Volume 179 — California Reports

<p>Power of Attorney — Execution by More Than One Party — Construction.—Conveyances and powers of attorney joint in form are to be construed as conveying or authorizing the conveyance of whatever interest both or either of the parties have in the property to be affected by the instrument under consideration.</p> <p>Id.—Execution by Husband and Wife—Conveyance of Wife’s Separate Property.—A power of attorney executed by a husband and wife constituting and appointing a third party as their true and lawful attorney to enter into and upon and take possession of any and all pieces of land or the timber and other material therein in the state of Minnesota and in any state or territory of the United States, which they then owned, or which they might thereafter acquire or become seised of, or in which they might become interested, and authorizing and empowering such attorney to grant, bargain, sell, demise, lease, convey, and confirm said land, or any part thereof, to such person or persons and for such prices as to said attorney should seem meet and proper, is sufficient to authorize such attorney to convey the wife’s separate property, and is not confined in its grant of powers to the joint property of the parties, or to such property as they then owned.</p> <p>Adverse Possession—Timber Land.—Under subdivision 3 of section 323 of the Code of Civil Procedure, adverse possession t'o rough mountain timber lands is acquired by a lumber company, where it shortly after receiving a conveyance to the lands began the patrolling of the same for the prevention of trespassing and for the protection of the timber against fires, and continued the patrol and paid the taxes on the lands for the required statutory period thereafter.</p>

<p>Partnership—Real Estate—Statute op Frauds.—A partnership for the purpose of acquiring, subdividing, and selling land need not be in writing and may be shown by parol.</p> <p>Id.—Accounting — Existence op Partnership — Evidence — Proop bt Parol.—In an action for an accounting and division of partnership assets and profits based upon an alleged partnership relating to the subdivision and sale of real estate, errors of law committed in the earlier stages of the trial in excluding parol proof of the existence of the partnership are cured by the subsequent admission of such proof.</p> <p>Id.—Existence op Partnership—Finding—Appeal.—Where in such an action the evidence is in substantial conflict as to the existence of the alleged partnership, the finding will not be disturbed on appeal.</p>

<p>APPEAL from an order of the Superior Court of Yolo County directing the issuance of a temporary mandatory injunction. W. A. Anderson, Judge. Affirmed.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Estates of Deceased Persons—Devise to “Heirs”—Construction of Will.—Where a testatrix by the first paragraph of her will directs the payment of funeral expenses and debts, and by the next paragraph gives, devises, and bequeaths all the rest, residue, and remainder of her estate to her “heirs and to tie distributed to them according to law,” she thereby adopts, for the purposes of her testamentary disposition, the statute of succession, and where her estate had been the community property of herself and her predeceased husband, who had died intestate, his heirs are entitled to one-half of such estate by virtue of the provisions of subdivision 8 of section 1386 of the Civil Code.</p> <p>Id.—Meaning of Word “Heirs.”—The word “heirs” is a technical term, and is used to designate the persons who would by the statute succeed to the estate of any kind in case of intestacy.</p>

<p>Elections—Direct Primary Law—Failure to Obtain Party Nomination—Ineligibility of Candidate as Nominee of Other Political Party—Constitutionality of Amendment of 1917.—The proviso added to section 23 of the Direct Primary Law of June 16, 1913 (Stats. 1913, p. 1379), by the amendment of 1917 (Stats. 1917, p. 1341), declaring that no candidate for a nomination for other than a judicial, school, county, township, or municipal office who fails to receive the highest number of votes for the nomination of the political party with which he was affiliated thirty-five days before the date of the primary election, as ascertained by the Secretary of State from the affidavit of registration of such candidate in the office of the county clerk of the county in which such candidate resides, shall be entitled to be the candidate of any other political party, is not violative of the constitution.</p> <p>Id.—'Construction of Law—Rule.—In considering whether any particular provision of the Direct P'rimary Law is violative of the constitution, it must be borne in mind that the question as to what provisions are essential to attain the objects contemplated by section 2 y2 of article II of the constitution is one peculiarly within the domain of the legislative department, Which is practically given plenary power in the matter, that the presumption is in favor of the Validity of any provision made, and that if there is any theory upon which the provision might reasonably have been concluded by the legislature to be essential, the court's may not interfere.</p> <p>Id.—Tests for Candidates—Right of Legislature.—Under section 2% of article II of the constitution, the legislature has the right to prescribe tests and conditions for candidates as well as for electors.</p> <p>Id.—Determination of Party Affiliation.—The test prescribed for determining party affiliation in the amendment of 1917 to section 23 of the Direct Primary Law is a reasonable one.</p> <p>Id.—Ineligibility of Candidate Receiving Highest Vote—Next Highest Candidate not Nominee.—In view of the provision of section 23 of the Direct Primary Law declaring that the person receiving the highest number of votes at a primary election as the candidate for the nomination of a political party for an office shall be the candidate of that party for. such office, a candidate who received next to the highest vote, the highest vote being obtained by the candidate 'for the nomination of another-, political party, which he did not receive, cannot be held to be the party candidate.</p> <p>Id.—Rule Applicable to Primary Elections.—The rule that where the one receiving the highest vote at an election is for any reason ineligible, the candidate receiving the next highest vote is not elected, in the absence of statutory provision to the contrary, is applicable to primary elections.</p> <p>Id.—Filling op Vacancy on Ticket—Authority op Party Committee —'Construction op Amendment op 1917.—In view of the amendment of 1917 to section 25 of the. Direct Primary Law, a party committee is only authorized to fill a vacancy on the ticket occurring after the holding of the primary election in the single instance of the death of the candidate.</p>

<p>Legal Services—Procuring Town-site Patents—Excess Collection or Money—Mistake—Involuntary Trust.—In this action by an attorney at law to declare a trust in moneys on deposit in two banks in the name of defendant as trustee, which the plaintiff claimed for services in procuring town-site patents for two Nevada towns, it is held that the evidence shows that the defendant, as trustee for the inhabitants, under mistake as to authority, fixed and collected of lot owners greater attorney’s fees than authorized by the statute, and therefore, as to the excess, the defendant, under section 2224 of the Civil Code, was an involuntary trustee for the inhabitant's and not for the plaintiff.</p>

<p>The facts are stated in the opinion of the court.</p> <p>Albert Lee Stephens, and Charles S. Burnell, for Appellants.</p>

<p>Municipal Corporations — Paving of Street — Flooding of Private Property-—Negligence—Finding—Evidence.—In -an action against a municipal corporation for damages to private property by flooding as a result of the paving of the street in front thereof, where there was substantial evidence to support the contention that the raising of the grade forced the flood waters upon the land, the finding will not be disturbed, -and the defendant cannot claim the damage was caused by an act of God.</p> <p>Id.—Change of Drainage—Unwarranted Physical Means—Injury to Another.—The owner of property who by unwarranted physical means provides for a change in, the drainage of Ms land so that another must thereby suffer injury may not' attribute the logical consequences of his engineering to an act of God.</p> <p>Id.-—Act of God.—An -act of God excludes the idea of human agency, and if it appears that a given loss has happened in any way through the intervention of man, it cannot be held to have been an act of God, hut must be regarded as the act of man.</p> <p>Id.—Act of Contractor—Raising of Grade—Liability of City.—In such action, where the evidence tended t'o show that the contractor who raised the grade, acting under instructions of the city engineer, made the crown of the street higher than the ordinance or his agreement required, and it' was not only stipulated that the city accepted the street as raised in grade and used it, hut, moreover, there was a conflict of testimony regarding the repair and 'consequent raising of the street, some of the witnesses declaring that the altitude of the grade was due to repairs made by the city’s own workmen and not to the acts of the contractor, it cannot he contended that the city is not liable.</p> <p>Id.—Evidence—Conversations Regarding Grading of Street.—In such action, the defendant suffered no material injury by the admission of testimony regarding alleged conversations between plaintiff and certain officers of the city government regarding the intended action of the municipality in grading the street.</p>

<p>Corporations—Calls for Unpaid Subscriptions—Death of Holder-Failure to Present Claim—Bar of Obligation.—In view of section 1493 of the Code of Civil Procedure, the personal obligation of a purchaser of corporation stock to pay calls upon the original subscription is barred where the purchaser dies and no claim is presented therefor against' the estate.</p> <p>Id.—Transfer of Stock—Recordation in Books—Nonliability of Transferrer for Unpaid Subscriptions.—Where a stockholder makes an absolute transfer of stock in good faith, and the transfer is duly recorded on the corporation books, he is thereby wholly discharged from all further liability upon the uncalled subscription price.</p> <p>Id.—Failure to Record Transfer—Enforcement of Calls—Sale of Stock.—Where a stockholder makes an absolute transfer of stock in good faith, and the transfer is not recorded on the books of the corporation, the only means of enforcing calls for unpaid subscriptions is to sell the stock as provided by the Civil Code.</p> <p>Id.—Liability of Purchaser for Calls.—A purchaser of corporation stock is not personally liable for calls for unpaid subscriptions, made prior to the transfer of the stock on the books, but is personally liable. for calls made after the recording of the transfer.</p> <p>Id.—Payment of Calls—Construction of By-law.—A corporation bylaw providing that stock shall after payment of all calls or installments thereon be transferable on the books, refers to the calls, or installments upon such calls, then due, and not to the unpaid balance of the stock.</p> <p>Ip.—Unpaid Balance of Subscription—Lack of Knowledge of Purchaser Immaterial.—The fact that the purchaser did not know that there was any balance unpaid on the stock at the time he requested the transfer and accepted a new certificate is immaterial, since certificates of stock are not negotiable instruments, and the stock represented by them is subject to assessment for subscription calls, no matter to whom it' may be transferred.</p> <p>Id.—Enforcement of Calls—Statute of Limitations.—The statute of limitations does not begin to run against the right of a corporation to enforce the payment of calls upon subscription for stock until the levying of the assessment and the issuance of the call.</p>

<p>Judgment—Payment—Appeal.—Where a judgment creditor of an insolvent corporation, in an action-by such creditor on behalf of all the creditors of the corporation against certain stockholders to create a fund by collecting stock subscriptions to pay the debt's of the corporation, accepted from certain defendants the amounts of the judgment obtained against them, such creditor cannot thereafter appeal from the judgment, and such defendants are entitled to have the judgment satisfied.</p> <p>Id.—Satisfaction.—When the prevailing party with a judgment in his favor has accepted the fruits of such judgment, satisfaction thereof, either voluntary or under the compulsion authorized by section 675 of the Code of Civil Procedure, is the last act and the end of the proceeding.</p>

<p>Soldiers and Sailors Belief Act—Applicability to Previously Commenced Actions.—In denying the application for a writ of mandate herein the action of the court is not to be taken as indicating an opinion that the provisions of the Soldiers and Sailors Belief Act' of March 8, 1918, providing for a stay of proceedings prior to judgment, are applicable to actions commenced prior to the passage of the act.</p>

<p>APPLICATION for a Writ of Mandate originally made to the Supreme Court to compel the Superior Court of Sonoma County to proceed with the trial of an action in the absence of the defendant. Denied.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Workmen’s Compensation Act — Death op Car Repairer — Employment in Interstate Commerce.—An employee of a railroad company whose general employment was to repair ears containing both interstate and intrastate freight in the yards of the company, and whose duties required him to pass from one car to another and one track to another seeking out the cars which were tagged by the inspectors as requiring light repairs, was engaged in interstate, as distinguished from intrastate, commerce, and the liability of the company for injuries received by him resulting in his death determined' by the courts in accordance with the provisions of the Federal Employers’ Liability Act, where at the time of the accident he and his assistant had released the air on a string -of cars containing both interstate and intrastate freight, and were proceeding across the yard for the purpose of making light repairs upon other cars tagged for repairs.</p> <p>In.—Test op Employment.—Whether, or not deceased was engaged in interstate commerce depends upon whether the series of acts that he had last performed was properly to be regarded as a succession of separate tasks or as a single and indivisible task.</p>

<p>Verdict—Bight of Court to Direct.—The right of a court to direct a verdict is, with regard to the condition of the evidence, absolutely the same as the right of a court to grant a nonsuit.</p> <p>Nonsuit—When Proper.—A court may grant a nonsuit only when, disregarding conflicting evidence and giving to plaintiS’s evidence all the value to which it is legally entitled, therein indulging in every legitimate inference which may be drawn from that evidence, the result is a determination that there is no evidence of sufficient substantiality to support a verdict in favor of plaintiff if such a verdict , were given.</p> <p>Bailment—Jewelry for Exhibition Purposes—Degree of Care.—An exposition company to whose care jewelry is confided for exhibition purposes and for sale on commission is not an insurer against theft, but is only bound to exercise ordinary care in the matter of protection of the exhibit against theft.</p> <p>Id.—Action for Loss of Jewelry—Theft—Lack of Ordinary Care— Burden of Proof.—Where in an action for the value of certain jewelry confided to the care of defendant for exhibition purposes and sale on commission it was shown by the plaintiff that the jewelry while so on exhibition was stolen by some unknown third party, it was incumbent upon the plaintiff, in order to make out a ease, to introduce evidence from which the jury might legitimately infer that the theft was due to lack of ordinary care on the part of defendant.</p> <p>Id.—Custom of Jewelers.—In such action evidence as to the custom as to the care of jewelry among jewelers when being displayed for sale or exhibition is not competent on the question of exercise of ordinary care by defendant.</p> <p>Id.—Failure to Show Negligence—Directed Verdict.—In this action it was held that the facts and circumstances shown by the evidence were not sufficient to support' an inference of negligence, and that the court properly directed the jury to render a verdict for defendant.</p>

PROCEEDING for a Writ of Review originally taken in the Supreme Court to annul an order of the Railroad Commission of the State of California fixing certain water rates. Order annulled. The facts are stated in the opinion of the court.

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

<p>Quieting Title—Pleadings—Sufficiency of Findings.—Where in an action t'o quiet title the defendants by answer denied plaintiff’s ownership and set up their ownership in fee, and by cross-complaint also set up their ownership in fee, and the plaintiff answered such cross-complaint again averring his claim to the property, the failure to make findings on the issues raised by a so-called amended answer and cross-complaint is not a ground for reversal of the judgment', where the amended pleading tendered no new material issue not involved in the original pleadings.</p> <p>Id.—Cross-Complaint—Principal Function.—Although a defendant in an action to quiet title may properly aver in a cross-complaint his own right to have his title quieted, the principal function of the practice of cross-pleading is to prevent plaintiff from dismissing his action before trial without the consent of the defendant.</p> <p>Id.—Description of Property—Variance.—In this action, the appellate ' court was bound to determine that the trial court, depending upon the map and the testimony before it, decided that plaintiff’s description, “Lots 7 and 8 and the north 20 fe'et of Hogan Street (vacated) adjoining lots 7 and 8 on the south, and lying between the east and west lines of the two said lots ‘extended south,’ in block 5 of the First Addition to Huntington Park,” etc., and defendant and cross-complainant’s description, “Lots 7 and 8, First Addition to Huntington Park, and to a lot 20 feet in width adjoining each lot on the south,” each referring to the same recorded map for more graphic details, were substantially identical and had application to the same property.</p> <p>Id.—Appeal—Pleading—Waiver.—Even though the variance in such an action were of a more substantial nature, the defendant having failed to demur to the complaint and having answered its averments in general terms, which placed all essential matters of controversy at issue, on appeal from the judgment, he may not with propriety raise the question that there was such variance.</p>

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

<p>Appeal—Judgment Directing Payment op Money—Stay op Execution —Amount op Bond.—On an appeal from a judgment or order directing the payment of money, it is not necessary under the provisions of section 942 of the Code of Civil Procedure that the bond should cover the amount awarded as costs in order to effectuate a stay of proceedings pending the appeal, since the words, “in double the amount named in the judgment,” must be taken as referring to the amount adjudged to be due the prevailing party upon the claim involved in the action and for "which recovery is awarded, and as not including the incidental recovery on account of the costs of the action awarded only upon claim made and ascertainment of amount had subsequent to the giving of the judgment;</p>

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

<p>Claim and Delivery—Recovery of Pledged Stock—Community Property—Evidence.—In an action to recover the possession of shares of corporation stock, or its value, with damages for its detention, which stock had been declared t'o be community property and a three-fifths interest therein awarded to the plaintiff in an action for divorce, and which had been pledged to the defendant by the former husband of the plaintiff to secure the payment of his promissory not'e, the defendant cannot contend that there was no evidence to sustain the finding that the stock was community property on the ground that the only evidence was the interlocutory decree in the divorce action to which he was not a party, where the plaintiff did not rest' her right upon the decree alone, but also upon an assignment of her husband’s interest to the extent of an undivided three-fifths interest in the stock, which assignment the defendant expressly admitted in his answer.</p> <p>Pledge—Pledgor’s Ownership—Estoppel of Pledgee.—A pledgee of stock cannot be heard to assert ownership thereof in any other person than his pledgor, in the absence of any claim of ownership by such third person, or of a demand on the part of the latter for the delivery of the pledged property to him.</p> <p>Id.—Ownership of Stock—Indorsement in Blank.—Where it was shown as an undisputed fact that the former husband of the plaintiff was prior to and at the time of the making of the pledge, in the possession of the stock and exercising acts of ownership over it, the presumption arose that he was the owner, and it was therefore immaterial whether the person in whose name the stock stood upon the books of the corporation had indorsed the certificates in blank.</p> <p>Id.—Redemption from Lien—Tender—Subrogation.—One who requires an interest in pledged stock is entitled to redeem the same from the lien under section 2903 of the Civil Code by an offer of performance of the obligation of which the stock is the security, and having done so by the method of tender provided by chapter 2 of title IV of division 3 of the Civil Code is entitled to be subrogated to all the benefits of the lien as against all owners of other interests in the stock.</p> <p>Id.—Refusal of Tender—Conversion.—Where tender is made and refused an action for conversion may be maintained, and an offer in the pleadings and at the trial to turn over a portion of the stock upon payment of a part of the note does not measure up to the rights of the party making the tender.</p> <p>Id.—Form of Alternative Judgment.-—Where the plaintiff alleged that the stock was of the value of three thousand dollars, and the defendant while denying the stock was of that value, expressly admitted that it was of the value of one thousand eight hundred and .seventy-five dollars, the plaintiff was entitled, in the alternative portion of the judgment, to a recovery of an amount of damages equal to three-fifths of the value of the stock in the event of the failure or refusal of the defendant to deliver the whole of the stock to her in conformity with the judgment in her favor for the possession thereof.</p>

<p>The facts are stated in the opinion of the court.</p> <p>U. S. Webb, Attorney-General, Charles M. Fickert, District Attorney of the City and County of San Francisco, Robert A. Waring, Inheritance Tax Attorney, William A. Sullivan, Assistant Inheritance Tax Attorney, and Hartley F. Peart, for Respondent.</p> <p>Edward F. Treadwell, and Delger Trowbridge, for Appellants.</p>

<p>APPLICATION for a Writ of Mandate originally made to the Supreme Court to compel the Superior Court to suspend the execution of sentence in a criminal action. Denied.</p> <p>The facts are stated in the opinion of the.court.</p> <p>A. H. Jarman, R. P. Henshall, R. C. McComish, and James P. Sex, for Petitioner.</p>

<p>Common Carriers—Recovery op Freight Overcharge from Railroad -Corporation—Jurisdiction of State Courts.—A shipper of freight over a railroad who has been compelled to pay a larger amount for an intermediate or short haul shipment than the carrier is charging for a longer haul, and who claims reparation therefor, is not required to first apply to the railroad commission and have it determine the amount of reparation to which he is entitled and obtain an order requiring its payment' by the carrier, but may prosecute an action in the courts under the authority of section 73, subdivision a, of the Public Utilities Act, which authorizes an aggrieved party to prosecute an action in the courts for any loss or injury arising from a failure of a carrier t'o do any act or thing required to be done by the constitution, or any law of the state, or any order or decision of the commission.</p> <p>Id.—Constitutional Law—Long and Short Haul Clause.-—Section 21, article XII, of the constitution, as it stood before the amendment of October 10, 1911, prohibiting discrimination in charges or facilities by railroads or other transportation companies was not in conflict with the commerce clause of the federal constitution, because in the opening clause thereof, reference was made t'o transportation of freight or passengers “within this state or coming from or going to another state,” since the subsequent clauses, which were entirely independent and severable from it, contained no reference to interstate commerce and were complete in their prohibition as to long and short hauls.</p> <p>Id.—Violation op Constitutional Provision—Right of Action por Damages—Statutes.—A right of action for damages for a violation of the long and short haul clause of the constitution is expressly conferred by the acts of 1909 (Stats. 1909, p. 499), the act of 1911 (Stats. 1911, p. 13), and the Public Utilities Act (Ex. Sess. 1911, p. 18), regardless of the existence of such right at common law.</p> <p>Id.—Fixing Rates—Power op Railroad Commission.—While it is true that during the period from 1879 to the time of the amendment' of October 10, 1911, to section 21, article XII, of the constitution, the railroads were powerless to fix rates themselves and the" only authority to do so was vested under the constitution in the railroad commission, still all the commission was authorized to do was to fix reasonable rates, and was without' power to fix rates discriminatory as to a short or long haul.</p> <p>Id.—Deviation from Long and Short Haul Clause—Procedure.-—The amendment of October 10, 1911, to article XII, section 21, of the constitution gives the power to authorize a deviation from the prohibition of the constitution only upon the application of the carrier, and after an investigation by the commission, and relief can only be granted after such investigation and by an order finally made on the application approving the rates which constitute the deviation.</p> <p>Id.—Recovery of Illegal Freight Charges—Payment Without Protest—Right not Affected.—The right to maintain an action to recover an illegal freight charge is not affected by the fact that the payment was made without protest, where payment was compelled in order to obtain t'he shipment, and the carrier admitted that without payment the shipment could not have been obtained.</p> <p>Id.—Evidence—Illegal Discrimination.—In order to sustain a claim for discrimination, it is not necessary that when the shipm'ent to an intermediate point was made for which the higher rate was charged, there were contemporaneous shipments made to the more distant points, since ufider the constitutional provision the legitimate maximum charge for the shorter haul is the charge for the longer one, and all it is necessary to show is that the shipper paid a larger sum for the short haul than the carrier would have charged for the longer one.</p>

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

<p>Negligence — Electric Power Company — Maintaining Wires Along Road—Degree op Care.—A person or company maintaining an electric power transmission line along or over a public or private road, while not an insurer of the safety of the public, is required to exercise a high degree of care in placing the wires so as not to interfere with traffic on the ordinary highway, and so as to avoid contact with and injury to any person or object which may reasonably be expected to pass under the wires.</p> <p>Id.—Reasonable Care—Use op All Known Means.—The standard to be attained is that of ordinary and reasonable care, and this means such care as a reasonably careful and prudent person, having in view the dangers to be avoided and the likelihood of injury therefrom, would exercise under the circumstances, in order to prevent injury. Where death may be caused by an agency lawfully in use, ordinary care requires that every means known, or that with reasonable inquiry would be known, must be used to prevent it.</p> <p>Id.—Height op Wires—Duty op -Company.—An electric power company, in stringing its wires along a public highway, is bound to take notice of farming conditions and customs in t'he country through which its wires are placed and to provide against interference with them, ánd where, at the time of the construction of the line, there were in use upon farms in the locality hayst'acking derricks exceeding in ' height the height of the wires, and there was a custom of moving the derricks during the haying and threshing season along and over the highways to and from farms, it was the duty of the company to ascertain such facts and to have erected its wires high enough so as to permit free and safe passage of the derricks under them.</p> <p>Id.—Moving Derrick Under Wires—Personal Injuries—Leaping op Electricity—'Contributory Negligence—‘Question por Jury.—In an action for damages for personal injuries received by a boy of the age of eighteen years while assisting in moving a haystaeking derrick under the wires of an electric power company suspended over a public road, the question of the contributory negligence of the plaintiff is one of fact' for the jury, where the accident was occasioned by the leaping of the electricity due to the boom of the hay derrick coming in too close proximity to the wires, and it was shown by the evidence that the plaintiff was ignorant of the propensities of electricity to leap or arc, and that every effort was made to keep the boom as far as possible from the wires.</p>

<p>The facts are stated in the opinion of the court.</p> <p>Chickering & Gregory, and Thomas H. Breeze, for Appellant.</p>

<p>The facts are stated in the opinion of the court.</p> <p>Read G. Dilworth, E. S. Torrance, and E. Swift Torrance, for Appellant.</p>

<p>Appeal—Injunction—Insufficient Record—Affirmance of Order.— An order granting an injunction pendente lite must be affirmed, where the order is assailed upon the sole ground of the insufficiency of the affidavits upon which the motion was based to support the order, and the record does not contain the authentication by the trial judge required by the statute.</p>

<p>APPEAL from an order of the Superior Court of the City and County of San Francisco granting an injunction pendente Ute. George E. Crothers, Judge. Reversed.</p> <p>The /facts are stated in the opinion of the court.</p> <p>George Lull, City Attorney, and Frank English, John B. Gartland, and Oscar T. Barber, for Appellants.</p>

<p>Guardianship — Notice op Hearing — Service of Citation — Time.— Jurisdiction to appoint a guardian of the person and estate of an incompetent person is acquired6 under section 1763 of the Code of Civil Procedure, which provides that the alleged incompetent must be given notice of the time and place of the hearing not less than five days before the appointed time, where the hearing is fixed for the twenty-eighth day of a month, and service of the citation made on the twenty-third day of the same month.</p> <p>Id.—Sufficiency of Citation.—A citation which designates a time and place for the alleged incompetent to appear and show cause why the applicant or some other fit and proper person should not be appointed guardian of his person and estate according to the petition on file, sufficiently complies with section 1707 of the Code of Civil Procedure, providing that the citation shall contain a brief statement of the nature of the proceeding.</p> <p>Id.—Sufficiency of Notice — Becital in Order.—The recital in an order appointing a guardian of the person and estate of an incompetent person that the matter came on regularly to be heard is sufficient to establish that proper notice had been given, in the absence of a showing to the contrary.</p> <p>Id.—Code Provisions Applicable.—Jurisdiction of a proceeding for the appointment of a guardian of an incompetent person is governed by section 1763 et seq. of the Code of Civil Procedure, and not by section 1747 of said code, which relates to guardians of minors.</p> <p>Id.—Uhtimate Fact—Sufficiency of Finding.—The recital in an order appointing a guardian of the person and estate of an incompetent person that the person is an incompetent person, as alleged in the petition, and that the allegations of the petition are true, is a sufficient finding of the ultimate fact.</p> <p>Id.—Appeal—Begularity of Order—Presumptions.—On an appeal from an order appointing a guardian of the person and estate of an incompetent person all intendments and presumptions are in favor of the regularity and propriety of the order.</p>

<p>APPEAL from a portion of a decree of the Superior Court of Sonoma County fixing compensation of a trustee of an estate. Thos. C. Denny, Judge. Affirmed.</p> <p>The facts are stated in the opinion of the court.</p>

CROSS-APPEALS from a judgment of the Superior Court of Alameda County. J. 0. Moncur,1 Judge Presiding. Affirmed. The facts are stated in the opinion of the court and in Macdonald v. De Fremery ét al., 168 Cal. 189, [142 Pac. 73]. A. S. Macdonald, Pillsbury, Madison & Sutro, and A. D. Plaw, for Plaintiff. Fitzgerald, Abbott & Beardsley, and W. F. Williamson, for Defendants George Roeth et al.

<p>Contracts—Consideration—Pleading.—At common law a seal was necessary in order to create the presumption that an executory contract was founded upon a valuable consideration, and, therefore, if it was not under seal, the rule of pleading was that the complaint or declaration must allege that the contract was executed for a valuable consideration; but as our code declares that a written instrument is presumptive evidence of a consideration, in an action in this state upon an unsealed written instrument as evidence of an obligation to pay money, the common-law rule applicable to sealed instruments prevails, and it is not necessary to make the additional allegation that it was made for a valuable consideration.</p> <p>Id.—Claim Against Estate.—If an instrument creates a debitum in praesenti, an obligation existing in the lifetime of the obligor, the fact that it is not to be discharged until after the latter's death renders it hone the less enforceable as a demand against his estate.</p> <p>Id.-—Creation op Debt.—Any memorandum in writing, regardless of its form, whether payable in money or specific property, whereby a debt is acknowledged by one as owing to another to whom the memorandum is delivered, is sufficient to create such obligation.</p> <p>Id.—Implied -Promise.—Although an instrument contains no express promise to pay, where' the existence of an indebtedness based upon consideration is acknowledged, the law implies a promise to pay it, and the fact that payment is postponed until after the death of the party so acknowledging it is immaterial.</p> <p>Id.—Construction op Instrument.—Every statement in a written instrument signed by one since deceased, instructing the administrator of his estate -to pay to a named person within a definite time after his death a certain sum “for value received,” must be considered as his declaration and given effect accordingly, and in the absence of any defense on the ground of fraud, mistake, or want of consideration, each declaration therein made, or necessarily implied from its language, must be .given the full effect that the meaning «arries; and such instrument creates a debitum in praesenti, for value, payable out of the estate of the deceased, and is not a gift.</p>

<p>The facts are stated in the opinion of the court.</p> <p>Paul C. Morf, De Lancey C. Smith, and John J. Earle, for Appellant.</p>

<p>Estate of Deceased Person — Family Allowance — Duration of. — Where the estate of a deceased person is solvent, an allowance made to- the widow is not limited in duration to one year from the granting of the letters, as it would be in case of insolvency.</p> <p>Id.—Modification of Order—Power of Court.—Where an order for a family allowance is not appealed from and has become final, it is conclusive in favor of the widow so long as it remains in force, but the court is vested with power to modify it upon a showing that conditions have so changed as to call for a revision of it, the propriety and extent of such alteration being committed to the discretion of the trial court.</p> <p>Id.—Reduction in Allowance as of Date of Petition.—The probate court has power in reducing a family allowance to the widow of the deceased to make the modification operate back to the time of filing the application, or at least the service of the application.</p>

<p>APPEAL from a judgment of the Superior Court'of San Mateo County, and from an order denying a new trial. Henry C. Gesford, Judge Presiding.</p> <p>The facts are stated in the opinion of the court.</p> <p>J. E. Pemberton, Gavin McNab, and R. P. Henshall, for Defendants and Appellants.</p>

<p>The facts are stated in the opinion of the court.</p> <p>J. Wiseman Macdonald, J. W. Wiley, and R. B. Lambert, for Appellants.</p>

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

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

<p>Assault and Battery—Bight to Use Force—Limit on.—The right to use force, particularly as against the person of another, is always limited by the condition that the force must be no more than is reasonably adequate and necessary to the occasion; and in an action for damages for an assault and battery committed by defendant in an effort to regain property claimed by him, a finding of the trial court, upon sufficient evidence, that the force used by the defendant was unreasonable will not be disturbed upon appeal. Whether the 'force used was excessive is peculiarly a question for the trial court or jury.</p>

<p>The facts are stated in the opinion of the court. ,</p> <p>James, Smith & McCarthy, and A. R. Holston, for Appellants.</p>

<p>Appeal—Order Sustaining Demurrer—Dismissal.—No appeal lies from an order sustaining a demurrer to a complaint or from one denying application for leave to file an amended complaint, and attempted appeals from such orders will.be dismissed.</p>

<p>Appeal—Order Sustaining Demurrer—Dismissal.—No appeal lies from an order sustaining a demurrer to a complaint or from one denying application for leave to file an amended complaint, and attempted appeals from such orders will.be dismissed.</p>

<p>Promissory Note—Consideration—Satisfaction of Judgment—Dismissal of Criminal Action.—In an action on a promissory note, where the record shows it was given in satisfaction of a judgment obtained by plaintiff against certain parties for money of his which they had wrongfully appropriated and against whom a criminal proceeding was pending, it cannot be held that the consideration was illegal, where it is not shown that it was given on an agreement to dismiss the criminal proceeding or not to prosecute them.</p> <p>Id.—Evidence—Cross-examination.—It was not error to sustain an objection to questions asked on cross-examination of the makers of the note in such a case, as to conversations had by them with the guarantors as to the purpose for which the note was to be given, where the payee was not present and had no part in the conversations, and there was no examination of the witnesses in chief on the subject.</p>

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

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

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

<p>Action fob Damages—Contract to Procure Title to School Land— Pleading—Waiver.—In an action for damages in a transaction in which the plaintiff applied to the defendant for information as to the location of school land open to entry, in which defendant undertook to procure title for plaintiff in consideration of the transfer to him of plaintiff’s equity in a certain house and lot, where defendant failed to demur to the complaint upon the ground that it was indefinite, in that it could not be determined whether the plaintiff was seeking to recover damages for the breach of a contract or for false and fraudulent misrepresentations, the court properly refused to limit plaintiff’s proofs to one or the other cause of action.</p> <p>Id.—Examination of Land by Plaintiff—Failure to Procure Title —Improper Steps.—The contention that plaintiff should not recover in such an action, for the reason that after he had entered into the transaction, he had gone upon the land and had seen that it was not as represented to him, and had nevertheless gone ahead with his attempt to prove up upon it, cannot be maintained, where the claim for damages was not founded alone upon misrepresentations but upon failure to procure the land, because defendant bad misled plaintiff as to the proper steps to be taken to perfect his right to purchase it from the state.</p> <p>Id.—Confidential Relation—Principal and Agent.—In such a case, the relation between the parties was a confidential one, and the plaintiff was entitled to rely upon the defendant as his agent in the matter of signing without reading the papers which the latter had prepared and presented for his signature.</p> <p>Id.—Damages—Basis for.—In such a case, it is proper for the court to adopt as its basis for fixing plaintiff’s damages the value of hia equity in the property transferred by him instead of the value of the lands which he had failed to obtain.</p>

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

<p>Ejectment—Instructed Verdict—Failure to Show Title by Possession.—The court properly instructed a verdict for the defendant in an action of ejectment in which plaintiff’s claim to the property was based merely on a claim to the naked possession of the property, and the defendant’s upon a tax deed from the state, where it appeared from the evidence that the only acts of dominion over the property whereby plaintiff’s possession was manifested were not taken by him, but by one whose sole authority to do so in the name of and for plaintiff was a power of attorney, wherein no claim to or reference in any manner was made to the property, and the agent’s authority to act was restricted to ¡acts in connection with real property then or thereafter standing in the name of plaintiff, or to property in which he had some right or interest, but the property in question being1 vacant and unoccupied lots.</p>

<p>The facts are stated in the opinion of the court.</p> <p>Bernard Potter, Lynden Bowring, and J. O. Downing, for Appellants.</p>

<p>Election — Annexation op Territory — Publication op Notice.—The publication once a week for five weeks, with the last date of the publication within one week of the date of the election, is a sufficient-publication of notice of an election for the annexation of certain territory by a municipality under a statute requiring that notice should be published at least once a week for a period of four successive weeks next preceding the date upon which the election is to be held.</p> <p>Id.—Nature and Purpose op Bonds—Notice.—It is not necessary to state in the notice of the annexation election the nature and purpose of issued bonds to be assumed by the voters of the annexed territory with the details which might have been required in an election upon the question of the issuance of the bonds, the purpose of the statute requiring such a vote being plainly to put before the voters of such a district the amount of obligations which would be assumed by them in coming into the municipality.</p>

<p>Action to Recover Possession of Land — Purchase With Knowledge of Boundary— Sufficiency of Evidence.—In an action to recover possession of certain land with damages for its withholding, a finding that at the time of the purchase by the defendant of its property, the latter did not believe that a certain fence marked the division line between its property and the adjoining property, part of which was the subject of the dispute, is sustained by the fact that in the deed to the defendant, as well as in a recorded map referred to therein, the boundary in question was a straight ,line, which might reasonably be supposed defendant had knowledge of, instead of a broken line which defendant claims to have believed to be the boundary, the divergence of the latter line from that in the deed being apparent upon a mere inspection of the premises.</p> <p>Id.—Boundary Line—Estoppel.—That a grantor may be estopped from showing the true line of property conveyed by him, where he has misled the grantee into the belief that the line is located elsewhere, is not to be questioned; but it is of the essence of an estoppel that the party asserting it shall have been deceived by and relied upon the representation.</p> <p>Id.—Agreed Boundary—Knowledge of Real Line.—The fact that a party did not believe when it purchased its property that the line which it contends for was the real boundary line is fatal to the application of the rule of agreed boundaries, for this doctrine can be invoked only where adjoining owners, being uncertain of the actual position of the boundary described in their deeds, agree to its true location.</p> <p>Id.—Adverse Possession.—Title by adverse possession in such a case cannot be sustained where it appears that defendant paid no taxes except those assessed upon the land described by its deed.</p> <p>Ib.—Description.—In an action to recover possession of land, the complaint and findings are both open to criticism where they declare that defendants are in possession of a “part” of the property claimed without specifying the particular part so occupied; but this does not affect the substantial rights of the parties where the defendant in its pleadings asserts a right to the possession of the whole tract in dispute, and the record shows that the plaintiff is entitled to the entire parcel and the judgment awards it to her, without damages.</p>

<p>Building Restrictions — Action for Violation — Damages — Discretion.—In an action by a property owner for damages for alleged violation of building restrictions in a residential tract of land, statements of the trial court made during the progress of the case indicating that he considered the amount of actual damage to plaintiff’s property tt> be much larger than that which he finally awarded to her are of little or no value on appeal in determining whether the court’s final conclusion as embodied in its findings and judgment is correct; and where the evidence'in the case was such that the court might have found that' plaintiff had suffered either no damage whatever or the amount claimed, the discretion of the trial court in determining the actual damage will not be disturbed on appeal.</p>

<p>Summons—Service on Attorney—Lack or Exemption.—An attorney coming from another state for the purpose of assisting in eases pending in this state, but who is not an attorney of record in the cases and does not become such, is not entitled to exemption from service of civil process while so engaged.</p>

<p>Change of Place of Trial—Convenience of Witnesses — Bule— Abuse of Discretion.—Neither the convenience of experts nor of employees should be considered in determining the question of the convenience of witnesses, on a motion for change of venue on this ground, except where the experts also have personal knowledge of the facts upon which their testimony is to be based; and it is an abuse of discretion for the court to deny a motion for change of venue on this ground to a county where the facts in controversy arose and in which the moving party has eleven witnesses, whose testimony is alleged to be relevant and material, while the witnesses of the other parties consist of eleven experts, having no knowledge of the facts, and another who is their employee, and the effect of the order transferring the ease to a third county is to require the moving party to present its case to a jury by depositions.</p>

<p>The facts are stated in the opinion of the court.</p> <p>Veitch & Richardson, Harry Ellis Dean, and Isador Morris, for Appellant.</p>

<p>Divorce—Contract for Property Settlement—Cross-complaint for Cancellation — Nonsuit Insufficient Evidence.^—In an action by a husband for divorce in which the wife by answer denied the allegations of the complaint and by cross-complaint asked for a divorce and for rescission of an agreement by which the property rights of the parties had theretofore been settled out of court, the grounds for rescission being alleged fraud in the procurement of the contract', where the evidence was insufficient to support, a judgment for cross-complainant, the court properly granted a motion for nonsuit as t'o the alleged cause of action for cancellation of the agreement.</p> <p>Id.—Property Settlements Favored.—Property settlements between husband and wife, when there is no' fraud, are highly favored in law.</p> <p>Id.—Fraud — Confidential Relations — Burden of Proof.—Where a husband and wife had been living apar| for years, were in hostility, as evidenced by a maintenance suit brought by the wife, and - a settlement of the maintenance suit was conducted through the agents of the parties, there being, therefore, no chance for personal influence to be exercised by the husband upon the wife in arriving at the settlement, there was no presumption of confidential relations, and the burden of proving fraud in the settlement was upon the wife.</p>

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

<p>Municipal Ordinances — Inspection op Laundries — Discriminatory Charges.—Where an ordinance of a municipality provides for the inspection of laundries and other establishments of like character by its health officer and imposes an inspection fee and mileage for the inspector in an amount which is five times as great for one whose laundry is located in another city as for a local establishment, tenfold greater than the known cost of travel by ther usual modes of transportation, and more than four times the official mileage fees permitted to be charged by state, county, and township officers, which inspections are to be made once a month, the ordinance is discriminatory and therefore invalid under the constitution.</p> <p>Id.—Source op Power—Limit op Power.—The source of power of municipalities to enact ordinances such as those for the inspection of laundries is section 11 of article XI of the state constitution, and in the exercise of the powers thus conferred the municipality is limited by the terms of article I, section 12, of the constitution.</p> <p>Id.—Extraterritorial Powers.—Municipalities may exercise certain extraterritorial powers when the possession and exercise of such powers are essential to the proper conduct of the affairs of the municipality.</p>

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

<p>APPEAL from an order of the Superior' Court of Los Angeles County denying the application of a father for his appointment as guardian of Ms cMld and appointing another. Chas. Wellborn, Judge. Reversed.</p> <p>The facts are stated in the opinion of the court.</p>

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

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

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

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

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

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

<p>The facts are stated in the opinion of the court.</p> <p>Oliver O. Clark, Frank C. Collier, and Claud B. Andrews, for Appellant.</p>

<p>Malicious Prosecution—Probable- Cause—Instructions.—In this action for damages for malicious prosecution it is held that the instructions of the trial court t'o the jury on the subject of probable cause for the prosecution were erroneous and misleading, requiring a reversal of the judgment. e</p>

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

<p>Estates of Deceased Persons—Probate of Will—Contest—Befusai. of Continuance—Lack of Error.—An order refusing a continuance of a proceeding for the probate of a will after the overruling of a demurrer to the petition, on the ground that the proceeding was barred by the statute of limitations, is not erroneous where the continuance was requested for the purpose of enabling the contestant to prepare and file further papers in answer, or opposition or contest, and no showing was made that any other ground of contest existed than that presented and disposed of by the demurrer.</p> <p>Id.—Statute of Limitations — Inapplicability to Probate Proceedings.—A proceeding for the probate of a will, is not barred by sections 343 and 363 of the Code of Civil Procedure, since the statute of limitations is not applicable to such proceedings.</p>

<p>APPEAL from an order of the Superior Court of Los Angeles County appointing a guardian of the estate of an incompetent person. Frederick W. Houser, Judge. Affirmed.</p> <p>The facts are stated in the opinion of the court.</p> <p>Isidore B. Dockweiler and J. Wiseman Macdonald, for Appellant.</p>

<p>Negligence—Collision Between Motorcycle and Automobile—Manner of Accident—Conflict of Testimony—Appeal.—In an action for damages for personal injuries received by the rider of a motorcycle in a collision with an automobile, where there was a conflict of testimony regarding the exact point and the precise manner of the contact, it is not the province of the appellate court to review the conclusion reached by the jury upon such testimony, if there be any rational basis for the verdict.</p> <p>Id.—Proximate Cause op Injury — Failure to Slow Down in Approaching Street Intersection.—In an action for personal injuries received by a rider of a motorcycle in a collision with an automobile at the intersection of two city streets, the proximate cause of the injury cannot be said to be due to the failure of the plaintiff ' to yield the right of way, where the defendant was going at an unlawful rate of speed and did not slow down as required by law in approaching the intersection.</p> <p>Id.—Bight op Way—Crossing op Intersecting Street Without Slowing Down—Duty not Assumed.—The rule regarding right of way does not impose upón the person crossing the street the duty of assuming that the other will continue across an intersecting street without slowing down, as required by law.</p> <p>Id.—Violation op Bule op Bo ad.—If the driver of such motorcycle was violating the rule of the road by being on the wrong side of the street, it cannot be justly said as a matter of law that such violation, if any, was the proximate cause of his injury.</p>

<p>Execution—Supplemental Proceedings—Disclosure by Trust Companies—Applicability op Exception op Bank Act.—A proceeding instituted under and in accordance with the provisions of chapter 2 of title IX of the Code of Civil Procedure, entitled “Proceedings Supplemental to Execution,” comes within the exception embraced in the final proviso of section 103 of the Bank Act authorizing a court in a pending proceeding to require disclosure by a trust company of any communication or writing “touching the existence, condition, management or administration of any trust,” notwithstanding no trust was involved in the action in which the proceedings were had.</p>

<p>Estates of Deceased Persons—Contest of Account—Bight of Grantee of Estate.—The grantee of the property of an estate has the right to contest the account of the administrator.</p> <p>Id.—Litigation Concerning Besidue of Estate—Administrator not Party Interested — Defense of Action — Expense not Chargeable to Estate.—The administrator of an estate has no concern with a controversy regarding the disposition of the residue of the estate after administration by virtue of an agreement made by the deceased in her lifetime, and is therefore not entitled to defend the action at the expense of the estate.</p> <p>Id.—Advancements to Heirs—Allowance.—Advances made by an administrator to an heir on account of his distributive share cannot be considered upon the hearing of an account, but are to be allowed only as a credit against the heir’s distributive share upon final distribution.</p> <p>Id.—Settlement of Account—Items Concluded.—The settlement of an account is not conclusive except as to such items as are included in it and actually passed upon by the probate court.</p> <p>Id.—Attorney’s Fees — Extraordinary Services.—The court may, in the absence of a showing of abuse of discretion, make a further allowance to an attorney for extraordinary services rendered prior to a given date, even 'though such attorney had already received compensation “on account” of such services.</p> <p>Id.—Office Expenses.—An administrator may claim credit in his account for office expenses, such as stenographer’s services, stamps, telephone calls, and the like, where the items not covered by vouchers do not exceed twenty dollars for any one item or charge, or more than five hundred dollars in all.</p>

<p>Negligence — Fall of Passenger Elevator — Liability of Incompetent Owner Under Guardianship — Individual Liability of Guardians—Instructions.—In an action against an incompetent person under guardianship, as the owner of a building, and against the guardians, as individuals, for damages for personal injuries received by the plaintiff in the fall of a passenger elevator in such building, which was actually being operated by an employee of the guardians, an instruction basing the individual liability of the guardians solely upon the fact that they were in the active control and management of the property as guardians was erroneous, and instructions to the effect tha't the incompetent was liable, based upon the theory that she was charged with the liability of a common carrier of passengers for hire, were correct.</p> <p>Id.—Negligent Operation of Elevator bt Employee of Guardians— Liability of Incompetent Person.—The owner of a building, though incompetent and under guardianship, is responsible for the negligent operation of a passenger elevator in the building by an employee of the guardians.</p> <p>Id.—Measure of Proof—Instructions.—The refusal to give defendants’ instruction defining “the preponderance of evidence” is not prejudicial where the jury was instructed at plaintiff's request that it is incumbent upon the plaintiff to prove his case to a moral certainty, as this is a higher degree of proof than would result from a mere preponderance of the evidence.</p> <p>Id.—Safety and Sufficiency of Elevator Materials — Modification of Instruction.—An instruction in such a ease to the effect that if the jury found from a preponderance of the evidence that the elevator was in proper condition and repair at the time it dropped and was properly operated at said time, and that it dropped from unforeseen and unknown conditions that could not have been guarded against by the exercise of the utmost care and prudence on the part of the defendants, the verdict must be for the defendants, was propérly modified by an additional proviso requiring that the jury should also find the safety and sufficiency of the materials entering into the construction of the elevator and its appliances and the safety and sufficiency of the mechanical construction of said materials, where the only evidence concerning the safety and sufficiency of the materials entering into the construction of the elevator and its appliances related to the safety device, the cables and bumpers, and the jury was instructed that' defendants were not liable for a defect in the cables not discoverable upon careful examination, or if the elevator fell by mere accident without any fault on their part.</p> <p>Id—Bes Ipsa Loquitur Doctrine—Liability of Guardians—Erroneous Instruction.—Where both the incompetent' owner and the guardians in their individual capacities were joined as defendants, an instruction that it was only necessary for plaintiff to prove that he was being carried on the elevator and the happening of the accident, and thereupon the burden of proof shifted to the defendants to show, either that the accident could not have been avoided by the exercise of the highest degree of care on their part, or that it was caused by inevitable casualty, or some other cause which human foresight could not prevent, is erroneous, so far as the guardians are concerned, in that it predicates the individual liability of the guardians on the res ipsa loquitur doctrine, and thus permits recovery against them without affirmative proof of negligence on their part.</p> <p>Id.—Inability of Operator to Prevent Overloading—Verdict for Defendants—Instruction.—An instruction to the effect' that if the elevator operator was powerless to prevent the overloading thereof, “the verdict should be for the defendants,” was properly, refused, as not meeting all the elements of negligence involved in the case.</p> <p>Id.—Ínjury to Attorney at Law — Measure of Damages — Subsequent Impairment.—In an action for personal injuries sustained by an attorney at law in the fall of an elevator, the plaintiff was not limited as to his right to recover for loss of earning power to the amount specifically alleged in his complaint as damages resulting from total inability to practice his profession up to the time of the filing of the complaint and six months thereafter, hut under the general allegation of damages could recover for subsequent impairment.</p> <p>Id.—Permanent Injuries to Attorney at Law — Verdict not Excessive.—A verdict for thirty-five thousand dollars for personal injuries sustained by an attorney at law in the fall of a passenger elevator cannot be considered excessive where it is shown that plain-, tiff was a comparatively young attorney having an income of nine thousand dollars per year, at the time of the trial it was a serious question whether he would ever be able to walk without the aid of crutches, that he had suffered great pain and had been unable to transact any business for more than six months at t'he time the case was tried, and was permanently crippled in such fashion as to impair Ms usefulness as an attorney before a court or jury.</p> <p>New Trial—Excessive Damages—Affidavits.—On a motion for a new trial, affidavits to the effect that t'he courtroom was crowded with law students, pupils of the plaintiff, and that during the trial there was laughter and other manifestations of approval and disapproval of the proceedings by, the students, were not admissible on the question of excessive damages.</p>

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

<p>Appeal—Order Denying a New Trial—Effect of Code Amendment op 1915.—An order denying a new trial made after the amendment of 1915 to section 963 of the Code of Civil Procedure is not an appealable order.</p> <p>Mining Law — Abandonment or Forfeiture o,p Claim — Termination op Right to Associated Mill Site.—Where the locator of a mill site used in connection with a lode mining claim ceases by reason of abandonment or forfeiture to be the proprietor of the vein or lode, the right to t'he associated mill site is also ended, and the claim together with the connecting mill site is open to relocation.</p> <p>Id.—Removal op Improvements — Right of Original Locator.—Improvements placed upon mining land by the original locator, if they fall within the class designated as fixtures, become a part' of the realty, and the subsequent appropriation of the land carries with it, necessarily, whatever may be affixed to it, and while prior to the determination of his estate by the perfection of a relocation the prior locator may sever and remove all machinery, buildings, and other improvements which, by the manner of their attachment to the soil, have become a part of the freehold, his right of entry for that purpose ceases when his estate is terminated.</p> <p>Id.—Status of Locator of Claim.—A locator of a mining claim is-not a mere licensee, but owns an estate, in the claim which possesses all 'the attributes of a title in fee, subject to the paramount fee in the government, although Ms right's are subject to forfeiture for failure to do the required work, followed by a relocation.</p>

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

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

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

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

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

<p>Appeal — Insufficiency of Evidence to Support Findings — Nonappearance of Respondent—Presumption—Inapplicability of Rule Under Alternative Method.-—The rule that where the appellant claims a reversal upon the ground of the insufficiency of the evidence to support the findings the court will, in the absence of an appearance on behalf of respondent, assume, without looking into the record, that the point is well taken, is inapplicable under the alternative method of appeal, since under such method no specification on the ground of insufficiency of t'he evidence to support the findings is required, it being the duty of the parties to print in their briefs, or in a supplement appended thereto, such portions of the record as they desire to call to the attention of the court.</p> <p>Id.—Reversible Error—Burden of Proof.—It is incumbent upon the appellant to print in his brief such portions of the record as he deems essential to a correct understanding and determination of the appeal, and while in the absence of any brief on the part of the respondent the appeal may be determined upon those portions of the record printed in appellant’s brief, it is incumbent upon the appellant thereby to show that error resulting in a miscarriage of justice has occurred in order to entitle Mm to a reversal, even in the absence of any brief or appearance on behalf of respondent.</p> <p>Claim and Delivery—Recovery of Possession of Stock—Intervention—Order of PbooF.—In an action in claim and delivery to recover of a bank the possession of certificates of stock, wherein the bank defaulted, and a third party intervened claiming that the stock belonged to him and was held by the bank in escrow, the stock having been sold by him for cash and notes, and the plaintiff in answer to the complaint in intervention claimed that the stock had been placed with her as security to protect her upon a written guaranty, and that the intervener had obtained possession of the stock from her by an agreement that he would return the same after voting it at an election, and that the promise was fraudulently made without any intention of fulfillment, the court did not err in placing the burden of proof upon plaintiff as between her and the intervener.</p> <p>Id.—Disposal of Notes by Intervener—Evidence.—In such action, where it was found that plaintiff had no interest in the stock, that it was not deposited with her as security, and that it. was the property of the intervener, there was no prejudicial error in refusing to allow evidence that the intervener had disposed of the purchase price note's.</p> <p>Id.—Bringing in of Corporation and Owners of Notes—Absence of Error.—In such action, it was not error for t'he court to fail to bring in on its own motion the corporation and the owners and holders of the notes sold and transferred by the intervener.</p> <p>Appeal—Findings—Evidence.—Where there is any substantial evidence; to sustain the findings, the decision of the trial court must control, regardless of the views of the appellate court concerning the preponderance of the evidence.</p>

PROCEEDING on Habeas Corpus originally instituted in the Supreme Court. Petitioner discharged from custody. The facts are stated in the opinion of the court.

<p>Criminal Law—Indeterminate Sentence—Offense Prior to Enactment— Void Sentence — Procedure.—The indeterminate sentence law which went into effect in the month of July, 1917, is ex post facto as to offenses committed prior to such enactment, and judgments imposing such sentences upon offenders whose offenses were committed before such time are void, but the defendants are not entitled to discharge, but should be returned to the superior court for proper sentence.</p> <p>Id.—Erroneous Sentence—Second Sentence—Time for Discharge.— Where an offender erroneously sentenced for a term of not less than one nor more than ten years had served ten months under such indeterminate sentence, and two months under a second sentence of one year, he is not entitled to his discharge, since the second sentence was the original and only legal sentence.</p>

The facts are stated in the opinion of the court. Fitzgerald, Abbott & Beardsley, and Eugene E. Trefethen, for Appellants. M. C. Chapman, John F. Conners, and J. Clem Arnold, for Appellants, Executors, and Trustees.

<p>The facts are stated in the opinion of the court.</p> <p>J. Samuels, Oscar Samuels, and W. P. Netherton, for Appellant</p>

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

<p>Workmen’s Compensation Law — Placing of Liability — Policy of Law.-—It is the policy of the workmen’s compensation law to place the liability upon the business, or industry, in which the employee is engaged, by placing the responsibility for indemnity upon t'he employer.</p> <p>Id.—Definition of “Employer” and “Employee.”—The constitutional-provisions authorizing the workmen’s compensation law of necessity use the terms “employer” and “employee,” and it must follow that in defining such terms in any statute passed in pursuance thereof no definition therein contained can enlarge the scope of the constitutional authority.</p> <p>Id.—General and Special Employment—Jurisdiction of Commission. As the law recognizes that an employee may at the same time be under a general and special employer, it would seem to follow that the jurisdiction of the commission might well be predicated on either the general or special employment or both.</p> <p>Id.—Determination of Relationship — Resort to General Law.—In determining the question as -to whether or not the relationship of employer and employee exists, the general law as well as the terms of the statute itself must be looked to.</p> <p>Id.—General and Special Employer Included in Definitions.—The definitions of “employer” and “employee” in the Workmen’s Compensation Act are broad enough to include both the general and t'he special employer.</p> <p>Id.—General and Special Employment—Death of Employee—Joint Liability.—Under the Workmen’s ‘Compensation Act, a company engaged in the manufacture of cement and a partnership engaged in the business of installing and handling large machinery are jointly liable for the death of an employee while performing services on the premises of the Cement Company and for its benefit under an arrangement entered into between the company and the partnership whereby the partnership furnished men and a foreman, who were to be paid by the partnership with funds furnished by the company, the partnership retaining the power to hire and discharge, and both partnership and company being jointly associated in the carrying on of said work.</p> <p>Id.—Policy of Indemnity—Correction for Mutual Mistake.—Where a policy insuring against liability fails because of mutual mistake to express the intent of the parties, it may be corrected, even after the happening of an accident, in the absence of estoppel, and if not done so as to defeat an employee’s right to compensation.</p> <p>Id.—Death Arising Out of Employment—Evidence—Hearsay Declarations of Deceased.—The amendment to the workmen’s compensation’ law, passed in 1915 (Stats. 1915, pp. 1079, 1102, see. 77a), expressly permits hearsay declarations of. a deceased employee to prove that death arose out of the employment.</p>

<p>Deed—Covenant Against Encumbrances—Subsequent Levy of Reclamation District Assessment—- Action fob Breach not Maintainable.—An action for the breach of the covenant against encumbrances contained in a deed cannot he maintained where the alleged breach was the levy of a reclamation district assessment after the conveyance of the property.</p> <p>Id.—Levee Consisting of High Embankment—Barrier not an Encumbrance.—A levee consisting of a high embankment dividing a farm into two tracts inaccessible from each-other except by a circuitous route across the lands of other parties, thus rendering the farming operation of the land more expensive than it would he otherwise, does not constitute an encumbrance within the meaning of a covenant against encumbrances under section 1114 of the Civil Code.</p>

<p>APPEAL from a decree of distribution of the Superior Court of the City and County of San Francisco in the matter of the estate of a deceased person. J. Y. Coffey, Judge. Affirmed.</p> <p>The facts are stated in the opinion of the court.</p> <p>Dozier & Dozier, Jacobs & Oliver, and James M. Oliver, for Appellant.</p> <p>Garret W. McEnerney and William F. Herrin, for Respondents.</p>

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

APPLICATIONS for a Writ of Review originally made to the Supreme Court to annul certain orders of the Railroad Commission. Applications denied. The facts are stated in the opinion of the court.

PROCEEDING- in Certiorari originally instituted in the Supreme Court to review an award of the Industrial Accident Commission. Award annulled. The facts are stated in the opinion of the court.

<p>Deed—Interest of Grantee—Evidence.—The real nature of the transaction concerning property conveyed, the true intent and purpose moving parties in taking a conveyance in their joint names, or in that of one of them, can be investigated and determined except where in good faith interests of third parties have intervened and would be injuriously affected; and therefore, it may be shown that the taking of a conveyance in the name of the grantee, or one of them, was a mistake, or that it was a matter merely of convenience, or as security for a loan, or was taken under such circumstances as created a resulting trust or trust of some other character.</p> <p>Partition—Extent of Ownership of Parties—Transaction Concerning Purchase—Interest of Grantees—Evidence.—In this action for a partition of a tract of land wherein the plaintiff asserted an equal undivided ownership therein in himself and the defendant', and the defendant claimed ownership to three-fourths, it is held that wnile the evidence shows that the contract for the purchase of the property was made with the vendor by the mother of the parties and the defendant and years after a deed was made to both of them, yet it was never the intent of the grantees, or either of them, that the defendant should acquire legal title to any portion of the property, and that under the will and decree of distribution made in the estate of the mother, the parties succeeded each to an undivided one-half of the property.</p>

<p>Street Law—Recordation of Assessment and Warrant—Improvement Act of 1911.—Under the Street Improvement Act of 1911 the recordation of the warrant and assessment must be made in the usual way in which other official documents are required to be recorded, that is to say, by copying them at length in a book of records t'o be kept for such purpose, and it is not sufficient to make use of loose leaves in the preparation of the assessment and warrant and insert them in a lock-ibook from whic¿ they may subsequently be removed and delivered to the contractor for the purpose of making demand and return, and the time within which property owners may make their appeal to the city council does not begin to run, nor the lien of the contractor attach, until such documents have been properly recorded.</p>

<p>APPLICATION for a Writ of Mandate originally made to the Supreme Court to compel a certification of unpaid street assessments. Denied.</p> <p>The facts are stated in the opinion of the court. .</p> <p>Morrison, Dunne & Brobeck, Maurice E. Power, and Raymond Benjamin, for Petitioner.</p> <p>Guy Knupp, C. L. Russell, C. L. Russell, Jr., Geo. G. Murry, and Thomas, Beedy & Lanagan, for Respondents.</p>

<p>Criminal Law—Murder—Killing in Perpetration of Bobbery.—One who kills another in the perpetration of robbery is guilty of murder of the first degree by force of the provision of section 189 of the Penal Code, regardless of any question whether the killing was intentional or unintentional.</p> <p>Id.—Issue óf Insanity—Hypothetical Questions.—In a prosecution for the crime of murder, it is not error to overrule objections to certain hypothetical questions propounded by the district attorney to medical witnesses called by him as experts on the issue of insanity, where the objections were in substance that the questions did not contain all the material facts claimed to have been shown by defendant’s witnesses, without contradiction by any of the witnesses for the prosecution.</p> <p>Id.—Basis of Hypothetical Question.—While a hypothetical question must be based upon facts claimed to be shown by evidence in the case, it is not essential that it embrace all the evidence in the case upon the subject of inquiry, but' it may be addressed to any reason, able theory which may be taken by counsel, who has the right to frame a question to accord with his theory of what the material facts are as shown by that evidence, and in so doing may omit facts, which, from his point of view, have no material bearing upon the subject under inquiry.</p> <p>Id.—Commission of Crime bt United States Soldier—Existence of State of War—Jurisdiction.—The state courts have jurisdiction concurrent with the military tribunals of the United States to try a private soldier in the army of the United States, regularly enlisted and mustered into service, and subject to the articles of war and the provisions of the United States statutes with respect' to the jurisdiction of courts-martial, for the crime of murder, where such homicide was not committed in the performance of any military duty, or in any place under the exclusive jurisdiction of the United States, notwithstanding at the time of the commission of the offense a state of war existed between the United States and foreign nations.</p>

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

The facts are stated in the opinion of the court. Nathan Newby, Mattison B. Jones, and Claude B. Morton, for Appellant W. O. Morton. H. M. Barstow, Will H. Anderson, Tom C. Thornton, and Harry A. Hollzer, of Counsel. Leonard B. Slosson and Richard J. O. Culver, for Los Angeles Bar Association.

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

<p>Counties—Purchase op Land for Hospital Site—Action by Taxpayer por Recovery—Evidence—Excessive Acreage and Price— Proop Properly Excluded.—In an action by a taxpayer against a county, certain of its officers, and certain land owners to recover from the defendants other than the county, but for the county's benefit, money expended and paid for the purchase of lands for a hospital site, an offer on the part of the plaintiff to prove by one of the supervisors who had voted for the purchase that the greater portion of the land was purchased for a county farm, that the amount of land purchased greatly exceeded in acreage the amount of land necessary for ■ hospital grounds, and that the money paid therefor was grossly in excess of its value, was properly excluded.</p> <p>Id.—Municipal Body—Legislative Action—Review by Courts.—When the legislature has committed to a municipal body the power to legislate on given subjects, or has committed to it judgment or discretion as to matters upon which it is authorized to act, courts of equity have no power to interfere with such a body in the exercise of its legislative or discretionary functions.</p> <p>Id.—Purchase op Hospital Site—Legislative Power.—The power conferred on the hoard of supervisors by law relative to the purchase of land for a hospital site, the erection of hospital buildings and their equipment, is both legislative and discretionary.</p> <p>Id.—Notice op Intention to Purchase—Publication—Jurisdictional Prerequisite.—The publication of a proper notice of intention to purchase land for a hospital site by the board of supervisors is a jurisdictional prerequisite to the power of the board to act in the matter.</p> <p>Id.—Name op Person from Whom Property to be Purchased—Tenants in 'Common—Sufficiency of Notice.—Under subdivision 6 of section 4041 of the Political Code, which requires a notice of intention to state among other things the name of the person from whom the purchase is to he made, a notice is not fatally defective because of the omission to mention the name of the wife, where the land was owned by the husband and wife as tenants in common, since the code section does not require a statement of the names of the owners of the property.</p> <p>Id.—Name of Deceased Person—Pendency of Administration Proceedings—Valid Notice.—The statement in such notice that the ■ name of the person from whom the property was to be purchased was a deceased person, is not. fatal, whore the property was in course of administration.</p> <p>Id.—Statement oe Price.—Under the provision of,the code requiring the published notice to state the price to be paid for the property, the use of the term “more or less” in stating the acreage is not fatal.</p>

PROCEEDING in Certiorari originally instituted in the District Court of Appeal to annul an order appointing a special administratrix of the estate of a deceased person. S. M. Marsh, Judge. Order affirmed. v The facts are stated in the opinion of the court. Patterson Sprigg and Thomas, Beedy & Lanagan, for Petitioner.

<p>Place of Trial—Local Prejudice—Number op Affiants not Controlling.—On a motion for a change of place of trial of a civil action upon the ground that the plaintiff could not have a fair and impartial trial in the county in which the action is pending, the numbers of affiants or of affidavits is not the determining factor or proper measure of the rights of the parties.</p> <p>Id.—Order -Changing Place op Trial—Discretion not Abused.—An order granting a motion for the change of place of trial of a' civil action on the ground of local prejudice will not be disturbed on appeal where the case was tried three times and the judge who made the motion had presided at all of such trials and no showing was made that he was personally prejudiced.</p> <p>Id.—Transfer to Adjacent County—Discretion not Abused.—An order changing the place of trial of an action to condemn water for irrigation purposes to an adjacent county, the county seat of which is farther removed and less accessible than the county seats of the other adjacent counties, is not an abuse of discretion, where the county to which the action was changed, is topographically less suited to the development of extensive systems of irrigation than the other adjacent counties, and its residents who might be called upon to do jury duty not affected by those problems and prejudices which arise and persist where large corporations operate in the control of waters and the extension of irrigation systems with frequently conflicting interests and claims.</p>

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

<p>Estates op Deceased Persons—Wills—Mental Unsoundness—Undue Influence—Evidence—Submission of Case to Jury.—In a proceeding for the revocation of the probate of a will on the ground of undue influence and unsoundness of mind, if there is substantial evi- ■ denee on either subject, it is the duty of the trial court ta submit the case to the jury.</p> <p>Id.—Opinion Testimony—Weight.—Evidence bearing upon the question of unsoundness of mind is of no greater value than the reasons given in support of the opinion, and is not alone sufficiently substantial to require the presentation of the case to the jury.</p> <p>Id.—Insufficiency of Evidence.—In this proceeding it is held the proof of incompetence was too unsubstantial to justify its submission to the jury, and that there was no evidence of undue influence.</p>

<p>The facts are stated in the opinion of the court.</p> <p>Frank McGowan, Arthur Lindauer, and Blaine McGowan, for Appellant.</p>

<p>Agency Contract—When not Exclusive—Damages for Breach.—An agency contract providing for commissions on sales actually made is, not an exclusive agency contract', wherein upon breach by the principal the measure of damages is that applicable to exclusive agency contracts, where the sales were not only dependent upon the effort put forth by the agent, but also upon the number of other agents in the field competing with such agent and the condition of the market.</p> <p>Id.—Exclusive Contract—Measure of Damages.—The measure of damages to which the exclusive agent is entitled'where t'he principal, in violation of his contract, sells his goods in the agent’s territory, is the actual loss suffered by the latter, and that ordinarily is t'he commission which would have accrued to him if he had made the sale in person, and speculative damages are not recoverable.</p> <p>Id.—Breach of Nonexclusive Agency Contract—Commissions on Suppositive Sales.—Where an agency contract providing for commissions is not exclusive, the agent upon breach by the principal, cannot recover as damages profits t'o be realized as commissions on purely suppositive sales, the same being speculative.</p> <p>Td.—Commissions on Sales to Dealers.—Where an agency contract provides for commissions on sales to certain named dealers whether made directly or by reason of the agency, commissions on actual sales made to such dealers, whether made by the agent or otherwise, may be recovered in an action for breach of the contract by the principal, the same being certain and not speculative.</p>

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

<p>APPEAL from a judgment of the Superior Court of Sacramento County, and from an order denying a new trial. Malcolm C. Glenn, Judge. Affirmed.</p> <p>The facts are stated in the opinion of the court.</p>

APPLICATIONS for Writs of Habeas Corpus originally made to the Supreme Court, directed against the Sheriff of the City and County of San Francisco. Petitioners discharged. The facts are stated in the opinion of the court. Edwin V. McKenzie, Harry A. McKenzie, A. S. Newburgh, and Oscar Hudson, for Petitioners.

Supreme -Court to annul an award of the Industrial Accident Commission. Award affirmed. The facts are stated in the opinion of the court. E. L. Stockwell, Leland Mann, and Redman & Alexander, for Petitioners. Christopher M. Bradley and Warren H. Pillsbury, for Respondents.

<p>Guardianship op Minor—Formal Notice op Proceeding—Unnecessary Jurisdictional Prerequisite.—In a proceeding for the appointment of a general guardian for the person and estate of a minor the statute does not contemplate that formal notice of the proceeding be given to the parents.</p> <p>Id.—Appointment op Aunt—E'xpbess 'Consent op Father—Refusal to Set Aside Order—Discretion not Abused.—It is not an abuse of discretion to refuse to revoke an order appointing an aunt of a minor the guardian of her person and estate, where such applicatiou is made by the father and it is shown that he gave express consent to the guardianship of both her person and estate.</p> <p>Id.—Leaving op Minor in Custody op Grandparent—Right op Father.—The mere fact that the father of a minor upon the death of her mother left the child in the custody of her grandmother would not detract from his right subsequently to take her into his care and custody if he were a proper person for such parental control.</p>

<p>Appeal—Conflict of Evidence—Findings.—Where there is a substantial conflict in the testimony the appellate court must uphold the trial court in its findings.</p> <p>Action fob Debt—Statute of Limitations—Effect of Stipulation.— In an action to recover an indebtedness, the objection that the plain- . tiff was not the owner and holder of the claim at the time of the commencement of the action was waived and the action properly regarded as having been commenced at the time such complaint was filed, so far as the statute of limitations was concerned, where -the claim was subsequently assigned to the plaintiff, and a. stipulation made that an amended complaint might be filed upon the assigned claim and that no further objection to the prosecution of the action should be made on that ground.</p> <p>Contract—Place of Execution—Last Act in This State.—Where a contract was prepared and signed by one of the parties in this state, and then forwarded to the other party in another state, and the latter after making a substantial change in one of its provisions returned it to this state with advices as to the change, whereupon the party in this state, by letter, accepted the modification, the contract was executed in this state.</p>

<p>Appeal—Alternative Method—Printing Eecord in Brief.—Where an appeal is taken by the alternative method and the appellant neither prints any of the record in the brief nor designates in any way the parts of the transcript upon which his alleged “statement of facts” is based, the brief will not be considered.</p>

<p>Appeal—Alternative Method—Printing Eecord in Brief.—Where an appeal is taken by the alternative method and the appellant neither prints any of the record in the brief nor designates in any way the parts of the transcript upon which his alleged “statement of facts” is based, the brief will not be considered.</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>U. T. Clotfelter, M. W. Reed, Paul Burks, and Robert Brennan, for Appellants.</p>

<p>Assault and Battery—Damages—Verdict not Excessive.—In this action for damages alleged to have been caused by a blow struck upon the side of plaintiff’s head by defendant’s fist, it is held that the evidence was sufficient to support the verdict for five thousand dollars.</p> <p>Id.—Evidence—Statements of Plaintiff.—In such action statements made by plaintiff to a witness to the effect that the former had pains in the head and could not sleep were admissible, being complaint's regarding existing discomforts and not narratives of past miseries.</p> <p>Id.—Form of Verdict — Segregation of Damages — Absence of Request.—In such action the defendant may not complain that the jury was not given a form of verdict which would segregate the amounts which might be awarded for compensation and for punitive damages, where no request was made for such a form.</p> <p>Id.—Exemplary Damages—Instruction.—In such action there is no force in defendant’s contention that the court erred in giving any instruction relating to exemplary damages because the assault was one provoked by plaintiff and made in the sudden heat of passion, where the description .of the occurrence in defendant’s place of business, as given by plaintiff, showed a deliberate seeking of a quarrel by defendant, followed by threats of personal violence soon succeeded by the striking of a blow, and the defendant did not request the giving of any instruction which would eliminate the matter of exemplary damages, but, on the contrary, offered an instruction, which was given, that left to the jury the duty of determining whether or not defendant was actuated by malice toward plaintiff, and informing the jurors that exemplary damages might not he awarded if defendant committed the battery in a sudden heat of passion and not maliciously.</p> <p>Id.—Catarrhal Disease of Head—Effect upon Damages—Instruction.—In such action the refusal to give an instruction to the effect that if the jurors found that plaintiff was suffering from a catarrhal disease of the head they could only award damages for eonditions which were the direct result of the battery, and that suffering and injury should he distinguished from the catarrhal affliction, was proper, in the absence of either pleading or proof relating to catarrhal affliction.</p>

<p>Monopolies—Cartwright Anti-trust Act—Combinations Prohibited. The Cartwright Act (Stats. 1907, p. 984) subject to the provisos of the amendment of 1909 (Stats. 1909, p. 593) prohibits any combination of capital, skill, or acts by two or more persons for the purpose of increasing the price of any commodity, or fixing at any figure,’ whereby its price to the consumer shall be controlled, any article intended for sale or consumption, or to make or carry out any agreements by which they shall bind themselves to keep the price of such article at a fixed or graduated figure,</p> <p>fn.—Agreement Between Wholesale Bakers—Fixing Retail Price of Bread—Violation of Act.—An agreement between wholesale bakers, whereby they fixed the retail price of bread to be sold by them to retailers at fifteen cents per loaf, and agreed that they would not sell bread to any retailer who did not maintain such price, is violative of all or at least some of the prohibitions of the Cartwright Anti-trust Act.</p> <p>Ed.—Sufficiency of Indictment.—An indictment charging a violation of the provisions of the Cartwright Anti-trust Act is not defective in not alleging that the combination or agreement did not come within the permissive scope of the proviso added to section 1 of the act declaring that no agreement, combination, or association shall be deemed to be unlawful, the object and business of which are to conduct its operations at a reasonable profit, or to market at a reasonable profit those products which cannot otherwise be so marketed.</p> <p>Id.—Proviso of 1909—Lawfulness of Agreement to Conduct Operations at Reasonable Profit—Effect of Amendment.—The proviso added to section 1 of the Cartwright Anti-trust Act by the amendment of 1909 declaring that no agreement, combination, or association shall he deemed to he unlawful “the object and business of which are to conduct its operations at a reasonable profit or to market at a reasonable profit those products which cannot otherwise he so ' marketed,” does not go to the definition of the offense, but creates rather an exception, exempting from the operation of the general terms of the statute persons who have committed the prohibited acts for a specified purpose, and therefore, the existence of such purpose affords matter of excuse merely, and is to be relied on in defense.</p>

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

<p>State LAnds—Patents—Collateral Attack.—In an action to quiet title to lands the plaintiff’s title to which was deraigned from patent's issued by the state wherein the lands were declared to be non-mineral, the patents cannot be attacked on the ground that the lands at the time of the grants were known to be mineral lands, since such patents can be attacked only on direct proceedings and by proper parties.</p> <p>Quieting Title.—-Judgment on Pleadings.—In such action, a judgment on the pleadings in plaintiff’s favor was proper, where it was apparent therefrom that the only issue presented was the validity' of the patent under which plaintiff deraigned title, and the right to attack such patent is not available in the action.</p>

<p>APPEALS from an interlocutory decree of partition and an order denying a new trial and from an order of the Superior Court of Ventura County appointing a receiver. Robert M. Clarke and Merle J. Rogers, Judges. Modified and affirmed.</p> <p>The facts are stated in the opinion of the court.</p>

MOTION to dismiss an appeal from a judgment of the Superior Court of Glenn County. William M. Finch, Judge. Appeal dismissed. The facts are stated in the opinion of the court.

<p>Building Contract—Assignment of Payment to Become Due—Bights of Transferee Subject to Equities of Owner.—Where a building contractor makes an assignment to a corporation furnishing lumber for the building, and for other buildings in course of construction by the contractor, of a certain payment under the contract which is not then due, and the owner accepts the assignment, and when the payment becomes due pays the same to the assignee, equity will apply such payment to the material furnished by the assignee "for such building, and not to the satisfaction of a general debt owing by the contractor to the lumber company, since the ease is not ruled by section 1140 of the Civil Code relating to a present sale of personal property, but the facts present a case of the transfer of a nonnegotiable obligation where the right of the transferee is subject to the equities of the owner under sections 1458 and 1459 of the Civil Code.</p> <p>Appeal—Conflict of Findings—When Point not Beviewable.—Upon an appeal from a judgment and order denying a new trial, a suggested conflict in the findings will not he considered, where the point is raised for the first time in the appellate court.</p>

<p>Road District Improvement Act—Construction—Purpose op Legislature.—The Road District Improvement Act of 1907 (Stats. 1907, p. 807), like all statutes, must be read in view of the evident purpose of the legislature in its enactment.</p> <p>Td.—Establishment op Grades op Streets Within District — Construction op Act.—Section 2 of the Road District Improvement Act of 1907, providing that before passing any resolution of intention under the act, 'specifications for the worlc substantially the same as that described in the resolution of intention shall be furnished by some competent' person who shall have been designated by the board of supervisors for that purpose by a resolution to 'be entered by the clerk upon the minutes of said board, and, except where there is already an official grade thereof, as a part of such specifications, grade's shall be specified for all roads, streets, avenues, boulevards, lanes and alleys within the described district so far as the same are within such district, was intended to apply only to those roads and streets within the district upon which work was to be done, and the omission of the specifications to designate grades for all streets and avenues within the district did not deprive the board of supervisóla of jurisdiction to pass the resolution of intention.</p> <p>Td.—Grading op Connections With Intersecting Roads—Discretion op Engineer—Valid Provision op Specipications.—A provision in the specifications for the work that the contractor shall, without extra compensation, grade according to the engineer’s directions, a safe, proper, and workmanlike connection with all intersecting public or private roads or driveways, does not constitute an unwarranted delegation of discretion by the board of supervisors to the engineer, which is fatal to the validity of the proceedings.</p> <p>Id.—Definiteness op Specifications—Exception to Rule.—While as a general rule specifications must definitely and with certainty describe the manner and extent of the work to bo done, there is a well-recognized exception in the ease of details of construction which do not appear and cannot with reasonable diligence and cost be ascertained in advance, or which will be disclosed only by the doing of the work, or any contingency which reasonable care and consideration would not foresee.</p> <p>Id.—Sufficiency of Notice Inviting Sealed Bids — Reference to Specifications.—Where the notice inviting sealed bids specifically announced that the work was to be done according to the speeifieations on file therefor, and such specifications were by reference made a part of the notice and on file at the office of the board and open to inspection by bidders, any ambiguity that may have inhered in the language of the notice was thereby cured. /</p> <p>Id.—Levy op Assessment—Determination op Board—When Conclusive.—The courts cannot interfere with the determination of the board of supervisors in the levying of a special assessment tax for the purpose of meeting bonds issued under the Eoad District Improvement Act of 1907, in the absence of a showing that a hearing was denied property owners before the board.</p> <p>Id.—Declaration op Completion op Work — Failure to Verify — Irregularity.—Failure on the part of the superintendent of streets and contractor to verify the declaration of the completion of the work, as required by section 10 of the Bead District Improvement Act of 1907, amounts to but an irregularity which does not affect the jurisdiction of the board of supervisors, nor the substantial rights of the property owners.</p> <p>Id.—Road Bonds—Transfer op Money for Payment—Discretion.—■ The transfer or failure to transfer money from the county road funds to the special funds for the payment of road bonds under the Road District Improvement Act of 1907 is purely within the discretion of the board of supervisors.</p>

<p>Promissory Note—Construction of—Interest.—Where a promissory note provided for payment in installments of “$1000 on or before October 27, 1912, with interest at the rate of 7% per annum, payable at maturity; the sum of $2000.00 on or before one year; the sum of $2000.00 on or before two years; the sum of $220(5.00 on or before three years, with interest at the rate of 7% per annum, payable semi-annually,” interest should be allowed on the whole sum, and the contention that the second and third installments were not to bear interest cannot be maintained.</p> <p>Id.—Punctuation.—Punctuation, at best a most fallible guide, is always subordinate to the text and is never allowed to control its meaning.</p> <p>Contracts—Bule of Construction.—Where one construction would make a contract unusual and extraordinary, and another construction, equally consistent with the language employed, would make it reasonable, fair, and just, the latter construction must prevail.</p>

PROCEEDING- in Certiorari originally instituted in the Supreme Court to review an award of the Industrial Accident Commission of the State of California. Award annulled. The facts are stated in the opinion of the court.

<p>Appeal—Order Denying New Trial—Dismissal—Section 963, Code op Civil Procedure.—An appeal attempted to be taken from an order denying a motion for a new trial must be dismissed where the' notice was filed after the amendment of 1915 to section 963 of the Code of Civil Procedure.</p> <p>Contract—Construction op—Deed on Sale Under Deed op Trust— Lack op Authority to Question.—Where a contract between the owners of an apartment house under construction and a furniture dealer provided that the latter should supply the furnishings for the house, and after it was finished should install a competent manager for the purpose of operating it until the property could be leased or sold and the furnishings sold upon terms satisfactory to the parties, the owner of the furnishings being given absolute control and management of the house during the continuance of the agreement, but to receive no compensation, and the owners of the house to be entitled to no rent, the net receipts from rentals of rooms to be divided equally and losses to be also borne equally, the instrument declaring that it-should not be construed as constituting a partnership, the contract did not give the owner of the furnishings any interest or estate in the real property, and he therefore was not in a position to question a deed by the trustee on a sale of the property under a deed of trust executed after the execution and recording of the contract.</p> <p>Trust Deed—Sale TJnder^—Trustee’s Deed—Recital of Default—■ Evidence.—Where a deed of trust provided that recitals in the trustee’s deed of default, publication of notice of sale, sale, and receipt of the purchase money, should be conclusive proof of the facts recited, as against the grantors, their heirs and assigns, and all other persons, a trustee’s deed containing such recitals is admissible in evidence to show that the title of the trustors had passed to the grantee under the deed, without independent' proof that the debtors were in fact in default, in an action to recover possession of the property.</p> <p>Id.—Rights of Third Persons—Transfer of Trustor’s Title.—The provision of a trust deed declaring the effect of recitals, or the recitals when made, cannot operate to affect the pre-existing interest of a third party claiming adversely to the trustor,, and a deed executed by the trustee does not, by virtue of its recitals, carry to the grantee any better right or title than the trustor had when he executed the deed of trust.</p>

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

<p>Appeal — Insufficient Becord — Section 963c, Code of Civil Procedure.— Where appellants on an appeal taken under section 953a et seq., of the Code of Civil Procedure, from' a judgment against them, state in their brief that the action was brought to recover damages for the breach of a written contract and claim that the complaint fails to allege nonperformance of any act which they had undertaken to perform, but do not set out any part of the complaint and only a single disconnected clause of the contract, there is a total failure to comply with section 953c of said code.</p>

<p>The facts are stated in the opinion of the court.</p> <p>William Ellis Lady, Parke Godwin, and A. D. Orme, for Appellant.</p>

<p>Appeal—Order Denying New Trial—Section 963, Code-of Civil Procedure.—Under section 963 of the Code of Civil Procedure, as amended in 1915, an appeal from an order denying a motion for a new trial is unauthorized.</p> <p>Quieting Title—Evidence—Burden of Proof__In an action to quiet title the plaintiff must show title in himself, and his right to recover must rest on the strength of his own title, instead of the weakness of the defendant’s title. i</p> <p>Judgment—Decree of Distribution—Effect of.—A decree of distribution in the estate of a deceased person made by the superior court sitting in probate is conclusive only as to the rights of heirs, legatees, or devisees, in so far as they claim in such capacities; it merely determines the succession of such title as the "decedent may have had—it does not determine that he had any title, nor does it bind third parties who claim an interest adverse to that of the testator or intestate.</p> <p>Id.—Failure to Prove Title.—In an action to quiet title, where the plaintiffs fail to show that they themselves had any title or interest whatever in the property, or that they had ever been in possession of it, merely offering in evidence a decree of distribution in the estate of a deceased person by which the property in controversy was distributed to them, and not offering any evidence of title in the decedent," they are not aggrieved by a judgment declaring the defendants to be the owners of the property under a tax deed through which the latter deraigned title from the state.</p>

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

<p>Water and Water Bights — Conveyance of Portion of Biparian Bands—Preservation op Biparian Bights.—Biparian rights of lands bordering a stream can be preserved, as between the parties, in parcels of the land which do not border upon the stream when, by the conveyance, they are severed from the original riparian tract.</p> <p>Id.—Bights of Other Biparian Owners.—The owner of the larger riparian tract has the right to convey part of the riparian right to his grantee, and such grantee, although the lands granted have no contact with the stream, may take water thereto under the common law of riparian rights, by virtue of the stipulation in the transfer from the owner • of the riparian tract of which it was formerly a part, as against a lower claimant upon the natural stream, who had no part in the stipulation and who is a stranger to the transaction. ,</p> <p>Id.—Nature of Bight.—The right to the flow of water is inseparably annexed to the soil, and passes with it, not as an easement or appurtenant, but as a parcel. Use does not create, and disuse cannot destroy or suspend it.</p>

<p>Promissory Notes—Presentment—Sections 3130, 3131, Cito Code. There is no necessary connection between sections 3130 and 3131 of the Civil Code, the latter dealing only with presentment “when necessary,” and presentment is not necessary to charge a maker of a note, while section 3130 et seq. applies only to the indorser.</p> <p>Id.—Ability and Willingness to Pay at Particular Place—Insufficient Finding.-—Where a promissory note was made payable “at San Diego, California,” and it was found that the maker prior to maturity of the note deposited with a certain firm in said city a sufficient sum to pay the note at maturity, in the absence of a finding that the maker resided with the firm with which the money was deposited or had his place of business there, the finding is insufficient to show ability and willingness to pay the note at the specified place, even if section 3130 of the Civil Code applies to the ease.</p>

<p>Negligence—Pleading—Operation op Vehicle—General Allegation. It is the established law in this state with respect to allegations of negligence by one operating a ear or other vehicle, that it is sufficient' to aver that he operated the same in a manner so negligent that it struck the plaintiff and injured him, and that the exact manner of the injury need not be otherwise described.</p> <p>Id.—Operation of Different Vehicles.—The same rule in pleading negligence applies in such a ease, where two persons, in operating their respective vehicles, are concurrently guilty of negligence causing the accident, as in the case of one person.</p> <p>Id.—Damages—Hospital Treatment—Liability for—Evidencc.—In an action for damages for personal injuries based on negligence where one of the items of damage was the expenses of plaintiff’s treatment at a hospital, evidence of the reasonable charge for the service was admissible, although there was no direct evidence of any contract to pay for such treatment, as the law, in the absence of evidence to show gratuitous service, would imply an agreement to pay the reasonable value.</p> <p>Id.—Evidence—Leading Questions.—The trial court has a large discretion in allowing leading questions, which will not be disturbed on appeal, in the absence of anything to indicate an abuse of such discretion.</p> <p>Id.-—Instructions.—In an action for damages for personal injuries alleged to have been caused by the negligence of the defendants, each of whom was driving an automobile which collided with the other and one of which struck plaintiff, causing the injuries eoihplained of, an instruction to the jury contained a palpable error which declared that it was the duty of both defendants to use ordinary care in operating their automobiles at the time, and that “if both, or either, fail to exercise such care, then they were guilty of negligence,” as the one who did not fail to- exercise care would not be guilty of negligence; but where the instructions as a whole show that the use of the plural in the last part of the quoted clause was a mere inadvertence, and that the jury was repeatedly instructed that neither defendant could be charged with damages unless that particular defendant had been guilty of negligence proximately causing the injury, the error could not have prejudiced, the defendants.</p> <p>Id.^Right of Way—Construction of Instruction.—Where the accident in such a case occurred - at the intersection of two streets which one defendant was approaching from the south on one street and the other from the west on the intersecting street, an instrue- ' tion that if a named defendant was approaching on the street going northerly toward the intersection, “then, all other things being equal, she was entitled to- the right of way” in passing the intersection, as against the other defendant approaching from the west, was not erroneous in using the words “all other things being equal,” as they practically mean the same thing as the statute, which declares that where two persons approach an intersection on different streets, the one approaching from the right has the right of way; nor did the court err in refusing to give an instruction to the effect that the provision of the statute did not apply, except' when the two were approaching the crossing simultaneously at or near the same time.</p> <p>Id.—Violation of Law.—In such a case there was no error in an instruction that one who operated his vehicle in violation of the express provision of the law was guilty of negligence in so doing.</p> <p>Id.—Obstruction of View—Limit of Speed.—Where the evidence was undisputed in such a case that the view of each defendant as he approached the comer of the intersection of the streets was obstructed by a church, it was not error for the court to state to the jury that if either defendant approached the intersection at the place in question at a greater speed than ten miles an hour, such defendant was negligent in operating such vehicle at such speed, as the court is allowed to state the testimony on matters of fact on which there is no dispute, and the law fixes the speed limit under such circumstances at ten miles per hour.</p> <p>Evidence—Preponderance of Evidence—Definition.—In civil cases a preponderance of evidence is all that is required, and by a “preponderance of evidence” is meant such evidence as, when weighed with that opposed to it, has more convincing force, and from which it results that the greater probably is in favor of the party upon whom the burden rests.</p> <p>Id.—Failure to Show Error.—In such an action where complaint is made of the action of the court in drawing á line upon a map introduced in evidence, showing the relative location of the streets involved in the controversy, and in refusing certain instructions relating to the particular conduct of the defendants, respectively, immediately preceding the collision, in the absence of evidence printed in the briefs sufficient to enable the court on appeal to determine the questions, the objections will not be considered.</p>

<p>APPEAL from an order of the Superior Court of San Mateo County directing the executors of the estate of a deceased person to sell property of the estate and out of the proceeds to pay a certain amount alleged to be due upon an annuity. Geo. H. Buck, Judge. Reversed.</p> <p>The facts are stated in the opinion of the court.</p>

<p>■Contract—Public Work — Bond for Labor and Material — Construction.—Statutes requiring bonds for the protection of persons dealipg with contractors on public work are different in their purpose and effect from acts for the establishment and enforcement of mechanics’ liens, and the reasons for giving a limited construction to the latter are not applicable to the former.</p> <p>Road District Improvement Act — Construction — Claim for Supplies.-—A claim for hay, grain, and other supplies furnished to a subcontractor for feeding and maintaining horses and mules used in the performance of a contract for road work done under the “Road District Improvement Act of 1907” (Stats. 1907, p. 806), can be maintained in an action upon a bond accompanying the contract, the bond requiring payment for “materials furnished for or in doing of t'he work,” irrespective of the presence or absence of the word “supplies.”</p> <p>I'd.—Constitutionality of Act.—The provision of the Boad District Improvement Act requiring the contractor to give a bond is not unconstitutional.</p>

<p>The facts are stated in the opinion of the court.</p> <p>John Ralph Wilson and Charles B. Morris, for Petitioner.</p>

<p>The facts are stated in the opinion of the court, ' ,</p> <p>C. H. Sooy, H. W. Glensor, and Aitken, Glensor & Clewe, for Appellants.</p> <p>L. C. Pistolesi, Charles A. Shurtleff, and J. G. De Forest, for Respondents.</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.—Rescission—Material Misrepresentations—Findings of Fact— Appeal.—In an action for the rescission of an alleged fraudulent sale of a business consisting of placing registers in certain hotels and receiving t'he profits from the sale of advertising space therein, findings of the trial court, based upon sufficient evidence, that defendants knowingly and falsely represented to plaintiffs that the business in the territory covered had for some years netted them over a certain…

<p>Trust Deed—Attorneys’ Fees on Foreclosure—Amount and Priority of Payment.—Where a judgment foreclosing a trust deed on property which had been and was to remain in the hands of a receiver until sold by him as a commissioner provided for payment forthwith of a certain amount for attorneys’ fees in conducting the sale and confirmation thereof, a further provision in the judgment setting aside a certain amount to pay, among other expenses of litigation, attorneys’ fees for subsequent services, does not limit the balance allowable for attorneys’ fees t’o the amount so set aside; and where the trust deed authorized the trustee to employ counsel and made proper expenses a charge upon and payable out of the trust estate, the mere sequence of payment ordered by the judgment. of claims subordinate to such proper charges would not give the claimant a vested right in the funds as against these proper charges.</p>

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

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

<p>APPEAL from a judgment of the Superior Court of Sacramento County. Peter J. Shields, Judge. Affirmed.</p> <p>The facts are stated in the opinion of the court.</p>

<p>APPEAL from a judgment of the Superior Court of Fresno County. H. Z. Austin, Judge. Reversed.</p> <p>The facts are stated in the opinion of the court.</p> <p>Everts & Ewing, South & Ross, and W. E. Simpson, for Appellant.</p>

<p>PROCEEDING in Certiorari to review an award of the Industrial Accident Commission. Award annulled.</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>Water and Water Bights—Amount Seasonably Necessary for Irrigation—Sufficiency of Finding.—In an action by owners of lands riparian to a river to determine the extent of the right of the defendant to divert waters therefrom, a finding declaring, in effect, that for more than five years next preceding the commencement of the action the defendant has continuously, openly, and uninterruptedly and adversely to the plaintiffs and to all the world appropriated, taken, and diverted from the river into and through its canals, water to the extent of two hundred cubic feet per second when there was sufficient water in the river to furnish that amount, and when the water in the river was insufficient, has taken, diverted, and appropriated all the waters flowing in 'the river, and that such water has been distributed, rented, sold, and used for the purpose of irrigating a large body of land, and that the same and the whole thereof has been and is ¡reasonably necessary for the due irrigation thereof, is a sufficient finding on the issue tendered by the complaint that “one hundred cubic feet of water flowing per second is all the water which was or is reasonably required for the irrigation of all the lands irrigated from or under defendant’s said canals.”</p> <p>Id.—Determination of Amount Beasonably Necessary—Bights of Appropriator—Prescription—Bule.—In such an action, in determining how much of the water in fact used had been reasonably necessary for the purposes for which it was used, a court should be liberal with the appropriator to the extent at least that it should not deprive him of any portion of the amount of water that he had in fact used for the period necessary to gain title by prescription, unless it is clearly and satisfactorily made to appear that he has used more tham was reasonably necessary.</p> <p>Id.—Diversion of Water from Fresno Biver—Amount Beasónably Necessary for Irrigation—Finding—Sufficiency of Evidence.— In this action by riparian owners to determine the extent of the right of defendant to divert waters from the Fresno Biver, it is held the finding that wafer to the extent of two hundred cubic inches per second was reasonably necessary for the irrigation of the lands served by defendant’s system of canals is supported by the evidence.</p> <p>Evidence—Qualifications of Expert—Discretion.—Whether a witness is qualified as an expert is to be determined in the first instance by the trial court, and in so deciding it has a wide range of discretion.</p>

<p>Partnership — Recovery por Materials — Contract With Alleged Partner—Existence op Partnership—Finding not Sustained by Evidence.—In this action against an alleged copartnership to recover for material furnished to one of the alleged partners, it is held the finding of the existence of a copartnership is not* sustained by the evidence.</p>

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

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

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

<p>Pleading—Action to Cancel Notes—Parties—Joinder.—The several makers of their respective promissory notes cannot join in one action to cancel the notes on the ground that they were procured by fraud, so as to avoid a multiplicity of suits, notwithstanding their several causes of action are against the same defendant, where the promises which induced the execution of the notes were made to each maker and at a different time, and the proof of each promise must of necessity be distinct, independent, and not determinative of any other.</p> <p>Id.—Parties Having Separate Causes op Action Against Same Dependant — Joinder.—Parties having separate causes of action against the same person, all claiming under the same rules of law, do not have a common interest which’ justifies the joinder of all in one action to obtain the separate relief to which they may be entitled.</p>

PROCEEDING in Mandamus originally instituted in the Supreme Court to compel the Secretary of State to issue a certificate of nomination to petitioner as party candidate for member of the assembly. Dismissed. The facts are similar to those stated in the opinion in Heney v. Jordan, ante, p. 24, [175 Pac. 402]. Sullivan & Sullivan and Theo. J. Roche and Cullinan & Hickey, for Petitioner.

APPEALS from judgments of the Superior Court of the City and County of San Francisco. J. M. Seawell, Judge. Affirmed. The facts are similar to those stated in the opinion of Sam, Francisco Theological Seminary v. Monterey County .Gas and Electric Co., ante, p. 166, [175 Pac. 693].

<p>Estate op Deceased Person—Will—Trust—Annuities—How Payable.—In this matter it is held, for the reasons stated in S. F. No. 8821, p. 793, supra, that the order appealed from was erroneous.</p>

<p>APPEAL from a judgment of the Superior Court of Los Angeles County. Frank G. Finlayson, Judge. Reversed.</p> <p>The facts are similar to those stated in the ease of Dillingham et al v. Welch, ante, p. 656, [178 Pac. 512].</p>

, G. W. Nicol, Judge. Affirmed. The record and the points made for reversal are the same as those made in the case of People v. Rollins, ante, p. 793, [179 Pac. 209].