Volume 18 — California Appellate Reports

<p>Criminal Law — Inebriety—Affidavit for Arrest—Sufficiency— Habeas Corpus.—An affidavit for arrest, under section 2185c of the Political Code, enacted in 1911 (Stats. 1911, p. 396), which states that the person to be arrested “is so far addicted to the intemperate use of stimulants as to have lost the power of self- , control; that by reason thereof said person is a fit subject for commitment to a state hospital for the care and treatment of the insane, and ought to be confined therein as an inebriate, under the provisions of section 2185c of the Political Code,” corresponds substantially with the language of the statute, and cannot be held so deficient in showing that he belongs to a class contemplated thereby as to entitle him to be discharged on habeas corpus. f</p> <p>Id.—Loss of Self-control—Pact Inferred from Pacts Observed—. Matter of Knowledge or Observation.—The loss of the power of self-control and the intemperate use of stimulants are facts, though the knowledge of them may be the result of inference from other known facts; but they are so intimately connected with the observation of the appearance or conduct of the person as to be properly placed within the category of knowledge or observation, , rather than of opinion. They do not require the exercise of judgment so much as the faculty of perception.</p> <p>Id.—Opinion as to “Inebriety” Deduced from Pacts Observed— Ultimate Fact—Exception as to “Matter of Opinion.”—If the statement in the affidavit .of arrest that the accused is an “inebriate” is to be regarded as the statement of an opinion, it is merely the statement of an ultimate fact, deduced from facts observed as to the habits of the accused as to “intoxication,” and if the conclusion as to the ultimate fact involves matter of opinion, it falls within an exception to the general rule as to “matter of opinion” as thoroughly established as the rule itself.</p> <p>Id.—Bight of Admission to Bail Pending Examination—Showing of Danger to Safety Bequired.—Unless there is an affirmative showing of danger to the safety of one or to society in allowing the accused to be admitted to bail, he is entitled, under section 6 of article I of the constitution, to be admitted to bail until a hearing and examination can be had.</p>

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

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

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

<p>Action to Quiet Title—Findings—Support op Judgment—Title Under United States Patent—Void Tax Sale op Public Domain.—In an action to quiet title by a plaintiff, alleging ownership in fee under a United States patent, in pursuance of a homestead entry made June 1, 1897, as against a defendant claiming a tax title under the state, by a sale of the public domain for taxes of the year 1895, where the findings cover all of the issues presented, it is held that the judgment for the plaintiff follows logically and necessarily from the facts found; that the tax sale of the public domain is void under the law, and that the finding as to plaintiff’s ownership in fee is of an ultimate fact, sufficient to support the judgment.</p> <p>Id;—Absence op 'Conflict in Findings—Construction op Uncertain Findings—Presumption as to Absent Finding,—It is held that there is no conflict in the findings, when taken together; and that any uncertainty in the findings is to be construed so as to support the judgment rather than to defeat it; and that if it were the fact that the findings do not cover all of the material issues, in the condition of the record, it would be presumed that any omission therein was .without prejudice; though it is held' that the findings do cover all of the essential allegations of the pleadings.</p> <p>In.—Judgment Quieting Title Against Void Tax Title—Refunding of Taxes Paid not Required.—It is held that it was not error for the trial court to render a judgment for the plaintiff quieting his title, as against the void tax title held by the defendant, without requiring the plaintiff to pay to the defendant the amount that iwas paid for the property at the tax sale. The state had no right to assess taxes on the land of the United States, and a tax titlq thereunder could convey no title to the state, and it could convey none to defendant. The taxes paid by him were voluntary and cannot be recovered; and he can claim no subsequent taxes, or lien therefor, which has not been acquired by him.</p> <p>Id.—Judgment Right upon Merits not Reversible for Immaterial New Evidence.—It is held that the judgment rendered by the superior court should be affirmed, and cannot be reversed and remanded for a new trial, upon a showing of evidence newly discovered pending the appeal which is stated to be upon information of a witness not produced, and shows that the evidence stated would be immaterial, upon a new trial, as it merely states that in 1895, when the public domain was assessed, a .homestead claimant was then in possession, which shows a title then in the United States, which was not subject to taxation by the state. The law in force at the time of the assessment must govern.</p>

<p>Specific Performance—Contract to Adopt Child as Heir—Equitable Ownership of Estate.—Where the parents of a daughter four years old agreed with its childless widowed aunt to surrender to her all control of the child, under a written contract that, in consideration thereof, she would adopt, rear and educate it as her own child and make it her heir at law, so that it would inherit her property at her death, and the parents performed all on their part, and the child became and remained in her aunt’s home as her daughter, and performed all the duties of a daughter in her home, until married, after which she still held her relations toward the aunt as her mother, until her death, about twenty-four years from the date of the contract, a court of equity will enforce specific performance of the contract, as against collateral heirs, and decree her to be the equitable owner of the estate as against them.</p> <p>Id.—Special Ground for Belief in Equity—Adequate Compensation not Estimable.—The surrender of their child on the part of the parents, the presumed detriment to the plaintiff from the severing of the paternal ties, and the love, obedience and companionship given to the aunt, followed by the relationship assumed between them, consisting of numerous and nameless delicate services and attentions, cannot be measured in gold. The law furnishes no standard by which the value of such services can be estimated, and equity can only make an approximation in that direction by decreeing the specific execution of the contract.</p> <p>Id.—Presentation of Claim Against Estate not Required—Enforcement of Equitable Ownership—Transfer of Title.—It was not necessary that the complaint should show that, before the filing thereof, the plaintiff presented a demand or claim for the property to the administrator. Sections 1493 and 1500 of the Code of Civil Procedure, as to the presentation of claims, have no reference to an action for specific performance, in which it is not claimed that the estate is indebted to plaintiff, or that she holds any claim payable out of the estate in the course of administration; but that plaintiff is the equitable owner of the whole residue of the estate, and as such entitled to a conveyance from those having the legal title.</p> <p>Id.—Administrator as a Party — Ordinary Rule — Injunction.— Ordinarily, it is not necessary or proper that the administrator should be a party to such an action; but it is held that, in this case, ’the administrator was a proper party to the present action, in order to enjoin him from paying or delivering any part of the estate to the collateral heirs, who are defendants to the action.</p> <p>Ib.—Accrual of Cause of Action—Death of Aunt—Absence of Laches.—The cause of action, involved in the action for specific performance of the contract of heirship, did not accrue until the date of the death of the adopting aunt. The adoption was not the cause of action, but merely the means of obtaining the property left at her death. Where the action was brought within two years from the date of her death, and in time to enforce specific performance of the contract of heirship before distribution of the estate, the action is not barred by limitation nor by laches. Mere delay for a period of time less than the statute of limitations does not constitute laches.</p> <p>Id.—Loss of Written Contract—Mutilated Copy—Parol Evidence of Contents.—Where the agreement between the aunt and plaintiff’s parents was executed in duplicate, and both copies were left with the aunt, and at the time of her death only one mutilated copy was found, disclosing the signatures of the parties and the names of the witnesses, but containing little of the substance of the agreement, and the other copy could not be found after diligent search, the evidence was sufficient to establish the loss and to admit parol evidence of its contents.</p> <p>Id.—Competency of Witness to Contents—Parents of Plaintiff— Administrator as Party.—The cause of action not being upon a claim against the estate of a deceased person, within subdivision 3 of section I860 of the Code of Civil Procedure, the parents of the plaintiff, the father of whom was the administrator of the estate of the deceased aunt, not a necessary party to the action, were competent to testify to the contents of the lost and mutilated instrument.</p> <p>Id.—Proper Testimony of Plaintiff.—The plaintiff was properly permitted to show that she performed the obligations and duties devolving upon her as the daughter of the deceased, not as a mere stranger, but in reliance upon the status of mother and daughter which she believed to exist, and that her belief was justified by the conduct and representations made to her by the deceased.</p> <p>Id.—Other Competent Testimony — Conversations, Conduct and Actions of Aunt—Construction of Contract.—It was proper to prove by witnesses, including the depositions of witnesses properly taken, conversations, conduct and actions on the part of the aunt, which tended to show that she construed the agreement as creating the relation between her and the plaintiff of mother and child by adoption.</p> <p>Id.—Answer Properly Stricken Out—Alleged Fraud of Plaintiff and Her Father^Fabrication of Testimony.—Where the answer properly took issue upon the alleged agreement, an averment therein that plaintiff and her father had conspired together in fabricating testimony to prove the existence of the alleged contract, knowing that no such contract had been made, was properly stricken out.</p>

<p>Writ of Review — Certification of Transcript by Judge—Appeal Under New Method—Omission of Requested Papers—Jurisdiction.—The only thing which a judge of the superior court is required to certify as a transcript on appeal under the new practice, in lieu of a bill of exceptions, is the stenographer’s notes of the trial, containing the proceedings and evidence which would form no part of the record unless authenticated as the statute requires. The court in signing such a transcript does not exceed its jurisdiction in omitting papers requested by the appellant which appear to be irrelevant; but if the fact were otherwise, and the requested papers should have been inserted, the court did not exceed its jurisdiction in signing such transcript as in its opinion is correct; ' and a writ of review will not lie on account of such omission.</p> <p>Id.—Office of Writ of Review.—The writ of review only lies where an inferior court or tribunal has acted without jurisdiction; and there is no other speedy and adequate remedy.</p>

<p>APPLICATION for discharge upon writ of habeas corpus.</p> <p>The facts are stated in the opinion of the court.</p>

<p>San Francisco Charter—Classification of Clerical Service—Duties of Office—Improper Basis of Salaries—Rescission—Mandamus. The charter of the city and county of San Francisco requires the clerical service thereof to be based upon the duties to be performed by the clerks as classified by departments, and a classification by salaries is unauthorized by the charter. Where the municipal civil service commission had made an improper classification of the clerical service, by salaries, they were justified in rescinding the same and restoring a former classification as authorized by the charter; and a writ of mandate will not lie to compel the commissioners to restore the list of eligible» based upon an examination held under the classification by salaries.</p>

<p>Criminal Law—Order Denying Arrest of Judgment—Review upon Appeal.—An order denying a motion in arrest of judgment in a criminal case is not appealable, but it may be reviewed upon appeal from the judgment.</p> <p>Id.—Crime Under Act for Protection of Stockholders—Scope of Title.—A provision for the punishment as a crime of enumerated acts that may result in deceiving the stockholders of a corporation or others dealing therewith comes within the general scope of the title of “An act to protect stockholders and persons dealing with corporations in this state.”</p> <p>Id.—Title of Amendatory Act—Germane Amendment—Penal Provisions.—An amendment to a valid law need not more fully state the subject of the amended statute than it is stated in the valid statute amended. The title of the act of March 22, 1905, entitled, “An act to amend ‘An act to protect stockholders and persons dealing with corporations in this state,’ approved March 20, 1878,” sufficiently expresses the subject matter of the amendment notwithstanding the body of the act as amended is wholly penal in its provisions.</p> <p>Id.—Constitutionality of Amendatory Act.—Though, if the amendatory act of 1905 would, if passed as a new act, be invalid under the ’ present constitution, yet it is nevertheless valid, since the original act of 1878 was valid under the former constitution, and since the amendatory act recites the original valid act, of which it is amendatory, and re-enacts the act as amended in full. This is a sufficient compliance with the constitution, both as to the title of the amendatory act and as to the manner of amending the original act.</p> <p>Id.—Conviction of Crime Charged—Fraudulent Prospectus of Oil Company—Motion to Arrest Judgment Properly Denied.— "Where the crime charged under the amended act was the publication by the defendant as secretary and manager of an incorporated oil company of a willfully false and exaggerated report, prospectus, account and statement of the operations, values, business and expenditures, and prospects of said oil company, with the intent to defraud the public and persons generally, the information therefor is sufficient, and after a verdict of guilty, upon sufficient evidence, a motion in arrest of judgment was properly denied.</p> <p>Id.—Evidence—Admission of Entire Prospectus—Appeal to Public to Take Stock—Falsity—Fraudulent Intent.—Where the published prospectus is set forth in full in the information, and the intent to defraud was charged in accordance with the statute, and in its intent it was well calculated to induce persons who might read it te purchase stock in the company, and was an appeal to the public to purchase stock therein, it was properly admitted in evidence as a whole, which, when taken in connection with evidence of the falsity of the matters therein alleged to be untrue, tended to show that the false portions thereof were published with intent to defraud the public, and persons who might be induced thereby to invest in the stock of the company.</p> <p>Id.—Claim of Oil Land—Proof of Falsity—Prior Affidavits as to Grazing Purposes—Applications from State.—Where the prospectus stated that "this land is made up of more certain indications of oil than any other field in the state,” evidence is admissible as tending to show the falsity of that statement that, prior to the prospectus, applications were made to purchase lands from the state, included therein, in connection with which defendant swore that the lands were principally adapted to grazing purposes; and the applications were admissible as part of the res gestae of the making ef the affidavits, in order to show that the affidavits were statements of material matters made upon an oath authorized as required by law.</p> <p>Id.—Cross-examination of Defendant—Matters not Testified to in Chief—Error Without Prejudice.—Upon cross-examination of the defendant as to matters not testified to in chief,—concerning prior mineral locations which were fragmentary evidence, having no effect on the case; and concerning additional development work, which could only be of service to the defendant; and concerning his signature to an affidavit of grazing lands which had been fully proved in the case; and concerning a corrected letter admitted on eross-examination which was an immaterial substitute for the original admitted in chief,—there was no prejudicial error as to any of such matters.</p> <p>Id.—Effect of "Amendment to Constitution Enquiring Substantial Injury to Appear from Error.—The recent amendment to the constitution, known as section 42 of article VI of the constitution, providing that no judgment shall be set aside or new trial granted in a criminal case for any error, “unless after an examination of the entire cause, including the evidence, the court shall be of the opinion that the error complained of has resulted in a miscarriage ef justice,” requires at least that it must appear to the court affirmatively that the defendant has been injured in a substantial manner by the error complained of.</p> <p>Id.—Injury not Presumed from: Error.—Under the amendment there can be no presumption of injury from the mere fact of error; but substantial injury as well as the error must be made affirmatively to appear.</p> <p>Id'.—Requested Instruction as to Affidavits for Grazing Purposes— Right to Publish Prospectus as to Oil—Request Properly Modified.—A requested instruction as to the effect of defendant’s affidavits for grazing purposes, which concluded with the following sentence: “If the defendant did in fact believe that there was oil and oil formations in said land, but there had been no mineral discovery actually made thereon, he, notwithstanding such belief, had a legal right to make an affidavit that such land was principally adapted for grazing purposes, yet, under such circumstances, he would have a legal right to subscribe, verify and publish a prospectus containing the statement that such lands contained oil and formations including oil,” was properly modified by striking out such sentence, as misleading, in* reference to the contents of the prospectus, and as argumentative and trenching upon the province of the jury.</p>

APPEALS from judgments of the Superior Court of Plumas County upon separate trials. J. 0. Moneur, Judge. The facts are stated in the opinion of, the court.

<p>Criminal Law—Explosion or Dynamite at Dwelling—Province or Jury—Support or Verdict.—Where the defendant was charged with the offense of the explosion of dynamite at a dwelling with intent to injure and kill an inmate, and was convicted thereof, the jury is the sole judge of all questions of fact, and its finding based upon evidence upon any controverted question is conclusive on this court. It is held, upon a statement of the evidence, that it is not only sufficient to support the verdict, but that it is persuasive, satisfactory and convincing as to the guilt of the defendant.</p> <p>Id.—SurnciENCY or Indictment por Explosion or Dynamite at Dwelling.-—An indictment under section 601 of the Penal Code, charging that defendant, on a specified date and in a specified county, “did willfully, unlawfully, feloniously and maliciously deposit and explode at, in and near a dwelling-house, being a tent-' house and place where human beings did then and there and theretofore usually inhabit, assemble and frequent, pass and repass, dynamite, Hercules powder, and other chemical compounds and explosives, with the intent then and there to injure Lu Smith, a human being, and that by means of said deposit and exploding of -said explosives, said Lu Smith was thereby injured and endangered,” sufficiently states the offense, and meets all of the requirements of the Penal Code, and a demqrrer thereto was properly overruled.</p> <p>Id.—Location or Tent-house—Identification or Crime—Protection prom Further Prosecution-—Proof of Particulars.—Though the location of thg tent-house might have been more definitely stated, yet, in so far as locality is concerned, it was sufficient under the indictment to aver that the offense was committed in the county. This, in connection with the name of the person injured, and the substantive averments of the crime, makes the identification thereof complete, which not only answers every purpose of good pleading, but would also protect the defendant from any future prosecution for the same offense, at the time set forth, at any place within the jurisdiction of the superior court of the county, upon which, under a plea of “once in jeopardy,” defendant may show the particulars of the former offense to identify the same by extraneous evidence.</p> <p>Evidence—Good Reputation of Defendant for Peace and Chastity —Proper Cross-examination—Hearing of Contrary Particulars.—Witnesses offered to show the good reputation of the defendant for peace and chastity were properly asked by the district attorney on cross-examination if they had not heard that the defendant, as a physician, had made a practice of committing abortions, and as to his having improper intercourse with women, and taking undue liberties with female patients. Such questions were , properly permitted by the court, as affecting the weight of the testimony as to defendant’s reputation.</p> <p>Id.—Rule as to Scope of Cross-examination of Character Witnesses.—The rule is that on cross-examination of character witnesses, they may be asked as to specific reports concerning the trait of character involved, if they have a tendency to establish the bad reputation, although they may not be sufficient for that purpose.</p> <p>Id.—Question Disallowed—Indictment of Defendant in Another County—Misconduct not Established—Presumption upon Appeal.—The fact that the court disallowed a question asked by the district attorney of a character witness for defendant whether he had not heard that the defendant was indicted in another county does not establish misconduct of the district attorney in asking it, in the absence of any showing that he asked it in bad faith. It must be presumed upon appeal, that the district attorney was conscientiously discharging his duty as he understood it.</p> <p>Id.—Limiting Number of Character Witnesses—Discretion not Abused.—It is held that the court did not abuse its discretion in limiting the number of character witnesses to thirteen, when no evidence was offered by the prosecution to impeach that reputation. There must necessarily be a limit to such inquiries, and it is for the court to prescribe it in such manner that it is not likely that any additional witnesses would add weight to the large number of uiiimpeaehed and uncontradieted witnesses introduced.</p> <p>Id.—Date of Illicit Relations Between Prosecutrix and Defendant —Impeachment on Cross-examination—Explanation on Redirect Examination.—Where the prosecutrix had stated on direct examination that her sexual intercourse with defendant began at Oakland in June, 1906, and she was impeached on cross-examination by her evidence before the grand jury that in April, 1906, defenclant, at his sanitarium, “did things that no physician should do with a patient,” she was properly allowed on redirect examination to answer the question, “What were these things ?” by way of explanation, and to state facts and circumstances tending to correct or repel any wrong impressions or inferences arising from the matter drawn out on cross-examination, though defendant’s case may be prejudiced thereby.</p> <p>Id.—Expressed Motive in Procuring Dynamite from Mine—Proper Evidence — Prior Self-serving Declarations — Hearsay. — The statement made by the defendant at the time when he procured the dynamite from a mine in Butte county, which was subsequently exploded at the tent of the prosecutrix, as to his then expressed purpose and motive in procuring it, it was admissible, as calculated to elucidate and explain the character and quality of the act, and so connected with it as to constitute one transaction. But prior self-serving declarations to third persons made several days before the visit to the mine, which were no part of the res gestae, were properly excluded as inadmissible hearsay.</p> <p>Id.—Inducement to Prosecutrix to Leave State—-Payment by Agent for Defendant—Circumstantial Proof—Question for Jury—Admonition.—The court properly admitted evidence that a woman named, who had no money of her own, paid $750 to the prosecutrix to leave the state before the trial of the defendant, and it is held that all of the circumstances proved warranted the reasonable inference that she was the agent of the defendant in inducing such departure from the state, and that the court properly submitted the whole of the evidence to the jury, with the admonition, “Unless you are satisfied from all the evidence in the ease that the defendant did cause or authorize the persuasion or disappearance of such witness, you cannot consider it as a circumstance against the defendant.”</p> <p>Id.—Proper Evidence of Witness Acquainted With Woman.—The evidence of a witness acquainted with such woman for several years, and who had opportunity to know the facts, was properly admitted to show her movements and financial condition, which were material and, relevant matters. In weighing such testimony, the court or jury should consider the means of knowledge of the witness, and all facts tending to illustrate his credibility and the weight of his testimony.</p> <p>Id.—Conspiracy—Circumstantial Evidence—Inference of Jury.—In proving a conspiracy, it need not be shown that the parties actually came together and agreed to enter into and pursue a common design. The existence of the assent of minds which is involved in a conspiracy may be, and from the secrecy of the crime usually must be, inferred by the jury from proof of the facts and circumstances which, taken together, apparently indicate that they are merely parts of some complete whole.</p> <p>Id.—Illicit Relations of Prosecutrix With Other Persons— Parentage of Child.—Where a child was shown to have been born from the prosecutrix, which she testified was the result of her illicit relations with defendant, who as a physician attended its birth, the court properly confined questions as to her illicit relations with other men to -a period of time bearing solely upon the question of the parentage of the child, as to which there was no contrary evidence. She could not be impeached by evidence of prior particular wrongful acts, not bearing upon such parentage nor questioned in relation thereto.</p> <p>Id.—Claim bt Defendant op Possession op Original Dynamite—Rebuttal—Evidence of Substitution.—Where the defendant claimed to have kept the original dynamite purchased at the mine and to have it on the premises, it is held that there was sufficient proof in rebuttal that the dynamite upon the premises was purchased since the explosion of the other dynamite at the tent of the prosecutrix, and was substituted therefor, and that such substitute was procured by an agent of the defendant acting in his behalf.</p> <p>Id.—Proper Exhibition op Child in Court by Prosecutrix—Province op Jury—Question of Similarity to Defendant.—The prosecutrix had the right to bring her child with her into court, and to have it in her arms when testifying to its paternity by the defendant. In view of the question as to its' paternity, it was proper to submit the child to the inspection of the jury, who were the judges as to whether or not it resembled the defendant, and unless such resemblance existed, its production in court would be in the defendant’s favor.</p> <p>Id.—Evidence—Generous Disposition of Defendant.—The court did not err in rejecting evidence as to the generous disposition of the defendant. Such incidental and remote traits of character are not involved in the proper evidence of character.</p> <p>Id.—Mental Condition op Prosecutrix—Inquiry not Restricted.— It is held that the superior court did not improperly restrict the cross-examination of the prosecutrix as to her mental condition, and that there was no restriction or denial of the defendant’s right to the broadest inquiry of witnesses as to her sanity.</p> <p>Id.—Evidence of Other Offenses—Connection With Offense Charged.—Whenever there is a clear and logical connection between two or more offenses and the offense charged, either as bearing upon the motive for that offense or as indicating the guilt of the defendant in committing the same, the evidence of such other offenses is admissible against the defendant.</p> <p>Id.—Offenses Indicating Motive.—Evidence of the illicit relations between the defendant and the prosecutrix and the parentage of the child were clearly admissible as bearing upon the motive of the defendant to commit the offense charged.</p> <p>Id.— Offenses Indicating Consciousness of Guilt of Offense Charged.—The offenses of subornation of perjury, and the preparation of false and substitute evidence to indicate the continuous possession of the dynamite which was exploded at the tent of the prosecutrix, and of inducing the prosecutrix to leave the state, and of defendant’s attempt to poison her after the commission of the offense charged, all indicate the defendant’s consciousness of his guilt of that offense.</p> <p>Id.—Written Statement of Prosecutrix for Use on Cross-examination—Error not Appearing.—No prejudicial error appears in the action of the court in declining to order the district attorney to deliver to defendant’s counsel a written statement of the prosecutrix prepared to be used on the district attorney’s cross-examination of the sheriff, when the sheriff was not asked concerning it, and it does not appear that he had seen it, nor was it demanded on the examination of the prosecutrix, and where, without reference to whether it could be used on cross-examination or not, its contents do not appear in the record on appeal.</p> <p>Id.—Foundation not Laid for Impeachment.—Where a document, in so far as it appears material, could only be used on cross-examination to impeach the witness, but no foundation was laid for such impeachment, he cannot complain of the court’s action in that regard.</p> <p>Id.—Defense of Alibi—Proper Evidence not Restricted—Opinion— Declarations not Part of Res Gestae.—It is held that the court did not restrict any proper evidence offered in support of the defense of alibi of the defendant when the explosion took place, but it properly sustained an objection to certain questions calling for the opinion or conclusion of the witness, and also properly excluded his declarations which were not part of the res gestae of the explosion which caused the injury, but -were made at a different time and place, which could in no way be considered a part of the transaction.</p> <p>Id.—Expert Evidence—Most Practical Way to Remove Rocks— Question for Jury.—A witness qualified as a mining engineer was properly held not thereby entitled to state from his experience “what would be the most practical way to remove those rocks” from defendant’s ground, for the reason that this was not the subject of expert testimony, but was a matter for the jury to determine from evidence explaining the situation as to the rocks.</p> <p>Id.—Secrecy of Defendant in Obtaining Dynamite from Mine— Province of Jury.—It is held that a question as to whether therq was “any secrecy” about the defendant’s “statements or movements or his actions in connection with the getting of the powder,” which was obtained from the mine, called for an inference or conclusion within the exclusive province of the jury.</p> <p>Id.—Request not to Tell “at Any Time.”—It is held that a question as to whether defendant said anything at the mine “at any time while he was there, asking you not to tell about giving the powder,” would not be admissible. The question should have been limited to B the time when defendant procured the dynamite.</p> <p>Id.—Argument of District Attorney—Wide Range to be Allowed.— In the argument of the district attorney before the jury, the range of discussion, illustration and argument is properly very wide. Matters of common knowledge and historical facts may be referred to and interwoven in such argument; and allusion may be made to the prevalence of crime and the duty of the jury. He may express his belief as to the guilt of the defendant, and that the facts are sufficient to convince anyone of his guilt.</p> <p>Id.—Allusion in Argument to People of State—Absence of Prejudice—Correction by Court.—Where the district attorney alluded in his argument to a law that is “equal for the rich and the poor,” the proper administration of which “will enjoy the confidence and deserve the reverence of the people of our state,” and then stated: “To-night the people of the state look here to you. They are not looking here to find out whether or not the defendant is guilty. They have conceded that he is. They are looking here to find out if a court of justice is to declare him so,”—it is held that if such remarks be considered improper, it must be presumed that any injurious effect was forestalled or removed by the ruling of the court that “that statement as to what the people or other persons think about it is to be disregarded by the jury.”</p> <p>Id.—Proper Instruction—Guilt Based upon Personal Act, or upon Being Accessory.—The court properly instructed the jury that “if you are satisfied from the evidence beyond a reasonable doubt and to a moral certainty that the crime charged in the indictment was directed, by the defendant, it- would be your duty to find him guilty. So, too, if you should be likewise satisfied from the evidence in the case that the explosive was deposited and exploded by some other person whose identity is unknown, and you should also be satisfied from the evidence beyond a reasonable doubt that the defendant was concerned in the commission of such crime as above explained, but that he did not directly commit the act constituting the offense, but aided and abetted in its commission, or not being present, advised and encouraged its commission, you should likewise return a verdict of guilty.”</p> <p>Id.—District Attorney not Required to Elect—Proper Indictment as Principal—Proof of Either Relation.—The district attorney is not required to elect whether he will prosecute or ask for a conviction upon the ground that the defendant is the principal or an accessory before the fact; but he may ask for a verdict if the evidence satisfies the jury under either alternative, if there is evidence that the crime was actually committed. Since the defendant can be charged in the indictment as principal, whether he actually committed the offense or was an accessory thereto before the fact, he can be justly convicted thereunder if the evidence shows that he acted in either relation.</p> <p>Id.—Absence of Error in Instructions or Tenable Ground of Reversal.—It is held that there was no error in the instructions of the court, and that there is no tenable ground for interfering with the verdict of the jury or with the judgment of the trial court.</p>

<p>APPEAL from a judgment of the Superior Court of Sonoma County. Emmet Seawell, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>APPEAL from an order of the Superior Court of San Joaquin County, changing the place of trial. Frank H. Smith, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Action by Second Husband of Child’s Mother Against Estate of Adopting Parent—Agreement for Compensation—Prima Facie Case—Improper Nonsuit.—In an action by the second husband of the mother of a child which had been legally adopted by the deceased, after the mother’s divorce from its father, and which had' been committed to the care of the mother and such second husband under an agreement for compensation, which action was brought for such compensation upon a rejected claim against the adopting parents’ estate, and in which the evidence for the plaintiff was sufficient to make a prima facie case for recovery, it was error to grant a nonsuit therein at the close of the plaintiff’s evidence.</p> <p>Id.—Effect of Legal Adoption—Termination of Parental Obligations—Legal Contract With Parents.—After the legal adoption of a minor child by another person the parental obligations of its natural parents cease to exist, and they are no more legally liable for the maintenance, support and education of such child than would be a perfect stranger. It follows that an adopting parent may contract with the natural parents, or with its mother and her second husband, to take care of, support and educate the child for compensation, as freely and legally as such a contract could be made by the adopting parent with a stranger to the blood of such child.</p> <p>Id.—Effect of Motion for Nonsuit—Legal View of Evidence.—A motion for a nonsuit at the close of the plaintiff’s evidence presents to the decision of the court to which it is addressed a question of law, pure and simple. It should be denied when there is any evidence to sustain plaintiff’s case, without passing upon the question of its sufficiency, or as to whether the court believes it or not. Upon such motion, the material facts which the evidence tends to prove must be assumed to be true; and if the evidence is fairly susceptible of two constructions, the court must take the view most favorable to the plaintiff; and if contradictory evidence has been given, it must be disregarded.</p> <p>In.—Application op Principles op Evidence to Nonsuit.—It is held that, applying the principles of evidence to the motion for a nonsuit, the evidence for the plaintiff must be taken as showing that the agreement for compensation was with the plaintiff’s husband as well as with his wife, the child’s mother; that the care of the adopted child cannot b'e presumed gratuitous; that an explanation of a payment of $1,100 made to the mother after receiving the' adopted child, not connected with compensation therefor, but in consideration of her relinquishment of a claim against a different estate, in which her mother and the adopting parent were interested, must be assumed as true; and that every favorable inference and presumption from the evidence must be taken as true; and that the non-suit cannot be sustained.</p> <p>Id.—Review of Errors in Evidence.—Errors in evidence cannot be reviewed upon an appeal from the judgment involving only the motion for a nonsuit, but may be reviewed upon appeal from an order granting a new trial.</p> <p>Id.—Evidence of Payment of Money After Cabe of Child Admissible on Cross-examination.—The court properly allowed evidence on the cross-examination of the plaintiff to show that the $1,100 had been received from the adopting parent by the mother after she received the’ care of the child for the purpose of an inference that it was received in payment therefor, though the answer may show a purpose foreign thereto.</p>

PETITION for Writ of Review to annul the action of the Superior Court of Los Angeles County. W. M. Conley, Judge. The facts are stated in the opinion of the court.

<p>Criminal Daw—Attempt to Commit Grand' Darceny—Nature and Proof of Crime Charged.—Under a charge of an attempt to commit grand larceny, when the animus furandi exists, followed by acta apparently affording a prospect of success, and tending to render the commission of the crime effectual, the accused/ brings himself within the letter and intent of the statute. "When there is a person from whom the property may be taken, an intent to take it against the will of the owner, and some act performed tending to accomplish it, the crime is committed, whether the property could in fact be taken or not.</p> <p>Id.—Nature of Attempt to Commit Crime.—An attempt to commit a crime, in general, involves an intent and endeavor to accomplish a crime, carried beyond mere preparation, and combined with an act which falls short of the thing intended. Mere intention to commit a specific crime does not of itself amount to an attempt to commit it; but there must be, in addition to the wicked intent, some act done toward its ultimate accomplishment.</p> <p>Id.—Support of Verdict for Offense Charged.—It is held, upon a review of the evidence, that it is sufficient to support the verdict of. conviction of the defendant of the crime of an attempt to commit grand larceny as charged in the information.</p>

<p>Replevin—Findings Supporting Judgment—Mortgage Rights of Appealing Intervenor—Conclusion of Law—Special Finding not Essential.—Where in an action for the claim and delivery of personal property the findings were for the plaintiff and against defendant and the bank, intervenor, and supported the judgment against them, and was also against the appealing intervenor, who claimed as the assignee of a mortgage made on the property -by a former owner, and who claimed the same rights in the personal property as affixed to the realty that were asserted by the bank, and who alleged that the bank is now the owner of the property, and' the court merely found, as a conclusion of law, that such intervenor “is not entitled to take anything by reason of his complaint in intervention,” and he appealed from the judgment on the judgment-roll, it is held that his claim that the judgment must be reversed for want of a special finding is without merit.</p> <p>Id.—Presumption on Appeal of Intervenor—Absence of Evidence— Waiver of Findings—Desertion of Issue.—It will be presumed on the appeal of the intervenor from the judgment, on the judgment-roll alone, that either the intervenor offered no evidence in support of the averments of his complaint in intervention, or if he did, that findings thereon were waived, or that the issue was deserted and required no finding.</p> <p>Id.—General Bule as to Intendments on Appeal in Support of Judgment.—The settled rule in this state is that where the appeal is from the judgment on the judgment-roll alone, and where the findings support the judgment, all intendments will be made in support of the judgment, and all proceedings necessary to its validity will be presumed to have been regularly taken, and any matters which might have been presented to the court below which could have authorized the judgment will be presumed to have been thus presented, if the record shows nothing to the contrary.</p>

<p>Action on Notes—Evidence—Special Defense—Conditions Indorsed —Immaterial Variance—Defendant not Misled.—Where two notes sued upon were on their face unconditional promises of the defendant to pay the principal sum, six months after date with interest, and their execution and delivery were not denied, but defendant had pleaded as a defense that each of them “was a conditional note, with certain conditions indorsed on the back thereof, which conditions have not been complied with,” and the face of such note was introduced in evidence, the defendant cannot insist that there was a material variance on plaintiff’s part in not offering in evidence the indorsements, since the defendant was not misled thereby to his prejudice, in maintaining his defense.</p> <p>Id.—Effect of Special Defense—Aides of Complaint.—The effect of the pleading of the special defenses to each of such notes was to aid the complaint in those particulars in which it is claimed that the complaint was defective in not pleading the notes in full, and to supply the omissions objected to.</p> <p>Id.—Indorsements of Conditions of Purchase of Mining Stock—Proof of Nonacceptance—Support of Finding of Surplusage.—Where .the indorsements on each of the two notes signed by the defendant were to the effect that, “this note is given to protect” the payee named “from loss on account of the purchase of 1,000 shares of Bed Star Gold Mining Co.’s Stock,” and the payee “has the option during the life of this note of surrendering this note and keeping the 1,000 shares of stock or surrendering the stock and receiving payment on the note,” it is held that a finding that such indorsements were “surplusage" is sustained by proof that the payee did not purchase or accept the shares of stock mentioned in payment of either of the notes.</p> <p>Id.—Legal Effect of Indorsements—Offer or Option to Accept Shares in Payment in Lieu of Coin—Effect of Notes not Changed.—Viewing the indorsements as having been assented to by the payees, the same can only be considered as constituting in legal effect a mere offer or option tendered by the maker to the payees to accept the number of shares of mining stock mentioned therein in payment of the notes in lieu of their payment in gold coin as called for by the notes. The writing indorsed could no more affect or change the nature of the face of the notes than if it had been committed to different pieces of paper unconnected with the notes.</p> <p>Id.—Election of Payee to Enforce Notes—Rejection of Option— Nugatory Effect upon Indorsements.—The election of the payees to enforce payment of the notes according to the face thereof would, without regard to the position of the writing, amount to a rejection of the option, and if the note and indorsements are taken together, upon the refusal of the payees to take the stock, the notes would immediately become unconditional promises according to their tenor, and the written indorsements became nugatory and of no effect as soon as the action upon the notes was commenced.</p> <p>Id.—Absence of Condition Precedent to Action on Notes.—Where the undisputed testimony shows that the payees had never received any shares of stock in the mining corporation, it appears that they had nothing to surrender as a condition precedent to their action upon the notes, which action of itself opera ied to surrender the bare right of option to take or acquire the stock.</p>

<p>Mandamus—Compelling Delivery op Water Sold—Written Provision Controlling Printed Part.—It is held that the plaintiff is entitled to a writ of mandate to compel the delivery of water sold, under a written provision in a contract with the defendant canal company, that the water should be delivered at the highest point on the north line of the section in which plaintiff’s land is situated, where it appears that the defendant has a lateral branch from its main canal extending to such highest point, and that such written provision is controlling, as against a mere printed provision, that the water should be taken from its main canal some miles distant from said section.</p> <p>Id.—Demurrer to Complaint Properly Overruled.—A demurrer to the complaint resting on such printed provision in the contract, relied upon by defendant, was properly overruled.</p> <p>Id.—Rule as to Partly Written and Partly Printed Provisions n<r Contract.—Where a contract is partly written and partly printed, or is written or printed under special directions of the parties to meet their intention, and the remainder is copied from a form originally prepared without special reference to the particular parties or contract in question, the written controls the printed portions. If the two are absolutely repugnant, the printed part must be disregarded.</p> <p>Ib.'—General Rules as to Construction of Contracts—Intention of Parties—Ambiguity—Explanation by Circumstances.—In construing a contract, the intention of the parties is to govern, and is to be ascertained from the writing alone, if possible. Where there is ambiguity or uncertainty, the contract must be interpreted in the sense in which the promisor believed at the time of making it the promisee understood it. The contract may be explained by reference to the circumstances under which it was made, and the matter to which it relates; and such circumstances, including the situation of the subject of the instrument and of the parties to it, may be' shown, so that the judge may be placed in the position of those whose language he is to interpret.</p> <p>Id.—Construction of Written Clause in Contract—Point of Delivery—Time of First Payment—Succeeding Printed Clause.— It is held that reading the entire instrument, and having in view the rules of interpretation, the written clause—“first payment to commence at such time as the water may be ready for delivery at the highest level on the north line of the northwest quarter of said section seven”—is to be- interpreted as indicating the point of delivery of water, as well as the time when payment for the water was to com; menee; and that a printed clause immediately following, indicating a different point of delivery, must, if repugnant thereto, be disregarded.</p> <p>Id.—Proper Evidence Admitted to Resolve Doubt.—It is held that any doubt as to the meaning of the terms of the contract has been satisfactorily resolved by the evidence rightly admitted for that purpose.</p> <p>Id.—Evidence Supporting Findings.—It is held that the evidence supports all of the findings made for the plaintiff and against the defendant as to the terms of the contract, as to defendant’s acquiescence in and confirmation of plaintiff’s construction thereof, as to defendant’s ownership and control of the lateral ditch constructed by defendant to carry water to plaintiff’s land, and its actual delivery through the same of all water paid for by plaintiff, and its ability to deliver all water through the same in compliance with its agreement. ■' . .</p>

<p>Landlord and Tenant—Bule as to Forcible Eviction from Substantial Part of Premises Inapplicable to Insignificant Part.—The rule that if a tenant is forcibly evicted by the landlord from a substantial part of the demised premises, and the lease is not terminated, there can be no apportionment of rent, and the tenant cannot be compelled to pay the rent reserved, and that an actual ouster is not necessary to constitute an eviction, since any act of the lessor which results in depriving the lessee of the beneficial enjoyment of. the premises will constitute an eviction, does not apply when it does not appear that the interference has resulted in depriving the lessee of a substantial, as distinguished from an insignificant or inconsequential, portion of the demised premises.</p> <p>Id.—Action for Bent—Possession of Lessee not Changed—Trespass upon Appurtenant Water Right—Damages—Rent not Extinguished.—Where it appears that the lessee sued for rent was at all times in the actual possession and occupancy of the premises and of the water rights appurtenant thereto, except that it is found that a comparatively small portion of the water was wrongfully taken with the knowledge and consent of the lessor, on or about April 1st of one year, and that the damage resulting therefrom could he measured in money was the sum of $40 only, which was deducted from the rent reserved, it is held that the act of interference amounted to no more than a mere trespass, and that there was no eviction from a substantial part of the premises that could extinguish the rent.</p> <p>Id.—Consistency of Findings—Mere Passing Trespass not Inconsistent With Possession.—Since no mere passing trespass amounts to an interference with possession, the finding that the defendant had the sole and exclusive possession of the demised premises and the appurtenant water rights is not in conflict with the finding that a third party named, with the knowledge and consent of the plaintiff, interfered with said water rights, to defendant’s detriment in a specified sum awarded to defendant, on one occasion only.</p> <p>Id.—Support of Finding as to Trespass—Conflicting Evidence—Respondent not Entitled to Relief.—It is held that, although there is some evidence urged by respondent which might have sustained a finding that the third person named had the right to divert a portion of the water for use on his land during defendant’s term as lessee, yet as there is some evidence supporting the finding that he was a trespasser, and not authorized to use any part of the water, this court cannot change the finding, and that the respondent, not having appealed, is not in a position 'to ask for such relief.</p>

<p>Criminal Law—Power of Court to Suspend Sentence for Maximum Term.—A court has power, under section 1208 of the Penal Code as amended in 1911, to place a defendant upon probation for the full maximum term of sentence provided for the offense of which he is convicted, and when a defendant is placed on probation without limitation of time, the same extends to such maximum term of sentence, and no longer.</p> <p>Construction of Statute—Power of Suspension not Limited by Failure of Court to Place Defendant in Care of Probation Officer.—It is held that the proper construction of the statute is that absolute power of suspending sentence is given by such section of the Penal Code as amended, and that where a court acts under the statute, within the limits thereof, such order of suspension is not invalidated because the court omits a duty imposed by law upon it to place the party in charge of a probation officer. The functions of the probation officer are not to hold the defendant in cus- ’ tody, but to exercise a supervisory control over his conduct as an arm or instrument of the court.</p> <p>Id.—Sentence not Intrusted to Probation Officer—Commitment upon Revocation of Suspension.—The legislative intent that no part of the sentence is included within the period of the probation officer’s surveillance is apparent when it is considered that upon the revocation of the original order of suspension, the law permits the commitment of the defendant for the full term of the sentence as originally pronounced. The statute confers the power of revocation and modification upon the court for any cause which to the court is good and sufficient.</p> <p>Id.—Revocation of Suspension Essential to Power of Commitment. T.he court having, by its judgment, suspended the execution of the sentence under the statute, and having jurisdiction so to do, the same became an operative judgment of court, and so remains until revoked or modified by an order regularly made; and in order that the court should possess the power to issue a commitment to one whose sentence had theretofore been suspended, a revocation or modification of the order of suspension is an essential prerequisite.</p> <p>Id.—Commitment by Justice of Peace—Affirmative Showing of Revocation of Suspension Required—Absence of Intendments. Where the order of suspension of sentence was made by a justice of the peace, no intendments can be made in favor .of a subsequent judgment of commitment made by Mm, under the sentence; but Ms jurisdiction to make it must affirmatively appear; and where the record does not disclose that any modification or revocation was ever made by the justice, the commitment by Mm was without authority of law, and the prisoner’s detention thereunder was unlawful.</p> <p>Id.—Habeas Corpus.—The commitment being invalid, the prisoner is entitled to be discharged from custody thereunder upon writ of habeas corpus.</p> <p>Id.—Code Provision not Conflicting With Executive Authority of Governor.—Section 1203 of the Penal Code, as now existing, regulating the suspension of sentences, and the power of commitment thereafter under the sentence, does not interfere in any way with the functions and duties of the governor of the state.</p>

<p>APPEAL from a judgment of the Superior Court of Los Angeles 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>Promissory Note—Consideration—Release of Maker as Surety on Contractor’s Bond by Owner—Liens—Subsequent Settlement. Where the owner of a building released the defendant from liability on the eontraetor’s bond in consideration of his note given at the time when there were mechanics’ liens under the contract, aggregating nearly three times the amount of the note, it was supported by a sufficient consideration, which was not affected by the subsequent fact that a settlement effected by the owner of the building with the lien claimants enabled the owner to secure the completion of the building at the original contract price.</p> <p>Id.—Compromise of Doubtful Claim—Sufficient Consideration.— The compromise of a doubtful claim is a valid consideration for a promise or a new contract; and where at the time of the giving of the promissory note sued upon, in consideration of a release of liability upon the bond, it was uncertain what the defendant’s liability upon the bond might be, the note was given and received in compromise of a doubtful claim, and is supported by a sufficient consideration.</p> <p>Id.—Finding Against Consideration of Note Unsupported.—It is held that the finding of the court, that the defendant 'as maker of the note received no consideration therefor, is unsupported by the evidence.</p> <p>ip.—Claim of Fraud in Note—Defense not Pleaded.—In order to support the claim that the note was procured by fraud, one relying thereon must specially plead the fraud, and it is a sufficient answer to such claim that no such defense was pleaded.</p> <p>Id.—Bond not Originally Void—Common-law Bond.—The claim that the bond was originally void as one given under section 1203 of the Code of Civil Procedure is held not supported by the record, but that the bond is clearly a valid common-law bond given for the protection of the owner.</p>

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

<p>Former Judgments Involving Validity of Trust—Action to Partition Trust Funds—Invalidity Involved—Estoppel.—Judgments in former actions, in one of which successors of a deceased trustee of an express trust were appointed, in a second of which the successor of a resigning trustee was designated, and in a third of which it was sought to obtain an accounting of trust funds and a partial distribution according to the terms of the trust, and in each of which the validity of the trust was necessarily involved and passed upon, are conclusive as an estoppel in a subsequent action to partition the entire funds between the claimants thereof on the ground - of the invalidity of the trust.</p> <p>Id.—Code Bulb as to Estoppel of Former Judgment.—The elementary rule as to the estoppel of a former judgment is stated in section 1911 of the Code of Civil Procedure: “That only is deemed to have been adjudged in a former judgment which appears upon its face to have been so adjudged, or which was actually and necessarily included therein, or necessary thereto."</p> <p>Id.—Plea of Former Judgments in Answer in Partition—Effect of Stipulation—Validity Expressly Adjudicated.—Where the judgment-rolls in. each of the former actions were set forth in the answer to- the complaint in partition, and it was stipulated between the parties that the judgment-rolls therein pleaded were properly set forth, it must be accepted as true as alleged in the answer that the existence and validity of the trust was put in issue and adjudicated in each of said actions.</p> <p>Id.—Record upon Appeal—Contest of Former Actions—Presumptions —Ground of Contest—Finding—Performance of Court’s Duty. Where the record upon appeal shows that each of the former actions was contested by appellant, it must be presumed, in the absence of any counter-showing, that they were contested on the ground of invalidity of the trust, and that the court expressly found in favor of its validity. It must be presumed that the court in the conduct of each of the actions performed its manifest duty to determine the validity of the trust which it sought to enforce, and to avoid any illegal or abortive act in enforcing a void trust.</p>

<p>Action to Quiet Title—Deed op Gift to Plaintiff—Delivery—Pre- ' sumption—Support of Finding and Judgment.—Where the plaintiff in an action to quiet title produces a deed of gift to her from the defendant, she has the right to rely upon the presumption of its delivery from the fact of her possession, unless overcome by counter-evidence; but where in addition to her own testimony as to its delivery, the presumption was also strongly fortified- by the positive testimony of a number of other witnesses, a finding of such delivery is amply supported by the evidence, and is sufficient to sustain the judgment rendered in her favor.</p> <p>Id.—Judgment for Life Estate in Defendant Within Jurisdiction—Title in Controversy—Pleadings.—Where, in the action to quiet title, the title was in controversy, and each party sought to quiet title, and to cancel a deed, and there is sufficient evidence, including the testimony of the plaintiff and defendant, • corroborated by correspondence, as well as by the terms of the deed of gift, making it evident that it was distinctly understood that defendant was to have the use and enjoyment of the property during his life, and that plaintiff was to have the fee subject to such life estate, the court had jurisdiction in equity to determine the true estates of the respective parties, and to find and adjudge the title in plaintiff, subject to such life estate, though not specially referred to in the pleadings.</p> <p>Id.—Whole Title in Controversy Inclusive of Part.—Since the whole of the title in controversy includes a part thereof, it cannot be said that the finding of a life estate in the defendant is entirely outside of the matter alleged in the pleadings of the respective parties in the action to quiet title as framed therein.</p> <p>Id.—Just and Equitable Judgment.—It is held that, accepting the facts found, as must be done under the established rule applicable to appellate tribunals, the judgment of the lower court as rendered for each party is not only amply sustained, but is eminently just and equitable.</p>

<p>Order Vacating Judgment by Default—Demurrer Under Order Extending Time to Answer—Good Faith—Judgment Without Notice—Proper Discretion.—Where, under an order extending time to answer, the attorney for the defendants filed a demurrer, and it is not disputed that he believed he had a right to file the same, and no objection was made by plaintiff when the demurrer was filed, but plaintiff’s attorney without notice procured an order striking out the demurrer and a judgment by default, and the motion to vacate the judgment by default was promptly made, and it was manifest that the plaintiff had suffered no injury, it is held the court by its order vacating the judgment by default, and permitting the defendants to answer, exercised its discretion in accordance with the soundest principles of justice.</p> <p>Id.—Misapprehension of Law—Power of Court to Relieve Parties for Mistakes of Attorneys.—In believing that the attorney for the defendant might demur after having taken time by order of the court to answer only, it is conceded that he was acting under a misapprehension of law. But courts have power under the provisions of section 473 of the Code of Civil Procedure to relieve parties from mistakes as to the legal effect of acts of their attorneys.</p> <p>Id.—Affidavit of Defendant Served With Notice of Motion.—An affidavit of one of the defendants served with the notice of the motion, though not embodied in the notice, sufficiently apprised the attorney for the plaintiff that such affidavit would be relied upon at the hearing of the proceeding, and it is held that this amounted to a substantial complianee with the provisions of section 1010 of the Code of Civil Procedure.</p> <p>Id.—Affidavit of Attorney for Defendants—Support of Order.—It is held that the affidavit of the attorney for defendants alone contains all essential facts necessary to sustain the order vacating the judgment by default.</p>

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

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

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

<p>APPEAL from an order of the Superior Court of Alameda County granting a motion to change the place of trial. F. B. Ogden, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

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

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

<p>Specific Performance—Contract Calling for Sufficient Title—Certificate Showing Encumbrance—Action not Sustainable.—A contract for the sale of land cannot be specifically enforced against the vendee where it provides that the seller upon payment “agrees to deliver a certificate of title showing the title to be vested in the seller and to execute and deliver to the buyer or her assigns a good and sufficient deed of bargain and sale,” if the certificate of title tendered showed an encumbrance existing against the land by deed of grant of the right of a third party to lay and maintain water-pipes through the land. The words “title vested in the seller” import necessarily a good title, which is free from encumbrance.</p> <p>Id.—Implied Condition in Executory Contract of Sale of Land—• Burden of Proof.—In every executory contract to sell land there is an implied condition that the title of the vendor is good, and that he will transfer to the vendee by his deed of conveyance a title unencumbered and without defect; and the vendor is bound to satisfy that implied condition and make proof of an unencumbered title without defect, before he can be entitled to a decree for specific performance of the contract.</p> <p>Id.—Purchaser not Estopped by Failure Specifically to Object to Title Tendered Before Suit.—Where the vendor in his complaint alleged that he had performed all of the terms and conditions of his contract, and was still ready and willing to perform the same, and his proof failed to sustain his right to recovery, he cannot complain that the failure to sustain the burden of proof resting upon him was aided by an estoppel of the purchaser by failure to object specifically to the defect in the title, at the time of the tender of the certificate of title and deed before suit. Such failure cannot affect the obligation of the vendor, or permit him to enforce any different contract from that expressed in the writing.</p> <p>Id.—Construction of Code as to Waiver of Sufficiency of Tender— Question of Costs and Bight to Sue.—The provisions of section 2076 of the Code of Civil Procedure, touching a waiver by failing to object to the form of a tender, are mere rules of evidence affecting the question of costs and the right to sue where a tender is necessary before suit. It cannot help a suit in which no sufficient performance or offer to perform is shown by the plaintiff, and no cause of action for specific performance is proved.</p>

<p>Voluntary Beneficial Society—Condition of Membership—Expulsion for Joining Similar Society—Proper Regulation—Agreement—Presumption.—Where under the constitution and laws of a voluntary, social, fraternal and beneficial society, it was made a condition of membership therein that expulsion should follow the joining of another similar organization, it is held that such regulation is not opposed to public policy, or to any provision of law, and is within the scope of the charter provisions of the organization, which constitute the agreement of its members, each of whom is presumed to know the terms and conditions upon which he may retain his connection with the organization.</p> <p>Id.—Power of Members of Voluntary Association.—Individuals who form themselves into a voluntary association may agree to be governed by such rules as they see fit to adopt, so long as they are not immoral, or contrary to public policy or the law of the land, and may prescribe the conditions upon which membership may be acquired, or upon which it may continue, and may also prescribe rules of conduct for themselves during their membership, and the tribunal and mode in which offenses shall be determined, and the penalty enforced.</p> <p>Id.—Violation of Rules by Member—Expulsion—Mistake of Law— Exhaustion of Remedies Required Before Suit—Defense.— Where a member has violated the existing rules of a voluntary society by joining another similar society, such member’s mistaken view of the existing law cannot affect a judgment of expulsion, and a member who has been tried and found guilty of such violation must first exhaust all the remedies prescribed by the constitution and rules of the society regulating expulsion, before seeking relief in a state court, and the failure to do so would be a complete defense to any suit for relief therein.</p> <p>Id.—Remedy by Mandamus—Equitable Nature—Improper Application.—A member who has been expelled and has failed to exhaust the remedies prescribed by the order in relation thereto, and who admits the violation of the rules of the order, providing for expulsion, and merely claims that the expulsion was irregular, cannot invoke the remedy by mandamus to compel a reinstatement of such member. The remedy so sought is of an equitable nature, which presupposes a wrong to be redressed and a right to be restored; and a petitioner therefor who, while continuing to violate rules requiring expulsion, assumes the attitude of seeking to annul an irregular expulsion, in order to be regularly expelled, is not entitled to the writ of mandate for such a vain and nugatory purpose.</p> <p>Id.—Design or Writ of Mandate—Substantial Justice.—The writ of mandate is not to be issued on mere technical grounds. Its design is to do substantial justice and prevent substantial injury.</p> <p>Id.—Substantial Eights op Appellant not Invaded.—It is held on petition for rehearing that no substantial rights of the appellant appear to have been invaded.</p>

<p>APPEAL from a judgment of the Superior Court of Fresno County, and from an order denying a new trial. H. Z. Austin, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Estates of Deceased Persons—Removal of Executor for Fraud upon Estate—False 'Claim Allowed for Private Debt.—An executor should be removed under the terms of section 1136 of the Code of Civil Procedure, “when he has committed or is about to commit a fraud upon the estate.” The act of the executor in allowing a false claim against the estate, with full knowledge of how the claim had originated, and that he had himself created the same as a claim against the estate, for the purpose of reimbursing his sister in law for moneys which he himself had borrowed from her, constituted a fraud against the .estate for which he was properly removed.</p>

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

<p>APPEAL from an order of the Superior Court of the City and County of San Francisco granting a motion to vacate a judgment. Thomas F. Graham, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Criminal Law — Grand Larceny — Prior Conviction — Alibi — Evidence of Identity—Cross-examination—Redirect—Prior Identity by Photograph.—Where, upon a prosecution for grand larceny, the defendant had pleaded guilty to an alleged prior conviction, and relied upon an alibi, and sought upon cross-examination of the prosecuting witness to weaken and break his testimony as to the identity of the defendant, who had immediately disappeared after the larceny, and was arrested for the crime one year thereafter in Portland, Oregon, the court properly allowed the witness to testify.on redirect examination that the next day after the discovery of his loss he complained to the police department, where he was shown photographs of former criminals, one of which he immediately recognized as that of the defendant.</p> <p>Id.—Ground of Admissibility of Identification by Photograph— Credibility of Evidence—Corroborating Proof.—The proof as to the identification of the defendant’s photograph was admissible not to show the identity of the accused as the guilty party, for which purpose it would be incompetent, but rather to establish the truth and credibility of his evidence that, after the defendant’s arrest, he could and did identify him as the guilty party. The evidence of the officer, who made the arrest, was lalso admissible to corroborate the defendant’s evidence as to the identification of his .photograph made in such officer’s presence in the police department.</p> <p>Id.—Remark of Court in Admitting Evidence as to Photograph— Absence of Objection—Possibility of Injury Waived.—Where the court remarked upon admitting the testimony of the prosecuting witness as to the photograph of defendant found in the office of the police department that perhaps the picture was found at a place where it had no right to be, no objection having been taken to such remark at the time, the possibility of injury to the defendant therefrom cannot be considered.</p> <p>Id.—Reference in Testimony of Officer as to Prior Trouble of Defendant—Defendant not Prejudiced.—A reference in the testimony of the arresting officer, who corroborated the evidence of the defendant as to the identification, of defendant’s photograph, to the fact that the defendant had been in trouble before, could not prejudice the defendant, he having by his plea of guilty to a prior conviction, injected that matter into the case, so that there was no violation of section 1025 of the Penal Code by the prosecution.</p>

<p>Guaranty or Rent Reserved in Lease—Assignment by Lessor— Action by Assignee.—An assignee of a lease from the lessor and of a written contract of guaranty to secure the payment of the rent reserved, which was executed contemporaneously with the lease and was made part thereof, which guaranty was neither expressly nor impliedly limited to the lessor personally, may sue both the lessee and the guarantor in his own name as assignee to collect the rent and to enforce the same against the guarantor.</p> <p>'Id.—Modification of Common-law Bule Forbidding Suit by Assignee of Chose in Action.—The common-law rule that a chose in action cannot be transferred by assignment, so as to enable the assignee to sue thereon in his own name, has been materially modified, if not entirely superseded, by the code provisions of this state, which authorize a non-negotiable chose in action to be transferred with all the rights of the assignor, subject to equities and defenses against the assignor, and require every action to be prosecuted in the name of the real party in interest.</p> <p>Id.—Effect of Code Provisions—Action bt Assignee of Contract of Guaranty.—The immediate effect of the code provisions of this state is to permit the assignee of a contract of guaranty of rent, which is but a chose in action, to sue thereon in his own name, and where there is no personal limitation of the guaranty, it may, like any other promise made to the lessor, be assigned and sued upon by the assignee.</p> <p>Id.—Assignment of Lease With Consent of Guarantor—Personal Limitation. Immaterial.—Where it appears that the assignment of the lease and of the contract of guaranty was made with the consent of the guarantor, the contention that the assignment of the lease was personal to the lessor must fail in the presence of that fact.</p> <p>Id.—Guaranty Part of Lease Assigned as Single Contract—Assignment of Lease Carrying Guaranty—Remedies of Assignor. Where it further appears that the guaranty was so executed as to become part of the lease itself, the lease and guaranty must be construed to be a single contract, upon which the liability of the guarantor, to the extent of his obligation, was commensurate with that of the lessee; and the assignment of the lease by the lessor carried with it the same remedies for the recovery of rent and for nonperformance of the lease as the assignor might have had in the first instance.</p> <p>Id.—Pleading—Complaint by Assignee of Lease and Guaranty— Averment of Assignment—Presumption of Writing—Rulings upon Demurrer.—Conceding that a general order sustaining a demurrer will be upheld, if tenable on any ground assigned, and that leave to amend may be granted or withheld in the discretion of the court, yet where it appears that a special demurrer to the complaint by the assignee of the lease and guaranty is untenable, a general demurrer thereto cannot be sustained if the complaint states a cause of action, even though some of the facts relied on to support it are defectively pleaded. When, therefore, such complaint is otherwise sufficient, and states the assignment of the lease and guaranty as a fact, it will be presumed in support of its sufficiency that the assignment was in writing.</p>

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

<p>Venue—Change of Place of Trial to Residence of Defendant— Erroneous Order—Insufficient Affidavit of Merits.—An order changing the place of trial to the residence of the defendant is erroneous and must be reversed where the court’s ruling is based upon an. insufficient affidavit of merits, “that affiant has fully and fairly stated the facts of her case herein to her attorney,” by whom she was advised that she had a good and valid defense to the action. Such affidavit in effect stated that she had merely stated her defense and not all of the facts of the case, as required.</p>

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

<p>Restraint op Trade—Contract Between Partners upon Dissolution —Limitation to City—Construction op Code.—Under section 1673 of -the Civil Code, every contract whereby one is restrained from exercising a lawful business is void, unless made pursuant to sections 1674 and 1675 of that code. While under section 1674 of the Civil Code one other than a partner may, where he sells the goodwill of a business, make a valid contract to refrain from carrying on a business similar to that sold within a specified county or city, the territorial limits as to which a partner may, by contract, restrict himself is under section 1675 of that code limited to a city or town.</p> <p>Id.—Insufficient Complaint Against Retiring Partner.—A complaint against a retiring partner who sold the goodwill of the business of publishing a directory in a specified city, and in soliciting contracts for advertising therefor throughout the county, which alleges a breach by entering into the publication of a directory in said county and in soliciting advertising therefor, which does not state that he published a directory for the same city, or sold any directory therein or solicited advertising therein, states no cause of action under section 1675 of the Civil Code for breach of the contract for sale of the goodwill of the partnership in said city.</p> <p>Id.—Construction of Pleading Against Pleader.—A pleading must be construed most strongly against the pleader, and the general allegation that defendant “entered into the publication of a directory in said Orange county, and solicited advertising therefor, and in the same field and territory where plaintiffs were engaged in a similar business, and were exercising the goodwill purchased from said defendant as aforesaid,” is wholly consistent with the fact that such publication was made and advertising solicited in other parts of the county than the city where plaintiffs’ directory is published; and so construed it fails to state a cause of action.</p> <p>Id.—General Demurrer — Demurrer for Uncertainty — Judgment upon Demurrer—Amendment not Asked.—Where the court sustained both a general demurrer to the complaint and a demurrer for uncertainty, and rendered judgment upon the demurrer, from which the appeal is taken, and any construction of the pleading in favor of a cause of action would clearly render the complaint uncertain, the conclusion of the trial court was correct, in either point of view, and there having been no request for an amendment of the complaint, the judgment must be affirmed.</p>

<p>Action to Quiet Title to Timber Lands—Option to Purchase—Specific Performance—Cross-complaint—Inducement for Railroad Route—Building not a Condition.—In an action to quiet title to timber lands, in which defendant set up an irrevocable option to purchase the same, the specific performance of which was sought by cross-complaint, which alleged that defendant and his associates proposed to construct a railroad, the route for which depended largely upon purchases of timber lands, which plaintiffs well knew, and that the inducement and consideration moving plaintiffs to enter into said contract was the encouragement and inducement of the building of said railroad from Ukiah to Willits, in preference to other routes, it is held that the cross-complaint cannot be rationally interpreted to justify the inference that the actual building of such railroad constituted any part of the consideration moving plaintiffs to grant the option, or imposing the same as a condition precedent to defendant’s right to a conveyance.</p> <p>Id.—Sufficiency of Cross-complaint to State Cause of Action— Decision upon Last Appeal—Law of Case—Different Reason Immaterial.—The decision upon the last appeal that the cross-complaint of the defendant stated facts sufficient to constitute a cause of action is the law of the case as to its sufficiency upon the present . appeal. It is immaterial that the question arose upon the last appeal upon the refusal of the trial court to admit any evidence in support thereof, while its sufficiency to state a cause of action is here urged for a different reason. The law does not countenance a piecemeal method of attacking a pleading, which is adjudged valid by the law of the case.</p> <p>Id.—Absence of Promise as Consideration of Option—Conditional Benefit of Purchasers.—Whatever inducement may have moved the plaintiffs in granting the option to defendant, it is held that no agreement or promise was made by defendant, in consideration of the option, to select any particular route, or that defendant or his associates undertook to do anything in consideration thereof; but that they merely contemplated that any future purchase of the timber lands, if paid for at full value under the option, would be an inducement for freight to be carried by them over one of four contemplated routes, for their benefit.</p> <p>Id.—Alleged Variance Between Option and Acceptance in Findings Following Gross-complaint—Law of Case.—The contention of plaintiffs that the findings disclose a variance between the option granted by the plaintiffs and the acceptance by the defendant, and do not support the judgment, is untenable, where it appears that the finding objected to in this particular substantially follows the averments of the cross-complaint, the sufficiency of which has become the law of the case whether under the decision of the supreme court upon the last appeal or under the decision rendered by the same court upon a first appeal thereto, which decided the. point which is here made.</p> <p>Id.—Timber Cut by Vendors During Life of Option—Acceptance of Original Option—Compensation—Effect of Assent by Vendee.—Where the option was of the right to purchase eleven hundred and sixty acres of land at the rate of $15 per acre within twelve months, and during the life of the option the vendors cut a large amount of timber from the land, and within the time limited defendant gave notice of the acceptance of the option according to its terms, but demanded compensation for the depreciation in value by the cutting of the timber, to which plaintiffs did not object but assented thereto in writing, they thereby distinctly recognized that the acceptance by defendant was of the identical option which they had granted to him, and which they agreed to make good by compensation.</p> <p>Id.—Rule of Part Performance With Compensation upon Specific Performance—Reduction of Price not Involved.—Where the vendor through his own fault is unable substantially to perform his whole contract, the vendee may, at Ms election, have specific performance in equity to the extent of the vendor’s ability to perform, with compensation for the deficiency. This rule of equity is also embodied in section 3386 of the Civil Code. The rule of compensation does not involve a reduction of the price agreed to be paid, its sole object being to fill up the measure of value for the price agreed, which has been diminished by the vendor’s fault.</p> <p>Id.—Waiver and Estoppel of Vendors.—The plaintiffs, as vendors, having expressly acquiesced in the acceptance of the option granted by them to defendant, and treated and recognized it as an acceptance of the precise option which they granted to him, they thus waived any objection to the acceptance on the ground that it varied from the terms of the option; and. they are es-topped to take advantage of their own wrong in deliberately changing the value of the property purchased by their unauthorized acts during the life of the' option.</p> <p>Id.—Consideration for Option—Merger in Agreement.—It is unnecessary to inquire whether a finding as to the original consideration for the option is of is not supported] since the option as an option agreement became functus officio when it was accepted by the defendant according to its terms during the existence of the option which had not been previously revoked, which acceptance was acquiesced in by the plaintiffs, making it a binding contract" between the parties.</p>

<p>Building Contract—Assignment by Contractor op Balance Due prom Owner to Materialman—Order upon Fund to Agent op Owner—Subsequent Levy op Execution.—An assignment made by a building contractor of the whole balance due to him under the contract with the owner, in favor of a mill and lumber company to which the contractor was indebted for the full amount of such balance, in whose favor an order given was addressed to the owner’s agent having custody of such balance,. takes precedence over a subsequent levy made upon such balance at the instance of a judgment creditor of the contractor.</p> <p>Id.—Right of Assignment of Balance Due—General Rule.—The contractor had the right to. assign the whole balance of the indebtedness due to him from the owners of the building although he could not divide that balance into fractional amounts and make an assignment of the same. It is a general rule that a creditor can only make an assignment of the full amount due, and cannot, without the express consent of the debtor, make partial assignments to divers persons. The whole debt due the contractor was the subject of assignment without consent of the owners of the property.</p> <p>Id.—Assignment Effected Prior to Levy.—Where the assignment was effected prior to the levy of the execution, it left the plaintiff, as disbursing agent for the owner, without any money in his hands belonging to the contractor to which the subsequent levy of the execution against the contractor could attach. It being clear from the circumstances surrounding the transaction that, if the money had been paid over to the assignee, the execution creditor could not have reached it, the prior effected assignment of the whole debt has the same result.</p> <p>Id.—Equitable Assignment of Debt.—In order to constitute an equitable assignment of a debt, no express words to that effect are necessary; but if from the entire transaction it clearly appears that the intention of the parties was to pass title to the chose in action, then an assignment will be held to have taken place.</p> <p>Id.—Order Given to Agent of Owners.—It was not material that the order was addressed to the agent of the owners, instead of to the owners themselves with whom the building contract was made, where such agent was duly authorized to hold the fund and to make payments therefrom upon the contract price to the contractor.</p> <p>Id.—Assignment not Dependent upon Notice to Debtor—Intention of Assignor and Assignee.—The question as to whether the assignment was in fact made is not dependent upon the question of notice to the debtor, but upon the intention of the alleged assignor and assignee.</p> <p>Id.—Opinion on Petition for Rehearing in Bank—Question of Notice to Debtor—Unnecessary Opinion—Notice to Agent Sufficient.—It is held by the Supreme Court, on petition for rehearing, unnecessary to say that the assignment to the Carpenter and Biles Mill and Lumber Company would be good against a levy made upon the fund after the assignment and before notice to the debtors, the Dunhams. But if such notice to the debtor was necessary to make the assignment good against a subsequent levy, the notice given to plaintiff, who was the trustee and agent of the Dunhams, to pay the debt to the contractor, or to his assignee, as the case might be, was a sufficient notice to the debtor.</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. E. P. Mogan, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Bale op Baled Hay in Barns—Price per Ton—Part Payment—Title Passed—Loss by Flood—Bisk of Buyer.—A sale of all the baled hay in two barns of the plaintiff to the defendants at a fixed price per ton, which were separated from all other hay in the barns, and which were exhibited and fully identified, and upon which defendants paid $400, and was to pay the residue of the price per ton in installments upon delivery from time to time, passed a present title' to the defendants to all of the baled hay; and where, without the fault of the seller, after delivery and payment for a number of installments, the undelivered bales were damaged as the result of a flood, such bales were at the risk of the buyer, and the loss must fall upon him.</p> <p>Id.—Code Provision as to Passage op Title to Buyer.—Under section 1140 of the Civil Code “The title to personal property sold or exchanged passes to the buyer whenever the parties agree upon a present transfer, and the thing itself is identified, whether it is separated from other things or not.”</p> <p>Id.—Agreement upon Present Transfer—Question op Fact.—From the evidence presented to the court, it was a question of fact for the court to determine as to whether or not the parties had agreed upon a present transfer. Where the intention of the parties is not clear, but must be determined from the facts and circumstances of the case, it is a question of fact for the jury or the trial judge.</p> <p>Id.—Weighing and Measuring to Ascertain Final Price—Delivery at Point op Shipment.—If the goods sold are identified, and the parties agree upon a present transfer, it does not matter that weighing or measuring is necessary to ascertain the price to be finally paid; neither is the fact that the seller has agreed to haul and deliver the goods at some point of shipment necessarily controlling.</p>

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

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

<p>Findings—Duty of Court—Material Issues—Ultimate Fact—Probative Facts.—It is the duty of the trial court to find upon all of the material issues raised by the pleadings; and ordinarily it is necessary to the validity and sufficiency of findings that such court should find the ultimate fact in issue, or such probative facts as will enable the court to declare that the ultimate fact necessarily results therefrom. Where probative facts are found from which the existence of the ultimate fact may. be conclusively inferred, the finding is sufficient, and a judgment based thereon will be sustained.</p> <p>Id.—Action for Damages for Personal Injuries—Findings upon Material Issues—Ultimate Finding in Conclusions of Law.— Where, in an action to recover damages for personal injuries to the plaintiff, alleged to have been caused by the negligence of the defendant, the court found for the plaintiff upon all of the material issues, and made an ultimate finding as to the total amount of damages sustained, in its conclusions of law, and rendered judgment therefor, the trial court’s declaration that the plaintiff was entitled to a judgment therefor as the result of the damage inflicted by defendant was in effect a finding of the ultimate fact that plaintiff had been damaged to that amount.</p> <p>Id.—Construction of Findings—Position Immaterial—Support of Judgment.—The mere presence of the ultimate finding as to the amount of damages in the conclusions of law, rather than in the findings of fact, where it belonged, did not detract from or destroy its efficacy as a finding of fact; and so construed and read in conjunction with the preceding probative facts found by the court, it is sufficient to support the judgment upon the issue of damages.</p> <p>Id.—Cause of Plaintiff’s Injuries—Negligent Driving of Defendant’s Horse and Buggy—Support of Finding as to Ownership and Control—Proof of Liability.—Where the alleged cause of plaintiff’s injuries was the negligent driving of defendant’s horse and buggy, and it was an admitted fact that the horse and buggy belonged to the defendant corporation, and that the driver was its vice-president and general superintendent of its work, “who had the right to operate the buggy” in the performance of its work, a finding of defendant’s ownership of the horse and buggy, and that it was “wholly in the possession and control of the defendant at the time of the injury,” was sufficiently sustained; and that the injury was the result of the negligence of such driver is all that need be shown to charge defendant' with liability.</p> <p>Id.—Accepted Bule as to Negligence of Employee Intrusted With Charge of Vehicle.—It is the accepted rule that, where an employee is intrusted with the possession and operation of a vehicle, with permission to use it, in his discretion, in the business of the employer, the latter will be held responsible in damages for injuries inflicted upon the person of another resulting from the negligence of the employee in the use and operation of the vehicle; and, in such a case, it is not necessary for the person seeking damages to prove that, at the time of the injuries, the employee was engaged in executing any particular business or specific command of his principal.</p> <p>Id.—Sufficiency of Showing of Negligence—Tort in General— Scope of Employment.—That the employee, at the time of the commission of the tort, was acting within the general scope of his employment, and that the injury occurred as the result of his negligence, is all that need be shown in order to charge his employer with liability for such injury.</p>

<p>Corporations—Treatment of Person Injured Without Obligation for Injury—Liability for Hospital Charges—Ostensible Authority of Agents.—A corporation is liable for hospital charges ' for the care of a person injured through instrumentalities used by it, although no legal or moral obligation may rest upon the corporation to care for him, where officers and agents of the corporation, with ostensible authority, directed the hospital authorities to take charge of such person, and to continue the service. One who was assistant to the general manager of the corporation, with authority to look after its interests in his absence, had ostensible authority, in the absence of the manager, to contract, in an emergency, for such hospital service, and its chief surgeon had such authority to direct its continuance.</p> <p>Id.—Rule as to Power of Subordinate Employees to Contract for Care of Persons Injured.—As a rule, even subordinate employees of a corporation, who under ordinary circumstances have no power to bind the corporation by contract, possess power, where an urgent necessity exists for immediate employment, by reason of injuries incident to the operations of the corporation, to employ medical help to alleviate the condition of persons so injured.</p> <p>Id.—Eight of Owner of Hospital to Assume That Power of Assumed Agents Existed—Knowledge of Manager—Presumption. The plaintiff, as the owner of the hospital, had the right to assume that persons representing the heads of departments of the corporation defendant possessed the authority which they represented; and where it appears that the general manager of the corporation had knowledge of the conditions and took no action personally, his acquiescence and that of the corporation must be presumed.</p> <p>Id.—Surgical Services not Contracted for—Nonliability of Corporation.—Where surgical services were rendered in the hospital before any instructions in that behalf were given by any officers of the corporation, and there is nothing in the record to disclose that any legal liability existed against the corporation otherwise, to pay for such surgical services by reason of any negligence on its part causing the injury, the corporation is not liable for such surgical services, though necessary to save the life of the person injured. For aught that appears, the surgical services were voluntarily performed, and the defendant owed no legal duty to pay therefor.</p> <p>Id.—Settlement of Action by Person Injured Against Corporation —Legal Liability not Established.—The mere settlement of an action brought against the corporation defendant by the person injured, by the payment of a specific sum to secure its dismissal, does not' of itself establish the matters involved in the question of legal liability. It may be, and often is, the case that actions of this character are settled and dismissed where no liability exists, other considerations entering into the transaction.</p>

<p>Criminal Law—Statutory Rape—Intercourse With Step-daughter— Support op Verdict—Uncorroborated Evidence op Prosecutrix— Presumption—Review upon Appeal.—Where the defendant was accused of statutory rape by sexual intercourse with his step-daughter of the age of thirteen years, and was convicted upon her uncorroborated testimony, it is held that it must be assumed upon appeal, in the absence of anything appearing in the record to the contrary, that the jury reached their verdict with a full realization of their sworn duty, free from passion or prejudice, and also that the trial judge, who refused a new trial, was satisfied with the verdict, and that it cannot be said that a condition of the record appears which would warrant this court in interfering with the verdict.</p> <p>Id.—Requested Instructions Properly Refused—Danger of Conviction upon Uncorroborated Evidence—Caution as to Evidence Long After Offense.—The court properly refused requested instructions for the defendant, one of which stated that “in the absence of corroborating testimony, it is dangerous to find a verdict of guilty,” and the other of which stated “that the testimony of children should be received with great caution, and this is especially the case when the children are of tender years, and the events they are relating happened a long time previous to the time they are on the stand,” where it appears that the offense charged occurred in April, and the trial occurred in the following June, and the court gave proper cautionary and admonitory instructions.</p> <p>Id.—Construction of Charge of Court—Law of Reasonable Doubt—Conviction on Sole Evidence of Prosecutrix.—Where the court fully instructed the jury as to the law of reasonable doubt, and that they “must find that each and every fact essential to conviction • must be proved beyond all reasonable doubt and to a moral certainty,” it is not necessary to repeat that law with every instruction, and it must be held implied in an instruction that “if the jury believe the prosecutrix, they can convict on her evidence alone.” It must be presumed that the jury understood from the instructions that they were not required to convict on the evidence o"f the prosecutrix unless convinced of the truth of her evidence beyond a reasonable doubt.</p>

<p>Criminal Law—Statutory Rape—Intercourse With Young Girl— Support op Verdict—Admission op Guilt—Testimony op Prosecutrix.—Where the defendant was charged with the crime of statutory rape, by sexual intercourse with a young girl twelve years of' age, of which he was convicted, it is held that evidence which justified the jury in believing that he admitted his guilt, taken together with the testimony of the prosecuting witness, which was direct and unmistakably established the charge, if believed by the jury, amply supported the verdict.</p> <p>Id.—Surprise by Witness por People—Contrary Evidence on Preliminary Examination — Impeachment — Record not Proved — Immaterial Cross-examination.—Where a witness for the people . gave surprising evidence contrary to her evidence on preliminary examination, the record of such examination is not admissible as independent proof, but merely to lay the foundation for impeachment of her surprising evidence; but where the preliminary examination was not introduced, a question to the witness by defendant on cross-examination as to whether she was told by the parents of the child to testify as she did at the preliminary examination was immaterial.</p> <p>Id. — Evidence op Physician — Intercourse Effected — Ruptured Hymen — Venereal Infection.—Evidence of the physician who examined the young girl was admissible, for the purpose of showing that sexual intercourse had been effected, that she had a ruptured hymen, and that there were evidences of venereal infection. Each of these circumstances tended to show intercourse.</p> <p>Id.—Evidence of Prior Unchaste Repute or Conduct Inadmissible—• Absence of Specific Offer as to Cause for Venereal Infection. Evidence that the prior reputation of the prosecutrix was bad in respect of chastity, or a mere offer to prove prior sexual intercourse of other persons with her, was inadmissible, and could not justify the defendant’s intercourse with her while under the age of consent. Nor can such evidence be justified on the ground of the testimony of the physician as to her venereal infection, and that the defendant may now show that someone else “has done that act,” in the absence of any specific offer to show that the venereal infection was or may have been caused by some other person' than the defendant.</p> <p>Id.—Proper Instruction as to Testimony of Prosecuting Witness. The court properly instructed the jury that “while it is- the law that the testimony of the prosecuting witness should be carefully scanned, still this does not mean that such evidence is never sufficient to convict, and if you believe the prosecuting witness, it is your duty to render a verdict of guilty.” In this case the act of copulation constituted the offense, and the intent with which the defendant committed the act is immaterial. The prosecuting witness testified to the act, and if the jury believed her, his guilt would necessarily follow.</p> <p>Id.—Instruction as to Reasonable Doubt—Elaboration upon Definition of Justice Shaw not Approved—Reversal Not Justified.— While it is not approved that trial courts should attempt any elaborate improvement upon the often approved definition of reasonable doubt given by Chief Justice Shaw, and the elaboration thereupon by the trial court is not an improvement, yet this court- finds nothing in it to justify the reversal of the cause.</p>

<p>Appeal prom Order Denying New Trial—Errors in Pleadings not Bevibwable.—Where there is no appeal from the judgment, but solely an appeal from an order denying a new trial, alleged error of the court in striking out a counterclaim and portions of the answer of the defendant appealing, which could only be reviewed upon an appeal from the judgment, cannot be considered upon the appeal from such order.</p> <p>Id.—Effect of Code Amendment as to Judgment-boll—Scope of Appeal from Order not Enlarged.—Notwithstanding the amendment of 1907 to section 670 of the Code of Procedure makes “all orders striking out any pleading in whole or in part” a part of the judgment-roll, yet such amendment does not enlarge the scope of an appeal solely taken from an order denying a motion for a new trial, upon which no question as to the sufficiency of the pleadings or findings can be reviewed; but only such matters can be considered as are made grounds of the motion, upon which the superior court may. grant or deny the same.</p> <p>Id.—Refusal of Leave to Pile Amended Pleading—Injury not Made to Appear.—Where the defendant appealing complains that he was denied leave of the court to file a second amended answer and counterclaim, which was requested upon the granting of the motion to strike out, and the overruling of defendant’s demurrer to the complaint, but he did not show at the trial, and does not show upon appeal, how he could improve Ms answer by amendment, no injury is made to appear by the ruling.</p> <p>Id.—Action for Price of Steamer Shaft Furnished—Sufficiency of Shaft—Conflicting Evidence—Retention and Use—Support of Verdict.—In an action for the agreed price of a steel shaft completely equipped for use in defendant’s steamer, where sufficiency of the shaft for the purpose for which it was intended was in controversy, and defendant claimed an absolute agreement of plaintiff to furnish a better shaft, and the evidence upon those questions was substantially conflicting, but it appeared without conflict that defendant had retained and worked the original shaft for sixteen months up to the time of trial, without indications of weakness therein, the verdict for plaintiff for the agreed price was sufficiently supported.</p> <p>Id. — Verdict for Agreed Price “Without Interest” — Interest Waived by Plaintiff—Instruction by Consent of^ Parties— Amendment in Court—Appellant not Injured.—Where the jury after retirement and deliberation had reached a verdict for the plaintiff for the agreed price, and asked for an instruction as to whether they could “cut out the interest,” whereupon the plaintiff expressly waived the interest, and both parties agreed to an instruction that they could dispense with the interest, and the court asked them if they wished to retire, to which the foreman replied that he thought it unnecessary, and the jury immediately amended their verdict by adding to the price agreed upon the words, “without interest,” and handed in their verdict so amended in open court, and upon being polled, every juror agreed that it was his verdict, it does not appear that appellant was injured by such amendment in his favor in open court.</p> <p>Id.—Rulings upon Evidence—Furnishing of Shaft—Statements in Absence of Defendant—Parol Evidence to Vary Contract.— The court properly ruled that it was immaterial that plaintiff contracted with another company to forge the shaft furnished; that statements out of the presence of the defendant could not bind him; and that the terms of the written contract could not be waived by parol evidence.</p> <p>Id.—Rulings not Prejudicial.—It is held that no rulings of the court upon evidence were prejudicial, and that the evidence which went to the jury in its entirety fairly presented the theories of the respective parties; that defendant was given every reasonable opportunity to present every material fact at his command, and that it does not appear that plaintiff was permitted to sustain its case by evidence not legally admissible or, at least, which was erroneously admitted to defendant’s prejudice.</p> <p>Id.—Proper Instructions.—It is held that the instructions, taken as a whole, fairly and correctly presented all of the issues raised by the pleadings.</p>

<p>County Sheriff—Act Clearly Increasing Compensation of Incumbent—Salaries of Deputies—Change of Class—Violation of Constitution.—If upon comparison of an act fixing the original compensation of the sheriff of a county of a specified class, and an act increasing his compensation during, his, term, by >the addition of salaries of an under-sheriff and deputy sheriff, under an increased classification of. such county, it clearly appears that the change in compensation effects an increase thereof, then to apply such increase to the incumbent would violate section 9 of article XI of the constitution, forbidding such increase “during his term of office.”</p> <p>Id.—Effect of Uncertainty as to Increase of Compensation—Clear Declaration of Legislature to Contrary—Conclusiveness.—If, in an act changing the compensation of a county officer during his term, the mode thereof is such that it cannot be determined by a comparison of such act with the former act under which he was elected whether such change does or does not result in an increase of the compensation, a clear declaration by the legislature in the later act that it does not increase the compensation would be conclusive of the fact so declared, and the later act would be applicable to the incumbent when it goes into effect, whether it takes effect after sixty days from its passage or immediately.</p> <p>Id.—Mere Declaration That Changing Act Takes Effect Immediately—Construction.—A mere declaration in the act changing the compensation of the county sheriff during his term of office that “this act shall take effect immediately” cannot be construed as a legislative declaration to the effect that it did not constitute an increase, so as to make it applicable to the incumbent when it goes into effect, notwithstanding some uncertainty as to whether an increase of the compensation can be determined by a comparison of the two acts. In the absence of an express declaration, it is to be inferred that an increase was contemplated, and that it was intended to apply prospectively only.</p> <p>Id.—Changing Act Inclusive of Other' County Officers Whose Salaries Could not be Changed—-Prospective Construction of Statute.—Where the act purporting to change the compensation of the' sheriff also purports to change the compensation of other county officers whose salaries could' not be changed during their terms without violating the constitution, the true construction of the act changing the compensation is to treat all of its provisions alike; and, knowing that such "of "them' as increase salaries could have been intended to apply only to officers elected subsequently to the ainend- ment, to conclude, in the absence of express and specific declaration .. to the contrary, that other amendments, which may or may not have the effect of increasing compensation, were likewise intended "to operate only in favor of or against officers to be thereafter elected.</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. James M. Troutt, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Action for Money Obtained by Fraud—Newspaper Subscription Prize Contest—False Statement as to Condition of Votes— Guaranty—Public Policy.—An action against a publishing company engaged in a newspaper subscription prize contest, to recover the sum of $300 paid to the defendant, on the ground that it was obtained by the fraud of its agents in charge of the contest, by falsely stating the condition of the votes upon the first prize, and that such payment would secure subscriptions sufficient to obtain the first prize over all contestants, and that it would be guaranteed, and that if the plaintiff did not obtain it the money would be refunded by the defendant, is tenable, and cannot be resisted on the ground that the contract was in fraud of the rights of other contestants, and against public policy.</p> <p>Id.—Good Faith of Plaintiff—Absence of Fraud upon Other Contestants—Reliance upon Agreement to Refund.—Where it appears that the plaintiff is a young girl who acted in entire good faith, .and without any intention to do otherwise than to secure for herself sufficient votes by newspaper subscriptions to obtain the first prize in a manner which would be available to any other contestant, there is an entire absence of fraud upon her part upon the rights -of other contestants. Nor could the agreement to refund the money, if the first prize were not obtained, be in fraud of the rights of other contestants, though it is an agreement upon which the plaintiff might well have relied.</p> <p>Id.—General Verdict for Plaintiff—Special Findings Based on Agreement With Subscription Agent—Improper Judgment on Special Findings.—Where the jury rendered a general verdict for plaintiff for the sum of $300 sued for, and also rendered a special verdict in affirmative response to special interrogatories as to all of the specific terms agreed to between the plaintiff and the agent of the defendant in charge of the subscription prize contest, and that plaintiff delivered the money in reliance upon that agreement, it is held that there is no inconsistency between the general and special verdicts, and that the court erred in granting defendant’s motion for judgment on the special verdict.</p> <p>Id.—Immaterial Conditional Element in Contract With Agent.— The further element which appears to have entered into the agreement with the agent that in the event that plaintiff had not enough votes to secure her the first prize, defendant, “if necessary for that purpose, would deliver enough votes to insure her the first prize,” may be rejected from consideration, since, as determined by the special findings, the damage accrued to plaintiff by reason of the false representations as to the condition of the vote at the time she paid the $300 to the defendant.</p> <p>Id.—Claim: of Defendant as to Unauthorized Act of Agent—Conclusiveness—Appeal of Plaintiff.—The averment of defendant that the agents who received from the plaintiff the $300 were not acting within the limits of their authority when they made the representations to the plaintiff, as charged, presents a question which it is held was settled adversely to the defendant by the verdict of the jury, and is not open to review in its favor on appeal of plaintiff from the judgment rendered for defendant on the special findings.</p> <p>Id.—Claim of Unlawful Contract—Essentials to Denial of Relief—Claim not Sustained.—Before relief can be denied because of the unlawful nature of a contract, whereby some rule of public policy is claimed to have been violated, it must appear clearly that the case comes within that class, and that the agreement of the parties in its essential obligations is tainted from improper motives. It is held that the case, as it is exhibited by this record, is not one of that kind.</p>

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

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

<p>APPEAL from an order of the Superior Court of Fresno County denying a new trial. H. Z. Austin, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

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

<p>Writ of Prohibition—Charge Before One Justice of the Peace of Misdemeanor of Another—Refusal to Allow Inspection of Docket.—The writ of prohibition will not lie to restrain one justice of the peace from trying another justice of the peace for misdemeanor in refusing to permit an inspection and examination of his do.cket during office hours, since justices of the peace have jurisdiction of misdemeanors, and the affidavit filed before such other justice was an attempt to set up facts constituting a misdemeanor, the sufficiency of which to show a misdemeanor he had jurisdiction to pass upon and determine, rightfully or wrongfully, and the superior court erred in granting the writ.</p> <p>Id.—Office of Writ of Prohibition.—The writ of prohibition is not a writ of error to determine the correctness of the decision of an in- , ferior tribunal, but it only lies where a public officer is proceeding without or in excess of jurisdiction, and no plain, speedy and adequate remedy at law exists.</p> <p>Id.—Public Offense not Stated—Remedy by Habeas Corpus.—If, as claimed by the petitioner for the writ of prohibition, no facts are averred constituting a public offense, he has ample relief, in ease he is found guilty, through a writ of habeas corpus.</p> <p>Id.—Refusal of Officer to Perform a Public Duty—Remedies.—The refusal of an officer to perform a public duty amounts to an omission in that regard, and is a misdemeanor under section 176 of the Penal Code, or he may be proceeded against under section 772 of the Penal Code. (Opinion denying rehearing by appellate court.)</p> <p>Id.—Opinion on Petition for Rehearing in Supreme Court—Limitation of Denial.—The supreme court, on denial of a rehearing, bases its order on the last above decision, which shows sufficient ground for reversal of the judgment, and no opinion is expressed as to the other doctrines stated in the original opinion.</p>

<p>APPEAL from a judgment of the Superior Court of Kings County, and from an order denying a new trial. John G. Covert, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Fireman’s Belief Fund of San Francisco—Bight of Widow to Pension—Mandamus—Demurrer to Petition—Default of Board— Cause of Action.—Where a peremptory writ of mandate to compel payment of a widow’s pension out of the Firemen’s Belief Fund of the city and county of San Francisco resulted from an order overruling a demurrer of the Board of Fire Pension Fund Commissioners to the petition for the alternative writ, and the default of the hoard to answer, it is held that the sole question to be determined, upon appeal from the judgment awarding the peremptory writ, is whether upon the admitted facts stated in the affidavit and petition for the writ a cause of action is stated.</p> <p>Id.—Killing of Fireman “While in Performance of Duty”—Suicide While Insane from Injuries Received.—Where the affidavit and petition for the writ of mandate show that the deceased husband of the petitioner was a member of the fire department, and that while in the performance of his duty in driving a hose-wagon he received a broken back and other bodily injuries, by the overturning thereof upon him, and that as the result of such injuries he . suffered great pain and anguish, which caused him to become insane, and that while so insane, and because thereof, he killed himself, about two months and a half after such serious injuries, it is held that under these circumstances the fireman was “killed while in the performance of his duty,” within the meaning of section 5 of chapter VII, article IX, of the San Francisco charter, and that his widow was entitled to the pension demanded.</p> <p>Id.—-Injuries Proximate Cause op Death.—The injuries received by the fireman may justly be said to have been the proximate cause of his death, and to have set in motion a train of events that, without the intervention of any outside and independent cause,. resulted in his death, although his own hand inflicted the wound of which he died, while insane, since the self-inflicted wound was the result of the .insanity, which was in turn caused by the injuries, which were thus, in effect, the proximate cause of his death.</p> <p>Id.—General Hule as to Suicide While Insane.—It is a general rule that a suicide committed while insane is not considered a mere death by suicide within the terms of a contract, and that self-destruction by one bereft of reason can with no more propriety be ascribed to his own hand than to the deadly instrumentthat may have been used for that purpose, and was no more his act in the sense of the law than if he had been impelled by an irresistible physical force.</p>

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

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

<p>APPEAL from a judgment of the Superior Court of San Luis Obispo County. Robert M. Clarke, Judge Presiding.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Mortgage—Purchase of Secured Note—Non-negotiability—Subjection op Purchaser to Defenses—Payment of Face Without Knowledge Immaterial.—A note which shows on its face that it is secured by a mortgage is nou-negotiable, and notice of such non-negotiability is thereby imparted to a purchaser thereof, and he is chargeable with notice that if the maker has any defense against the original payee, he takes the note subject to such defense, and it is immaterial that he has paid the full face of the secured note to the original payee, without actual notice of any defense thereto.</p> <p>Id.—Assignment of Mortgage—Duty of Proposed Assignee to Inquire as to Defenses—Effect of Neglect.—One who is about to take an assignment of a mortgage is in duty bound, in protection of his own interest, to make inquiry of the mortgagor as to the validity of the instrument and of the transaction on which it is founded and as to the amount due, and whether the mortgagor has any defense or setoff to interpose against it. But if he neglects to make such inquiry, he takes the mortgage subject to all defenses against the original mortgagee, and is charged with knowledge of all facts which such an inquiry would have disclosed.</p> <p>Id.—Construction of Code Provisions—Indorsement of Non-negotiable Instrument—Assignment of Thing in Action.—Section 1459 of the Civil Code, making the transfer of a non-negotiable instrument “subject to all equities and defenses existing in favor of the maker at the time of the indorsement,” and section 368 of the Code of Civil Procedure, providing that, “in the case of an assignment of a thing in action [not negotiable] the action by the assignee is without prejudice to any setoff or other defense existing at the time of or before notice of the assignment,” are to be construed as though passed at the same moment of time and as parts of the same statute; and the law as declared by the two sections is that a defendant may avail himself of any setoff or defense acquired before notice of assignment of any non-negotiable cause of action.</p> <p>IP.—Partial Failure of Consideration of Note and Mortgage Existing at Time of Transfer—Notice of Assignment Immaterial.—Where the payee of a note and mortgage for $3,500 - agreed to advance that full sum to the mortgagor in specified installments, but only advanced the total sum of $1,250, the partial failure of consideration as to the residue of the note and mortgage being a complete defense as to the residue against the original payee, which existed at the time of the transfer of the note and mortgage by the payee to the plaintiff, it would be a like defense as against the plaintiff, as assignee, which cannot be affected by any notice of the assignment given by the assignee to the defendant.</p> <p>Id.—Recording op Assignment op Mortgage not Constructive Notice to Mortgagor.—The mere recording by the assignee of the assignment of the mortgage only operates, under section 2934 of the Civil Code, as notice to all persons subsequently deriving title, •to the mortgage from the assignor, and constitutes no constructive notice of the assignment to the mortgagor.</p>

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

<p>Life Insurance—Action on Policy by Beneficiary—Statements in Application—Absence of “Illness” Since Childhood—Physician not “Consulted.”—An action upon a policy by a husband as the beneficiary of his wife, whose statements made in her application for the policy were that she had “not been confined to the house by illness since childhood,” or “consulted a physician since that time,” is not defeated by mere evidence of a physician that two years before the application he had treated her, when confined temporarily “from a cold, with a temporary difficulty during menstruation,” that he gave her a little medicine, and that she got •better “right away,” and that afterward “he gave her a general tonic to build her up and give her an appetite.”</p> <p>Id.—Definition of “Illness” as Used in Policy.—The word “illness,” as used in the policy, must be construed to mean something more than a mere indisposition due to a temporary cold, accompanied by a painful menstrual period. That word, as used, means a disease or ailment of such a character as to affect the general ' soundness and healthfulness of the system. “Illness” relates to matters which have a sensible, appreciable form, and applies ordinarily to matters of a substantial character, and not to a slight and temporary indisposition, speedily forgotten.</p> <p>Id.—“Confinement to House by Illness”—Disregard of “Trifles.” Remaining in the house for a few hours as the result of a cold, or other temporary indisposition, cannot be construed as “confinement to the house by illness.” Applying the maxim embodied in section 3-533 of the Civil Code, that “The law disregards trifles,” the evidence wholly fails to show that the statement made by the applicant to the effect that she had not been confined to the house by illness was untrue.</p> <p>Id.—Question as to “Consultation of Physician”—Construction.— A reasonable construction of the question as to whether the insured had “consulted a physician ” implies that it should be interpreted as relating to a consultation as to some disease or illness with which the applicant was or had been afflicted, and not to some feeling of trivial discomfort or temporary indisposition not affecting the general health.</p> <p>Id.—Support of Binding Against Breach of Warranties.—Even if the statements made in the application for the policy be considered as warranties, it is sufficient to say that the finding of the court that there was no breach of said warranties is fully sustained by the evidence.</p>

<p>Justice op the Peace—Salary in Full Compensation—Fees fob Solemnization of Marriages—Duty of Payment into County Treasury.—A justice of the peace of a township in a county of the ninth class, which has a population of sixteen thousand or more, and who, under subdivision 15 of section 4238 of the County Goveinment Act, is entitled to a salary of $150 per month in full of all compensation in both civil and criminal cases, and which, under sections 4290 and 4292 of that act, is in full compensation for services of every kind and description, is not entitled to retain fees paid to him for the solemnization of marriages not expressly authorized to be retained by law, but is in duty bound to pay the same into the county treasury.</p> <p>Id.—Express Authority op Law to Retain Fees Essential—Rule op Strict Construction.—In order that any fees allowed by law may be retained, and not paid over into the county treasury, such retention must be expressly authorized by law; and where the enactment in regard thereto admits of two constructions, the rule of strict construction against the claimant and in favor of the county government is applicable.</p> <p>Id.—Error in Denying Writ op Mandate.—It is held that the superior court erred in denying a peremptory writ of mandate to compel the justice of the peace to perform his duty to pay such fees into the county treasury, and that the judgment must be reversed, with directions to issue such peremptory writ.</p>

<p>APPLICATION for a peremptory writ of mandate to the Superior Court of Los Angeles County. Geo. H. Hutton, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Appeal—Order Vacating Default Judgment—Hearing upon Affidavits—Insufficient Authentication by Clerk—Affirmance of Order.—An order vacating a default judgment, which was heard and determined upon affidavits, must be affirmed where the only-record prepared for use upon the appeal is a purported transcript of the judgment-roll, the notice of motion to set aside the judgment, and affidavits used upon the hearing certified alone by the clerk of the trial court, which cannot be considered.</p> <p>Id.—Alternative Mods of Perfecting Appeal—Certificate of Judge Essential.—To perfect such an appeal, the appellant must adopt either the method prescribed by sections 953a, 953b and 953c of the Code of Civil Procedure, or that prescribed by rule XXIX of the supreme court. In either of such methods, the record must be examined and authenticated by the trial judge, who knows what papers were used at the hearing. It is not for the clerk to determine what papers the court acted upon in setting aside the default judgment.</p>

<p>Action for Damages—Collision of Automobiles—Complaint fob Intentional and Willful Act—Prejudicial Instruction—Burden of Proving Negligence.—In an action for damages for a collision between plaintiff’s and defendants’ automobiles, where the complaint of the plaintiff alleged only that the defendants intentionally and willfully ran their automobile upon and against the automobile of the plaintiff, to his alleged damage, and contained no averment" as to any act of negligence of the defendants, it was prejudicial error to instruct the jury that the plaintiff’s cause of action is based upon the carelessness and negligence of the defendants and that the burden is upon the plaintiff to prove that the alleged damages to his "automobile were solely caused by the carelessness and negligence of the defendants.</p> <p>Id.—Proof of Negligence not Authorizing Recovery—Fatal Variance.—Under the facts stated in the complaint, no recovery could be had for mere negligence; and if the evidence offered upon the trial in support of the plaintiff’s case should show negligence only, there would be a fatal variance between the material allegations of the complaint and the proof.</p> <p>Id.—Right of Plaintiff to Instruction upon Theory of Complaint. The complaint in every action should be founded upon a theory, and the plaintiff is entitled to have the jury instructed by the trial court upon the law applicable to the theory upon which the cause of action is founded.</p> <p>Id.—Erroneous Instruction not Cured by Correct Instruction— Irreconcilable Conflict.—The erroneous instruction is not cured by a correct instruction that a person committing a willful, wrongful act must respond in damages, and that if the jury found from the evidence that the defendants willfully and deliberately caused the collision in question, their verdict must be for plaintiff. There is such an irreconcilable conflict between this instruction and the one limiting the .cause of action to negligence, that it is impossible to determine which of the two conflicting theories was followed by the jury; and the erroneous instruction must be deemed prejudicial, notwithstanding the correct conflicting instruction.</p> <p>Id.—Distinction Between “Negligence” and “Willfulness.”—Ordinarily, and likewise in the law, as sustained by the great weight of authority, there is a decided and well-defined distinction between mere “negligence” and “willfulness.” Negligence is opposed to diligence and signifies the absence of care. It is negative in its nature, implying a failure of duty. The moment a person wills to do an injury, he ceases to be negligent.</p> <p>Id.—Contention That Case was Tried on Theory of Negligence Alone not Sustained by Record.—It is held that the contention that both parties tried the ease on the theory of negligence alone is not sustained by the record, but that, on the contrary, the record shows that the instructions requested by the plaintiff were expressly framed on the theory that the negligence of the defendants in permitting their automobile to run away was not of itself sufficient to warrant a verdict for plaintiff, and that it could not be rightfully rendered unless it was first found from the evidence that defendants willfully and deliberately caused the collision.</p> <p>Id.—Bill of Exceptions not Sustaining Inevitable Accident—Showing as to Proof.—It is held that the bill of exceptions does not sustain the contention that the verdict was based on the theory of inevitable accident because of an instruction on that theory. Where the verdict was general both against the plaintiffs on their cause of action and against the defendants on their cross-complaint, on each of which the evidence was conflicting, and the bill of exceptions shows that there was some evidence to support the contentions both of the plaintiff and of the defendants on their cross-complaint, and in view of the conflicting evidence and contradictory instructions, it is impossible to tell on what theory the verdict was founded.</p> <p>Id.—Law of Contributory Negligence—Charge to Jury.—The law of contributory negligence has no application to plaintiff’s cause of action based solely on the willful and wrongful act of the defendants; and the fact that the court deemed it necessary to charge at all upon that subject in relation to the plaintiff emphasizes the contention that the cause of action stated in the complaint was misunderstood and erroneously misstated to the jury.</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. Geo. A. Sturtevant, Judge. The facts are stated in the opinion of the court.

<p>APPEAL from a part of the judgment of the Superior Court of Mendocino County awarding interest to respondents. J. Q. White, Judge.</p> <p>The facts are stated in the opinion of the court and the decision therein referred to.</p>

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

<p>SaXíool Building—Power or Board or Trustees—Conditions or Contract to Build—Acceptance or Plans—Approval or Bond—Construction or Statute.—It is held that under a fair construction of the act of 1872 (Stats. 1872, p. 925) providing for the erection of public school buildings, it empowers the board of trustees of a school.district to accept the plans and specifications of an architect for a school building only upon the condition of the execution and approval of the required bond, and both the acceptance of the plans and specifications and the execution and approval of such bond are essential conditions of a valid contract for the erection of such school building.</p> <p>Id.—'Complaint of Architect fob Damages for Breach of Contract— Cause of Action Nonexistent.—A complaint by the architect for damages for alleged breach of a contract to erect the public school building, which merely alleges that the plans and specifications submitted by him therefor were accepted by the board of trustees of the school district, and that he prepared and delivered a bond in the required sum, which shows that it was delivered long after its date, contrary to the statute, and avers that the bond was disapproved and rejected by the board of trustees, and that they notified plaintiff that they had rescinded their action and had advertised for new bids, without further averment, shows on its face that .the alleged contract sued upon never existed, and never could exist, and a general demurrer thereto was properly sustained, without leave to amend.</p> <p>Id.—Failure to Give Statutory Bond not Matter of Defense.— Where the plaintiff has assumed to set forth all of the facts, and that the alleged statutory bond set forth was rejected for the reason appearing upon the face of the complaint, that it did not comply with the statute, and that the bond was rejected on that ground, besides for a different reason, it cannot be tenably claimed that the failure to give the statutory bond should be pleaded as a defense, and cannot be taken advantage of by demurrer.</p>

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

<p>Statutory Proceeding by Husband to Determine Vesting op Community Property in Name op Deceased Wipe—Representatives op Deceased Wipe not Concluded in Partition.—A statutory proceeding, under section 1723 of the Code of Civil Procedure, to have it determined that real property standing in the name of the deceased wife was community property which vested in the husband at the time of her death, does not constitute a conclusive adjudication against the representatives of the deceased wife, who were in the possession of the property, and were not parties thereto, and were not before the count, so as to give it the effect of an equitable decree as against them; and it may be shown by them in a subsequent action for partition, in which the representatives of the deceased wife and of the deceased husband are before the court, that the property was the separate property of the wife, and it may be so found and adjudged by the court.</p> <p>Id.—Purpose of .Statutory Proceeding—Conditional Effect of Decree.—The statutory proceeding taken under section 1723 of the Code of Civil Procedure is only intended as a means to have it determined that a person is dead, upon whose death the asserted right of another person depends, and not to have the validity of that right conclusively adjudicated. The decree in the proceeding, as respects persons not parties, merely determines conditionally that if the party petitioning has any asserted right or title accruing on the death of another person, such right or title has accrued.</p>

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

<p>Sale of Laundry Business With Personal Property—False Representations as to Extent of Business—Deduction of Damages from Price—Rescission Impracticable.—Upon the sale of a laundry business, with the goodwill thereof, with horses, wagons, harness and storm robes, where $100 had been paid upon the price, and a balance of $500 was claimed thereupon, and defendant alleged that the contract was obtained by false representations, and claimed a rescission, and the court found that defendant was damaged to the extent of $100 by the false representations, that the business had been delivered to defendant, and cannot be fully restored, that one of the horses had been sold, and no return of receipts was offered, it is held that the court did justice between the parties by deducting the $100 from the balance due, and rendering judgment for plaintiff for the residue.</p> <p>Id.—Restoration of Status Essential to Rescission of Contract.— The full restoration of the status of the other party is essential to the right of rescission of a contract therewith on the ground of alleged fraud; and where, upon the sale of a business, it becomes impossible, as the result of the execution of the contract, to place the parties in statu quo, there can be no rescission of the contract.</p>

<p>Contract to Sell Land—Improvements by Purchasers—Reconveyance After Default—Foreclosure of Deeds of Trust—Consideration for Assumption of Debts.—Where, under a contract by the defendant to sell land, the purchasers in possession subdivided it into lots and improved the same at large expense, and incurred large indebtedness, and after default in the payment of purchase money to defendant, the property was reconveyed to defendant under an agreement that defendant should assume and “pay to Martin and Hall $8,200 for street improvements,” which in fact included other improvements aggregating that sum, besides “$8,700 for mortgage indebtedness,” which was in fact for deeds of trust foreclosed in that sum, it is held that the equity of redemption acquired by the reconveyance was a sufficient consideration for the agreement to assume the whole amount of such debts.</p> <p>Id.—Construction of Agreement to Pay Sum for Street Improvements—Parol Evidence to Explain Intention Inadmissible.— It is held that in the construction of the agreement to pay the sum of “$8,200, street improvements,” the amount specified is the controlling factor, and not the specification of the matter to which the payment should be applied; and that the defendant was obligated by his agreement to pay that full sum. And since the contract is susceptible of construction on its face, parol evidence was not admissible to explain the intention of the parties to the contract.</p> <p>Id.—Contract Made for Benefit of Third Party—Right of Enforcement.—Under section 1559 of the Civil Code, “a contract made expressly for the benefit of a third person may be enforced by him at any time before the parties thereto rescind it.” While such contract remains unreseinded, the relations of the parties are the same as though the promise had been made directly to such third party.</p> <p>Id.—Estoppel of Defendant—Acquiescence in Right of Purchasers to Contract for Total Debt as upon a Single Item.—It was the right of the purchasers, if conscious of an indebtedness to plaintiff approximating $8,200, to contract with the defendant that he should pay, as for any single item, an amount sufficient to cover all their obligations to plaintiff, and defendant having acquiesced in this, and agreed to pay such gross sum, and having accepted the conveyance and retained its benefits, should not -be heard now .to say that the item specified was less than the aggregate amount agreed to be paid as part of the purchase money, such aggregate amount representing the bona fide indebtedness of his grantors to plaintiff at the time.</p> <p>Id.—Division of Items of Credit in Two Suits.—The fact that different items of the indebtedness, which might have been recovered by the plaintiff in one suit, were divided and set forth in two suits, such election not having been objected to, and the judgments rendered in the two actions being correct in amount, and within the limits of the liability of defendant to plaintiff, after having paid part thereof, the judgments will not be disturbed.</p>

<p>Vacation of Default Judgment—General Rule as to Review of Discretion upon Appeal—Abuse—Border Line.—Under the general rule that the granting or denial of a motion to set aside a judgment by default is largely a matter of discretion to be exercised by the trial court, and that the action in granting or refusing the application will only be reversed where there is a clear abuse of discretion, it is held that while the present appeal from an order refusing to vacate a judgment by default appears to be near the border line, yet this court is unable to say, in view of the entire record, that the trial court abused its discretion in, denying appellants’ motion.</p> <p>Id.—Reliance of Substituted Attorney upon False Statement of Clients.—Where it appears that a substituted attorney relies upon the false statement of his clients appealing that the demurrer had not been disposed of, they should not be allowed to complain of the result of their own false statements; and where there are several statements in their joint affidavits which are shown to be untrue, the court was justified in distrusting all of their statements.</p> <p>Id.—Action to Quiet Title—Insufficient Affidavit of Defense— Defendants Mere Squatters on State Lands.—Where the complaint of the plaintiff showed a cause of action to quiet title to land owned by the plaintiff, and the affidavit of defense filed with the motion to vacate the judgment for the plaintiff by default merely denied plaintiff’s title upon information and belief, and clearly shows that defendants are mere squatters on land belonging to the state, with no title or claim of title to the premises sued for, it is held that this court, for that reason, is more readily inclined to affirm the action of the trial court in refusing to vacate the judgment.</p> <p>Id.—Claim of Appellants That Original Attorney Misled Them— Conflict of Evidence.—Where there is a clear conflict of evidencg as to the claim of the appellants that they were misled by their original attorneys as to whether the demurrer had been overruled, this court must assume that the trial court in denying the motion resolved all conflicts of evidence against the appellants.</p>

T. W. Harris, Judge. The facts are similar to those stated in the opinion in Kearney v. Palmer, ante, p. 517, with the exception stated by the court.

<p>Negligence — Collision Between Interurban Cars — Injury to Motorman—Fault of Conductor of Colliding Car.—An interurban railway company, though not liable under section 1970 of the Civil Code, as it stood prior to the amendment of 1907 thereto, is liable under that, amendment for injury to a motorman of an interurban trolley ear collided with by the negligence and fault of the conductor of a colliding independent trolley car.</p> <p>Id.—Construction op Amendment—Purpose to Extend Employer’s Liability.—Section 1970 of the Civil Code as amended in 1907, extending the liability of an employer, for an injury, “when the same results from the wrongful act, neglect or default of ... a coemployee engaged in another department of labor from that of the employee injured, or employed upon a machine, railroad train, switch-signal point, locomotive engine, or other appliance than that upon which the employee injured is employed,” is to he given a fair and reasonable meaning, and to be liberally construed to effect the purpose of the amendment to extend the liability of the employer.</p> <p>Id.—Intention op Legislature — Broad Scope op Law—Separate Mechanical Devices.—From the phraseology of the amendment to section 1970 of the Civil Code, it is evident that the legislature intended to make the law broad in its scope, and to preserve the liability of the employer in all cases generally where the mechanical device upon which the injured servant is employed is separate and different from that being operated by the negligent employee.</p> <p>Id.—Single Interurban “Trolley Car” Included in “Railroad Train.”—It is held that under a fair rule of construction, the words “railroad train,” as applied to an interurban railway, whose trolley cars combine in. their construction both motors for propulsion and seats for the accommodation of passengers, is sufficient to include a single “trolley car” operated independently for the carriage of passengers. In construing statutes, courts are not bound to an interpretation which shall give to words or phrases a literal, close dictionary definition.</p> <p>Id.—Code Section not Violative op State or Federal Constitution— Equal Protection op Laws not Denied.—It is held that the amendment to the code section extending the employer’s liability in specified eases is not in violation of the state or federal constitution, in giving certain citizens privileges not granted to others, or in denying to anyone the equal protection of the laws. The classification made by the statute is not arbitrary, but it comports with the rule that there must be a difference in the situation of the employee from that which exists when both are working on the same machine, which justifies the special protection being extended to one class and withheld from the other.</p> <p>Id.—Bulb op Protection—Operatives on Different Trains or Cars. The rule of the special protection of one class of operatives especially applies to operatives of a railroad working upon different trains or cars.</p>

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

<p>Negligence—Steam Scalding of Railway Mail Clerk—Permanent Disability — Settlement and Release — Deceit—Res cis sion— Question for Jury.—In an action to recover damages for permanent disability to plaintiff, as a railway mail clerk, by scalding from steam, through defendant’s negligence, where it appears that defendant’s claim agent took advantage of his weak condition to secure a settlement and release of liability for $1,250, by deceitfully representing that he would be well in two or three weeks and would have no sears, and such settlement and release were pleaded in bar of the suit, it is held that such deceit amounted to actual fraud under section 1572 of the Civil Code; and where plaintiff before suit rescinded the same, and tendered back the money, it is held a question for the jury whether or not, at the time of the settlement, the plaintiff was so weak mentally that he did not under, stand what he was doing.</p> <p>Id.—Support of Verdict—Conclusiveness upon Appeal.—A verdict for the plaintiff in the sum of $5,000 is held to be amply supported by the evidence in the case; and as it is not the province of the appellate court to review or weigh the evidence, and as the instructions were as favorable to the defendant as could be asked, the verdict must be deemed a final determination in the plaintiff’s favor of all the issues in the case, and adversely to the settlement and release pleaded in the defendant’s answer.</p>

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

<p>Criminal Law—Murder—Sufficiency of Evidence to Support "Verdict— Inconsistencies of Witness to Crime.—Where, upon a prosecution for murder, the verdict was evidently based mainly upon the evidence of the brother of the deceased, as an eye-witness of the crime, it is held that, notwithstanding inconsistencies in his statement as to matters of detail, it cannot be said that there was anything in his testimony as to the homicide from which the reviewing court could justly conclude that his entire testimony is per se unbelievable, and could not, if accepted in the main by the jury, warrant their verdict as against the defendant’s story of self-defense.</p> <p>Id.—Test of Incredible Testimony.—Testimony, in order to bear upon its face such improbability as to render it unbelievable, must involve a claim that something has been done that it would not seem possible could be done, under the circumstances described, or involve conduct- that no sane person would be likely to do.</p> <p>Id.—Province of Appellate Court and of Jury.—Appellate courts are not authorized to review the evidence, except when, upon its face, it may be justly held that it is insufficient to support the ultimate issue involved, in which case it is not an issue of fact, but purely one of law. Such courts are in no position to determine the credit of witnesses, or to weigh their testimony, which is the sole province of the jury in a criminal case. In the present ease, the jury were authorized, in the discharge of their duty, to accept the testimony of the brother of deceased as to the facts of the homicide, however weak it may he in other respects, and to reject any evidence contrary to his testimony as to such facts.</p> <p>Id.—Inapplicability of Amendment of Constitution to Review pr Conflicting Evidence.—The recent amendment of the state constitution by adding section 4% of article III thereof (Stats. 1911, pt. II, p. 1778), prohibiting reversals in criminal cases for error, “unless, after an examination of the entire cause, including the evidence, the court shall be of the opinion that the error complained of has resulted in a miscarriage of justice,” is inapplicable where no error appears in the ease upon any question of law, and the verdict is sustained upon conflicting evidence.</p> <p>Id.—Construction of Amendment—Provision of Constitution Limiting Appellate Courts to “Questions of Law” "Unaffected.— The appellate court deems it certain that “said amendment was not intended to change, nor has it changed, the very sensible rule prescribed by the constitution, and for so many years adhered to in this state, that, in the exercise of their appellate jurisdiction, the appellate courts are restricted to the consideration of questions of law alone, and that therefore, as before stated, the matter of evidence does not constitute a subject of review by those tribunals except where there necessarily arises from the evidence, or is presented thereby, from its very nature, a question of law.</p> <p>Id.—Comment by Supreme Court in Order Denying Rehearing.—In the order of the supreme court denying a rehearing, in this case, that court commented thus on the foregoing statement of law: “This court regards this statement as wholly unnecessary to the decision of the case. The denial of the petition for a rehearing is not to be construed as an indication of approval or disapproval of said statement by the supreme court.”</p> <p>Id.—Evidence—Postal Card as to Straying Cattle.—It is held that there was no error prejudicial to the defendant in the admission in evidence of a postal card received by the father of deceased from the owner of an adjoining range as to the whereabouts of his cattle, and on which the father, addressing his sons, had written a request that if they saw the writer, to “thank him for telling us.”</p> <p>Id.—Cross-examination of Brother of Deceased—Wound Received— Relative Position—Error Without Prejudice.—It was error to reject a question asked on cross-examination of the brother of deceased as to whether his position was not on the left-hand side of defendant when he received two wounds in his right arm, for the purpose of making it appear that the shots were accidental, when he was firing at deceased, merely on the ground that the question was "purely argumentative”; but it is held that, in view of other evidence, the error was wholly without prejudice.</p> <p>Id.—Admission of Bloody Garments of Deceased—Corroboration of Witness for Prosecution—Intention of Mortal Wound.—The court did not err in admitting in evidence for the prosecution the bloody over and under shirts worn by deceased at the time of the fatal shot, as part of the'case for the prosecution, in corroboration of the evidence of the brother of deceased as to the homicide, and to show that the shot fired by defendant took effect in a vital part of the body, as indicated by the garments, and the intention of defendant to inflict a mortal wound.</p> <p>Id.—Sustaining Burden of Proof—People not Required to Anticipate Positions of Defendant.—The people, in the maintenance of the burden upon them of proving the guilt of the defendant, are not bound to anticipate the contentions or concessions, if any, which the defendant intends to make, or to assume that certain matters or theories supporting the hypothesis of guilt will not be disputed by defendant.</p> <p>Ip.—Absence of Defendant from Coroner’s Inquest—Evidence not Prejudicial.—It was not prejudicial to the defendant for the proseeution to prove that he was not present at the coroner’s inquest held at the scene of the homicide, as there could be no implied concession on his part of guilt, in such case, as there might be if he were present and silent thereat.</p> <p>Id.—Bad Reputation of Deceased fob Peace and Quiet — Proper Cross-examination—Local Factional Dispute.—Where evidence was introduced to show that the reputation of the deceased for peace and quiet in the community where his family resided was bad, it was proper to allow the district attorney to ask, on cross-examination, whether such reputation was not owing to a local factional fight on the liquor question, not involving any other question, although the deceased is not shown to have belonged to one of those factions.</p> <p>Id.—Cross-examination of Witness fob Defendant—Intoxication During Trial.—It may be shown from the cross-examination of a witness for the defendant that he was, during practically all of the time of the trial, under the influence of intoxicating liquors, as bearing upon the witness’ memory or want of memory as to the testimony given by him, where the cross-examination showed justification for the inquiry.</p> <p>Id.—Evidence of Good Character of Deceased for Peace and Quiet — Improper Cross-examination — Assault upon Honesty and Integrity.—Where a witness had testified to the general good reputation of the deceased for peace and quiet, in a place where he lived for three years, it was not admissible to inquire on cross-examination as to incidents affecting his honesty and integrity. Such inquiry was not relevant for any purpose. The true rule as to character evidence, in a criminal case, is that it should be confined to the trait of character in issue, and should bear some analogy and reference to the nature of the charge.</p> <p>Id.—Unfriendliness of Witness for Defendant Toward Family of Deceased—Cross-examination as to Enmity—Impeaching Evidence.— Where defendant admitted unfriendliness toward the family of the deceased, but denied positive hostility, on cross-examination the prosecution had the right to lay the foundation for impeaching evidence that he was so hostile to them that he had stated that he had leased land to the defendant in order that he might kill the sons if they drove his horses off of the range. The fact that such impeaching evidence had a far-reaching effect against the witness is not a ground upon which impeaching evidence may be excluded, the only remedy being to have its effect limited by an instruction.</p> <p>Id.—Absence of Prejudicial Error in Rulings of Court.—It is held that no prejudicial error appears in the rulings of the court upon the admission or. exclusion of evidence, and that no ground appears in the record for a reversal of the judgment and order appealed from.</p>

<p>Justice’s Court—Demurrer After Time to Answer—Default— Promise of Justice—Trial Without Notice—Ineffective Appeal—Improper Writ of Review.—Where it appears that, on the fifth day after service of summons from a justice’s court requiring answer in three days, defendant filed a demurrer, and his default was entered on the same day, and that nine days thereafter the justice promised defendant to take no action during his absence on vacation, but entered no order to that effect, and the trial was had four days thereafter, in defendant’s absence, without notice to him, and judgment was entered, without passing upon the demurrer, after knowledge of which defendant took an ineffective appeal therefrom, it is held that, after the time for appeal had expired, the superior court erred in granting a writ of review to annul the judgment and ordering the justice to pass upon the demurrer.</p> <p>Id.—Presumption as to Time of Filins Demurrer—Failure to Aver Filing Before Default.—Since it appears that the filing of the demurrer and the entry of default took place on the same day, and it is not alleged whether the filing of the demurrer was prior or subsequent to the entry of default, and it was clearly filed after the expiration of the time to answer, it must be presumed that it was filed after the entry of the default, and if so filed it conferred no right without first having the default vacated, which does not appear to have been asked for or entered.</p> <p>Id.—Effect of Filing After Default—Notice of Trial not Required.—The subsequent filing of the demurrer, after default, did not prevent the court from setting the case for trial, and trying it without notice to defendant, since, being in default, he was not entitled to such notice.</p> <p>Id.—Promise by Justice—Notice to Plaintiff not Shown—Right to Speedy Trial.—Since it does not appear that the plaintiff, who had entered the default of the defendant, had any notice or knowledge of the verbal promise of the justice to the defendant, and the action being one for the summary restitution of leased property, the plaintiff had the right to a speedy trial thereof, in the absence of the defendant, after proper proof of the entry of his default.</p> <p>Id.—Conditions of Writ of Review—Absence of Remedy by Appeal —Loss by Laches a Bar to Writ.—The writ of review issues only where there is no remedy by appeal which has existed, and where the petitioner has failed to avail himself of that remedy, or the right of appeal has been lost by his laches, so that the time in which he might have taken an appeal has thus gone by, the remedy by the writ of review is not open to him.</p> <p>Id.—Office of Writ Limited to Annulment.—Section 1074 of the Code of Civil Procedure plainly limits the power of the court, upon a writ of review, to the determination of the single question whether the inferior tribunal has exceeded its jurisdiction or has regularly pursued its aúthority, and where it has not regularly pursued its authority, the writ should be limited to the annulment of its proceedings, and should not direct any affirmative action to be taken by the inferior tribunal.</p>

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

<p>Vendor and Purchaser — Contract to Sell Land—Description— Identity—Warranty op Distance Between Boundaries—Quantity op Land.—Where a contract to sell land correctly describes its boundaries, a warranty of the distance between two designated boundaries does not vary or change the identity of the description of the land agreed to be sold. It is only a warranty as to the quantity of the land contained within the description.</p> <p>Id.—Rescission op Executory Contract by Vendee—Fraud—Breach of Warranty—Pleading.—A vendee may be entitled to rescind an executory contract for the purchase of land, and to a return of the money paid thereon, when such contract was procured by false and fraudulent representations as> to the quantity of the land contained within the parcel described, and also when there has been a breach of warranty as to such quantity. But, in such case, the fraudulent representations or the warranty and breach thereof as to quantity must be pleaded.</p> <p>Id.—Complaint for Rescission of Contract Based on Failure of Title—Clear Title—Variance—Breach of Warranty—Proper Judgment of Nonsuit.—Where the complaint for rescission of the contract of sale and to recover the purchase money paid thereon correctly describes the land set forth in the contract, and is solely based upon the alleged failure of a clear title thereto in the defendant, but the record shows that the defendant had a clear title to the land described, and shows only a breach of warranty as to the quantity of the land described, as a ground for rescission, it presents a clear case of variance between the complaint and proof, and the court properly granted a judgment of nonsuit.</p> <p>Id.—Averment of Tender and" Demand for Deed—Evidence—Noncompliance With Law—Bad Faith.—Though the complaint for rescission alleged that plaintiff tendered the balance of the purchase money, and demanded a good and sufficient deed from defendant within ten days, yet where the evidence shows a noncomplianee with section 1489 of the Civil Code as to tenders and offers of performance, but merely shows that, without any attempt to find the defendant personally, it was made at his residence during his absence, and also shows that the tender and demand were made in bad faith, with intent to reject any deed complying with the contract, and not conforming to the warranty, and that he subsequently rejected an offer of defendant to reduce the price because of deficiency in quantity, the judgment rendered was clearly warranted.</p>

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

<p>APPLICATION for discharge upon writ of habeas corpus.</p> <p>The facts are stated in the opinion of the court.</p>

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

<p>APPEAL from a judgment of the Superior Court of Sonoma County. Thos. C. Denny, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

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

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

<p>Widening of Street — Validity of Assessment — Posting Notices— Conflicting Evidence — Determination by Trial Court Conclusive.—In an action to annul an assessment for the widening of a street under the street opening act of 1903, in which the evidence was conflicting as to whether or not the required notices of the passage of the ordinance of intention to widen the street had been conspicuously posted upon all of the streets included within the assessment district, as required by section 3 of that act, it was for the trial court to determine the weight to be given to the evidence on that question, and its determination against the plaintiff and in favor of the defendants must be deemed conclusive upon appeal.</p> <p>Id.—Record op Assessments and Diagrams—Slight Uncertainty in One Parcel not Involved—Entire Assessment not Vitiated.—A slight uncertainty in the record of one parcel of property included within the assessment district, of which the owner does not complain, and whose assessment may have been paid, cannot vitiate the entire assessment of property in the district, nor affect the validity of the record of the assessment of the property of the plaintiff, who is in no position to complain of an alleged erroneous record of an assessment in which he is not interested.</p> <p>Id.—Mode op Record op Diagram — Pasting upon Stubs IN Record Book of Assessment—Purpose to Create Lien—Detachment and Repasting Immaterial.—Where the act prescribes no mode in which the diagram shall be recorded, and the purpose of the record is not to give notice of the lien created, but merely to cause it immediately to attach upon the property, the pasting of the diagram upon a stub in the record book in which the original assessment is recorded is a substantial compliance with the provision of section 20 of the act requiring the assessment and diagram to be recorded. The fact that, by handling, such diagram may be detached from the stub, and another pasting is made thereon before trial is not important, as respects the lien created.</p> <p>Id.—Meaning of Word “Recorded”—Absence op Statutory Direction —Nature op Purpose as Permanent or Temporary.—Though the word “recorded,” in ordinary usage, signifies to copy or transcribe into some permanent book, yet such meaning of the word, in the absence of statutory direction, should attach only in those cases where the record is intended to perform functions through a long period of time. There is a manifest difference between a record intended to perform functions for a long period and one intended only to serve a temporary purpose of brief duration, which, after it is accomplished, ceases to be useful.</p> <p>Id.—Purpose op “Record” op Diagram — Substantial Compliance— Liberal Construction op Statute.—Since there has been a substantial compliance with the purpose of the statute in requiring a record of the diagram and with the requirement whereby every right intended to be protected thereby has been secured, and since the statute expressly declares that this act shall be liberally construed to promote the objects thereof, it is held that appellants’ contention to the contrary cannot be sustained.</p> <p>Id.—Acquirement op Jurisdiction to Condemn Lands for Widening Street—Requisite Notice—Adjournment op Hearing.—Where all of the proceedings requisite for the acquirement of jurisdiction to condemn lands for the widening of the street, upon the report of the referees, were taken with the notice which was required by seetion 11 of the aet of 1903, as originally enacted, and also with the further notice required by that section as amended in 1909 after the enactment of the amendment, the court, after being thus vested with full jurisdiction, had the right to adjourn the time appointed to hear the report of the referees, without further notice than that required by section 11 as it existed when jurisdiction was acquired.</p> <p>Id.—Power of City Council to Abandon Proceedings—Loss of Power Under Amended Act.—Where no power of the city council to abandon proceedings under the original section 14 of the act of 1903, at any time prior to the payment of compensation was exercised thereunder, and under the amendment of 1909 to that section its jurisdiction to abandon the proceedings was expressly limited to a time preceding the entry of the interlocutory judgment, its attempt to abandon the proceedings after such entry is held void and of no effect, under the authority of Title Insurance Trust Co. v. Lush, 15 Cal. App. 358, [115 Pac. 53], for want of power to abandon the same.</p> <p>Id.—Implied Action upon Protest—Order for New Assessment.— The ineffectual attempt of the council to abandon the proceedings was effective to the implied extent of sustaining the protests. The city council had jurisdiction to hear the protests and act upon them, and either affirm, modify or correct the assessment, or to order a new assessment, as it subsequently did in the proper exercise of its power, which it had no jurisdiction to abandon or nullify after the entry of the interlocutory decree.</p> <p>Id .—Moot Question—Review upon Appeal from Order—Dismissal.— This court will not review an appeal from an order which involves a mere moot question, in view of its conclusions upon the merits of the ease, but the appeal from such order will be dismissed.</p>

<p>APPLICATION for writ of habeas corpus.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Chattel Mortgage op Planing-mill Machinery—Subsequent Fixtures to Realty—Precedence op Real Estate Mortgages—Want op Actual Notice op Chattel Mortgage.—A mortgagee of real property, who took two mortgages thereon to secure different advances to the owner, upon which real property, at the time of their execution, a planing-mill plant was in operation, with its machinery, engine, boiler and other equipments permanently affixed to the realty, is entitled to precedence as to such fixtures over a prior chattel mortgage of the planing-mill machinery, executed and recorded, as such, before its attachment to the realty, where it appears that the mortgagee of the realty made Ms advances and took his mortgages without actual notice of the existence of the chattel mortgage.</p> <p>Id.—Legal Eppect op "Valid Chattel Mortgage as Such.—So long as mortgaged personal property remains personal property and is not removed from the county where the chattel mortgage is recorded, the mortgagee is protected in Ms lien as against subsequent purchasers from the mortgagor, for they are charged with constructive notice of the recorded chattel mortgage. But when such property is affixed to land, a different question arises, though as between the chattel mortgagor and mortgagee the lien might not be thus defeated.</p> <p>Id.—Eppect op Chattel Mortgage on Planing-m:ill Property—When Appixed to Realty—Absence op Constructive Notice to Real Estate Mortgagee.—The mere fact that the mortgaged plamngmill property was of such a character as required it, for practical purposes, to be affixed to land, is not sufficient, after it has become attached to the realty, to put a subsequent mortgagee of the land upon inquiry as to the existence of the chattel mortgage, or to charge him with constructive notice thereof. Such subsequent mortgagee had the right to assume that he was purchasing real property, regardless of the fact that it was necessarily personal property before it was affixed to and became part of the land.</p> <p>Id.—Construction op Code as to Record op Chattel Mortgage.— Section 2963 of the Civil Code, which expressly requires chattel mortgages to be recorded in a separate volume, is to be construed, in relation to its further provision that mortgages of personal property may be acknowledged and recorded “in like manner as grants of real property,” to mean that the chattel mortgage is constructive notice of what it contains, and cannot be regarded as notice in anywise affecting the title to real property.</p> <p>Id.—Nature of Record of Chattel Mortgage and of Realty—Duty of Search.—A chattel mortgagee is chargeable only with notice of a prior recorded chattel mortgage on the same property, and he is not required to look to the record of the deeds or mortgages of realty for prior encumbrances. And so, also, a purchaser of the realty is bound only to take notice of the record title of the realty, and is not in any way bound to examine the records of chattel mortgages, as he is not affected by the record of a chattel mortgage upon fixtures of the realty, and a purchaser or mortgagee of the realty need only inquire for liens on real estate.</p> <p>Id*—Comment of Supreme Court in Order Denying Rehearing.—The supreme court in its order denying a rehearing approves of the ruling that a purchaser or mortgagee of land need not examine the record of chattel mortgages in so far as it applies to chattels of the character involved in this case. Upon the question whether it applies to all property mortgageable as chattels, including growing crops, no opinion is expressed, as it is not involved in this case.</p> <p>Ib.—Untenable Replevin by Chattel Mortgagee—Finding—Priority of Real Estate Mortgages.—The chattel mortgagee cannot maintain an action of replevin to recover the possession or value of the planing-mill machinery mortgaged which was affixed to the land, as against the mortgagee of the land, who had purchased the same at a sale under foreclosure, and had taken his mortgages without actual knowledge of the existence of the chattel mortgage. It is held that the court was justified in finding in such action that the real estate mortgages took priority over the chattel mortgage.</p> <p>Id.—Foreclosure of Mortgages—Receiver of Rents and Profits— Disposition—Deficiency Judgment Assigned—Rights Limited to Purchaser—Reversal.—Where a receiver, appointed during foreclosure of the real estate mortgages, to receive the rents and profits of the mortgaged land, settled his accounts after the mortgagee had purchased the property under the decree, and taken a deficiency judgment against the corporation mortgagor, which had assigned all of its property to a trustee for the benefit of its creditors, and after the deficiency judgment of the mortgagor had been assigned to the same trustee, it is held that the court erred in applying the rents and profits upon such deficiency judgment, and that the judgment must be reversed, in so far as to direct the court to ascertain and apply only such portion of the rents and profits as belonged solely to the purchaser at the sale.</p> <p>Id.—Judgment in Former Action not Pleadable in Bar—Receiver Sued Individually—Different Parties.—A judgment in a former action of the same general character brought by the same plaintifE against the real estate mortgagee and the receiver, sued individually, in which the plaintifE was nonsuited as to the mortgagee, and judgment was rendered against the plaintifE in favor of the receiver as an individual, cannot be pleaded in bar of the present action against the mortgagee individually and the receiver sued in his official capacity, who is not the same person as when sued individually, and who is not liable in his individual capacity. A judgment, to be a bar, must be between the same parties, in the same capacity, and must be “in respect of the matter directly adjudged.”</p>

<p>Action for Partnership Accounting—Corporations Used as Instrumentalities—Gift of Stock by Deceased Partner to Heirs— Equity Jurisdiction and Relief.—A complaint in an action for an accounting and settlement of a partnership between plaintiff and one of the defendants and a deceased partner, which shows that the corporation defendant and another corporation named Were used as instrumentalities of the partnership in carrying on construction work for the United States, and that the deceased partner is largely indebted to the partnership, but had caused his shares of stock in such corporation to be transferred to his heirs as a gift causa mortis, states a ground for relief in equity as against such administrator and heirs, and they may be restrained from disposing of such stock pending the settlement of the partnership accounts.</p> <p>Id.—Venue of Equity Action—Presumed Procedure upon Judgment. Such action in equity for an accounting of the partnership may be brought and tried in the superior court of a county other than that in which the estate is being administered. But if, upon the trial, anything is found due from the estate, it is to be presumed, if no ground in equity appears' for a different procedure, that the court would be guided by section 1504 of the Code of Civil Procedure, in formulating its judgment, whereupon a certified transcript of the original docket of the judgment would be filed among the papers of the estate in the county in which the estate is being administered.</p> <p>Id.—Jurisdiction of Superior Courts in Equity Coextensive.—All of the superior courts have like original jurisdiction “in all cases in equity,” and their process extends “to all parts of the state.” The superior court of the city and county of San Francisco has the same jurisdiction in equity as the superior court of Alameda county, in which the estate is being administered; and if the action in equity could be maintained in the latter county, there is no reason why it may not be prosecuted in the former. So far as jurisdiction in equity is concerned, the two counties stand upon the same footing.</p> <p>Id.—Question of Change of Venue—Bight to Bring Action in Another County Unaffected.—Even if the right should exist to have the action in equity tried in Alameda county, such right is not to be confounded with the right to bring the action in the superior court of the city and county of San Eraneisco.</p> <p>Id.—Power in Equity to Enforce Belief—Parties Before Court—. Injunction Against Diversion of Stock—Power not Limited by Provision for Judgment.—Where the action in “equity” involves the assumption that the estate of plaintiff’s deceased copartner will be shown to be indebted to plaintiff and his assignor, another copartner, on a fair accounting, in a large sum of money, that the inventoried estate is wholly insufficient to meet the claim, and that the administrator and heirs who are before the court have possession of corporate stock of great value, which rightfully belongs to the estate, and should be applied to the judgment upon such accounting, and that its diversion therefrom should be enjoined, it cannot be maintained that such scheme must collapse and the injunction must fall, by the limitation of the court’s power under section 1504 of the Code of Civil Procedure. The court’s power in equity is not limited by that section.</p> <p>Id.—Power of Equity to Make Belief Complete—Order for Sale of Stock and Disposal of Proceeds.—When a court of equity has once obtained jurisdiction, it will do complete justice by deciding the whole case. It may order the sale of the shares of stock which have been wrongfully placed in the custody of the administrator and heirs, and their proceeds applied to the payment of the creditors of the estate, including the plaintiff, when his claim to payment is established; or it may order the administrator, who is a party defendant before the court, to take possession of such shares of stock, and to sell the same and apply the proceeds to the payment of creditors of the estate. The court will not be left with its hands tied, without power to make any disposition of the stock to satisfy the plaintiff’s claim.</p> <p>Id.—Nature of Action—Not a Creditor’s Bill—Partnership Accounting—Incidental Belief.—The action cannot be strictly called a creditor’s bill; but it is an action in equity for an accounting of the affairs of a partnership, which the administrator has no power to adjust, and incidentally to cause property belonging to a deceased partner to be subjected .to administration for the benefit of plaintiff, as a creditor, and other creditors of the estate. The fact that at the beginning of the action the plaintiff’s claim was not reduced to judgment cannot preclude incidental equitable relief to prevent the diversion of such property, which the administrator and heirs wrongfully claim as their own, since if the plaintiff was deprived of access thereto he would be remediless.</p> <p>Id.—Limited Power of Probate Court—Belief in Equity Court.— The superior court sitting in probate cannot go into an accounting of a copartnership, nor determine the ownership of shares of stock which are as yet no part of the estate, and in respect of which the administrator refuses to take steps necessary to determine their ownership. The equity court alone can and will afford relief where the powers of the probate court .are inadequate to do justice.</p> <p>Id.—Injunction Justifiable—Discbetion.—The injunction was justifiable where the facts show that by no other means could the property have been preserved to await the result of the accounting. Where an injunction is justifiable, the issuing of the writ is, in a large degree, a matter of discretion, which should be exercised in favor of the party most likely to be injured.</p>

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

<p>Action fob Broker’s Commissions—Authority to Sell Two Tracts —Interesting Person Who Buys One Tract from Other Agents —Nonsuit.—Where the written authority of a broker, whose assignee is suing for his commissions on the sale of one of two tracts of land, was for the joint sale of the two tracts, at a fixed price, upon a commission of five per cent, and through the broker’s efforts a person became interested in the smaller parcel, but he was not introduced to the owner, and the sale thereof was effected through other agents, the plaintiff was properly nonsuited, because, first, the evidence shows no sale under the written authority, and because, second, the sale on which the commission is claimed was not effected by the broker as the proximate cause thereof.</p> <p>Id.—Essentials of Recovery of Broker’s Commissions.—A broker is entitled to his commissions for effecting a sale of property only when it affirmatively appears that the purchaser, as the result of the broker’s efforts, was induced to buy the property, or that a prospective purchaser was ready, able and willing to buy upon the terms and at the price specified by the owner. The obligation of the broker under Ms contract with the purchaser is to bring about a meeting of minds between the owner and a prospective purchaser for a sale of the property at the price and upon the terms at which the property is offered for sale, and which could be enforced by the owner, if he has a perfect title. Or if there is no contract, it must appear that the broker brought the owner and prospective purchaser together, with the view to effect and secure a contract of sale upon the owner’s terms.</p> <p>Id.—Putting Prospective Purchaser upon Track of Property on Market.—Merely putting a prospective purchaser on the track of property which is on the market will not entitle the broker to the agreed commission, nor will he be entitled thereto if he finally fails in his efforts, without the fault or interférenee of the owner, to induce the prospective purchaser to buy, or make an offer to buy, although the owner may subsequently, either personally or through other brokers, sell the same property to the same individual at the price and terms for which the property was originally offered for sale.</p> <p>Id.—Pleading—Cause of Action Limited to Indivisible Contract of Sale—Absence of Proof—Proper Nonsuit.—Where the complaint states only a cause of action on the written contract authorizing the broker to sell both tracts together, and does not allege any modification of the same, or any other employment of the broker by the owner of the property, it shows an indivisible contract of sale for the entire property, which required the broker to procure a purchaser for the entire tract before he could be entitled to any commissions; and there being an entire absence of proof as to the performance of the contract alleged, for this reason, if for no other, a nonsuit was properly granted.</p> <p>Id.—Evidence Outside Issues.—Where the assigned claim sued upon by the plaintiff was for commissions on the sale of one tract only, evidence of a subsequent purchase of part of the other tract is outside the issues, and is inadmissible.</p> <p>Id.—Admission of Letter not Made Part of Eecord—Error not Appearing.—Error, to be a ground of review, must affirmatively appear; and where a letter was admitted in evidence which is no part of the record, it must be presumed that the ruling of the trial court in relation thereto was correct.</p>

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

<p>Insolvent Bank—Rehabilitation by New Bank—Exchange of Claims for Bonds—Dividend—Agreement for Reassignment— Executed Payment of Debt—Rights of Receiver of New Bank. Where an insolvent bank was sought to be rehabilitated by a new bank, which took assignments of its claims and issued its bonds to the claimants, and a dividend of fifty cents on the dollar was declared by the insolvent bank, and appellants, as claimants of bonds, being indebted to the receiver of the insolvent bank for rent in $875, procured $1,750 of bonds to be delivered, on account of dividends, to pay such debt in full, and agreed with the president of the new bank for a reassignment of the residue of the bonds, that he might receive his share of the residue of the dividend, but before such agreement was executed, the receiver of the new bank repudiated the transaction, it is held that the court properly approved of the payment of such debt, and properly ordered the residue of the uncollected claims of appellants to be turned over to the receiver of the new bank.</p>

<p>Eminent Domain—Lands Condemned fob Street Widening—Assessments in Treasury—Mandamus—Appeal Pending not Considered —Absence of Stay.—Where lands were condemned in an action for street widening, and the assessments were collected and paid into the city treasury, and there was no appeal from the judgment of condemnation, and the trial court decided in favor of the validity and regularity of the proceedings, and there was no stay pending an appeal involving such validity and regularity, a proceeding in mandamus to compel the payment of such funds in the treasury to the property owners cannot serve to review the correctness of the action of the trial court; and where the board of public works refused to draw warrants for such funds in favor of the property owners, pending such appeal, a peremptory writ of mandate will be granted to compel such action.</p> <p>Id.—Bbhearing — Affirmance of Judgment Appealed from — Peremptory Writ.—Where a rehearing was granted for further consideration, and pending such rehearing the judgment of the trial court as to the validity and regularity of the proceedings for condemnation was affirmed upon appeal, and upon such rehearing the original opinion was adopted and approved, the peremptory writ of mandate must issue in accordance therewith.</p>

APPEALS from a judgment of the Superior Court of Riverside County, and from an order denying a new trial. Benjamin P. Bledsoe, Judge Presiding. The facts are stated in the opinion of the court.

<p>APPEAL from a judgment of the Superior Court of Sonoma County enforcing a mandamus. Thos. C. Denny, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Action to Quiet Title Under McEnerney Act—Motion to Vacate Judgment by Default Under Section 473—Adverse Claimant not Served—Title not Deraigned.—Where a motion to vacate a judgment by default rendered under the McEnerney act of 1906 (Stats. 1906, p. 78), quieting title to four lots, is based upon an affidavit otherwise sufficient under section 473 of the Code of Civil Procedure, to entitle the mover to the relief asked on the ground that the plaintiff knew when the action was commenced that a defendant, now deceased and represented by an administratrix, was a half owner of three of said lots and the whole owner of lot 4 thereof, it is not a ground of objection to such affidavit, as distinguished from a proposed answer, that it does not state the source of the claimant’s title.</p> <p>Id.—Effect of Lis Pendens Under McEnerney Act—Showing Required to Vacate Decree—Adverse Interest at Commencement of Action.—The notice of lis pendens required to be filed under the McEnerney act must be deemed to apply to all defendants named or not named. It follows that a defendant not named therein seeking relief from the judgment under section 473 of the Code of Civil Procedure must show that he had some interest in the property involved in the action at the time of the commencement of the action adverse to that asserted by the plaintiff.</p> <p>Id.—Sufficient Showing of “Valid Adverse Interest”—“Ownership.”—Under section 473 of the Code of Civil Procedure, it is sufficient that the affidavit shall state facts sufficient to show that the claimant had a “valid adverse interest” in the property involved in the action when it was begun. An allegation of “adverse interest” must necessarily result from an allegation of “ownership” known to exist by the plaintiff when the action was commenced.</p> <p>Id.—False Affidavit of Plaintiff—Findings and Decree not Conclusive.—Section 5 of the act expressly requires the plaintiff to make affidavit “that he does not know and has never been informed of any other person who claims or may claim any interest in . . . the property adversely to him,” and if he discloses the name of such person, the summons shall be personally served upon such person, if he can be found in the state, with a copy of the complaint and affidavit. The findings and decree should not be held to be conclusive of the truth of such affidavit if shown to be false and fraudulent, as against a party not served with summons who asks relief under section 473, and directly and unequivocally states that plaintiff knew at the commencement of the action, and when he took his decree, that the claimant had an interest in the property.</p> <p>Id.—Stipulated Answer Proposed to be Filed at Time of Motion.— Where-the parties have stipulated that a verified answer set forth was proposed to be filed at the time of the motion, which distinctly presents issues of fact as to the ownership of the property, setting forth the nature and source of the title claimed to have been in appellant’s intestate prior to the commencement of the action, while it is not made part of the record of the motion, the trial court, since it was proposed to be filed, might well have considered it under .the circumstances, and should have given it its proper weight in determining the motion.</p> <p>Id.—Relief to be Granted to Legal Representative of Deceased Defendant.—Section 473 of the Code of Civil Procedure expressly extends to the legal representative of a deceased defendant the right “to answer to the merits of the action,” and a similar right of substitution is involved in section 1582 of the same code.</p>

<p>APPEAL from an order of the Superior Court of the City and County of San Francisco dismissing an application for an order permitting or instructing the defendant corporation or petitioner or the receiver of corporation to enter petitioner’s name as a stockholder of record in the stock book of the defendant corporation. James M. Seawell, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>APPLICATION for writ of prohibition to the Superior Court of Yolo County. N. A. Hawkins, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Action fob Damages fob Breach of Contract to Sell Land—Limited Authority of Brokers—Cause of Action not Stated—General Demurrer.—A complaint in an action for damages for breach of a contract to sell land, purporting to be signed by real estate brokers, in the name of the vendor, and which sets forth their contract of employment by the vendor, defendant, which merely shows that they were employed to negotiate a sale, at an agreed price, for a specified commission, reserving to the vendor the right to sell the property, and agreeing to pay two per cent commission in ease of sale, and which contained no express authority to the brokers to make a binding contract of sale, states no cause of action, and a general demurrer thereto was properly sustained.</p> <p>Id.—Settled Bulbs as to Authority of Brokers—Power to Execute Contract must be Free from Doubt.—Under the code provisions, and the settled authorities with regard' to the power or right of brokers, as agents of the owner of land, to execute a contract of sale for such owner, the settled rule is and ought to be that, if such authority is intended to be conferred, the language used in conferring it should be so clear, distinct, and certain in its meaning to that end as to leave no room for doubting that such was its purpose. The ordinary authority of a real estate agent is to find a purchaser, and he has no .power to bind his principal by a contract, unless it was intended to confer such additional authority.</p> <p>Id.—General Tenor of Agreement in Question—Nullity of Action of Brokers.—It is held that the general tenor of the whole agreement in question clearly shows an intention on the part of the owner to limit the authority of the brokers merely to the procurement of a purchaser ready, willing and able to buy the same, and not to confer upon the broker the right or power to execute for him a contract of sale; and that any act on the part of the brokers, beyond the authority conferred, was a nullity, so far as any effect it was designed to have on the owner was concerned.</p>

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

<p>Building Contract—Prevention of Performance—Loss of Building by Fire—Protecton by Contract Essential.—-Where one contracts to furnish labor and materials in the building of a house or other structure for a specified sum, to be paid in installments, the builder cannot recover for a partial construction, in case the building is destroyed by fire, without the fault of either party, unless the builder is protected against such contingency by the terms of the contract.</p> <p>Id.—Other Conditions of Recovery by Builder for Prevention of Performance Enumerated—Act of God—Pire not Included.— The builder eau only recover for partial compensation when the full performance of his contract is prevented by the act of the other party, or by operation of law, or by the act of God, or of the public enemy. Pire is not to be classified as an act of God.</p> <p>Id.—Contract for Work and Materials on Existing Building—Implied Condition of Continued Existence—Loss by Pire—Assumpsit for Reasonable Value.—-Where one agrees to furnish work and materials upon an existing building, such as to do painting and plastering work thereon, such agreement is upon the implied condition that the building shall continue to exist, and its destruction by fire, without the fault of either party, will excuse the full performance of such agreement, and will entitle the agreeing party to recover the reasonable value of the work and materials in part performed, prior to the fire, upon an implied assumpsit.</p> <p>Id.—Assumpsit not upon Contract—Terms of Contract not Controlling.—An action will only lie upon such contract when it has been fully performed; but an action of assumpsit for work and materials furnished prior to the accidental loss of the building by fire, to recover its reasonable value, is not upon the contract, and the terms of the contract in this regard are not controlling.</p>

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

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

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

<p>Foreign Corporation—Unauthorized Judgment by Default—Doing Business in State not Shown—Service of Summons upon President.—In an action against a foreign corporation, where the complaint shows that it is a foreign corporation, authorized by its charter to own stock in other corporations, and judgment was sought against it upon its statutory liability as a stockholder in a corporation organized under the laws of this state, but where neither the complaint nor the affidavit of service of summons upon its president shows that it is doing business in this state, or that it had a managing agent, cashier or secretary within the state, upon whom service of summons can be made, it was insufficient to support a clerk’s judgment by default, under section 411 of the Code of Civil Procedure.</p> <p>Id.—Effect of Ownership of Shar.es in Domestic Corporation— “Doing Business in State”—President not Presumed “Managing Agent.”-—-If it be conceded that the effect of the ownership of shares by a foreign corporation in a domestic corporation, organized under the laws of this state, constitutes a “doing business” by such foreign corporation in this state, it does not follow that the president of such foreign corporation who is served with summons shall he presumed to he the managing or business agent of sueh foreign corporation.</p> <p>Id.—Clerk’s Entry of Default Judgment—Ministerial Duty—Presumption of Other Proof not Indulged.—Where a default judgment is entered by the clerk, there is no such presumption of other proof as would attend sueh a judgment ordered by the court. The clerk’s duty in entering a judgment by default is ministerial, and not judicial in its nature.</p> <p>Id.—Supplemental Affidavit Filed Long After Perfecting Appeal No Part of Record.—A supplemental affidavit filed long after the perfecting of this appeal constitutes no part of the record to which the appellate court is entitled to look in determining the question presented by the record.</p>

<p>State School Lands—Limitation of Time for Contest—ITve Tears from Issuance of Certificate.—Under the provisions of section 3499 of the Political Code, as amended March 13, 1911, the superior court is divested of jurisdiction to hear and determine a contest for state lands, unless such contest shall be filed, heard, determined, referred or allowed, within five years from and after the date on which such certificate of purchase may have been issued.</p> <p>Id.—Code Amendment Retroactive.—The provisions of section 3499 of Political Code as amended in 1911 are expressly made applicable to all cases; and there is a clearly expressed intention that that section should act retroactively, and bar all previously issued certificates unless heard and determined within five years from the date of the issuance of the certificate. The mere application to purchase, without payment of money, vests no rights in the applicant, and that section cannot be said to impair the obligation of any contract, or to be destructive of any vested rights or interests.</p> <p>Id.—Want of Jurisdiction of Superior Court—Prohibition—Remedy by Appeal—Adequacy-—Discretion of Prohibiting Court.—Since the superior court is divested of jurisdiction to hear and determine a contest of a certificate of purchase after the lapse of five years from its daite, a writ of prohibition will lie to restrain it from exercising such jurisdiction, notwithstanding a possible remedy by appeal from its judgment without jurisdiction. The question whether, such remedy is adequate is matter within -the sound discretion of the court granting the writ.</p>

<p>Action upon Note—Agreement to Pat “Attorneys’ Pees Which may be Incurred in Collection”-—Averment of Seasonable Pee —Negative Payment.—In an action upon a note under an agreement to pay “attorneys’ fees which may be incurred in the collection of this note,” where the complaint averred that “five hundred dollars is a reasonable fee to be allowed plaintiff as attorneys’ fees in the collection of said note and the prosecution of this suit,” and the defendant merely denied “that five hundred dollars is a reasonable fee to be allowed the plaintiff as attorney’s fee in- the collection of such note and prosecution of this suit, or otherwise or at all,” such denial admitted that any fee under $500 was reasonable. In this state of the pleadings, the court was authorized to allow $300 as a reasonable fee.</p> <p>Id.—Unnecessary Allegation and Proof—Express Agreement to Employ and Pay Plaintiff.—It was not incumbent upon the plaintiff to allege and show by express proof that an attorney had been employed, and that an agreement had been made to pay him, before the court was authorized to make an allowance for attorneys’ fees as having been "incurred” by the plaintiff.</p> <p>Id.—Proper Foundation in Record for Allowance of Fees by Court —Expert Evidence not Required.—Where the record shows that plaintiff’s action was brought by an attorney at law, who signed the complaint, alleging reasonable attorneys’ fees, and who also appeared in court, and presented a motion for judgment upon the pleadings, which was granted, the court was authorized, when the nature and extent of the services rendered by the plaintiff were made to appear from the papers and proceedings had, or by other evidence, to fix such an amount as would be a reasonable compensation for such services, without hearing any expert evidence thereon.</p>