Volume 181 — California Reports

<p>[1] Vendor 'and Vendee — Contract op Sale — Attempted Abandonment—Remedies.—Where under a contract of sale the conveyance of the title and the payment of the price are dependent and concurrent conditions, and the vendors, upon the vendee’s default, attempt to abandon the contract, without tendering the vendee a good and sufficient deed, the vendee may at his election consider the contract terminated and sue for the recovery of the money paid, or consider the contract in force and sue for damages for the breach, but he cannot have both remedies.</p>

<p>APPEAL from a judgment of the Superior Court of Tehama County. John F. Ellison, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>[1] Estates of Deceased Persons — Family Allowance — Bight of Widow.—Under section 1464 of the Code of Civil Procedure, when a person dies leaving a widow, such widow is entitled to a reasonable provision for her support to be allowed by the superior court, and such provision is not conditioned upon her having lived in a family relation with the deceased at the time of his death.</p> <p>[2] Id.—Family Allowance Favored — Decree Dividing Community Property—Construction.—The widow’s claim to a family allowance is strongly favored, and in construing a decree dividing the property of the community between the spouses, her right to such allowance should not be held to have been surrendered except by clear and explicit language, and care should be taken to avoid a construction of the decree so as to make it apply to rights which the proceeding was not intended to adjudicate.</p> <p>[3] Id.—Decree of Divorce—■ Division of Community Property — Assignment to Husband Free of All Claim of Wife—Family Allowance not Included.—The assignment and allotment to the husband in a decree of divorce of certain community property “free and clear of all claim” of the wife, does not cover a claim for family allowance upon the husband’s death, where from a consideration of the whole decree it appears that the subject matter of the adjudication was the presently existing rights of the spouses in the property of the community.</p>

<p>[1] Homestead — Tenancy in Common — Joint Tenancy.—A homestead cannot be created or set apart from property owned by the husband or wife and a third party, as tenants in common or joint tenants.</p> <p>[2] Id.—Homestead Act op 1868 — Abrogation upon Adoption op Codes'.—The act relating to homesteads adopted by the legislature in the year 1868 (Stats. 1867-68, p. 116), which substantially provided that whenever a party entitled to a homestead under the laws of the state is in exclusive occupation of any particular tract of land, having the same inclosed, and shall select and record and reside upon the same as a homestead, he shall be entitled to the same to' the extent of his interest in the property, “although such land be held in joint tenancy, or tenancy in common, or such claimant own only an undivided interest,” was abrogated by the adoption of the codes on January 1, 1873.</p>

<p>[1] Public Nuisance—Injunction—Special Injury.—To entitle a ■private person to sue to enjoin a public nuisance, he must allege and prove facts showing that it causes special injury t'o himself in person or .property, and of a character different in kind from that suffered by the general public.</p> <p>[2] Sanitary Water Act—Furnishing Water for Domestic Use— Permit of State Board of Health—Injunction by 'Consumer—■ Constitutional Law—Unreasonable Exercise of Police Power. The act of the legislature (Stats. 1913, p. 793), requiring every person or corporation engaged in furnishing water for human consumption and having over two hundred and fifty service connections to apply to the state board of health for permission to continue the service, and making it the duty of the board, after investigation, to grant the permit if it determines that the water being furnished is the purest and most healthful obtainable or securable under all the circumstances and conditions, and further providing that the furnishing of water without such a permit is a public nuisance which any consumer may bring an action to abate, is unconstitutional, in so far as it provides for an injunction, because it authorizes an unreasonable exercise of the police power of the state</p> <p>[3] Polios Power—Legislature—Limitation.—The legislature is possessed of the entire police power of the state, except -as its power is limited by the provisions of the constitution, but it cannot, under the guise of the police power, unreasonably interfere with a lawful and' useful occupation or business which is not inherently, or because of the manner in which it is carried on, injurious to persons or property, or to the public health, convenience, comfort, safety, or morals.</p> <p>[4] Water and Water Bights—Furnishing Water fob Domestic Use—Lawful Business—Unreasonable Restriction.—The business of furnishing water for domestic use is a lawful one, and to say that a person who is engaged in furnishing such water shall immediately cease doing so, although the water he is furnishing is healthful and safe, until he shall have procured some better quality of water which it is possible for him to obtain, is an unreasonable restriction upon a lawful occupation, and it is a case in which the restriction has no relation whatever to t'he preservation of the public health, comfort, or convenience.</p> <p>[5] Sanitary Water Act—Amendment—Effect not Retroactive.— The amendment of 1915 to the statute of 1913, eliminating the clause providing that no permit shall be granted unless the water being furnished was the purest and most healthful obtainable under the circumstances and conditions, had no retroactive effect upon a judgment rendered in an action for an injunction before such amendment was enacted.</p> <p>[6] Id.—Unconstitutional Provision not Severable.—The clause in the act of 1913 providing that no .permit shall be granted unless the water being furnished was the purest and most healthful obtainable under all the circumstances and conditions, cannot be eliminated without destroying the entire section, since to direct that an injunction should issue under such circumstances because by eliminating a material portion of the law it could be made valid, would be in the nature of judicial legislation of a retroactive character.</p> <p>[7] Id.—Primary Object of Act of 1913.—The .primary object of the act of 1913 was to prevent the supplying of water for human use which was unhealthful and unsanitary, and thereby to preserve and protect the general health of the people of the state, and the .power to grant or refuse a permit was given to the state board of health solely with the object of preventing the use of water detrimental to health, and where the water is wholesome, sanitary, and fit for human consumption, an action for an injunction is without foundation.</p> <p>[8] Injunction — Restraining of Nuisance — Rule.—When an injunction to restrain a nuisance will produce great public or private mischief, a court of equity is not bound to grant it merely for the purpose of protecting a technical unsubstantial right. The court may properly be guided by the consideration of the relative convenience of the parties; and if it appears that the benefit resulting to the plaintiff from the granting of the writ will be slight as compared to the injury to the defendant, the relief may be denied and the plaintiff left to the pursuit of his remedy at law.</p>

<p>Sanitary Water Supply Act—Injunction—Bight to Maintain Action—User op Water.—An action to enjoin a municipal corporation from supplying water for domestic uses which comes from a source alleged to be contaminated and unfit for use cannot be maintained under the provisions of the act of 1913 (Stats. 1913, p. 793), by one who is not a user of water which comes from such source.</p>

<p>Sanitary Water Supply Act—Injunction—Bight to Maintain Action—User op Water.—An action to enjoin a municipal corporation from supplying water for domestic uses which comes from a source alleged to be contaminated and unfit for use cannot be maintained under the provisions of the act of 1913 (Stats. 1913, p. 793), by one who is not a user of water which comes from such source.</p>

<p>[1] Prohibition — Pendency of Proceeding in District Court of Appeal—Transfer to Supreme Court Prior to Final Judgment —Unwarranted Exercise of Power.—Conceding the existence of the power of the supreme court to order a transfer of a proceeding in prohibition pending in the district court of appeal to the supreme court for hearing and determination, the exercise of such power is not warranted, where the district court of appeal had overruled a demurrer to the petition for the writ and directed an alternative writ to issue, but had rendered no final judgment.</p> <p>[2] Id.—Further Proceedings — Order and Opinion of District Court of Appeal not Law of Case.—The order of the district court of appeal overruling the demurrer to the petition for the writ of prohibition and the views stated by such court as its reasons for making the order, do not constitute the law of the case in so far as further proceedings in that court are concerned, or upon any petition for a hearing in the supreme court that may be filed after the proceeding is finally determined- by the district court of appeal.</p>

<p>APPEAL from a judgment of the Superior Court of Los Angeles County. H. T. Dewhirst, Judge Presiding.</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. Howard A. Peairs, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>[1] Action for Labor and Materials—Contract for Street Work— Notice of Defects—Sufficiency of.—In an action to recover an alleged balance due for labor and materials .furnished in improving streets on defendant’s land, the contention that the defendant by its failure to serve upon the contractor a written notice of defects containing a direction as to what steps should’be taken to remedy the same was estopped from claiming defective workmanship, is without merit, where the notice1 served stated the defects and the contract did not either expressly or by implication require that the notice should contain anything more.</p> <p>[2] Id.—Fraud of Contractor—Failure to Serve Proper Statement of Defects—Estoppel.—In such action, where it appeared that the defects in the work constituted material departures from the contract which were made by the contractor willfully and with intent to cheat and defraud defendant, and that defendant was • thereby cheated and defrauded, neither the contractor nor his assignee is in any position to assert that defendant had waived its right to object to the defects in the work by failing to serve a proper statement of defects.</p>

<p>[1] Conditional Sale—Contract in Form of Líbase.—An agree-1 ment in the form of a lease of personal property is a conditional sale and not a lease, where the instrument provides for the payment of monthly installments until all of the “rental” with interest thereon is paid, when a bill of sale is to be made upon the payment of one dollar, and further provides that in case of refusal to accept delivery, or failure to pay any installments, or in case of any other violation of the agreement, all of the rental, at the option of the seller, shall become immediately due and payable, and he may at his option enforce payment of the full amount unpaid or take possession of the property.</p> <p>[2] Id. — Action for Installment Payments — Subsequent Defaults—Right to Retake Possession.—Where, under such an agreement, the seller sues for installments of the. purchase price which are due and allows the purchaser to remain in possession, he does not thereby confirm the title in the purchaser, and where there are subsequent defaults, the seller still has the right under the terms of the agreement to retake possession, and such taking, even though forcible, does not amount to a conversion of the property.</p> <p>[3] Appeal—Judgment—Insufficiency of Evidence—Record.—An attack upon a judgment for personal injuries because of an alleged failure of the evidence to support the finding cannot be considered on appeal where the appeal is based on a typewritten transcript and the evidence on that subject is not printed in the brief, as required by law.</p>

<p>[1] Claim and Delivery—Action on Bond—Measure of Damages— Dismissal of Replevin Action.—The dismissal of an action in replevin cannot deprive the plaintiffs in an action on the replevin bond of the right to recover such damages as they could have recovered under section '667 of the Code of Civil Procedure had the replevin action been prosecuted to judgment, and the action of ,the trial court in proceeding upon the theory that the cause of action was to he viewed solely as one for wrongful conversion and eliminating damage for the loss of use of the property was erroneous.</p> <p>[2] Id.—Compensation for Withholding of Personal Property— Interest—Greater Damages — When Recoverable. — While ordinarily loss of use and other injuries resulting from the taking and withholding of personal property may he compensated by allowing the successful party in a replevin suit to recover interest on the value of the property from the time of the taking, there is no good reason for holding that he is confined to interest as damages if he can establish the fact that the value of the use of the property of which he was deprived exceeds the interest.</p> <p>[3] Id.—Damage- for Taking and Withholding of Pboperty—Appeal—Record—Binding of Jury Conclusive.—In an action on a replevin bond, in the absence of a record showing the evidence, the finding of the jury as to the amount of damage for the taking and withholding of the property is conclusive on the appellate court.</p> <p>[4] Id.—Allowance of Interest.—In an action on a replevin bond, where special injury resulting from the taking and withholding of the property is alleged in the complaint, the plaintiffs are entitled to recover the sum assessed by the jury as damages for such injury, together with the value of the property, with interest on the total sum from the date of entry of judgment, but they are not entitled to interest on the value of the property from the date of the taking to the dat'e of the judgment.</p>

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

<p>[1] Estates op Deceased Persons—Interest on Legacies.—The matter of interest on legacies, in the absence of provision in the will, is controlled by statute, and under sections 1368' and 1369 of the Civil Code legacies are due and deliverable at the expiration of one year after the testator’s decease and bear interest from such time, except legacies for maintenance or to the testator’s widow, which bear interest from the testator’s death.</p> <p>[2] Id.—Will—Legacy to Adopted Daughter—Legacy por Maintenance.—A legacy to an adopted daughter within a "few days of eleven years of age at tie date of tie making of the will was erroneously found to have not been given or intended to be given as a legacy for maintenance, where the will was entirely silent on the subject except in describing the legatee as the testator’s “adopted daughter,” and it was shown that the child had received t substantial support from the testator for nearly ten years next preceding the making of the will, and was in receipt of such support at the time of his death.</p> <p>[3] Id .—Legacy to Minor—Presumption.—A legacy to a minor child by a parent, or one standing in loco parentis is, in the absence of other substantial provision in the will for maintenance and in the absence of language indicating a contrary intent, presumed to be a legacy for maintenance.</p> <p>• [4] Id.—Legacy for Maintenance—Family Allowance and Homestead-Immaterial Matters.—The determination of the character of a legacy as one for maintenance is not affected by the fact that the legatee is entitled to receive a family allowance for her support pending the settlement of the estate, or by the fact that she did receive such an allowance and a homestead.</p>

<p>[1] Criminal Law—Belianoe for Conviction Upon Direct Evidence— Instruction—Law of Circumstantial Evidence.—In a criminal case in wMch the prosecution relies for conviction upon direct evi- ' dence, the circumstantial evidence, if any, being merely incidental to and corroborative of the direct evidence, an instruction on the law of circumstantial evidence need not be given, and in such case it should not be intimated to the jury that the case of the people is one of circumstantial evidence.</p> <p>[2] Id.—Arqument to Jury—Law of Circumstantial Evidence— Proper Bepusal.—In a criminal case where the prosecution relies for conviction upon direct evidence and the cirpumstantial evidence developed in the case is in fact merely incidental to and corroborative of the direct evidence, the trial court may well refuse to allow counsel for defendant to argue the law of circumstantial evidence to the jury.</p> <p>[3] Id. — Murder — Evidence —- Accusatory Statement — Denial by Defendant—Erroneous Admission.—In a prosecution for murder, it was error to admit and error to refuse to strike out after its admission a conversation between the defendant and a police detective wherein the defendant was accused of the crime and denied the accusation. ’</p> <p>[4] Id.—Evidence—Admissibility of Accusatory Statements.—Ordinarily, when a defendant, under conditions which fairly afford him an opportunity to reply, stands mute in the face of an accusation of crime, the circumstance of his silence may be taken against him as evidence indicating an admission of guilt, but if he promptly and fully deny the charge, the accusatory statements, standing alone, are not in any sense competent evidence of the defendant’s guilt and should in such a contingency be excluded from the consideration of the jury.</p> <p>[5] Id.—Verdict of Murder in Second Degree—Evidence—Bbfusal of Instruction not Erroneous.—In a prosecution for murder it was not error to refuse to instruct the jury that if they should find that the defendant did shoot and kill the deceased, but should entertain a reasonable doubt as to whether the defendant was guilty of murdef in the first or second degree, they should find him guilty of the lesser degree, where the evidence showed that the man who did the killing was guilty1 of murder in the first degree and the defense interposed solely that of mistaken identity.</p>

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

<p>[1] Appeal—Order Granting Rehearing—Time.—An order directing a rehearing signed by the chief justice and two associate justices within thirty days after the judgment in Department is valid, notwithstanding the paper on which the signed order was written ■ was not marked by the clerk as filed until after the expiration of the thirty-day period, since the joint action or concurrence of four associate justices, or of the chief justice and two associate justices, is the thing required to constitute the action of the court, and in contemplation of law this joint action is taken when the required number of justices have in writing declared their concur.renee in the order with intent to make it an order and the filing in the clerk’s office within the prescribed time is not essential to its validity.</p> <p>[2] Parent and Child—Separation op Parents—Subsequent Birth op Child—Presumption as to Sexual' Intercourse.—In determining the paternity of a child bom after its mother left her husband to live with another man, it will be assumed that the husband and wife had sexual intercourse the last night they lived together.</p> <p>[3] Id.—Conclusive Presumption of Legitimacy_Bule in Cases of Normal Period of Gestation.—In cases where only a usual and normal period of gestation is involved, the rule is well established that if it appear that it is possible by the laws of nature for the husband to be the father of the child, that is, if he had intercourse with his wife during the period of possible conception, he is conclusively presumed to be the father, and the law will permit no guessing or weighing of probabilities as between the husband and-some other man, when both have had intercourse with the mother during the critical time and either may in fact be the actual progenitor.</p> <p>[4] Id.—Normal Period of Gestation—Evidence—Judicial Notice. In determining the legitimacy of a child born 304 days after the husband last had sexual intercourse with his wife, the question as to whether such period is greater than the usual and normal period of gestation, while one of fact, is one as to the operation of natural laws, and, therefore, as to a fact of which the court may take judicial notice and as to which it is not confined to the evidence in the record but may seek information elsewhere and in particular in published technical works and articles by those recognized as authorities on such branch of human knowledge.</p> <p>[5] Id.—Exceptional Period of Gestation.—A period of gestation of 304 days is quite exceptional and not according to the usual and normal operation of the laws of nature.</p> <p>[6] Id.—'Children Born Within Ten Months of Dissolution of Marriage—Code Presumption Frima Facie,—The presumption contained in section 194 of the Civil Code that all children of a woman who has been married, born, within ten months of a dissolution of the marriage, are presumed to be legitimate children of such marriage, is but prima facie, and the reasons of policy which would justify or induce a prima facie presumption in such a ease are very different from those which would justify or properly induce a conclusive presumption.</p> <p>[7] Id.—Construction of Section 194, Civil Code—Months of Thirty Days.—The ten months mentioned in section 194 of the Civil Code must be taken to mean months of thirty days.</p> <p>[8] Id.—Exceptional Period of Gestation—Conclusive Presumption of Legitimacy Inapplicable.—The conclusive presumption of legitimacy is not applicable to a ease where the child was born 304 days after the husband last had sexual intercourse with the mother, since such period of gestation is exceptional and not according to the usual operation of the laws of nature.</p> <p>[9] lb.—Bebuttal of Prima Facie Presumption of Legitimacy— Sufficiency of Evidence.—The prima facie presumption of legitimacy of section 194 of the Civil Code is overcome by evidence that during all the time when normally the child would have been conceived the mother was living with’ a man not her husband taken in connection with the other facts of the case.</p> <p>[10] Id.—Legitimation of Child by Adoption—Sufficiency of Evidence.—The legitimation of a child by adoption in .the manner provided by section 230 of the 'Civil Code is proven .by the act of the father in signing the child’s birth certificate describing himself as the father, acknowledging it as his on numerous occasions, consistently treating it as legitimate, and receiving it into the only family he had, which consisted of the child and its mother.</p> <p>[11] Id.—Paternity of Child—Evidence—Testimony of Wife— JSTonaccess with Husband after Separation.—In an action involving the legitimacy of a child, the testimony of the mother tending to show that her husband had had no sexual intercourse with her after she had separated from him is admissible, in view of section 1870, subdivisions 1 and 15, and section 1879 of the Code of Civil Procedure.</p> <p>[12] Id.—Legitimation by Adoption—Evidence—Declarations of Putative Father.—In an action involving the paternity of a child, declarations of the putative father that he is the father are admissible to prove legitimation by adoption.</p> <p>[13] Id.—Order of Proof—Discretion__In an action involving the paternity of a child born to a married woman after separation from her husband and while she was living with another man, objection to declarations of paternity by the latter until if had been shown that the husband was not the father goes to the order of proof, and is a matter almost entirely within the discretion of the trial court.</p>

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

<p>[1] Assaum-J-Action for Injury—Evidence—Verdict not Excessive.—In an action to recover compensatory and punitive damages for an assault, punitive damages being waived upon the trial, an award, of one thousand dollars as compensatory damages was not excessive, where the evidence concerning the nature and extent of plaintiff’s injuries was conflicting, and according to the testimony offered on his behalf, the sight of one eye was permanently'impaired, internal adhesions were caused by a blow on the abdomen, ■and he suffered severe pain and loss of sleep and impaired earning capacity, so that for a period of tea moatha after the assault he had earned oaly $176.</p> <p>[2] Id.—Compensatory Damages—Mitigation of Damages—Circumstances of Provocation—Instruction.—la such aa action, the question of punitive damages being withdrawn from the jury, an i instruction to the effect that no circumstances of provocation, whether occurring before or at the time of the assault, could in any way be considered in mitigation of the actual damages suffered by reason of the assault, was proper.</p> <p>[3] Id.—Manner of Giving Instruction—Impropriety of Argument of Counsel—Lack of Prejudice.—The giving of such instruction with greater emphasis than the. other instructions for the reason that the attorney for the defendant had argued to the jury that they should take into consideration in mitigation of damages the words that were claimed to have been spoken by the plaintiff before the assault was committed, was not improper.</p>

<p>[1] Vendor and Vendee—Default in Contract Payments—Notification by Vendor—Termination of Contract—Rescission by Vendees.—Where the vendor under a contract of sale served notice on the vendees stating that he had elected to declare the contract void by reason of their default in the payments to be made under the contract, and informing them that unless they surrendered possession within sixty days that he would commence an action against them to quiet title, such notification was in effect a repudiation of the contract by the vendor and justified a rescission by the vendees where the contract gave the vendees sixty days after such notice in which to make such payment.</p> <p>[2] Id.—Mutual Rescission of Contract—Return of Money Paid— Right of Purchasers.—Where a contract of sale has been mutually rescinded, the purchasers are entitled to a return of the money paid by them.</p> <p>[3] Id.—Expenditures Incurred in Clearing Title—Reimbursement of Vendor — Construction of Agreement — Attorney’s Pees not Contemplated.—An agreement contained in a contract of sale that the purchasers will reimburse the vendor for any and all expenditures of whatsoever nature which may be incurred in clearing the title to the property agreed to be conveyed, does not contemplate the payment of attorney’s fees in an action to quiet title ■by the vendor against the purchasers, hut the expenditures of perfecting the title to be tendered to the purchasers upon the fulfillment of their contract.</p>

<p>[1] Waters and Water Bights—Action to Determine Conflicting Claims—Pleading and Evidence—Title by Adverse Possession.— In an action involving the- respective rights of various persons in the waters of a stream and in a certain ditch by which water is diverted therefrom, the defendants may prove title by adverse possession under the general allegation of ownership, since such an allegation may be supported by proof of ownership acquired by deed, by prescription or in any other lawful manner.</p> <p>[2] Id.—Evidence—Ancient Deed—Becitals.—In such an aetion> a deed executed more than fifty years before the controversy comes within the rules of evidence applicable to ancient deeds, and the recitals therein relating to the property conveyed are competent evidence of the facts recited, even against strangers to the title.</p> <p>[3] Id.—Declaration of Claim of Full Ownership.—Such deed is also competent as a declaration of the grantor while in' possession, as evidence that he then claimed full ownership of the ditch and water right.</p> <p>[4] Id.—Ownership of Plaintiff—Finding Supported by Evidence. In this action involving the respective rights of three parties in the • waters of a stream and in a certain ditch by which water is diverted therefrom, it is held the evidence sufficiently supports the finding that the defendants had not acquired title to any interest in •the ditch or the water it carried.</p> <p>[5] Easement — Acquisition by Enjoyment — Loss by Disuser.— An easement acquired1 by enjoyment, is lost by a disuse thereof for the period of five years.</p>

<p>[1] Fraud—Statute of Limitations:—Pleading.—Iu an action to recover damages for fraud, it is necessary for the party seeking to avoid the bar of the statute of limitations to affirmatively plead facts excusing the failure to make an earlier discovery of the facts or fraud relied upon, and the mere averment of ignorance of a fact which a party might with reasonable diligence have discovered is not enough to postpone the running of the statute.</p> <p>[2] Id.—Action for Damages—Exchange of Lands—Delay in Discovery of False Representations—Sufficiency of Facts and Circumstances.—In an action to recover damages for fraud in securing a contract by which plaintiff transferred a valuable orange grove in this state for lands in another state which were absolutely valueless, but falsely represented to be covered with timber and valuable for agriculture when cleared, the plaintiff cannot be charged with lack of diligence in not discovering the fraud for a period of twelve years, where she did know something of the surrounding lands, and had knowledge that they were valuable timber lands and that the land in question was located in such a district, coupled with the fact that such land does not change its character and that under ordinary conditions the only result of a failure to examine the property for twelve years would be that the timber would have had that much more additional growth and been that much more valuable.</p> <p>[3] Evidence—Timber Lands in Washington—Judicial Notice.— It is a matter of common knowledge, of which the court will take judicial notice, that there are vast areas of timber lands in the state of Washington.</p> <p>[4] Action for Fraud—Discovery—Pleading.-t-Ib an action to recover damages for fraud in procuring a contract for an exchange of valuable land for land of no value, the allegation -that plaintiff was ignorant of the fraud until she sent her brother to examine the property with a view to a sale of the timber is a sufficient statement concerning the discovery of the fraud.</p>

<p>APPEAL from a judgment of the Superior Court of Tehama County. John P. Ellison, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>[1] Workmen’s Compensation Act—Death in Automobile Accident—Alleged Violation of Motor Vehicle Act—Circumstantial Evidence—Insufficiency to Annul Award.—An award of compensation under the Workmen’s Compensation Act for the death of an employee, who was killed while driving an automobile in the course of his employment, will not be annulled on the ground that at the time of the accident the deceased was driving at a rate of speed of more than thirty miles per hour in violation of the Motor Vehicle Act, where the evidence of such excessive speed was wholly circumstantial, since the commission was not bound to decide in accordance with such evidence, particularly in view of the presumption of law that the deceased was not committing a crime.</p>

<p>APPLICATION for Certiorari to review the action of the industrial Accident Commission in requiring a corporation to file a bond or deposit securities as a prerequisite to carrying own compensation insurance. Order to show cause discharged.</p> <p>The facts are stated in the opinion of the court.</p>

<p>[1] Action on Written Agreement—Failure to Express Beal Intent of Parties—Finding.—In an action to recover a sum of money under a written agreement, wherein the defendants in their answer and cross-complaint admitted the signing and execution of the agreement hut alleged that it did not express the real intent of the parties, the finding that defendants signed and executed and agreed to all of the terms and provisions of the agreement is a sufficient finding on such allegation.</p>

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

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

<p>[1] Negligence—Personal Injuries—Attack by Vicious Dogs— Ownership op Animals not an Issue.—In an action to recover damages for personal injuries sustained as a .result of an attack by vicious dogs, the question of ownership of the animals is immaterial, since it is sufficient to prove that they were harbored and kept by the defendants.</p> <p>[2] Id.—Recovery op Damages—Evidence.—In such an action it is necessary for the plaintiff to prove that the dog bit him, that it was vicious and accustomed to bite people, that this fact was known to the defendant, and that the dog was harbored and kept by the defendant.</p> <p>[3] Animals—Owner or Keeper.—If the head o-f a family, having possession and control of a house or premises, suffers or permits an animal to be kept thereon, he may be regarded as the keeper.</p> <p>[4] Id.—Imputed Knowledge op Vicious Nature op Dogs.—Actual notice to the owner or keeper of a dog of its vicious characteristics is not necessary to make him liable for the acts of the dog, and notice to or knowledge of his wife, while she was with his knowledge in the custody or control of the animal, or to his agent in such control, is sufficient.</p> <p>[5] Trial—Jury—¡Conflict of ' Evidence—Motion for New Trial-Review of Evidence.—In a jury trial a party is entitled to two decisions on the evidence—one by the jury and one by the trial court, and the Court is not bound by a conflict in the evidence.</p> <p>[6] Appeal—Order Granting New Trial—Review of Evidence.— On an appeal from an order vacating and setting aside a judgment and granting a new trial, in passing upon the question of the insufficiency of the evidence to support the order, the appellate court is not to weigh the' evidence, but only to consider its legal sufficiency as distinguished from its probative force and accept a substantial conflict as conclusive.</p> <p>[7] Verdict—Excessive Damages—Review—Rule.—It is only where the verdict is so grossly disproportionate to any reasonable limit of compensation warranted by the facts as to shock the sense of justice and raise at once a strong presumption that it is based on prejudice or passion rather than sober judgment, that the court is at liberty to interpose its judgment as against that of the jury.</p> <p>[8] New Trial—Discretion—Appeal.—The granting of a new trial rests very largely in the trial court, and such an order will not be disturbed if it can. be upheld upon any ground shown by the record.</p> <p>[9] Id.—Review of Grounds of Motion for New Trial.—On an appeal from an order granting a new trial the entire record will be examined to determine whether such order can be supported upon ¡any ground set out in the notice of motion, notwithstanding the respondents limit their contention to certain grounds only; and where the order cannot be supported on any ground, it must be reversed.</p>

<p>[1] Deed—Building Restrictions—Quitclaim op Interest—Release op Restrictions.—Where the owner of a tract of land subdivided it into lots and blocks and made sales of the lots subject to certain building restrictions, and thereafter quitclaimed to the owner of one of the lots any interest he had therein, the effect of the deed was to release the restrictive provisions as to such lot so far as it was in the power of the original owner to do so.</p> <p>[2] Id.—Enforcement op Building Restrictions—Right op Other Lot . Owners—Restrictions as Conditions.—Where a deed containing building restrictions provides that the property conveyed shall revert to the grantor, Ms heirs or assigns in case of - a breach of the restrictions, such provisions, if in fact conditions and not covenants, cannot be enforced by other lot owners under deeds from the same grantor and containing the same restrictions, against a lot owner who subsequent to his deed obtained from the original grantor a quitclaim deed to all Ms interest in the lot, for such reversion clause only runs in favor of the grantor, since by “assigns” is meant the assignees of the reversion or right of re-entry.</p> <p>[3] Id.—Restrictions as Covenants.—Under such a deed, if such restrictive provisions amount to covenants, as well as conditions, there is no privity of contract between such lot owner and the other lot owners, nor is there privity of estate, af least in the usual sense of the word, for neither holds under or through the Others, and the restrictions are pot covenants running with the land, nor for the benefit of the estate conveyed but to its detriment.</p> <p>[4] Id.—Enforcement of Covenants—Essentials.—In order that such restrictions have force, not merely as between the original parties, but as between such lot owner and the other lot owners, it must appear that their insertion in the deed by the original grantor was, in effect, the creation of what amounts to a servitude, to the burden of which the lot was subjected as the servient tenement, and to the benefit of which the remainder of the tract was entitled as the dominant tenement.</p> <p>[5] Id.—Equitable Easements—Origin.—The enforcement of covenants restricting the use of one parcel of land for the benefit of another parcel, not merely as between the original parties, but as between their respective grantees between whom no privity of estate or of contract can properly be said to exist, originated at a comparatively recent date in the chancery courts and apparently without a clear appreciation of the fact that the enforcement of such covenants for and against grantees of the original parties was, in effect, the creating of servitudes.</p> <p>[6] Id.—Enforcement of Equitable Servitudes.—Such servitudes frequently spoken of as “equitable easements” are opposed to the rule that the owner of land may not create new and heretofore unknown estates, and their enforcement is limited to those which directly concern and benefit the dominant tenement, and any provisions of an instrument creating or claiming to create such a servitude will be strictly construed, any doubt being resolved in favor of the free use of the land.</p> <p>[7] Id.—Equitable Servitude—When not Created.—A servitude running with the land in favor of one parcel and against another is not created where the owner of a tract of land sells a portion of it, exacting of the grantee restrictive provisions as to its use, but without a word indicating that the land conveyed is a part of a larger tract, the balance of which the grantor still retains, or that the restrictions are intended for the benefit of other lands, or that their benefit is to inure to or pass with other lands, and without any description or designation of the land which is to be the dominant tenement.</p> <p>[8] Id.—Creation of Mutual Equitable Servitudes.—When the owner of a subdivided tract conveys the various parcels in 'the tract by deeds containing appropriate language imposing restrictions on each parcel as part of a general plan of restrictions common to all the parcels and designed for their mutual benefit, mutual equitable servitudes are thereby created in favor of each parcel as against all the others, for the agreement between the grantor and each grantee in such a case as expressed in the instruments between them is both that the parcel conveyed shall be subject to restrictions in accordance with the plan for the benefit of all the other parcels and also that all other parcels shall be subject to such restrictions for its benefit.</p> <p>[9] Id.—Time op Creation.—In such a case the mutual servitudes spring into existence as between the first parcel conveyed and the balance of the parcels at the time of the first conveyance, and as each conveyance follows, the burden and the benefit of the mutual restrictions imposed by preceding conveyances as between the particular parcel conveyed and those previously conveyed pass as an incident of the ownership of the parcel, and similar restrictions are created by the conveyance as between the lot conveyed and the lots still retained by the original owner.</p> <p>[10] Id.—Creation op Equitable Servitudes—Joint Intent op Parties.—Where the owner of a tract of land sells a lot subject to building restrictions, but without any language in the deed which refers to a common plan of restrictions or which expresses or. in any way indicates an agreement between grantor and grantee that the lot conveyed is taken subject to any such plan, it is immaterial, as affecting the question whether the restriction runs personally to the owner and not to the owners of other lots in the tract, that the owner in selling lots from time to time in each conveyance has exacted restrictive covenants, evidently in accord with a eom- ! mon plan. It is not the grantor’s intent alone that governs, but the joint intent of himself and his grantees, and such intent j must be expressed in the instruments which constitute the final memorials of their understanding.</p> <p>[11] Id.—Judgment—Quieting Title—Bight op Plaintifp.—In an action to quiet title against building restrictions, a judgment which goes further than denying plaintiff relief and affirmatively makes his title subject to the restrictions cannot be justified on the ground that the action of the plaintiff in seeking to escape from the re.^-“““st-rietions is inequitable, where such restrictions do not in fact exist,</p>

<p>[1] Principal and Surety—Bond of Subcontractor—Default—Premature Payments by Contractor—Effect of.—The surety on the bond of a subcontractor is not released from the entire obligation, by reason of premature payments made by the contractor on the subcontractor’s default, but the effect is to leave the contractor without a .cause of action on the bond to recover the amount of the premature payments.</p> <p>[2] Id.—Default of Subcontractor—Immediate Payment of Bills by Contractor—Surety not Released.—Where a subcontract provided that the subcontractor should save the contractor free and harmless from any and all liability which might accrue against or upon the latter as the result of any default of the former in the performance of his subcontract, and by the bond executed by the surety company it became bound to the effect that the subcontractor should perform all the covenants and agreements on his part in the subcontract, upon breach by the subcontractor, the immediate payment by the contractor of bills for work done and materials furnished to the subcontractor, which were lienable under section 1184 of the Code of Civil Procedure, was not premature and did not release the surety company from its obligation.</p>

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

<p>[1] Banking Law—-Collection op Note—Authority op Cashier.— A bank cashier by virtue of bis official position has authority to receive payment of a promissory note -due the bank.</p> <p>[2] Id.—Payment op Note by -Check—Order op Cashier—Fraudulent Misappropriation—Liability op Bank.—Where the cashier of a bank in Ms official capacity demanded payment of a note, and requested that the check given in payment should be made payable to the order of himself instead of to the bank, and he applied the check to his own overdrawn account, the bank must suffer from such fraudulent misappropriation, since the form of payment was immaterial in view of the cashier’s authority.</p> <p>[3] Id.—-Conduct op -Cashier—Demand for Payment op Note—Insufficient Circumstances to Excite Suspicion op Maker.—The maker of a note payable to a bank was not -put on notice that the cashier was trying to defraud the maker or the bank, by the cashier personally demanding payment of the note twenty-four hours after its execution at the office of the maker in a distant city, and- requesting that the check given in payment be made out to the cashier personally, where it was represented th-at the loan was objected to by the bank examiner, and it was known by the maker that the company which had received the money for which the note was given h-ad borrowed up to its limit from the bank.</p> <p>[4] Id.—Action on Note — Instruction — Payment op Money—Presumption.—In an action by a bank to recover on a note, which the defendant claimed had been paid by a check payable to plaintiff’s cashier, an instruction that the presumption of law is that money paid by one person to -another was due the latter was erroneous where the real issue was whether the cheek was given to the plaintiff by the delivery of the same to its cashier, or to the cashier personally for some other purpose.</p> <p>[5] Id.—Manner op Drawing Check—Instruction.—In such action, an instruction that the drawing of the check was not in the ordinary course of business between the defendant and the bank was erroneous, as being an instruction on a question of fact.</p> <p>[6] Id.—Direction as to Drawing op Check—-Suspicion op Maker— Instruction.—In such action, an instruction that cashier’s direction to have the check made payable to himself was sufficient notice to put defendant on inquiry as to why the cheek should thus be made payable, was objectionable, in view of an instruction that defendant was entitled to rely upon the integrity of the cashier.</p> <p>[7] Id.—Evidence — Want op Examination by Bank Examiner — Improper Testimony.—Testimony of the directors of the bank in such action, to the effect that no examination was made or was to be made by the bank examiner, should not have been admitted, since the effect of the evidence was merely to prove that the statements made by the cashier to the defendant at the time he demanded payment of the note were false, while the defendant had the right to rely upon such representations by plaintiff’s agent.</p> <p>[8] Id. — Collection op Note—Lack op Express Authority op Cashier—Improper Testimony.—Testimony of the directors of the bank to the effect that they had not authorized the cashier to demand payment of the note should not have been admitted in such action, since that authority resulted from his official position.</p> <p>[9] Id.—Payment op Note to Agent—Nonproduction op Note— Bisk op Maker—When Bule Inapplicable.—The rule that where the payee of a promissory note pays an agent who does not produce the note, the payment is at the risk of the maker, and if such person were not, in fact, entitled to receive payment, the maker must bear the loss, has no application to payment to the cashier of a bank, for he has authority to collect notes due to the bank.</p>

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

<p>APPEAL from a decree of distribution of the Superior Court of Los Angeles County. John M. York, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

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

<p>[1] Agency—Partial Payment on Note—Actual Authority—Disposition op Collateral Security upon Payment—Want op Ostensible Authority.—A president of a corporation who was given actual authority by a stockholder to make a partial payment on the latter’s note given to a bank to secure a loan to the corporation was not the ostensible agent of the stockholder for the purpose of directing the bank upon the final payment of the note to deliver the collateral security te a person other than the maker, who had paid the balance on the note, the note providing that, on payment, the security was to be returned to the maker, and the bank, in making such unauthorized delivery, was liable for conversion.</p> <p>[2] Id.—Agency prom Acts—Limitation to Acts op Like Nature.— When authority is deduced from recognition of certain acts, it must he limited to the presumption of other acts of the same general kind, and cannot be extended to acts of a wholly different nature.</p> <p>[3] Id.—Agency to Pay Note—Disposition op Collateral Security Unauthorized.—An agent who has authority to make a partial payment, secure extensions and make final payment of a promissory note 'has not the authority to direct the surrender of the collateral security upon final payment.</p> <p>[4] Banking Law—Delivery op Collateral Security—Lack op Ordinary Care.—Where the note of a stockholder of a corporation given to a bank to secure a loan to the corporation provided that the collateral security should be returned to the stockholder on' payment of the note, the bank, in delivering the collateral to a person other than the stockholder upon the direction of the president of the corporation, who had previously made a partial payment on the note/ without securing a written order from the stockholder or communicating with him, failed to exercise ordinary care within the meaning of section 2334 of the Civil Code.</p>

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

<p>[1] Contract — Construction — Situation of Parties at Time of Execution.—A contract should be construed with respect to the situation in which the parties were at the time it was made.</p> <p>[2] Id.—Drilling of Oil Well—Obligation of Driller—Construction of Contract.—In this action for damages for an alleged breach of contract to drill a well to a depth of two thousand five hundred-feet on certain land covered by an option to purchase, it is held the contract did not require the defendant to reach a depth of two thousand five hundred feet within the period of the option, even if oil were not found, hut merely to drill diligently through the period lof the option unless within that period a depth of two thousand five hundred feet was reached or oil in the paying quantities specified by the contract found.</p> <p>[3] Id.—Taking Up of Option by Defendant—Obligation Unchanged.—The obligation of the defendant under such contract was not changed by the defendant’s action in taking up the option before its expiration, and its refusal to continue drilling long after the expiration of the contract period was not a breach of the contract.</p>

PROCEEDING in prohibition to restrain the Superior Court of Riverside County and Hugh H. Craig, Judge thereof, from making any order in a pending cause, except an order changing the place of trial to the nearest or most accessible superior court, the judge of which is not disqualified from acting. The facts are stated in the opinion of the court.

<p>PROCEEDING in prohibition directed against the Superior Court of Alameda County and T. W. Harris, Judge thereof, to stay proceedings in a civil action.</p> <p>The facts are stated in the opinion of the court.</p>

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

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

PROCEEDING in prohibition to prevent the Superior Court of Santa Barbara County, and S. E. Crow, Judge thereof, from confirming a probate sale. The facts are stated in the opinion of the court.

<p>[1] Notary Public — Negligence — Certificates of Acknowledgment—Insufficient Personal Knowledge of Subscribing Parties.—A notary public and the sureties on his official bond are liable for the negligence of the notary in stating in his certificate of , acknowledgments of deeds of trust that the subscribing parties were “known” to him to be the persons described in and who executed) the instruments, where such persons -were impostors and the only personal knowledge he had of their identity was merely through an introduction followed1 by casual meetings.</p> <p>[2] Id.—Certificate of Acknowledgment upon Personal Knowledge—Guaranty of Genuineness of Instrument.—In view of the requirements of section 11-85 of the Civil Code that' unless the person making an acknowledgment is known to the notary to be the individual described in and who executed the instrument, his identity must be established by the oath of a credible witness, the certificate upon personal knowledge is made a guaranty of the genuineness of the instrument. '</p> <p>[3] Id.—Personal Knowledge—Degree of Acquaintanceship.—The degree of acquaintanceship which will authorize a notary to certify that he has personal knowledge involves something more than mere casual meetings following an introduction, and must be based upon a chain of circumstances surrounding the person, tending to show he is the person he purports to be.</p> <p>[4] Id.—Introduction Under Oath Insufficient.—Personal knowledge by a notary of a person making an acknowledgment is not acquired by his introduction under oath.</p> <p>[5] Id.—When Notary not Liable.—If a notary takes all due precautions and fully complies with the statute by requiring the oath of a credible witness in a case where he has not sufficient personal knowledge of the identity of the person making the acknowledgment, he will not be held liable although he has been deceived.</p>

<p>[1] Workmen’s -Compensation Act—"Service” Incidental to Em-' ployment.—Under the Workmen’s Compensation Act, the right to compensation is not restricted to those oases where the injury occurs while the employee is actually presently manipulating the tools of his calling. An employee who has arrived at the premises of Ms employer and is thereon for the .purpose of immediately commencing his actual work, is performing “service” incidental to his employment.</p> <p>[2] Id.—Death op Employee on Way to Work—Injury Arising Out op Employment.—The death of an employee of a manufacturing company resulted from an injury arising out of -his employment where he was struck and killed by an engine operated by a railroad company while he was pursuing his way to work along a path crossing the tracks, where such path, although not a public highway, was not only the'sole means of ingress and egress for the employees to their place of work, but was the means of access required and authorized by the manufacturing company, and intimately associated with the company’s .plant as a part of its necessary establishment.</p>

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

<p>APPEAL from a judgment of the Superior Court of Colusa County, and from an order denying a new trial. E'rnest Weyand, 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. C. N. Andrews, Judge Presiding. Affirmed.</p> <p>The facts are stated in the opinion of the court.</p>

<p>APPEAL from a judgment of the Superior Court of Los Angeles County. W. A. Anderson, Judge Presiding.</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. John W. Shenb, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>[1] Action fob Libel—Evidence—Other Libelous Articles—Dissimilarity of Import—Appeal—Review Under General Objection.—In an action for civil libel, the objection to the admission in evidence of other libelous articles on the ground that they were not of a similar import to and were too remote in time from the article in question is reviewable under the general objection of incompetency, irrelevancy, and immateriality.</p> <p>[2] Id.—Malice—When an Issue.—In an action for civil libel, where the plaintiff seeks to recover punitive or exemplary damages, or where the defendant alleges that the publication was justified on the ground that it was privileged, actual malice or malice in fact becomes an issue.</p> <p>[3] Id.—Evidence—Other Libelous Articles—Remoteness in Time. In an action for libel the remoteness in time of publication of other libelous articles goes to the weight of the evidence only and not to it's admissibility.</p> <p>[4] Id.—Existence of Malice—Evidence.—In an action for libel, it is essentially and purely a question of fact whether the publication of the article was inspired by actual malice, and any evidence which logically tends to solve the question, and which is not otherwise objectionable, is admissible.</p> <p>[5] Id.—Other Libelous Articles of Dissimilar Import—Admissibility in Proof of Malice.—In an action for libel, other libelous articles not of similar import, are admissible for the purpose of proving malice.</p> <p>[6] Id.—Libelous Article Concerning Attorney at Law—Damages —Matters for Consideration of Jury.—In an action for civil libel growing out of an article published in a newspaper concerning an attorney at law, the plaintiff is not required to prove, and in the nature of things cannot prove, the extent to which he has been damaged, or of what legal fees he has been deprived through the circulation of the libel, or what clients he has lost by it, and the jury may consider as a basis for its award of actual damages all of such matters, including the wide publicity given to the libel, plaintiff’s prominence in the community where he lives, his professional standing, his good name and reputation, and his injured feelings and mental sufferings.</p> <p>[7] Actual Damages—Discretion—Appeal.—The question of the ex-cessiveness of an award of actual damages is primarily addressed to the discretion of the trial court, and unless it appears that such award is the result of passion or prejudice, it cannot he disturbed on appeal.</p> <p>[8] Punitive Damages—Discretion of Jury.—In the matter of punitive damages juries have a wider discretion than they have in the matter of compensatory damages.</p> <p>[9] Misconduct of Counsel—Failure to Bequest Instruction to Disregard—Appeal—Matter not Beviewable.—Where the action of the trial court is not invoked, alleged misconduct of counsel will not be considered on appeal, if an admonition to the jury would have removed the effect thereof.</p> <p>[10] Libel—Conduct of Attorney in Divorce Action—Evidence— Admissibility of Complaint.—In an action for libel growing out of the publication of an article concerning the conduct of an attorney at law in a divorce action in which he represented the wife, the complaint filed by him in such action on behalf of his client was admissible for the purpose of showing the nature and character of the charges made by the wife against her husband under oath; and the fact that such attorney by filing said complaint acted upon the statements made by her. '</p> <p>[11] Id.—Admissibility of Biography of Plaintiff.—In such action for libel there was no error in allowing the plaintiff to give a biographical sketch of himself.</p> <p>[12] Id.—Appearance of Plaintiff as Own Attorney.—In such action it was not error to allow plaintiff, who was represented by another attorney, to appear as his own attorney and to argue the case to the jury.</p> <p>[13] Appeal—Error in Befusing Instructions—When not Beviewable.—Alleged error in refusing to give requested instructions will not be considered on appeal where the objections are merely stated without any citation of authority or any argument beyond the bare statement that the court ,also erred in refusing to give such requested instructions.</p>

<p>APPEAL from a judgment of the Superior Court of Santa Clara County. P. F. Gosbey, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>[1] Vendor and Vendee — Rescission — Breach op Covenant by Vendor—Action to Recover Money Paid—Pleading—Damage from Breach Unnecessary Allegation.—In an action to recover money alleged to have been paid as a part of the purchase price of certain lands which the defendant had contracted to sell to the plaintiffs and which contract it was alleged was rescinded because of the failure of the defendant to construct certain roads as provided by the contract, the objection that' plaintiffs showed no right to rescind because the complaint did not allege that they had suffered or would suffer any damage by reason of the failure to build the roads was not well taken, since the roads were a material part of the consideration which the plaintiffs were to receive under the contract. ■ ,</p> <p>[2] Rescission—Failure op Consideration.—Where the consideration fails in whole or in part through the fault of the party whose duty it is to render it, the other, party may rescind.</p> <p>[3] Vendor and Vendee—Recovery op Money Paid—Road Work Required op Vendor—Evidence—Conversations op Parties.—Where the contract of sale was silent in regard to the character and kind of work that was to be done upon the roads, and the defendant claimed upon the trial that the only road work-to be done under the contract was to construct certain bridges and the approaches thereto, the court erred in excluding parol evidence of conversations on the subject between the parties before and at the time of the execution of the contract.</p> <p>[4] Id.—-Taking op Real Property in Part Payment—Inability op Vendor to Restore—Measure op Vendee’s Recovery—Actual Value at Time of Exchange.—Where upon the trial of such action it was shown that the vendor had taken certain real property as part payment and that it had thereafter, but before the rescission, conveyed the property to other parties, and was not able to restore that part of the consideration, the plaintiffs were not entitled to treat the amount for which the property was taken in exchange as a payment in money upon the price of the property sold to them and to recover such amount, but they were only entitled to recover the actual value of tie property at the time of the exchange.</p>

<p>[1] Vendor and Vendee—Contract of Sale—Default of Vendee— Tender of Deed and Declaration of Forfeiture—Contract not Mutually Rescinded—Recovery of Moneys Paid not Permissible.—A contract for the sale of land is not rescinded by mutual consent so as to entitle the vendee t to recover the payments made on account of the purchase price, by the giving of a notice by the vendor after default by the vendee, tendering a deed upon payment of the balance due and declaring that if immediate payment is not made all rights of the vendee under the contract and all moneys paid by him will be forfeited.</p> <p>[2] Id.—Acceptance of Overdue Payments—Waiver of Default— Subsequent Forfeiture—Notice.—A vendor by accepting payments after the times specified in the agreement waives the provision with reference to time being of the essence of the contract as to such payments, and cannot thereafter effectually declare a forfeiture of the vendee’s right to purchase, and of the payment's already made, without notice that in the future a strict performance would be required.</p>

<p>[1] Workmen’s Compensation Act—Compensation for Death of Husband — Desertion—Separate Maintenance Decree—Rights , not Affected—Legal Liability for Support.—Under section 14 (a) of the Workmen’s Compensation Act, which provides that a wife shall be conclusively presumed t'o be wholly dependent for support upon her husband where he was legally liable for her support at the time of his death, a wife who was not living with her husband at the time of his death by reason of his desertion is entitled to compensation, -notwithstanding she had secured a decree awarding her separate maintenance in an action brought for that purpose.</p>

<p>[1] Negligence—Trespass upon Railroad Right of Wat—Duty of Company.—Where a railroad company runs its track upon its own land and not along or across a street or other public way, any person who goes upon such right of way without the consent, express or implied, of such company is a trespasser to whom the company owes no duty to facilitate his trespass or render it safe, although ■bound to use ordinary care to avoid injuring him in the operation of its road after seeing him so trespassing and in a dangerous position.</p> <p>[2] Id.—Crossing of Railroads—Duty Toward Trespasser.—The duty of a railroad company toward persons thus trespassing is not changed, with regard to either road, when two railroads cross each other at a place where there is no other public way.</p> <p>[3] Id.—Establishment of Station at Crossing—Duty of Company. Where one of two railroad companies, whose roads cross each other at a place where there is no other public way, establishes a passenger station near such crossing, such company immediately becomes charged with the duty of exercising reasonable care to prepare and maintain suitable station grounds and make them safe and convenient for persons leaving its cars there,- or who may be there for any lawful purpose.</p> <p>[4] Id. — Crossing of 'Tracks of Another Railroad—Laying of Tracks and Construction of Roadbed—Scope of Obligation of Civil. Code.—The requirement of section 465 of the Civil Code that a street railway company lay its tracks and maintain its roadbed at the crossing of the track of another road so as to afford security for life and property, runs not only to its own passengers but to persons who may be passengers upon the other road or who may be about the station for proper and lawful purposes, but is limited by its power to control the matter of constructing and laying tracks.</p> <p>[5] Id.—Crossing or Tracks or Railroad and Street Railway— Maintenance or Tracks—Negligence or Railroad—Duty or Street Railway Company not Violated.—If tracks were maintained by a railroad company at it's crossing with the tracks of an electric street railway in a negligent manner and without due regard for the safety of persons lawfully at that place upon the railroad’s invitation, such negligence was a violation of the duty which the railroad company owed t'o such persons and was not a violation of any duty the street railway company owed to them.</p>

<p>[1] Bail—Application in Payment op Fine—Nonliability op Clerk. Where cash bail was deposited for the release of a defendant charged, with an offense triable in the superior court, and the clerk, as ordered by the court, satisfied the part of the judgment imposing a fine out of such bail money, neither the person who put up the bail nor a judgment creditor of the defendant had any recourse against the clerk for the recovery of the money thus applied, for the court had jurisdiction of the subject' matter and could order the disposition of the money in custodia legis.</p> <p>[2] Id.—Bail Money—Property op Dependant.—In view of section 1297 of the Penal Code, money deposited for bail in a criminal action is regarded as the defendant’s property, and the court is not required to protect the supposed rights of anyone who may have advanced it for him.</p> <p>[3] Id.—Return op Bail—Essential Prerequisite.—It is a prerequisite to the return of bail money under section 1302 of the Penal Code that the defendant offer to surrender himself to the officer to whom the commitment is directed.</p> <p>[4] Id.—Section 1297, Penal Code, Constitutional.—Section 1297 of the Penal Code is not unconstitutional on the ground that it deprives of property, without due process of law, the person who advances the money for bail, by placing him in a different and less advantageous position than the surety on a bail bond.</p> <p>[5] Id.—Payment op Fine prom Bail Money—Litigation op Ownership op Residue.—Although, as between defendant and the state, money deposited for bail is regarded as defendant’s property and will be applied so far as necessary to the satisfaction of the fine, nevertheless in a contest involving the residue in the hands of the clerk after the payment of the fine, the court will inquire into who is entitled to the money, as between the one who put it up, and a judgment creditor of the defendant.</p>

<p>[1] Mandamus — Substitution of Attorneys — Consideration of Facts.—On an application for a writ of mandate to require the superior court to grant a motion for substitution of attorneys in a probate proceeding, letters, affidavits, and the consent of the petitioners, which were attached to and made a part of the motion, are to be considered, notwithstanding the motion was made on the ground that the appearance of the attorney of record was not authorized by the petitioners. 1</p> <p>[2] Attorney and Client—Change of Attorney—Bight of Client. A client has a right to change his attorney at any time, except where the attorney has an interest in the subject matter of the suit.</p> <p>[3] Id.—Right to Discharge Attorney.—The right of a client to discharge his attorney exists even though a contingent fee has been agreed upon, or an irrevocable power of attorney has been given, or the attorney has rendered valuable services under his employment or the client is indebted to bin! therefor, or for moneys advanced 'in the prosecution or defense of the action.</p> <p>[4] Id.—Bower Coupled With an Interest—Interest in Thing Itself. The interest which can protect a power of attorney after the death of the person who creates it must be an interest in the thing itself.</p> <p>[5] Id.—Power Coupled With an Interest—What Constitutes.—A power coupled with an interest is a power which accompanies or is connected with an interest.</p> <p>[6] Id.—Irrevocability op Power op Attorney—Interest in Subject Matter.—To impart an irrevocable quality to a power of attorney in the absence of an express stipulation, and as the result of legal principles alone, there must coexist with the power an interest in the thing or estate to be disposed of or managed under the power.</p> <p>[7] Id.—Power op Attorney—When Irrevocable.—While, as a general rule, a power of attorney may at any time be revoked by the party conferring it, yet, where the power forms part of a contract, and is security for money, or for the performance of an act which is deemed valuable, it is generally made irrevocable in terms, or, if not-so, is deemed irrevocable in law.</p> <p>[8] Id.—Express Terms op Bevocation—When Immaterial.—Even though a power of attorney is made in terms irrevocable, that fact will not prevent revocation by the constituent where the power is not at the same time coupled with an interest or given as security ¿for the payment of money, or for the performance of an act deemed of value.</p> <p>[9] Id.—Essentials-op Irrevocable Power op Attorney.—In order to constitute an irrevocable power of attorney there must coexist with the power a beneficial interest in the subject thereof which is enforceable in the name of the attorney in fact and will survive the constituent; or the power must be given as security for the payment of a sum of money other than that which arises as compensation through the exercise of the power, or as security for the performance of some act of value.</p> <p>[10] Contract—Bepugnant Clauses—Construction.—Where there is an inconsistency between two clauses of a written contract, the repugnancy must be reconciled so as to give effect to the repugnant clauses in keeping with the general intent or predominant purpose of the instrument.</p> <p>[11] Power op Attorney—Collection op Legacies—Bight op Bevocation.—A power of attorney given by legatees under a will is not coupled with an interest, so as to make it irrevocable, where the chief purpose of the legatees was to make an assignment in trust to the attorney in fact in order to facilitate the collection of the legacies, and to insure the reimbursement of the attorney for his outlays and compensation for -his services, notwithstanding it was expressly recited in the power that it was the intention that it should be construed as a power of attorney coupled with an interest.</p> <p>[12] Id.—Extent op Assignment—Beimbursements and Compensation op Attorneys.—Under such a power of attorney, the assignment created a present interest in the legacies to the extent of reimbursements and compensation.</p> <p>[13] Id.—Nature op Interest to Bender Power Irrevocable.—The interest which the attorney in fact must have in the subject of the power in order to render the power irrevocable is such a beneficial interest in the thing itself, apart from t'he proceeds, that if the power were revoked he would be deprived of a substantial right.</p> <p>[14] Mandamus—Validity op Power op Attorney—Immaterial Question.—In a proceeding in mandamus to compel the granting of a motion for substitution of attorneys in a probate administration based on t'he revocation of a previous power of attorney given to another attorney at law, the contentions that the power was unconscionable and that it was procured through fraud and misrepresentation have no proper place in the determination of the proceeding.</p>

<p>[1] Vendor and Vendee—Specific Performance—Note as Part Pat-" ment—Receipt—Pabol Evidence.—In an action by a vendee for specific performance of a contract of sale, where the only question is whether the vendee has paid a certain amount upon the price in addition to the amount conceded by the vendor to have been paid, ’ the testimony of the vendor that the note given him for such amount is not received in payment, but merely as security, is admissible, notwithstanding the giving of a receipt for the amount represented by the note, which receipt is now claimed to constitute the contract of sale, where the terms of the contract are admitted by the pleadings, and from the admitted terms of the contract it does not appear that the note was given or received in payment, or that the money has been paid, and the receipt is not offered or received in evidence as proof of the terms of the contract, but merely as evidence of payment.</p> <p>[2] Id.—Receipt—Insufficient Contract of Sale.—A receipt is insufficient to establish a contract for the purchase and sale of a lot where the description was not contained therein, but was subsequently inserted by the vendee in the absence of the vendor.</p>

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

<p>[1] Workmen’s Compensation Act—Injury in Seeking Entrance to Place of Employment—Eight to Compensation.—Under the Workmen’s Compensation Act, it is not necessary in order to entitle the employee to compensation that at the time of the accident he have reached the place of employment and have actually begun there to render service, but it is sufficient if lie has come to the employer’s premises and is seeking entrance .thereto by a means of access provided by the employer or reasonably used by the employee.</p> <p>[2] Id.—Injury on Way to Work—Right to Compensation.—Under the Workmen’s Compensation Act, an. injury is not sustained in the course of employment, where the employee is merely on his way to work and is injured.</p> <p>[3] Id.—Injury to Employee op Tenant op Building—Use op Elevator on Way to Work—Control op Elevator by Owner—Right to Compensation.—Under the Workmen’s Compensation Act, the employee of a company, which' rented space in a building, and and who was hurt by falling into the elevator shaft in an attempt to use the elevator on his way to perform services for his employer, was entitled to compensation, although the elevator was controlled by the owner of the building.</p> <p>[4] Id.—Use op Elevator on Sunday—Absence of Operator—Right to Compensation Unaffected.—An award of compensation for such an injury is not to be held invalid, on the theory that the injury did not arise out of the employment because the employee was injured, when, by means of a key surreptitiously obtained, he had entered the building on a Sunday, when it was closed, and was proceeding without authority t'o run the elevator in the absence of an operator, where it was shown that the employee was a traveling salesman, who was not held to regular hours at a particular place, but was expected' at times to work evenings and' on Sundays, that he was in the building on business of his employer at the time of the injury, that other tenants had keys to the building, that both employer and the agents of the building had knowledge of the possession of the key by the employee, that he was in the building frequently on evenings and Sundays, and also that the tenants were permitted to use the elevator themselves. .</p>

<p>PROCEEDING in Mandamus to compel city officials to provide for payment of judgment against municipality.</p> <p>The facts are stated in the opinion of the court.</p>

<p>APPEAL from an order of the Superior Court of Los Angeles County settling a final account. John M. York, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

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

<p>[1] Divorcie—Interlocutory Decree—Effect of.—An interlocutory-judgment of divorce is, so- far as it determines the rights of the parties, a contract between them, and while it is temporary and provisional in its nature, it settles the rights of the parties for the time being and until some action, proceeding, or motion is begun to change the status and some order is made thereon which has that effect, or until they become reconciled and resume marital relations, in which event their mutual obligations are, for the time being at least, restored. „</p> <p>[2] Id.—Silence of Interlocutory Decree as to Wife’s Support— Suspension of Liability of Husband.—Where an interlocutory judgment of divorce makes no provision for the wife’s support, the •husband and wife are living separate by an agreement which does not provide for her support, and: under section 175 of the Civil Code, the husband is not, during the interval between, the interlocutory and final judgment, personally liable for her support, and until that contract is in some manner changed, either in the action or in some independent proceeding, or by a reconciliation, her right to support is suspended.</p> <p>[3] Workmen’s Compensation Act — Death of Husband—Prior Interlocutory Judgment of Divorce—Wife not Entitled to Compensation.—Under the Workmen’s Compensation Act (Stats. 1917, p. 845), a wife who was not living with her husband at the time he received injuries causing his death, and who had obtained an interlocutory judgment of divorce upon a complaint which alleged a. cause of action for willful neglect and did not ask for alimony or any other provision for her support, and which judgment made no' such provision and contained no reservation of jurisdiction to award any alimony or maintenance, is not entitled to compensation for his death, since at the time of such death he was net legally liable for her support.</p>

<p>[1] Prohibition—Confirmation of Sale of Beal Property—Bemedy by Appeal.—Prohibition will not lie to prevent the superior court from hearing an application for' the confirmation of a sale of real estate in the matter of the estate of a deceased person, but in the event of adverse action, the petitioner’s remedy is by appeal</p>

<p>[1] Prohibition—Confirmation of Sale of Beal Property—Bemedy by Appeal.—Prohibition will not lie to prevent the superior court from hearing an application for' the confirmation of a sale of real estate in the matter of the estate of a deceased person, but in the event of adverse action, the petitioner’s remedy is by appeal</p>

<p>[1] Negligence&emdash;Running of Train Over Body Lying on Track&emdash;New Trial&emdash;Lack of Care&emdash;Sufficiency of Evidence.&emdash;An order granting a new trial, in an action for damages- for death alleged to have been caused by the negligence of a railroad company in propelling it's engine over the body o-f the deceased while lying on the track, cannot be disturbed on appeal, where the record shows ample evidence to indicate that the engineer in charge, if he had exercised due care, could have seen the deceased in ample time to have stopped the train.</p>

<p>[1] Estates op Deceased Persons'—Holographic Will—Besiduary Clause Signed but not Dated—Admission to Probate as Single Instrument—Presumption.—Where a holographic will, dated' and signed by the testator, followed by a residuary clause, likewise holographic, , signed but not dated, is admitted to probate as a single instrument, there is a presumption created by the order that both portions of the instrument were executed at the same time and that the one date covers both, and in a subsequently instituted contest to revoke the probate of the residuary clause the burden is upon the contestants to overcome such presumption.</p>

<p>APPEAL from a judgment of the Superior Court of Yolo County, and from an order dismissing an action. W. A. Anderson, 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. Fred H. Taft, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>[1] Workmen’s Compensation Act—Employment op Special Officer by Private Party—Performance of Service in Course of Private Employment.—Where a private company or individual employs a "watchman or special officer and in making the selection deliberately chooses an officer of the law in order to take advantage of his authority, and where such officer performs act's advantageous to and expressly" or impliedly directed by the employer which happen at the same time to be acts which it would be his official duty to perform, such employee acts in the course of his private employment within the meaning of section 8 (a) of the Workmen’s Compensation Act.</p> <p>[2] Id.—Deputy Officer—Whbit Acting in Course of Private Employment.—Under the proviso of section 8 (a) of the Workmen’s Compensation Act, where a deputized officer of the law performs acts which, while official in their nature, are advantageous to the employer and directed by him, not incidentally merely, but as part of the duties prescribed and contemplated in the contract of employment, such deputy. is acting in the course of his private employment.</p>

<p>APPLICATION for a Writ of Mandamus against the Superior Court of San Joaquin County to require delivery of certified copies of records for use in preparation of 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 Fresno County. George E. Church, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>[1] Workmen’s Compensation Act—Death prom Facial Infection— Transmission prom Infected Toe—Finding op Commission-Support by Testimony op Medical Experts.—On certiorari to review an award of compensation by the Industrial Accident Commission, the finding that a streptococcic infection of an injured toe was carried from the toe to the face by external means and that death was proximately caused by the original injury, cannot, in-view of section 1826 of the Code of Civil Procedure, be overturned, where based upon the testimony of medical expert's in the light of medical science.</p> <p>[2] Id.—Death prom Original Injury—Chain op Causation Not Broken.—In the light of medical knowledge that the transfer of a streptococcic infection from- a discharging wound is not only possible but highly probable, the fact that the germs reached the -face by external means and not through the system cannot, as a matter of 1-aw, be said in itself to have broken the chain of causation, so that the death was not proximately caused- by the original injury.</p> <p>[3] Id.—Treatment op Injury—Conduct of Employee—Enhancement op Injury—Finding as to Cause op Death—Bight op Commission.—Where an injured employee conducted himself in treating the injury, as would- a reasonably prudent person, in his situation and circumstances, and innocently enhanced the injury, it was within the province of the commission to find that the original cause continued to the end and accomplished the final result, and was, therefore, the proximate cause of death.</p>

<p>APPLICATION for Certiorari to review an act of the Board of Public Utilities of the City of Los Angeles.</p> <p>The facts are stated in the opinion of the court.</p>

<p>[i] Certiorari&emdash;Action of City Board of Public Utilities&emdash;Legislative Character.&emdash;Certiorari will not lie to review the action of a city board of public utilities where such action is purely legislative in character.</p>

<p>APPLICATION for a rehearing of a petition for a Writ of Habeas Corpus.</p> <p>No opinion was rendered in denying original petition.</p>

<p>APPEAL from a judgment of the Superior Court of Fresno County. George E'. Church, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>APPEAL from an order of partial distribution of the Superior Court of Santa Barbara County. S. E. Crow, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>[1] Sales—(Breach of Warranty—Defects in Automobile—Nature of—Finding on Conflicting Evidence—Appeal.—On appeal from the judgment in an action for damages for the breach of a written warranty given on the purchase of an automobile, the finding on conflicting evidence that the defects were those of workmanship and material, and not of design, is binding upon the appellate court.</p> <p>[2] Id.—Ascertainment of Measure of Damages—Time of First Discovery of Defects.—Where on the sale of an automobile it was contemplated by the parties that the engine guaranteed should be used continually and that defects discovered from time to- time should he remedied as discovered, and it was ultimately ascertained that the defects could not he remedied, the time of the first discovery of the defects may he taken as the proper date for fixing the measure of damages, where in the meantime continuous and unsuccessful efforts had been made by the vendor to remedy the defects.</p>

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

<p>APPEAL from a judgment of the Superior Court of Los Angeles County. ' Lewis R. Works, Judge.</p> <p>The facts are statéd in the opinion of the court.</p>

<p>[1] Negligence — Collision Between Motorcycle and Delivery Wagon—Bate op Speed op Motorcycle—Evidence.—In an action for personal injuries sustained from a collision between plaintiff’s motorcycle and defendant’s delivery wagon at a street intersection, it cannot be held as a matter of law that plaintiff was guilty of negligence by reason of traveling at an excessive rate of speed, where the evidence indicates that he was not traveling at much-over ten miles an hour.</p> <p>[2] Id.—Passing op Dependant’s Wagon—Failure to Sound Horn— Evidence.—It cannot be held as a matter of law in such an action that plaintiff was guilty of negligence by reason of failing to sound his horn before attempting to pass the delivery wagon going in the same direction, where the jury might well have found that there was an absence of • intent to make an immediate attempt to pass.</p> <p>[3] Id.— Approach of Vehicle from Bear—Situation of Peril— Turning to Bight.—It is not negligence to turn to the right of a vehicle, which is being approached from the rear, if a situation of peril is presented in which to avoid a possibility of injury to life or property a reasonably careful man might well consider it the more prudent course to drive to the right.</p> <p>[4] Id.—Perilous Situation of Plaintiff—Evidence.—In this action there was sufficient evidence to warrant the jury in finding that ■plaintiff was confronted by such a situation of peril when he turned to the right of defendant’s wagon.</p> <p>[5] Id.—Traffic Ordinance—Turning into Another Street—Construction of Provision.—Under the section of a city traffic ordinance providing that the driver of any vehicle in or upon any street shall, in turning to the left int'o another street, pass to the right of and beyond the center of the street intersection before turning, it is not the mere passing of the center of intersection on the driver’s right which is rendered' unlawful, but the very turning itself from the moment of its beginning.</p> <p>[6] Id .—Negligence of Plaintiff—Proximate Cause of Injury—Instruction.—An instruction that if plaintiff’s negligence was “the proximate cause” of the injury the verdict should be against Mm, was not misleading, where the sentence eontaimng such words was immediately preceded by a sentence requiring the jury to determine whether plaintiff’s negligence, if any, was “a proximate cause” of the injuries received by Mm, and the jury was fully and correctly instructed on the law of contributory negligence.</p>

<p>[1] Estates of Deceased Persons—Succession to Property of Widow Derived from Predeceased Spouse.—In the absence of a will and issue, the right to succeed to the property of a widow, derived from her deceased spouse, is regulated by section 1386, subdivision 8, of the Civil Code, and to her separate property acquired before or after the death of the spouse by subdivisions 2 or 3 of section 1386. of said code.</p> <p>[2] Id.—Will—Devise of Residue of Estate—“Lawful. Heirs” of Predeceased Husband—“Lawful Heirs” of Testatrix—Persons Entitled.—Under the clause of the will of a widow who left no issue, no father and no mother, bequeathing and devising to her husband the residue of her estate, and in the event that he predeceased her, bequeathing and devising one-fourth of said residue to “his lawful heirs” and the balance to “my lawful heirs,” the court, where the husband died before the testatrix, should distribute one-fourth to the heirs of the deceased husband, to be determined as of the date of the death of the testatrix and not as of the date of his death," and the remaining three-fourths in accordance with the provisions of section 1386, subdivision 8, of the Civil Code, except such portions, if any, as were the separate property of the testatrix, or acquired by her after her husband’s death, and as to such portions they should be distributed in accordance with section 13-86, subdivision 3, of such code.</p>

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

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

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

<p>[1] Landlord and Tenant—Action for Rents—Recovery on Aqreement Between Lessee and Third Parties—Pleading.—In an action by the lessor of farming land to recover rents against the lessee and certain third parties with whom the lessee had entered into an agreément relating to the farming and cultivation of the land, the lessor could not recover rents from such third persons on the theory that the agreement was made for his benefit under section^ 1559 of the Givil Code, because of the fact that such third persons set up the agreement in their answer' to show there was no privity between them and the lessor, where the cause was tried on the theory that such third persons were liable under the original lease, and there was no allegation putting in issue the contention that plaintiff could recover on the agreement as one made for his benefit.</p> <p>[2] Id.—Nature of Agreement—Subletting and not Assignment of Lease.—Under an agreement between a lessee of farming land and third persons providing that1 the former should farm a portion of the land with money advanced by the latter, the latter to market sufficient crop for payment of rent, and the balance of the crop to be divided in certain parts upon harvesting, and giving the third persons the option to extend the term, there was no assignment of the lease, but the interest acquired by such third persons was in the nature of a subletting, since the agreement related to only a portion of the land and to a portion of the term conveyed to the lessee.</p> <p>[3] Id.—Nature of Partnership Relationship.—Under such an agreement, the partnership relation created was not in the ownership of the lease but in the business of farming.</p>

<p>[1] Deed — Gift of Personal Property — Possession.—Where the grantor in a deed of gift of personal property goes through the formality of delivering the deed with the intent to make then and there a conveyance of the property immediately effective, there is a valid delivery of the deed and transfer of title to the property, although the grantor retakes and retains possession of the deed and there is no transfer of possession of the property.</p>

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

<p>APPEAL from an order of the Superior Court of Santa Barbara County granting a new trial. John L. Hudner, Judge Presiding.</p> <p>The facts áre stated in the opinion of the court.</p>

<p>[1] CONSTITUTIONAL LAW—REGULATION OF LAWFUL AND USEFUL OCCUPATION—Police Power.—While the right to engage in a lawful and useful occupation cannot be taken away under the guise of regulation, such an occupation may be subjected to regulation in the public interest even though such regulation involves in some degree a limitation upon the exercise of the right regulated.</p> <p>[2] Real Estate Broker’s Act—License—Evidence of Good Character—Valid Requirement.—The act of the legislature of 1919 (Stats, lgifi, p. 1252) making it unlawful for any .person or corporation t'o act as a real estate broker or real estate salesman without first obtaining a license is not invalid because it requires that persons desiring to engage in such business shall furnish evidence of good moral character, since the occupation of a real estate agent is of a fiduciary character.</p> <p>[3] Id.—Power of Real Estate Commissioner not Arbitrary.—Such act' is not invalid, as giving the real estate commissioner the arbitrary power to refuse a license, since his discretion is not arbitrary, as there must exist facts which reasonably justify his conclusion that the applicant is not of good character and reputation.</p> <p>[4] Id.—Revocation of Licenses by Commissioner—Valid Provisions of Act not Affected by.—Such act is not invalid because of the provision' giving the commissioner power to suspend or revoke a license for certain dishonest acts after a hearing of the charges, for even if such provision is invalid, it is 'but a detail and not an essential part of the act', and separable from the balance without affecting the substantial accomplishment of the purpose for which the act was passed.</p> <p>[5] Id.—Review of Commissioner’s Action—Abuse of Discretion— Burden of Proof—Valid Provisions of Act not Affected by.— The provision of the act that on a review by the courts of the commissioner’s action in suspending or revoking any license, "the burden of proof is upon the licensee to show an “abuse of discretion” on the part of the commissioner, is but a part of the general provision giving the commissioner power to suspend or revoke licenses, and even if invalid, the provision is plainly separable .from the balance of the act and does not affect its validity.</p> <p>[6] Id.—Compensation of Employees—Discretion of Commissioner— Valid Provision.—Such act is not invalid because the salaries of the deputies' of the commissioner are not fixed, hut their amount left to the discretion cf the commissioner.</p> <p>[7] Id.—Collectors of Rents—Classification as Brokers—Valid Provision.—The act is not unreasonably discriminatory because it classes collectors of rents as brokers.</p> <p>[8] Id.—Exception of Persons Holding Power of Attorney from Owner—Valid Provision.—The act is not discriminatory in excepting persons holding a duly executed power of attorney from the owner, since by such a power of attorney is meant written authority to act for and in the place of the principal in consummating the transaction, as distinguished from merely negotiating it.</p> <p>[9] Id.—Brokers and Salesmen—Requirements of Different Pees and Certificates of Character—Reasonable Discrimination.—• The provisions of the act requiring brokers te pay an annual license fee of ten dollars and salesmen of two dollars, and requiring the former to furnish certificates of character by two land owners, and the latter to' furnish certificates by their employers, are not unreasonable discriminations.</p> <p>[10] Id.—Exception of Trustees Selling Under Deed of Trust—■ Valid Provision.—The act' is not discriminatory in excepting trustees selling under a deed of trust, as trustees, whether selling or doing something eke, do not come within the purview of the act.</p> <p>[11] Id.—Officers of Corporation Real Estate Broker—License ' to Act as Brokers Essential.—Officers of a corporation licensed to do business ’as a real estate broker may not' act as brokers or salesmen without being subject to the requirements of the act.</p>

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

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

<p>[1] Public Lands—Decisions of Land Department—Review by Courts.—Courts cannot exercise direct jurisdiction over the rulings of the officers of the land department of the United States, nor are the courts authorized to reverse or correct such rulings in collateral proceedings between private parties, and the decisions of the department are subject to review by the courts only where it appears that the department has committed an error of law and denied to the parties the rights to which they are entitled under the constitution and laws of the United States.</p> <p>[2] Id.—Homestead Entryman—Quieting Title—Maintenance of Action.—One who has made the affidavit, required by section 2290 of the Revised Statutes of the United States relating to homestead entry upon public land, and who has paid the amount required to enter the quantity of land applied for, stands in the relation of an entryman, and can maintain an action to quiet title and compel</p> <p>' conveyance of such lands to him.</p> <p>[3] Id.—Act of Congress—Construction by Land Department— Weight With Courts.—The coAstruction placed upon an act of Congress by the land department, with respect to the disposition of public lands, and its practical application thereof, is always given great weight by the courts in construing the law and is 'followed if it is at all reasonable.</p> <p>[4] Id.—Contest of Homestead Entry—Preferential Right of Entry by Contestant—Running of Time—Construction of Act of Congress.—Under section 2 of the act of Congress of May 14, 1880, giving a person who has successfully contested and procured the cancellation of a homestead entry the preferred right to enter such lands within thirty days from the date of notice of such cancellation, the time within which the coptest'ant may exercise such right does not begin to run where the lands are suspended from entry pending a contest between the state and the United States as to their character and disposition, until the time of restoration of such lands to entry. <</p>

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

<p>[1] Boad Improvement Bonds — Assignment by ¡SubcontractoRt— Notice op Assignment—Service upon County—Priorities op Assignments.—Notice of the-assignment of the right of a subcontractor to bonds issued by a county for road work done under the Boad Improvement Act of 1907 (Stats. 1907, p. 806), should be served upon the county and not upon the contractor, since the contractor is not the debtor, and the claim of an assignee who served notice of its assignment on the county was superior to that of the claim of a prior assignee who served his notice on the contractor.</p> <p>[2] Assignment—Chose in Action—Parol.—An assignment of a chose in action may be orally made.</p> <p>[3] Boad Improvement—Oral Assignment op Subcontract—Validity op.—An assignment by a subcontractor of his contract for the doing of certain road improvement work and his right to the bonds which he was to receive in compensation for the work, as security for moneys advanced to enable him to perform Ms contract, is valid, although orally made.</p> <p>[4] Id.—Assignment op Subcontract—'Knowledge op Contractor—• Subsequent Indebtedness op -Subcontractor—Superior Bights op Assignee.—Where a subcontractor with knowledge of the contractor assigned his contract and right to bonds before beginning work, any indebtedness of the subcontractor subsequently incurred could not be urged by the contractor as a claim against the bonds to the detriment of the assignee.</p>

<p>[l] Pleading—Parties—Action Against Copartnership—Demurrer of Individual—Disregard by Court.—In an action brought against a copartnership alone as a legal entity, under the provisions of section 388 of the Code of Civil Procedure, to have the interest of the plaintiff, claimed to have been acquired by purchase at an execution sale of the interest of one of the partners in the co-partnership, ascertained, and for an accounting/ where the record failed to show that summons was served on the partnership defendant or that it was served on any of the" partners, the court should not have considered a demurrer interposed to the complaint by an individual who was not named in the complaint and who described himself as sued as the copartnership, since such demurrer was not the demurrer of any party to the action for the only party defendant was the partnership.</p> <p>[2] Id.—Action Contemplated by Section 388, Code op Civil Procedure.—Although, by virtue of the amendment of section 388 of the Code of Civil Procedure in 1907, the judgment in an action brought against a copartnership alone as a legal entity binds not only the joint property of the associates, but also the individual property of the party or parties served with process, it is still true that the action contemplated by the section is one against the associates as such to enforce a claim existing against the association, and is not an action against the individual members of the association, that is, unless they are, as individuals, made parties thereto.</p> <p>[3] Id.—Absence op Appearance—Judgment op Dismissal Unwarranted.—In an action brought against a copartnership alone as a legal entity, judgment in its favor of dismissal and for costs should not be given, in the absence of any appearance by it.</p>

<p>APPEAL from a judgment of the Superior Court of Los Angeles County. E. P. Shortall, Judge Presiding.</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. George E. Crothers, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

APPEALS from orders of the Superior Court of the City and County of San Francisco, discharging writs of attachment. George A. Sturtevant, Judge. The facts are stated in the opinion of the court.

<p>APPEAL from an order of the Superior Court of Fresno County declaring transfer of property not subject to inheritance tax. H. Z. Austin, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>[1] Deed—Limitation of Sale or Rental to Caucasians—Undue Restraint on Alienation.—The provision in- a deed that the property shall not he sold, leased, or rented t'o- any persons other than of the Caucasian race is a restraint on alienation and falls within section 711 of the Civil Code.</p> <p>[2] Id.—Partial Restraint Upon Alienation—Invalidity of Provision.—Such a provision in a deed limited both to persons of a particular class and to a comparatively brief period of time cannot be upheld on the ground that the restraint is but partial, since there is no distinction -in this state between partial and general restraints upon alienation in view of section 711 of the Civil Code.</p> <p>[3] Id.—Limitation of Occupancy to Caucasians—Restraint Upoi$ Use of Property—Valid Provision.—The provision in a deed that no person or persons other than of the Caucasian race shall be permitted to occupy the property, is not a restraint upon alienation, büt upon the use of the property, and is valid.</p> <p>[4] Id.—Provision not Violative of Federal -Constitution.—The provision in a deed that property shall not be occupied by a person not of Caucasian birth is not an unlawful discrimination against certain classes of citizens, and within the inhibition- of the fourteenth amendment of the federal constitution, sincg such prohibition applies exclusively to ' actions by the state and has no reference to action by individuals.</p>

<p>[l] Street Law—Foreclosure os Assessment Lien—-Pendency of Appeal to Town Trustees—Judgment—Denial op Foreclosure and Decree op Lien ¡Subject to Disposal op Appeal—Warranted Procedure Under Vrooman Act.—Where in an action for the foreclosure of a street assessment lien for work done under the Vrooman Act, (Stats. 1885, p. 147), and subsequent amendments, the court found that the work had been done and that' all the proceedings were regular with the exception that an appeal by the defendant to the town trustees, duly taken after the issuance of the -assessment warrant, had not been regularly passdd upon and decided against the defendant, the court was authorized, in view of section 12% of the act, (-Stats. 1913, p. 409), while denying a foreclosure upon the ground that the action was brought prematurely, to adjudge affirmatively that plaintiff had a lien upon defendant’s property subject to the disposition of the appeal.</p> <p>[2] Id.—Pleading—Incorporation of City—Judicial Notice.—In an action for the foreclosure of a street assessment lien on city land, it is not necessary to allege that the city is a municipality, for the court will take judicial notice that it is. .</p> <p>[3] Id.—Improved Street—Failure to Allege Public Street—General Demurrer.—In such action, the failure of the complaint to state that the street improved is a public street, is not a ground for a general demurrer, and cannot be relied upon for reversal on appeal without an affirmative showing that the point was made in the trial court.</p> <p>[4] Id.—Jurisdictional Requirements—Sufficiency of Allegation.— The allegation in such action, that the resolution of the town trustees ordering the work was “duly made, passed' and adopted” was a sufficient allegation of all jurisdictional requirements.</p> <p>[5] Id.—Failure to Record Contract—Validity of Lien not Affected.;—A street assessment lien for work done under the Vrooman Act is not affected by the failure of the street superintendent to record the original contract with the return of nonpayment as provided by section 10, since the assessment becomes a lien prior to the recording of the contract and the statute does not make such recordation a condition subsequent to the lien.</p> <p>[6] Id.—Performance of Work to Satisfaction of Street Superintendent—Misstatement in Specifications—Validity of Assessment not Affected.—An assessment for work done under the Vrooman Act is not invalid because the specifications for the work .provided that it was to be done to the satisfaction of the city trustees, instead of to the satisfaction of the superintendent of streets, as required by the statute, where the contract, as distinct from the specifications, contained the required provision, and the work was actually done under the superintendence and to the satisfaction of the superintendent of streets.</p> <p>[7] Id.—Privilege to Take Samples of Work—Letter to City Trustees—Request not a “Remonstrance.”—Under section 3 of the Vrooman Act, a letter written by defendant during the progress of the work to the city trustees requesting that it be permitted to take samples to ascertain if the work was being properly done, was not a “remonstrance,” requiring a hearing and determination ■by the trustees.</p> <p>[8] Id.—Claims for Incidental Expenses—Failure of Street Superintendent to Require Verification—Validity of Assessment not Affected.—An assessment for work done under the Vrooman Act is not invalid because of the failure of the street superintendent to exact verified demands for “incidental expenses,” since the sole purpose of the statute is to require verification before the persons making the claims against the city are entitled to payment, with which the contractor has nothing to do.</p> <p>[9] Id.—I'rivolo'US Appeal.—Appeal in this action is held to he frivolous, and one hundred dollars as damages assessed against appellant.</p>

<p>[1] Joint Tenancy—'Corporation Stock—Death op Joint Tenant— Protection op Stock prom Sale por Delinquent Assessment—_ Executor not Obligated to Survivor.—The executor of the estate of a deceased joint tenant who listed in the inventory corporation stock purchased by the deceased with joint funds without the knowledge of the other tenant, owes no duty, either as executor or as bailee of tbe stock, to the surviving tenant to protect the stock from sale for nonpayment of an assessment levied prior to institution of action by the surviving tenant against the executor to establish sole ownership in the stock, sale being made during pendency of suit, since the executor was not responsible for plaintiff’s ignorance of the facts regarding the stock and its value.</p> <p>[2] Id.—Vesting of Title.—The title of a surviving joint tenant to stock purchased by the deceased joint tenant with joint funds does not vest in him on the death of his joint tenant, but exists ■from the time of purchase.</p> <p>[3] Id.—Nonexistence of Relationship of Executor and Legatee.— Under such circumstances, the relationship of executor and legatee did not exist between the former and the surviving joint tenant prior to judgment in the action of the surviving tenant against the executor, since the plaintiff in such suit claimed and established his sole ownership thereto as survivor, which claim was inconsistent with that of beneficiary under the will.</p> <p>[4] Corporations—Stock Certificate—Nature of.—A stock certificate is not the stock, but merely an evidence of the title.</p> <p>[5] Id.—Executor not Bailee of Stock.—Under such circumstances, the executor was not the bailee of the stock, although it had official custody of the muniment of title, it having held neither title nor possession of the property itself.</p>

<p>APPEAL from a judgment of the Superior Court of Orange County. Hugh L. Craig, Judge Presiding.</p> <p>The facts are stated in the opinion of the court.</p>

<p>[1] Workmen’s Compensation Act—Subrogation—Maintenance ■ op Action—Parties.—Under the provisions of section 31 and those of section 35, subdivision f, of the Workmen’s Compensation Act, the act of a father in collecting compensation from his son’s employer for the son’s death worked an assignment to the employer or insurance carrier of any cause of action against the third party whose negligence caused the death, and the employer or insurance carrier, in view of section 369 of the Code of Civil Procedure, could maintain such action in their own names.</p> <p>[2] Id.—Interest op Subrogating Party—Extent op.—While the act of a father in collecting compensation from his son’s employer for the son’s death worked an assignment to the employer or insurance carrier of any cause of action against the third party responsible for the death, the father nevertheless remained interested in any recovery that might be had to the extent of any excess recovered over the -amount necessary to reimburse the employer or his carrier.</p> <p>[3] Pleading—Parties—'Construction op Code.—While section 369 of the Code of Civil Procedure permits in certain cases the maintenance of an action in the sole name of one who is not beneficially interested, or who is not alone beneficially interested, it does not prevent those who are interested themselves from maintaining the action or being parties to it, in view of section 378 of such code.</p> <p>[4] Workmen’s Compensation Act—Subrogation—Action for Death op Employee—Parties.-—Where a father had collected compensation for the death of his son from the son’s employer, he could not, in view of section 382 of the Code of Civil Procedure,. prosecute an action for damages for such death against the third party responsible therefor without joining the employer and his insurance carrier as plaintiffs or defendants.</p> <p>[5] Id.—Nonjoinder op Parties—Manner op Objection.—Objection to the prosecution of such an action by the father without joining the employer and carrier as parties is one of nonjoinder of necessary parties and must be presented in the manner -prescribed by the code, 'and cannot be made by motion for nonsuit.</p> <p>[6] Negligence—Death prom Contact With Electric Power Wire— Proximate Cause.—In this action for damages for the death of plaintiff’s son from coming in contact with a high-voltage wire of an electric company, it is held the proximate cause of death was the negligence of the employer of deceased in moving a pile-driver before the wires had been set back, as agreed, to avoid danger.</p>

<p>[1] Malicious Prosecution—Charge op Felony Embezzlement—Absence op Criminal Intent—Sufficiency op Evidence.—In this action for malicious prosecution, based on a complaint charging plaintiff with felony embezzlement followed by his arrest, examination, and discharge, it is held the jury was justified from the evidence in finding that no criminal intent was proven on the part of the accused and that the application of the moneys received by him was with the knowledge and acquiescence of all the persons concerned.</p> <p>[2] Id.—Action Upon Legal .Advice—Question for Jury.—In an action for malicious prosecution, whether or not defendants acted boms fide upon counsel’s advice is a question for the jury.</p> <p>[3] Id.—Advice op Counsel—When No Defense.—Advice of counsel is no defense if the person who pretends that he has acted upon it did not believe the accused was guilty.</p> <p>[4] Id.—Charge op Embezzlement—Real Instigator—Evidence.—In, this action for malicious prosecution, it is held the evidence was sufficient to justify the conclusion that the defendant who did not swear to the complaint but who was a witness in the criminal proceeding, was the real instigator of the prosecution.</p> <p>[5] Id.—Evidence—Portions op Testimony op Dependant at Preliminary Examination—Admissibility.—Where in an action for malicious prosecution, the defendant who did not swear to the criminal complaint denied that he took part in the criminal prosecution, portions of his testimony taken at the preliminary examination were admissible as admissions regarding his connection, with the institution of the prosecution.</p> <p>[6] Id.—Good Reputation of Plaintiff—Proof as Part of Plaintiff’s Case.—In suits for damages because of malicious prosecution, the good reputation of the plaintiff has a direct bearing on the question of probable canse and may, therefore, be proven in chief, especially when such reputation is known to the defendant or defendants.</p> <p>[7] Id.—Relation of Pacts to Attorneys—Honesty of Witness.— In an action for malicious prosecution growing out of a charge of felony embezzlement, the court properly sustained an objection t'o a question, as calling for a conclusion of the witness, asking if the witness “honestly” in conversation with the attorneys stated to them everything that he knew or had learned touching the matter.</p> <p>[8] Id.—Belief of Guilt—Testimony of Defendant.—In an action for malicious prosecution, the defendant may testify to his belief on the subject' of plaintiff’s guilt.</p> <p>[9] Id.—Probable Cause—Instruction.—In an action for malicious prosecution based on a charge of embezzlement, where one of the pleaded assertions of defendants was that plaintiff was in fact guilty, an instruction that in order to determine that the plaintiff was guilty of embezzlement, it must appear from a preponderance of the evidence that the plaintiff had under his control a certain sum on or about the date charged, as trustee or agent, and having it so under his control, fraudulently and unlawfully appropriated it to some use not in the lawful execution of his trust, does not leave to the jury the question of existence or nonexistence of probable cause, in view of other instructions that the question of probable cause was one of law.</p> <p>[10] Id.—Advice of Counsel—Statement of Pacts—Extent of.—In an action for malicious prosecution, the defendant seeking justification under advice of counsel is not required in addition to stating to Ms legal adviser all the material facts of the case of which he has knowledge, t'o go further and use diligence in the procurement of other facts, but if he has reason to believe that there are other facts bearing upon the guilt or innocence of the accused he must either disclose that belief or himself make inquiry to ascertain the facts in relation to the matter.</p> <p>[11] Id.—Conversation Involving Statements Made by Codefendant—Admonition to Jury—Refusal to Strike Out Without Error.—Where in an action for malicious prosecution a witness testified as to a conversation had with one of the defendants in which such defendant related statements made by the other defendant, there was no error in refusing a motion to strike out such testimony, where the jury had been instructed that the other defendant was not bound by such conversation.</p>

<p>[1] Justice of Peace—Disqualification to Practice Law Before Recorder’s Court in County of Residence.—In view of the nature and jurisdiction of a recorder’s court, it being practically a justice’s court, it comes within the spirit and policy of the provision of section 171 of the Code of Civil Procedure, which declares that no justice of the peace shall practice law before any justice’s court in the county in which he resides.</p> <p>[2] Mandamus—Acts not Enforceable—Mandamus will not lie to compel the performance of act's which are illegal, contrary to public policy, or which tend to aid in an unlawful purpose.</p>

<p>APPEAL from a judgment of the Superior Court of Mendocino County. J. Q. "White, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>APPLICATION for a Writ of Mandamus to compel the Superior Court of Los Angeles County to settle and certify a proposed record on appeal.</p> <p>The facts are stated in the opinion of the court.</p>

<p>[1] Claim: and Delivery—Lien for Repairs—Judgment—Amount of.—In an action to recover the .possession of an automobile upon which defendant claimed a lien for repairs, the defendant was entitled t'o judgment for no greater sum as damages than the amount owing to him, and a judgment in his favor for the value of the machine was erroneous.</p> <p>[2] Id.—Reasonable Value of Repairs—Finding—Pleadings.—"Where in such action the plaintiff alleged that the amount claimed by defendant for repairs was grossly in excess of their reasonable value and that they were not reasonably worth any sum in excess . of a stated amount, and the defendant denied that the sum claimed was grossly or at all in excess of the reasonable value, and denied that the sum alleged by plaintiff was their reasonable value, but that such- value was a sum in excess of that alleged by plaintiff, the finding that the reasonable value was a sum substantially in excess of the sum alleged by plaintiff was not a finding against an admission in the pleadings.</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>APPEAL from a judgment of the Superior Court of Los Angeles County. John W. Shenk, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>[1] Corporations—Action Against Stockholder—Application of Unpaid Subscription to Judgment Against Corporation—Judgment in Previous Action not a Bar.—Where in an action by the assignee of various creditors of a corporation, judgment was recovered •against the corporation and also against a stockholder for the apparent amount' of his statutory liability, and thereafter the judgment was vacated against the stockholder, and, after trial of the action, judgment was entered in his favor, it cannot be said, in a subsequent action against the stockholder to subject the unpaid portion of his subscription toward the satisfaction of the judgment, that the former judgment in his favor is a bar, where, so far as appears from the record, the judgment may have been based solely upon the failure to establish the statutory liability, and may have been determined on issues wholly irrelevant and immaterial to the second action.</p> <p>• [2] Id.—Due Incorporation of Defendant—Binding—Effect of Stipulation.—In an action to subject the unpaid portion of a stockholder’s subscription toward the satisfaction of a judgment against a corporation formed under the laws of Nevada, where ■plaintiff failed to plead or prove the laws of that state, it cannot be claimed that a finding of due incorporation is unsupported and that there was no foundation for the admission in evidence of the articles of incorporation, where a copy of such laws was submitted to the judge following the submission of the case, and it was stipulated that the document submitted contained a full and correct copy of the laws of such state relative to the facts necessary to he set forth in articles of incorporation of corporations organized under such laws.</p> <p>[3] Id.—Ownership of Stock—Name on Books.—One who appears on the books of a corporation as owner of shares is the legal owner, and liable, as such, to creditors of the corporation, notwithstanding he has. surrendered the stock for cancellation.</p> <p>[4] Id.—Pleading and Evidence—Demand Upon Directors to Levy Assessment Unnecessary.—In an action to subject the unpaid portion of a stockholder’s subscription toward the satisfaction of a judgment against the corporation, it is not necessary before suit to allege and prove a demand on the directors of the corporation to levy an assessment to meet the obligation on the judgment.</p> <p>[5] Id.—Incorporation Under Laws of Nevada—Commencement of Business Upon Subscription of One Thousand Dollars—Bight to Levy Assessments.—The provision in the laws of Nevada relating to the incorporation, of corporations that authorizes a corporation formed thereunder to commence business when one thour sand dollars of the capital stock is subscribed if the corporators express an election to do so in the articles of incorporation, is tantamount to an authorization to levy assessments on unpaid subscriptions when' one thousand dollars of the capital stock is subscribed and it is the will of the corporators that business be then undertaken.</p> <p>[6] Id.—Construction op Articles—Time op Commencing Business. Where the articles of incorporation of a corporation incorporated under the laws of Nevada, state facts and figures raising an irresistible inference of intent to commence business when one thousand dollars of the capital stock is subscribed, there is at least a substantial compliance with the requirement of the statute that the articles should set forth the amount of subscribed capital stock with which the corporation is to commence business, and the liability of stockholders commences from the time of such subscription.</p>

<p>APPEAL from an order of the Superior Court of the City and County of San Francisco directing a sale of real property of the estate of a deceased person. George A. Sturtevant, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>[1] Estates of Deceased Persons—Will—Bequest of Money— Specific Legacy—Intent of Testator.—While it is true that a legacy is presumed to be general unless it clearly appears to be specific, especially where it is of a pecuniary character, the intent of the testator necessarily controls, and where it appears that his intent was to give a particnlar thing or a given sum of money, not generally but only from a specified and definitely ascertained source, the court has no choice but to give effect to that intent.</p> <p>[2] Id.—Bequest of Money Invested in Mortgages.—Specific Legacy. A bequest “of the sum of $12,000” which was invested at interest in certain mortgages providing that the interest upon the mortgages should go to the testator’s wife to be used for her benefit as long as she lived, and upon her death the “above-mentioned sum of $12,000” should go to the children of the deceased brother and sister of the testator, constituted a specific and not a general or demonstrative legacy, and did not entitle the legatees to be paid such amount out of the general assets of the estate, where the mortgages had been paid and canceled before the death of the testator.</p>

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

<p>[i] Estates of Deceased Persons—Charitable Bequests—Abatement as Between Residuary Legacy and Specific Bequests.— Section 1313 of the Civil Code does not' make wholly void gifts to charitable organizations or upon charitable trusts when their aggregate exceeds one-third of the testator’s estate, but merely requires that upon distribution their aggregate be reduced to the legal limit'. In" making such reduction the residuary legacy, if it be of the partially prescribed character, must give way to the specific bequests which are of the same character, so that there is permitted for distribution under the residuary legacy only the amount by which one-third of the testator’s distributable estate exceeds the amount of specific bequests to charitable organizations or upon charitable trusts.</p> <p>[2] Id.—Bequest fob Masses—Determination of Nature—Evidence —Character and Objects of Mass.—In determining whether a bequest to an archbishop of the Roman Catholic Church for masses to be said for the repose of the soul of the testator is a bequest for charitable uses within the meaning of section 1313 of the Civil Code, testimony as to the character and objects of the ceremonial of the mass according to the doctrine of the church, and also as to the rule of the church as to money paid for masses, is material.</p> <p>[3] Id.—Bequest to Priest for Masses—Precatory Trust not Created.—A bequest of money direct to the priest oí a certain Roman Catholic Church for masses for the repose of the soul of a named person, does not create a precatory trust, as under the rules of the church the money goes to the priest individually and not to the church.</p> <p>[4] Id.—Bequest to Archbishop for Masses—Precatory Trust.— A bequest of money to an archbishop of the Roman Catholic Church with request that masses be offered for the repose of the soul of the testator and certain relatives in particular churches within his jurisdiction, creates a precatory trust, as the obligation of the archbishop, assuming that the testator intended one, is one as to the disposition and use of the money given him.</p> <p>[5] Id.—Precatory Trust—Words of Favor or Petition.—Words of favor or petition in a will will not be raised into words of positive direction so as to create a precatory trust unless it is clear that they were so used by the testator.</p> <p>[6] Id.—Precatory Trust—Intent of Testator.—In determining whether a bequest creates a precatory trust the question is whether the legatee is the beneficiary or merely a trustee for others of the gift bestowed upon him; whether the wish or desire or recommendation that is expressed by the testator is meant to govern the conduct of the party to whom it is addressed, or whether it is merely an indication of that which he thinks would be a reasonable exercise of the discretion of that party, leaving it, however, to the party to exercise his own discretion.</p> <p>[7] Id.—Creation of Precatory Trust—Obligation Imposed—Enforcement by Courts not Essential.—It is not necessary in order to create a precatory trust that it appear that the testator intended that the obligation imposed should be one enforceable by the courts, and in the absence of anything indicating an intention on the testator’s part that it should so be enforced, it is sufficient if it appear that the testator did intend to place upon the legatee an obligation as to whose performance the latter has no discretion, and which he cannot fail to perform in good conscience and in good faith toward the testator.</p> <p>[8] Id.—Bequest fob Masses—Charitable Use.—A, bequest in trust for masses to be said for the repose of the soul of the testator is a trust for charitable uses within the meaning of section 1313 of the Civil Code.</p> <p>[9] Id.—Construction of Section 1313, Civib Code.—Section 1313 of the Civil Code provides no limitation upon gifts in general for charitable purposes, but places such limitation only upon gifts to charitable corporations or societies or in trust for charitable uses.</p>

<p>[1] Vendor and Vendee—Street Improvements by Vendor—Notification of Inability to Perform Within Contract Time—Time of Commencement of Action to Recover Payments—Right of Vendee.—Where the vendor under a contract for the sale of real estate notified the vendee before the expiration of the time for payment of the final installment on the purchase price that it would be impossible for the vendor within the time mentioned in the contract to make certain street improvements as required by the terms of the contract', such refusal was tantamount to a declaration on the part of the vendor that it could not and would not perform its obligation within the prescribed time, and it was not necessary for the vendee to defer bringing action to- recover money paid on account of such breach until the full time had expired during which the vendor might have made the improvement's.</p> <p>[2] Contract—Abandonment Prior to Expiration of Provided Time. The failure or refusal to perform an obligation assumed expressly or by implication, or the voluntary abandonment of the contract, releases the obligee from the duty of making demand, and performance or tender, and justifies him in abandoning the contract without waiting until the contract period expires, and gives him immediate right of action for the breach and to rescind.</p> <p>[3] Vendor and Vendee—Invalid Extension of Time for Making Improvements.—In view of section 1698 of the Civil Code which provides that a contract in writing may be altered by a contract in writing, or by an executed oral agreement, and not otherwise, and of subdivision 1 of section 1624 of such code, and of subdivision 1 of section 1973 of the Code of Civil Procedure, which provide that a contract which by its terms is not' to be performed within a year is invalid unless a note or memorandum thereof he in writing and subscribed by the1 party to be charged, the time within which the vendor under a contract of sale had to make certain improvements, was not extended two years by a draft for such an extension prepared by the vendee but not signed by him.</p> <p>[4] Contract—Writing—Oral Waiver.—Conditions of a contract in writing may be waived orally.</p> <p>[5] Vendor and Vendee—Extension of Time for Making Improvements—Evidence—Absence of Waiver.—An extension of time for the performance of street improvement work by a vendor under a contract of sale is not agreed to or performance of the work waived, where the vendee promptly repudiated and rejected letters of the vendor proposing an extension.</p> <p>[6] Contract — Breach of Condition—- Abandonment—-When not Justified.—Where the stipulation does not go to the root of the contract so that a failure to perform- it would render the performance of the rest of the contract a thing different' in substance from what was contracted for, there is ordinarily not such a breach as will authorize an abandonment of the contract by the other party, nor is there a fatal breach in cases where the nonperformance of one of the conditions does not materially impair the -benefit from the performance of the others, and the loss occasioned, by the breach of the particular condition is capable of compensation in damages.</p> <p>[7] Vendor and Vendee—Failure to Make Street Improvements—Bight of Bescission of Contract.—In view of section 1689 of the Civil Code which provides that a party to a contract may rescind it, if, through the fault of the party as to whom he rescinds, the consideration for his obligation fails, in whole or in part, or, if such consideration, before it is rendered to him, fails in a material respect, from any cause, a vendee under a contract of sale may rescind on the failure of the vendor to make street improvements, since the improvements were a material part of the consideration.</p> <p>[8] Id.—Agreement to Improve Streets—Agreement to Pat Price— Concurrent Conditions.—Where under a contract of sale the vendor was given the same length of time to complete street improvement work as was given t.o the vendee to make payments of the installments of the purchase price, the agreement of the vendor was a condition concurrent with the agreement to make payment of the last installment.</p>

<p>Deed—Building Restrictions.—Judgment affirmed on the authority of Werner v. Graham, ante, p. 174.</p>

<p>APPLICATION for Certiorari to review an order of the Industrial Accident Commission awarding compensation for personal injuries.</p> <p>The facts are similar to those stated in the opinion in Worswick Street Pav. Co. v. Industrial Acc. Com. et al., and the Employers’ Liability Assur. Corp. v. Industrial Acc. Com. et al., ante, p. 550.</p>

<p>Workmen’s Compensation Act—Status op Injured Employee—Liability op Insurance Carrier—Construction op Policy.—Award of compensation affirmed, except in so far as it runs against The Employers’ Liability Assurance Corporation, as to which the award is annulled, on the authority of Worswick Street Pm. Co. v. Industrial Acc. Com. et al., and The Employers’ Liability Assur. Corp., v. Industrial Acc. Com. et al., ante, p. 550.</p>

<p>APPLICATION for Certiorari to review an order of the Industrial Accident Commission awarding compensation for personal injuries.</p> <p>The facts are similar to those stated in the opinion in Worswick Street Pav. Gq. v. Industrial Acc. Com. et al., and The Employers’ Liability Asswr. Corp. v. Industrial Acc. Com. et al., ante, p. 550.</p>

<p>Workmen’s Compensation Act—Status of Injured Employee—Liability of Insurance Carrier—Construction of Policy.—Award of compensation affirmed, except in so far as it runs against The Employers’ Liability Assurance Corporation, as to which the award is annulled, on the authority of Worswick Street Pav. Co. v. Industrial Acc. Com. et al., and The Employers? Liability Asswr. Corp. v. Industrial Acc. Com. et al., ante, p. 550.</p>

<p>APPEAL from a judgment of the Superior Court of Riverside County. P. E. Densmore, Judge.</p> <p>The facts are stated in the opinion of the court.</p>