Volume 178 — California Reports

<p>Municipal Corporations—Los Angeles Charter—Gift by Individual of Buildings for Park—Void Ordinance—Interference With Powers of Park Commissioners.—An ordinance of the city council of Los Angeles accepting the proposal of a private person to erect at his own expense as a gift to the city a “Greek Theater” and a "hall of science and observatory” in one of the city parks is void, being in violation of the charter which vests the management and control of the park system in the board of park commissioners, where the condition of the gift, imposed by the donor, and the ordinances accepting the gift and attempting to comply with the conditions, provided that the plans for the structures were to be furnished by the donor “subject to the approval of the mayor” or a committee, that the structures were to be erected under the supervision, not .of the park commissioners, but of “three citizens appointed by the mayor” thereto authorized by ordinance, and that after the erection of the structures they were to be managed and controlled, not by the park commissioners, but by the said appointees of the mayor.</p> <p>Id.—Special Provisions of Charter Construed.—The ordinance accepting the gift and providing for the appointment of a committee in accordance with the conditions of the gift was not justified by a provision in the charter empowering the city “to receive gifts ... in fee simple or in trust' for charitable or other purposes; and to do all things and acts necessary to carry out the purposes of such . . . donations with power to manage . . . the same in accordance with the terms of the . . . donations”; nor was the ordinance authorized by a provision in the charter that vests all the legislative power of the city “except as hereinafter otherwise provided” in the council and mayor, since one of t'he express reservations thereafter “otherwise provided” in the charter is that the board of park commissioners has power to accept gifts for the park for and on behalf of the city, to erect buildings thereon, to manage and control their erection and their maintenance thereafter.</p> <p>Id.—Injunction—Parties—Citizens and Taxpayers—Capacity to Sue. The plaintiffs, alleged to be citizens and taxpayers, had legal capacity to sue the committee appointed by the mayor from carrying out the provisions of the ordinance and interfering with the park commissioners, since the ordinance required the furnishing of property of the city, to wit, free light, power, water, rock and gravel in the erection of the buildings.</p> <p>Id.—Park Commissioners.—The plaintiffs were proper parties to sue for the further reason that they are alleged to be members of the board of park commissioners, and as such commissioners, charged with the erection of public buildings in the parks, they are specially interested in the question.</p> <p>Id.—Injunction PIropeb Remedy.—Injunction in such case was the proper remedy.</p>

<p>Husband and Wife—Deed to Both—Presumption—Separate Property.—Under section 164 of the Civil Code as amended in 1889 (Stats. 1889, p. 328), a conveyance of property to a married woman and her husband presumptively vested an undivided one-half interest in the wife as her separate property..</p> <p>Id.—Rebuttable Presumption.—Such presumption is not conclusive, except with respect' to a bona -fide purchaser for value, and may be overcome by evidence showing that, notwithstanding the form of the conveyance, the property belongs to the community.</p> <p>Id.—Community Character.—Burden op Proof.—Where a deed of conveyance has been made to a husband and wife, the burden of proving the community character of the property rests on the husband.</p> <p>Id.—Property Acquired With Community Funds—Gift—Intent.—</p> <p>" Where property conveyed to husband and wife is purchased with community funds, the property acquired would be community property unless there was an intent on the part of the husband to make a gift to the wife of the interest transferred to her name.</p> <p>Id.—evidence.—Form of Conveyance.—The fact that a conveyance of property purchased with community funds is made in form to both the husband and the wife is itself some evidence of an intent on the part of the husband to make a gift to the wife of the interest conveyed to her.</p> <p>[d.—Question of Fact.—The husband’s testimony in such ease that' he did not intend to make a gift to the wife is not conclusive, but the intent accompanying the act is to be inferred by the court or jury from all the circumstances.</p> <p>Id.—Evidence Sustaining Findings.—Evidence found sufficient to sustain a finding of fact supporting the presumption that a conveyance to a husband and wife vested the undivided one-half of the property in the wife.</p> <p>Costs—Representative Description—Individual Liability.—The fact that parties plaintiff in an action described themselves in their complaint as a “water committee for residents of Block A, etc.,” does not alter their status as parties to the action, and a judgment for costs runs against them as individuals.</p>

<p>Negligence — Injury from Touring Oar to Invited Passenger on Auto Truck — Imputed Negligence — Instructions.—Where the driver of an auto truck invited the plaintiff to ride with him, and the plaintiff, while about to board the truck, was struck and injured by defendant’s passing touring car, it was proper to instruct the jury that if they found from the evidence that the plaintiff was about t'o board the truck as the guest of its driver, neither exercising nor assuming any control over it, then, even though they might also find that the auto truck was not properly equipped or lighted, or that its driver was negligent in any other respect, such negligence must not be imputed to the plaintiff, he being responsible only for the exercise of ordinary care on his own part.</p> <p>Id.—Acceptance of Conditions by Invited Passenger—Instruction Refused.—In such case the refusal of an instruction that the plaintiff, when he was in the act of getting on the auto truck, which was standing in the street, accepted the conditions there existing, including the position in which said auto truck was standing, was not erroneous.</p> <p>Id.—Matters not Under Control of Invited Passenger.—Even assuming that the relation of driver and passenger had arisen upon the acceptance by plaintiff of the driver’s invitation to ride, the passenger is not to have imputed to him the negligence of the driver in respect t'o matters over which the passenger or a person about to become a passenger had no direction or control.</p> <p>Id.—Exercise of Proper Care by Plaintiff—Question of Pact for Jury.—Whether or not the plaintiff exercised proper care under the circumstances of the instant case was a question of fact for the jury.</p> <p>Id.—Municipal Ordinance—Violation of Ordinance by Driver.—A municipal ordinance of the city where the accident occurred, making it unlawful to stop any vehicle on any street unless the side next the curb was not more than two feet from the curb was properly excluded when offered in evidence by the defendant, since the violation of the ordinance by the driver was entirely immaterial, except on the doctrine of imputed negligence which was eliminated from the case.</p> <p>Id.—Contributory Negligence—Question of Pact for the Jury.— In the case at bar the record does not show that' the plaintiff was guilty of contributory negligence, but that the question of contributory negligence was, under proper instructions, a question of fact for the jury.</p> <p>Id.—Unavoidable Accident—Not Shown by Evidence.—Where the evidence showed that the plaintiff was on a public street in plain sight, for a distance of 150 feet, of the driver of the defendant’s touring car, and was there run into from behind by the defendant’s car, while the driver had practically three-fourths of the width of an otherwise unoccupied street in which to have altered his course to avoid striking the plaintiff, an appellate court cannot say, as a matter of law, that the accident was unavoidable.</p>

<p>The facts are stated in the opinion of the court.</p> <p>Trask & Brown, Edgar K. Brown, and Everett L. Ball, for Appellants.</p>

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

<p>Workmen’s Compensation Act—Federal “Employers’ Liability Act” —United States, Court Decisions.—Upon the question whether a given employment falls within t'he scope of the Federal “Employers’ Liability Act” (35 U. S. Stats. 65), the decisions of the United States courts are of controlling force.</p> <p>Id.—Electric Railways — Death of Lineman — Character of Employment— Interstate Commerce — Jurisdiction of Industrial Accident Commission.—Where an electric lineman was killed by an electric shock received while he was engaged in wiping insulators on the main power line .of a railway company which operated a system of electric railways, with cars used both in intrastate and interstate commerce, and maintained a main power-house for the generation of electric power, whence it transmitted an alternating current of high voltage through a main power line to substations, where the current was converted by converters and transformers to a direct current of reduced voltage and passed thence to trolley wires, and from them to the motors on the cars, the Industrial Accident Commission had jurisdiction to make an award, since the main power line on which the deceased was working was not part and parcel .of the railroad or its equipment, but an instrumentality by gneans of which something necessary for the operation of the cars was brought to a point where it could be usefully applied, and all that those engaged in keeping the main power line in order did was to assist in putting on the trolley line the necessary power to be used by the operatives of the road as desired.</p>

<p>APPEAL from a decree of the Superior Court of the City and County of San Francisco. Thos. F. Graham, 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>Edward C. Harrison, Maurice E. Harrison, Edgar K. Brown, and Trask & Brown, 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>

APPLICATION originally made to the District Court of Appeal of the First Appellate District for a Writ of Certiorari to a resolution of the City Council of Oakland in a street improvement proceeding. The facts are stated in the opinion of the court.

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

<p>The facts are stated in the opinion of the court. ■</p> <p>James P. Sex, R. P. Henshall, R. C. McComish, and A. H. Jarman, for Appellant.</p> <p>U. S. Webb, Attorney-General, John H. Riordan, Deputy Attorney-General, Arthur M. Free, District Attorney, and Archer Bowden, Deputy District Attorney, for Respondent.</p>

MOTION to dismiss appeal from a judgment of the Superior Court of Orange County. Z. B. West, Judge. The facts are stated in the opinion of the court.

<p>Appeal—Insufficient Becord.—A “statement of the ease” in the transcript, not stipulated to or authenticated, is not a record upon which alleged errors can be reviewed.</p>

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

<p>APPEAL from a judgment of the Superior Court of Imperial County. Franklin J. Cole, 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>Summons—Service by Publication—Sufficiency of Affidavit.—The affidavit upon which an order for publieation of summons was procured in a case in which the judgment is sought to be set- aside herein is held to be sufficient to show the exercise of due diligence in searching for defendant and that he could not be found.</p> <p>Id.—Requirements of Affidavit—Conclusiveness of Decision.—If t'he facts set forth in an affidavit to procure an order for publieation of summons have a legal tendency to show the exercise of diligence on behalf of the plaintiff in seeking to find the defendant within the state, and that after the exercise of such, diligence he cannot be found, the decision of the judge that the affidavit shows the same to his satisfaction is to be regarded with the same effect as is his decision upon any other matter of fact submitted to his judicial determination.</p> <p>Id.—Whereabouts of Defendant—Lack of Knowledge of Plaintiff— Affidavit Sufficient.—The affidavit on which an order for publication of summons is procured is sufficient, although not declaring expressly that the plaintiff affiant did not himself know the whereabouts of the defendant, where such lack of knowledge can reasonably be inferred from the language of the affidavit.</p> <p>Action to Set Aside Judgment—Fraud—Failure to Offer Evidence— Judgment Dnsustained.—Where the complaint in an action to set aside a judgment alleged, and the trial court fóund, the existence of a state of facts which would have warranted equitable relief against such judgment, but it appears from the record that the plaintiff failed at the trial to offer any evidence in support of allegations which were material to the claim for relief on the ground of fraud, and the bill of exceptions embodied proper specifications of the insufficiency of the evidence to sustain the findings in that regard, and the appellant made the point in his brief, the judgment in favor of the respondent cannot be sustained.</p>

<p>Promissory Notes—Pledge of Stock—Sale Without Demand or Notice.—In a clause in promissory notes, secured by a pledge of stock, giving the holder the right to call for additional security, and providing that on failure to respond the notes should immediately become due and payable, or on the nonperformance of “this promise” the payee should have full power to sell the security at public or private sale without demand or notice, the provision for sale- without demand or notice referred not only to a failure of the maker to respond to a call for additional security but also to any nonperformance of the maker’s promise embodied in the notes.</p> <p>PLeadinqs—Amendment of Answer—Refusal of Permission at Trial—Discretion of Court.—There is no abuse of discretion of the trial court in refusing permission to a defendant to amend his answer, where the application is made on the day of the trial, five months after the filing of the original answer, and the matters proposed to be set up in the amended answer are utterly inconsistent with the averments of the original answer, were _ known to the defendant at the time his original answer was filed, no showing being made why they were not embraced in the original answer, or why the application for permission to amend was not made earlier, and the matters hardly constituting a defense to the action.</p> <p>Corporations—Agreement Executed by Manager.—On the trial of an action on certain promissory notes of which a corporation was payee, evidence was properly excluded of a purported agreement by the corporation for the employment of the defendant for a term of years at a salary which was to be applied to the payment of the notes, the agreement being signed by the manager of the corporation, without the corporate seal, there being no showing what the manager’s powers were, or that he had ever been authorized to enter into the agreement, which was outside the usual course of business of the corporation, and far beyond the ordinary powers reposed in managers of such institutions.</p>

<p>Wills—Nontestamentary Instrument—Befusal of Probate.—Probate is properly refused of a writing offered as the will of a deceased husband but purporting on its face to be a mere agreement between the husband and his wife for the support of the latter, and manifestly not drawn and signed animo testandi.</p> <p>Estates of Deceased Persons — Executors and Administrators — Bight of Widow to Letters — Waiver and Withdrawal of Waiver.—A widow, entitled to letters of administration on the estate of her deceased husband, having requested the court in writing to grant the administration to her children, is not estopped thereby from withdrawing her request before the hearing and applying for letters to herself.</p> <p>Id.—Waiver Without Estoppel—Discretion of Trial Court.—Although there is no strict estoppel in pais in such case, a party may be held to a waiver of a prior right to letters even though the elements of an estoppel in pais do not appear, the rule being that where it is sought to retract such a waiver, it is for the trial court, in the exercise of a sound discretion, to determine whether greater weight should be given to the original surrender or to the subsequent assertion of the right.</p> <p>Id.—Separate Property of Husband—Surrender by Widow of Bight to Succeed—Finding on Withdrawn Issue—Harmless Error.— Where, by the pleadings, an issue was made as to the validity and effect of an agreement between the decedent' and his wife, who survived him, by which, as claimed by the children, the widow had surrendered any right to succeed to the separate property of the decedent, but a stipulation was made during the trial between the parties with the consent of the court, by which the issues regarding the agreement were withdrawn from consideration as immaterial, th'e court should not have undertaken to pass upon the issues thus withdrawn, but the error in passing upon such issues and making a finding against the widow with respect to such agreement was harmless under the circumstances since, on the entire record, it appears that the finding relates to a matter that was not material, and that such finding will not, therefore, control the parties in any subsequent proceeding.</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. Fred H. Taft, 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>J. Irving McKenna, and Catherine A. McKenna, for Appellants.</p>

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

<p>Negligence — Pleading—Complaint — Allegation of Negligence in General Terms.—It is sufficient in a complaint to allege negligence in general terms, and when that which is done is stated, it is sufficient to say that it was negligently done, without stating the particular omission which rendered the act negligent.</p> <p>Id__Injury to Patron of Theater—Tripping on Loose Carpet—Sufficiency of Complaint.—In an action against the proprietor of a theater to recover damages for injuries sustained by a patron, through tripping on a loose carpet, a complaint alleging that the defendant conducted his theater negligently, in that a strip of carpet in a balcony aisle was so loosely laid that the plaintiff in passing down the stairs was tripped and thrown, and thereby sustained the injuries complained of, is sufficient'.</p> <p>Id.—Evidence—Condition op Carpet Shortly After Accident—Discretion op Court.—In an action for injuries sustained by tripping and foiling on a loose carpet in a theater it was within the discretion of the trial court to admit evidence of the condition of the carpet two days after the accident, especially where there was other evidence that there had been no change in its condition in the meantime.</p> <p>Id.—Nonsuit Properly Denied.—A motion for a nonsuit was properly denied in súeh case, where the testimony of the plaintiff and other witnesses showed that as she was going down the stairs in question her foot slipped because of the loose condition of the carpet, and that her fall was occasioned thereby.</p> <p>Id.—Theater Proprietor’s Duty to Patrons.—It is the duty of a theater proprietor in maintaining a carpet on the steps of his theater, to maintain it in such condition that it will be safe fo\ persons to pass thereon in an ordinary manner.</p> <p>Instructions—Unnecessary Amplifications.—A trial court need not give the jury requested instructions covered by those, given, nor amplify unnecessarily propositions which to a jury of ordinary intelligence would be apparent from the instructions given.</p> <p>Appeal—-Conflicting Evidence—Verdict Conclusive.—The verdict of a jury on conflicting evidence cannot be disturbed on appeal.</p>

<p>Wills—Devise of Pee—Unrestricted Power of Sale—Inconsistent Limitation Void.—It is the unquestionable rule that where an absolute property in an estate is devised or an unrestrained power. • of sale is given, a limitation over to another is void as inconsistent with the first estate.</p> <p>Estates of Deceased PIersons—Trust—Decree of Distribution— Collateral Attack.—A decree of distribution establishing a trust under a will is not open to attack in a suit for partition of the property.</p> <p>Id.—Trust Under Decree Construed—No Estate in Eee—Not an Unrestrained Power or Disposition.—Where by a decree of distribution the estate of a testator was distributed to children share and share alike upon trust to use the income for their lives, or until such time after ten years from the death of the testator as they should agree upon a sale, when the proceeds should be divided among the children and the heirs of the body of deceased children, and in the absence of such sale by agreement, and of such division of the proceeds, then, upon the death of all the children, the property to be divided among the heirs of their body, the original distributees did not take an estate in fee simple and no unrestrained power of disposition was conferred upon them.</p> <p>Id.—Partition—Eights op Widow and Devisee op One op the Children.—In such case, where there had never been any agreement t'o dispose of the property during the Efe of all of the testator’s children, upon the death of one of the original distributees childless, his widow, to whom all his property passed by his will, could not maintain an action for partition of the trust property mentioned in the decree of distribution, since she never acquired any interest in it.</p>

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

<p>Husband and Wife—Action fob Maintenance—Cloud on Title to Property—When Immaterial.—In an action for maintenance, where the complaint shows that the husband has ample property to maintain the wife other than that conveyed to his codefendants, the wife is not injured by and cannot sue to remove the cloud on the husband’s title caused by its conveyance.</p> <p>Id.—Change of Place of Trial.—Where no cause of action is stated against his co defendants in an action for maintenance, the defendant husband is entitled to have the cause removed for trial to the county of his residence.</p>

Id.—Conveyance by Debtor to Creditor—Findings of Fact—Conclusion of Law not Supported.—Where the owners of land, which is subject to a deed of trust executed by them as security, convey the land t'o the holder of the note and security, findings of fact to the effect that the conveyance was made in extinguishment of the debt, under threat by the owner of the security to foreclose unless such deed was made, do not support a conclusion of law that the grantee under the deed has…

<p>Practice — Pleading — Cross-complaint Bringing in Third Party — Verdict—Failure to Find as to Cross-defendant—Waiver of Defects.—Where, in an action for the purchase price of certain cattle, the defendant by cross-complaint designated as a cross-defendant a third party, who, although the record does not disclose that he was served with, or answered, the cross-complaint, appeared by counsel at the trial, and the jury found a verdict in favor of the plaintiff against the defendant without finding on any of the issues raised by the defendant’s cross-complaint, if the verdict was defective in these respects, the defendant waived such defects by failing to call the attention of the court to the same before the jury was discharged, so that it might retire and correct its verdict as provided by section 619 of the Code of Civil Procedure.</p> <p>Id. — Verdict for Plaintiff — Effect on Defendant’s Cross-complaint.—In such case a verdict in favor of the plaintiff against the defendant for the amount claimed in plaintiff’s complaint was of necessity a finding against the defendant that no cause of action existed in his favor against' either the plaintiff or the third party named as cross-defendant.</p> <p>Judgment—Striking Out Part—Lack of Prejudice.—Defendant was not aggrieved by an order of the court, made on plaintiff’s motion, striking from its verdict and judgment, after their entry and the discharge of the jury, of a certain percentage of the damages awarded, as this was in his favor.</p>

PROCEEDING in Certiorari originally instituted in the District Court of Appeal in and for the First Appellate District, to review the action of the Superior Court of Alameda County in granting a motion for a new trial. P. R. Parker, 'Judge Presiding. The facts are stated in the opinion of the court.

<p>Appeal—Findings—Conflict of Evidence.—On appeal from a judgment and order denying a new trial, the supreme court, following the well-established rule, will not disturb the findings when the evidence is in substantial conflict.</p>

<p>.Negligence—Personal Injuries from Automobile—Traffic Ordinance.—In an action for damages for personal injuries sustained by the plaintiff by being struck by defendants’ automobile while plaintiff was alighting from a street-car, instructions to the jury examined and found to have correctly interpreted and applied certain provisions of the traffic ordinance of Los Angeles, where the injury was sustained.</p> <p>Id.—Bequests for Further Instructions.—In an action for damages, where the instructions to the jury given by the court' had substantially. embodied the defendant’s theory of the case, and had, as a whole, fully and fairly informed the jury as to the legal rights and duties of the respective parties, it was not error t'o refuse the defendant’s request for other instructions having the same purpose.</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>Goudge, Williams, Chandler & Hughes, and Goudge, Robinson & Hughes, for Appellant.</p>

<p>Sales—Conditional Sale—Lease With Option to Purchase at Nominal Price—Eight of Possession.—Where the owner of an automobile truck, by an instrument designated by the parties as a “lease” for the term of twelve months, gave the possession of the vehicle to the “lessee,” who agreed to pay as rental a fixed sum of which about one-third was paid in cash and the balance was to be paid in monthly installments, evidenced by promissory notes, with the right on the part of the “lessee,” on full performance, to purchase the machine for one dollar, and with the proviso that any default on the part of the “lessee” should release the “lessor” from all further obligations, and the “lessor” should then have the right to retake possession, whether the written agreement be in legal contemplation a contract of lease or one of conditional sale, the “lessee” or “purchaser” must rest his claim of possession upon the terms of the writing alone, and he was entitled to possession only so long as he complied with his obligation to pay the installments upon the dates when they fell due.</p> <p>Id.—Action by Lessee for Possession After Default—Suit by Lessor on Installment Notes.—Where, in such case, the written agreement also provided that the termination of the lease by the lessor for default on the part of the lessee should not release the lessee from the ‘payment of any sums due up to the date of such termination, and the lessee having made default in payment of the first two installments, the lessor retook possession of the machine and sued and recovered judgment on these two installment notes, the judgment in an action by the lessee to recover possession of the machine should have been for the defendant', as the action on the overdue notes did not affect the lessor’s right of possession.</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 — Street Railroads — Injury to Passenger Riding on Platform—Res Ipsa Loquitur—Misleading Statement of Rule of Law.—The statement that “the rule of law is that where an injured passenger is riding in an unusual position, which position increases his danger, the doctrine of res ipsa loquitur does not apply, and no presumption arises that resulting injury was due to the negligence of the carrier,” is misleading, it being obvious that the proof may show 'that the passenger was riding in an unusual position which increased his danger, and may also show that the injury arose from something done by the carrier in operating the car, in which ease a prima facie ease of negligence is made, and the burden is east on the carrier to show that the thing done by it which caused the injury was not the result of its negligence.</p> <p>Id.—Injury from Manner of Operating Oar or from Plaintiff’s Carelessness—Question fob Jury.—Where there is a dispute over the question whether- an injury to a passenger arose from the manner of operating the car or from plaintiff’s carelessness in standing too near the edge of the car platform, the question as to which was the cause of the injury should be left to the jury.</p> <p>Id.—Plaintiff’s Opportunity to Secure Safety—Conflicting Evidence.—In an action for injury to a passenger on a street railway car who was thrown from the platform of the car on which he was riding while rounding a curve, where it was claimed by the defendant that the plaintiff was guilty of contributory negligence in not entering the body of -the ear when the opportunity offered, and there was evidence on behalf of the defendant to show that such opportunity did present itself, but evidence for the plaintiff went to show that every seat in the body of the ear was occupied, that passengers were crowded in the aisle, and several were standing on the platform where the plaintiff was, the determination of those disputed facts, under the circumstances, was for the jury.</p> <p>Id.—Standing on Platform not Negligence Per Se.—Standing on the front platform of a moving electric ear is not, in this state, negligence per se.</p> <p>Id.—Assumption by Passenger of Risk—Instruction Properly Refused.—The trial court was justified in refusing an instruction requested in such ease by the defendant to the effect that if the plaintiff, for his own convenience, was riding on the platform and was thus exposed to dangers which he would not have incurred within the car, and if he could have entered the car a reasonable time before the accident and remained inside until the accident, he assumed responsibility for the increased risks, and if he was injured solely in consequence of such increased risks, the verdict must be for the defendant, since the requested instruction charged the plaintiff with the assumption of all increased risks, whereas the only increased risks he assumed were those occasioned by his position, and arising from the due operation of the car; he did not assume the increased risks of any misconduct of the motorman in such operation.</p> <p>Id.—Sudden Swaying or Jerk of Car—Instruction Refused.—A requested instruction, in such case, that if the plaintiff was thrown from the car by any swaying motion or sudden jerk, ordinarily incident to the running of ears, t'he verdict should be for the defendant, was also properly refused, since it implied that the plaintiff assumed the risk of such a jerk, even if it arose from the reckless operation of the car by the mot'orman, who had knowledge of the plaintiff’s presence on the platform.</p> <p>Id.—Contributory Negligence—Erroneous Instruction.—An instruction that, in effect, told the jury that as matter of law, notwithstanding the passenger’s place of added peril on the platform, which the plaintiff had voluntarily assumed, a legal presumption of negligence arose against the defendant by virtue of the fact that the plaintiff sustained injury, was erroneous.</p> <p>Id.—Instructions—General Approval of.—The supreme court’s approval generally of instructions is not a specific approval of an instruction not criticised.</p>

<p>Appeal—Motion to Dismiss—Lack op Specifications.—Lack of specifications of error is not' a ground for dismissal of an appeal.</p> <p>Id.—Record—Ambiguity—Two Different Filing Dates.-—Where two filing marks appear to be indorsed on a purported bill of exceptions in the printed transcript', showing that it was indorsed as filed on two different dates, the ambiguity will be determined by the appellate court against the party seeking to establish error.</p> <p>Id.—Retirement op Judge from Office — Judicial Notice.—The supreme court will take notice of the date of the retirement from office of the judge who denied a motion for a new trial.</p> <p>Id.—Diminution of Record—Jurisdiction—Lack of Power of Judge After Expiration of Term.—The judge, after the expiration of his term of office, was utterly without power to make an order in diminution of the record, even by stipulation of counsel for the parties, since jurisdiction cannot be conferred by stipulation.</p>

<p>i?</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 of Deceased Persons—Action on Claim—Construction of Complaint.—Where, in a complaint against an executor to recover money paid by the plaintiff to the defendant’s testator on a transfer of corporation stock, it is alleged that the defendant’s testator made false representations as to the value of the stock which was in fact worthless, and stated that he would consider the money as a trust fund and would guarantee the plaintiff against any loss, and that if the stock proved valueless he would repay the sum paid for it, and there was no allegation that the plaintiff offered to rescind the contract and return the stock, the most that can be said of the complaint is that it states a cause of action for money upon an implied contract.</p> <p>Id.—Failure to Allege presentation of Claim—Complaint Insufficient.—As an action for money on an implied contract, such complaint is insufficient, under sections 1493 and 1500 of the Code of Civil Procedure, for failure t'o allege the presentation of the claim to the executor, and rejection thereof before the beginning of the action.</p> <p>Id.—Trust in Specific Property—Failure of Necessary Allegation.A complaint in such case is also insufficient to charge the defendant executor as trustee of specific property, where it contains no allegation showing that the executor had come into possession of such property, and that it was charged with a trust in favor of the plaintiff.</p> <p>Id.—Judgment 'Against Executor—Form o_f Judgment.—"Where there are no allegations to uphold a personal judgment against an executor, judgment upon a demand against the decedent should be made payable out of the assets of the estate in due course of administration.</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>

Id.—Appeal—Findings of Fact—Conflicting Evidence.—Findings of fact in such case, on conflicting evidence, are conclusive on appeal. APPEAL from a judgment of the Superior Court of San Diego County, and from an order denying a new trial. W. A. Sloane, Judge. The facts are stated in the opinion of the court.

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

<p>Lease—Oil Lands—Remedies on Default.—Where a lease of oil lands on a royalty contained a covenant that the lessees on failure to commence drilling by a fixed time should pay the lessor a ¡stated sum monthly while in default, and also a provision that a failure to prosecute diligently the work of drilling and producing oil should render the lease null and void, such covenant and provision did not render the lease a mere option on the part of the lessee, but gave the lessor the option of terminating the lease or bringing action on the covenant to pay a monthly rental in money.</p> <p>Id.—Penalty for Breach—Liquidated Damages—Monthly Rental.— In such case, the provision for a monthly payment by the lessee in ease of default in drilling was clearly in the nature of rental for the premises or compensation for the right, and not an attempt to fix a penalty or liquidated damages.</p> <p>Id.—Liquidated Damages Permissible.—But even if the provision were considered as an agreement for the payment of liquidated damages, a complaint and proof of breach of the covenant in the lease would support a judgment for such damages, since it would be impossible to calculate with any degree of certainty the amount of damage sustained by the plaintiff lessor by reason of the breach of the lessee’s covenant t'o drill.</p>

<p>Criminal Law—Disturbance of Peace—Sufficiency of Complaint.— A complaint charging the offense of “disturbing the peace” in the language of the statute (section 415 of the Penal Code) is sufficient.</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>Arbitration and Award—Acceptance oe Award—Waiver oe Irregularities.—An acceptance of and payment under an award, made under a written agreement of arbitration, constitutes a waiver of any irregularities in the award.</p>

<p>Principal and Surety — Common-law Bond — Bailway Construction Contract—Contractor’s Bond to Bailway Company—Bight op Third Party to Sue.-—-Where a contractor for the construction of a road for a railway company gave the railway company a common-law bond, with surety, conditioned for the faithful performance of the work, and also for the prompt payment to “all laborers, mechanics, materialmen, and -persons who shall supply such contractor with provisions or goods of any kind, all just debts due to such persons or to any others to whom any part of such work is given, incurred in carrying on such work,” any “laborer,” “mechanic,” “materialman,” or person “supplying the contractor with provisions or goods of any kind,” or any other person “to whom any part of such work was given,” was a person for whose benefit the bond was made, and as such there was sufficient privity between such person and the surety on the bond to authorize such p_erson to maintain an action on the bond against the surety.</p> <p>Id.—Limitations on Surety’s Liability to Third Persons—-Claim por Bental op Mules Leased to Contractor.—The surety on such a bond was not liable for the rental of mules leased to the contractor to be used in the performance of his contract, the lessor not being a person “to whom any part of such work is given,” and the contract and bond, therefore, making no express provision for the payment to the lessor of the indebtedness to him, and especially where both the contract and the bond made it the duty of the contractor to furnish teams without fixing any obligation to pay therefor.</p> <p>Id.—Services op Corral-man.—The surety on such bond was not liable in an action by the lessor of the mules for the value of the services or the traveling expenses of a “corral-man,” who had been employed by the plaintiff, but who, under the railway company’s contract, was to have been paid by the contractor.</p> <p>Id.—Agreement to Pay Third Party—Bight to Sue on Bond.—If it . can be fairly said from either the contract or bond, which are to be construed together, that the parties intended to and did agree to pay a third person furnishing provisions or goods for the carrying on of such work, a suit can be brought on such bond by such third -person to recover upon the promise so made for his benefit, although the bond does not by its terms expressly inure to the benefit of such third person, and although the promise is implied from the condition of the bond alone.</p>

<p>Trial—Jury—Instruction on Conceded Facts.—A statement by the court in instructions to the jury that a certain fact was assumed by the parties on the trial, and that for that reason no proof had been given of such fact, was an “instruction on the facts,” but error could not be predicated on such an instruction, in the absence of anything in the record to show the statement that the fact had been conceded was not true.</p> <p>Promissory Note—Fraud—Pleading.—Where, in an action on certain promissory notes which had been issued on renewal of other notes given in payment of a subscription for stock in a corporation, the defense set up in the answer was that the original notes were procured through the fraudulent representations of agents of a bank to whom the original notes were issued, and that at the time of the execution of the renewals, the holders of the original notes “ratified and confirmed the statements and representations” made to induce the execution of the original notes, this latter statement was an allegation of fact and not a conclusion.</p> <p>Id.—'Corporation Stock—Statements as to Value.—Statements in such case that the bank would not take five dollars a share for its stock if it could not get more, that the bank regarded the stock as ample security for a loan of it's face value, that the corporation was “one of the solid financial institutions of the coast,” that the dividends arising from the company were so large that they would pay off the note, and that the banks preferred that form of security to any other and would gladly renew the notes, when the stock was in fact worthless, were statements of value and not mere expressions of opinion.</p> <p>ID.—Instructions—Proof of Fraud Required—Preponderance of Evidence Sufficient.—Judicial expressions concerning the necessity of clear and satisfactory proof of fraud must be construed in the light of the fundamental rule that under subdivision 5 of section 2061 of the Code of Civil Procedure, a preponderance of the evidence controls in a civil ease, and, therefore, in a ease where fraud is the issue, the jury is properly instructed that the ease must be decided according to the preponderance of the evidence.</p>

<p>Negligence — Action foe. Death of Bailway Engineer — Defective Track—Evidence—Presumption.—In an action against a railway company, its mechanical superintendent, and its roadmaster, t'o recover damages for the death of- one of the company’s engineers, who was killed by the derailment of an engine, which derailment was claimed to be due to a defective engine and to unsound condition of the railroad track, testimony of a witness that he had noticed engines, as they approached the place where the derailment took place, “wobbling,” in a manner indicated by the witness by pantomime action, must be assumed by the supreme court to have indicated an undue movement evidencing a bad condition of the track, sinco all reasonable deductions from the evidence must be indulged in favor of a judgment.</p> <p>Id.—Sufficiency of Evidence.—In this action it is held that the evidence was sufficient to sustain a verdict for the plaintiff.</p> <p>Id.—Inspection of Track—Question for Jury.—Although evidence of employees of the defendant in such case tended to show that shortly before the accident a general inspection of the track at' the place where the accident occurred had been made, and that the switch point near the place of subsequent derailment had been very carefully examined, it was for the jury to determine from all the facts, including the interests of the witnesses as employees of the defendant, whether the inspection had been properly made.</p> <p>1:^.—Excluded Evidence—Error Bendered Harmless by Subsequent Testimony.—-After the roadmaster, as a witness for the defendants, had testified that certain ties, broken in two by the derailment, had been removed and burned, because they were unfit for further service, the court erred in refusing to allow him to be asked if that was the usual custom with ties rendered useless in that way, but the defendants were not injured, since the witness later, in speaking of the section foreman who had burned them, said he, the witness, had no authority to tell him to burn ties inspected by other people, but it was the general custom, and he supposed the section foreman took it upon himself to burn them, knowing that it had been the custom.</p> <p>Id.—Instructions—Presumptions as to Negligence.—Where in such case the court instructed the jury that “the mere happening of the derailment, or the death” of the plaintiff, “raised no presumption of negligence of the defendants,” and that “the mere facts that the engine was derailed and said” plaintiff “was killed, taken alone, are not to be considered by you as proof of any negligence on the part of either or any of the defendants,” there was no force in the contention by the appellants that they were prejudiced by the use of the word “proof” instead of “evidence” in the latt'er part of the instruction.</p> <p>Id.—Instructions—Duty as to Furnishing a Safe Track, Trackage, and Ties.—Where the court in such case had carefully defined ordinary care and negligence and had told the jury that plaintiff was bound to prove negligence in order to recover, a further instruction that it was the duty of the defendants “to have used ordinary care in furnishing a safe track, trackage, and ties over which the engine” was being operated, and that a failure to do so would be negligence, “and if such negligence, if any, contributed to the happening of the accident, as a proximate cause,” the jury should find against both defendants, or either of them, if shown to have been negligent in that behalf, properly declared the law.</p>

<p>Negligence—Electric Railway—Collision With Automobile—Action for Death—Frivolous Appeal by Defendant.—Where, on appeal from a judgment against an electric street railway company for damages for the death of the driver of an automobile, with which one of the defendant’s cars collided, the only contention of the defendant is that the deceased was guilty of contributory negligence which prevented a recovery, and the evidence in the record shows that the ear was being operated in a city at a speed not only greatly in excess of the limit permitted by the city ordinance, but at a rate which was in itself terrific, furious, and reckless, and the uncontradicted evidence of the surviving occupants of the car shows a lack of negligence on the part of the driver, the appeal is entirely without merit and frivolous.</p> <p>Id.—Damages fob Frivolous Appeal.—On such a state of the record, a clear case is presented for the imposition of a penalty upon the appellant for having begun and prosecuted a frivolous appeal.</p>

<p>Life Estate—Personal Property—Gift by Life Tenant—Action by Remainderman After Termination of Life Estate—Statute of Limitations.—Where, in an action to recover the possession of certain family portraits, the trial court found that they had been given by a written agreement to a brother of the plaintiff for his life, with remainder over to his oldest son, and, in the event of his dying without male issue, to the plaintiff or his eldest son (the donor and the plaintiff and his brother being parties to this agreement'), and that the brother, who thus took the life estate in the portraits, made a gift of them more than twenty years later to his daughter, the defendant, who had not been 'a party to the original agreement but took “with knowledge of the agreement, and denying its validity, and claimed to be the owner of the portraits,” and had them in her possession for more than eleven years and until after the death of her father, who died without male issue, whereupon suit was brought by the -remainderman, and the defendant pleaded among other defenses the statute of limitations, the plaintiff’s right of action accrued when the brother of the plaintiff (life tenant under the agreement) died without male issue, whereupon under the agreement the portraits, were "to go t'o the plaintiff.</p> <p>Id.—Immaterial Finding—Knowledge by Plaintiff of Dependant’s Possession and Claim.—In such a ease a finding that the plaintiff knew of defendant’s possession and claim of ownership was immaterial, and had no real bearing on the ultimate issue raised by the plea of the statute of limitations, it being entirely immaterial whether the plaintiff did or did not have knowledge of defendant’s possession and claim.</p> <p>Id.—Claim Barred After Three Years.—The plaintiff’s right of action in the instant case was barred by subdivision 3 of section 338 of the Code of Civil Procedure, at the expiration of three years from the time his right of action accrued, upon the death of his brother, the life tenant, without male issue.</p> <p>Id.—Involuntary Trust—Repudiation Unnecessary.—The rule that the statute of limitations does not begin to run in favor of a trustee as against his beneficiary until there has been a repudiation of the trust, and the adverse claim of the trustee has been clearly and unequivocally made known to the cestui que trust, applies to express trusts only, and not to an involuntary trust raised by operation of law.</p> <p>New Trial—Immaterial Findings—Want of Evidence.—A new trial will not be granted for want of evidence to sustain immaterial findings.</p>

<p>Mines and Mining—Assessment Work—Delinquency-op Co-owner— Action to Enjoin Recording of Notice—Burden of Proof—Non-suit.—In an action by one of the owners of mining claims to enjoin a co-ownor from recording the notice of delinquency in contributing to the expense of assessment work and affidavit of service thereof required by section 2324 of the Revised Statutes of the United States, as provided by section 1426o of the Civil Code, where the plaintiff’s complaint alleges that she, and not the defendant alone, had done the assessment work, each contributing one-half the expense, but that the defendant, notwithstanding such fact, had caused her to be served with the notice of delinquency provided by section 2324 of the United ¡States Revised Statutes and was threatening to file and record such notice in the office of the county recorder of the county where the claims were located, and thereby threatening to cloud her title, and where the defendant answered, alleging the doing of the work himself alone and denying contribution by the plaintiff, the burden of proof was on plaintiff to prove the facts alleged in the complaint, and in the absence of such proof it was error to deny a motion for a nonsuit.</p> <p>Id.—Judgment 'Quieting Plaintiff’s Title — Judgment not Within the Issues.—A judgment quieting the plaintiff’s title in such action, where such judgment was not within the issues joined by the complaint and answer and no such relief was asked in the complaint, was erroneous.</p> <p>Id.—Cross-complaint—Burden of Proof on Defendant.—Where the defendant in such action filed a cross-complaint alleging the delinquency of the plaintiff as a co-owner, and the service of notice of delinquency under section 2324 of the Revised Statutes of the United States, and sought to quiet his title against the plaintiff, it ■ devolved upon him to establish that he and plaintiff were co-owners of the property, that he had done the assessment work, that the ■ plaintiff had not contributed her share of the expense, that he had served on her the notice provided in said section 2324, and that she had failed to contribute her proportion of the expense within ninety days from such service.</p> <p>Id.—Prima Facie Evidence Under Section 1426o of the Civil Code— Time of Recording Notice.—The recording of the notice and affidavit of service provided in section 1426o of the Civil Code does not constitute prima facie evidence of the failure of a co-owner to contribute his proportion of the cost of assessment work, unless the documents to. be recorded are filed for record within ninety days from the service. Filing thereof after the expiration of ninety days is a futile act.</p>

<p>Deed—Restrictive Condition—Impossible Exception in Condition.— ■Where a deed of land contained an express condition against the sale of liquors upon the property “herein described,” except under a restaurant license “on the south 20 acres of block 205 thereof” (the property conveyed lying entirely outside of block 205), the exception is a meaningless or unintelligible attempt to exclude from the operation of the restriction something which could neither be included nor excluded.</p> <p>Id.—False Reference in Exception.—The exception of block 205 in such ease is a false reference in the description, and as such it must be rejected.</p> <p>Id.—Condition Against Sale of Liquors—Reverter to Grantor fob Breach of Condition—Validity of Condition.—Restrictive conditions against the sale of liquors on lands conveyed, with provisions for reverter to the grantor for breach, when imposed for the benefit of other lands of the grantor, are valid.</p> <p>Id.—Action to Enforce Forfeiture for Breach of Condition-^Non-suit Improperly Granted.—Where in an action to enforce a forfeiture for breach of such a condition there was a sufficient prima 'facie showing of the defendant’s violation of the restriction, the granting of a nonsuit was error, requiring a reversal of the judgment.</p>

<p>Street Improvements—Public Contract—Vrooman Act—Bond fob Materials and Labor—Liability of Surety.—The liability of the surety on a bond for labor and materials given under the provisions of section 6% of the Vrooman Act, in connection with a contract for the improvement of a city street by public contract, does not depend upon the validity of the contract or the faithful performance thereof by the contractor, but is an independent contract that in case the principal fails in his obligations, either express or implied, to pay for materials or labor furnished in doing the work described in his contract with the city, the surety will pay them.</p> <p>Id.—Action by Materialman Asainst Surety—Unauthorized Extension of Time.—The right of a materialman to recover on such a bond is unaffected by the fact that the materials constituting the subject of the action were furnished and used in completing the work under, an extension of time for so doing made by the board of public works, which, by reason of the time of completion having expired, the board had no power to make.</p> <p>Id.—Effect of Extension on Liability of Surety.—A valid extension, even, of the time fixed by the contract for completion of the work does not exonerate the surety on such a bond, because the principle that a material alteration of the contract exonerates the surety has no application in such case, the surety’s obligation being not for the performance of the contract claimed to have been altered, but independent thereof, and given for a wholly different purpose, and the covenant in the bond being not for the benefit of the city as a party to the contract, but for the benefit of all persons furnishing labor and materials to the contractor.</p> <p>Id.—Literal Construction or Bond.—The rule which permits a surety to stand upon Ms strict legal rights should not be construed as limiting the benefit of such a bond to those only who supply labor and materials directly to the contractor, but the covenant in the bond should be read in the light of the statute, the purpose of which was to protect those who furnish labor and materials for the work described in the contract, and not the particular engagements under which the work is done.</p> <p>Id.—Claim Piled in Time—Binding Conclusive.—In the absence of anything in the record to the contrary, a finding that the plaintiff filed his claim in the proper office within thirty days from the completion of the work is conclusive.</p>

<p>Negligence—Employer and Employee — Injury to Employee — Safe Place to Work—In this action against an employer by an engineer employed to run a pumping plant, for damages sustained by having his hand drawn into a cogwheel, it is held that the evidence warranted a verdict that the defendant had failed in his duty to use ordinary care to furnish the plaintiff a reasonably safe place to work.</p> <p>Id.—Employers’ Liability Act of 1911—Assumption of Risk—Negligence of Fellow-servant—Contributory Negligence.—Under the Employers’ Liability Act of 1911 (Stats. 1911, p. 796), in force at the time of the accident involved in this case, the defenses of assumption of risk and negligence of a ,fellow-servant were not available to the defendant employer, nor was the plaintiff’s right of action destroyed by his contributory negligence, if any; but if his contributory negligence was slight and that of the defendant employer gross, the plaintiff was still entitled to recover, the jury being permitted to diminish the damages in proportion to the amount of negligence attributable to the plaintiff.</p> <p>Id.—Alterations in Place of Work.—There was no force in the defendant’s claim that the element of danger was created by alterations in the place for working, and that these alterations were made in accordance with the plaintiff’s own suggestions, since they had the approval of the defendant, and also because the alterations, when carried out in accordance with the plaintiff’s plan, included a covering over the cogwheels into which the plaintiff’s hand was drawn, and this covering was removed by the order of the foreman under whom -plaintiff was working.</p> <p>Id.—Notice to Foreman as Notice to Employer.—-The foreman in such case being in control of the plant, his knowledge of the removal of the cover over the cogwheels was notice to his employer, the defendant.</p>

<p>APPEAL from an order of the Superior Court of Los Angeles County admitting a will to probate and reviewing an order denying a new trial. John W. Shenk, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Appeal—Notice op Appeal—Motion to Dismiss—Misnomer of One op Several Appellants.—The misnomer of one of several appellants in a notice of appeal does not require a dismissal of the appeal as to the others who are correctly named, when the judgment appealed from is otherwise sufficiently identified.</p> <p>Id.—Clerical Misprision as to Name op One op Several Appellants. Where it is perfectly apparent' from the notice of appeal, when read in connection with the record, that the notice was filed on behalf of all defendants, three in number, and that the misnomer therein of one of the defendants was a mere clerical misprision which could not have misled the adverse party, the notice of appeal will not be held invalid as to the defendant as to whom the misnomer occurred.</p> <p>Id.—Defective Undertaking on Appeal.—Where an appeal may be regarded as taken under sections 941a, 941b, and 941c of the Code of Civil Procedure, any question as to the validity of an undertaking on appeal as a stay bond must be disregarded, for the reason that under those sections no undertaking is essential to the taking or maintenance of the appeal.</p>

<p>The facts are stated in the opinion of the court.</p> <p>Gibson, Dunn & Crutcher, J. Karl Lobdell, and Edward E. Bacon, for Appellant.</p>

MANDAMUS against the Sheriff of the City and County of San Francisco to compel the enforcement of a writ of execution issued upon a judgment upon an award of the Industrial Accident Commission. The facts are stated in the opinion of the court. P. L. Benjamin, Christopher M. Bradley, and Warren H. Pillsbury, for Petitioner.

<p>Public Works—Contractor's Bond for Materials and Supplies— Tools and Plant.—The surety on the bond of one who contracted with a city for the construction of two wells, and who, in pursuance of the act of March 27, 1897, “to secure the payment of the claims of materialmen, mechanics, or laborers employed by contractors upon state, municipal, or other public works” (Stats. 1897, p. 201), gave a surety bond, conditioned for the payment of materials or supplies used in, upon, or about the “performance of the work contracted to be done,” is not liable for tools or plant purchased by the contractor, the use of which is required in doing the work, but which, barring wear and tear incident to such use) survive for repeated and other use, since indebtedness incurred by a contractor in the purchase of his plant or any part thereof, the use of which is required during the work, is neither within the provisions of the act nor included in the terms of the bond.</p> <p>Id.-—Rental of Tools—Liability of Surety.—Money due by the contractor for the rental of tools used in drilling wells under such a public contract, and the cost of transporting the tools to the place where they are used, is covered by a surety bond for materials and supplies used in the performance of the work, and the surety is liable therefor.</p> <p>Id.—Premature Release of City by Materialman—Surety’s Liability Unaffected.—Where a materialman on a city contract, before the filing of any claim which would have had the effect of impounding the moneys due from the city to the contractor, gave the city written notice authorizing payment to the contractor for the work, and purporting to release the city from all claims and demands, such notice and purported release did not discharge the surety on the contractor’s bond nor affect the liability of the surety to the materialman, since under the statute, until and unless the materialman filed his claim within ninety days as provided by the statute, he had no claim upon the moneys payable under the contract which could be the subject of the so-called releases.</p>

<p>Husband and Wife—Conveyance to Wife Prior to 1889—Grant, Bargain, and Sale Deed—Community Property.—Under section 164 of the Civil Code, prior to its amendment in 1889, an interest in land conveyed to a married woman by grant, bargain, and sale deed became community property.</p> <p>Id.—Homestead Declaration—Land Partly Separate Property and Partly Community.—Where a homestead was declared by a married woman on land, one undivided half of which was her separate property and the other half community property, the half which was her separate property became impressed with the characteristics of a homestead selected by the wife from her separate property, and the other half with the characteristics of a homestead selected by the wife from the community property, in the absence of any selection by her husband.</p> <p>Id.—Title on Death of Wife.—In such case, on the death of the wife, the title to the undivided half which was community property, and on which the homestead was selected by the wife and recorded while both husband and wife were living, vested, under section 1474 of the Code of Civil Procedure, absolutely in the surviving husband, and the undivided half which was the separate property of t'he wife, and on which the homestead so selected by her was recorded, also vested absolutely in the surviving husband under the same section.</p>

<p>Estates of Deceased Persons—Contest op Will—Compromise of Contest—Conditional Assignment of Legacy—Failure of Consideration.—Where a city, which was a legatee under a will, executed, for the purpose of avoiding the expense of litigation and the delay which would have been caused by a contest of the will, and the consequent depreciation in the value of its legacy, an assignment of a portion of its legacy to a relative of the testator who was threatening a contest, in consideration of Ms waiving and abandoning the right to contest the will, the assignment being also expressly conditioned that no person other than the assignee should file or attempt to file any contest of the will or object in any manner to the distribution to the city of the sums bequeathed to it, a contest, although unsuccessful and although it was inaugurated by one not a party to the contract, and though neither party to the contract was responsible for the making of such contest, was within the condition of the assignment, and the city, as legatee, having by reason of the contest been deprived of some of the substantial benefits contemplated by the compromise, the assignee, under the plain terms of his own agreement, could not receive his anticipated benefit.</p>

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

<p>Libel—Newspaper Publication—Matter Libelous Per Se.—An article published in a newspaper stating both directly and inferentially that the person who was the subject of the article deliberately took advantage of and overreached a widow recently bereaved, in a transaction involving the sale of a crop of olives, and proceeding with the statement that such a person is unworthy to be elected to an office of public honor and trust to which he aspires, is clearly libelous per se.</p> <p>Id.—Pleadings—Sufficiency of Complaint.—A complaint, in an action for libel, setting forth such a publication, and alleging that it has caused and now causes the plaintiff great humiliation, pain and suffering, and has injured and is injuring the plaintiff’s reputation in the.community, is a sufficient statement of a cause of action, notwithstanding a statement also contained therein that the plaintiff is “of good name and reputation,” that he “has had and now has a wide circle of business, social, and political friends.”</p> <p>Id.—Mental Suffering—Evidence—Age and Sex of Plaintiff’s Children.—The trial court in such a ease properly permitted the plaintiff to testify as to the ages and sex of his children, upon the principle that as mental suffering entitles a plaintiff in cases of that character to compensation, such suffering may be increased and the damages consequently enhanced by plaintiff’s consciousness of the fact that members of his family would suffer by reason of the disgrace visited upon him by the libelous charge.</p> <p>Id.—Conversations Subsequent to Publication — Admissibility in Evidence.—Evidence of conversations with certain of the defendants subsequent to the publication of the article, concerning the publication and the defense such defendants meant to interpose, and tending to show that each of the defendants had actual knowledge of the fact and content's of the published article, and that after such notice they took no steps to have it withdrawn, and expressly approved its publication, was competent and proper for the purpose of showing actual malice on the part of those defendants.</p> <p>Id.—Newspaper Interview.—A defamatory article otherwise libelous per se does not lose its character in that regard, because couched in the form of an interview, or accompanied by a statement that it is “reported” or “asserted” or “believed” to be true.</p> <p>Id.—Punitive Damages.—-Where the complaint in an action for damages for libel charged the defendants with express malice and with the malicious intent of injuring plaintiff’s reputation, and, though it did not expressly pray for punitive damages in so many words, did ask for a general verdict of twenty thousand dollars, and the jury, in response to special interrogatories, found compensatory damages in -the sum of two thousand dollars and exemplary damages in the sum of one thousand dollars, and the evidence in the record justified the jury in finding the averments of malice true, the jury was justified in making its award of the sum allowed for exemplary damages.</p>

<p>Eminent Domain—Public Utilities Act—Condemnation op Property Devoted to Public Use—Determination op Value—Finding op Railroad Commission Conclusive.—Under section 47 of the Public Utilities Act, where, after the railroad commission has fixed and determined and certified, in accordance with section 70 of the act, the compensation that should be paid by a county municipal water district or other public corporation to acquire an existing public utility, the district or public corporation desiring to acquire such existing public utility commences an action in the superior court to take the property under eminent domain proceedings, the finding of the commission on the subject of value is final and conclusive, and the superior court is not authorized to determine the value of the property, and give judgment for such value, as the compensation to be paid to the owner.</p> <p>Id.—Constitutional Law—Power op Railroad Commission to Fix Compensation.—Section 47 of the Public Utilities Act, in so far as it provides for the taking of property at the time of the judgment in the superior court, upon payment of the value previously fixed by the commission, is not in conflict with any provision of the constitution of California, since section 23a of article XII of the constitution, which was adopted as an amendment In November, 1914, gives the legislature authority to confer upon t'he railroad commission the power to fix the just compensation for existing public utilities, and confirms and declares valid all acts of the legislature previously adopted, which, of course, includes said section 47 of the Public Utilities Act and renders it immune from attack, as violative of any provisions of the state constitution on the subject of eminent domain.</p> <p>Id.—Federal Constitution—Due Process op Law—Equal Protection. Section 47 of the Public Utilities Act is not violative of the clauses of the federal constitution prohibiting a state from depriving a person of his property without due process of law, or denying him the equal protection of the laws, since that section provides in express terms for the ascertainment and payment to the owner of just compensation for the property taken, and creates a special proceeding in eminent domain, including the ascertainment of value by the railroad commission by a proceeding which has been directly held to be of a judicial character.</p> <p>Id.—Jury not Essential.—It is not essential to “due process,” as required by the fourteenth amendment to the United States constitution, that the compensation to be paid for property taken or damaged under the power of eminent domain be fixed by a jury.</p> <p>Id.—Discrimination.—The inhibition in the federal constitution against a state denying any person the equal protection of the laws does not prohibit a state from establishing different rules of procedure for different classes of cases or of litigants, provided the variations relate merely to matters of procedure, and do not operate to deprive any class of substantial equality in the adjudication of its rights or liabilities; and none of the discriminations between the mode of condemning property under the general law (Code of Civil Procedure, section 1238 et seq) and the procedure provided by section 47 of the Public Utilities Act for condemning the property of public utilities in certain eases goes to any matter of essential or fundamental right, but only to mere matters of procedure.</p> <p>Id.—Distinct Classes of Public Corporations—Justification for Discriminatory Legislation.—The corporations which, under section 47 of the Public Utilities Act are empowered to own and operate public utilities clearly constitute a class sufficiently distinct from all other persons or corporations engaged in public service, and desiring to acquire property for public use, to justify peculiar legislation relating to them.</p> <p>Id.—Date at Which Value Estimated—Code Section Inapplicable.—. Section 1249 of the Code of Civil Procedure has no application in actions authorized by section 47 of the Public Utilities Act, with respect to the date at which the value of property taken for public use shall be estimated.</p>

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

<p>Justice’s Court—Title to Land Set Up by Answer—Transfer of Action to Superior Court—Theory of Defense—Conclusiveness on Defendant in Subsequent Proceedings.—Where, in an action brought in a justice’s court to recover certain wheat, the defendant, in his answer, set up ownership in himself, upon the ground that he was the owner of the land upon which the wheat was grown, and after the case was transferred by the justice to the superior court, upon demand of the defendant, upon the ground that the title to land was involved, t'he defendant filed a cross-complaint to quiet his title to the land and to have a trust declared thereon in his favor and to have such trust terminated, and upon the trial of the action the plaintiff introduced in evidence a judgment of the superior court entered prior to the time when the wheat was grown, quieting his title to the land, against the claims of the defendant, and adjudging t'he plaintiff to be the owner, and thereupon the plaintiff rested his case, the trial court properly denied the defendant’s motion for a nonsuit, since the defendant, having predicated his defense on the theory that the plaintiff was not the owner, or entitled to the possession, of the land on which the wheat was grown, and having obtained a transfer to the superior court upon t'he ground that the title to the wheat depended upon the issue of the title to land, and having also sought to quiet his own title t'o the land in an action, involving originally only the ownership and right of possession of the wheat, could not afterward, either in the trial court or on appeal, assert that the plaintiff’s proof of ownership of the land was insufficient to establish his right to the wheat.</p> <p>Appeal—Conflict of Evidence.—The determination of a trial court, on conflicting evidence, of a question of ownership of land will not be reviewed on appeal.</p>

<p>Courts—Jurisdiction — Waiver.—Jurisdiction of the subject matter cannot be conferred upon a tribunal by consent, and it follows that parties cannot make an effective waiver of such lack of jurisdiction.</p> <p>Public Utilities Act—Railroad Commission—Review of Decisions— Limitation on Power of Courts.—Sections 66 and 67 of the Public Utilities Act, providing that any party interested in an order or decision of the railroad commission may petition for a rehearing, and that, if such rehearing is denied, application may be made to the supreme court for a writ of review, and that no court of the state except the supreme court, to the extent specified, “shall have jurisdiction to review, reverse, correct, or annul any order or decision of the commission,” are valid limitations upon the powers of the courts of the state.</p> <p>Id.—Eminent Domain—Railroad Commission’s Decision—Waiver of Objection.—The failure of one whose property is taken for public uses under the provisions of the Public Utilities Act to apply to t'he railroad commission for a reheating, or, in the event of .its denial, for a review by the supreme court, operates as a waiver of any objection to any order or decision of the commission, except perhaps the one that the order of the commission is absolutely void on its face.</p>

<p>Negotiable Instruments—Bonds and Coupons.—Bonds and coupons of a corporation which state on their face that they are secured by trust deeds or mortgages, although payable to bearer and transferable by delivery, were not negotiable instruments, as that term was defined in sections 3088 and 3093 of the Civil Code, prior to amendment of those sections in 1915.</p> <p>Lost or Stolen Property—Title of True Owner.—One who buys lost or stolen property from a finder or thief, though he pay full value, in good faith, and without notice, obtains no title as against the true owner.</p> <p>Non-negotiable Bonds—Custom and Usage—Evidence Inadmissible. Where certain bonds, payable to bearer, but non-negotiable by the express terms of sections 3088 and 3093 of the Civil Code, as those sections existed before amendment in 1915, by reason of the fact that the bonds appeared on their face to be secured by trust deeds or mortgages, were kept by a bank which owned them, in a vault to which an employee had access, with authority to take them for the purpose of having the coupons detached, or for presentation for payment at maturity, but with no other authority to remove, negotiate, or dispose of them, were taken and pledged by this employee with stock brokers as security for his liabilities on his personal transactions with the brokers, and were sold by them under their pledge and the proceeds applied by them on the pledgor’s liability to them, and the bank, on discovering the fact, sued the brokers for the value of the .bonds, the trial court erred in admitting evidence that by a general usage and custom of trade, bonds payable to bearer but not negotiable instruments as defined by the Civil Code passed by delivery alone, and had by such general usage and custom come to be generally considered as negotiable instruments, and had thereby acquired that character, notwithstanding the terms of the statute.</p> <p>Customs—Statutes—Powers of Courts Restricted.-—The rule that custom cannot overcome the positive provisions of a statute, or make that a negotiable instrument which the code declares shall not be such, is equally forceful to prevent the courts from making exceptions not made by the code, and which are contrary to its express terms.</p> <p>Sales—Limitation on Title Transferred by Seller—Exception to General Rule.—The exception t'o the rule that a seller can give no better title than he has himself is confined to negotiable instruments, money, and currency.</p> <p>Negotiable Instruments—Passing of Title by Delivery—Negotiability.—The fact that title to a bond or note payable to bearer may be passed by delivery does not make it a "negotiable instrument” within the meaning of the Civil Code, nor within the meaning of that term as used in the decisions, which except negotiable instruments from the general rule regarding sales by a finder or a thief.</p> <p>Banks and Banking — Estoppel — Lack of Implied Authority of Assistant Cashier.—Where the assistant cashier of a bank, having access to non-negotiable bonds owned by the bank, but having no authority to negotiate or dispose of them, pledged them as security for his own liabilities to stock brokers through whom he was trading in stocks for his own benefit, and whom he t'old that he was the owner, the transaction was not one in which he was assuming to dispose of the bonds in behalf of the bank, and there was no estoppel in favor of the pledgee.</p>

<p>Contracts—General Verdict—Unanswered Special Interrogatory.— The jury having found a general verdict for the plaintiff, it may well be true that the jury must be considered to have found an acceptance by the defendant of the work under the contract sued on, though the special interrogatory calling for a finding thereon was unanswered.</p> <p>Id.—Drilling Oil Well—Action for Price—Acceptance of Work— Insufficiency of Evidence.—In this action to recover the contract price of drilling an oil well, under the terms of which the plaintiff was to drill the well “into the oil sand or to a depth of 3,500 feet if required” by the defendant, it is held that the evidence was insufficient to justify a finding that the defendant accepted the well when drilled to a depth of 3,215 feet.</p> <p>Id.—Instruction Based on Untenable Theory Erroneous.—An instruction in such ease to the effect that if the jury found from the evidence that the defendant accepted the well at 3,215 feet, and thereafter requested the plaintiff to straighten the hole and easing, and that the plaintiff thereupon did so in a workmanlike manner as provided for in the contract, but that the defendant refused to accept the well as straightened, then the plaintiff was entitled to judgment under the terms of the contract, was erroneous, since such instruction was based upon the plaintiff’s untenable theory of the case that the well was accepted as complete when it was drilled to 3,215 feet, and it wholly ignored the question of actual drilling “into the oil sand, or to a depth of 3,500 feet if required by” the defendant.</p> <p>Id.—Trial and Instruction upon Erroneous Theory—Construction of Contract by Jury.—In such case the trial of the action and instructions to the jury upon the theory that it was t'o construe the contract were erroneous, since, the terms of the contract being ascertained, the court should have construed the same, and instructed the jury as to the meaning thereof.</p> <p>Id.—Drilling into Oil Sand—Meaning of “Oil Sand.”—In the contract in the instant ease, construed in the light of its purpose and terms, the provision that the well should be drilled “into the oil sand or to a depth of 3,500 feet if required by” the defendant was not complied with by drilling into any oil sand at any depth; but the well having been drilled to secure oil in paying quantities, the jury should have at least been instructed that the “oil sand” contemplated by the contract was “producing oil sand,” and that in default of such producing oil sand the defendant was justified in requiring the well to be drilled to a depth of three thousand five hundred feet, unless the phrase “into the oil sand” had some other special local meaning or customary construction with reference to which the parties contracted.</p> <p>Id.—Construction of Contract by Court—Extrinsic Evidence in Aid of Construction.—-Where extrinsic evidence is introduced to aid in the construction of a contract, it is still the duty of the court to construe the contract in the light of such evidence.</p> <p>Id.—Disputed Extrinsic Facts—Hypothetical Instructions.—If extrinsic facts introduced in aid of the construction of a contract are disputed, the case may go to the jury with hypothetical instructions to render a verdict one way if certain facts are found and another way if the facts are found differently.</p> <p>Id.—Mixed Question of Law and Fact—-Correct Application of Law by Jury Assumed.—In the instant case, the question of the completion of the well having been submitted to the jury as a mixed question of law and fact, the supreme court on appeal must assume that the jury, not being clothed with power to decide the law incorrectly, applied the law correctly to the facts; in other words, that they correctly construed the contract as requiring the drilling of the well into “producing oil sand” and applied that construction to the facts presented to them.</p> <p>Id.—Insufficiency of Evidence.—Evidence in the instant ease examined and found insufficient to justify the finding of the jury that the well was drilled into the oil sand according to the contract.</p> <p>Id.—Instructions—Confusing Instruction as to Custom.—In view of the fact that no oil was produced from the well, and that the burden was on the plaintiff to establish the completion of the well, an instruction given by the court at the request of the plaintiff that, if there was no custom as to who should test the oil sand, the plaintiff did not have to show that it tested t'he oil sand, unless the contract expressly or impliedly so provided, could only tend to confuse the jury, the question as to whose duty it was by custom or otherwise to test the well not being properly involved in the case.</p>

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

<p>APPEAL from an order of the Superior Court of San Diego County modifying an interlocutory decree of divorce, and from the portions of the final decree embodying such modifications. C. N. Andrews, Judge.</p> <p>The facts are stated in the opinion of the court.</p> <p>Ward, Ward & Ward, and Sweet, Stearns & Forward, for Appellant.</p>

<p>Judgment—Collusion in Procuring Decree—Action to Set Aside—Equity will not Interfere.—It is a general rule in this state that courts of equity will not interfere to relieve a party to an action from a judgment procured through a collusive agreement between the parties to the effect that one of them shall commence the action and obtain, by consent of the other, a judgment to which he would not otherwise be entitled.</p> <p>Divorce—Interlocutory Decree Obtained by Collusion—Action to Set Aside — Pleading — Complaint Insufficient — Judgment on Demurrer.—A demurrer to a complaint is properly sustained without leave to amend, and judgment is properly entered dismissing an action brought by a wife in May, 1917, to set aside an interlocutory decree of divorce obtained by her husband in June, 1916, on the ground of desertion, where the facts alleged in the complaint to set the decree aside are, in substance, that in pursuance of a previous agreement and understanding between the husband and wife, by which the husband was to pay her a monthly allowance and permit her to visit their two minor sons, she appeared by attorney but interposed no defense nor objection in an action for divorce brought by him on the ground of desertion, falsely alleged by him in his complaint and falsely testified to by him on the trial, and that after the entry of the interlocutory decree he refused to permit her to see or visit the children and failed and refused to pay her the agreed monthly allowance.</p> <p>Id.—Collusive Decrees—General Bulb Against Interference in Equity—Extent of Exception in Divorce Oases.—The exception in divorce cases to the general rule that courts of equity will not interfere to relieve one of the parties to a collusive decree is con-find to those cases where, in the action itself, the court has full control over its own decrees.</p> <p>Id.—Absence op Equitable Considerations or Public Interest.— After the time has passed within which the court has power to relieve against a judgment by motion under section 473 of the Code of Civil Procedure, and the time to appeal from the judgment has also expired, one who seeks relief in another tribunal by independent action should be required to make an affirmative showing of some equitable consideration or some good reason sounding in public policy, and in-the absence of such equitable considerations or of any showing that the public interest or policy would be served in preserving the marriage relation in the particular case, the general rule will-prevail in divorce as in other eases, and courts of equity will not interfere with judgments in such eases obtained solely through the collusion and connivance of the parties to the proceeding.</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>Fish and Fishing — Statute — Regulating Prices — Constitutional Law.—The act of the legislature known as the “State Fish Exchange Act,” providing for the licensing of fishermen and those who sell fish, and authorizing the state market director to fix wholesale and retail prices of fish (Stats. 1917, p. 1673), is not' violative of section 25 of article I of the constitution, declaratory of the right of the people to fish upon and from public lands of the state, etc.</p> <p>Id.—Private Ownership of Fish and Game—State’s Power of Regulation.-—Since fish and game are owned by the state and can become the subject of private ownership in a qualified way only, and can never be the subject of commerce except with the consent of the state, subject to conditions which it may deem best to impose for the public good, the people can alienate it on such terms as they choose to impose, and this power of regulation continues so long as such fish or game are the subject of trade or transfer.</p> <p>Id.—Purpose of Section 25 of Article I of the Constitution—Local Legislation.—The principal purpose of section 25 of article I of the state constitution (added by amendment November, 1910), was to preserve to the people the right to fish upon the public lands of the state and to require that' grants of land by the state should not be made without reserving to the people the absolute right to fish thereon, and the proviso authorizing the legislature to fix the season when, and the conditions under which, the different species of fish may be taken was evidently intended to leave the matter exactly as it was before the adoption of the amendment, except as it restricted the power to alienate public land without such reservation or to create private fisheries thereon; and the section gave no right to the people which they did not already have.</p> <p>Id.—Constitution, Article IV, Section 25%—Power of Legislature —Protection of Fish and Game.—The obvious purpose of section 25% of article IV of the constitution, empowering the legislature to “provide for the division of the state into fish and game districts” and t'o “enact such laws for the protection of fish and game as it may deem appropriate to the respective districts” (amendment adopted in November, 1902), was to remove the former restriction of article IV, section 25, subdivision 33, which prohibited the enactment of a local law “where a general law can be made applicable,” and the section in no wise limits the sovereign power of the state over fish and game, or of the legislature to legislate concerning the same, but, on the contrary, increases the legislative discretion by authorizing local laws on the subject.</p> <p>Id.—Bight to Fish—Nature of License—Power of State to Destroy. The license to fish is a privilege granted by the state, and may be taken away in the exercise of the police power.</p> <p>Id.—State Market Director—Investigation Under State Fish Exchange Act—Order to Produce Books.—A proceeding by way of investigation by the state market director, under section 26 of the State Fish Exchange Act, is not criminal in its nature, and an order of the superior court compelling persons engaged in the business of fishing and selling fish to produce their books before the state market director is not in violation of the constitutional provision which prohibits a court or oflicer from requiring a defendant in a criminal case to furnish evidence against himself.</p> <p>Id.—Power to Compel Production of Books — Limitation,—Where persons engaged in the business of fishing and selling fish at wholesale in California were ordered and subpoenaed to produce “the sales records and ledger accounts with your customers covering the period from the 20th of February, 1918, to February 28, 1918,” the order and subpoena were entirely too broad, and beyond the jurisdiction of the state market director and of the superior court, and should have been confined t'o the production of books and documents relating to such fish business.</p>

<p>Appeal—Bill of Exceptions—Service and Settlement-^Opening Default.—Where a proposed bill of exceptions was not served in time, but the trial court granted relief from the default and settled the bill, the supreme court, on appeal from a judgment, will disregard the objection that the proposed bill was not served in time, and consider the merits of the appeal.</p> <p>Id.—Relief from Delay in Service.—It is well settled that relief maybe granted fromHlelay in service of a proposed bill of exceptions.</p> <p>Default—Order Setting Aside Favored.—The supreme court favors orders excusing defaults and permitting controversies to be heard on their merits, and such orders are rarely reversed unless for clearly appearing abuse of discretion.</p> <p>Partnership—Broker and Purchaser — Sharing Profits — Relation not Established.—An agreement between a purchaser of an unexpired lease and brokers who procured the purchase that they were to receive a compensation measured by a proportion of the profits to be realized by procuring subtenants, without any arrangement for sharing losses, does not constitute a partnership with authority in each of the parties to bind the others.</p> <p>Agency — Escrow—Broker not Authorized to Change Escrow Instructions—Evidence.—Under an agreement for the purchase of a lease where a broker for the purchaser had authority to deposit the consideration for the purchase in escrow, one of the conditions of which was that the brokers for the vendor were to obtain subtenants for the purchaser on leases, the proposed terms of which were specified in the escrow instructions, the evidence, in an action by the purchaser against the escrow-holder for damages for alleged disregard of the instructions, is examined and found not to warrant a finding that the broker for the purchaser acted “as an agent for the plaintiff” in modifying the escrow instructions.</p> <p>Id.—Broker’s Authority to Make Agreement—No Implied Power to Cancel or Vary.—No power in a broker or agent to cancel or vary an agreement, or to waive or give up rights of his principal, is to be inferred from a general power to make the original agreement.</p> <p>Escrow Instructions — Action for Violation — Damages.—Where plaintiff’s money or property, deposited in escrow upon certain conditions, is disposed of without compliance with those conditions, he is entitled in an action against the escrow-holder, to recover such damages as he may have suffered through the defendant’s unwarranted act.</p>

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

The facts are stated in the opinion of the court. Edward G. Kuster, and Gilbert A. McElroy, for Appellant and Respondent Alex Grant. Edward T. Bishop, and Carl W. Gibson, for Appellant Southern California Electric Company. Lewis Sherman Jones, and Frank C. Hoyt, for Respondent Lorbeer Electric Supply Company.

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

<p>Quieting Title—Exception in Deed to Plaintiff’s Predecessor— Evidence—Burden of Proof.—"Where, in an action to quiet title to a lot of land, the plaintiff claims title through a deed to his predecessor, describing by metes and bounds a larger tract, including the lot in question, but excepting from the conveyance “that portion of land . . . mortgaged heretofore,” by a mortgage, which is referred to only by its date, and the statement that it was recorded in the county recorder’s office, but the date and specifiestion of the record is not given and the mortgage is not produced or identified, the burden is cast upon a defendant, who shows no right or title in himself (except such as he may have acquired by seizing and fencing the land), of showing that the land sued for is within the area excepted from the deed to plaintiff’s predecessor.</p> <p>Id.—Boundaries—Uncertainty op Exception in Conveyance.—Where a deed conveying land by metes and bounds' excepts from the conveyance a portion mortgaged, the mortgage being referred to by a date and the specification that it was recorded, if there is no such mortgage or record, the exception falls for uncertainty, and the deed carries the title to all the land included within the described boundaries.</p> <p>Id.—Evidence—Burden op Proof as to Land Excepted.—The description by metes and bounds in the deed to plaintiffs’ predecessor gives at least color of title which, as against defendant’s mere title by seizure, is good, and throws upon him the burden of showing that the land in controversy was within the area sought to be excepted.</p> <p>Id.—Double Description—Rejection op Second Description.—The rule that where land is described in a deed as the whole of a certain farm, and is again described by courses and distances which do not embrace the whole farm, the latter description will be rejected and title to the whole farm will pass by the deed, has no application to a case where a description by metes and bounds in which there is no uncertainty is followed by the words, “being the same premises whereon” the grantor and his family now reside, because the reference t'o the grantor’s residence in such case is obviously merely a further identification of the premises and not another description, and in an action to quiet title the plaintiff deraigning title through such a deed was not required to prove what land had been occupied by the grantee and his family.</p> <p>Id.—Location op Boundary by Agreement—Nature op Proof Required.—Proof of a mutual agreement between adjoining land owners, fixing a common boundary line, must be clear, and the mutual acquiescence should be shown to have existed for a period greater than the statute of limitations, or under such circumstances that substantial loss would be caused by a change.</p> <p>Ib.—Estates of Deceased Persons—Decree op Distribution—Description by Metes and Bounds—Distribution op All Lands op Decedent.—Where in the distribution of the estate of a decedent the decree distributes certain lands owned by the decedent, describing them by metes and bounds, and also distributes “all the lands to which the decedent had title at the time of his death,” the lands distributed will not be limited by the description by metes and bounds.</p> <p>Id.—Maps and Reports op Street Opening Commissioners—Inadmissible Evidence on Question op Boundaries.—On a question of boundaries in an action to quiet title, maps and reports of commissioners in a street opening proceeding held inadmissible, not being declarations of any of the parties in interest.</p> <p>Id.—Evidence—Refreshing Memory.—Maps and reports of commissioners in street opening proceedings, though they may be used as memoranda to refresh the memory of a witness, are not admissible as independent evidence on a question of boundary in an action to quiet title.</p>

<p>Appeal—Time for Appeal from Judgment Prior to 1915.—Prior to the amendments to the Code of Civil Procedure in 1915, an appeal from a judgment of the superior court, taken within six months from the actual entry of the judgment, was in time.</p> <p>Id.—Premature Notice op Entry of Judgment.—Where on December 7, 1914, notice of entry of judgment was served, giving the date of entry as December 3d, but in fact judgment was not entered until December 18th, the notice was premature and ineffectual for any purpose.</p> <p>Contract—Action on Quantum Meruit for Work Done—Pleading.— In an action by a dredging company on a quantum, meruit for certain dredging work, alleged by the plaintiff to have been done by it for the defendant, a dock company, under a written contract set out in the complaint, whereby the dredging company was to dredge and deposit a certain quantity of material monthly on the dock company’s property until the land was filed to a certain grade, payments for work done to be made monthly, it is held that while the complaint was very indefinite and uncertain as to whether the work of filling upon the defendant’s property had been completed according to the contract so as to have entitled the plaintiff to be paid at the full contract rate for its work during the month for which suit was brought, the pleading was not so fatally defective as to be subject to a general demurrer.</p> <p>Id.—Rescission—Party in Default.—A party to a contract who is himself in default in respect to a material part thereof may not rescind.</p> <p>Id.—Provision for Arbitration.—Where a dredging contract contained a provision that “in case of any disagreement between the parties respecting any matter under this contract, settlement of which is not hereinbefore provided for, the same shall be settled and the rights of the respective parties determined by arbitration, each party hereto to select one arbitrator, and the two so chosen to select a third, and the three arbitrators shall hear all evidence offered, and make investigation of the facts, and the decision of the majority of such arbitrators shall be final and binding on both parties,” such provision was not binding upon the parties so as to have required the one who claimed a breach to have first sought' recourse to arbitration, before either bringing an action upon the contract or working its rescission and commencing action upon a quantum meruit, if otherwise entitled to it.</p> <p>Id.—Acceptance of Payment—Waiver of Right to Rescind.—Where a dredging company accepted from a dock company the whole amount claimed by the latter to be due from it for a certain month, on a dredging contract providing for monthly payments for the work done in each month, the dredging company could not, with full knowledge that the sum offered was tendered in full performance of the dock company’s obligation, receive it as part payment for the work without thereby waiving its right to rescind the contract upon the ground of the dock company’s failure to perform.</p> <p>Id.—Attempted Rescission Too Late.—In such case an attempted rescission by the dredging company was too late (even if otherwise entitled to rescind), when after receiving the amount tendered by the dock company for the month of October, with full knowledge of the nature of the dock company’s default, it went on with the work which it was required to perform in November, and did not attempt to exercise the right of rescission until nearly two months later, and until the entire term within which the work under the contract was to he completed had expired.</p>

<p>Taxation—Inheritance Taxes—Statute of Limitations.—The right of action under the act of 1905 (Stats. 1905, p. 374), to enforce the lien of the state against the donees of property claimed to be subject to the inheritance tax imposed by the act of 1903 and amendments thereto, accrued upon the death of the donor of the property, and an action brought more than three years after the death of such owner is barred by subdivision 1 of section 338 of the Code of Civil Procedure.</p>

<p>APPEALS from two judgments of the Superior Court of Tulare County. W. B. Wallace, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

B>.—'Insufficient Findings of Fact—Issue of Stock as Bonus for Loan—Failure to Find Value of Stock.—Where in such action the defense set up by the answer was that the stock was issued to the defendant as a bonus for a loan by the defendant to the corporation, that the stock at the time had no market value, and that the transfer was for a full consideration and for the highest market value, it was incumbent on the court (if it found that the stock was issued as a bonus for a…

<p>Appeal—Suggestions of Fraud—When not Considered.—If fraud was not claimed or pleaded, arguments based on suggestions of fraud will not be considered on appeal.</p> <p>Deeds—Delivery in Escrow—Passing oe Title.—Under the general rule regarding the passing of title by deeds put in escrow, as prescribed by section 1057 of the Civil Code, no title passes until the condition is so far performed that the grantee is entitled to the possession of the deed, except where the condition is certain to occur regardless of any act of the parties, and such exception does not apply to a case where the fulfillment depends upon the conduct of the grantee.</p> <p>Id.—Abandonment op Escrow—Delivery op Deed Ineffectual.— Delivery of a deed in escrow becomes ineffectual for any purpose when the parties abandon the escrow.</p> <p>Id.—Subsequent Delivery op Deed—Time op Passing Title.—A deed which is delivered to the grantee subsequent to the abandonment of an escrow in which it had been deposited becomes effective only from the date of such delivery and passes the title as of that date.</p> <p>Id.—Sale op Interest in Property—Deed in Escrow—Subsequent Becordation op Judgment Against Grantor—Lien not Created__Where an owner of real property deposits a deed thereto in escrow with instructions to deliver to the grantee upon payment of the. purchase • price, and thereafter, but prior to the abandonment of such escrow, sells all of his interest in the property to another, the subsequent recordation of a judgment against such original owner creates no lien on the property.</p> <p>3d.—Execution Sale—Bights op Purchaser—Constructive Notice.— Where subsequent t'o the recordation of such judgment but prior to execution sale thereunder, the deed conveying the legal title of the judgment debtor is placed of record, such judgment debtor having divested himself of all beneficial interest prior to the recordation of the judgment, the purchaser at the execution sale is charged with notice of such deed, and therefore acquires no interest in the land.</p> <p>Judgment—Lien on Beal Property—Equitable Titles op Third Persons.—When a judgment creditor records his judgment in another county in which there are lands of the judgment debtor, he obtains thereby a lien on the lands, but no rights in the lands as against outstanding unrecorded deeds or latent equitable titles of third persons.</p> <p>Execution Sale—Unrecorded Deed—.Notice—Bights op Execution Purchaser.—A purchaser of land sold under execution on a duly recorded judgment acquires title to the land which is prior to any unrecorded deed or equitable rights of which he has no notice, actual or constructive; but if he has notice thereof, he takes subject thereto.</p> <p>Id. — Constructive Notice — Possession.—Possession is constructive notice to a purchaser of land at an execution sale, sufficient to put him on inquiry as to the rights of the person in possession and those under whom he is claiming.</p>

<p>Deeds—Description—Boundaries—Street Line.—Under seetion 1112 of the Civil Code, providing that “a transfer of land, bounded by a highway, passes the title'of the person whose estate is transferred to the soil of the highway in front to the center thereof, unless a different intent appears from the grant,” a “different intent,” namely the intent to give title only to the side line of the street, appears from a sheriff’s deed on foreclosure of a mortgage in which the description of the lot of land1 conveyed runs to a "point on the southerly line” of a street and thence “along the southerly line” of the same street and to the northeast corner of said lot.</p> <p>Id.—Quieting Title—Finding Unsupported by Evidence.—In this action to quiet title, in which a defendant set up by cross-complaint title in himself and offered in support of his claim a sheriff’s deed to himself on the foreclosure of a mortgage, the finding that the premises described in the sheriff’s deed are the same as those described in the complaint is not supported by the evidence.</p> <p>Id.—Defunct Corporation—Deed by Last Directors—Insufficiency of.—A deed reciting that the grantors comprise the last board of directors of a defunct corporation and not purporting to convey the title of the company, the grantors signing as individuals, not as trustees, is a mere quitclaim deed of the individual grantors, and does not convey any other title.</p>

<p>Account Stated—Definition.—An “account stated” is an agreed balance of accounts; an account which has been examined and accepted by the parties; a writing which exhibits the state of the account between parties and the balance owing from one to the other, and when assented to either expressly or impliedly it becomes a new contract.</p> <p>Id.—Cross-demands—Single Transaction.—To constitute an account stated, it is not necessary that there should be cross-demands between the parties, or that the acknowledgment that a certain sum is due from one party to the other should relate to more than a single debt or transaction.</p> <p>Id.—Contract to Furnish Water—Construction op.—Where the owner of a tract of land, which he proposed to subdivide and sell, entered into an agreement with a water company by which the latter agreed for a certain sum per aere, the area to be determined by a subsequent survey, to execute to each purchaser a contract to furnish water perpetually to him at a fixed charge, the agreement reciting that the owner had paid a certain amount to the company of the sum agreed, a second agreement between the parties in which the company acknowledged to have received on the first contract, a certain sum as part payment of the contract, and that the balance due was a certain amount, the owner acknowledging in writing the second contract to contain a correct statement of the amount paid and the amount still due and unpaid on the contract, constituted an account stated.</p> <p>Id.—Acknowledgment op Debt — Implied Promise op Payment.—> Such instrument, even if not an account stated, is an acknowledgment of a debt due which implies a promise to pay, and is a good foundation for an action.</p> <p>Water Company—Contract to Furnish Water at Fixed Bate— Public Policy.—A contract by a water company to furnish water at a fixed sum and at a fixed rate is not invalid as against public policy unless the proper public authority interferes, but is valid and enforceable between the parties until the public authorities find cause to abrogate or modify it.</p>

<p>APPEAL from a judgment of the Superior Court of Plumas County. H. D. Gregory, 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>Workmen’s Compensation Act—Proceedings Before Commissioners —Cause of Disability—Stipulation for Determination by. Physician—Evidence Sufficient.—Where on a proceeding before the Industrial Accident Commission, for an award for injuries claimed to have been sustained by an employee, it was stipulated that the applicant had received an injury in the course of his employment, but the employer and the insurer claimed that the disability for which compensation was sought was due to a disease with which the employee was afflicted and not to the injury, and after testimony had been introduced it was stipulated at the close of the taking of the evidence before a referee, that the employee should submit himself to examination by the physician of the commission, who was to report to the referee, and that this report should be used by the commission in arriving at its decision, and that upon the receipt of the report the matter was to be submitted for. decision, there was no good basis for a claim, after the physician had made his report and it had been considered by the commission, that the award was made before all the evidence had been taken.</p> <p>B>.—Construction of Stipulation—Employment of Assistants by Physician.—Under such stipulation and an agreement contained therein that the physician of the commission was to take whatever measures he deemed necessary to reach a conclusion, he had the right to employ assistants to make observations, including a serological examination, and to report the result for the information . of the commission.</p> <p>Id.—Incompetency of Evidence^—Failure to Eeject.—Failure to reject incompetent evidence which was merely cumulative of other evidence and not essential to support the finding of the commission, does not affect the jurisdiction of the Industrial Accident Commission to make an award.</p>

<p>Office and Officers—Misconduct in Office—Removal Proceedings —Los Angeles County Charter—County Treasurer—General Law Applicable—Penal Code Sections.—The proceedings provided by section 758 et seq. of the Penal Code for the “removal of civil officers otherwise than by impeachment,” and not the proceedings prescribed by the Los Angeles County charter which went into force in June, 1913 (Stats. 1913, p. 1484), are applicable to a proceeding to remove, for misconduct in office, a county treasurer of Los Angeles County, who, before the charter took effect, namely, in November, 1910, was elected for a term of four years, commencing on the first-Monday of January, 1911, since, although the charter made the office of county treasurer appointive instead of elective, and placed it in the classified service, section 7%' of article XI of the constitution authorizing counties to frame charters, and the Los Angeles County charter, framed under that provision, alike provided in substance that such charter should not affect the tenure of office of any of the elective officers of the county, but that they should continue to hold their respective offices until the expiration of the term for which' they were elected, unless sooner removed in the manner provided by law.</p> <p>Id.—“Tenure of Office” Defined.—The word “tenure” denotes in law the fact, manner, or means of holding, and, as applied to the holding of an office, is synonymous with “term of office,” and the words, “shall not affect the tenure of office,” etc., as used in section 7% of article XI of the constitution, authorizing counties to frame charters, prohibit not only the shortening of the tenure or term of office of any of the officers described, but also the extension of such tenure or term of office.</p> <p>Id.—Constitutional Law—Penal Code Provisions for Removal of Officers—Invalidity of Provision for Appeal—Other Independent Provisions Unaffected.—The fact that section 770 of the Penal Code, purporting to authorize an appeal to the supreme court from a judgment of the superior court removing a civil officer, has been held unconstitutional does not affect the remaining sections of the chapter prescribing proceedings for removal of civil officers other than by impeachment (Pen. Code} sees. 758-772), since section 770 is an entirely independent provision, the invalidity of which in no way affects the validity of the remaining provisions of the chapter.</p>

<p>Ferries—Public Highway.—Although a ferry has been called a part of a highway, it is not in a strict technical sense under our law a highway, but only in the limited sense that when the term is used to designate the place where the liberty to operate a boat upon a river for the transportation for a reasonable toll of men, horses, and carriages is exercised, it is a public highway in so far as it is a continuation of the highway with which it connects.</p> <p>Id.—Abandonment op Franchise—Free Public Highway not Created.—Where the owner of a franchise from a county board of supervisors for a ferry across a river from a city street on one bank to a county road on the opposite bank sold his franchise and equipment to another, and formally abandoned and relinquished his franchise, by a written instrument addressed to the board, which, in a single order, accepted the abandonment and granted a new franchise to the purchaser, the ferry did not by that abandonment become a “free public highway.”</p> <p>Id.—Grant of New Franchise—Power of Supervisors.—In such case the board of supervisors had power to grant a new franchise without making a preliminary finding that the cost of maintaining a free ferry was too great to assume.</p> <p>Id.—Franchise Transferable.—A ferry franchise is transferable.</p> <p>Id.—Collateral Attack.—When a ferry franchise has been granted by competent authority, such as the board of supervisors of a county, collateral attack upon it upon such grounds as failure to advertise the franchise for sale and other similar objections will not be considered by a court.</p> <p>Id.—One Terminus of Ferry in a City—Pule as to Collateral Attack Unchanged.—The rule that a ferry franchise granted by competent authority is not subject to such collateral attack is not changed by the fact that one terminus of the ferry is in a city. Id.—Destroying Value of Franchise—Construction of Free Bridge —Municipal Corporation—'Liability for Damages.-—Although a ferry franchise has one terminus at the end of a street in a city and the other terminus in another part of the county, and the city had jurisdiction and power t'o build the part of a bridge within its territory as a declared public necessity, the city, if the ferry franchise is made valueless by the finished bridge, may not escape liability for the damage sustained by the owner of the franchise, the municipal corporation being in the same position which a private individual would occupy, if without warrant of law he had constructed the bridge and injured the property of the owner of the franchise.</p> <p>Bridges—Erection by Public Corporation—Discretionary Power.— A public corporation exercises discretionary power in deciding to erect a bridge, and that discretion may not be imposed upon an adjoining county or municipality.</p>

<p>The facts are stated in the opinion of the court.</p> <p>Clyde Bishop, H. C. Head, Williams & Rutan, and Trippet, Chapman & Biby, for Appellant.</p> <p>George H. Woodruff, Clyde C. Shoemaker, and Hunsaker & Britt, for Respondents.</p>

<p>Workmen’s Compensation Act—Review op Award—Irregularities or Errors in Procedure.—The granting by the Industrial Accident Commission of a rehearing, on the ground of newly discovered evidence, in violation of its own rule, requiring such evidence to be set out in detail in the application for a rehearing, and the taking of further evidence without solicitation from either party, being mere matters of procedure, and not going to the jurisdiction of the commission to make awards, are not grounds upon which the supreme court can vacate an award.</p> <p>Id.—Incompetent Evidence.—The supreme court cannot set aside an award of the Industrial Accident Commission because of the admission of incompetent evidence, provided there is enough competent evidence to uphold the same.</p> <p>2d.—Insurance—Construction op Policy—“General Farm Work, Excluding Operation op Farm Machinery.”—An insurance policy binding the insurer to pay all sums due from an employer under the Workmen’s Compensation Law because of any injury to employees “engaged in general farm work, excluding the operation of farm machinery,”1 covered an injury causing the death of an employee who was struck by a bar attached to a disk harrow, which, in the course of farming operations, was being pulled in the nighttime by an engine, it appearing that the deceased was not operating the engine but was standing in the field and using a lantern to guide the engineer who operated the machine.</p> <p>Id.—Uncertainty in Policy—Construction Against Insurer.—If in . such ease the words “excluding the operation of farm machinery” are of uncertain import, then, under section 1654 of the Civil Code, the contract is to be construed most strongly against the insurer, who drew the policy and caused the uncertainty to exist.</p>

<p>The facts are stated in the opinion of the court.</p> <p>S. Luke Howe, and Downey, Pullen & Downey, for Appellants.</p> <p>Driver & Driver, B. F. Van Dyke, and Frank Tade, for Respondents.</p>

<p>REVIEW on Certiorari of an order of the District Court of Appeal for the Second Appellate District disbarring an attorney.</p> <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>Criminal Law—Limiting Argument of Counsel.—In a criminal case, no error was committed in limiting argument for the defendant, to fifteen minutes, in view of the small number of witnesses and the brevity of their testimony.</p> <p>Id.—“Indeterminate Sentence” Law—Form of Judgment of Conviction.—Under the “indeterminate sentence” law (section 1168 of the Penal Code), the judgment of the court on conviction of a defendant of a public offense properly consists of a recital of the offense of which the defendant stands convicted, a designation of the state prison to which he is committed, and nothing more.</p> <p>Id.—Burglary in Second Degree—Sentence—Minimum Term.—Section 461 of the Penal Code, which prescribes the punishment for burglary, provides no minimum term for burglary in the second degree, and, therefore, a judgment fixing a minimum term on a conviction of the offense last mentioned was erroneous.</p> <p>Id.—Suspending Sentence.-—-The trial court had no authority to suspend a sentence for burglary and remand the defendant to the custody of the sheriff to be confined in the county jail, it being the duty of the sheriff, under section 1216 of the Penal Code, when the penalty of the law is imprisonment in a state prison, to deliver the defendant forthwith to the warden of the state prison.</p> <p>Id.—Probation.—The only way in which the court can legally suspend the execution of the sentence in such case is by proceeding under section 1203 of the Penal Code, which provides that in the event of suspension of sentence, the court shall place the defendant on probation, and under the charge and supervision of the probation officer during such suspension.</p>

<p>New Trial—Order Granting—Effect on Defendants in Default.— As to defendants in a foreclosure case who did not appear, and as - to whom defaults were duly entered, followed by the findings and decree of the trial court in conformity with the averments and prayer of the complaint, which decree has become final, there need be and can be no retrial of the case, upon an order granting the motion of other defendants for a new trial, since, as to these defendants in default, there are no issues which remain to be tried, the judgment itself being conclusive of every fact which has been determined against them.</p> <p>Id.—Separate Motions of Several Defendants—Motion on Behalf of One Set of Defendants Granted — Effect of Reversal of Order.—Where, in a foreclosure suit, separate motions for a new trial were made by several sets of defendants, the motion of one defendant being addressed to that portion of the finding and decree of the trial court which subordinated the interests of the moving defendant in portions of the mortgaged property to the lien of the plaintiff’s mortgage, and that motion was granted by the trial court but the order was afterward reversed by the supreme court, which latter court, however, affirmed an order of the trial court, granting the motion of an intervener for a new trial upon other issues specially tendered by a cross-complaint in intervention, there need be and can be no retrial of the case as to the defendant or set of defendants first mentioned, for the original judgment, as to them, having been restored and become a finality by the reversal of the order granting a new trial, there are no issues as to them remaining to be tried.</p> <p>Id.—Intervention—General Order Granting Motion for New Trial of an Intervener—Issues to be Tried Restricted.—-Where, in such case, an intervener moved for a new trial of certain issues which arose out of the averments of the cross-complaint in intervention of such intervener and the answers thereto of defendants whom the intervener had caused to be brought in, which issues had been decided against the intervener, and the trial court made a general order granting a new trial on the said motion of the intervener, and the last-mentioned order was affirmed by the supreme court, such general order granting a new trial could not be construed or held to be any broader than the motion which formed its predicate, nor than the issues which, in said motion, it was urged the trial court had erroneously determined.</p> <p>Id.—Foreclosure—Amount of Indebtedness—Counsel Fees.—Where, in an action for the foreclosure of a trust mortgage securing a bonded indebtedness, the findings of the court determined the amount of the indebtedness, and based on this finding determined the amount reasonable to be awarded to the plaintiff as counsel fees, a subsequent order granting a new trial generally reopened both of these questions for retrial.</p> <p>Prohibition—Application to Restrict Retrial of Issues on a New Trial—Assumption by Supreme Court as to Action by Superior Court.—Where the supreme court in deciding appeals from separate orders granting and denying new trials in behalf of several defendants has, by the affirmance of one of the orders granting a new trial in favor of an intervener, left certain issues in a foreclosure suit to be retried, such issues not affecting the right of the plaintiff to foreclose, but relating solely to the rights of different holders of bonds to participate in the proceeds of the foreclosure sale, and thereafter application is made to the supreme court by the plaintiff in the foreclosure suit for a writ of prohibition to restrain the superior court from proceeding with the new trial, upon averments in the application for preventive relief that the superior court and the judge thereof will, unless restrained, “proceed to retry all the issues” arising in said cause against each and all the defendants, and that the plaintiff will be compelled to incur large expense in the retrial of said cause, the supreme court, in the absence of a positive showing to the contrary, must assume that the trial court, upon the retrial, will be guided and governed by the appellate decision.</p> <p>Id.—Petition for Writ — Averment of Conclusion Inconsistent With Facts.—Where, under the decision of the supreme court in affirming an order granting a new trial of a foreclosure suit on the motion of an intervener, the only issues arising or existing are those which different holders of bonds, purporting to be secured by the trust deed, under foreclosure, have created as between themselves by the cross-pleadings in the case, and with which the trial court was dealing in its order granting a new trial, an averment in a petition by the plaintiff to the supreme court for a writ of prohibition to the effect that the trial court “proposes to retry all the issues arising in said cause under plaintiffs’ said amended complaint as against each and all of the defendants therein named” was the statement of a condition which could not possibly exist, and, therefore, it did not sufficiently appear from the petition that the trial court was proposing to try any other issues than those existing in the case, in its then present state.</p> <p>Trial—“Issues” Defined.—“Issues” in a ease do not arise or exist so as to require trial upon the mere filing of a complaint, but only upon joinder of issue through appropriate denials of the averment's of the complaint, or through affirmative defenses or pleas deemed or required to be denied by the plaintiff, or by other defendants, as the case may be.</p>

<p>The facts are stated in the opinion of the court.</p> <p>Fred H. Schauer, B. Rey Schauer, and A. Mitchell Palmer, for Appellant.</p> <p>Richards & Heaney, A. C. Postel, Charles L. Benoist, and Francis Price, for Respondents.</p>

<p>APPLICATION for certificate of probable cause on appeal from an order of the Superior Court of the City and County of San Francisco denying a motion to set aside a judgment. Franklin A. Griffin, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Costs—Depositions—Necessity—Failure to Use.—Where a party recovers costs, the expense of taking depositions before trial is properly taxable, although the depositions were not offered in evidence, unless it be shown that they were unnecessary, or that for some special reason the expense of taking them should not be allowed.</p> <p>Id.—Question for Trial Court.—In such case the question whether the taking of a deposition before trial was reasonably necessary for the protection of the party taking it was one for the trial court to decide on the facts before it.</p> <p>Id.—Reporter’s Charges — Transcribing Testimony.—Under section 274 of the Code of Civil Procedure, which authorizes fees for transcripts “ordered by the court to be made,” to be taxed as costs, where the court at the beginning of a trial ordered that the testimony be transcribed by the reporter, and paid for by plaintiff, the charges to be taxed as costs in the action if the plaintiff should recover judgment, and that the transcript be filed, it appearing that the trial was protracted, and that after the plaintiff had paid $220 for so much of the transcript as had then been furnished, he was without funds to pay for more and ordered the reporter to cease further transcription, it was within the discretion of the court to say whether the plaintiff should recover the cost of the part of the testimony transcribed.</p> <p>Id.—Failure to File Transcript Before Taxation of Costs.—Where, in such case, on the hearing of the motion to tax the costs, objection was made that the transcript of the testimony had not been filed, and thereupon the plaintiff did file it, the trial court did not err in holding that the failure to file it earlier was not fatal to the plaintiff’s right.</p>

<p>Appeal—Order Denying New Trial—Newly Discovered Evidence— Record Insufficient.—An appeal from an order denying a motion for a new trial on the ground of newly discovered evidence cannot be considered where the affidavits on which the motion purports to have been made, though embodied in the printed transcript, are not authenticated either by incorporation in a bill of exceptions or under section 953a of the Code of Civil Procedure.</p> <p>Id.—Harmless Failure to Find.—Where the findings actually made require a judgment in plaintiff’s favor, the failure of the court to find upon other issues raised by the pleadings, a disposition of which either way could not have changed the result, is immaterial.</p> <p>Id.-—Evidence not Brought Up in Record—Assumption by Appellate Court.—Where issues not answered by the findings of the trial court were raised by the defendant and appellant’s own affirmative allegations, and the evidence was not brought up by the record on appeal, it must be assumed by an appellate tribunal that no evidence was offered in support of these affirmative averments,</p>

<p>Negligence—Street Railways—Method of Operation—Running in Unusual Direction.—In the absence of a law or ordinance prescribing the direction in which the cars of a double track street railway should be run, it was lawful to run them in either direction, and therefore, although usually street-cars travel on the right-hand track in the direction in which they are going, it was lawful to run them in either direction, and running a car west on the south-side track was not negligence in law.</p> <p>Id.—Evidence Rebutting Negligence—Verdict of Jury Conclusive. Where there was evidence for the defendant rebutting the plaintiff’s claim of negligence, the fact that the plaintiff’s evidence contradicted it is not available for reversal of a judgment on appeal, the verdict of the jury on that subject being conclusive in the appellate tribunal.</p> <p>Id.—Contributory Negligence—Verdict not Contrary to Evidence.—Where there was evidence tending to show that the plaintiff, who was driving an automobile when it was struck by the defendant’s street-ear, could, by the exercise of ordinary care, have stopped her ear in time or guided it so as to avoid the collision, a verdict finding her guilty of contributory negligence was not, as a matter of law, contrary to the evidence.</p> <p>Id.—Pleading Contributory Negligence — Theory on Which Trial Conducted.—Where, in an action against a street railway company for damages sustained by the defendant in a collision between one of the defendant’s street-cars and the plaintiff’s automobile, the trial was conducted throughout upon the theory that contributory negligence of the plaintiff was properly alleged and that the fact was in issue, it cannot be claimed on appeal that the plea was insufficient.</p> <p>Id.—Instructions—No Presumption op Negligence—Res Ipsa Loquitur—Inapplicability of Rule.—In such an action an instruction that “the fact that there was a collision between the automobile in which the plaintiff was riding and the street-car of the defendant does not raise a presumption of negligence against defendant,” was not erroneous, the maxim “res ipsa loquitur,” not applying in such cases.</p> <p>Id.—Ordinary Care on the Part of Persons Using Street.—An instruction in such action to the effect that a motorman operating a car at a reasonable speed has a right to assume that other persons using the street will exercise ordinary care, and will see that which is plainly to be seen, is not erroneous, since it does not assume that the car was plainly to be seen, but merely states that, if it was plainly to be seen, the motorman had a right to expect that the plaintiff would see it, leaving the jury to determine from the evidence whether or not it was plainly to be seen.</p> <p>Id.—Yielding Right of Way—Duty of Automobile Drivers.—There was no error in instructing the jury that it is the duty of drivers of automobiles along a street on which there is a street-car track to yield the right of way to street-cars when they can reasonably do so.</p> <p>Id.—Special and Particular Care—Instruction Properly Refused.— An instruction that when running a car in a direction opposite to that usually taken on the south track the motorman must use “special and particular care” was properly refused, “reasonable and ordinary care,” under the existing circumstances, being the standard required of a street-car company lawfully operating its cars on the street.</p>

<p>Negligence — Personal Injuries — Jury Trial — Directed Verdict, When Proper.—The existence or nonexistence of negligence is ordinarily a question of fact to be determined by a jury; but the court may withdraw the case from the jury and direct a verdict where the evidence is undisputed, or is of such conclusive character that the court, in the exercise of a sound judicial discretion, would be compelled to set aside a verdict returned in opposition to it.</p> <p>Id.—Collision of Automobile With Wagon—Directed Verdict for Defendant.—In an action for damages for personal injuries claimed by the plaintiff to have been sustained through the wagon in which she was riding having been struck by an automobile driven by the defendant, evidence examined and found to justify the action of the trial court in withdrawing the case from the jury, and directing a verdict for the defendant.</p> <p>Id.—Evidence—Burden of Proof of Negligence.—In such action the burden of proving negligence was on the plaintiff.</p> <p>Id.—Negligence not Inferred from Injury.—In such cases negligence is not to be inferred from the mere fact of injury.</p> <p>Id.—Municipal Speed Ordinance—Evidence of Violation.—Where the violation of a municipal ordinance by propelling an automobile at an unlawful or excessive speed is relied on to sustain a charge of negligence, such expressions by witnesses as that the automobile was “going pretty fast,” “very fast,” and the like are merely relative, and entirely too uncertain to serve as a basis for finding that the speed was over twenty miles an hour, or that it was in excess of the rate dictated by the demands of ordinary prudence.</p>

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

<p>Appeal—Inferences in Favor of Findings.—When it is claimed in support of an appeal from a judgment that the findings on which the judgment is based are contrary to the evidence, all inferences reasonably possible from the evidence favorable to the judgment must be indulged by the appellate court.</p> <p>Fraudulent Conveyance—Deed by Husband to Wife—Intent to Defraud Creditor — Nonparticipation by Wife in Fraudulent Intent.—Where property was conveyed by a husband to bis wife six months before incurring a debt to a bank, and there was evidence tending to show that at the time he incurred the debt he had a fraudulent intent toward the bank with respect to the property, represented that he was the owner of it, and concealed the fact that it belonged to Ms wife, and obtained a loan on, the faith of his representations, but there was also evidence that the wife gave full value for the conveyance, a fraudulent intent on his part was of no avail to the husband’s creditors unless it was shown that the wife participated therein.</p> <p>Id.—Findings—Conflict of Evidence.—In such case a finding by the trial court that the wife was not guilty of fraudulent intent in accepting deeds from her husband and claiming the property as her own must be upheld when the evidence, as a whole, was of such character that the court might have found either way upon the question in its discretion.</p>

<p>The facts are stated in the opinion of the court.</p> <p>Ralph Woods Pontious, and D. M. McDonald, for Appellant.</p>

<p>Habeas Corpus—Requisites of Petition.—A petition for a writ of habeas corpus must show wherein the illegal imprisonment exists; and where it seeks discharge of one from the state prison, it must show that the prisoner was not deprived of credits for good conduct, where his term would not have expired if he had been deprived of them.</p>

<p>Appeal—Alternative Method—Typewritten Transcript—Insufficient Record—Affirmance of Judgment.—Where, on an appeal from a judgment taken by the alternative method, the appellant relies solely upon his claim of the insufficiency of the evidence to justify the findings and judgment, yet, although the typewritten transcript embraces 120 pages, the appellant’s opening brief contains no supplement, as required by the rule, and does not by quotation, reference, or otherwise direct the court to the portions of the record upon which he relies to sustain his point, the judgment will be affirmed.</p>

S. Kings-bury, Surveyor-General, and ex-officio. Register of the State Land Office of the State of California. The facts are stated in the opinion of the court. Tapscott & Tapscott, A. E. Bolton, and O. K. McMurray, for Petitioner.

<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>Summons—Service on Partnership—Motion to Quash.—Where mem- bers of a partnership were parties defendant and the summons was properly served on them, a motion to quash the service on the partnership was properly overruled.</p> <p>Abatement—Assignment of Cause of Action—Continuing Action in Name of Original Plaintiff.—Under section 385 of the Code of Civil Procedure, where a transfer of a cause of action is made while an action is pending, the action may be continued in the name of the original party.</p> <p>Foreclosure—Equitable Mortgage—Jury Trial.—An action upon a promissory note and to foreclose an alleged equitable mortgage is equitable in character, and a demand for a jury trial in such action is properly denied.</p> <p>Id.—Evidence — Fictitious Grantee in Deed Given as Security.— Where the property claimed by the plaintiff to be the subject of such equitable mortgage consisted of a lot of land alleged in the complaint to have been conveyed by deed from one of the parties defendant to other parties also made defendants, who were partners and described in the deed by a fictitious partnership name, but the complaint also alleged that the grantor in the deed held the title in trust as security for the payment of the note in question, the court did not err in admitting the deed in evidence over objection to its validity on the ground that the grantee was a fictitious person, the deed being pertinent as evidence to prove the allegations of the complaint and to show that the grantor held the title in trust, if the theory of the complaint that she did so hold the title was correct.</p> <p>Id.—Partnership Having Fictitious Name — Suit Against — Compliance With Civil Code, Sections 2466, 2468.—It was not necessary for the plaintiff to prove that a defendant partnership having a fictitious name had complied with the requirements of sections 2466 and 2468 of the Civil Code, since the only penalty for failure is that such a partnership cannot maintain an action until it has complied with those sections, and there is nothing to prevent such partnership being made defendant to an action.</p> <p>Id.—Interest Payments on Prior Mortgage.—It being alleged in the complaint in such action that the encumbered property was covered by a prior mortgage, interest on which was paid by the plaintiffs, to protect the security against foreclosure of the prior mortgage, objection to evidence of these payments on the ground that it was not shown whether they were made by the plaintiffs or by their predecessor, the defendant partnership, was properly overruled, since, so far as the appellants were concerned, it was immaterial which party paid the interest, provided it was paid to protect the security against foreclosure.</p> <p>Id.—Transfer of Promissory Note — Indorsement After Action Begun.—There being evidence that the promissory note on which the action was brought was transferred to the plaintiff by the payee before the beginning of the action, the court did not err in excluding evidence that the indorsement of the note made by the payee was placed there after the beginning of the action, since, the payee being a party to the action and able to answer as to any interest it had in the note, it was of no importance whether its indorsement was placed on the note before or after the action was begun.</p> <p>Id.—Deficiency Judgment.—A deficiency judgment is authorized on the foreclosure of an equitable mortgage, in case the encumbered property does not sell for a sum sufficient to pay the debts for which it is security, there being no distinction in this respect between a transaction which constitutes an equitable mortgage under section 2924 of the Civil Code and an ordinary mortgage.</p> <p>Id.—Answer Setting Up Defense of Fraud — Order Striking Out Repetitions in Answer.—Error in striking out parts of an answer was harmless where the portions stricken consisted of repetitions of allegations showing false representations, and enough was left remaining to make out the charge of fraud stated.</p> <p>Id.—Promissory Note—Consideration.—It is held that under the facts of this ease there is no merit in the claim that the promissory note on which the suit was founded was without consideration.</p> <p>Appeal—Points not Argued will not be Considered.—The supreme court will not discuss or consider points which are not argued by the appellants, though claimed by them as errors of the trial court.</p>

<p>Willis I. Morrison, 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>Stutsman & Stutsman, and Maurice F. Enderle, for Appellant.</p>

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

<p>Husband and Wife—Void Prenuptial Agreement for Separation— Valid Marriage.—Although a prenuptial agreement between parties about to marry that when married they should never live together, that the wife should not assume the husband’s name, that each should retain all of his or her future earnings and acquisitions, and that in the future the wife would “grant a divorce” to the husband, was void as against public policy, a marriage which followed was valid, and created all the mutual obligations which the law attaches to marriage.</p> <p>Id.—Rights of Wife.—After a marriage following such an agreement the wife was under no obligation to consent to a separation and might have insisted upon living with her husband and have charged him with desertion upon his failure so to do.</p> <p>Id.—Action for Support and Maintenance—Consent to Separation As A Defense.—Where the parties separated within an hour after such agreement and marriage, the wife then in fact consenting, and they never thereafter lived together as man and wife, that consent deprived the wife of her right to separate maintenance and support so long as the separation continued by mutual consent.</p>

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

<p>Counties — Municipal Corporations — Constitutional Law — Manufacture and Sale of Cement—Invalid Contract.—Subdivision 9a of section 4041 of the Political Code, having, been held unconstitutional by the supreme court in Los Angeles v. Lewis, 175 Cal. 777, it follows that the contract made in pursuance thereof for the furnishing of cement by the county of Los Angeles to the city of Los Angeles was ultra vires and void so far as the county is concerned.</p>

<p>Municipal Corporations — Annexation of Territory — Annexation Act of 1913—Ascertaining Sufficiency of Petition—Ministerial Act.—Under the Municipal Corporations Annexation Act of 1913 (Stats. 1913, p. 587), as amended in 1915 (Stats. 1915, p. 305), in a proceeding to annex territory to a city, a city council is not limited as to the method to be pursued in informing its members with respect to the question whether a sufficient number of electors in the territory to be annexed had petitioned for the annexation, and,’ in determining that question, the city council acts in a ministerial capacity.</p> <p>Id.—Report of City Clerk.—All that the city council is required to do under the statute in such ease is to compare the petition with the last registration of voters of the county in which the designated territory is situated, and when the city council instructs its clerk to perform that ministerial duty and report the result to it, and the city clerk performs that duty, the city council is sufficiently advised to make its finding.</p>

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

<p>Principal and Agent—Association for Purchase of Land—Duty of ^ Negotiating Associate—Good Faith.—A person who negotiates a purchase of land for the benefit of himself and others is the agent of his associates, and as such bound to the utmost good faith with them, regardless of whether the dealings between them constituted a partnership or a tenancy in common in the land.</p> <p>Id.—Existence op Partnership—Question of Fact.—The question of whether there is a partnership between persons associated together in the purchase of a tract of land is one of fact, and in order to constitute it, there must be an agreement to that effect—a joint undertaking to share in the profits and losses.</p> <p>Id.—Purchase of Land—Negotiation by Partner—Secret Profits— Accountability to Other Partners.—Where parties enter into an agreement of partnership or association for the purchase of property for the common benefit, each partner or associate occupies a fiduciary relationship to the others in all matters pertaining to the partnership enterprise, and is precluded from making any secret separate profit out of the transaction, and if he does so, it constitutes fraud upon the others and he is accountable in a suit at law or in equity for such profits.</p>

<p>Irrigation District—Petition for Organization—Bight of Withdrawal—Time.—Under the Irrigation District Act of 1897, and acts amendatory thereof and supplementary thereto, the petitioners for the organization of such a district may effectively withdraw from the petition at any time prior to its presentation to the board of supervisors on the date fixed in the published notice, with the result that at such time they can no longer be considered by the board as petitioners.</p>

<p>Irrigation District—Petition for Organization—Bight of Withdrawal—Time.—Under the Irrigation District Act of 1897, and acts amendatory thereof and supplementary thereto, the petitioners for the organization of such a district may effectively withdraw from the petition at any time prior to its presentation to the board of supervisors on the date fixed in the published notice, with the result that at such time they can no longer be considered by the board as petitioners.</p>

<p>Habeas Corpus—Forfeiture or Credits of Paroled Prisoner—Alleged Illegal Action of Prison Directors—Insufficiency of Petition.—An application for a writ of habeas corpus by a paroled prisoner, whose credit's had been declared forfeited for a violation of the terms of his parole, must be denied where the application is based upon the ground that the credits had never been lawfully or justly forfeited, and no attempt is made to specify or suggest wherein the action of the board of prison directors was illegal or unauthorized >by law.</p>

<p>Negligence—Collision Between Electric Car and Automobile—Injury to Guest in Automobile—Exercise op Care by Guest— Question por Jury.—In an action for damages for personal injuries received in a collision between an electric railway car and an automobile in which plaintiff was riding as a guest, the question whether the plaintiff was negligent in riding in the automobile while it was being driven at an excessive rate of speed without herself taking any precautions to ascertain whether or not the car was approaching, is one for the jury under proper instructions by the court.</p> <p>Id.—Credibility op Witnesses—Instruction.—The general instruction in this case as to jury’s duty in judging the facts and the credibility of witnesses is approved.</p> <p>Id.—Belief op Testimony.—The statement in such instruction, “You are not bound to believe the testimony of any witness unless such testimony imports verity and establishes conviction in your minds,” is to be considered as a part of the whole instruction, and means that the jury is never bound in law to believe the testimony of any witness that they do not in fact believe.</p> <p>Id.—Contributory Negligence—Consideration op All the Evidence. The question of contributory negligence is to be determined from all the evidence in the case.</p> <p>Ib.—Negligence op Driver—Instruction.—Where both the railway company and the driver of the automobile are defendants, and a verdict is rendered against both on the ground of negligence, the former cannot complain of an instruction concerning the driver’s negligence as being too favorable to the driver, since his negligence is not imputable to the plaintiff.</p> <p>Id.—Duty op Driver Toward Guest.—The driver, a carrier of persons without reward, owes to the guest the duty to use a reasonable degree of care for the safety of such guest.</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>Pleading—Amendment of Complaint After Trial—Denial Unnecessary.—When an amendment t'o a complaint has been added after trial, apparently to conform to the proof, a formal answer thereto is unnecessary, for the amendment is deemed denied.</p> <p>Injunction—Violation of Building Restriction—Acquiescence in— Proper Refusal of Relief.—A court of equity will not enjoin the violation of a building restriction by the owner of a lot in a tract sold pursuant to a general plan of improvement for the benefit of all the lots, where there have been such violations of the restrictions by plaintiffs and others, acquiesced in by the plaintiffs, as to preclude them from enforcing such restriction against the defendant.</p> <p>Abandonment of Building Restrictions—Rule.—Where there has been no uniform observance of the restrictions, and substantially all the land owners have so conducted themselves as to indicate an abandonment of the right, which is in the nature of an easement, to have the neighborhood kept to the standard established by the original plan, and where the enforcement will not tend materially to restore to the district the character imposed upon it by the scheme, and the infraction complained of does not diminish the value of the other estates, then it would be inequitable and oppressive to compel at great loss a compliance with the restrictions.</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>Pleading—Amendment—Discretion of Court.—Under section 472 of the Code of Civil Procedure a plaintiff has the right to amend Ms complaint once, without leave of court, after a demurrer is filed to it, provided he does so before the demurrer is presented to the court for decision; but if a demurrer is sustained, the defendant is entitled to judgment forthwith, unless the court, in its discretion, gives the plaintiff leave to amend; and, while the court should exercise its discretion liberally in favor of an application to amend, the privilege of amending at that stage of the proceeding does not become a right unless the circumstances are such that it would he an abuse of that discretion to refuse to allow it.</p> <p>Contract—Damages for Breach—Nonliability.—Where a contract for the sale of a lot was entered into by certain individuals and before the final payment of the purchase price a certain company entered into an agreement' with the purchaser, providing that in consideration of the final payment the company would put in all the improvements on the tract of land of which the lot was a part specified in the agreement of sale, the breach of this contract cannot he made the basis of an action for damages, or a charge of fraud against thé sellers, where they did not execute it, and it does not appear that they are in any manner bound by it, or concerned with its performance, so far as the purchaser is concerned.</p> <p>Action for Fraud—Action on Liability not Founded on Written Contract—Statute of Limitations.—In an action to recover damages on account of fraud and deceit alleged to have been perpetrated upon plaintiff inducing her to purchase a certain lot of land, if the complaint states a cause of action for relief on the ground of fraud, the period of limitation would expire at the end of three years from the time when the action accrued, or from the discovery of the fraud; but if it states a cause of action for damages upon a liability not founded upon a contract in writing, and unmixed with a claim for relief on the ground of fraud or mistake within the meaning of section 338 of the 'Code of Civil Procedure, the action would be barred after two years from the time it accrued by the provisions of section 339 of the Code-of Civil Procedure.</p> <p>Id.—Discovery of Fraud—Statute of Limitations—Pleading.—Where the plaintiff sues for relief on the ground of fraud and seeks exemption from the three years period of limitation for the reason that he did not discover the fraud until after it was perpetrated, he ■must not only show that he did not discover the fraud until within the three years next' before the action was begun, and that the fraud was committed under such circumstances that he would not be presumed to have knowledge of it at the time, but he must also set forth the times and circumstances under which the facts constituting the fraud came to his knowledge, so that the court may determine from the allegations of the complaint whether the discovery was within that period.</p> <p>Id.—Time of Commencement of Action—Presumption.—In an action for damages on account of fraud and deceit alleged to have induced the purchase of a lot of land, where the record failed t'o- show when the action was begun, in the absence of a showing to the contrary, it will be presumed, if necessary in order to support a judgment dismissing the action entered aft'er sustaining a demurrer to the complaint, that the action was begun at the latest possible time prior to the filing of a second amended complaint, and where this time was more than three years prior to the time at which the alleged fraud was discovered by the plaintiff, the action was barred by the statute of limitations.</p>

<p>Criminal Law—Morder—Sufficiency of Information—Charge in Language of Statute.—An information for murder is not defective in failing to set forth the manner and means by which the alleged murder was committed, where it charges that at a time and place stated the defendant did willfully, unlawfully, and feloniously, and of his malice aforethought, kill and murder a named human being, as a charge in the language of the statute is sufficient.</p> <p>Id.—Deliberation and Premeditation.—The statement in an information for murder that the defendant did “of his malice aforethought” kill and murder a named human being is equivalent to an averment that the act was committed with deliberation and premeditation.</p> <p>Id.—Examination of Juror—Improper Question.—In a prosecution for murder it was improper to ask a proposed juror if he could give the same credit to the defendant’s testimony, were he to go upon the stand, his interest in the result being taken into consideration, that he could give to any other witness, as the defendant’s interest in the result was only one of the things to be taken info consideration.</p> <p>Id.—Evidence—Confession—Foundation for.—It is the duty of the trial judge, when the question is raised in a criminal ease whether or not a confession of the defendant was voluntarily made, to hedr evidence on the subject, before allowing the proof of said confession, and to admit the proof only in the event that he finds it to have been voluntary; and he has the right to determine the fact from the evidence and to make a ruling accordingly, his decision of the question, where the evidence is conflicting, being subject to the universal rule applicable to cases on appeal, that the reviewing court will uphold the decision if there is substantial evidence to support it.</p> <p>Id.—Voluntary Character of Statement—Eight of Jury to Pass on—Failure to Give Instruction.—In a prosecution for murder, where the evidence on the question of whether a statement of the ' defendant introduced in evidence was voluntary or not was not so positive and certain that it should not have been left to the jury to reconsider it upon their final consideration of the case, even if the statement was a confession, the failure of the court to explicitly instruct the jury that they could reconsider the question cannot be predicated as error where the defendant did not request any instruction on the subject.</p> <p>Id.—Admissions and Confessions.—A confession, in criminal law, is an admission or statement, by a person accused of crime, to the eñeet that he is guilty thereof; and an admission is distinguished from a confession by the fact that the word “admission” relates to matters of fact that do not involve a criminal intent.</p> <p>Td.—Evidence—Burden of Proof—Justification for Homicide.—A statement of the defendant in a murder case, introduced by the prosecution, in substance, that defendant killed the deceased by one or more blows on his head with a club, coupled with the declaration that deceased, at the time, threatened t'o kill defendant, that the latter then believed deceased had a pistol in his hands with which he was about to shoot him, and that' with that belief defendant struck the fatal blow, is not a confession, but a declaration of innocence, and it did not throw the burden upon the defendant of proving justification by additional evidence.</p> <p>Id.—Admission op Evidence—Threats—Discretion op Court.—In a prosecution for murder, where evidence was given that a short time prior to the homicide the defendant and deceased had a physical altercation, during which, or immediately afterward, the defendant made a threat of physical violence against the deceased, a very large discretion is vested in the trial court as to the amount of detail that should be admitted of the previous fight. Enough of the circumstances must always be given to enable the jury to understand the purport of the threat and the purpose of the defendant in making it.</p> <p>Id.—Murder op First Degree—Premeditation.—Error in the omission of the vyords in parentheses in the instructions as t'o what constitutes murder of the first degree that “It is only necessary that the act of killing be preceded by (and be the result of) a concurrence of the will,” is cured by the statement that “the intent to kill must be the result of deliberate premeditation, and must be founded upon a pre-existent reflection and not upon a sudden heat of passion sufficient to preclude the idea of deliberation.”</p> <p>Id.—Instructions—Eight op Court to State Evidence-and Declare Law.—A court is authorized to state the testimony, if it is uncontradicted, and declare the law on any subject involved in the case, and in a murder case it was not error to instruct the jury, “In this case it is not denied that the defendant struck the blow by which the deceased received the wound in the head, but it is claimed in his behalf that he was justified in doing so, and that the act was committed in defense of his own life, or to prevent the infliction upon him, by the deceased, of great bodily injury,” where the evidence was not conflicting upon the subject.</p> <p>Id.—Self-defense—Statement op Evidence.—The statement in an instruction in such a ease that “the defendant had struck the blow by which the deceased received the wound in the head,” this fact being admitted, was appropriate as an introduction to an instruction on the law of self-defense immediately following, the question whether or not the blow was given in self-defense being determined by a consideration of the circumstances as they existed at the time the blow was struck; and, although there was some evidence that an automobile was driven over the feet of the deceased after the latter had been admittedly felled by the ’defendant with a heavy club and left on the ground, the instruction was not injurious to the defendant, where there was no claim that the automobile was purposely driven over the body of the deceased, and hence not a felonious act, and the homicide being a natural and probable result of the defendant’s conduct in leaving the deceased lying helpless and unconscious in a public road, exposed to that danger, defendant’s responsibility therefor being criminal or not, according to whether his blow was in self-defense or not.</p> <p>Id.—Instruction in Language of Statute.—The legislature has the power to declare what the law shall be on the subject of self-defense, which it has done by section 197 of t'he Penal Code, and error cannot be predicated upon an instruction which states the law as the legislature has fixed it by statute and which is applicable to the case.</p> <p>Id.—Construction of Instructions.'—All the instructions relating to the same subject must be considered together in determining the effect of each; and instructions in a murder case, on the subject of self-defense, which, when read together, mean only that if the circumstances as they appeared to the defendant would have induced a reasonable man, so situated, to believe that there was a reasonable mode available to him to escape from danger of death or great bodily harm, the danger thereof would not be then “imminent,” and the killing of the deceased at that moment would not be justifiable, are correct.</p> <p>Id.—Plight—Proper Refusal of Instruction.—It is proper to refuse an instruction offered by the defendant in a murder case to the effect that the flight of the accused does not tend to prove deliberation or premeditation on his part in killing the decedent, as it does not correctly state the law, flight being a circumstance to be considered in determining the guilt of the defendant, though not' of itself sufficient to establish guilt.</p>

<p>Contract—Sale of Land—Vendor’s Lien—Priority of Mechanic’s Lien.—While it is true that for some purposes, under a contract of sale of land, the vendee is treated .as the owner of the land and the vendor as having but a lien upon it as security for the unpaid portion of the purchase money, the rule has no such application as will defeat the assertion of a lien under- the mechanic’s lien law.</p> <p>Id.—Security fob Purchase Price.—A vendor’s lien does not exist under an agreement for the sale of real property wherein the vendor retains the title and is not to part with it until the property is fully paid for, when he is to execute a deed.</p> <p>Mechanics’ Liens—Interests in Property Subject to.—Under sections 1183 and 1192 of the Code of Civil Procedure, the interest of the owner or other person having or claiming any interest in the land, no matter what that interest may be, whether legal or equitable, is subject to mechanics’ liens.</p> <p>Id.—Knowledge of Improvement—Notice of Nonresponsibility— Constitutionality of Code Sections.—Sections 1183 and 1192 of the Code of Civil Procedure are not to be construed as making the person in possession of the property or the reputed owner the agent of the real owner, and therefore unconstitutional, as depriving the real owner of his property against his will, but declare that an owner or person having any interest in the property who has knowledge of an improvement being constructed on his land and who permits the improvement to be made and received the benefit of it must pay for it.</p> <p>Id.—Claim of Lien—Contents.—Section 1187 of the Code of Civil Procedure only requires a statement in a claim of a lien as to when the work was to be done, and when the price was payable, if they were agreed upon, and the insertion of the name of the owner or reputed owner only when it is known to the claimant.</p>

<p>APPLICATION for a Writ of Prohibition originally made to the Supreme Court to restrain a county clerk from placing on an official primary election ballot the names of candidates for the office of judge of the Superior Court for an unexpired term.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Negligence—Collision Between Motorcycle and Automobile—Violation of State Law—Evidence—Appeal.—Where, in an action for damages for personal injuries suffered by plaintiff in a collision upon a county highway between a motorcycle side-ear in which she whs riding and an automobile operated by defendant, there was sufficient direct evidence to sustain the plaintiff’s contention that the proximate cause thereof was that the defendant was violating the state law,' this evidence is sufficient to support a verdict in plaintiff’s favor.</p> <p>Id.—Pleading—Capacity of Plaintiff—Guest of Driver.—In such an action, it was not necessary for the complaint to show whether plaintiff was riding in the side-car of the motorcycle, as a guest or otherwise, since such question was germane only t'o the defense of contributory negligence, which being an affirmative defense, was required to be set up by the defendant.</p> <p>Id.—Negligence of Driver of Motorcycle—Liability of Plaintiff— Instruction.—It was not error to refuse to instruct the jury that if they believed that the plaintiff selected as a driver the person shown to have been operating the motorcycle at the time of the accident, and directed or assisted in directing his movements, which contributed to placing the motorcycle in peril and to causing the injury, the plaintiff is responsible for the negligence of the driver, since if, as claimed and proved, the plaintiff was riding as a guest, she was not responsible for his negligence, even if she selected him as her host.</p> <p>Id.—Knowledge of Driver’s Habitual Negligence—Instruction.—It was not error to refuse to instruct the jury that if they believed that plaintiff knew or had reason to believe that the driver of the motorcycle was usually careless or negligent' in the operation of the same, before she accompanied him on the occasion of the accident, the plaintiff - was chargeable with any negligent acts of the driver.</p> <p>Id.—Standard of Conduct of Persons in Great Peril—Instruction.—In such an action, an instruction with reference to the duty of persons in great peril which was correct in point of law was properly given where the collision was shown to have occurred in broad daylight and each party involved was in plain view of the other.</p> <p>Id.—Lack of Contributory Negligence—Instruction.—In such an action, an instruction that if the jury believed that at the time of the collision the defendant did not use ordinary care to avoid the accident, and the injuries plaintiff received were caused by such want of ordinary care on the part of defendant without any con-tributary negligence on the part of plaintiff, or those lawfully in charge of her, then plaintiff was entitled to a verdict, is not subject to criticism on the part of the defendant for uncertainty, from the use of the phrase “or those lawfully in charge of her,” as the instruction was made thereby less favorable to plaintiff.</p> <p>Id.—Measure of Damages—Future Pain and Suffering.—In such an action, the court properly instructed the jury that in considering damage for pain and suffering, they were to take into consideration the pain and suffering caused at the time of the accident and also that which was reasonably certain to be endured in the future, if any, as the result of the accident.</p> <p>Id.—Fixing of Damages fob Fain and Suffering—Instruction.—An instruction that it was not necessary that any of the witnesses should have expressed an opinion as to the amount of damages for pain and suffering, but that the jury might fix the same as their discretion dictated in connection with their own knowledge and experience in the affairs of life, and according to the facts and circumstances of the case, was properly given.</p>

<p>Appeal—Order Granting New Trial—General Terms.—When the order of the trial court in granting a new trial is general in its terms, it will be affirmed if it could properly have been granted upon any of the grounds upon which the motion for it was predicated.</p> <p>Id.—Reversal op Order—Rule.—An order granting a new trial will not be disturbed upon appeal except' upon a showing of clear and manifest abuse of discretion on the part of the trial court in respect to granting the same.</p> <p>Action por Libel—Order Granting New Trial—Excessive Damages— Discretion not Abused.—In this action by an attorney at law for damages for libel wherein the verdict awarded him compensatory damages of ten thousand dollars and exemplary damages of twenty thousand dollars, it is held that the trial court did not abuse its discretion in granting a new trial upon either the ground of excessive compensatory or exemplary damages.</p> <p>Id.—Injury to Reputation as Attorney at Law—Evidence—Good Reputation.—In an action by an attorney at law for libel of that form which tends to injure him in his reputation, evidence as to the good reputation of the plaintiff as an attorney at law is admissible, since the rule that every party to an action comes into court with the presumption of a good reputation as an individual, upon which presumption he is entitled to rely until his reputation as such has been assailed, is inapplicable with respect to the reputation of a litigant in his business or professional capacity.</p> <p>Id.—Pleading—Professional Reputation.—In such an action, it is necessary for the plaintiff to allege in his complaint his good professional reputation, and the denial thereof raises a material issue, upon which the plaintiff is required t'o offer evidence.</p>

<p>Landlord and Tenant—Assignment of'Lease—Condition—Applicability to Succeeding Assignments.—A provision in a lease that should the lessees desire to transfer or assign their interest in the lease to other parties the lessors would give their consent thereto, provided there be deposited with them a sum of money equal to the last three months’ rent of the term, is to be construed as applicable to each and every assignment, and not to the first assignment only, when read in connection with another provision of the lease which prohibited any assignment without the consent of the lessors.</p>

<p>Estates of Deceased Persons—Action on Claim for Services— Pleading—Amendment of Complaint—Absence of Variance.— In this action upon a rejected claim by a niece against the executor of the will of her deceased aunt for services rendered to the aunt in her lifetime under an alleged oral agreement by the terms of which the plaintiff was to care for her aunt and manage her household affairs, and the aunt' was to compensate plaintiff therefor, if not in the aunt’s lifetime then by provision in her will, it is held that there were no essential differences between the contract's alleged in the. second and third complaints and that finally proven as to require a decision that' either was at variance with the creditor’s claim upon which the action was brought.</p> <p>Pleading—Amendment of Complaint—Addition of Essential Matters—Statute of Limitations.—Where there is no attempt to state a new cause of action in an amended complaint, hut merely the addition of matters essential to make the original cause of action complete, the amendment, though made after the expiration of the period of limitation, relates back to the time of the commencement of the action.</p> <p>Estates of Deceased Persons—Form of Claim.—The purpose of a creditor’s claim against the estate of a deceased person is to advise the representative of the estate of its nature, and there is no requirement that it shall state the facts with all the detail necessary in a complaint, nor is its sufficiency to be tested by the rules of pleading.</p> <p>Id.—Claim for Personal Services—Statutes of Limitation—Date of Contract.—A claim against the estate of a deceased person for personal services based on a contract need not state the date of the contract, hut only the essentials thereof, where it appears there-from that the claimant was not to be finally compensated until the death of her employer.</p> <p>Id.—Action for Services—Pleading—Statement of Things Done “in Pursuance” of Contract.—In an action upon a creditor’s claim for services rendered the deceased under an alleged agreement, statements in the second amended complaint that certain things were done by plaintiff “in pursuance” of the agreement were not mere conclusions of law, and the failure to strike them out is not a ground for the reversal of the judgment.</p> <p>Id.-—Oral Contract to Make Will—-Validity.—An oral contract to dispose of property on death in a particular way, made prior to the year 1905, may be enforced although many years have elapsed between the making of the contract and the action to enforce its terms.</p> <p>Id.—Action for Services—Sufficiency of Evidence.—In this action on a creditor’s claim for services rendered deceased under an alleged oral agreement, it is held that the evidence sufficiently supports the verdict in favor of the plaintiff.</p> <p>Id.—Evidence—Receipt in Pull Payment—Consideration by Jury.— In such an action, a receipt signed by the plaintiff which on it's face purported to be in full payment for services rendered was properly admitted in evidence, but it was for the jury to say whether or not under the evidence the receipt was signed by mistake.</p> <p>Id.—Verification of Claim by Attorney—Lack of Knowledge— When not Attackable.—A claim against an estate of a deceased person verified by the attorney for the creditor; the latter being absent from the state, cannot be successfully attacked on the ground that the attorney was without actual knowledge of the facts supporting the claim, where vouchers and proofs were not called for, and such attack was not made until the time for t'he presentation of claims had expired and suit had been brought on the rejected claim.</p> <p>Id.—Verification of Claim—Essentials.—A claim against .the estate of a deceased person must be authenticated by a verification which on its face contains the essential matters prescribed by section 1494 of the Code of Civil Procedure.</p>

<p>Estate of Deceased Person—Holographic Will—Insufficient Execution.—In the absence of anything on the face of the will to raise the inference' that the name of the deceased in the exordium was intended as a signature in execution, a holographic document cannot be deemed a valid will.</p>

<p>Estates op Deceased Persons—Distribution op Alleged Community Property—Evidence—Presumption Overthrown.—In this proceeding by a widow in the matter of the estate of her deceased husband for distribution to her of her share of what she alleged to be community property, the presumption that the property was community property under the sections of the Civil Code dealing with the subject was overcome by clear and convincing proof that the property was acquired by the deceased while a resident of other states, under the laws of which the property was his separate property.</p> <p>Id.—Evidence—Testimony op Widow—Statements in Previous Deposition.—In such a proceeding, where the widow attempted to assert that certain statements made by her as to her husband’s business affairs were hearsay, her statements in a deposition previously taken made as of her own knowledge were admissible as statements against interest.</p>

<p>Criminal Law—Appeal—Order Denying Motion in Arrest of Judgment—Adjudication of Sanity—N on appealable Orders.—In a criminal action, an appeal does not lie from an order denying a motion in arrest of judgment, or from an adjudication of sanity-made before judgment.</p> <p>Id.—Sanity of Defendant—Trial After Conviction of Crime—Object of Proceeding.—The sole object of the proceeding under sections 1191, 1367 et seq. of the Penal Code to have the sanity of a defendant tried by a jury after his conviction of the offense charged . and before judgment, is to determine, not whether he was insane at the time of the commission of the crime, but whether he was insane when arraigned for judgment.</p> <p>Id.—Evidence—Burden of Proof.—In a proceeding under sections 1191, 1367 et seq. of the Penal Code to have the sanity of a defendant ■ tried by a jury after conviction of the crime charged and before judgment, it is incumbent on the defendant to show by a preponderance of evidence that his mind was in such condition that he did not rightfully comprehend his own condition with reference to the proceedings against him, and that he was then unable to present in a rational manner any defense.</p> <p>Id.—Number of Jurors Essential to Verdict—Instruction.—In a proceeding to have the sanity of a defendant determined, it is needless to determine as to the correctness of an instruction to the effect that three-fourths of the jury might render a verdict, where the record shows that the verdict was concurred in by all of the twelve jurors.</p> <p>Id.—Peremptory Challenges—Code Sections Inapplicable.—Proceedings to determine the sanity of a defendant are special proceedings of a civil nature, and the provisions of the Penal Code relating to the formation of trial juries in criminal cases and as to the number of peremptory challenges have no application.</p> <p>Id.^-Test of Sanity—Instruction.—In a proceeding to determine the sanity of a defendant after conviction and before judgment, an instruction that the verdict of guilty established beyond question the sanity of the defendant at the time of the commission of the crime is inapplicable, but without prejudice, where the jury was also instructed that the test was the present mental condition of the defendant.</p> <p>Id.—Defense of Insanity—Cautious Examination by Jury—Instruction.—An instruction that a defense of insanity should examined with great care is applicable in a proceeding to determine the sanity of a defendant after verdict and before judgment.</p> <p>Id.—Unlawful Act—Presumption of Unlawful Intent—Instruction.—An instruction that it is a presumption of law that an unlawful act was done with an unlawful intent is inapplicable in a proceeding to determine the sanity of a defendant, but without prejudice, being a mere abstract statement of law.</p> <p>Id.—Evidence of Defendant Admissible.—In a proceeding to determine the sanity of a defendant after conviction and before judgment, evidence given by the defendant on the trial is admissible.</p>

<p>Action for Conversion—Shipment of Carload of Butter—Notification of Arrival—Evidence—Custom.—Where in an action for t'he conversion of a carload of butter consigned to the shipper’s own order by the plaintiff’s railway it was found that the butter was delivered by the plaintiff to the defendant as a warehouseman, and the defendant notified by telephone of the arrival of the car, and to hold the same subject to the plaintiff’s order, the court properly excluded proof as to the custom to confirm such telephone messages by letter.</p> <p>Id—Custom as to Deuvery—Inadmissibility of—In such an action where the warehouseman received and retained the proceeds of the sale there was no error in ruling out the evidence as to the business custom claimed by defendant by which, when a ear was on an open shipment, that the presentation of the bill of lading was not required, and any responsible commission merchant claiming the goods would be allowed to take them, since in the absence of directions to the contrary, the defendant should have held the butter subject to the order of the plaintiff.</p>

<p>Workmen’s Compensation Act—Employment as Janitor and Gardener—Injury in Trimming Tree—Horticultural Labor.—Under the Workmen’s Compensation Act, the Industrial Accident Commission is without jurisdiction to award compensation for an injury received by a person employed in the dual character of janitor and gardener, whose duties were to look after school grounds and to clean schoolrooms, where the injury was received while he was engaged in cutting off the stump of a large limb of an acacia tree which projected over the roof of the schoolhouse, to remedy the unsightly condition of the tree, which condition was caused from a previous cutting made by him t'o permit the better entry of light into one of the schoolrooms.</p>

<p>The facts are stated in the opinion of the court.</p> <p>J. Wiseman Macdonald, and Thomas A. Berkebile, for Appellant.</p>

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

<p>Boundaries—Location of Station—Evidence—Decree in Partition.— In an action to enjoin the erection of a building upon land alleged to belong to a railroad company and to be necessary for the operation of it's railway, the title of which land was claimed by defendant, where the real controversy was as to the location of a part of the boundary line between the properties of the parties which question in turn depended upon the location of a certain corner post, the court properly admitted in evidence a decree of partition of lands to the south and east of the properties in question, which made reference to the disputed corner, although neither parties or their predecessors in interest were parties to such partition suit, where such common corner of the adjoining parties is referred to in the mesne conveyances under which plaintiff holds, and is shown by the decree to be marked by a monument.</p>

<p>Panama-Pacific International Exposition—Contributions to—Constitutional Provision, Statute, and Contract for—Bulb of Construction.—In construing the constitutional provision, statute, and contract providing for contribution by the state for the Panama-Pacific International Exposition, all intendments are in favor of the sovereign power; and the rule of interpretation is that if any ambiguity exist in the language of the constitutional provision or of the laws or contracts enacted and entered into in pursuance thereof, because of uncertainty in the language or of conflicting provisions in the different parts thereof, and two or more interpretations equally reasonable are deducible therefrom, that one is to be taken which is favorable to the state, rather than either of those which are against it.</p> <p>Id.—Public Commission—Grant of Power to—Bule of Construction.—Where a public commission is granted power over property of the state, and the language of the grant contains terms which qualify the power, the qualifications are to be construed as conditions beyond which the grantee of the power cannot go, in so far as such qualifications are favorable to the state.</p> <p>Id.—Execution of Contracts—Authority of Commission—Constitution Mandatory.—The provision of the constitution authorizing contribution by the state to the Panama-Pacific International Exposition, which directed the commission therein provided for to make “proper contracts” for thé "purpose, that is, such contracts “as will entitle the state of California to share proportionately with the contributors to the said Panama-Pacific International Exposition in the returns from the holding of said Exposition,” was mandatory, and it required that such contracts should be of a character which would secure the object expressed, limiting the power of the commission to that extent, and the commission had no power to make a contract which did not entitle the state to share “proportionately with the contributors,” or one which would give to the state less that its proportionate share of the returns.</p> <p>Id.—Contributors—When not Entitled to Share in Returns.—San Francisco having made its donation outright to the Panama-Pacific International Exposition, without exacting the condition that it should have any share of the returns, although a contributor, is not one entitled to a share or interest in the returns; hence neither the state nor the exposition company is required to share the surplus with San Francisco.</p> <p>Id.—Parties Entitled to Share in Returns.—The only contributors to be taken into account, in determining the proportionate share of the state in the returns of the Panama-Pacific International Exposition, are those who are themselves entitled to share, those who may lawfully share “with” the state and the company in the returns, fb.—Construction oe Contract.—The specific provision of the contract executed by the Exposition Commission to the effect that the state should receive in distribution of property, dividends, or surplus of the Exposition an amount bearing the same proportion to the total amount of assets, property, dividends, or surplus as the total contributions of the state should bear to the sum total of all contributions from all sources, was directly contrary to the constitution and hence void, as it required all the contributions to be counted in ascertaining the proportion, and all of them to be excluded in the division except those of the state and of the company, under which the state would be entitled to only five-sixteenths of the total surplus, the company being entitled to all of the remainder, while the state should be entitled to five-elevenths of the net returns.</p>

<p>Negligence—Death in Clearing Premises of Mob—Pleading—Insufficiency of General Allegation.—In an action for damages for the death of a person employed by defendants to assist the sheriff and his deputies in clearing defendants’ premises of a dangerous mob, it is essential to the statement of a cause of action to allege that the negligence of the defendants proximately contributed to the death, and the complaint is not assisted in this respect by the general allegation that the death was caused by the gross negligence of the defendants. '</p> <p>Id.—Charge of Negligence in General Terms—Meaning of Bulb.— While it is true, under the rule in force in„ this state and in most jurisdictions, that negligence may be charged in general terms, that rule simply means that what was done being stated, it is sufficient to say it was negligently done, without stating the particular omission which rendered the act negligent; and it must appear from the facts averred that the negligence caused or contributed to the injury.</p> <p>Id.—Negligence in Employment of Deceased—Insufficiency of Complaint.—In an action for damages for the death of a person employed by defendants to assist the sheriff and his deputies in clearing defendants’ premises of a dangerous mob, negligence in the employ- / ment is not shown where it does not appear from the complaint that the defendants were legally responsible, or otherwise, for the existence of the mob, and there is no suggestion in the pleading even by implication that defendants concealed anything from the deceased pertaining to the conditions, or did not fully inform him in regard thereto, or that deceased was not cognizant of the entire situation and danger incident to the employment.</p> <p>Id.—Clearing of Premises of Mob—Eight to Employ Persons for.— • Property owners have the right to employ persons to assist them in clearing their premises of a dangerous mob, even though the service to be rendered is a dangerous one.</p>

<p>The facts are stated in the opinion of the court.</p> <p>Charles M. Cassin, Sullivan & Sullivan and Theo. J. Roche, Jeremiah F. Sullivan, and Theo. J. Roche, for Appellant.</p>

<p>The facts are stated in the opinion of the court.</p> <p>Myrick & Deering, and James Walter Scott, for Appellants.</p>

<p>Estates of Deceased Persons—Distribution of Residue to Attorney —Acquisition of Real Property—Absence of Fraud.—A constructive trust in favor of the devisees, legatees, and heirs at law of a deceased person will not be impressed on real property received under the provision in the decree of distribution distributing to an attorney at law, who had represented certain heirs in litigation over the estate, the residue of the estate without specific description, on the ground that such attorney had special knowledge of the'existence of such property, and failed to disclose it, where such decree was entered pursuant to the terms of a compromise agreement settling .all litigation, and the parties interested knew or had the means of knowing the terms and significance of the decree, and the same means of acquiring knowledge of the record title to the property as the distributee.</p> <p>Id.—'Concealment of Claim of Title—Effect of—Statute of Limitations.—Under such circumstances, the concealment by the attorney of his claim of title to the property could have worked no injury to the persons interested; its only effect was to postpone the running of the statute of limitations against them. .</p> <p>Id.—Decree op Distribution—Omnibus Clause—Passing op Title.— A decree of distribution which by its terms distributes a residue known or unknown is sufficient to pass title to lands omitted from the particular description.</p> <p>Id.—Distribution of Residue op Estate—Conclusiveness of Decree. By a decree of distribution the court is required to distribute all the residue to the persons entitled, and its order and decree are conclusive in this regard as to the rights of all distributees.</p> <p>Id.—Absence op Confidential Relation—Silence not Fraudulent.— In the absence of confidential relations, mere silence without fraudulent acts or omissions connected therewith would not be unconscionable.</p>

<p>Contracts—Agreement to Make Will—Specific Performance.—Prior to the addition of subdivision 7 to section 1624 of the Civil Code in the year 1905 an oral promise to convey an estate by will was enforceable in equity under certain conditions, and is still enforceable where the promise was made prior to that time.</p> <p>Id.—Enforceability of Contract—Change of Condition—Equity.— Courts of equity will, under special circumstances, enforce a contract to make a will where in reliance upon the contract the promisee has changed his condition and rolations so that a refusal to complete the agreement would be a fraud upon him.</p> <p>Id.—Inadequacy of -Consideration—Findings Supported by Evidence. In this action to impress a trust on all of the property of the defeudant’s intestate based upon an alleged verbal agreement to leave the property to t'he plaintiff, it is held that the evidence fails to show that adequacy of consideration sufficient to warrant specific performance.</p> <p>Id.—Existence of Contract—Finding Unnecessary.—Where, in an action to impress a trust on all the property of a deceased person based upon an alleged verbal agreement to will the property to t'he plaintiff, it is found that the plaintiff is not entitled to relief by reason of the inadequacy of the consideration, it is not necessary in order to sustain the judgment to find as to whether the alleged agreement was in fact made.</p> <p>Id.—Immaterial Findings.—When there are sufficient findings on issues made in the ease to support a judgment, it is immaterial that there is no finding, or an erroneous finding, on some other issue which, if made, or differently made, would not compel any different conclusion from that reached by the findings which were actually made.</p>

<p>The facts are stated in the opinion of the court.</p> <p>Evan J. Hughes, W. E. Davies, and Downey, Pullen & Downey, for Appellant.</p>

<p>APPLICATION for a Writ of Habeas Corpus originally made to the Supreme Court to obtain a release from the state prison.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Criminal Law—Murder—Insanity—Conflict of Evidence—Appeal.— In a prosecution for the crime of murder, where the evidence is in substantial conflict on the sole defense of insanity at the time of the commission of the crime, the verdict cannot be disturbed on appeal.</p> <p>Id.—Insanity as Result of Alcoholism—Instruction.—On a trial for murder committed after an attempt to commit sodomy, where the principal defense was settled insanity produced by habitual intoxication, an instruction that insanity produced by intoxication does not destroy responsibility when the party, when sane and responsible, made himself voluntarily intoxicated, and that evidence of drunkenness can only be considered for the purpose of determining the degree of the crime, does not purport to deal with settled insanity, produced by intoxication, but with temporary intoxication as a defense, and has relevancy only to the intoxication of the defendant existing at the time of the murder.</p> <p>Id.—Defense of Insanity—Burden of P!roof—Quantum of Evidence —Instruction.—In such an action, an instruction that where insanity is relied upon as a defense, the burden of proving the existence of such insanity is on the defendant, and it is incumbent on him to establish by a preponderance of evidence that he was insane at the time of the committing of the act' charged, and the evidence of mental derangement must be such, in amount, that if the single issue of sanity or insanity of the defendant should be submitted t’o the jury in a civil case, they must find that he is insane, is not objectionable as imposing too great a burden upon defendant as to how far Ms proof of insanity must preponderate.</p> <p>Id.—Continuance of Insanity — Presumption — Instruction.—A requested instruction that if the jury finds that the defendant was insane at a period before the homicide in question, his insanity is presumed to have continued up to the time of the homicide, providing the exciting cause of such insanity also exists up to such time, is too broad, in that it does not properly limit t'he insanity to permanent or habitual insanity, as distinguished from temporary insanity, there being as to the latter no presumption of continuance from proof of its prior existence.</p> <p>Id.—Presumption as to Killing During Lucid Interval—Instruo- ‘ tion.—A requested instruction that if the jury finds that the defendant was insane at a period before the homicide, there arises a presumption that such insanity continued and the .burden of proof rest's upon one who claims that an act of such person was during a lucid interval to show that the lucid interval existed at the time of the act in question, is too broad, and is also objectionable as containing an incorrect statement of the law of presumption as to lucid interval.</p> <p>Id.—Imbecility as a Defense—Instruction.—A requested instruction that although sanity is presumed to be the normal and natural state of .the human mind, when imbecility is once shown t'o exist in a person it is presumed to exist and continue until the presumption has been overcome by contrary or repelling evidence proving sanity, is not a correct statement of the law.</p> <p>Ib.—Sanity of Defendant—Trial by Jury—Discretion.—The right of a defendant to have the sole question of his sanity passed upon by a jury in proceedings inaugurated under section 1368 of the Penal Code is addressed to the sound discretion of the trial judge, and the showing must be sufficient to create a doubt in the mind of the judge as to the defendant’s sanity before the court is required to submit' the question to the jury.</p>

<p>Criminal Law—Murder—Verdict Supported by Evidence—Fairness and Legality of Proceedings.—Upon this appeal from the judgment pronounced upon conviction of the defendant of the crime of murder, it is held that the evidence abundantly supports the verdict, and that the proceedings in the trial court were in all respects fair and in full conformity to the law.</p>

<p>APPLICATION for a Writ of Mandamus originally made to the Supreme Court to compel respondents to issue cer7 tificates of nomination to petitioner, and another, as candidates for judges of the Superior 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>Brittain & Kuhl, and Earl D. White, for Interveners and Appellants.</p>

'APPEAL from a judgment of the Superior Court of Los Angeles County. Frank G-. Finlayson, Judge. The facts are similar to those stated in the opinion of the court in Los Angeles Stone Co. v. National Surety Co., ante, p. 247.

<p>'APPEAL from a judgment of the Superior Court of Los Angeles County. Frank G-. Finlayson, Judge.</p> <p>The facts are similar to those stated in the opinion of the court in Los Angeles Stone Co. v. National Surety Co., ante, p. 247.</p>

<p>Taxation—Inheritance Taxes—Foreign Charitable Corporation.— - Order reversed on the authority of Estate of Eislce, ante, p. 116.</p>

<p>Office and Officers—Misconduct in Office—Removal Proceedings— Los Angeles County Charter.—Alternative writ of prohibition discharged and proceeding dismissed on the authority of Sunt v. Superior Court, ante, p. 470.</p>

<p>APPLICATION for a Writ of Prohibition to be directed to the Superior Court of Los Angeles County and to Curtis D. Wilbur, Judge thereof.</p> <p>The facts are similar to those stated in the opinion of the court in Hunt v, Superior Court, ante, p. 470, [173 Pac. 1097]. ,</p>

APPEALS from a judgment of the Superior Court of Yuba County, and orders denying motions for a new trial. Eugene P. McDaniel, Judge. The facts are similar to those stated in the opinion in Marysville Woolen Mills v. Smith, ante, p. 786.