse by moving on when directed so to do by any police officer, and makes violation thereof a misdemeanor.</p>

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

APPEALS from judgments of the Superior Court of Los Angeles County, and from orders denying new trials. Frank G. Finlayson, Judge. The facts are stated in the opinion of the court. Frank Karr, R. C. Gortner, A. W. Ashburn, Jr., and W. R. Millar, for Appellant.

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

<p>PROCEEDING in Certiorari to review an award of the Industrial Accident Commission.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Negligence—Motor Vehicles—Collision Between Automobile and Motorcycle—Injury to Rider on Motorcycle—Appeal—Conflicting Evidence.-—Since an appellate court cannot weigh conflicting evidence, it will not review it, but will affirm a judgment for the plaintiff, on a trial by the court of am action for damages for personal injuries sustained by the plaintiff, through the defendant negligently running his automobile in.to plaintiff's motorcycle, where the finding of defendant’s negligence is supported by evidence, and where there is nothing in the record to indicate that the damages awarded were excessive.</p> <p>Id.—Omission of Findings—When not Prejudicial.—Where the complaint alleged the payment of money for medical attendance hut no evidence was offered on that question, the failure of the court to. find on that issue could not prejudice the rights of the defendant.</p> <p>Id.—County Traffic Ordinances—Accident Occurring in City— Admission of Evidence Unpréjudicial.—Although, in the instant case, the accident occurred in the city of Burbank, admission in evidence of traffic ordinances of the county of Los Angeles was unprejndicial, the provisions of the ordinances being substantially the same as those of the Motor Vehicle Act.</p>

<p>APPLICATION for Writ of Supersedeas to stay execution of a judgment of the Superior Court of Sacramento County.</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>Appeal—Order Denting New Trial.—An order made on December 1, 1917, denying a motion for a new trial was not appealable, in view of the law as it then existed (section 936 of the Code of Civil Procedure as amended by Stats. 1915, p. 209).</p> <p>Id.—Appeal from Judgment—Matters Beviewable on.—It was the clear intent of the legislature in taking away the right of appeal from an order denying a motion for a new trial, by the amendments of 1915 (Code Civ. Proe., sees. 939, 956, 963), to provide for a review of all matters that might be considered on such an appeal on an appeal from the judgment, and the plain purpose of the last provision of section 939 of the Code of Civil Procedure, as so amended, was to give to the party an opportunity for such a review in any and every case in lieu of the review previously afforded.</p> <p>Id.—Time for Appeal from Judgment.—Although no appeal from the judgment in a case had been taken at the time of the amendments of 1915, abolishing the right to appeal from an order denying a new trial, and the time for appeal' from the judgment, under the law as it existed up to that time, had long since lapsed, where there had been initiated in due time and there was pending until after the change in the law a proceeding on motion for a new trial, an appeal from a judgment taken within thirty days after an order denying a new trial was taken in time.</p>

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

<p>Banks and Banking—Loans by Commercial Banks in Excess of Statutory Limit—Validity.—Sections 1607 and 1667 of the Civil Code have no application to loans made by a commercial bank in excess of the limit fixed and permitted by section 80 of the “Bank Act,” as amended in 1911; and the obligation on notes and mortgages made for the payment and security of such loans may be enforced both against the maker and the guarantor on the notes, and against the mortgaged property by foreclosure.</p> <p>Mortgage—Foreclosure—Judgment for Deficiency Against Guarantor.—In an action against the maker and the guarantor of two notes secured by mortgages, a decree of foreclosure adjudging each of the defendants personally liable for the amounts of the notes, and directing a sale of the mortgaged premises and the application of the proceeds to the payment of the debt, is not erroneous as pronouncing a personal judgment before exhausting the security, since this does not mean that the whole amount under the judgment might be collected against the guarantor without resort to the security.</p>

PROCEEDING in Certiorari to review an award of the Industrial Accident Commission. The facts are stated in the opinion of the court. Ira A. Campbell, McCutchen, Olney & Willard, and John F. Cassell, for Petitioners. Christopher M. Bradley, and Warren H. Pillsbury, for Respondents.

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

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

<p>APPLICATION for 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>